Redefinining Intellectual Property Rights

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Sal Humphreys argues that, “the dynamic, mutable and emergent qualities of the online multiplayer game exceed the limits of the reifying process embodied by copyright law and content-regulation system.” Critically evaluate this claim in relation to the virtual economies of Second Life.

Introduction

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Individuals have come up with innovative ways to generate income from the internet. An example would be individuals who played online games for hours everyday and then, these individuals would sell items obtained or characters developed to other users (Jordan, 2003: 44). In exchange for the hours of labours that they would not perform themselves, the buyers paid the players with real currencies. These types of trades are commonly performed these days and they caused controversies as most MMOG producers claimed that they possess ownership of all aspects of the game and these trades performed are considered illegal. Linden Lab is presumably the first MMOG producer who clearly stated that users of their software, Second Life, would retain full ownership of any content that the users have created within the game (Linden Lab, 2003). In other words, users could generate income from trading the content that they have created within the game. This particular feature of Second Life is proven to be attractive with an increasing number of individuals and real world businesses joining Second Life. This essay will discuss the enforcement of intellectual property rights in MMOGs by focusing on Second Life as an example. First, this essay will analyse labour trends in the gaming industry as intellectual property rights are enforced in the first place to reward these labours. The discussion will then be continued by analysing the virtual economy system in Second Life and a comparing it briefly to another MMOG, Everquest. The essay will conclude with attempting to answer the question on whether it is possible to enforce intellectual property rights in the virtual world as in the non-virtual world.

Labour in the Gaming Industry

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The well constructed and designed virtual world of Second Life may appear fascinating to the players of the game. In most cases, these players are unaware of the hours spent on coding and decoding done to construct such a fascinating virtual world. When discussing the labour system in the gaming industry, it is helpful to understand the notion of immaterial labour. Immaterial labour is labour that produces intangible products such as “knowledge, information, communication…, a relationship [or even] an emotional [response]” (Hardt and Negri, 2004: 108). Hardt and Negri suggested that there are two forms of immaterial labour (Hardt and Negri, 2004: 108). The first form of immaterial labour is labour that creates “ideas, symbols, codes, texts, linguistic figures, images and other such products” (Hardt and Negri, 2004: 108). The second form of immaterial labour is also known as affective labour. Affective labour is a form of labour that generates good feelings such as excitement and satisfaction. Labour in the gaming industry could be classified as immaterial labour. Although there are some tangible aspects of the production such as consoles and disks, the satisfaction of the consumers comes from engagement with the virtual world, which is the intangible aspect of the game. Consumer’s engagement with the virtual world is often recognised as the practice of “play” and therefore, video game consumers are called “players” (Klein, 2003: 197).

Major gaming corporations recognised the close association between the game industries and the practice of play (Klein, 2003: 197). Gaming corporations, thus, incorporated this association in their recruitment strategies. As a result, working in gaming corporations is seen as playing and this has attracted many game players to pursue a future career in game developing. In reality, the working condition in gaming corporation is a far cry from this perception. In his essay, Thompson described that workers of the gaming industry suffered from long working hours, “near zero” job securities and lower average salary in comparison to salary standard in other media corporations (cited in Klein, 2003: 201). Apart from paid workers, gaming corporations utilize unpaid voluntary labour (Klein, 2003: 202). Gaming corporations realise that the without the game players buying the game, there will be no income for the corporations. This is why gaming corporations have always been supportive to fan productions and contributions. Some of the successful strategies implemented by gaming corporations are by providing game players with access to new games or beta versions before the games were released (Klein, 2003: 213). In return, game players would provide gaming corporations with useful feedbacks to improve the games.

