Postcard From Austin: 'Infringe This! Why the EFF is Helping in Marvel v. NCsoft'

Author: by Andrew S. Walsh, Austin

This Austin Games Conference session dealt with the previously Gamasutra-covered Marvel v. NCSoft legal case, partly resolved but still sending shockwaves through the games industry. The controversy, which occurred after Marvel sued NCSoft and Cryptic Studios in November of last year, claiming that the City of Heroes PC MMO allows players to imitate comic book characters owned by Marvel, has implications that stretch out beyond gaming, across the whole of the Internet and even into the offline world. It’s got a lot of people very nervous. But why? As I went into EFF’s presentation at the Austin Games Conference, I wondered what the big deal was? How could this case have so much of an effect? Why should anyone care about this case? While I was thinking this, the EFF (Electronic Frontier Foundation) have pulled on their tights, donned a cape and jumped in, not only to defend truth, justice and freedom of speech, but also to inform the industry and people like me why we should care about Marvel v. NCSoft. Founded in 1990 to help Steve Jackson fight the government when the secret service wanted to take files from his company, EFF sued the Secret Service and worked to ensure the enforcing of a specific search warrant for electronic information. This first case demonstrated EFF’s central tenet – they try to ensure that rights people exercise in the real world aren’t removed from them online in the digital world. As Wendy Seltzer, the EFF's speaker at the Austin Games Conference, stated, “We want to ensure the Bill of Rights isn’t ignored just because [that right] is online”. In a world full of fast-click EULAs, where a shower of small print legal paper falls out of our game boxes and Terms of Agreement must be consented to to utilize something we’ve already paid for, it’s very easy to see why the EFF is worried. People often don’t seem to fully understand what they are agreeing to, while the companies that supply them are becoming increasingly aggressive in limiting their customer’s rights in order to protect their own property and profits. Protecting property and profits is where Marvel’s action arises. When NCSoft released City of Heroes – an MMO title that allows you to create your own superhero and defend Paragon City – Marvel took fright. They claimed that people were going online and creating their own versions of Marvel’s famous characters, thus infringing Marvel’s copyright. However, tracking down and prosecuting individual players would not only be costly, but a PR disaster. It would mean the company suing the very people who bought their comic books. Rather than infuriate their customers, Marvel decided to claim secondary liability and sue NC Soft for allowing people to use these copyrighted images. Straightforward so far? As Marvel sees it, NCSoft could be seen to be stealing Marvel’s property and damaging Marvel’s business. Why should a player buy any future game Marvel releases, when they can already play their favorite characters in a rival game now? And what happens to the massive licensing market if anyone can use images and produce games using other peoples’ property? NCSoft must be the supervillain here, right? The twist in this tale comes when looking at the rules that govern the Internet. A safeharbor agreement protects companies that supply services online. Aware that anyone supplying online activities could unwittingly become party to someone else infringing copyright, blaspheming, or posting generally unsavory material, the government granted that an online provider wouldn’t be liable as long as they took reasonable action to remedy any such legal infringement as soon as they were notified about it. Marvel didn’t notify NCSoft. They simply slapped a lawsuit on them, ignoring the safeharbor agreement, according to the EFF. Undermining this principal protection measure for online service providers could have huge implications for anyone wanting to use Internet services in the future. It could lead to companies clamping down on any behavior they fear might leave them open to a lawsuit. Such a narrowing of public rights is at the heart of EFF’s worries about this case. Possible future changes aside, this case already looks to limit a right in the online world that people have in the real world. At home someone can draw a picture of a superhero. They can grab a pair of pants and a sheet and run down the street dressed like a Marvel superhero. As this article is being written, the streets of Austin are teeming with Halloween costumed partygoers, who are having fun safe in the knowledge that Marvel won’t track them down and sue them. So, if people are allowed to behave like this in the real world, why should the online world be different? Shouldn’t the public have a right to express themselves? Remember, this isn’t a case where NCSoft is being sued for naughtily producing a game full of Marvel’s characters. The company is being sued for what the public has chosen to do with the game. So, why should we care about Marvel v. NCSoft? Well, because, as Seltzer pointed out in her talk, we don’t know where this will end. Companies should have a right to defend their property, but the public should also have a right to enjoy themselves and to actively explore their own creative urges. The more limits that are placed upon these rights, the less freedom the public has. While this is about capes and superpowers, many people might think it doesn’t concern them. But this nibbling away at rights will stretch beyond this single case and could even begin to change the way that our real day-to-day rights are governed. Legally, the Internet is a place as real as the offline world, and laws that are passed to govern the virtual world can spill over into the real world. This case is important, because the fight for justice in the City of Heroes could be the fight for justice across the whole world… virtual or not. [Andrew S. Walsh is a UK-based scriptwriter with extensive experience in writing for video games, television, and film. Gamasutra will reprint this news story with additional photos in the near future as part of an Austin Games Conference feature wrap-up.]