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Minecraft, Intellectual Property, and the Future of Copyright
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Minecraft, Intellectual Property, and the Future of Copyright

January 17, 2012 Article Start Page 1 of 3 Next

In mid-November, shortly after 4,000 Minecraft fans descended on Las Vegas for Minecon, the Mojang team held a Q&A session. A young kid was the first to get the microphone. He didn't so much ask a question as offer an idea: pajamas.

Pajamas in Minecraft would be crafted like armor, he explained, but their function would be to help your avatar fall asleep faster. Minecraft's Swedish creator, Markus Persson -- better known as Notch -- smiled politely and handed off the pajamas idea to Jens "Jeb" Bergensten, who was soon to become the lead developer of the game. Jeb played along, suggesting that these pajamas might also make the wearer invisible to monsters.

It was not surprising that the first question at Minecon turned out to be a conversation about a new idea. Minecraft is primarily a game about making new things. Some game reviewers describe it as a sandbox game, which it is, but somehow that designation doesn't capture what makes Minecraft so different.

The breakout panels at Minecon showed just how much Minecrafters really like to make new things: panels offered advice on how to build functional computer circuitry in the game, how to keep monsters from wrecking your buildings, how to build epic architecture with the "wow" factor, and the best strategies for creating multi-player servers.

There was even a panel where Hippoplatimus, a 15-year old who created a "pistons" mod, gave advice to aspiring Minecraft modders. His mod was such a hit that Mojang incorporated it into the game.

When people think of the sandbox genre, they think of games like The Sims, and when it comes to user generated content, they might think LittleBigPlanet -- games with a large variety of outcomes, and games that allow custom maps. Minecraft goes beyond that.

Part of what makes it so special is Notch's direct communication with his player community. Compare, for instance, the 50,000 Twitter followers of Media Molecule (maker of LittleBigPlanet) with the 500,000 followers of Notch. Minecraft players know that Notch, and not some unknown guy in a cubicle, made Minecraft's code. At Minecon, they knew that if he wanted to, Notch could add those pajamas in a heartbeat.

But Minecraft's success is about more than a guy with a signature fedora. As everyone knows by now, with almost zero marketing, Minecraft sold over 4 million copies in two years of open beta. Compare that with LittleBigPlanet's 4.5 million sales -- even as a series backed by a major gaming platform holder.

Notable commentators have offered various explanations of Minecraft's success, and no doubt they are all part right. You can attribute Minecraft's popularity to luck, artistry, accessibility, community, and even authenticity... but let me throw in my own suggestion: those pajamas. More precisely, Minecraft is a hit because it was a game that took the creativity of players just as seriously as it took the creativity of its creator.

My daily work is teaching and research the law of intellectual property. I find Minecraft fascinating because it seems to me that Notch never got the memo on IP that the game industry now knows by heart. Notch made a game that lets players, kids included, feel like they are architects. Minecraft isn't so much a game that shows off the amazing things a game designer did, as it inspires you (even requires you) to make amazing things for yourself. Minecraft is a game about letting people discover their own creativity, even if they have no initial intention of being creative.

In theory, bigger and more experienced studios could have come up with a game like Minecraft years ago. The reason they didn't, I think, is that most developers in the industry have been steeped in the logic and culture of intellectual property. In short, the dominant story of intellectual property is that game developers should make content and players should consume it. And that is right, generally, but it misses out on the potential for players to be creators too.

I should say at the outset that I'm not opposed to intellectual property protection. I teach the law of IP and I have represented IP rights holders in litigation. I firmly believe that IP has been and will continue to be essential to the development of video games as an art form. Ever since the litigation over the Pong patent, copyright, patent, and trademark law have played a key role in allowing game creators to reap the benefits of their creativity.

Intellectual property laws give game makers the right to sue those who pirate, copy, and clone their creative works. Some of the earliest video games, like Pac-Man and Defender, were also the sources of some of the earliest lawsuits over software rip-offs and clones.

Video games actually gave birth to the legal protection of software as a form of intellectual property. In other words, if it were not for Defender and Pac-Man establishing copyright in computer software, Apple and Microsoft would have been historical footnotes, not the economic titans they are today. Companies like Google and Facebook may have never existed.

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Ted Chen
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Minecraft has as much legal and moral liability to user created content as Microsoft has to fan-fiction created in Word. It doesn't go against the grain of conventional IP thought; more like it doesn't have to care. Pinball Construction Set didn't care in 1983 then either.

Any centralized online game is considered a service provider, and to keep your safe harbor status, the stance of not caring is not a viable strategy.

Michael Joseph
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"To the extent new laws work against the development of sandbox games and interactive platforms generally, this is understood as an acceptable tradeoff for stopping piracy."

I don't think this is understood well or widely at all.

Darcy Nelson
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I find it interesting that Notch and Minecraft were brought up in the context of IP law, but there's no mention here of the cease-and-desist Bethesda handed to Notch over the naming of Scrolls.

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Well, it is not mentioned because it isn't relevant to an article about user created content causing tool creators to assume liability for IP infringement.

Jose Resines
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Sadly, congress doesn't even understand what we are talking about here. They'll just vote whatever those that paid them tell them to vote, unless a big fuzz is made that endangers their electability, like it's happening right now with SOPA and PIPA.

