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Games and Other Uncopyrightable Systems

All the King's HorsesI’ve long been interested in copyright and games — an interest that began with copyright and video games, but worked its way backwards to consider games generally. Games exist at the boundary of copyright law: they seem to include much that is protectable, and yet there is a general rule in copyright doctrine that games are not copyrightable. (For more, see my fourpart series on PrawfsBlawg in 2008, in particular Part III and Part IV; also this post).

I’ve now uploaded a new paper to SSRN, Games and Other Uncopyrightable Systems, that explains the purpose and argues for the continued vitality of that rule. Some may recognize the paper as what used to be Part I — the “background” section — of my long-awaited video games paper. The questions surrounding the copyrightability of games proved to be so intricate that it required a separate paper just to address them. In short, games are uncopyrightable because they are systems — a conclusion that is only moderately helpful, because systems themselves are not well understood. I therefore tackle that issue as well. Here is the abstract:

This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content.

Like solving a crossword puzzle, this Article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation.

Comments welcome!

Cross-posted at Marquette University Law Faculty Blog.