Re: Video Games/College Rec Center

[<wford@xxxxxxxxxxxx>]

Laurie,

I teach a video game law seminar and am very interested in
your question. Here are some general (though not very brief)
thoughts on whether video games can be played in the sort of
situation you describe.

COPYRIGHT ISSUE

The key question is whether playing video games in the
recreation center would constitute a public performance for
purposes of 17 U.S.C. 106(4). One of the few cases to address
this question is Allen v. Academic Games League of America, 89
F.3d 614 (9th Cir. 1996), which is, of course, controlling in
Arizona. 

In that case, Academic Games League (AGLOA) ran a tournament
for students using Allenbs board games, and Allen claimed
these tournaments were unauthorized public performances under
section 106(4). According to Allen, ba purchaser of a board
game only obtains the right to play the board game in settings
that are not bpublicb because playing or performing the games
publicly is a right held exclusively by the copyright holder
under [section] 106(4).b The Ninth Circuit disagreed with
Allen and held:

b[T]he interpretation of bplay,b as used to define bperformb
in B' 101 of the Copyright Act, has generally been limited to
instances of playing music or records. See [cases omitted] but
cf. Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d
275, 278-79 (4th Cir. 1989) ... (holding that a video arcade
ownerbs use of copyrighted circuit boards in coin-operated
video machines available to the public for a fee constituted
public performance of the copyrighted work under B' 106(4)).
The term bplayb has not been extended to the playing of games.
To do so would mean interpreting the Copyright Act in a manner
that would allow the owner of a copyright in a game to control
when and where purchasers of games may play the games and this
court will not place such an undue restraint on consumers.b

Allen involved board games, not video games, but I donbt think
there is a good reason for making a distinction for present
purposes. In one post-Allen case, Valve v. Sierra
Entertainment (W.D. Wash. 2004), the district court seemed to
accept that Allenbs reasoning also applies to video games,
even though it distinguished Allen. In Allen, the defendant
didnbt charge a fee. In Valve, the video games were being
played in cybercafes, which did charge a fee. The district
court distinguished Allen on this basis. 

Like you, I assume the students wouldnbt charge a fee, but
even if they did, the district courtbs characterization of
Allen v. Academic Games is a bit of a leap. In Valve, the
district court said, bAcademic Games held that a non-profit
academic board game tournament was not a public performance of
the copyrighted board game. Defendants [sic] reliance on
Academic Games, however, is misplaced. Academic Games held
that whether the performance is fee-based is an important
factor in determining whether the performance is public.b
Valve Corp. v. Sierra Entertainment, 431 F. Supp. 2d 1091,
1097 (W.D. Wash. 2004). 

There are a couple of reasons to doubt the district court's
reading of Allen. First, if the Ninth Circuit agreed that the
bfee/no feeb distinction mattered for purposes of 106(4), it
probably would have offered a clear statement of agreement
with the Fourth Circuitbs decision in Red Baron-Franklin Park
v. Taito (1989), a case involving the play of coin-operated
video games in public. Instead, the Ninth Circuit implied that
it disagreed with the Fourth Circuitbs view of what counts as
a public performance. (See the excerpt from Allen above and
the manner in which Red Baron is cited, i.e., with a bbut cf.b)

Second, while the bfee/no feeb distinction is clearly relevant
to the question of fair use, which the court also considered
in Allen, the Ninth Circuit did not say this distinction was
an bimportantb factor for determining what counts as a public
performance under 106(4). The court didnbt even say it is a
factor at all, but admittedly, the meaning of the paragraph in
question is not very clear. This is what the Ninth Circuit
said in Allen:

bWhether privately in onebs home or publicly in a park, it is
understood that games are meant to be bplayed.b In this
situation, the games are being played by students who come
together for the purpose of friendly, academic competition.
There is no indication that this nonprofit corporation, AGLOA,
and the individual respondents are making the subject games
available to the public for a fee. The students, schools, and
school districts use their own games, purchased from Allen, in
the tournaments, and respondents are merely organizers of this
event. Moreover, AGLOAbs tournaments are limited to students
who participated in regional competitions which also involved
the playing of Allen's games.b

Here, the Ninth Circuit noted that Academic Games League
wasnbt charging students who played in the tournament, but in
this same paragraph, the court also emphasized that the
students playing in the tournament had already participated in
regional tournaments. But so what? Itbs hard to see how the
regional tournaments were relevant to whether the national
tournaments were public performances for purposes of 106(4).
The fact that the national tournaments were not open to the
general public doesnbt change the fact that the tournaments
involved from 500 to 900 students. The national tournaments
were not at all analogous to playing a game on onebs dining
room table. Since the paragraph just quoted does not seem
particularly relevant to the 106(4) question, it looks more
like a transition to the fair use analysis, which appears in
the very next paragraph. And the court said that AGLOAbs use
of the games was fair, even though it had already determined
there was no infringement under 106(4).

In sum, both Allen and Valve indicate that a non-profit
organization can allow people to play video games for free in
public, especially where the bpublicb is defined somewhat more
narrowly to include only students. If a fee is charged, then
Valve is a problem, but Valve arguably represents a poor
reading of Allen.

CONTRACT ISSUE

The other issue is what to do with the restrictive statement
on the back of the video game boxes. You said the students are
considering Halo 2, so I assume they want to put an Xbox or an
Xbox 360 in the student recreation center. 

On the back of Xbox and Xbox 360 game boxes, it says,
bUnauthorized copying, reverse engineering, transmission,
public performance, rental, pay for play, or circumvention of
copy protection is strictly limited.b I can think of one game
with a broader statement, but I donbt have it handy at the
moment, and I donbt think there are very many variations from
what I just quoted. (The game with the broader statement is
called Operation Flashpoint Elite. I probably just violated
the statement on the back of that box by using the trademark,
Operation Flashpoint, in these two sentences.)

Unless the students plan to charge a fee, this statement on
the video games boxes, whether binding or not, shouldnbt
change the conclusion that the students may lawfully install
video game consoles in the recreation center. The statement
purports to restrict public performances. A court in the Ninth
Circuit would probably interpret this reference to public
performances in light of the Ninth Circuitbs decision in Allen. 

If the students do plan to charge a fee, the analysis is more
complicated than the copyright issue above. The question would
be whether the bpay for playb restriction is part of the
contract with the buyer of the game, and if so, whether the
restriction is enforceable. As I doubt the students plan to
charge, Ibll end the already lengthy discussion here.

-Bill


William K. Ford
Assistant Professor of Law
The John Marshall Law School
315 S. Plymouth Court
Chicago, Illinois 60604


---- Original message ----
>Date: Tue, 23 Oct 2007 16:19:52 -0700
>From: "Schladweiler, Lauren" <lschladweiler@xxxxxxxx>  
>Subject: Video Games/College Rec Center  
>To: <digital-copyright@xxxxxxxxxxxxxx>
>
>Student Development staff have asked if there are any
(copyright or
>otherwise) restrictions that would prevent them from offering
or direct
>how they would go about providing video games such as "Halo
2" in a
>public student area. I'm assuming the student organization
owns the
>software and that they would not charge. I don't know yet
whether or not
>helpful information may be printed on the box or by
contacting the
>company. Comments welcome.
>
>Thank you!
>
>Laurie Schladweiler
>Library Services Specialist
>Pima Community College
>West Campus Library
>520-206-6821
>lschladweiler@xxxxxxxx