Academic journal article Harvard Law Review , Vol. 125, No. 3
Video games are big business. In terms of revenue, the Mario brothers have far surpassed the Coen brothers. (1) While video game players are often portrayed as passive consumers of content,(2) many players in fact contribute substantially to their own entertainment experience, as well as to others'. Players generate new levels, challenges, characters, and even entire games by modifying, or "modding," game code using either in-game editors or external software development kits.(3) The most extensive type of "mod" is the "total conversion," in which modders strip away the content of the original game--its artwork, characters, plot, story, and music--and replace it with entirely new content that runs on the same software architecture, or "engine," as the original. When these mods are "add-on," rather than "stand-alone," they still require the original game in order to function.(4) While most of the game industry now invites the controlled participation of game modifiers, the industry significantly limits how modders may profit from their creations.(5) Copyright is a key tool in maintaining the industry's monopsony on user-created mods.
This Note argues that total-conversion add-on modifications, even those created for a commercial purpose, should qualify as nonderivative works, or alternatively, as fair use. (6) Intellectual property theory supports granting modders property rights in their total-conversion mods to reward modders adequately for their labor and to encourage generative activity by video game users. Furthermore, case law suggests that total-conversion ods could be considered nonderivative works, utilizing functional software elements outside of copyright. The law should recognize that gamesare composed of two parts, a platform (the game engine) and an application(the game content). Modders are simply utilizing an available platform,(7) stimulating peer production, harnessing diverse creativity, and enriching communication in the social sphere. If courts find that modsarederivative works, total conversions should fall within the ever-changingand often unpredictable fair use safe harbor.
Part I provides an overview of video game architecture and the nature of mods, as well as the potential benefits and costs of total-conversion mods. This Part details the common industry approach to mods--encouraging and exploiting consumer production while restricting sale. Part II examines the problem of modding from the perspective of intellectual property theory and demonstrates that it would be beneficial as well as fair to grant modders ownership of total-conversion add-on mods. Part III explains how the law may solve this problem: case law suggests that judges may consider total-conversion mods to be nonderivative works, or alternatively, derivative works falling under fair use.
I. OVERVIEW OF VIDEO GAMES AND MODDING
At the outset, it is important to distinguish between the two primary components of modern video games: the game engine and the game content. The game engine is a collection of reusable software modules that require time-consuming labor and large amounts of financing to develop.(8) The game engine typically includes a renderer,(9) a physics engine,10 sound, and artificial intelligence.(11) This suite allows for rapid development of games.(12)
Game content comprises art, sound, characterization, story, visual style, genre, and game objectives. Game developers can design a range of different content to fit a single engine. For example, the Source engine powers a diverse set of games including Half-Life 2, Portal, Team Fortress 2, and Counter-Strike: Source.(13) It helps to conceive of a game engine as a platform, with the game code running on top of this platform. Although game content developers do create customized engines exclusively for their games, it is common for game companies to license successful engines, such as the Unreal engine, to these developers.(14)
A mod is "an alteration or creation of files for a game engine, which allow it to modify the gameplay style, graphics, environments, [and] models. …