Research For Online Game Intellectual Property Protection

Published Date: 02 Nov 2017

Online game, with the advance of two-way exchange of Internet information, high speed and no space restricted, uses the integration of multimedia technology, hypertext technology and communication technology to improve the interaction, simulation, and competition of the game. Let the online game becoming a synonymous with fashion of the game industry. On one hand, it makes the exchange of information dissemination to get rid of the tangible material carrier bound, on the other hand, it makes the group of gaming users has been a huge increase. Online game becomes one of the most important one in entertainment industry to keep pace with films, televisions, music and so on.

According to the report of the performance of 2012 global online game industry by Newzoo, until the end of 2012, there totally has 400 million online game users in Europe and America, and including the 400 million users, 220 million people chose the free online game mode, which means that there are 180 million paid subscribers. European online games market income increased by 28% compared to 2011, the annual revenue of online games industry in Europe and the United States reached 6.5 billion dollar. Chinese online game industry development time is short, but to become the world’s largest online games country with a huge population base, in 2012, the number of online game players in China exceeded 119 million, and revenue reached 3.8 billion dollar. Game industry upgraded to the online mode caused a rapid development of the whole industry. But also led to a lot of stand-alone era unforeseen legal and social problems. The violence and pornography and even the mental control content in the online games entice juvenile delinquency. And the powerful attraction of the online games makes many people addict to the playing, which may cause unemployment, truancy, dropping out of school or even death from overwork, suicide and many other problems. More and more due to the design of todays online games getting better and better, and the authenticity of the pictures and sounds effects increasingly higher, so that many people cannot distinguish between the virtual and the real world, escape from the reality, make interpersonal worse, or even cause deviant behavior. The online games industry, the lack of clear legal norms directly applicable the root causes of the problems mentioned above.

Background of online games

Definition

Online games so far do not have a clearly defined, simple to understand, online games are the computer games to run a real-time interaction between the Internet and gamers. This article refers to the online games, which are under the conditions of the open to whole society network environment, are large-scale multimedia multiplayer online games, the players of online games are not constrained by the city borders and even by the national borders.

Operating principle

The main hardware that online games needed for operation are, servers, switches, firewalls and other network equipment, the Internet data center (IDC), the backbone network transmission and the user’s personal computer with Internet access devices. The server is the computer, which the performance and functionality are very strong, and is generally provided by the online games operator, network equipment such as switches and firewall equipment are necessary for servers to connected to the Internet. IDC is the physical environment that the servers and network equipment placed in. and the backbone network transmission is the data transmission channel that online games needed. The user PC and Internet devices are the hardware conditions that allow the users play the online games.

The main software that online games needed for operation is server-side programs and client programs. The server-side programs controlled by the operators, running on the servers. The users control the client programs, which are running on the users’ PC. The two parts of the programs are the executable target programs, which source code compiled. Operators installed the server-side programs on the server, and server hosted in the telecommunications business. The operators promote client programs to the players, the players got the client programs and installed it on their own PC, and it can achieve data transfer communication between the client programs and server-side programs through the Internet environment. Because of the powerful computing capabilities of the servers, the roles dialogue and interactive in the game can be achieved, and also the Internet connected around the world makes the online games attracted millions of players, participate and fierce competition.

Related concepts

Online participants to be known as player, the players use online games, they must first pay a fee, and there are a variety of online payment methods. But in conclusion the payment methods are all using the money to buy time. No matter the point card mode or monthly subscription mode, all these modes are recharge to buy the online time. The basic principles of the online games are same, but the online role-playing games (RPG) have more game concepts such as virtual property, and so on, these particular concepts make the online RPGs more popular than the other types of online games. Usually, players manipulate the game set roles to complete certain tasks according to the rules of the games. It is called "leveling". With the game time and game skill improved, the level of the roles can improve, this level for the players, not only just the roles ability in the game, but also the players’ reality honor. Higher-level roles can complete more difficult tasks, generally, the online RPGs can be divided into two gaming styles, one is called people vs. environment (PVE), and another is called people vs. people. PVE means people collaborate to complete difficult tasks, PVP is a battle between two or more players’ roles, at the same time, during the game, roles can acquire virtual world items, such as gold coins, weapons and equipment, medicine and so on. These items and the corresponding role level currently are known as "virtual property". Online games industry chain extension, it related to the game developers, game operators, equipment suppliers, software stores, telecommunication companies and distributors. Even a new group that work to help people leveling and earn money. Online games, online financial and online educations are called three most profitable areas in network industry.

