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Written by : Emmitt Ottalagano
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so welcome everyone to this quarter's games and interactive media seminar series this is sort quarter that we do it and we again have a great lineup of speakers as you will see all these speakers come from very diverse areas some academics some are from industry some are talk about music some are talking about education and today's speakers is actually talking about law so what he was notice is that we can really use games as a lens to look at all aspects of society and the other way around all aspects of society actually focused on two games and so today's speaker is Todd Smith line he is actually running his own law firm Smith line PC he's the principal and this company represents a number of clients generally in technology transfer and among those internet mobile devices and so forth and of course games are part of his portfolio as well and one thing he told me he's actually most proud of and that's also how I found him for the last six years and a seven year he is teaching a class at Berkeley to law students about video game law and so give it warm applause to Todd thank you anymore for having me I'm thrilled to be here how many of you are involved in one way or another in making video games and how many of you play video games okay great so this is gonna be perfect for all of you how many in the room any our law students lawyers law faculty anything like that okay and for the rest of you do you have any familiarity whatsoever with the notion of copyright okay great so today we're going to be talking about how the doctrine of copyright law is evolving based on cases that are moving through the system relating to mobile game clones and in particular I'm going to be making the argument today that these cases dealing with multiple game clones are changing how copyright law works and ultimately change for the worse I figured if I was going to come talk to you today I'd sort of make an argument about something instead of just trying to explain how copyright law and video games work so that's what we'll be talking about today I will tell you as I mean Ingmar says I teach video game law at Berkeley and we typically have 13 sessions of an hour and 50 minutes each to get through this material we're going to get through today in 40 minutes since you're a Stanford audience I'm assuming that's going to be okay but I will ask that we hold the questions until the end unless you have very important objections and then raise your hands and we'll address that otherwise questions objections thoughts comments at the end really quickly I am the principal of a law firm where six attorneys up in San Francisco we do technology transactions and IP licensing but today I'm here by myself not on behalf of my law firm certainly not Berkeley or anything like that so these are my views some of the decisions we'll be talking about today happen to add a preliminary phase in the litigation and I will point that out as we go but just so you know that's the case and finally I have a list of sources here they'll be at the end of the presentation and certainly if you're interested in the topic and you want to learn more I've got endless books articles and and and other thoughts I can refer you to so just let me know at the end okay so let's do it what are the rules of a video game again today I'm suggesting that copyright law is changing in terms of how the courts deal with the rules of the game traditionally courts have not protected the rules of the game under copyright and I'm suggesting that that is changing but before we take a look at the cases and before we look at the games we need to start with the question of what are the rules of a video game well let's start with board games first and I have two up here which we'll get to a little later in the presentation for a board or a card game the rules are the set of instructions that explain how to play the game and they may also include the method of playing as expressed through things like scoring charts the game board and the pieces so the rules of the game are what you get when you open the box and pull out the rules these are the rules of the game bang and these are the rules of the game legends of the Three Kingdoms and you fold out the rules and you learn how to play but as I'm also suggesting the rules can be expressed through the tokens and the pieces in the game board itself I think it's fairly easy to understand what the rules of a board game are so then what are the rules of the video game well for a video game the rules were often also expressed through the mechanics of the game or the gameplay these are functional rules which dictate how you can move a character how points are scored and when you win and lose Bruce Borden who's at marquette talks about the limits and affordances of the game and another way to think about the rules of a video game are to think of video games as systems and and again Bruce Boden's words you systems into which the users pour meaning when they play the game but in any event the rules of a video game are not a list of instructions per se although they can include instructions but are also that what you do while you're playing the game and what you're allowed to do so when you're playing Donkey Kong and you're Mario the rules of the game include the fact that if you get hit by a barrel you're going to lose a life and they include the fact that you can only get from one level to the next when you climb a ladder and they include the fact that you're going to clear a level if you get to the damsel in distress at the top these are all the mechanics of the game or what we'll be referring to today also as the rules of the game the rules of the game can also involve things like the fact that armor is very heavy and if you fall into water wearing a lot of armor you will sink to the bottom of the sea okay so we're talking about mobile game clones today so what's a clone well this is easy a video game clone is a game which follows another game to market and which copies as much of it as they can possibly get away with and we see this happen quite a bit in the mobile game space and you're all probably familiar with clones that you've seen in the Android Marketplace or in the Apple Store but essentially a clone is just a copy of a game sometimes comes very close that's trying to capitalize on the success of the game that came before here we have tetra on the left and a game called Meno on the right and we'll revisit these in a minute but these this this is a clone of a video game for purposes that we're using today clone is not a word and the copyright code but I think you all understand what it means so that's what a clone is alright so historically game rules were not protected by copyright so why do I say that well first we have case law to tell us that our F foster published a series of books about the rules of bridge and in one of the books he included the rules for a type of auctioned bridge called whist and after he publishes the book he hears from the whist game society which claims that he has copied their rules and infringed their copyright and the rules and the court look
Thanks for your comment William Zacharias, have a nice day.
