2007.03.17
Image: FredoAlvarez (CC BY-ND)
Linden labs has settled the Bragg lawsuit, on undisclosed terms.
This is very much to be expected. The only surprising thing here is that it didn't happen much sooner. You simply can't encourage people to invest and 'own' virtual land, run around telling them that they can make lots of money, and then act as if they have no interest in it whatsoever.
Linden almost certainly doesn't want an adverse precedent here – an opinion that they can't kick people out and confiscate their 'property' without process or compensation. It is not, however, a principle that they are going to be able to avoid for very long…
2007.03.17
Here is a new machinima licence from Microsoft, who are gearing up for the release of Halo 3.
Important points:
-
No commercial use, not even donations, not even contests, and presumably not film festivals – MS are reserving their ability to get a slice of that lucrative machinima pie.
-
You can't grant rights to other people to build on your creations. This is a really confusing statement – they “don't mind if other people help you out”, but the permission comes from Microsoft and not the creator. Does this mean that licensing the finished film is forbidden? How exactly can other people “help” if they have a licence from Microsoft but not from the creator of the new copyright interests in a machinima film?
This licence shows that Microsoft are allowing machinima, but are keeping a very wide discretion on the types of content that can be created. Under a heading “What can't I do?”, the response is “It's tough to predict everything people will do, but there are some things that you can be sure will get our attention.”
The success of the Halo franchise is in a large part dependent on the engagement of the community, including machinima producers. I'm concerned because Microsoft are atetmpting to harness the creativity of their audience in order to promote their games, but are sending a very clear message that only films which are 'safe' are acceptable. Anyone who expects to create a really expressive and slightly gritty film can also expect the heavy hand of Microsoft's copyright lawyers to come down on them.
I'm concerned about the use of copyright as a tool of private censorship, and I'm concerned about companies who encourage and benefit from fan creation but give their fans little or no certainty as to what will and will not be permitted. Also, preventing these creators from even taking donations seems to go a little too far. It's clear that in any of these cases, traditional licence negotiation is going to be necessary, and this is a situation in which Microsoft holds a much better bargaining position than the fan-creators…
2007.03.17
And the lawsuits keep flying. This one is a class action suit started by a user called Antonio Hernandez, who's suing IGE for gold farming in World of Warcraft.
Read the complaint – even if just for the first couple of pages.
Hernandez alleges that IGE is interfering with the the enjoyment of contracts between Blizzard and users “by selling World of Warcraft virtual property or currency […] generated by cheap labor in third world countries”.
Really, the sweat-shop imagery is getting tiresome. We don't mind when our shoes are made by people working in ridiculously dangerous conditions, but gamers seem to get really upset when someone engages in internation arbitrage to sell repetitive computer labour to US players.
Interestingly, he sets out the particulars of damage as:
-
“Devaluation of currency:” – this one is more reasonable, but still, mudflation was a big problem long before IGE came around. Besides which, they're measuring devaluation of currency in USD figures, where a couple of pages up, they said that it's not permissible to trade USD for virtual gold.
If there's no link to USD (by their own arugment), their damages must be limited to USD$15/month.
Anyone know who's actually joined this action? It seems ridiculously hard to prove – it rests on tortious interference with contract, and damages alleged are likely to be limited ot the value of the subscription, discounted by the enjoyment that the players did in fact get – i.e., very close to zero.
There's nothing in the EULA that prevents *farming*, only selling gold. Farming, even on a super large scale, is a legitimate activity, and any ill effects which flow from it are Blizzard's responsibility (for what are essentially bad game mechanics, in my opinion).
There's no causal link between the loss that these players are alleging and IGE's allged wrongdoing. If IGE and all the individual farmers had wanted to, they could each farm the same amount of money and cause the same level of inflation (and restless nights!) without breaching the contract – the fact that they subsequently broke a contract with Blizzard has nothing to do with players having a less enjoyable experience. I can understand that some people don't like gold farmers (personally, I like the ability to bypass what i find to be the boring part of the game by paying someone else to do it for me), but they can't reasonably claim against IGE for this. Blizzard may have a case against people who break their contracts (we'll see about that shortly), but I really don't see that IGE is responsible to Blizzard's users. If anything, I'd complain to Blizzard about encorouaging game mechanics which are repetitive and boring, but that's not the basis for a legal claim.
