There wasn’t one big topic to tackle today, so I decided to cover two smaller ones.
Valve recently announced their long speculated “Family Sharing” plan on Wednesday. Basically, a user can share their game library on up to ten different devices. Anyone using that account on the different devices will have access to the user’s entire Steam library. There are some important restrictions. First, players can only play one copy of a particular game at a time. If another user is borrowing a digital copy of a particular game, no other user can access it on that account. The second major restriction is on a by game basis. Some games on Steam require third party keys or account log ins for access. For example, Far Cry III requires the user to log in to an Ubisoft Uplay account in addition to their Steam account. Uplay may, as a result, bar players from sharing their copies of Far Cry III with other users on their account.
What’s interesting to me is how aspects of the plan reflect pre-existing licensing agreements between Valve and various game publishers. Valve clearly allows, as part of its licensing deal with publishers, for various third party authentication software in the forms of digital accounts. Using the earlier Uplay example, Ubisoft’s licensing deal with Valve clearly allows for Ubisoft to require users to maintain a working Uplay account to access the game. In addition, the “only one copy of the game can be active at a time” restriction appears designed to prevent multiple users from gaining the benefit of multiple copies through one purchase. While this program is probably a step in the right direction, it illustrates a common complaint of gamers: a lot of digital software gets greatly restricted by the rights holder in the end.
The second issue is an interesting one involving copyrighting building code ordinances. A website, called Public.resource.org, opted to republish building code ordinances (written by groups such as the Sheet Metal and Air Conditioning Contractors National Association) that normally must be purchased by the authoring group. The website’s owner, Carl Malamud, argues that since these ordinances have the force of law (many states incorporate them into their safety laws), they should be available to the public. The various trade organizations argue that copyright protects their ordinances as they would any other work.
As the article points out, laws are normally not copyrightable (the government generally cannot create copyrightable works, according to section 105). Copyright protection comes into existence for “original works of authorship fixed in a tangible medium of expression.” When created by legislators, laws generally aren’t a “work of authorship” or “original” as understood by copyright law. The Copyright Act provides a list of categories that constitute “works of authorship” (though that list is not all inclusive and the categories are intentionally broad”). In addition, normally the author must contribute something unique to the work. In order to do that, they have to independently create the work and possess a modicrum of creativity (Feist v. Rural Telephone Service). The issue in this case is probably not the independent creation aspect (these entities went to great length in their complaint to talk about how much effort goes into creating these safety ordinances). Whether laws created independent of government legislators fits the “modicrum of creativity” requirement is another matter. Normally, copyright does not possess a high threshold for a work to have a modicrum of creativity. Generally, this bars protection for works like compilations (like a phone book) unless the organization of that work is creative in some respect. Even then, the actual information is not copyrightable in that circumstance.
The other major obstacle for protection of laws created by private entities is conceptual separability. Generally speaking, copyrightable works must be creative in some respect. If the work is purely utilitarian, then it cannot receive protection. There’s a famous case involving those ribbon bike racks in parks called Brander International v. Cascade Pacific Lumber, which sets the standard here. Brander holds that if the creative aspects cannot be separated from the utilitarian ones, then the work cannot be copyrighted because those aspects are not conceptually separable. This concept might not be a significant bar however. The purpose of conceptual separability is the preventing parties from getting copyright protection for items more suited for patenting (which they cannot get for whatever reason). If the court chooses to hold to that idea, rather than a broader notion that copyrighted works should ultimately be creative in nature, then conceptual separability might not be a significant bar to copyright protection.
How the court rules on this should be interesting. My instincts lean towards laws not being copyrightable, even when developed by private actors (though they might have a case for the manner in which they compiled these laws). The trade organizations didn’t provide any insight into why they think they deserve copyright protection, beyond merely registering the copyright. The court’s logic, one way or the other, should be particularly interesting.
Anyway, that should wrap things up for this week. Have a great weekend everyone, and I’ll see you all next Wednesday.