In the course of the game, some people made software, which called "plug-in" to faster leveling or overcome the difficulty of the game, the software similar to a virus or Trojan, to plug-in the server-side program to speed up leveling and reduce the difficulty. Some other website without authorization of the copyright owner, low-cost or free of charge to open the online games to the society, these website’s servers are referred to as "private server" [1] , both of these are the major form of infringement of online games.

The Intellectual property infringement of online games

Online games are computer software works from the technology, but from the sensory, online games are audio-visual works. From the design of online games, the design of online games is more complex than the ordinary computer programs, no matter the script, the music or the role modeling. Online games combine the music, images, texts and other forms of artistic expression. So the infringement formal is quite different to the general software.

Piracy

As the views of internationally recognized, piracy is known as the unauthorized copying of the software. According to the different occasions and the ways of piracy violations, software piracy can be divided into 7 parts, CD-ROM piracy, hard drive preloaded piracy, internet piracy, software counterfeiting, the end-user piracy, corporate piracy and piracy between different individuals, which includes corporate between the individual and the enterprise and the corporate between enterprises, the piracy in the development and preparation of software. [2] Due to the special nature of the online games, the running of online games are real-time, it determines the online games characteristics, players can only use the client software, only when the players in the game, they come into contact with the server-side programs, that is just a personal information transmission, they can not directly expose to the source codes of online games. And the online client programs are generally placed on the websites for free downloading. So the piracy of online games firstly showed as, to develop similar or same features game software, the piracy between the enterprises or between the individuals and enterprises in developing and programming the software. Secondly showed as, the piracy of the game scenes, music, stories and scripts. For example, the piracy scene to online games, online game scenes are composed of numerous pictures, and the program calls the pictures, there are a lot of the same scene in different online games, such as the houses, forests, shops, etc. some online game companies use the hacker to crack the target online game enterprises gallery data base, and applied to the self-developed online games, in order to save resources, shorten the game development cycle. The piracy of online game scenes is now already commonplace, players play different online games always feel of seeing the similar scenes.

In addition, the online games role image piracy is also a problem; a typical case is the case of Sunny Digital in China, Sunny Digital Inc. designed a role called "Sunny pig", because the image of the role is lovely, so it became lots of players’ favorite, after Tencent QQ, which is chat software similar with Skype, opened a custom image function to allow the user upload the image they like as head portrait, many websites provided a free downloading link of "Sunny pig", which action did not get the Sunny Digital Inc. authorization. It caused the image infringement.

With the continuous development of technology, the multimedia and interactive of online games are enhanced, at the same time, as the characters of online games portrayed more unique and more complex, more effective protection should be given to the image of the online games roles, in order to encourage the emergence and development of the creative games.

Private server

The private servers infringement of online games has always been the most direct infringement. The online game industry’s most influential private server case is about the "Legend Of Mir" (LOM), private servers are available for the popular game Legend Of Mir that is hugely popular in China and South Korea, and is considered to be the largest MMORPG at that time in the world. The Guinness Book of Records for having 750,000 subscribers online simultaneously has certified it. [3] In 2006, Chinese Putuo district people’s court hearing of the China’s first private server infringement case, Mr. Yo and Mr. Ye exploiting secretly set up the private server of "LOM" without the authorization from the copyright owner, and profit from the amount of up to 500,000 Yuan, final judgment Mr. Yo and Mr. Ye 3 years in prison.

Another typical recent case of private server is Nexon Awarded in private server lawsuit; Nexon America was recently awarded $3.6 million in damages from the creators of UMaple, a MapleStory private server. The judgment was issued in the U.S. District Court of California on the 3rd of April 2012. UMaple, a private server with an alleged 17,938 users, and its creator Gurvinder Kumar were fined $200 per act of circumvention (the statutory damages minimum) set out by the DMCA (Digital Millennium Copyright Act) 17 USC 1203. [4] 

The private server can be definition as without be authorized by the online games copyright holder or its authorized operators, the behavior of the infringer secretly set up online game server, through illegally obtain the target online game’s server-side program or the source codes of the game. So the private server essentially an infringement of piracy of the online game, the behaviors are copy or partial copy the copyright holder’s software codes, these violations of the right to use the software by the copyright holders, license rights and the right to get paid. The significantly characteristics of this behavior is, without permission to reproduce and distribute the software, which is erected through reverse engineering or source codes leaked. [5] Although the private server has many conditions to attract players, but it broke the balance of the game world, it is not conductive to the subsequent development of the game. It drifted away from the supervision of the government departments, often spread harmful information, and even some individuals or enterprises, low price to attract internet users to unauthorized operate gaming activities, these activities may cause greater harm to society. It may not only damage the interests of game operators or the interests of the players, but also hurt the entire gaming industry.

