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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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Trainz was first released at the end of 2001. We have gone through a series of releases with the most recent being Trainz Railroad Simulator 2004. One of the interesting things about the graphics and art content for these releases is that it was not exclusively created by Auran artists, but rather also generated by members of the fan community and a lot of those fan created assets are now included in the retail release packages Trainz now is a creative platform, we (Auran) create the platform and core functionality and users provide the art content. Over time we have established strong collaborative relationships with the extremely talented fan creators that have emerged. Some of these fans have formed teams and have gone semi-commercial and are now selling add-on packs for Trainz from their own websites. The fans bring innovation and value to Trainz through their creative efforts. The download repository for the fan created content on the Auran website now includes well over 26,000 individual assets, of which 2800 are locomotive models. Many of the assets for Trainz commercial release packages are now provided by the fans. There is an interesting mix here between the commercial and the non-commercial, the proprietary and the non-proprietary. It is a messy unruly network of creators generating innovation for us.

This creates complex IP issues/implications and Greg Lane has touched on that. Auran is fairly open with licensing relationships with the fans. Any content they create they retain the IP to. This is unlike other game companies where fan material cannot be commercially released by the fan creators and they often retain the right to take fan content without the creator’s permission and commercially exploit it or release it in their own packages. Auran’s approach is different whereby we think it is a good idea to talk to fans before commercially releasing their content and try to obtain their permission first. We negotiate out the relationship. Content that is on our download station, for example, is distributed under the terms of nonexclusive license. Fans who contribute this content are free to commercially exploit it or release it themselves elsewhere. Auran does not have an exclusive license to this content. The IP relationships and issues are messy, as the actors within these project networks have diverse and conflicting loyalties, values, imperatives and ethos. For example, Auran has a bottom-line imperative while for many of the fans it is about having fun making and openly sharing their creations for Trainz.

There are opposing and differing views within the Trainz fan community itself regarding IP and fan created content and I want to touch upon this quickly. The most interesting tensions within the networks are disputes between fans themselves who say ‘Joe has ripped off my content and used it in his locomotive and I am not happy about that’ and, as Greg has mentioned, these models are quite complex objects. What often happens is that one fan might think ‘I quite like that texture that Joe’s got on his locomotive, I want to take it and use it on mine’. ‘Joe’ might be happy about that as long as he gets credit and acknowledgements etc, but he might be very unhappy if he is not credited or acknowledged, or if that work of his turns up on another fan site being sold with someone else commercially benefiting from it.

We often get emails asking us to mediate between these fans who are having IP disputes. For example, a fan complaining ‘X fan group is ripping off our content what are you, Auran, going to do about it? Please remove their content from your download station, please send them an email demanding that they recognise our rights’. We are often placed in these awkward situations of trying to mediate among fan groups and their IP disputes. One of the other really heated areas of debate among fans is the pay-ware versus free-ware conflict. Some fan creators believe all fan content should be free-ware, it should all have an open-source or creative commons type license associated with it, and fans should not be profiting from or commercialising fan content. They should not be profiting from selling content to other fans. The argument here is that a lot of the content that fans create benefits from the feedback and input from a quite big network of fans who openly and freely share information. For example, tips and tricks about how to create this content. For these creators to then commercialise that content and restrict it in some way is not the right thing to do, at least this is the view of some fans Here are some comments posted to the Trainz forum by two fairly influential content creators. One is from John Wheelan, and the other is MagicLamb, that is his handle or nickname on the Trainz forum. John

Wheelan asks:

I have difficulty with copyright and Trainz. How many of our models carry a railroad or railways copyrighted logo? How may textures have been borrowed without the original copyrighter’s permission? How many content creators can say that they have not looked at how someone else has done something?

John is getting at how the content creators rely on this network of collaborative peer creativity that they draw on; often without permission.

But MagicLamb comes back and says:

it is all a matter of giving credit where credit’s due. There is a trend lately, and many other content creators agree with me, to just use whatever you want whether you have the rights to or not. It is not all about getting as much content out for Trainz as possible. It is about people who put in long hours for nothing to get the recognition they deserve. Some content creators do not care what you do with their work, some do. Their wishes do need to be respected.





You can see that the IP issues, the digital rights management issues, that are emerging through these peer distributed production networks are quite complex, quite convoluted, and sites of quite heated debate (I moderate the Auran forum and I often have to shut down threads and warn people who end up calling each other rather nasty names). Hopefully there are researchers here who may produce work in the not too distant future that may have some benefit for these fan creators and may provide them with models to work through these difficult IP issues and relationships.

I want to end with one more quote from a fan creator. This guy is talking about how much he loves the Trainz software and the community precisely because of its creativity and its open and collaborative mixing of materials and how it generates innovation through this process. He tells of how a particular project was undertaken by openly using each others content. He talks about it as being ‘unashamed plagiarism, pretty much driving this community’ and that is one way of putting it, that is his way of putting it.

And yet this ‘unashamed plagiarism’ is generating so much creativity and innovation that companies like Auran are commercially benefiting from.

This raises a lot of issues about Auran’s accountability to these networks.

