Justifying Video Game Piracy – The Backup Defense

Posted By: Ryan Rempp

controllerThe video game emulator community has a second argument to justify downloading copies of video games. They argue that as long as the downloader has a legal copy of the game, it is not illegal to download a backup copy. Unfortunately, that argument does not work. In fact, obtaining a digital copy of a video game is a tricky legal issue.

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Justifying Video Game Piracy – The Out-of-Print Defense

Posted By: Ryan Rempp


The video game emulator community argues that it is okay to download a video game if it is not in production and no longer in the primary market. Does that argument hold water, legally speaking?

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Does Unlocking On-Disc DLC Violate the Anti-Circumvention Provision of the DMCA?

Posted by: Kyle Sol Johnson

April 20, 2015

dmcaIncreasingly videogames are released alongside downloadable content (DLC) the adds some aspect or function to the underlying game. These may be packs of maps, new zones, new weapons and armors, or even entirely new missions. Often it is a combination of the above. Traditionally, DLC is offered some months, or even years when it comes to expansion packs, after the release of the original game. However, many games of late have been released alongside so-called Day One DLC that is immediately available for purchase when the underlying game is released. Some videogame developers have taken this a step further, including unlockable content on the original game disc itself and later selling consumers a key that will allow them to access the encrypted data.

This ‘disc-locked content’ has drawn copious amounts of ire and criticism from consumers and game journalists. Consumers feel that they have paid for the disc and should thus have access to everything on it as the owners thereof. These consumers claim that disabling the encryption to gain access to the locked content constitutes a fair use because it is a noncommercial use under §107 of the Copyright Act. Continue reading

Twitch and Copyright Liability

Posted by: Bryan Zhao

April 19, 2015

twitchTwitch.tv is a website that provides video gamers with a centralized location to share and stream their video game experiences with others. Another blog post about Twitch is available on this site here. In August of 2014, Twitch was purchased by Amazon for roughly $970 million in cash. Upon the change in ownership, it implemented a new audio recognition policy to automatically flag content that includes copyrighted music during broadcasts. While the broadcast is not immediately muted, Twitch records and saves streams as videos on demand (“VOD”s) and automatically mutes any flagged stream. The change in policy likely exists so that the site does not violate 17 U.S. Code § 512(a)(4), which is required to maintain safe harbor protection for acts of copyright infringement committed by broadcasters. While the change was unpopular, it was a necessary change to protect Twitch and indirectly Amazon from eventual legal action. However, Twitch may also need to do more to prevent other copyright infringement claims in the future. Continue reading

Online Video Games – Imperializing the world via TOS Agreements?

Posted by: David Medina

April 10, 2015


Since the development of the micro computer, video games have become an international obsession. Although people who played video games were initially viewed in the same light as those who played Dungeons and Dragons, after just a few short years, video games became an integral part of popular culture in the United States, Korea, Japan, and countless other countries. As of today, the best estimates suggest that more than 1.2 billion people are playing video games worldwide, and about 700 million people play online games.

Just as the first international explorers brought their own cultures to the newly indigenous people as they met them, video games have been bringing the culture of the countries that produced them to new audiences. Although most people readily recognized and embraced the new cultural differences brought overseas by way of the video game, the vast majority of video game players have yet to realize that one more aspect of culture has been traveling overseas as well: the law. Although most video games sold for consoles were initially sold as goods, and not licensed to individuals, almost every online video game has been licensed, not sold. Because online video games are licensed to individuals, the game makers have been able to include binding terms of service agreements that govern the relationship between the game player and the game maker. Despite the fact that game players live in numerous countries across the globe, game makers have assumed that their terms of service agreement is enforceable and actually does govern the relationship. If terms of service agreements are binding and enforceable on game players from around the world, then it is likely possible for legal concepts from one country to be transported to another, despite the fact that the receiving country may not recognize certain legal rights. This blog post seeks to highlight some of the issues these internationally applied terms of service agreements raise.

Legal Imperialism

For decades, the United States has been trying to get other countries to adopt stricter intellectual property and anti-piracy laws. And for just as many years, the United States has been ineffective at convincing its neighbors to do so. Despite all of the centralized efforts of the United States government, domestic video game manufacturers may be accomplishing that goal without officially changing international law.

Every online video game can be expected to have a term of service agreement. Examples of these agreements can be found from Blizzard, Squaresoft, Valve, and countless other game creators. All of the terms of service agreements dictate the rights of the game player, the relationship between the game player and the game maker, and how various activities of the game player affect intellectual property rights. Among other things, terms of service agreements often include substantive law provisions, procedural law provisions, and jurisdiction provisions. By including all of those provisions, game makers effectively assure that rights granted in their home country (often the United States) are recognized internationally. The following sections will discuss how terms of service agreements extend the legal effectiveness of United States law into countries that wouldn’t otherwise adhere to it. Continue reading

A Blizzard of Licenses: All the Games you Played without Buying.

Posted By:  John-Philip J. Schroeder


World-Of-Warcraft-LogoIt is no surprise that Blizzard Entertainment wants you to play World of Warcraft (Wow).  What may be surprising is that the company does not want you to buy it.  No, this does not mean Blizzard wants you to play their game for free.  Rather, Blizzard wants you to pay to play the game — but you never get to own the game and you must play it how Blizzard thinks it should be played.  Blizzard’s position is based on the idea of licensing copyrighted material, and is not unique, nor new.  However, a fairly recent case shows how many peoples’ conceptions about their ownership rights to games they “bought” are at odds with how courts are applying copyright law to gaming and other software. Continue reading

Video Game Emulators and Roms: How the Law Could Have Worked, and Should Today, to Protect Video Game Companies

Posted By: Paul Isso


320px-Ms_sidewinderSuper Mario Brothers 3.  Sonic the Hedgehog.  Zelda.  Space Harrier.  Double Dragon. The list can go on forever…

Those are just some of the nostalgic game titles that come to mind when reflecting on past Nintendo and Sega games that became international successes in the 80’s and 90’s – with gamers still playing those titles today.  And you didn’t have to be born in those decades to know what I’m talking about either; classic video games like Sonic and Mario have attracted players of all ages and skills, from all over the world.

A major issue concerning video games that still appears to not have been corrected is that countless game titles like those above are available, playable and distributed in the form of emulators and roms. Not to mention — some emulators and roms exhibit near identical gameplay in comparison to the original games that were being sold and distributed by the original creators.  The law today generally allows this, and it shouldn’t, because the creation, distribution and use of videogame emulators and roms is really just another form of piracy if you think about it; consoles and games are essentially being stolen from the copyright holder-creators and made freely available. Continue reading