The private server’s providers violated the copyright of the online game developers, which includes the reproduction rights, distribution rights; modify rights, translation rights, information dissemination rights, etc. And the private server’s operators violated the rights to exclusive use of the online games operators. China as the world’s most serious infringement of private server, according to the Copyright Law and Computer Software Protection Regulations, the providers and operators of private server may bear civil liability, when they made the infringement of target software, they may bear administrative responsibility, when they harmed the public interests, and they may bear criminal liability, when they had infringement of penal law. [6] 

Plug-in

The definition of plug-in has wide variety, so there has no uniform conclusion, and not all plug-in are infringement. The plug-in referred to herein is the small software located outside the main program of the online games, directly act on online games’ main program, and did the changing, limiting, increasing of the game features. It’s a cheating program to achieve a particular purpose to modify the game system or spoof the server.

The producers produced by using the methods of reverse engineering, compiler, decoding, modify the game using proprietary communication protocols and modified or locked the data in dynamic random access memory (RAM) to change the normal running of the online games. Specifically, there are three procedures.

1. Modify program used to modify the parameter settings in the games.

2.cheating program used to increase the game features.

3.sports program used to simulate the user’s keyboard and mouse operation.

The most typical case is MDY Indus. LLC v. Blizzard Entm't, Inc. MDY Industries, LLC v. Blizzard Entertainment, Inc. and Vivendi Games, Inc., No. 05-2555, 2008 U.S. Dist. LEXIS 53988, 2008 WL 2757357 (D. Ariz. Jul. 14, 2008), is a lawsuit filed in the U.S. District Court for the District of Arizona. Blizzard Entertainment created and operates a popular online world game known as World of Warcraft (WoW). MDY created a software bot called "Glider" to play WoW for its users. Thus, Glider users were able to advance their WoW characters unattended. [7] MDY was found liable under theories of copyright and tort law for selling software that contributed to the breach of Blizzard's End User License Agreement (EULA) and Terms of Use (TOU) governing the World of Warcraft software. [8] This case began in 2007, after repeated appeals, since now, had no definite conclusions.

The plug-in is very destructive, it destroys the balance of the game, resulting in unfair competition between players, affect the players’ interesting in the game, and shorten the game cycle, and may brought to the user’s computer virus or Trojan.

There are three kinds of plug-in infringement.

Analysis of the game client program or data, access to the game encryption algorithm or other data processing logic, copy or modify the data into its own plug-in software. This involves the rights of reproduction and the rights of amend to online games.

Analysis of the game client program or data, as the game is running, modify the client program data in memory, so that the plug-in software involves the rights of amend to online games.

Directly copy the extract data from the game program for their own use, which involves the rights of reproduction to online games.

The plug-in developers may also infringe the penal law, it may relate to the crime of destruction of computer information systems and the crime of illegal business.

International Conventions

WIPO "Model provisions on the protection of computer software"

In 1987, WIPO published the "Model provisions on the protection of computer software" as national software protection legislation. It becomes a proposal for countries to revise their copyright laws or the reference use of development of new computer software protection Act. Its main content is displayed on the appendix A.

This set of model clauses related to the characteristics of patent law, copyright law, unfair competition law and trade secret law. Online games as computer software, can also been applied under international protection of model provisions on the protection of computer software.

WTO protection of online games

Involved in the protection of intellectual property rights in the WTO rules on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs). As the Article 10.1 of TRIPs shown, "Article 10 Computer Programs and Compilations of Data, Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)." [9] 

Also the article 4 of WIPO copyright Treaty (WCT) shown "Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention [10] . Such protection applies to computer programs; whatever may be the mode or form of their expression." [11] 

Accordingly, Berne Convention can protect both online games’ source codes or object codes as the literal. So TRIPs and WCT can also apply to online games.

Present Situation of Online Games Protection

Online games protection in America

The USA is the world’s largest online games development country. In 1980, the US promulgated the "Stevenson Act" for technology transfer, to announce the copyright laws can protect the computer and software. In late 1997, Clinton signed the " prohibit electronic piracy Act", to identify the illegal action of online copy unauthorized software and other digital files, and offenders will be fine of 250000 dollars and 5 years imprisonment. In the bilateral sphere, the US has developed the "Special 301" of the "1988 Trade Act", authorizes the US trade representative to sanction the countries that who reject to protect the intellectual property rights in the US. Thus the "Special 301" becomes the number one weapon to protect US’s intellectual property rights in bilateral trade. In the multilateral sphere, TRIPs provides that the software shall be protected, as literary works under the Berne Convention 1971 by the parties, the protection period shall not less than 50 years.

