Fordham Intellectual Property, Media and Entertainment Law Journal Volume 31 XXXI Number 3 Article 1 2021 Fairness, Copyright, and Video Games: Hate the Game, Not the Player Shani Shisha Harvard University, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Shani Shisha, Fairness, Copyright, and Video Games: Hate the Game, Not the Player, 31 Fordham Intell. Prop. Media & Ent. L.J. 694 (2021). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss3/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Fairness, Copyright, and Video Games: Hate the Game, Not the Player Cover Page Footnote Fellow, Harvard Law School, Project on the Foundations of Private Law; Graduate Program Fellow, Harvard Law School; S.J.D. candidate, Harvard Law School. For insightful comments and conversations that informed this piece, I thank Oren Bar-Gill, Elettra Bietti, Michael Birnhack, William Fisher, Lawrence Lessig, William McCoy, Gali Racabi, Moti Sorek, and Rebecca Tushnet. I am also grateful to participants in the Internet Law Works-in-Progress Workshop and the Annual Workshop of Israeli Intellectual Property Scholars for allowing me to workshop earlier versions. This research benefited from the support of the Project on the Foundations of Private Law at Harvard Law School. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol31/iss3/1 Fairness, Copyright, and Video Games: Hate the Game, Not the Player Shani Shisha* Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of liter- ature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has ex- plored the social norms that pervade the world’s largest content mi- crocosm—the sprawling video game community. Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture indus- tries. But despite its meteoric rise, the video game industry has pro- voked little attention from copyright scholars. This Article is the first to explore the shifting role of copyright law in the gaming commu- nity, where game developers are increasingly using a complex amal- gam of legal and nonlegal tools to regulate creative output. Based on an in-depth analysis of the extralegal norms that govern creative content in the video game industry, this Article distills a richly de- tailed account of the relationship between video game creators and consumers. It maps the intricate web of interests underpinning the relationship between game developers and consumers; identifies a rich cadre of fairness-driven social norms that permeate the gaming community; and considers the implications of these findings for * Fellow, Harvard Law School, Project on the Foundations of Private Law; Graduate Program Fellow, Harvard Law School; S.J.D. candidate, Harvard Law School. For insightful comments and conversations that informed this piece, I thank Oren Bar-Gill, Elettra Bietti, Michael Birnhack, William Fisher, Lawrence Lessig, William McCoy, Gali Racabi, Moti Sorek, and Rebecca Tushnet. I am also grateful to participants in the Internet Law Works-in-Progress Workshop and the Annual Workshop of Israeli Intellectual Property Scholars for allowing me to workshop earlier versions. This research benefited from the support of the Project on the Foundations of Private Law at Harvard Law School. 694 2021] FAIRNESS, COPYRIGHT, AND VIDEO GAMES 695 copyright law. The Article ultimately concludes that strong copy- right protection is largely (though not entirely) inessential in areas where norms of fairness drive the production of creative content. INTRODUCTION ............................................................... 695 I. MODERN-DAY VIDEO GAMES .............................. 705 A. Digital Video Games ...................................... 705 B. Video Games as a Service .............................. 708 C. Pro Gaming and Gameplay Streaming .......... 718 D. Recap .............................................................. 723 II. SOCIAL NORMS: AN ONGOING INQUIRY .............. 724 III. FAIRNESS ............................................................. 731 A. Competitive Integrity ...................................... 731 B. Wealth Sharing ............................................... 740 C. Labor .............................................................. 749 1. Misappropriation Norm ........................... 750 2. Defining Misappropriation ...................... 753 3. Enforcement ............................................ 