Voluntary Labour in the Digital Information Age

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The involvement of free labours in the gaming industry became more evident in the digital information age. Traditionally, website developers would design the layouts of the website as well as create the content of the site. The new genres of internet communication, also known as Web 2.0, become increasingly reliant to user-generated content (Benkler, 2006: 60 and Tenenbaum, 2006: 48). In other words, developers are outsourcing content creation to the users. Developers of Web 2.0 are solely responsible for creating and maintaining the space and system for the content (Benkler, 2006: 60). Known for being innovative, the gaming industry adapted the concept of Web 2.0 in the form of Massive Multiplayer Online Gaming (MMOG) (Benkler, 2006: 74). In MMOGs, game developers created an online environment and the parameters of the environment. Instead of following a fixed storyline, game players have the freedom to create their own stories through the course of actions they performed in the game (Humphreys, 2005: 39). In addition, MMOGs allow game players to interact with other game players from all over the globe. Some of the more sophisticated MMOGs allow the players to create items and even alter the environment of the game (Benkler, 2006: 75). When players create items and additional elements for the game, the players are performing voluntary labour for the game.

Gaming corporation’s methods in utilizing paid and unpaid labour leads to the criticism that gaming corporations have failed in rewarding their labours appropriately (Klein, 2003: 201, 211). Players of MMOGs contributed hours of free labours and in most cases, they actually have to pay subscription fees to be able to access the online gaming environment (Humphreys, 2005: 40). Moreover, players have no right over the online content that they have created. In the case of Everquest, for instance, some players spent hours of labour in levelling up a character and creating items in the game. Some players have traded the characters and items in the game outside the gaming environment using real currency (Humphreys, 2005: 44). In the terms and conditions of the game, Sony as the game developer retained full intellectual property rights over every content in the game. Sony had clearly stated its stance in opposing the trades occurring outside the gaming environment. This leads to the question of whether a continuous access to an online gaming environment is an equivalent reward to game player’s hours of voluntary labour, considering that the game players actually had to pay subscription fees to perform the voluntary labour (Humphreys, 2005: 47).

Second Life’s Sophisticated Virtual Economy

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Linden Lab responded to this question by introducing a MMOG with a sophisticated virtual economy system titled Second Life. Linden Lab promoted Second Life as a “3-D virtual world entirely built and owned by its residents” (Linden Lab, 2003). The virtual environment in Second Life is inspired by a popular simulation games, The Sims. Second Life was officially released in 2003 and the inhabitants of the virtual world had grown to 6,515,829 in May 2007. Similar to other MMOGs, Linden Lab’s role as a producer is merely to provide and maintain the space for users to access. The uniqueness of Second Life, however, is the fact that Linden Lab only constructed the basic landscape of the virtual environment. The construction of buildings and other elements in the virtual environment are almost fully outsourced to users of the game. A building tool is included in the software package of Second Life. Using the building tool, users of Second Life can modify landscapes and create buildings as well as items. Moreover, users can learn a scripting language called Linden Scripting Language (LSL), which allows users to add behaviours to the objects that they have created. Second Life users could learn about the language through LSL Wiki portal and a Second Life scripting forum. Second Life users can also purchase a manual for LSL from Linden Lab.

User transactions in Second Life by Linden Dollars (for more economical statistic in Second Life click here)

Although there are many resources available to assist Second Life user with learning LSL, the scripting language is a complex one and it could take hours of work to create objects within Second Life depending on the complexity of the object. Unlike Sony’s stance on the labour performed by Everquest users, Linden Lab recognises the labour of the users and therefore, Linden Lab rewarded the labour of the users by granting intellectual property rights to users for objects that they have created (Linden Lab, 2007). Furthermore, Linden Lab attempted to extend the recognition of intellectual property rights onto outside the game by allowing users to earn real income from trading objects. Users could trade their objects using Linden Dollar currency within the game and this currency could be exchanged into real money. This unique feature of Second Life had led some of the users to rely on incomes generated from the MMOG. Real world businesses had even started utilizing Second Life to promote their business. For instance, educational institutions created online presences in Second Life by building replicas of real campuses in Second Life (Shepherd, 2007). These educational institutions are considering the possibility of conducting distant learning through virtual classrooms in Second Life.

