Digital Games, UGC, and the Mainstreaming of Virtual IP Conflicts

Digital Games, UGC, and the Mainstreaming of Virtual IP Conflicts

Sara Grimes is a PhD Candidate with the School of Communication at Simon Fraser University.

Digital games have evolved considerably in recent years, but from an IP perspective, one of the most interesting and significant shifts has been the introduction of user-generated content (UGC) into corporately-owned digital games and virtual worlds. Early evidence of the legal implications of UGC (also referred to as "user created" and "user contributed" content) first emerged in the form of a debate about ongoing (and as yet unresolved) conflicts between game operators and game players over who could legally (and ethically) claim ownership over virtual items and characters (avatars) produced by players within massively multiplayer online games (MMOGs). While this debate and the questions it raised attracted a lot of interest from legal scholars and academics (see, for example, Terra Nova's "Virtual Law Bibliography"), the conflicts themselves really only directly impacted the small proportion of gamers who both played MMOGs and engaged in virtual item exchange.

Today, however, tools for social networking and collaborative cultural production are being integrated into a much wider diversity of titles and game genres, and UGC is quickly spreading from niche markets made up of MMOG players and hobbyist programmers into "mainstream" markets as well. In some cases, even "casual players" can now produce and distribute their own game content. Accordingly, questions and concerns about IP rights and the legal status of UGC, as well as how players' rights will be articulated and protected within predominantly corporately-defined virtual game environments, are attaining a much broader relevance - both within the entertainment software industry and among the increasingly large segment of the population that plays digital games.

Top selling titles such as Little Big Planet and Spore provide players of varying skill levels with a highly accessible and user-friendly arsenal of tools for creating and exchanging game content. These games open up important opportunities (and challenges) for a more democratic cultural production process within the commercial games sector, as well as the exciting possibility that players will use these opportunities to create innovative new spaces for creative collaboration, community-building and play. The promise is that the integration of these possibilities into corporately-owned digital games will have the same benefits associated with other forms of UGC, described (and arguably idealized) in the 2007 OECD report on the participative web and user-created content as:

...[I]n many ways a form of personal expression and free speech. As such, it may be used for critical, political, and social ends. It has also been argued that the "democratisation of access to media outlets" fulfils an increasingly important role for democracy, individual freedom, political discourse, and justice.

But while the game industry has been quick to integrate UGC into their business models and design priorities, they have not shown nearly as much flexibility in their approach to the legal and regulatory dimensions of UGC. Stringent copyright policies and sweeping IP claims are common features of the EULAs and Terms of Use contracts found within most commercial digital games, even when the games in question not only enable but actively encourage players to contribute to the game's design and contents. The promise of a democratic game culture is deeply undermined by the current copyright regimes adopted by the digital games industry - which openly invite collaborative cultural production while quietly claiming full ownership rights over the finished products. It is of no small importance that these claims are most often discreetly articulated within lengthy, jargon-laden agreements that users must enter into in order to become players of these games in the first place. 

As with the early IP conflicts within MMOGs, controversy and dissent expressed by groups of players are setting the tone for the debate emerging around this issue. For example, this past fall Sony found itself at the centre of a significant amount of gamer-produced news coverage describing the company's "about face" in relation to UGC and IP within Little Big Planet, as expressed in changes the company made to the game's TOS agreement right before the title was launched, and in contradiction to earlier insinuations that players would retain ownership of (and even be able to make money selling) their user-generated Little Big Planet game levels (for more of this, see my post Little Big Planet: UGC vs. IP ). But the issue has yet to hit the mainstream press or attract any concerted public debate. In the meantime, "business as usual" is creating a corporately-defined UGC environment where players are willingly - though not necessarily knowingly - relinquishing their (potential) rights before these have even been fully determined. 

For more on these issues, I recommend checking out:

Mira Burri-Nenova's recent article on SSRN exploring the links between "User Created Content in Virtual Worlds and Cultural Diversity";

Andrew Herman, Rosemary J. Coombe and Lewis Kaye's 2006 examination of goodwill and the performativity of in virtual world Second Life entitled "Your Second Life?";

Greg Lastowka's SSRN article discussing the legal status of UGC in MMOGs and other virtual worlds, "User-Generated Content & Virtual Worlds". Keep an eye out for Lastowka's upcoming book, Virtual Law, forthcoming in 2009 from Yale University Press.