Game Content Usage Rules from Microsoft - the HUUUUGE but calming post

OK, I promised a longer article on the Game Content Usage Rules. And boy, are you going to get one. Strap in, this one’s a doozy.

Before I start I should note that the ineffable Fred Von Lohmann, who was on the same conference call about these Rules as I was, yesterday, has posted a shortish analysis of the Rules from a legal perspective, over at EFF Deeplinks. His article’s worth reading if you’re at all interested in this topic.

OK, OK. Back up. What are these Game Content Usage Thingies, and why do I care?

So we said a little while ago that we’ll be keeping this blog up to date with the latest developments in Machinima. And something big - like, really big - just developed.

Microsoft released a usage agreement for Machinima creation using its engines. That means that, for the first time, Machinima made in Halo and other engines isn’t even technically illegal - provided you follow their rules.

Now, various bits of those Rules made my and many other Machinima creators’ blood pressure rise. It looked like they were pretty limiting.

Fast-forward some days later. I spent some of yesterday in a massive conference call with Fred von Lohmann, two-fisted fighter for Internet Justice (and Senior Staff Attorney at the Electronic Frontier Foundation) and what felt like about half of Microsoft Games And Legal, including the author of the Rules (whose blog you can read and comment on, incidentally - he’s covering this too, which is awesome). We hacked through the Rules, we covered a lot of stuff, and now I can present you with the definitive guide to the current version of the Game Content Usage Rules - which actually turn out to be pretty darn good.

(Current version? Yep - they’re currently preparing a new version, as I write. Well, probably not literally as I write, because I think it’s about 4am there, but, you know, within a 24-hour timeframe.)

So. Game Content Usage Rules for Dummies, if you will.

Heeeere we go!

Let’s have a look at the Rules. You can sing along at the URL above - I’d recommend having a quick scan before you read on.

First up, it’s worth noting that if you don’t fit into the restrictions within the Rules, you’re no worse off than you used to be. Halo in particular has always been quite “friendly” to Machinima - no prohibitions on derivative works, no Fair Use restrictions. Indeed, the XBox versions don’t have an End User License Agreement at all.

(At risk of a plug, I should mention that Machinima for Dummies the book - due out on Monday - has an entire chapter on the legal aspects of Machinima, how to read EULAs, and all that stuff)

So, basically, if for whatever reason you can’t make your Machinima series fit within the Game Content Usage Rules (catchy title, innit?), you’re exactly where you were before, no better, no worse.

(You may be asking about Halo 3. Well, we’ll have more information on Machinima in Halo 3 on the 25th, when it comes out - I’d say more now, but I’d then fear sudden attack from the Microsoft Ninja Squadrons, and unlike Richard Stallman, I don’t sleep with a katana by my bed. )

Clause Catching

The three clauses in the agreement that have been really exciting everyone are:

You can’t add to the game universe or expand on the story told in the game with “lost chapters” or back story or anything like that.

Yipes. It’s possible to read that as “if you mention Master Chief, we will sue your ass”. However, I’m told that that is very much Not The Intention. Indeed, the MS team had already been following the reaction online, and were frankly a bit aghast.

Why is this clause in there? Well, basically MS are afraid that some obscure Machinima creator will write a story set in the Halo universe that turns out to be very similar to an “official” Halo story, and will then sue MS for “stealing” their idea. It’s a problem a lot of content creators face.

However, they intended this clause to be read a lot more narrowly than it has been. Basically, it seems that provided you’re not explicitly setting your story within the main storyline of the Halo games, starring major Halo characters, MS will be fine with your work. The MS guys were pretty darned shocked at how scared they’d gotten the Machinima community - that certainly wasn’t their intention.

Obviously, the paranoid amongst us (and I’m often in their heavily-armed, fortified, survivalist camp) will say “great, but we’ve only got their word on that.” . No worries. In light of the reaction from the community, MS are looking at redrafting this clause to something totally different - perhaps an agreement that, if you’re using this license, you won’t sue MS for any similarities between your work and theirs.

Even if that doesn’t happen, though, it’s very unlikely that, even in a worst-case reading of this clause, you’d get in trouble. See “Should I stay or should I go?”, below.

(Were The Codex guys right to cancel their production? My feeling is that reaction was a bit hasty. Still, I can understand legal-induced panic!)

“You can’t … use it to enter a contest or sweepstakes”

I’ll just quote DonkeyXote’s blog this morning:

“No one intends for the Game Content Usage Rules to interfere with machinima film festivals or other events dedicated to the promotion of machinima as an art form. We’re grappling with the idea of third parties who are promoting their own commercial website by having a machinima “contest”. If Site X decides to promote its own business by inducing the community to make machinima using our IP then yes, we do have an issue with that. But if someone submits a film to the Montreal International Film Festival, probably not. Sure, when they leverage that into a commercial distribution agreement we’d like to talk with them, but that’s a different discussion for a different day.”

The MS guys were also very, very clear that you CAN submit your Halo films to the Machinima Film Festival, the Machinima Europe festival, or basically any other film festival.

