Another Copyright Curly Question from the Gaming World

Is hacking the characters from a video game legal? - A recent item posted to the Wall Street Journal (WSJ) online digital blog looks at whether hacking the code for video games so as to make  changes to the characters in the game is legal. The article states that: "People have been digging into the code of video games to change their characters and storylines for years". Says the post "Even Ms. Pac-Man began as a hack..."

The report points out that tampering with video games in this way has been argued by many of the hackers to be a form of protest addressing, for example, digital sexism by "allowing long-time damsels in distress to become heroines".

It is reported that as yet there haven’t been any high-profile lawsuits regarding this type of hacking and that the legal issue is most likely be based on interpretation of the definition of “fair use” in the copyright law. The WJS reports that: “What will and will not be found to be fair use depends entirely on the circumstances.”

Considerations that could allow a hacked character copy to be considered "fair use", are reported as being:

• whether the game is being used in a commercial nature; that is, are the hackers selling the game?

• the amount of the original work that has been repurposed, and

• whether the new work has hurt the market for the original work. As the WSJ article points out character gender hackers often release their changes to the game as an update file that integrates with the original game. Meaning the hacked new game cannot be played without owning a copy of the original game.

Another interesting issue raised in the WSJ article is a public’s interest one as to whether by changing distressed damsels into heroines, hackers could argue they have created a “transformative” piece of work. WJS refers to the  1994 Supreme Court case Campbell v Acuff-Rose Music involving a song which had created a commercial parody using parts of another song called “Oh, Pretty Woman”. In that case the court discussed transformative use, noting that the goal of copyright “to promote science and the arts, is generally furthered by the creation of transformative works.” In that case the court held that although parts of the original song had been appropriated, the new piece was markedly different, and had created a distinctive new song.

The point of copyright law is also to allow original creators to protect their profits for their works, but in this instance it might be that the hackers could be seen as extending the value of the game and increasing profits to the original creator. It might even be argued that is what they are doing.

This definitely an interesting issue and one that teases traditional notions of what copyright is intend to do as against what it is actually doing.

Source:

• Is Hacking Videogame Characters Legal? (WJS Blogs)

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