US scope of software protection is very board. "A set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." [12] The typical 1983 Apple Computer, Inc. V. Franklin Computer Corp case, clear the range of software protection. In 1982, Apple found Franklin sold the ACE100 computer system program, in the program, 70 instructions are similar with the Apple’s program, so Apple is in accordance with the Copyright Act, Apple appealed to the Federal Court of the Eastern District of Pennsylvania, accused Franklin infringement. The District Court found that the Copyright law couldn’t protect the system program, object codes, and ROM, Apple lost the case. Apple continued to appeal to United States Court of Appeals for the Third Circuit, the Appeals Court decision in favor of Apple, Franklin Computer Corp. permanently banned for violations, and paid 2.5 million dollar for Apple. During this case, Appeals Court expressed three questions,

Copyright law should protect the program, which is expressed by object codes. [13] 

Copyright law should protect the program, which is fixed in the memory (ROM).

Copyright law should protect the system program as well as application program.

According to the Article 302 in Chapter 3 in US copyright law, the duration of the copyright generally endures for a term consisting of the life of the author and 70 years after the author's death. In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation. [14] 

There have some cases to further understanding of the relevant legislation in the US.

Midway Mfg. Co., v. Dirkschneider et al. 543 F. Supp 466 (D. Neb. 1981)

In one of the earliest decisions in a video game infringement case, in this case, the defendant games "Galactic Invaders" and "Kamikaze III"， "Mighty Mouth", and "Rally-X" constituted infringement to the plaintiff games "Galaxian", "Pac-Man" and "Rally-X". After the court certificate by comparison, there has the "substantially the same" between the infringing games and plaintiff games. For example, the scene with the aliens come to the ship in "Galactic Invaders" game, and the scene with the aliens come to the enemy ships in "Galaxian" game, the aliens wings extended upward to a fixed position and motion characteristics are the same.

ATARI, INC. v. AMUSEMENT WORLD, INC., 547 F.Supp. 222 (D. Md. Nov. 27, 1981).

In this case, Atari Inc. sued the defendant’s game "Meteors" causing the infringement to the plaintiff game "Asteroids"; both of the two games are about the asteroids. The court listed 22 same designs in two games, during determining the scope of protection of the plaintiff’s game; the court considered that the similarities of the two games are "inevitable". The inevitable similarity doesn’t constitute infringement. This is the first time the US court use the "ideology-expression" dichotomy to analysis the principle of substantially similar. According to the" ideology- expression" dichotomy, a large number of similarity between two games doesn’t means infringement, we must determine whether the expressions are the basic idea of any similar games inevitably.

Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)

This case is a very important case about the games’ copyright protection. Plaintiff game "Pac-Man", defendant game "K.C.Munchkin", they are both the maze game. The first instance in District Court judgment of infringement was not established. But the second instance in Seventh Circuit Appeals Court overturned the first instance to decide the infringement was established. The Appeals Court hold that, firstly, the letter "list of significant deference points between two games", which was adopted by the District Court, not enough to ignore the significant similarity between two games. Secondly, for the average players, the slight difference in the games details is insufficient attention. Thirdly, the focus of violations is the similarity between the protected expressions, instead of the operation methods. Lastly, the history of the development of the game "K.C.Munchkin" also provided evidence of similarity of the two games. In this case the court made a breakthrough, raised the "substantially similar" can prove "copy" exists. And the proof of "substantially similar" should take "ordinary observer test".

Online games industry in US is relatively developed. The protection range of software is broad and flexible; the US applied the "ideology-expression" dichotomy in actual game cases, and also in the case of Atari, Inc. v. North American Philips Consumer Electronics Corp., made an attempt of "substantially similar test". It worth all countries learns for the software legislation.

Online game protection in Japan

Japan, as the world’s most developed country for game industry, the game software users are widely distributed at all levels of society, although the online game industry is not more developed than US, also among the highest in the world. Special provisions do not exist for the game software in Japan, but Japanese current copyright law and civil law and some other jurisprudence to resole legal disputes about the game software to protect the rights and interests of the legitimate.

Japanese copyright law divided the computer programs and related date into different types of work to be protected. The Japanese copyright law has special provisions to show the copyright law can protect the game as the computer program, at the same time, according to the case law, the Japanese court considered the electronic games may meet the elements of the film works, which,

Produce a movie-like effect, such as visual or auditory effect (performance method elements).

Can be fixed on an object (a form of elements)

The creative expression of thoughts or feelings belongs to the field of literature and art. (Content elements).

