The broadest definition of crowdsourcing means creating content or opinion collection from a community that is not officially employed in the project but creates the content just out of a passion for the project. The best example to explain crowdsourcing could be Wikipedia, where the knowledge is collected from a community where each individual contributes a specific bit to the project, without any expectation of reward or remuneration. In India, specifically, crowdsourcing has not been used in video games. However, in 2010 the Indian rupee sign was developed by crowdsourcing.[i]
The growth of crowdsourcing in the information age could be attributed to the dynamic concept of knowledge itself, and it is nearly impossible for an individual or organization to have complete information over a topic or a subject, this is because knowledge is no longer stagnant it keeps on changing every day. Therefore, something such as crowdsourcing is extremely useful as it provides a platform for content or information to be collected from around the globe without any restrictions and could be easily provided to the users. Another reason for the development of crowdsourcing, especially in video games, is that it provides the gaming community the opportunity to make additions to the game. In an entertainment society that we live in today where the content is ultimately made for the community as they are the actual users of this content, providing an opportunity to that very same community to create its own content is an extremely business-friendly decision, as the community could best suggest what they want out of a video game.
An essential point of contention that arises in crowdsourced work is the concept of copyright of derivative work, which means the additions or modifications made to the video game by the community could be copyrightable by the video game producers or not. The traditional approach of the law on derivative work is that the original owner is provided with the copyright of the derivative work, and in some instances, the derivative works have a copyright of their own, separate from the original work. In the second class of cases, the problem arises, where separate copyright is given to derivative work.[ii] With the advent of crowdsourcing where the community makes much content, the concept of licenses has come into the picture, which provides video game companies to take back the rights from the community once they have created some content in the video game.[iii] The various types of licenses and the impact of the same on the crowdsourcing community would be discussed later in the blog.
US COURTS AND THEIR STANCE ON CROWD SOURCED CONTENT
Multiple projects have been created through crowdsourcing ranging from video gaming to advertisement. The game developed called DOTA could best demonstrate how crowdsourcing could be used commercially. The primary outline of the game was created by the Warcraft 3 (game developed by Blizzard Entertainment) community using the World Editor available in the game. Valve then hired the members of the community that were majorly responsible for the development of the game and created a game called DOTA 2. This game is a huge commercial success, and Valve built a multi-million-dollar industry around it, with the 2019 tournament of the game having a price pool of 34.33 million dollars.[iv] The major problem arose when Lilith Games and uCool launched mobile versions of DOTA. This release followed suits both from Blizzard and Value collectively alleging copyright infringement. The Court in Blizzard Entm’t, Inc. v. Lilith Games (Shanghai), 2017 formed following significant issues for the trial: First relating to the validity of the copyright and second regarding copyright assignment.[v]
On the issue of the validity of copyright, the court referred to the doctrine of master mind of the work. The US court referred to this doctrine in the case-law of Aalmuhammed v. Lee, 202 F.3d 1227, 2000, where it was explained that the person having the ultimate deciding authority over which creative content would remain in the work, has the right to use that content without rights being given to the creator of that bit of content. An implied license is given to the creative mastermind of that work, to use the content that have been created by individuals to be used in project for which it was created.[vi] The court also referred to the case of Garcia v. Google, 786 F.3d 733 (9th Cir. 2015) which explained that if individual copyright is given to the content creator, then the problem of copyright of thousands would arise, which means that an innumerable number of copyright claims would be given and that would make the production of any work nearly impossible.[vii]
While discussing the issue of the assignment of copyright, the court divided the issue into three major sub-issues, first did the EULA (End User License Agreement) in World Editor of the Warcarft Prevented valid copyright assignment. Secondly, did Icefrog, who was previously developing the game with S2, assign his rights to S2. Ultimately, when EULA said that Dota is open-scoured, he abandoned his copyright interest in the modification made by him. The EULA agreements define the limitation and terms that the user must agree to while using a software or other such creative work. In the case of Blizzard the EULA did not mention that the rights of the content created by the community would be transferred to Blizzard. However, it did mention that no one could use the content created by the community for commercial gains without the consent of Blizzard. On the second sub-issue, the court believed that while Icefrog was engaged with S2, the corporation did have a claim over the content developed by Icefrog during the employment, however it did not have claim over the content that was developed by icefrog for Dota separately. In the third sub-issue the court referred to the case of Micro Star v. Formgen 154 F.3d 1107, (9th Cir. 1998) Inc in which the court talked about how abandoning some right on the part of the creator does not mean abandoning all the rights over the work. The court further explained that when EULA left DOTA he had made it open sourced, which means that the content created by him could be used and modified by anyone without his consent. However, he also mentioned that a nod be provided to him in each new version of DOTA. The courts interpreted this nod as a limited license being given by EULA to the community.[viii]
On the question of the game be crowdsourced the court was of the opinion that any kind of help on the way does not mean that the efforts of the individual who were the masterminds of the work would be compromised. This poses an important ethical question as the content created by the community members whose names have not been mentioned is still being used in the game, and no copyright has been provided to them for their contributions. This goes against the philosophies from which the intellectual property right jurisprudence has developed. Locke’s labor theory of property which is one of the foundations of intellectual property rights talks about how the work of one’s own labor is his own and he possesses a natural right over it.[ix] Therefore, the idea of not providing copyright protection to the people who worked for the development of DOTA seems unfair.
