GLLS Report: What every librarian needs to know about video games and the law

The legal ramifications regarding gaming in libraries continue to exist in something of a gray area. Which is okay at the moment, because it seems that the exact intellectual property of games is living in a gray area of its own, due to their dual role as both representative works and pieces of software carrying separate end-user license agreements.

Presenter Mark Methenitis advocates the “better safe than sorry” approach. Ask for permission, get it in writing, have everything signed, sealed, notarized, and delivered. But what do you do when the publisher doesn’t respond to you? If you want to have a gaming program, do you have to get individual licenses from both hardware and software providers? No one knows at this point. Our esteemed ALA representatives say that they’re looking into this, so all we can do is wait and see.

It would stand to reason that the first company to start offering this service is going to make a killing. I envision a blanket license agreement with a variety of publishers, akin to what we purchase to show movies. Remember to send me a thank-you note when your company goes public.

At times I wonder if it’s more appropriate to go with the ever-popular adage “it’s easier to beg for forgiveness than ask for permission.” Were we dealing with an organization as litigious (and arguably desperate) as the RIAA, I might not think this way. Libraries have generated a huge deal of positive PR for game manufacturers. Many attendees at GLLS were able to point out several sales that their programs directly influenced. At this point in time, the cost-benefit ratio seems to be on our side. We’ll have to wait and see if this changes as the rules of the game continue to coalesce.

I’m definitely adding Mark’s blog (lawofthegame.com) to my small but growing number of sources examining the relationship between libraries and the law.

Notes after the jump.

What Every Librarian Needs to Know About Videogames and the Law
Mark Methenitis
Vernon Law Group, PLLC

Law of the Game blog (lawofthegame.blogspot.com)

Copyright is a bundle of sticks

Rights:
produce copies/reproductions
import/export work
perform/publicly display
transmit/display through broadcast
create derivative works
sell/assign these rights

Books, movies and music operate under established copryright themes

Games are the oddball
EULAS in addition to typical copyright controls
best to assume that they’re enforceable
take the conservative approach – better safe than sorry

What about Fair Use?
17 * USC 107
Criticism
classroom use, for example
The Four Factors:
Purpose (commercial v. noncommercial)
nature of the work
amount/sustainability of the portion used
Effect on the potential market/value of the work

Other key statutes 17 USC 108 (Library reproduction provisions)
Doesn’t apply to gaming

17 USC 110 – Exemption provisions
typically specific to in-person teaching
allow display/performance of work

None of this stuff applies universally
What isn’t included:
Bring your own DS tournament (where library is merely a forum)
Events utilizing board/card games

Games do not have established rules for licensing/public displays

Sources of restriction: copyright/EULA

Right of performance: 17 USC 166
Is a game event a performance or a display?

Traditional copyright exemptions apply to tournaments in the library
EULA also an issue

Best Practices: Better Safe Than Writing
Get Approval in Writing (must be affirmative)
Email will suffice.
Plan Ahead

Machinima: Digital Puppetry
Examples: Red Vs. Blue
This Spartan Life
The Strangerhood
Bloodspell
Neverending Nights
Decisive Battles on the History Channel (using Rome: Total War)
South Park: Make Love not Warcraft

Some developers have posted guidelines that allow creation of derivative works within certain boundaries
Microsoft
Blizzard

What about unlicensed content (video/audio/other content) integrated into machinima

Library ideas:
contests
film festivals/screenings

Again, better safe than sorry is the key
use non-copyrighted music

use titles with definitive rules:
MS products with posted rules
WoW
Open Source projects

Machinima-specific software

Treat machinima like any other TV show

make screening a condition of the contest

vernonlawgroup.com
lawofthegame.com
joystiq.com/tag/law-of-the-game

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