So some cases do the protection of electronic games as the film works. In fact, now in Japan, most of the game infringement litigation trial judged the games as the film works. Here is a very typical case, K.K.Namco vs. Suishin Kogyo K.K., Tokyo District Court, 28 September 1984. This is the first case of whether video games can be protected as a "film-like works". In this case, the defendant accused and engaged the amusement game consoles in a coffee shop. A pirated game of the plaintiff’s "Pac-Man" game was installed in the game console, this caused infringement. The plaintiff claimed the game "Pac-Man" is a "film-like works", the defendant violated the plaintiff’s right of projection, the results of the court sentence the defendant to infringement, and also considered the video games can be attributed to the "film-like works".

The consideration of the Japanese law on protection of online games usually in two aspects:

Firstly, the game itself as the works can be discussed from the point of view of the copyright law and the personal rights of the copyright holders. When the violation occurred, the obligee protected his own interests by driving his copyright. The creators or the creative companies of the online games have the personal rights and property rights. The personal rights include the rights of publication, authorship and identity rights to maintain. The property rights include the rights of reproduction, release, public dissemination, transfer, rental, translation and adaptation. Especially, the rights of public dissemination, which is described in the Paragraph 1, Article 23 of the Japanese copyright Act. The public dissemination rights identified the authors have the exclusive rights for public dissemination, which involved a total of 3 sub-rights, the right of communication to the public, the right of automatic communication to the public, and the right of communication possibility. Online games are in the network environment, so it’s difficult to grasp when and where the online games information from or to, so the 3 sub-rights are aimed to different stages of the dissemination of the information, to clear the propagation path of the information, and to improve the protection of information dissemination in the network.

Secondly, the court must focus on the use of online games. Because the online games can only be used on the Internet environment, so on this point, it’s a good way to discuss the infringement of the relationship between the parties and their responsibility. Based on this, in addition to the provisions related to Internet in copyright Act. As well as the "Network service providers Limitation of Liability Act" and "Unfair Internet Access Prohibition Act." (UIAPA). Especially according to the UIAPA, Japanese polices impeached many events of online gamers steal other person’s ID and password for Internet access by improper means and the events of thieving, stealing and selling virtual property owned by others in the games.

Another typical case is in May 2001, Nintendo Co. Ltd, sue the Enterbrain Inc. and Tirnanog Co. in Tokyo District Court in Japan. Nintendo Co. Ltd. has filed a lawsuit against distributor Enterbrain Inc. and Tirnanog Co. for infringing upon its "Fire Emblem" game license and copyrights. The firm is seeking $2 million in damages. Nintendo alleges that designer Shozo Kaga, president of Tirnanog, copied the appearances and background areas from the "Fire Emblem" franchise for the company's recently released PlayStation title, "Tear Ring Saga". Interestingly, "Tear Ring Saga" originally appeared in Japanese games magazines using the name "Emblem Saga", and more than one IGN editor initially believed it to be an extension of the "Fire Emblem" series. "Tear Ring Saga" has sold more than 345,000 copies since its release. [15] 

Japan, as the major powers of the game industry, has its progress of online games intellectual property protection. The Japanese Copyright Act divided the computer programs and related data into different types of work to be protected. Game software can be treated as computer program works, however, if the online games meet the elements of the film works, the online games can also be protected as film works. This kind of dimidiation has more pertinence than the US simply treat the online game as computer software. Because, online games are software works from computer technology, but from the senses, online games can also be "audiovisual" works.

Conclusion

Online games have become the synonymous with fashion of the computer game industry; it may lead the trend of computer games development. The legal development lags behind of social progress brought huge challenges to the legal profession. In this paper, the main forms of online games intellectual property infringement is understood according to analysis of online games operating principle. Then followed by the international legislation to analysis the current situation and problems of online games intellectual property protection. The law is not static, the legal profession has the responsibility to face to the challenge, overcome the limitations of law, improve the national legal system, and lead a variety of other industries to promote the development of the world economy and cultural.

Appendix A:

Model provisions on the protection of computer software main contents include:

Specified the concept of the computer software. Its range includes computer programs, procedures, manuals and other documents.

Protection of elements. Computer software as the protected objects of provisions of the model law, must have creative objectively, "the outcome of the creator’s own intellectual labor", rather than plagiarism or copy someone else’s software.

Protection of principal. The main body to protection is both legal persons as well as natural persons. On the principle of the rights to belong to the creators of computer software. Several people Co-authored, rights are vested in their all.

Exclusive rights of software proprietor. Do not allow others to freely copy, use, store in the computer program or rental and sale.

Term of protection. The term is 25 years from the first use of the software or 25 years from the completion of the software. [16]