How we are accountable to the fans and need to work closely with them in an ethical and open way. I would argue Auran offers a best practice example of how that can be done, although there are still areas where we can improve significantly. We have got it wrong in the past in some areas and need to learn from those mistakes. At this point I will throw over to the lawyers to talk about ways of thinking through these really interesting IP issues: the commercial and the non-commercial, the proprietary and the non-proprietary and the way they come together in these very messy unruly networks.

Legal Issues WITH PROFESSOR BRIAN FITZGERALD

A starting point is the notion of virtual worlds and legal rights, and the other is user-led production and the way that we can allocate legal rights.

There are key issues about constitutional-type rights in these virtual worlds.

I remember in the mid-90s when lawyers started to deal with the Internet, there were arguments about the Internet being a legal jurisdiction – Lex Internet – that were put forward in a famous article by Johnson and Post about the Internet being its own jurisdiction.217 And there is an interesting US case early on called US v Thomas. 218 Allegedly obscene material was uploaded from California but it was accessible in Tennessee and under the US law, obscenity took its definition from the local area, and these people tried to argue (California was much more liberal, Tennessee was a bit more conservative) that they had actually inhabited a sort of virtual world and where they had uploaded the pornography was really another space.

At that time it seemed a little bit remote and it was only a few people who were saying, “there is something in this argument”. Today when you look at the games’ environment there is certainly a strong argument coming forward that virtual worlds are throwing up real constitutional-like issues because people are inhabiting these spaces for an incredible amount of time. It is the reconciling of the real space jurisdiction with the virtual space that is difficult.

We see a process of development within a lot of these computer games environments which utilises IP relating to copyright, patent and trademark arise. When you have this sort of layered idea of authorship and user-led production, you have got this question about where the intellectual property rights, particularly the copyright, actually resides. Someone may develop a platform in which they have copyright and someone else may layer some content on top of that. We are looking at a sort of individual authorship, a joint authorship, and even depending on which one of those we say we are looking at, how are we reconciling the rights?

In a lot of the end user licence agreements that are wrapped around user rights in these games, we are seeing this idea of intellectual property rights David Johnson and David Post, ‘Law and Borders – The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.

United States of America v Robert Alan Thomas and Carleen Thomas 74 F. 3d 701 (US App6th Cir, 1996).

being negotiated, or transacted. In many of these end user licence agreements we may see things like: you can come onto this platform and you can contribute to it in a manner of user production, but we want to claim all the IP rights. It is almost like an automatic assignment of copyright that is implemented through the end user licence agreement.

Intellectual property law says that there is nothing wrong with a person who creates something, assigning that copyright to someone else. That happens all the time, particularly in publishing and so on.

There are some interesting arguments here and it throws up this whole issue we spoke about before: the intersection between copyright and contract – how contract can be used to restructure the rights of a copyright owner in various transactions. Some of the key legal issues that are arising here, and the points that we looked at when we wrote the article together, were how contract and IP rights in the games area are actually working together. Auran has some very interesting licences. They are beneficial and probably best practice style licences for their user producers where they give a lot of leeway to the people in terms of their IP rights and exploitation. There are other examples which are much more restrictive and are like automatic assignments where everything that is done is appropriated back to the platform company. That is a critical issue.

There is also this whole virtual economy that is thriving and people who are contributing to games are actually creating objects of worth. Recently reported in the papers here and overseas is this idea of someone selling a virtual island for US$26,000. People are actually trading in virtual property to create wealth and it is a very real economy. 219

Recent Examples WITH NIC SUZOR

Moving away from the question of property, I want to discuss three emerging issues concerning clashes between players of games and copyright owners, whether in the game itself, or in third party material. The first two examples come out of two cases in the US, and the third is the Edward Castranova, ‘On Virtual Economics’ (2003) 3 Games Studies. The International Journal of Computer Games Research 2. For example, the virtual “Entropia Universe” allows users to shift wealth between the virtual and real world at an exchange rate of 10 Project Entropia Dollars (PED) = $1 US. An Australian fan purchased an island on the world of Calypso for $265,000 (PED) – a cost of $26,500 real US dollars – and has already made his money back from other users investing in his virtual property.

legal standing of the highly innovative filmmaking technique ‘machinima’, which uses computer games as an animation platform.

Blizzard v bnetd Blizzard make several popular games, including Warcraft, Diablo and Starcraft. Online multiplayer in these games is limited to using Blizzard’s Battle.net service. Battle.net provides a mechanism for users to create and join multi-player games, to meet and chat with other users, and to record statistics and participate in tournaments. Battle.net functionality is built into the games. Blizzard’s Battle.net servers check the validity of users’ cd-keys when a user connects to the service from within the game. This validation is known as the ‘secret handshake’ which allows only users with valid cdkeys to continue connecting to Battle.net.

Blizzard’s End User License Agreements on the games themselves state that a user may not “in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code, modify, disassemble, decompile, create derivative works based on the Program, or remove any proprietary notices or labels on the program without the prior consent, in writing, of Blizzard”. 220

Blizzard’s Terms of Use on Battle.net state that a player may not:

1. copy, photocopy, reproduce, translate, reverse engineer, modify, disassemble, or de-compile in whole or in part any Battle.net software;

2. create derivative works based on Battle.net;



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