1. Creators, Consumers & Users: Introduction to contractual Conundrums Part B Connecting | Talk 4 Video Game Law 2013 UBC Law @ Allard Hall Jon Festinger Q.C. Centre for Digital Media Festinger Law & Strategy LLP @gamebizlaw jon_festinger@thecdm.ca

2. Talk 3 Recap Bait: Right to Mod /Right to CREATe Switch: 1.Copyrights relationship to (derived from?) free speech rights. 2. LEVELLING UP: Video game interactivity a level ( video game humor ) beyond other remixs/uses owing to fundamental nature of gaming as interactive? 3. Symmetry of personal interactivity in a creative environment (VIDEO-GAMES) with personal creativity in an interactive environment (WEB, SOCIAL MEDIA) means right to mod, machinima & remix ? 4. Perhaps copy right regime ok for non-interactive mediums – e.g. records, film, television)

3. Leading to …. Sacredness of personal creativity ----- SHARED. Moral Rights (as opposed to economic property rights) as a tool protecting the creative.. * * Art by Allan Switzer

4. NOW …From Creating to Connecting If you wish to make an apple pie from scratch, you must first invent the universe. – Carl Sagan There is no doubt that creativity is the most important human resource of all. Without creativity, there would be no progress, and we would be forever repeating the same patterns. - Edward de Bono Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn't really do it, they just saw something. It seemed obvious to them after a while. That's because they were able to connect experiences they've had and synthesize new things. And the reason they were able to do that was that they've had more experiences or they have thought more about their experiences than other people. - Steve Jobs in a Wired Magazine interview (Feb. 1996)http://www.wired.com/wired/archive/4.02/jobs_pr.htmlhttp://www.wired.com/wired/archive/4.02/jobs_pr.html Creativity is contagious. Pass it on. – Albert Einstein

5. Contrast to the Hollywood model * The creative is the place where no one else has ever been. You have to leave the city of your comfort and go into the wilderness of your intuition. What youll discover will be wonderful. What youll discover is yourself. * View that creativity is uniquely personal (or not) impacts beliefs about copyright & IP (e.g. film & music business – T.V. more flexible?) – consequences of specialness (and entitlement?) * Personal creation mythology deeply rooted in our psyches: And G-d said: Let us make man in our image, after our likeness;(Genesis, Chap. 1 Verse 26) * Role and consequences of copyright law aligning along according to personal belief: Copyright literalists adopt self generated model of creativity? Connection-ists adopt open source model?

6. The More General Question (sources)… Current debate revolves around the power of introverts. See for e.g. Does Solitude Enhance Creativity? - Dr. Keith Sawyer http://keithsawyer.wordpress.com/2012/01/16/does- solitude-enhance-creativity-a-criique-of-susan-cains-attack- on-collaboration/http://keithsawyer.wordpress.com/2012/01/16/does- solitude-enhance-creativity-a-criique-of-susan-cains-attack- on-collaboration/ All Creative Work is Derivative – Nina Paleyhttp://blog.ninapaley.com/2010/02/09/all-creative-work- is-derivative/http://blog.ninapaley.com/2010/02/09/all-creative-work- is-derivative/ The great driver of scientific and technological innovation [in the last 600 years has been] the increase in our ability to reach out and exchange ideas with other people, and to borrow other peoples hunches and combine them with our hunches and turn them into something new. – Steven Johnson Where Good Ideas Come From: The Natural History of Innovation(book)..also see: http://www.youtube.com/watch?feature=player_embedded&v= 0af00UcTO-c#! http://www.youtube.com/watch?feature=player_embedded&v= 0af00UcTO-c#

7. A reconciliation (sort of)… From Exp.lore.com http://exp.lore.com/post/41546671840/the-ever-brilliant- wendy-macnaughton-you-know http://exp.lore.com/post/41546671840/the-ever-brilliant- wendy-macnaughton-you-know

8. A Correct Answer?

9. … The Legal Fly in the Ointment Personal Genius theory of creativity undermined by low level of originality in copyright and ease of differentiation in patent. See The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity - Graham M. Duteld and Uma Suthersanen (U.K.): The downside of having a wide capacity to protect, however, is that copyright law does manage to ensnare essential information and elements that form a part of the knowledge base, which in turn impedes the progress of follow-on innovators who must build upon such vital building blocks. http://www.academia.edu/860340/The_Innovation_Dilemma_Intellec tual_Property_and_the_Historical_Legacy_of_Cumulative_Creativity http://www.academia.edu/860340/The_Innovation_Dilemma_Intellec tual_Property_and_the_Historical_Legacy_of_Cumulative_Creativity

10. Conclusion of The Innovation Dilemma Under protection of works is a cause for concern since it can reduce incentives for future innovation. However, as we have argued, overprotection is currently a more serious problem. We conclude from our analysis that one solution to overprotection and its perverse consequences, including the lack of access and use of works by subsequent innovators, may be to tweak the patent and copyright systems. This may be done in two ways. The rst is to raise the creativity bar. The second is to expand the limitations. There are two means by which limitations may be expanded:(a) specic defences targeted at a certain activity or type of user, or (b) the general defence which is not targeted at specic activities but rather sets down a list of parameters or guidelines that a court must take into account when considering the scope of protection.

11. Why Trademark gets it right USE IT OR LOSE IT Trade-marks Act, RSC 1985, c T-13 trade-mark means (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,.. Declaration of Use Cancellation for Non-use Aligns with commerce NOT TROLLING Suggest at minimum all IP law should be use it or lose it per Trademark? Minimize trolling, encourage connecting.

