The Vanderbilt Journal of Entertainment and Technology Law is pleased to present three more abstracts from its most recent issue, which was released in May of 2009. The first three abstracts can be found here. Below are the summaries for Patenting Games: Baker v. Selden Revisited, by Shubha Ghosh; Law and the Emotive Avatar, by Llewellyn Joseph Gibbons; and Mass Culture and the Culture of the Masses: A Manifesto for User-Generated Rights, by Debora Halbert.

  • Patenting Games: Baker v. Selden Revisited

Patents are meant to protect the fundamental aspects of an invention. But patents, particularly patents on processes or methods, can cover non-functional, or expressive, activity. This Article explores this possibility in the context of patents covering games of various types. Patents on games can cover the actual play or use of a game with consequent implications for user-generated content produced by playing games. This Article documents this possibilitiy in the area of fantasy sports and video games and proposes two solutions. The first solution relies on the Federal Circuit’s recent decision in In re Bilski, which restricts the patenting of processes that produce social transformations, and explores the implications of this case for patents on games. The second solution draws on the Supreme Court’s decision in Baker v. Selden, a precedent associated with restrictions on copyrightable subject matter that purported to establish a boundary between patent and copyright. Consequently, the precedent has implications for patentable subject matter as well as for copyrightable subject matter. The Article concludes that the precedent of Baker v. Selden excludes functional subject matter from copyright protection and non-functional, or expressive, subject matter from patent protection. Therefore, patents on processes should not extend to the non-functional uses of the invention, such as the actual playing of a game by users of a patented game.

— Article Author: Shubha Ghosh

  • Law and the Emotive Avatar

The barriers between fantasy and reality in virtual worlds are becoming increasingly permeable. There is a rhetorical need among some legal scholars to distinguish between a law of virtual worlds or concepts of net-sovereignty and the so-called real world. These metaphorical distinctions are unhelpful and confuse the issues as to exactly what is being regulated. A more productive line of analysis is to consider the avatar as an extension of the individual or an agent of the individual in virtual spaces and then to shift the focus of analysis away from the avatar and back to the individual because it is the potential negative effects that virtual behavior may have on real-world individuals that the law seeks to regulate.

This leads to a question of when virtual behavior should be punished. This Article examines some conceptions of computer-mediated communication (CMC) or non-verbal communication (NVC) to suggest that this area of research is useful in understanding the nature of the relationship between the individual and the avatar. Together CMC and NVC are useful tools to understand a human-avatar relationship. An evaluation of the quality of this human-avatar relationship is essential when determining whether virtual harm done to an avatar has a sufficient nexus with the real-world individual so that the law should intervene either criminally or civilly.

This Article then discusses the personhood rational to protect property rights and the tort of negligent infliction of emotional distress as two possible legal theories that are dependent on the quality of the relationship and as two real-world legal theories that are potentially applicable in virtual worlds depending on the nexus between the individual and the avatar. This inevitably leads to the question of when a virtual injury to the emotive avatar in a virtual world should be legally sanctioned. This Article suggests that the law of the real world should be modeled on the existing body of law governing real-world games as one possible model. Private law-making, such as terms of service agreements, end user licenses, and private agreements among players, either explicitly stated or expressed as social norms, should provide the law governing the relationship among avatars and consent by their human principles for the injuries received while immersed in a virtual world. These private agreements may also be used to criminalize extreme behavior in virtual spaces by novel uses of existing laws such as the Computer Fraud and Abuse Act. Consequently, there is already a relatively complete and evolving body of law governing virtual world conduct and its effects in the real world.

— Article Author: Llewellyn Joseph Gibbons

  • Mass Culture and the Culture of the Masses: A Manifesto for User-Generated Rights

User-generated content is a term used to describe the division between culture produced as a commodity for consumption and the culture that is generated by people acting as creative beings without any market incentive. While under current copyright law all types of creativity are protected, the laws of copyright exist primarily to protect commercial forms of expression, not the non-commercial ones that form the foundation of user-generated content. The disconnect between what current copyright law protects and how most people create generates tensions that must be addressed. This Article presents an argument for broader protection of all creative work, including creative work built upon the work of others. It recognizes that authors exist outside the commercial sphere of the culture industry and that works of authorship, broadly conceived, are built upon the works of others. It is time to demand change to our copyright policy–change that facilitates a type of self-expression that has been mislabeled “user-generated content.”

Part I of this Article sketches the evolution of the term “user-generated content” in order to identify the policies inherent in the definition and how technology has changed our relationship with entertainment and information. Part II deconstructs the assumptions behind the term “user-generated content” in order to clarify its political economy. Part III maps the problem of “user-generated content” by focusing on the example of YouTube in order to highlight the flow of ideas that are inherent in culture, and argues that the problem is not the user, but the over-commodification of culture. Part IV offers several recommendations for policy changes, and Part V concludes by arguing that it is time to strike a new balance between commercial interests and the public at large.

— Article Author: Debora Halbert

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