PS3 Informer

Editorial: Copyright Madness Hurts Gaming

The ongoing war over digital copyright issues opened a new battle on an unlikely front this week, as cutesy platformer LittleBigPlanet found itself at the center of attention. The innovative platform jumping videogame, which allows users to create and share their own levels, has joined a panoply of other Web 2.0 and user-generated media platforms such as YouTube in the crosshairs of digital copyright defenders and critics. Like the citizen video aggregator YouTube, LittleBigPlanet largely depends on the creativity of its own users for its success. Owners of the game are free to use the tools provided by developers to craft whatever they want – up to a certain point. This week, software developer Media Molecule surprised and angered fans of the game by deleting hundreds of user-created levels that allegedly infringed on commercial trademarks held by Sony and other media conglomerates. The offending levels drew inspiration from a range of sources, including popular television shows, books, action movies, and retro video games. In one case, a creator had his level removed from the game because its title, “Failure to Launch” is shared by a 2006 romantic comedy from Paramount Pictures. Media Molecule responded to criticism by saying that the offending content constituted only a small fraction of the total amount of user-created levels, but the move has highlighted a very real problem with user-generated content and the right to use pre-existing works.

A fan-created level deleted from the LittleBigPlanet online servers paid homage to the orignal Super Mario Brothers NES game.

It is unlikely that actual complaints from players generated the flags used to remove trademark infringing content. What is far more likely is that Media Molecule representatives performed a sweep of the entire LittleBigPlanet userbase, looking for any level that might potentially offend trademark holders. The power of copyright laws is such that media companies now automatically and reflexively screen for offending content to ward off potential future lawsuits. “Playing it safe,” they argue, ensures that they will be protected from litigation from individual copyright owners or lobby groups like the RIAA and MPAA down the line. That is why it takes nothing more than an official-looking cease and desist letter to have any video removed from YouTube, and why players whose levels happened to contain a phrase from a 1950s film also had their creations removed from LittleBigPlanet.

The problem with this reflexive posture by large media companies is that it actually limits the very real rights of consumers to use and change existing media. By “playing it safe”, companies like Google (which owns YouTube) actually suppress many forms of expression that would normally fall under the category of “fair use” and therefore be perfectly legitimate. Fair use doctrine is a legal test put in place to determine whether secondary use of an existing intellectual property should be protected under the First Amendment or not. Many countries including the United States, the UK and Israel recognize the right to modify existing intellectual property in artistic expression. Fair Use helps to protect valuable artistic and political speech from the overreach of copyright holders. Without it, we wouldn’t be able to sample music, paint pictures of public areas, or criticize corporations using satire. Typically, expression which takes only a portion of an existing work (such as a phrase, a short clip, or a sample) and then modifies it in an artistically meaningful way, satisfies the fair use requirement and is protected under the first amendment.

In order to show that a work qualifies for protection under fair use doctrine, it must meet several requirements. The new work must be mostly original, but can use portions of existing material for non-commercial purposes that do not cause the secondary creator to profit from the first creator’s content. The new work must not substantially copy from the original to the extent that it replaces the value of the original copyrighted work. Of course, determining whether a derivative work steals a “substantial” amount of its content from an original, and measuring the impact of a derivative work on the market for the original requires a great deal of thoughtful consideration, something which only the courts are equipped to handle. That means that rather than become involved in these sticky questions, content-hosting companies like Google and Media Molecule would rather sidestep the whole issue of fair use altogether, and delete all potentially offending work with the same broad brush. This practice is harmful to the creative environment upon which these services thrive, and it fundamentally deprives consumers of their constitutional right to fairly use existing intellectual property.

The solution to this problem is both simple and complex. It requires, first of all, that media companies recognize the right to take and modify existing copyrighted material for reasonable purposes such as artistic expression. It will require that hosting companies put more effort into evaluating content, rather than simply building in a complaint button and filtering out content without evaluating the complaint. Groups like the Church of Scientology have used this weakness in YouTube to suppress videos that disagree with or are critical of their organization. By standing up for the rights of users, hosting media environments like YouTube and LittleBigPlanet will foster richer and more lively artistic expression. At stake are the principles that have helped shape both the Internet and the culture of free expression that prevails in Western democracies like ours.

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