(And if you make Halo Machinima and haven’t submitted to Machinima Europe yet, why not? Get on with it!)

You can’t use Game Content to create pornographic or obscene Items, or anything that contains vulgar, racist, hateful, or otherwise objectionable content.

Right. Say hello to the long arm and dark shadow of the Fear.

This clause really pissed me off when I first saw it - not least because I envisioned a world where I couldn’t use the phrase “pissed off” in a Machinima piece.

And, to be honest, this is the one clause where I wasn’t totally satisfied with my discussion with Microsoft. (To be fair to them, everyone knew from the outset that there was probably going to be somewhere where we didn’t quite see eye-to-eye).

Microsoft are, sensibly enough, worried about the perception of their brand and their characters. This clause exists in case they want to shut down something that they feel harms their brand.

What are they likely to feel is “objectionable content”?

Well, from what I could gather:

  • If you’re telling a story set in a game world, with game characters, then you need to be fairly careful. Basically, if they think that your work is genuinely likely to offend people, doesn’t have any artistic merit, and might negatively impact perception of the characters that you portray, then you may not be covered by the Rules. The example I gave was a re-telling of the Halo story with the Master Chief in the role of a Bin Laden character - which the art guys felt would definitely offend and upset them, and the legal guys felt would very much depend on how well the story was told. However, even if you’re not covered by the Rules, that doesn’t mean that you’ll get sued, or that you’re doing anything illegal, by any means. See “Should I stay or should I go?”, below.

  • If you’re just using the character models and maps to tell a story outside or not directly linked to the game world, then you’re probably OK. Let’s face it, Red vs Blue is pretty offensive. Again, this is likely to be a call based on quality and content, but they’re likely to be more lenient, and allow more options, if you’re not directly saying that it’s actually Master Chief, for example, who is calling someone a string of Anglo-Saxon names.

Remember - these Rules don’t take away your other rights. If you’re in the US, satire and parody are protected under copyright law’s Fair Use provisions. If you think that you might upset MS, it’s worth having a quick chat with someone like the EFF to see if you can go ahead anyway.

(If you’re in the UK, you’re less protected. Our copyright laws suck.)

More Clause Catching

Let’s quickly pass through the rest of the document:

  • You can’t reverse-engineer” - This one’s a little tricky, as it doesn’t include the provision “except as allowed under applicable law”. That means that if you’re in Norway, for example, where reverse-engineering is more allowed than in the US, theoretically you might put yourself outside the Rules by reverse-engineering. However, the MS guys did say that it wasn’t their intention to reduce your rights, so this is likely to a) not be enforced provided what you did was legal and b) change in the next draft. It’s also very unlikely you’ll ever get sued on this one. There’s no way that MS were ever going to explicitly let you reverse-engineer their game - cheaters would have a field day - but most of the time, they also won’t care, unless it damages them in some way.

  • You can’t sell it” - No surprise. Again, you couldn’t do this before, either. Selling Machinima without a license has always been on the list of things it’s not a great idea to do (RvB have some kind of agreement with MS, for certain), and it still is. However, MS are being VERY open about the idea of commercial licensing, and they did confirm that they will happily discuss licenses that DON’T have up-front payments, so you could work on a series for sale without having to shell out a ton of cash first. This is probably the biggest news in this entire license, to be honest - it’s a HUGE potential deal for Machinima creators. You can probably tell I’m excited because of all the CAPITAL LETTERS.

  • You can’t use the sounds” - OK, no-one’s going to be very happy here, but this is just the way it goes. Microsoft don’t create all their own sound effects or music. Even the ones they do create or have created, they can’t always license out to other content creators. As any sound designer knows, the licensing for the sound and music you use is likely to be horribly, horribly complicated. As a result, right now, they can’t give you permission to use the sound from their games. Nothing anyone can do. This sucks, but there you go. We’re discussing alternate language for this, but there are all sorts of problems with it. Again, from our discussion, it’s very unlikely MS would sue you because you used a few sounds from their game - however, the person who originally created those sounds might. Be careful.

  • You can’t grant anyone the right to build on your creations.” - Yup, right now this limits you somewhat - you can’t publish your work as Creative Commons Derivatives-Allowed. (It’s worth noting that you can use other CC licenses). Basically, this is in here because MS are afraid of a game of Chinese Whispers starting up, and people not knowing what rules they’re publishing under. Again, they’re looking at this clause with the intent to improve it - they’re big fans of game mashups (if you’re one of the people who mashed up the Gears of War trailer, for example, you might want to know that about half the people on my call have probably seen your work), and want to make sure people can keep making them.

Should I Stay Or Should I Go?

You should stay.

You know back before this agreement came out, when you were making your offensive, backstory-based, for-profit Machinima? Nothing’s changed.

Worst case, if you make some Machinima that doesn’t fit into this agreement, you’re in exactly as much legal trouble as you were three months ago. Sure, the Agreement has some scary language about “you can expect to hear from Microsoft’s lawyers” if you breach it, but neither Fred nor I reckon that MS are about to go on a Machinima clampdown, because That Would Be Insane.

