I’ve now had a chance to talk to Corynne McSherry at the Electronic Frontier Foundation about the recent WoWGlider judgement, and my fears that it could impact on Machinima creators appear to mostly be unfounded.
(Obviously, this is US-centric. Creators in the rest of the world, like myself, aren’t directly affected by this.)
My biggest worry was that, by making breaches of the EULA into a copyright infringement issue, US Machinima would lose its potential Transformative Use defence, as discussed in Machinima for Dummies the book.
Corynne responded that “in many cases of fair use (like most Machinima) I think you could still make an argument that because the use was fair, it was noninfringing (though it might still be a breach of contract). “. She did offer a note of caution that it was possible to sign away Fair Use rights in the EULA, so it’s still worth checking them for mention of “Transformative Use” or “Fair Use”.
As to the specific question of altering games in memory, which is an uncommon but not unheardof technique in Machinima, she said that any judgement would be very situational. “Remember–this is one ruling by one court, about one alleged breach of one EULA. A different court might come to a different conclusion in a different context. “
Whilst it’s possible that the court would follow the same reasoning as the court in the WoWGlider case, it’s not certain - for starters, it’d probably be harder to prove damage or commercial intent in most Machinima cases (that’s my analysis, not Corynne’s).
Finally, the major downside of the case is the possibility that EULA breaches can be treated as copyright infringement, with significantly higher potential penalties arising from that. Corynne did say that was a risk for Machinima artists.
However, as we note in MfD the book, most game EULAs have the clause that the losing party in any judgement will be liable for the winning party’s legal costs - that’s already enough to make going to trial non-viable for most Machinima creators.
Finally, the good news is that usage agreements for Machinima like Microsoft’s Game Content Usage Rules or Blizzard’s Machinima rules would be taken into account if a company decided to sue for EULA breach. Corynne says “an external statement does help–a game maker will be hard-pressed to go after a Machinima maker if it has given permission for the use. “
Of course, as she notes, some creators won’t want to stay within the guidelines, or will want to use games that don’t have published guidelines yet. We already don’t really recommend either of those routes if you are putting significant effort into your work, unless you trust both game developer and publisher (and, as we found out with BloodSpell, any future publisher too). By making work that is explicitly in violation of the EULA, as most Machinima is, and arguably a derivative work under copyright too, you’re either exposing yourself to the possibility of having to defend your right to make your work available in court, with all the associated costs, or you’re handing over total control of your work to the games company. It’s a useful route for some projects, but there are major risks attached, and it’s prudent to be aware of them.
Overall, whilst this judgement is a step back for copyright and ownership law in the US as a whole, the barrel of this one doesn’t seem to be pointed at Machinima creators. Hurrah.