INDIA’S LAWS AND UNDERSTANDING OF CROWDSOURCING VIDEO GAME CONTENT
The primary shortcoming in Indian law is that there is no specific category for video game copyright, although video games would be included under artistic work as per section 13 of the Copyright Act, 1957. However, that does not fully capture the spirit of the work as it fails to provide copyright infringement exceptions to the modification or additions made by the community through crowdsourcing. Section 52 of the law down the exception to copyright infringement. However, community additions and modifications are not covered in section 52. One method of dealing with this problem could be to provide copyright infringement exception to User-generated content as is done in Canada.[x]
The next thing that has to be taken into account is the author’s moral right to the crowdsourced content. Even if financial rights have been transferred did the author of that crowdsourced content wanted his content to be presented in the manner that it is being presented now. Section 57 of the Indian copyright act provides for the protection of additional rights given to the author. These additional rights could create further problems in providing copyright to crowdsourced content as the video game producer would require further permissions from the community creators.[xi]
LEGAL CONSIDERATIONS WHILE CROWDSOURCING VIDEO GAME CONTENT
For the existence of copyright protection, the following conditions have to be satisfied: 1) The content created must be original, the threshold for originality is extremely low. Therefore, it is not hard to satisfy this test, 2) It should be work of authorship. This requirement is fulfilled individually by each category of work that is incorporated in a video game. The audio-visual aspects of the game fall under audio-visual work, the music used in the game as musical work, and the computer code that runs the game as literary work. 3) Work should be fixed in a tangible medium of expression. This need is fulfilled as the audio-visual work and computer code are fixed in a tangible medium of expression on the computer.[xii]
In the case of crowdsourced work specifically the court in Blizzard Entm’t, Inc. v. Lilith Games (Shanghai), 2017 noted that the crowdsourced could not directly be defined as collective work. In the case of DOTA it was defined as unitary work. However, the facts must be considered for it to be defined as collective or unitary work in each case.[xiii] The issue becomes important because if the work is a collective work, then only one copyright is required. However, if each version of the crowdsourced work is considered unitary work, then each version would require separate copyright. This poses a problem because for each modified version the game developer would have to acquire different copyright.
The main purpose of licensing in crowdsourcing content is to transfer certain video game rights back and forth. It starts with the company transferring certain rights to the community so that a addition or modification to the video game could be made. However, the primary purpose of license comes in while transferring these rights back to the video game developers so that the copyright remains with the developers.[xiv]
Next, we can also look at the concept of open source, as crowdsourced works are open-sourced. Therefore, any work derived from this should also be open-sourced. In this case, a General Public License must be issued by the company so that crowed sourcing can be effectively done. If the work is obtained from open-sourced content, then it should ideally remain in open source.[xv]
In the cases of business sensitive data, where there is a need for data protection rights to be present. The video game producer has two methods of doing the same first via an express license where the game developer could specify what right the community has with the data. Further, they could specify that no derivative works of the video game could be commercialized in any way. The second type of licensing that the developer could use is creative commons license with allows the game developer to limit the community’s rights so that no derivative work without the consent of the game producers could be circulated in any form. The other type of creative commons license that can be used is a share-alike license, according to which any type of adaptations of the content must be released under the same license as the original.[xvi]
In the case of crowdsourced content especially in video games there is a grey line between the consumers and the creators, as the community is the one which creates the content and uses it as well. The best way to define the rights of the consumer, which in certain cases are creator as well is through a EULA. The End User License Agreement should clearly define the rights of the consumers, firstly the extent of their copyright when the community makes a modification to the video game. Secondly the court while deciding copyright of crowd sourced content should make sure when the members of the community abandoned their copyright and when they have given a limited license to other for using their content.[xvii] Lastly the copyright assigned by the community to the video game producers should be duly compensated, this compensation should be mentioned in the initial contract based on which the community members agreed to crowd source content.[xviii]
With new advances in technology, such as the advent of Internet of Things (IoT) crowdsourcing in video games proposes an even deeper connection with other user while playing video games.
The best example of this could be Pokémon go which combines augmented reality with The Internet of Things and provide an experience to the user, as though the Pokémon is standing right Infront of them. Crowd Sourcing is not being used in this game per say.[xix] However, additional apps use crowdsourcing to collect data as to where a Pokémon was found and which type of Pokémon are being found in what region. This shows how crowdsourcing combined with Internet of Things is providing a more immersive experience to the users.[xx]
With all the benefits of IoT certain problems come with it. Firstly, while crowd sourcing video game content, the game developers must provide certain data to the crowdsourcing community. This data is extremely sensitive and leaking of this data could harm the video game developers. Further, with the advent of IoT where information is transferred without human interaction this make hacking of such data much easier.
The video game developers can legally protect themselves by having EULA in place so that even if the information is leaked and is being used by anyone else other than the crowdsourcing community, so that a compensation or due legal remedy could be initiated.
