Play Machinima Law Conference Machinima in Game Preservation: A Fair Use Activity? Kari Kraus

Play Machinima Law Conference

Machinima in Game Preservation: A Fair Use Activity?

Kari Kraus

Frederick Kilgour, Evolution of the Book, 1998: Technology and Punctuated Equilibrium

Might DMCA or licensing restrictions (un)intentionally create an obstacle for preservation and archiving activities? If so, what are

possible solutions?

• Bring various stakeholders together to share perspectives on Machinima and fair use, identify points of agreement and disagreement, and arrive at a set of best practices– Proof of Concept: Play Machinima Law Conference

• Malcolm Gladwell: The Tipping Point– Connectors: people with vast social networks that cut across many different

constituencies and communities of practice• Machinima and fair use exemptions as boundary objects and boundary

negotiating artifacts– Boundary objects “serve to coordinate the perspectives of various

constituencies for some purpose” (Wenger 1998) – “Boundary negotiating artifacts are used to record, organize, explore and

share ideas; introduce concepts and techniques; create alliances; create a venue for the exchange of information; augment brokering activities; and create shared understanding about specific design problems” (Lee 2007)

– For discussion of virtual worlds and their “governing documents” as boundary objects, see Grimes, Jaeger, and Fleischmann, “Obfuscatocracy: A Stakeholder Analysis of Governing Documents for Virtual Worlds.”


possible solutions?

• Working with game companies and lawyers, we draft an archival exemption clause for EULAs that replicates some of the same protections afforded to libraries and archives under Section 108 of the Copyright Act.

• As discussed yesterday, IP increasingly a matter of contract law rather than copyright law

• Liblicense • Created by Yale University Library with support from the

Council on Library and Information Resources (CLIR) in 1996


possible solutions?

• Fred von Lohmann: have a debate in the courts• User assumes the role of plaintiff rather than defendant in

court of law to test and strengthen 1.) the fair use provisions of the law and 2.) copyright exemptions for libraries and archives as spelled out in Section 108 of the Copyright Act.– Proof of Concept: The EFF and Center for Internet and Society

• Shloss v. Joyce Estate• Fairey v. The Associated Press

• User assumes the role of plaintiff rather than defendant in court of law to challenge EULAs that contract away fair use rights or exemptions for libraries and archives as spelled out in Section 108 of the Copyright Act.– Proof of Concept: Bragg v. Linden (alleged that EULA was

unenforceable because arbitration clause “unconscionable”)