Imagine the next game your company makes includes a tool set and the ability for players to make mods and create their own levels. Of course, this is very common in modern PC games. Now imagine that someone could collect those mods and user created levels and sell them. By selling them, I mean with retail distribution in major stores without your permission and without royalties. This whole ideas strikes us as crazy in 2006, but there was a time when these rights were questioned.
The case involving this issue surrounded the game Duke Nukem 3D.3 Duke Nukem 3D was a first person shooter created by 3D Realms for the PC and released in 1996. The play style was similar to many other games of the period including Doom and Hexen. It was probably most memorable for Duke’s simultaneously pithy, charming, and offensive dialogue. The game was also one of the first to include a “Build Editor” that allowed users to create and trade their own user created levels. The game license included the statement that any user made levels could be given away, but not sold.
A company named Micro Star created a compilation of 300 user levels on a CD and attempted to sell these through retail distribution under the title “Nuke It.” In summary, Micro Star argued three positions. First, this was not a violation of copyright because the user maps did not contain any art assets. The files on the CD merely called for the placement of art and sound assets. Secondly, even if it was a copyright violation, it was “fair use.” Third, even if the first two arguments were not true, the game license was invalid and 3D Realms had given up copyright rights when it allowed users to make their own levels.
The lower court in California ruled in favor of Micro Star on some of the copyright issues and that brought the case to the court of appeals. The 9th Circuit court of appeals overturned this decision and held that Micro Star’s actions were copyright infringement and would not allow the sale.
If this case had gone differently, the game industry might be a very different place. Imagine store shelves and digital distribution filled with collections of user created content where the original publisher/developer has no creative control over the product or royalties on the sales.
Similar to the previous battle for copyright protection, the game industry is now fighting for the additional respect that comes from First Amendment protection of artistic expression. To date, nine state laws attempting to limit the sale of games have been overturned as unconstitutional attacks on games as speech under the First Amendment.
A variety of laws have been put forth by state legislature to act toward censoring game content or controlling the sale of games. As a rule, be immediately suspicious of any legislation proposed in the name of “security” or “protecting our children.” The result is often a jumbo size bite taken out of artistic expression and individual liberty.
To date, the ESA has fought and won nine out of nine cases on these issues, having the state laws declared unconstitutional. Furthermore, the ESA has sought and won more than $1.5 million dollars in attorneys fees. In a December 2, 2006 press release, the President of the ESA, Douglas Lowenstein was quoted as saying:
States that pass laws regulating video game sales might as well just tell voters they have a new way to throw away their tax dollars on wasteful and pointless political exercises that do nothing to improve the quality of life in the state. In nine out of nine cases in the past six years, judges have struck down these clearly unconstitutional laws, and in each instance ESA has or will recover its legal fees from the states. What's worse, the politicians proposing and voting for these laws know this will be the outcome. Our hope is that we can stop this pick pocketing of taxpayers and start working cooperatively, as we have with several states and elected officials, to implement truly effective programs to educate parents to use the tools industry has made available -- from ESRB ratings to parental control technologies.
This is certainly an instance where litigation has done a great deal of good for the industry. These cases have helped raise the profile of the industry in the news and encouraged an increased respect for the craft of making games.