When most people think of a video game fixation, it conjures up images of a teenager spending hours and hours staring into a screen. AI is getting good enough to provide a challenging user gameplay experience, but most games can be played in multiplayer mode and, generally, over the Internet as well. While there are concerns that videogames are correlated with antisocial behavior, or even violence, other studies correlate gameplay with better eye-hand coordination, training athletes to be more aware of over-all strategy, and even lessening violent behavior.
Fixation means something much different within the law. Similarly, some of it seems good for furthering innovation, and some of it is pretty bad.
To qualify for copyright protection a work must be “fixed in a tangible medium of expression.” This is problematic for digital forms of creative expression, in which any audiovisual display is continuously regenerated from the computer’s memory. In addition, even one digital “copy” may be copied from the hard drive to RAM to be more quickly accessed by your computer’s CPU, and if you display a copy of your creative work on the Internet it is copied many times across the network in order to be displayed to end users.
Copyright holders have a “limited monopoly” which the right to exclude others from using their work. Exclusive rights include, 1) a reproduction right, so they can exclude others from copying without their permission; 2) an adaptation right, so they can police or license derivative uses of their work; 3) a public distribution right; 4) a public performance right; and 5) a public display right. Posting something to the Internet can violate a copyright holder’s public distribution right, if the work is downloaded then you may have infringed their public performance right, and taking a single screen shot may violate someone’s reproduction right. So, the whole thing becomes rather tricky and far-reaching once the Internet becomes involved.
In MAI Systems Corp. v. Peak Computer, Inc., the Ninth Circuit held that by loading a software program into RAM he “fixed” an infringing copy. Conversely, the Second Circuit held in Cartoon Network, LP v. CSC Holdings, Inc. that a work must be embodied in a medium for more than a transitory duration. This allowed for streaming content without violating reproduction rights.
When video games first came out there was a head-on legal collision as to whether transient audiovisual images were ever really “fixed” or whether there was only copyright protection in the underlying software. Even more problematically: copyright has different categories to which subtly different rights attach. Video games can get copyright protection for the “literary work” (aka software code) or for the resulting audiovisual display, but cannot claim copyright in both.
- 17 U.S.C.A. § 106↵
- 991 F.2d 511 (9th Cir. 1993)↵
- 536 F.3d 121 (2d Cir. 2008)↵
- 17 USC § 102(a)
- Literary works
- Musical works (& accompanying words)
- Dramatic works (& accompanying music)
- Pantomimes and choreographed works
- Pictorial, graphic, & sculptural works
- Motion pictures & other audiovisual works
- Sound recordings
- Architectural works
+ compilations and derivative works § 103(a)↵
- 17 USC §102(a) ↵
- Copyright Office Notice of Registration Decision, Docket No. 87-4, 53 Fed. Reg. 21817, June 10, 1988.↵