Say you’re making a piece of Machinima that makes South Park look like Sunday School material. Will MS shut it down?

Well, first of all, it’s going to cost them money. It costs them money - quite a bit of it - just to send out a Cease and Desist letter. And if you happen to know your rights and decide to be bolshy about it, it’s going to cost them more money to enforce the shutdown. If you actually decide to go to court, or if you live in a foreign country, they’re into the territory of spending $30,000 plus to shut down your film, even if they can.

Do you reckon that they’d risk $30k to shut down your film? No? Then you’re probably fine.

(“But I don’t have the money for a lawyer!” They don’t know that. They don’t know who you are. If the guy who made that offensive Halo video is an IP lawyer, or his father is an IP lawyer, or his family own most of Kentucky, MS might suddenly find they’ve bitten off more than they can chew. They don’t want that, so they won’t do anything unless the reward outweighs the risk.)

Secondly, any time MS decide to kill a film, they’re risking a gigantic PR explosion. Everyone likes bashing Microsoft, and Microsoft are more than a little aware of this. Machinima’s quite a hip cause, and we’re still pretty monolithic - if MS shut down a Machinima film, everyone’s going to be blogging about it. If it happens to be a popular Machinima film - which it pretty much has to be for MS to even notice it - then there are going to be thousands of mad, howling fans out there too. And then you’ve got the Free Speech implications, and suddenly MS is looking at lots of people pointing at it and calling it all sorts of nasty names.

MS Does Not Want To Go There. People on the ‘net get very upset about censorship, and MS doesn’t want any more bad PR days than it has to endure.

The call that MS make here will very much depend on how well they think they can argue its case. If your film is completely without merit to any reasonable observer, then they can and will probably shut you down if you are doing things they’re worried about. However, if you’ve made a competent film which makes a genuine point, or is just plain funny or entertaining, then they’re going to look a lot like they’re attacking free speech if they try to shut you down - and that is something they won’t want to do. So, you’ve got good odds if you’ve got a good film.

Thirdly, your film may well be legal anyway. Whether or not you’re abiding by these Rules, copyright infringement isn’t an open-and-shut case when it comes to Machinima, particularly in the US. Satire and parody are heavily protected under US law. Even if you can’t characterise your film as either of those, you can still argue that you are making a transformative use of the material in turning it into a film - which covers you under Fair Use.

Now, as lawyers say, “Fair Use is a defence, not an exemption”. If you actually end up in court, it’s going to be sticky and unpleasant. But the point here is that it’s going to be sticky and unpleasant for both sides!

The Rules are like an ablative shield against legal attack. You don’t “use” them when making your film, and if you accidentally or deliberately put yourself outside them, you don’t lose any of your other rights - the same rights that were the only thing protecting you before the Rules came out. All they do is carve out a big area in which Microsoft can’t claim you’re infringing at all - they actually limit MS and don’t limit you.

The 99% of you who aren’t working on “Red vs Blue: The Al-Quaida Propaganda Edition” should just keep going. If you can make easy changes to get within these rules, great - because then you’re Definitely Not Illegal. If you’re planning something absolutely massive, then you might want to get in touch with MS to check that you’re OK (or you could call me, and I’ll check with MS on your behalf).

But under most circumstances, even if the first six words of your new film are more offensive than an entire season of South Park, then these Rules shouldn’t stop you.

The Summary

The biggest problem that Machinima groups like AMAS have always had is that games developers don’t think Machinima is important enough to waste executive time on. Microsoft has made a huge step here in actually considering Machinima. That alone is fantastic for us. Where one major company has led, others are much more likely to follow. And that goes double if these rules are followed by a boom in MS-based Machinima creation.

At the same time, these rules aren’t perfect. So don’t stay silent about that. Write to MS. Comment on blogs. Hell, make Machinima films about the problem and how to fix it. Be polite, be reasonable, but speak up.

We can, and should, also now challenge other developers to beat the freedom of this contract. Come on, Epic, Blizzard, all you guys. You can make a better Machinima agreement than this one, right? If it was worth it for MS, it’s gotta be worth it for you too.

Some Legal Bollocks

I’m not a lawyer. I don’t play one on TV. This column should not be construed as legal advice. If you have any doubts, TALK TO A LAWYER. Really. They’re not that scary, and many of them - like the guys at the EFF, for example - even offer basic advice for free.

Also, this column is my opinion and mine alone. It doesn’t represent the opinion of the Electronic Frontier Foundation, Wiley Publishing, Johnnie Ingram, Fred von Lohmann or anyone other than me.

Thanks to

Huge thanks to the various people at Microsoft (whom I’m not specifically naming at their request, but they know who they are, and they’re very cool for doing this), and equally huge thanks to Fred von Lohmann, without whose connections and calming influence this entire deal would have gone down very differently.

Questions?

If you want more clarifications, ask, and I shall answer. I already have a few questions in based on yesterday’s comments, and I’ll hopefully have answers for you over the weekend.