Enforcement of Intellectual Property Rights

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Although internet offers excellent opportunities as in the case of Second Life, internet is also under scrutiny because of the common occurrences of copyright infringements such as file sharing, information hacking and reprographic technologies (Oettinger cited in Jensen, 2004: 531). Relevant authorities had attempted to deal with copyright infringements by inflicting legal consequences to the conduct of copyright infringements through regulations such as Digital Millennium Copyright Act (DMCA) (Jensen, 2004: 538). Internet communication developers had also acted by developing softwares to prevent hacking and expelling users who had conducted copyright infringements. Regardless of these attempts, the number of copyright infringements is still increasing (Jensen, 2004: 539). Hackers always find ways around the barricades created by authorities and internet communication developers. As previously described in the case of Everquest, despite of Sony’s legally binding statement, Everquest users continue to trade characters and items in the game using real currency (Humphreys, 2005: 44). These trades are difficult to tract as they are generally unofficial, unsolicited and unrecorded. Users may also face disadvantages in this matter. Because of the nature of the transaction, one party may suffer from unfairness as the other party could break the trade agreement and get away without facing legal consequences.

In the case of Second Life, Linden Lab may have officially recognised the intellectual property rights of the users over objects that they have created, but this does not imply that the intellectual property rights of users are fully transferable to the world outside Second Life. In its terms of services, Linden Lab clearly stated that it would perform any measurable actions but could not guarantee legal penalties over violations of intellectual property rights in Second Life:

“Linden Lab’s acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Linden Lab’s intention not to require users of the Service to forego certain intellectual property rights with respect to Content they create using the Service, subject to the terms of this Agreement”

Should the users choose to file legal claims, they have to do so under DMCA but Linden Lab could not guarantee that the violators will be legally penalised. Further in the terms and services statement, Linden Lab also stated that regardless of the user’s intellectual property rights, Linden Lab has the right to remove, alter or transfer any data in Second Life including objects created by users for any reason in Linden Lab’s sole discretion. As a result, the intellectual property rights of Second Life users may be enforceable strictly in the virtual environment of Second Life as they are proven difficult to exercise in the non-virtual world.

An instance of intellectual property rights violation in Second Life is the case of CopyBot. CopyBot is a program available for users to access in the library of the linden lab (Cory Linden, 2006). The program was originally intended to recover objects that had been missing or accidentally deleted by Linden Lab. Some hackers manipulated the codes of the program and converted the program so that the program could copy any objects in Second Life. CopyBot caused a major outcry in Second Life with users protesting against Linden Lab for being slow in their response to the CopyBot case (Robin Linden, 2006). Second Life users also flooded Second Life forums with complaints and demands for Linden Lab to take action against CopyBot. Linden Lab finally released a statement that that the use of CopyBot is considered a violation of Linden Lab’s terms of services (Cory Linden, 2006). In the statement, Linden Lab representative also emphasized that Linden Lab is not in the “copyright enforcement business” (Cory Linden, 2006). Furthermore, Cory Linden argued “like the world wide web, it will never be possible to prevent data that is drawn on your screen from being copied”. The CopyBot scandal reflects the difficulty of enforcing intellectual property rights in the virtual world the way it is implemented outside the virtual world (2006).