2007.03.17
My PhD confirmation seminar is up this Wednesday 07 March 2007. Professors Brian Fitzgerald (QUT Law), Greg Hearne (QUT Creative Industries), and Terry Fisher (Harvard Law) will be on the panel; it should be a good two hours of discussion on virtual worlds and regulation. Anyone interested is welcome to attend.
-
Room: B506, Gardens Point Campus, QUT, Brisbane, Australia.
Virtual environments are becoming increasingly popular and diverse. These worlds challenge us to consider established concepts of place, relationships, economics, property, play, culture, and many other aspects of social life. They provide an excellent opportunity for interaction of all types, including play, commerce, teaching and learning, and research. As activities which were previously performed in real world spaces become commonplace within virtual worlds, some very interesting questions are raised about the nature of regulation, the distinction between public and private spaces, the distribution of power, and the way in which that power is exercised within virtual environments.
This thesis will take a critical approach to examine the roles of participants, platform owners, and territorial governments in the regulation of virtual environments. Much of the analysis carried out to date in this area is limited by an over-reliance on a property-based paradigm, coupled with a failure to recognise the multitude of roles and motivations of both participants and proprietors, and a tendency to essentialise the behaviours of each these groups. This research will attempt to unravel some of the complex interrelationships which exist between participants, platform owners, and regulators, and aims to provide a framework for the evaluation of regulatory approaches. In essence, this thesis considers a facet of digital constitutionalism – the principles governing the allocation of power amongst actors in and around virtual environments.
2006.03.18
In 2005, the Australian High Court ruled that the combination of the boot ROM and region coding in Sony PlayStations and PlayStation games was not a Technological Protection Measure (TPM). Under the old law, a device had to “prevent or inhibit” the infringement of copyright. Because Sony's technology didn't prevent a copy being made, but only stopped the copy being played in the PlayStation, then it couldn't prevent or inhibit the copying that had already taken place.
This may have changed in the recent changes to Australia's copyright legislation. The definition of a Technological Protection Measure (TPM) was changed from a device designed to 'prevent or inhibit', to a device designed to 'prevent, inhibit, or restrict' the infringement of copyright.1) This effect of inserting the broader term 'restrict' seems to be to legislate around the High Court's decision in /Stevens v Sony/, meaning that a PlayStation may well be a TPM under the new law, and dealing with mod-chips may soon be illegal.
The changes also introduce a new category of protected devices, called Access Control Technological Protection Measures (ACTPMs). An ACTPM is defined as a device used within Australia in connection with the exercise of copyright, which controls access to the copyright work.2) For ACTPMs, unlike TPMs, it is illegal not only to manufacture or supply a circumvention device or service, but also to actually circumvent the measure. Previously, if you could obtain a circumvention device (mod-chip) from outside of Australia, there would be no restriction on you using that mod-chip yourself; but you couldn't have it done for you. Now, if the device is an ACTPM (but not a TPM), then actual circumvention may result in civil liability,3) and, if done for commercial advantage or profit, criminal sanctions.4) For both TPMs and ACTPMs, the manufacture, importation, distribution, or communication of a circumvention device, or the provision of a circumvention service, will attract both civil and criminal liability, with punishments up to 5 years imprisonment.5)
There is an exception in the new law which provides that a region coding device is neither an ACTPM or TPM, and a device or service designed to circumvent it will not be either a circumvention device or a circumvention service respectively. This means that a device which only has the function of preventing use in Australia of a film, game, or computer program which was purchased outside Australia, will not be protected. (It is important to note that this exception is very narrowly worded – for example, the law may not apply to allow circumvention of a device which restricts use of a game or movie to a particular State or city within Australia.)
The situation becomes more complicated when a single device has functions which both prevent use in Australia and either (a) control access to the copyright work (an ACTPM); or (b) prevent, inhibit or restrict the infringement of copyright (a TPM). Most technical locks on current game consoles arguably have both of these functions – the Sony PlayStation itself, if found to be a TPM under the broader definition of TPM, has both a TPM function and a region coding function.
