Is this a game to you? The under-explored legality of mods and user-generated content

By Caiti Galwey 

Photo by Matilda Wormwood from Pexels

Woman holding video game controller
[Woman holding video game controller]

The video game industry has eclipsed almost all other entertainment industries when measured by profitability and growth-rate. However, the fast-paced nature of technological developments and the sector’s popularity has resulted in a legal backlog, where the law has not been able to keep up. This is particularly visible when it comes to the realms of user-generated content and the game modification community. Individually, these areas pose challenges to the realm of video game copyright, and together, they point to the predominantly grey area of ownership in the modern age of video games.

There is a distinct lack of precedential law surrounding copyright generally in Australia, but also a particular black hole regarding video games as subject matter. This is largely because major developers primarily exist in the US, and, thus, American case law is all Australia can look to for common law precedent. 

Introduction to User-Generated Content

The video game developer typically owns the copyright in a video game. However, sandbox games such as Minecraft, and the rise of video game streaming, pose two unique but equally insurmountable questions as to where exactly the line of ownership is drawn.

User-generated content can be understood simply as anything a player creates within a video game. Continuing with the example of Minecraft, players can build anything they like, from models that can be 3D printed to a scale-accurate build of Earth. The issue of ownership is apparent in considering whether the game has become a tool or a medium in itself through which players can create their own content. If this is the case, who owns the end product? Arguably, it is still the developer. 

Similarly, when a video is taken of a player’s screen as they play a video game, or live-streamed on platforms like YouTube and Twitch, who owns that content? Is it an infringement of the user agreement? Courts have said yes, and that operators of streaming platforms need to consider the implementation of express licenses from developers to authorise the streaming of gameplay.1 Interestingly, this approach places the onus on the streaming platforms as opposed to the individual streamers. This is a shift from how platforms such as YouTube have generally placed the onus on content producers to credit appropriately and make it clear that they don’t have rights to the content. Again, the rights of ownership remain with the developer. 

The wonderful world of mods

Game Modifications (“mods”) are arguably the first step on the pathway of user-generated content that crosses a line of legality, but they remain a legal, moral and social grey area.2 Mods are when non-professionals not affiliated with developers alter or add to existing games. In many interpretations of US law, this is a direct violation of end-user license agreements and potentially constitutes copyright infringement.3 Whilst some modders circumvent copyright protection technology built into the source game, there are many instances of developers embracing the modding community and explicitly enabling custom creations. Bethesda Softworks is an example of such a developer. 

Bethesda is also a prime example of how economic and social factors may result in a “symbiotic” relationship between developers and the modding community. The availability of community-based modifications directly increases game consumption.4 Games such as Skyrim and Fallout are renowned for their modification capabilities. This has resulted in an extended tenure of relevance and profitability due to players’ abilities to modify and customise the games to alter storylines, add new quests and characters, or even make the game outrageously unplayable.5 By embracing modding communities, proprietary owners endorse the value, creativity and problem-solving benefits of modding, such as unofficial patches for in-game bugs. The popularity of certain modifications may even provide a form of market research.6 Whilst this demonstrates a cooperative relationship between players and developers, modders themselves are somewhat left out of the beneficial equation. 

Nexus Mods, a source for the distribution of original game-modification content, provides a compelling case study of why the modding community cannot be overlooked as the grey areas of video game legality are substantiated. 

Beyond authorship and ownership

Recently, Nexus has disallowed users from removing mods they have created from Nexus’ published catalogue. Whilst the move was made in good faith and was merely a reshuffle to better organise their content, it prompted widespread backlash from the modding community. The case called into question the very existence of mod ownership rights and highlighted once more the philosophical divide amongst modders themselves. 

Whilst this may not seem like a big issue, mods often contain hundreds of hours of work. Some, such as The Forgotten City, take upwards of 1700 to complete and go on to win awards. How can mods not be afforded adequate protection when their work can be so legitimised? Can some elements of a mod (such as the storyline and dialogue) be protected whilst other parts cannot? 

The solutions under current copyright law including fair use and other licensing arrangements have failed to adequately protect these works. New models of protection that have been proposed include a textual analysis of certain modifications that affords protection to mods based on the weighing of benefit and harm.7 A new category of work, a “remix”, has also been proposed as a solution that creates the right to attribute source material whilst affording modders statutory protection.8 The latter appears to be the more promising of the two. However, no concrete progress has been made in this area.

Ultimately, the sharing of mods is a holistic benefit to the gaming community, and modders need to be adequately protected for their legitimate artistic and creative efforts, and the contribution they make to the largest entertainment industry in the world.

  1. Allens, 2021
  2. Curtis, J., Oxburgh, G. and Briggs, P., 2021. Heroes and Hooligans: The Heterogeneity of Video Game Modders. Games and Culture, p.15554120211026255; Kretzschmar, M. and Stanfill, M., 2019. Mods as Lightning Rods: A Typology of Video Game Mods, Intellectual Property, and Social Benefit/Harm. Social & Legal Studies, 28(4), pp.517-536.
  3.  Kretzschmar & Stanfill, 2019.
  4.  Poretski, Zalmanson & Arazy, 2019.
  5.  Poor, 2014.
  6.  Curtis, Oxburgh & Briggs, 2021.
  7.  Kretzschmar & Stanfill, 2019.
  8.  Li, Y., 2020. The age of remix and copyright law reform. Law, Innovation and Technology, 12(1), pp.113-155.

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