Distribution: Controlling Time and Space

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In Henry Jenkins’s essay on convergence culture, he warned his readers of the possible conflicts on regulating intellectual property rights between producers and consumers of the new media (Jenkins, 2006: 170). The CopyBot scandal in Second Life is an excellent depiction of such tension. A proposed explanation on the difficulties on implementing intellectual property rights could be found in Sean Cubitt’s work. In his essay on distribution, Cubitt pointed out the ability to control time and space provides distributors with power (2005: 188). As a medium, internet provides distributors with an access to a wide range of audience within a short time frame (Cubitt, 2005: 206). Internet also allows distributors to distribute a wide range of data types. Internet’s accessibility, however, comes with a handicap. Internet is such an accessible medium that it is much easier to steal information and distribute the stolen information through the internet rather than through other forms of media (Rosenblatt, 2000: 32). Moreover, internet is also an anonymous medium and it is difficult to find physical evidence of intellectual property rights in the internet. For instance, it is much easier to legally charge someone who printed stolen information because the printed materials could be used as physical evidence (Cubitt, 2005: 199). Furthermore, violations of intellectual property rights may be treated differently depending on which region the violation happened and internet could be accessed from anywhere that it could be difficult to determine which regulation from which region applies. Consequently, internet has such power to overcome spatial and time barrier that the current copyright regulations are not able yet to overpower it (Rosenblatt, 2000: 32).

Conclusion

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In conclusion, intellectual property rights were established as one of the ways to reward the labour performed by workers. Gaming industries had long been criticised for their inability to reward their workers adequately for the labour performed. This criticism became even more intense with the introduction of MMOGs where MMOG producers in most cases retain their rights over content that are created by game players in the online game. Linden Lab recognised this phenomenon and they decided to recognise the intellectual property rights of their users. Although Linden Lab had acknowledged the intellectual property rights of their users, a close analysis of the terms and services statement revealed that Linden Lab does not fully guarantee the intellectual property rights of the users. The CopyBot scandal is evidence that Linden Lab could not really do much about the spread of the reciprocating technology in Second Life. At the moment, it appears that the attempt to protect intellectual property rights in MMOGs and other forms of internet communication is losing its battle against the violation of intellectual property rights. With the increasing number of information in electronic format, it is no surprise that there will be new developments in regulating intellectual property rights in the virtual world. To come up with precise conclusion, it is helpful to keep track with these future developments as well as analyse enforcement of intellectual property rights in other genres of internet communications.

References List

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Benkler, Y. (2006) ‘Peer production and Sharing’ pp. 59-90 in The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven: Yale University Press.

Cubitt, S. (2005) ‘Distribution and Media Flows’ in Cultural Politics 1(2): 193-214.

Cory Linden. (2006) ‘Use of CopyBot and Similar Tools a ToS Violation’, Official Second Life Blog 14 November,

Hardt, M & Negri, A. (2004) Multitude: war and democracy in the Age of Empire. New York: The Penguin Press.

Humphreys, S. (2005). ‘Productive Players: Online Computer Games’ Challenge to Conventional Media Forms’, Communication and Critical/Cultural Studies 2(1): 37-51.

Jenkins, H. (2006) Convergence Culture: Where Old and New Media Collide. London: New Yorl University Press.

Jensen, C. (2004) ‘The More Things Change, The More They Stay The Same: Copyright, Digital Technology and Social Norms’, Stanford Law Review 56(531): 531- 570.

Jordan, J. (2003) ‘Reality cheque: when online gamers created a lucrative black market in virtual goods, games companies were outraged. Now they want a share of the action’, New Scientist 26 Jul.: 44.

Kline, S. (2003) Digital Play. Montréal: McGill-Queen's University Press.

Linden Lab. (2003) Second Life, consulted 12 May 2007: http://secondlife.com/

Linden Lab. (2007) Terms of Services, consulted 15 May 2007: http://secondlife.com/corporate/tos.php

Robin Linden. (2006) ‘Copyrights and Content Creation in Second Life’, Official Second Life Blog 13 November <http://blog.secondlife.com/2006/11/13/copyrights-and-content-creation-in-second-life/>

Rosenblatt, B. (2000) ‘Book Review: Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights by Debora J. Halbers’, Communications and the Law June 2000: 31-38).

Shepherd, J. (2007) ‘It’s a world of possibilities’, The Guardian Online 8 May, <http://education.guardian.co.uk/students/news/story/0,,2074626,00.html>

Tenenbaum, J. M. (2006) ‘AI meets Web 2.0: building the Web of tomorrow, today’, AI Magazine 27.4 (Winter 2006): 47 – 69.