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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 Previous Page 3 of 3

But now back to Minecraft -- because Minecraft goes against the grain of conventional wisdom on intellectual property.

We can start with its creator. Notch is a member of Sweden's Pirate Party (which has two seated members in the European Parliament) and he has, so far, been very complacent about the sale of games that some consider Minecraft clones. In fact, he seems pretty complacent about software piracy generally.

He has publicly stated that Mojang opposes SOPA. His personal philosophy shows up in Minecraft's Terms of Use, which is worth a read if you have a few seconds. Admittedly, the terms include standard legal disclaimers and they expressly prohibit the redistribution of Minecraft.

But they are written in colloquial language and they take up a single web page. At one point, an explanation for this approach is offered: "We're not going to put up a huge EULA. We're trying to be open and honest, and we hope people treat us the same way back."

But Minecraft's real challenge to intellectual property is not in Mojang's terms of service or Notch's personal opinions, but in the game itself. In its Alpha version, Minecraft was little more than a game about building things with virtual blocks. It verged on being a weird CAD program, yet many found it fascinating.

Now available in its completed 1.0 version, there is certainly a game of sorts to Minecraft, but the game still seems to be an excuse for building with blocks. In fact, Minecraft's game elements are fun primarily insofar as they provide a game-like context for creativity.

If you use Minecraft to build a working virtual computer, like some people have done, rain falls and the sun sets on your cobblestone computer by the sea, while cows and chickens bounce around the logic gates. If you're building your own version of Minas Tirith or the Starship Enterprise, you'll be especially annoyed by the damage done by mischevious Endermen and exploding creepers.

The example of Minas Tirith takes us back to the City of Heroes litigation. If you make Minas Tirith in Minecraft, you probably haven't talked with the Tolkien estate, so what makes you think you have a right to build on Tolkien's creativity? (Perhaps you do have a "fair use" right, but some lawyers might disagree -- fair use is a very fuzzy legal doctrine.)

Unlike NCSoft, however, 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.

Minecraft's player infringement burdens are pushed off to those who do host potentially infringing content. Lo and behold, the primary target here is YouTube, the defender of the DMCA rules in the Viacom litigation. A search for "Minecraft" today on YouTube returns over 1 million results. How many of them are in full compliance with copyright law?

It's possible, even probable, that Mojang lucked into a situation where third parties like YouTube hosted the staggering amounts of player creativity unleashed by the game. During Minecraft's beta, while the game was changing constantly, Mojang simply could not have taken an aggressively proprietary approach toward player-created content.

In theory, larger and more established game companies could try to duplicate Mojang's curious strategy here. But I'm not sure that they will. It isn't clear to me that many other game developers, and especially major industry players, can change their worldview enough to pull off Minecraft's intellectual property jujitsu.

To sum up Minecraft's strategy:

1) rather than keeping players on rails and limiting what they can do creatively, give players a radical level of control over their environment and give them simple tools (digging, building, and crafting) for authorship

2) rather than hosting, organizing, and policing the content created by players, push that content off your system and onto external content sharing sites like YouTube

3) rather than vigorously asserting your proprietary rights, remain ambivalent to (or even enthusiastic about) mods, clones, and piracy

4) rather than making games built on the same licenses used to sell action figures and Happy Meals, make a game that inspires your players to have genuinely new ideas (like magic pajamas).

In other words, at every point where the norms of intellectual property law would say you should zig, Mojang chooses to zag.

Who knows where Mojang will go with Minecraft in coming years? An Xbox Live Arcade version was on display at Minecon and an iTunes version had just been released. Notch has apparently moved on after the 1.0 release, handing the creative reins to Jeb. And Mojang's forthcoming Scrolls is a much more traditional game. Yet as the SOPA debate continues and the YouTube litigation drags on, I think there is something important to see in the story of Minecraft's commercial success.

Today, Hollywood and associated content industries are pitching a particular philosophy of intellectual property to courts and Congress. They claim that creative individuals simply can't make money unless we reshape computer networks and digital technologies to better serve the business models of Hollywood. Meanwhile, quietly in the background, a member of the Swedish Pirate Party was making a simple game that let the public of gamers unleash their own creativity. The players loved it and the developer made millions.

Instead of passing new laws in this country that primarily hamstring technology to better serve past models of intellectual property, perhaps Congress should be thinking a little bit about Minecraft? Perhaps rather than using copyright to restrict innovation, we might do something genuinely innovative with copyright law?

Article Start Previous Page 3 of 3

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