Crowd Sourcing has opened infinite possibilities both for Business and Entertainment. The task which required months of works now could be completed in days. However, crowdsourcing has also opened Pandora’s Box, which has exposed companies to the risk of infringing copyright of the community and of more legal disputes coming forward. Although licensing could provide certain relief from the problem. However, the need of the hour is to develop laws specifically targeted to crowdsourcing balancing both the rights of the corporations and the community which is responsible for crowdsourcing content.
* The author is a 5th year student at the WB National University of Juridical Sciences, Kolkata.
[i] Ross Kimbarovsky, Crowdsourcing The Indian Rupee Symbol, (13th May 2021), https://www.crowdspring.com/blog/crowdsourcing-government-rupee/.
[ii] Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co., No. 3:1504084-CRB, 2017.
[iii] David Potempa, PRODUCING VIDEO GAMES THROUGH CROWDSOURCING: LEGAL, ARTISTIC, AND SOCIOECONOMIC LIMITATIONS ON THE POTENTIAL, (15th May 2021), http://www.kentlaw.edu/perritt/courses/seminar/potempa%20%20Producing%20Video%20Games%20Through%20Crowdsourcing%20%20Legal,%20Artistic,%20and%20Socioeconomic%20Limitations%20on%20the%20Potential.pdf
[iv] Christina Gough, Leading eSports tournaments worldwide as of 2021, by prize pool published, Statista, (9th April 2021), https://www.statista.com/statistics/517940/leading-esports-tournamets-worldwide-by-prize-pool/.
[v] Jennifer Lloyd Kelly , Nicholas Plassaras and Chieh Tung, Crowdsourced Content In Video Games: How Ownership Issues Almost “Ganked” A Copyright Case, Mondaq Blog, (28th April 2021, 8:00 pm) https://www.mondaq.com/unitedstates/copyright/661628/crowdsourced-content-in-video-games-how-ownership-issues-almost-ganked-a-copyright-case.
[vi] Aalmuhammed v. Lee, 202 F.3d 1227, 2000.
[vii] Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015).
[viii] Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co., No. 3:1504084-CRB, 2017.
[ix] Justin Hughes, The Philosophy of Intellectual Property 77 Geo. L.J. 287 (1988), (May 15th 2021), https://cyber.harvard.edu/IPCoop/88hugh.html.
[x] Sankalp Jain, Video Games, User-Generated Content and Copyright, (14th May 2021), https://spicyip.com/2020/06/video-games-user-generated-content-and-copyright.html.
[xi] Section 57 of Indian Copyright Act, 1957.
[xii] David Potempa, PRODUCING VIDEO GAMES THROUGH CROWDSOURCING: LEGAL, ARTISTIC, AND SOCIOECONOMIC LIMITATIONS ON THE POTENTIAL, (15th May 2021), http://www.kentlaw.edu/perritt/courses/seminar/potempa%20%20Producing%20Video%20Games%20Through%20Crowdsourcing%20%20Legal,%20Artistic,%20and%20Socioeconomic%20Limitations%20on%20the%20Potential.pdf .
[xiii] Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co., No. 3:1504084-CRB, 2017.
[xiv] David Potempa, PRODUCING VIDEO GAMES THROUGH CROWDSOURCING: LEGAL, ARTISTIC, AND SOCIOECONOMIC LIMITATIONS ON THE POTENTIAL, (15th May 2021), http://www.kentlaw.edu/perritt/courses/seminar/potempa%20%20Producing%20Video%20Games%20Through%20Crowdsourcing%20%20Legal,%20Artistic,%20and%20Socioeconomic%20Limitations%20on%20the%20Potential.pdf.
[xv] Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co., No. 3:1504084-CRB, 2017.
[xvi] David Potempa, PRODUCING VIDEO GAMES THROUGH CROWDSOURCING: LEGAL, ARTISTIC, AND SOCIOECONOMIC LIMITATIONS ON THE POTENTIAL, (15th May 2021), http://www.kentlaw.edu/perritt/courses/seminar/potempa%20%20Producing%20Video%20Games%20Through%20Crowdsourcing%20%20Legal,%20Artistic,%20and%20Socioeconomic%20Limitations%20on%20the%20Potential.pdf
[xvii] Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co., No. 3:1504084-CRB, 2017.
[xviii] Eric Favreau, Creative Crowdsourcing from a Legal Perspective: The Role of the Contest Organizer, (14th May 2021), https://news.eyeka.net/2013/10/creative-crowdsourcing-from-a-legal-perspective-the-role-of-the-contest-organizer/.
[xix] Frankie Wallace, How The Internet Of Things Is Changing The Gaming Industry, (14th May 2021), https://www.headstuff.org/entertainment/gaming/how-the-internet-of-things-is-changing-the-gaming-industry/.
[xx] Priscila Martins, Manoel Junior, Fabr´ıcio Benevenuto and Jussara Almeida, The Emergence of Crowdsourcing among Pokemon Go Players, (13th May 2021), https://homepages.dcc.ufmg.br/~fabricio/download/Pokemon_Hypertext.pdf.