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Source link: http://archive.mises.org/3228/copyright-and-video-games/

Copyright and Video Games

February 25, 2005 by

The train of examples of absurd applications of modern patent and copyright law is seemingly endless. One that caught my eye is the trademark and copyright infringement suit by comic publisher Marvel (my favorite) over the role-playing video game City of Heroes. The game lets players create the look and abilities of superheroes who battle each other in a virtual city. While the game prevents players from using Marvel-trademarked names, it offers trillions of costume combinations, so that a player is free to make his character big and green and wear purple pants like the Hulk.

Marvel claims that the interactive game companies that make and sell the game (Cryptic Stuids and NCsoft) are responsible for the infringing uses of their players. According ot Marvel, the game should not allow players to make virtual characters that are too similar to “The Hulk,” “X-Men” etc. “Marvel seeks unspecified damages and an injunction against the two companies to stop using its characters.”Marvel claims “that the game’s character creation engine easily allows players to design characters that are virtual copies of its own superheros, including “The Incredible Hulk.”"

“The company singles out a game feature for creating “a gigantic, green, ‘science-based tanker’-type hero that moves and behaves nearly identically” to the “Hulk.” Players can also create a “mutant-based” hero powers and a costume nearly identical to Marvel’s “Wolverine,” according to the suit.”

In other words, a kid playing a video game with another kid, by painting his character the color “green” and making him “strong” and wearing pants colored purple …. is somehow violating Marvel’s property rights? Visualize some kid staying up late at night, in bed with the covers over his head and a flashlight on so mom won’t catch him up late, sketching his favorite Marvel characters on a piece of paper. Little to the Marvel executives know, as they sleep soundly at night, that in some unknown 12 year old’s bedroom, their “rights” are being “violated”!

One is tempted to call this ridiculous and an abuse of copyright law, but it’s not. It’s the type of absurd result that is inevitable once property rights are legislated in non-scarce resources and are based on inherently arbitrary and non-objective criteria.

{ 10 comments }

Brian Moore February 26, 2005 at 12:57 am

Yes, the tech-geek, computer game and comic book world has been mocking this farce for quite some time.

The basic gist being that if NCSoft is guilty, so are Crayola, MS Paint and Faber-castell #2 pencils.

Curt Howland February 26, 2005 at 8:10 am

This is merely a reflection of the mind-set that promotes prohibition, pro-active law enforcement, and things like that.

It is not enough that people choose to do good, they must be prevented from having the ability to do wrong.

Unfortunately, what the prohibitionists cannot grasp is that some individual must make the decision what is and is not wrong. I think this is because the prohibitionists believe that they are right and that the end justifies the means. They do not understand one of the greatest lessons of human nature, those means will be used against them.

Maybe they just expect to be dead before the repercussions can come back to haunt them.

Interesting throw-away quote from the Japanese anime “Ghost In The Shell”, 2nd Gig, episode #14, “War always follows vested interest.”

Stephan Kinsella February 26, 2005 at 10:24 am

Interesting Brian. Good analogy re crayons. But of course, they ARE guilty: if you sell someone a crayon you are responsible for what they do with it. Everyone knows this!

Seriously–this shows how the IP mindset is statist in that it dovetails with the thinking of the statist anti-gun advocates, who want to attribute responsibility for gun crimes to anyone but the actual criminal–the gun itself or its manufacturere and seller.

Pete Canning February 26, 2005 at 2:03 pm

I would make my character look like N. Stephan Kinsella. A bald guy with a neckwarmer and a ski jacket, beats the hell out of purple pants and green skin.

cliff February 28, 2005 at 10:42 am

Check out Fred von Lohmann’s article at law.com:

http://www.law.com/jsp/article.jsp?id=1101738490342

or Electronic Frontier Foundation’s site with all the legal documents at:

http://www.eff.org/IP/Marvel_v_NCSoft/

Brian Moore February 28, 2005 at 11:12 am

Interesting throw-away quote from the Japanese anime “Ghost In The Shell”, 2nd Gig, episode #14, “War always follows vested interest.”

Heh, looks like I know what channel you are watching at 10pm Sunday night. If you follow my link, I gush lovingly about Ghost in the Shell.

Interesting Brian. Good analogy re crayons. But of course, they ARE guilty: if you sell someone a crayon you are responsible for what they do with it. Everyone knows this!

Exactly. From what I can tell (with my limited legal understanding), it looks like this suit is going to be thrown out. The people at Penny Arcade and Slashdot Games have moved on from disapproval to outright mockery. :)

Jon February 28, 2005 at 10:26 pm

It’s a pity Tolkien didn’t copyright elves, not the name, but the pointy ears.
Then his estate could have sued Star Trek.

Only the superhero genre does this happen.

Few superhero computer games make it to retail. Quite a few have had lawsuits put on them during early production because one of the characters or character names is similar to something created at sometime.

The worst aspect is NCSoft went out of their way to prevent any copyright infringement. If your character name is similar to any known character you must change it or you will be banned. They deliberately limited costume options as well, in order to prevent such lawsuits.

Oh, it happens in music too. People being sued because they have the same chord progressions or a melody is similar to an obscure song from 50 years ago.

Jim B June 19, 2006 at 1:22 pm

Stephen – the bad policy of current IP doesn’t make your case. A “no patent” legal system is as self-contradictory as “all rights are physical”.

Stephan Kinsella June 19, 2006 at 1:55 pm

Hi Jim. You must be aware of my extensive writings on this. I’ve looked at it from as many angles as I can, and so far as I can see the entire institution is an abomination and antithetical to genuine property rights. I tried for years–as a libertarian, practicing IP attorney–to find a way to justify it, and finally gave up as it became clearer and clearer that the reason I couldnot justify it was it was not justifiable.

If you have a coherent way to justify property rights in ideal objects, I’d be curious to see it.

As for the bad policy of current IP law–it’s funny, I find that whenever I debate libertarian proponents of IP I point out many defects and they always say, in effect, oh, well, I don’t favor THAT part of IP law. So I ask them, well, what is your ideal system like? Their answer is usually, oh, well, I’m not an IP expert, how would I know?

So it seems to me that libertarians who defend IP are defending not the current system, but some other system that they cannot describe. Interesting.

lamont adair February 11, 2010 at 9:59 am

I mean honestly, I think that the point they try to market that game for profit clearly is an infringement.If I were Marvel, I would honestly review there game and see if it would be a viable concept or software game to market.Create a joint venture and promote it.I mean honestly,how do we know they haven’t done that.This could be a scare tactic so that Marvel can buy the rights to the game anyways.Too many unknown intangibles to really make a solid argument.

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