- Emmitt Ottalagano, Staff Member
hello marki dragon else knows Marcus Eikenberry in real life and Nick asks here Nicolas he says that I have a small YouTube channel and since you have a bigger channel I want to ask you something about how it is possible to upload videos of gameplay content without being flagged for copyright hmm very good question it is an insane problem on YouTube and so here is my secret sauce on that I and my gameplay channel there's a link in the description you can see all my gameplay stuff and there's a couple of things about this one is I belong to a network and in that network I have a manage to count that manage to count allows me to upload stuff without it being scanned by YouTube to see whether it has any Content ID matches and that is quite valuable because I don't then get challenged by YouTube to prove rights on everything I have to own the rights though I have to have the rights on everything it just means they don't get challenged on it and so with that said if you don't have that ability if you're not with the network and you're not managed then then you you have to go about it a different way okay one he is let me piss out out to our copyright database that's at Marquee dragon net and the the copyright database there lists its 2800 games right now and growing it lists all of these games and their current status as we know it on whether or not they allow monetization of their videos and whether how they believe how they think about copyright on their games so there's a lot of games on there and sort of listed in green it's positive if they're listed in red it's negative and and also red can be unknown so you can use fair use for any of your videos but fair use really dictates according to YouTube's minimal inclusion of gameplay video and any gameplay video must be relevant be instructional or educational and very related to the content that you're seeing on the screen the words coming out of your mouth and everything it's got to be all very related if you're doing a lot to play doesn't qualify Let's Plays are not okay according to YouTube's Terms and but just because you fit into this area of fair use doesn't mean that you won't get popped by YouTube with the Content ID match saying please prove your rights then you have to go through the whole Fair Use thing well you got to make sure that your fair use meets their definition which is minimal use of gameplay video in your video which means you're not doing all gameplay the whole video it means that you're talking about something like I'm doing right here and then I show 30 seconds of gameplay about how to do something or whatever and then I go back on actually this whole video is not about the topic of of whatever game it was though showing and so it'd have to be very minimal use very minimal amount if I was playing the game and I'm showing how to do step by step by step how to do something and it all stays very relevant all stays very educational and informative through each step and I don't have five minute period where I'm just battling somebody going to hell yeah I just kick his ass you know that part doesn't work what works is this is how you kick somebody's ass and you start talking about the moves that you're making and the things that you're doing in there to to accomplish your task your goal and so you need to do that in order to be fair use hmm so still the Content ID system can pop you on that and so stick with games that that are green on the list and then also remove game music do not put game music in any of your videos if you put game music in then you've got a problem because the game music even though they may say that you have rights to everything unless they created that piece of music themselves you could get popped for it if they purchased license to use it in the game then the the original per who made it who licensed it out to them could pop your video saying that they own the music rights on there and you'll lose your monetization and we're even worse they could say we didn't know we don't allow anybody to use this and we want a copyright strike you get a copyright strike it's all over yeah said and done so that's my take stick with the games that are green on our list and you'll have a much better time no music and then if you if you do get a game that you want to do that's not green on the list you can petition them for strict permissions for your channel if you remember of our network we have templates available for you that you can petition a particular game company if they don't give rights to everybody and and that these templates are stuff that YouTube will accept so if you get challenged you just turn that in and YouTube says oh okay we see that you've got the rights or if it's a Content ID match and the game company themselves you know issues you the challenge then you provide them their own document back saying hey I've got the rights and they'll release it so I hope that helps Nick good luck with your channel and made mini happy gameplay come your way just keep it on the marquee Dragonette copyright idealist in green and you should be okay and by the way that list is the biggest anywhere and it is up to date we update that almost daily and if you have anything to add to the list there is a link on there to tell us more about another game new games that come out updates to current games and what-have-you and so we keep that list pretty well up to date and we'd like to have your help on it and of course everyone is free to use it link in the description I'm marki dragon take care
Thanks owalther2 your participation is very much appreciated
- Emmitt Ottalagano
About the author
I've studied civil procedure at University of South Alabama in Mobile and I am an expert in entrepreneurial economics. I usually feel moody. My previous job was welder (gas, arc, plasma, laser) I held this position for 7 years, I love talking about rafting and marathon running. Huge fan of Grace VanderWaal I practice sailing and collect prizes.
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