PLAYING WITH A NEW PROBLEM: COPYRIGHT AND VIDEO GAMES IN EDUCATION AND SCHOLARSHIP KEVIN SCHUT, ASSOCIATE PROFESSOR, TRINITY WESTERN UNIVERSITY, LANGLEY, BC DEPARTMENT OF MEDIA + COMMUNICATION, SCHOOL OF THE ARTS, MEDIA + CULTURE

USING VIDEO GAMES IN ACADEMIA How we use video games Research use playing them observe, record players publish images, dialogue, host video or audio research presentations artistic installations The Battle for Middle Earth (EA, 2004)

USING VIDEO GAMES IN ACADEMIA How we use video games teaching use playing game in class hosting class in virtual worlds presentations with game images, audio or video assign games modding games Crayon Physics Deluxe (Kloonigames, 2009)

USING VIDEO GAMES IN ACADEMIA How we use video games archival/library use sign out video games public museums or collections research-only archive backing up media shifting games from obsolete to new media using emulators to play obsolete games Death Race (Exidy, 1976)

USING VIDEO GAMES IN ACADEMIA What we use from video games actual video game still images game music or audio video of game modding software Civilization V (Firaxis, 2010)

USING VIDEO GAMES IN ACADEMIA Where we get video game material from purchased copies of games borrowed games free games available on the internet subscription-based internet games free pirated copies abandonware emulators official game sites & fan game sites

COPYRIGHT & ACADEMIC USE OF VIDEO GAMES Do game makers even care? No. Not right now, anyway.

COPYRIGHT & ACADEMIC USE OF VIDEO GAMES Video game academics and fair dealing Video games = same as other media New provision = classroom okay, general scholarly publishing Question: are all legal sources of a game equally permissible? What about borrowed copies? What about promo websites? What about unauthorized fan sites? Question: can you make a fair dealing case for abandonware?

COPYRIGHT & ACADEMIC USE OF VIDEO GAMES Other educational provisions internet provision (30.04): Should allow browser-based games Should allow web-based game media display provision (29.4): Should cover any projection of games or game media in class (if no public viewing license version) distance learning provision (30.01): game media in recorded lessons (provided destroyed 30 days after course?) back-up provision (29.24): question: does this allow archives to make single backups for research purpose?

COPYRIGHT & ACADEMIC USE OF VIDEO GAMES Other educational provisions media obsolescence provision (30.1(1)(c)): can transfer old game system files into a form playable by emulators (if no TPM circumvention) interoperability provision (30.06): question: does this make emulation generally legal? (if “person’s own use” is interpreted liberally, and covers private research) “sound recordings” (29.5(b)): question: are sound files in the directories of installed games covered by this?

COPYRIGHT & ACADEMIC USE OF VIDEO GAMES Potential TPM problems won’t hurt regular play of purchased copies can kill the copying normally covered by fair dealing can prevent backing up copies can inhibit computer science analysis can inhibit the capture of video game still images, audio or video can further complicate abandonware

EULA AND COPYRIGHT RIGHTS Problematic EULA terms for video game academics: no reverse engineering game-maker retains mod copyrights prevention of criticism personal and/or private non- commercial use only XKCD comic ( used under CC licensehttp://xkcd.com/501/

EULA AND COPYRIGHT RIGHTS Breach of contract and copyright infringement are separate legal issues EULAs have generally been upheld in court as valid, in spite of criticisms A EULA may be found “unconscionable”

SUMMARY OF QUESTIONS 1. Are all legal sources of a game equally permissible? Borrowed copies? Promo websites? Unauthorized fan sites? 2. Can you make a fair dealing case for abandonware? 3. Does the backup provision allow archives to make single backups for research purpose? 4. Does the interoperability provision make emulation generally legal? 5. Are sound files in the directories of installed games covered by the “sound recording” provision? 6. Could EULAs be judged unconscionable?

CONTACT INFO Kevin Schut