759 4. Gameplay Streams: The Law .................. 761 5. Explaining Anti-Appropriation ............... 769 D. Taking Stock ................................................... 772 IV. POLICY IMPLICATIONS ......................................... 773 A. Revisiting Copyright Incentives ..................... 773 B. Decoding Labor ............................................. 784 CONCLUSION .................................................................... 790 INTRODUCTION The past decade has ushered in a tectonic shift in the world of mass entertainment. From music aggregators to on-demand video streaming, content providers have been wrestLing over the attention of consumers across a wide range of content services. But the inten- sifying competition in the entertainment market has done LittLe to temper the growth of the video game industry. Now a veritable globaL phenomenon, the video game market has recentLy grown to 696 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXXI:694 ecLipse the music and motion picture industries.1 In fact, video games now make up the Largest entertainment market in the world by an order of magnitude.2 The most popular video game in the world, Fortnite by Epic Games, generated roughly three biLLion dol- Lars in 2018 aLone, far surpassing the highest-grossing movie of aLL time.3 This is hardly surprising given the fact that Fortnite boasts some 250 miLLion active players.4 These staggering figures paint a stark picture of an ever-changing world. As traditionaL forms of 1 The film industry’s revenues in 2018 totaled $43 billion. See David Robb, U.S. Film Industry Topped $43 Billion In Revenue Last Year, Study Finds, But It’s Not All Good News, DEADLINE HOLLYWOOD (July 13, 2018), https://deadline.com/2018/07/film- industry-revenue-2017-ibisworld-report-gloomy-box-office-1202425692/ [https://perma. cc/5R7G-QDLV]; Asit Sharma, The State of the Movie Industry in 2018, THE MOTLEY FOOL (Sept. 19, 2018), https://www.fool.com/investing/2018/09/19/the-state-of-the- movie-industry-in-2018.aspx [https://perma.cc/HRL5-3P5T]. The music industry generated $9.8 billion in 2018. See RIAA 2018 YEAR-END MUSIC INDUSTRY REVENUE REPORT (2019), [https://perma.cc/7TNS-QAG9]. The video game industry has outperformed both industries, grossing more than $130 billion in 2018. See James Batchelor, Global Games Market Value Rising to $134.9bn in 2018, GAMES INDUSTRY (Dec. 18, 2018), https://www.gamesindustry.biz/articles/2018-12-18-global-games- market-value-rose-to-usd134-9bn-in-2018 [https://perma.cc/48J6-FAAM] (noting that the video game industry has generated almost $135 billion in revenues); Kellie Ell, Video Game Industry is Booming with Continued Revenue, CNBC ONLINE (July 18, 2018), https://www.cnbc.com/2018/07/18/video-game-industry-is-booming-with-continued- revenue.html [https://perma.cc/JX8S-EWVB] (reporting that the video game industry is projected to gross nearly $138 billion by the end of the year). 2 Sheena Jordan, The Gaming Industry is Now Bigger than Hollywood, ECONOTIMES (July 19, 2019), https://www.econotimes.com/The-Gaming-Industry-Is-Now-Bigger- Than-Hollywood-1558784 [https://perma.cc/YW2F-ELY3]. 3 See, e.g., Jon Russell, Epic Games, the Creator of Fortnite, Banked a $3 Billion Profit in 2018, TECH CRUNCH (Dec. 27, 2018), https://techcrunch.com/2018/12/27/epic-fortnite- 3-billion-profit/ [https://perma.cc/QL9Z-EWW5]. Fortnite reportedly generates millions of dollars a day. Aisha Hassan, Fortnite’s Creator Made $7 Billion This Year, QUARTZ (Dec. 31, 2018), https://qz.com/1512561/fortnite-developer-tim-sweeney-made-7-billion- this-year/ [https://perma.cc/74HL-YFY4]. Strikingly, Fortnite made almost $300 million in the month of April 2018 alone. Nick Statt, Fortnite Made Nearly $300 Million in the Month of April, THE VERGE (May 24, 2018), https://www.theverge.com/2018/5/24/173 90004/fortnite-battle-royale-money-made-revenue-300-million-april-2018 [https://perma .cc/NA6E-64PT]. The highest-grossing movie of all time is Avengers: Endgame, which raked in $2.79 billion to date. Josh Jackson, The 20 Highest-Grossing Movies of All Time, PASTE MAGAZINE (Sept. 12, 2019), [https://perma.cc/Y2FT-ZLVP]. 4 Ben Gilbert, How Big is ‘Fortnite’? With Nearly 250 Million Players, It’s over Two- Thirds the Size of the U.S. Population, BUS. INSIDER (Mar. 20, 2019), https://www.business insider.com/how-many-people-play-fortnite-2018-11 [https://perma.cc/WF48-MR55].