The question becomes how the new exception will be interpreted, and how tightly manufacturers couple unprotectable region codes with protected TPMs or ACTPMs. In their submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs (LACA) review into Technological Protection Measures, the IEAA stated that “[a]ccess controls used to enforce region coding are tightly coupled with additional and inseparable access controls that distinguish genuine from pirated games”.6) The LACA Committee did not accept that this must always be the case, however, and noted that it should be practically possible to isolate region coding elements from TPM elements.7)
Where the manufacturer creates a dual purpose device, it will be an ACTPM or TPM, but not “to the extent” that it controls market segmentation. This can be read to mean that to the extent that it otherwise controls access, the device will still be an ACTPM or TPM. If a user can circumvent only the regional coding, and no more, then that circumvention will be permissible. A more difficult question arises when the user, in circumventing the region coding, also circumvents the TPM, and whether it was strictly necessary to do so or not. It is unclear under the new law whether circumvention will be prohibited in this case.
There is an argument that can be made that if it is not possible to separate the functions of a legitimate TPM or ACTPM from region coding functions, then none of the combination will be a TPM or an ACTPM. Neither the legislation nor the secondary materials, however, provide any clear guidance as to the extent to which this argument is correct. If this argument is correct, then it is still unclear that where it may be technically possible but extremely difficult and expensive to circumvent only the region coding, whether a 'reasonableness' test would be implied to excuse circumvention of both.
While it may be technically possible to circumvent only the region coding portion of a dual purpose device, it may be prohibitively difficult to do so. Most mod-chips bypass the entire device completely. In the Blizzard v BNetD case, the modders had to bypass a check to allow them to use their games on an interoperable server. In doing so, and because they didn't have the information required to implement their own checks, they also bypassed the CD-key authenticity check.8)) This was held to be an illegal circumvention. If a modder is required to bypass only the region coding portion of a dual purpose device, instead of a simple bypass, they may have to engage in very difficult low level reverse engineering, and may even require confidential information to reconstruct a working access control. By relying on this requirement, a manufacturer can construct a region coding which, while technically legal to remove, would be very nearly (but not quite) impossible to remove without also removing the access code.
When asking, then, whether mod-chips will be permitted under the new law, there are a number of questions:
-
Does the device “control access” to a copyright work? If so, then the device may be an ACTPM, and circumvention will normally be prohibited, as will dealing with or providing mod-chips or circumvention services.
-
If not, does the device “prevent, inhibit or restrict” the infringement of copyright? If so, the device may be a TPM, and while actual circumvention by people with the technical skill to do so will be allowed, dealing with or providing mod-chips or circumvention services will be prohibited. The new wider language of this test means that the device in the PlayStation may well be a TPM, where it wasn't under the old law.
-
If the device also implements region coding, and the mod-chip circumvents both the region code and the access control or TPM, the position is still unclear. A Court may ask whether it was reasonable for the chipper to circumvent the TPM or ACTPM in order to bypass the region code. Alternatively, a Court may take the narrower approach and ask only whether it was technically necessary to do so. This is a fundamental uncertainty in the new law, and one which may take another test case, many years, and potentially another High Court decision to resolve.
It is not clear whether mod-chips are legal in Australia. The new law is more restrictive than the old law, because the definition of TPM is broader. This means that a mod-chip which allows the playing of homebrew games may not be allowed, where it would have been under the old law after /Stevens v Sony/. A mod-chip which only allows playing of games from other regions will probably be allowed. What about a device which does both? The answer is unclear at best.
The great danger of this new legislation, in addition to the fact that the types of protected devices has been significantly expanded, lies in the ability of a copyright owner to design around the limitations of the wording. A TPM can be designed to also be an ACTPM, in order to obtain protection from actual circumvention. An unprotected region code can be rendered protectable by creating a dual purpose device in which the functions are separated but any method of circumvention necessitates circumvention of both the access control and the regional coding. The manufacturer is the only person in the position to confine a device to specific functions, but this legislation does not impose any clear obligation to do so. Instead, it provides an incentive to create dual purpose devices.
There remains much uncertainty as to whether the circumvention of region coding in Australia will be legal under the new legislation, and the ambiguity within the legislation provides a potential loophole for manufacturers to obtain legal protection for devices which would not ordinarily be protected. It will now be up to the Courts, again, to determine when Australians have the right to remove arbitrary or anticompetitive restrictions imposed upon their property by copyright owners.
2006.03.18
Below you can find a thrilling multimedia experience – a text and image based slide set, with audio accompaniment.
This is a summary of the starting position for my PhD research, presented at the QUT lunchtime research seminar series. There's not much that's not in the proposal, but I've been told that that podcasts are cool.
So, grab:
-
the slideset in ODP or PPT formats; and
-
the audio in 12MB OGG or 10MB MP3.
|
