As computer and video gaming has grown from a niche market into a multi-billion dollar industry, gaming modifications, or “mods,” have grown in scope and use as well. Mods have become as communal and omnipresent as the increasingly networked and social games upon which they are based. While mods once limited themselves to peripheral or purely aesthetic ends (such as Aliens TC, a mod which reworked the first person shooter Doom into a world based on the Aliens franchise), today’s mods are involved and extensive. Some recreate and revamp old games in newer, flashier graphics engines (as in the Black Mesa mod, recreating the 1998 game Half-Life in painstaking detail), while others add impressively detailed functionality to pre-existing game and physics systems (like Industrial-Craft, a mod for the construction and exploration game Minecraft, which allows for development of industries as varied as oil refining to nuclear engineering).
By and large the modding community has met with acceptance, if not outright approval, from the game developers whose intellectual property and products are altered. Some modifications have enjoyed such popularity that they have earned their developers jobs within the gaming industry (as in Counter-strike, a Half-Life mod which became an immensely popular game in its own right, and Defense of the Ancients, once a Warcraft III mod, now one of the most-played multiplayer games in existence.).
However, as mods become more extensive, involved, and lucrative, they are increasingly running into legal issues, revolving mostly around violations of End User License Agreements (which by and large everyone accepts, but no one ever reads), and copyright infringement.
Copyright infringement is obvious where mods substantially copy other intellectual properties, as in the Aliens TC mod, or alter or add to gameplay elements or stories. See Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998) which ruled that sale of user-created map mods for Duke Nukem 3d constituted copyright infringement. While there are arguments to be made for fair use defenses or definitions of mods as derivative works, mods exist in a consistently shifting legal grey area, subject to the vagaries of developer whimsy. Early litigation involving modifications to online gaming treated copyright infringement as something to be assumed, not proved. MDY Industries, LLC v. Blizzard Entertainment, Inc., 616 F.Supp.2d 958, 970 (D. Ariz. Loc. R. 2009) found that a modification allowing automated actions by player characters in Blizzard’s multiplayer online role-playing game World of Warcraft infringed Blizzard’s copyright in the game. The court based its finding of infringement largely on the holding of MAI Systems Corp. v. Peak Computer, Inc., 911 F.2d 511 (9th Cir. 1993) which that the copying of a computer program into RAM constituted infringement.
The application of MAI Systems to modification litigation essentially makes all modifications infringements of copyright, as they are code-based adjustments to an existing computer program that are stored both in RAM and in a fixed form (the programming language itself). This means that mods are “legal” only insofar as game developers suffer them to be so; the moment a developer finds a mod distasteful, it can be found to infringe copyright.
Mods, no matter how well-respected or validated by developers, can also be found to infringe copyright through statute. Blizzard Entertainment, Inc., v. Reeves, 2010 WL 4054095 (C.D. Cal. 2010) originated as an action against the defendant for infringement of Blizzard’s copyright through violation of World of Warcraft’s monthly fee structure. Reeves and her compatriots reverse engineered the code for the world from their legally purchased copies of the game, and made it available on private servers to people looking to play without paying Blizzard’s monthly fees. While the action never produced a judicial decision (as Reeves never answered or appeared in court, resulting in a default judgment for $88 million in damages), in calculating damages, the court noted that Reeves’ website “enable[s] . . . users to access Plaintiff’s copyrighted works and circumvent Plaintiff’s protective measures.” Blizzard at 3. This has the practical effect of invoking Section 1201 of the Digital Millennium Copyright Act, which makes illegal circumvention of technological copyright protection systems.
The Blizzard court notes, however, that Reeves never actually sold products that circumvented such measures. Rather, Reeves sold products that “enhanced users’ gaming experiences while infringing Plaintiff’s copyrights.” Id. at 2. This does not violate the DMCA, yet the court almost assumes that it does. Online games almost always involve some kind of protocol for signing in to the game servers, and some games require such a log in to play the game at all (either with others or by oneself). It becomes apparent quite quickly that any use of the game that does not correspond exactly to the developer’s vision could become actionable under the Blizzard court’s logic, should a case that actually reaches trial adopt the same approach. Mods, by their very nature, are meant to “enhance users’ gaming experiences,” and very often infringe copyright, albeit with the tacit approval of many developers.
This is mostly speculation, of course. But gaming mods find themselves in a precarious state. On the one hand, they have never been more successful. On the other, they are increasingly finding themselves on the wrong end of legislation and judicial rulings. Despite a dedicated and vocal community peopled by game players and developers, mods will continue to be created only at the whim of game publishers and copyright owners. The law, as it currently stands, is not well-equipped to deal with community-generated media based on existing copyright. And as such, ambitious, incredible, and dedicated projects such as Tamriel Rebuilt (an attempt to recreate the worlds of six different games by Bethesda Softworks and synthesize them into one cohesive whole) may face extinction before they have even been completed.