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Fairness, Copyright, and Video Games: Hate the Game, Not the Player
Shani Shisha
Article

  The full text of this Article may be found here.

31 Fordham Intell. Prop. Media & Ent. L.J. 694 (2021).

Article by Shani Shisha*

 

ABSTRACT

[C]

reative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting role of copyright law in the gaming community, where game developers are increasingly using a complex amalgam of legal and nonlegal tools to regulate creative output. Based on an in-depth analysis of the extralegal norms that govern creative content in the video game industry, this Article distills a richly detailed account of the relationship between video game creators and consumers. It maps the intricate web of interests underpinning the relationship between game developers and consumers; identifies a rich cadre of fairness-driven social norms that permeate the gaming community; and considers the implications of these findings for copyright law. The Article ultimately concludes that strong copyright protection is largely (though not entirely) inessential in areas where norms of fairness drive the production of creative content.

* Fellow, Harvard Law School, Project on the Foundations of Private Law; Graduate Program Fellow, Harvard Law School; S.J.D. candidate, Harvard Law School. For insightful comments and conversations that informed this piece, I thank Oren Bar-Gill, Elettra Bietti, Michael Birnhack, William Fisher, Lawrence Lessig, William McCoy, Gali Racabi, Moti Sorek, and Rebecca Tushnet. I am also grateful to participants in the Internet Law Works-in-Progress Workshop and the Annual Workshop of Israeli Intellectual Property Scholars for allowing me to workshop earlier versions. This research benefited from the support of the Project on the Foundations of Private Law at Harvard Law School.