The only thing Congress will do about Copyright is keep extending the number of years it covers after the author's death. Mickey Mouse's fall into public domain is about the only argument that makes this people work, and always in favor of big media.

Greg Lastowka
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Thanks for the comments, everyone.

@Michael: you're right. What I meant was that I've heard some lawyers for the major game companies put it that way.

@Darcy: I've been following that suit. It's a trademark issue, though. Trademark law prevents consumer confusion about the source of goods and services. Copyright law protects works of authorship. I was writing about authorship in this essay, so I figured the Scrolls case didn't really fit. Re the Scrolls case, I personally doubt that consumers would think Bethesda had anything to do with Mojang's game.

Logan Margulies
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"@Michael: you're right. What I meant was that I've heard some lawyers for the major game companies put it that way."

Not all of us! :P

Great article.

Frank Lantz
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Also surprised to see no mention of Infiniminer.

Greg Lastowka
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Thanks, Frank -- you're absolutely right, I should have mentioned Infiniminer...

I'm not sure exactly how it influences the way I think about Minecraft, but it certainly should be part of the Minecraft story. I'm planning on including a chapter along these lines in a future book, so if you've got thoughts about that, maybe we can talk some time?

Kevin Reilly
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@ Greg: Notch has not really done anything groundbreaking by offering users tools to create their own iterations on the original game. Valve and many other PC developers encouraged community mods to create new content for games b/c it made the original game more valuable. For example, Counter-Strike was a mod of Half-Life. Console game publishers did not share the same ethos b/c of restrictions put on them by hardware manufacturers, who charge large licensing fees for dev kits and a per unit royalty on each disk. Free content is not a business model that works for console.

FYI - you did not point out in your summary of Marvel v. NC Soft that there was evidence that Marvel employees were the ones creating replicas of Marvel copyrighted characters in City of Heroes. Doesn't really change analysis of DMCA safe harbor, but I always thought it was relevant to the decision of the parties to settle.

Greg Lastowka
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@Kevin -- I agree, I guess, if we're just talking re mods. As far as that goes, Minecraft is not a quantum leap from many other PC games. But I think when you add modding to Minecraft's basic gameplay and the degree of community engagement it has, I would call it groundbreaking. I can't really think of other comparable games in terms of reliance on UGC. Re Marvel v. NCSoft, yeah, I left that out. I agree with you that those manufactured exhibits didn't help Marvel's case much. If I recall correctly, though, there were *some* (not many) player-created and Marvel-inspired costumes to be seen in Paragon City at the time.

Alexander Cooney
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There is a difference between UGC for modded games like Half life and UGC for Minecraft.

When a user generates content for a beautiful, hi res AAA game, It takes an enormous amount of time (and expertise) to make content that matches the quality of the original game. This is frustrating, because it's actual work.

With Minecraft, on the other hand, the original content is so basic and simple that a user can match it within a matter of seconds (i.e. placing blocks), and exceed it in double that time (placing blocks with purpose).

This ease of matching the original game's content is the key to Minecraft's success with UGC. Users instantly feel like experts.

Why minecraft's success didn't work with infiniminer and other similar titles? Can't say. The afore-mentioned community element helped, definitely. Luck, timing, trickster gods?

Greg Lastowka
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@Alex -- yes, great point!

R. Hunter Gough
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"Mojang does not need to worry about the risk of copyright-infringing players. That's because Mojang does not host player content on proprietary servers and this largely frees Mojang from the DMCA system and the risk of copyright infringement liability."

So... isn't this whole defense going to implode when they release the XBLA version, which DOES host player content on proprietary servers?

Eric Haines
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I just happened on this article due to a link in a reddit post. By odd coincidence, I wrote a little essay on IP and Minecraft and some possible issues: . Some questions I'm pretty sure I know the answers for, some I definitely don't, and this article answered a few - thanks!

As far as IP, even Notch has limits. I recall he was pretty bugged that Crafted, an iPhone app, stole his textures and so on wholesale, search "crafted minecraft" on YouTube. Brief story here: Apple did pull it from their app store soon after its release.

I don't have much else to add to the comments above. Modders are indeed encouraged to mod by games companies. However, many engines have gotten way more involved to mod for compared to, say, even the Battlefield 1942 days. Games like Spore are all about user content (given the rest of the game is somewhat weak), with the Sporepedia hosting 170+ million models from users. LittleBigPlanet is another where user content is encouraged. That said, I agree, Minecraft's thrust is creativity: it's more like over 3.3 million YouTube videos (100+ of them are mine), not just "more than a million". I'm just shaking off the last bits of my own addiction, my swan song being Mineways, a free exporter that lets you send your models to a 3D print service or print them yourself. A month and a half of spare-time programming, building on top of another player's open-source add-on, and the whole community gets enriched just a tiny bit more.

Raymond Grier
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Copyright and trademark offices around the world allow registration of IP without checking whether or not that IP's rights are already spoken for. Why? Because there's too much IP in the world (not all of it registered but still legally binding in most countries) for them to know what is and isn't already owned and by who. If governments can't handle it then they shouldn't expect companies with hosting services that allow user content to do so.

Even a company that does try to actively police its users' content can miss policing something that they don't know belongs to someone else.