12. Mode(s) of Connecting (& Legal Consequences) 1. Are Creators, Consumers & Users in fact the same? If so should they be treated equally in law? 2. Asymmetry or A Symmetry (?) CREATION goes with COPYRIGHT/IP LAW CONNECTING goes with CONTRACT LAW ?? BUT first….

13. ARE WE Already IN THE POST IP WORLD? In todays world….In real terms….It is possible that… Has IP has become VIRTUALLY* MEANINGLESS? mean·ing·less/ ˈ mēniNGlis/ Adjective: Having no meaning or significance. Having no purpose or reason. Synonyms:pointless - senseless - unmeaning - insignificant – inane *no pun intended

14. IP Law Swept Away By? Privity of Contract; AKA Licensing Agreements (EULAs, ToS etc.) Privacy Agreements Broadcast &Telecom Regulation Anti – Trust Law Consumer Protection

15. A Question…. Why dont you sign a EULA when you store-buy an album but you do when you buy the same album on iTunes???

16. Some reasons… 1: Evolution of Software: Licensing grew out of the early computer software consulting (e.g. enterprise accounting)…never intended for mass entertainment. 2: Slicing & Dicing IP: *IP is infinitely slice-able & dice-able: Allows for rights to be given based on geography, time, character of right AND any other variable you can think of. As long as rights are NOT DUPLICATED * You may copy this work only in Moncton N.B. between 7 & 9 P.M. on the 2 nd Tuesday of every odd numbered month and only distribute it for $346 per copy between 8 & 10 AM on the 1 st Monday of every even month in Detroit Michigan. Note: EA for years followed the CD model…no EULA…just Copyright Law default….Online seemed to galvanize the industry to licensing by contract EXCLUSIVELY….

17. Result: All of which makes IP…. ….very, very CONTRACT FRIENDLY. And thus we get>>> End User License Agreements & Terms of Service & all the rest…

18. Related Issue 1: The chasm of contracting out No one reads EULAs, ToSs & Privacy Policies: To Read All Of The Privacy Policies You Encounter, Youd Need to Take A Month Off From Work Every Yearhttp://www.techdirt.com/articles/20120420/105604185 85/to-read-all-privacy-policies-you-encounter-youd-need- to-take-month-off-work-each-year.shtmlhttp://www.techdirt.com/articles/20120420/105604185 85/to-read-all-privacy-policies-you-encounter-youd-need- to-take-month-off-work-each-year.shtml @gamerlaw: Amazing study by @nyulaw: "overall average rate of readership of EULAs is on the order of 0.1 percent to1 percent"- http://t.co/DFcF0mx0http://t.co/DFcF0mx0 For review of click-wrap authorities see: Century 21 v. Rogers Communications 2011BCSC 1196 (upholding ToU)

19. Related Issue 2: Digital re-sale First Sale Doctrine v. common EULA prohibition of re-sale First Sale Doctrine limits right of copyright holder – enables distribution chain of reselling books, CDs etc. BUT how does it apply to the digital world? EU court rules it's legal to resell digital games, software http://www.joystiq.com/2012/07/03/eu-court-rules-its-legal-to-resell-digital- games-software/ http://www.joystiq.com/2012/07/03/eu-court-rules-its-legal-to-resell-digital- games-software/ US court to rule on ReDigi's MP3 digital music resales: A US court is to consider a case that could determine whether digital media files can be resold. http://www.bbc.co.uk/news/technology-19842851 http://www.bbc.co.uk/news/technology-19842851 Can you legally re-sell your digital music files? http://www.mondaq.com/unitedstates/x/218142/music+arts/Can+You +Legally+ReSell+Your+Digital+Music+Files http://www.mondaq.com/unitedstates/x/218142/music+arts/Can+You +Legally+ReSell+Your+Digital+Music+Files

20. Related Issue 3: The kitchen sink effect You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void. Blizzard owns, has licensed, or otherwise has rights to all of the content that appears in the Game. You agree that you have no right or title in or to any such content, including without limitation the virtual goods or currency appearing or originating in the Game, or any other attributes associated with any Account. Blizzard does not recognize any purported transfers of virtual property executed outside of the Game, or the purported sale, gift or trade in the real world of anything that appears or originates in the Game. Accordingly, you may not sell in-game items or currency for real money, or exchange those items or currency for value outside of the Game.

21. Related Issue 4: Death What happens to your digital library of games when you die? Real library is bequeathed as property…digital property tends to be personal license to user only.

22. Related Issue 5: Non-circumvention EULAs usually prohibit of reverse engineering Remember Blizzard/BnetD Digital Locks v. IP right to reverse engineer DMCA non-circumvention provisions New Copyright Act (Canada) criticized for too broad empowerment of Technological Protection Mechanisms … Unlocking Bill C-11: What are Digital locks, and Why Should You Care? http://thefulcrum.ca/2012/02/unlocking-bill-c-11- what-are-digital-locks-and-why-should-you-care/#.UKVU4-Oe- OUhttp://thefulcrum.ca/2012/02/unlocking-bill-c-11- what-are-digital-locks-and-why-should-you-care/#.UKVU4-Oe- OU

23. Related Issue 5 Backlash? SDKs Creative Commons Open Source Crowdsourcing But all are Contracts!

24. Other Possible Answers Consumer protection laws International Law standard forms Anonymous & Hacktivism Changing the Rules of the Game: How Video Game Publishers are Embracing User- Generated Derivative Works – re. Machinima http://jolt.law.harvard.edu/articles/pdf/v21/21Harv JLTech567.pdf http://jolt.law.harvard.edu/articles/pdf/v21/21Harv JLTech567.pdf But ref. Isabelle Arvers; http://www.isabellearvers.com http://www.isabellearvers.com Machinima still living in a complex contractually restricted world [your suggestions here]

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