OR: Shifting to digital property rights: When a gamer buys a game off of Xbox Live, Steam, PlayStation Network, or the Nintendo e-Shop, what does the consumer and the game company each own/actually have?
RM: In America – and it’s important to clarify in America, even though this is the case in most places – when you buy a game off Steam, for example, you’re not buying that game. You can’t go resell that game, you can’t download that game in certain circumstances. What you’re buying is a license to play that game. And that license is fully revocable. That license can be altered. It doesn’t matter if that game goes offline, or if they change things to it, or if you hate it, or if its bad and you paid money for it. It doesn’t matter if your account gets banned and you [spent] ten thousand coins in the game.
You don’t own any of it. So nothing you buy – this goes from your games to your e-books and your Kindle – it’s all just a license. You’re not buying digital goods, in almost all circumstances.
OR: Do you think we need some stricter virtual property rules because of this? If so, what kind should we have?
RM: We have a ton of virtual property rules. Right now, that’s what the Terms Of Service are. They define where everything fits and how your company acts within those laws. It’s really the users who agree to anything and everything and they don’t read those agreements. I don’t blame them for that, they’re ninety-three pages long. But what you’re agreeing to is [that] you’re buying something you don’t own.
And the marketplace has proven they don’t care.
” You can’t have a trademark that’s descriptive…The USTPO screwed up on that one obviously. They were going to put [Sony’s attempted ‘Let’s Play’ trademark] through minus the confusion with the other mark. “
OR: The ESRB was established in 1994 in response to a public outcry [about] violence in video games such as Night Trap and Mortal Kombat. First of all, have you actually ever played Night Trap?
RM: Night Trap? I have not.
OR: I don’t think anybody has.
RM: *laughter*
OR: Second – Is it a legal requirement that a game be submitted to the ESRB?
RM: No. The ESRB is not a government agency. They don’t make any laws. The ESRB is just part of the industry basically saying, ‘We are going to police ourselves so that the government doesn’t have to police us.’
The ESRB is a great body, it keeps government legislation out of video games. Which is wonderful. And that’s the major reason most companies play ball with it. The other – they have agreements, or at least had agreements with, places like GameStop where if you did not submit [the game] to ESRB, you couldn’t sell your game at retail.
A lot of game companies now don’t care about that so much, because everything’s online. But it’s still important to understand that they’re doing something good by doing all [of] this.
OR: So even though game developers do not necessarily have to go through the ESRB to get their games into stores anymore, is the ESRB still in fact relevant [because of that]?
RM: Yeah, of course. Because without the companies playing ball with them, all of a sudden we’re going to get legislation changing it. And we don’t want politicians making the rules on video games. We want video game industry people doing that, which the ESRB are.
OR: Sony recently attempted to trademark the term “Let’s Play.” On December 29th, 2015 and on January 25th, 2016, the United States Trademark and Patent Office – the USTPO- rejected the mark due to “the likelihood of confusion with a preexisting mark” and that it’s “merely descriptive”. What does that mean, and why was that particular trademark such a big deal to the gaming community at large?
RM: The ‘Let’s Play’ community is a huge genre of entertainment in video games. It’s one of the most popular things on YouTube and on Twitch[.tv]. And it’s the term for that genre. So ‘Let’s Play’ is that genre, it’s what everyone calls that. It’s akin to saying ‘sitcom’ when you’re talking about a TV genre. So when Sony tries to own that phrase, they’re trying to police that genre. And that’s not something that was going to be allowed.
So it’s obviously a descriptive term. You can’t have a trademark that’s descriptive. So you can have Apple-brand computers but you can’t have Apple-brand apples because that would be descriptive. That describes what the product is. [It’s] [t]he same here. The USTPO screwed up on that one, obviously. They were going to put it through minus the confusion with the other mark. But it was eventually denied because of descriptive – it being descriptive- and that was the right decision.
OR: On a similar trend, what is, and what happened with the Fine Bros. REACT trademark, and how were you involved [with that]?
RM: So that’s exactly the same thing in the sense the React [sic] Bros. were trying to police their genre, they were trying to own the word ‘react’ in YouTube videos and entertainment videos online. They chose a very popular genre. There are a million channels that do react videos and they’ve been around before the Fine Bros and they will be around after the Fine Bros. And it was very chilly of them to try to do that, but they did.
When it first happened, they released their video saying that they were going to do that. And I got a LOT of texts, e-mails, and phone calls saying ‘please, please, please do something about this.’ I made a quick little video in my hotel room saying that I was going to do a pro bono opposition and if anybody wanted to be involved, to give me a shout. The feedback was overwhelming and I was getting thousands upon thousands of people wanting to sign up [and] Fine Bros. were losing thousands upon thousands of subscribers. Those two things, combined together, [Fine Bros.] sent me evidence they are pulling their trademarks and I made a statement saying ‘we all got what we wanted, now it’s time to put your foot off of the gas and let everyone be.’ And hopefully that’s the way this all finishes out.
OR: If [Fine Bros.] do start to try to refile these trademarks, will you step in again?
RM: Yeah, of course.
OR: Along those lines of both the ‘Let’s Play’ trademark and the Fine Bros. ‘REACT’ trademark, people often stream video games on Twitch.tv, or put walkthroughs for games on YouTube, or do video [game] reviews. Could these be targets for takedown as well?
RM: Yeah, absolutely. The issue is [that] we don’t know the law yet on ‘Let’s Play’ videos. It’s possible, at least we’ve seen with Nintendo – Nintendo doesn’t want you streaming their video games for ‘Let’s Play’ unless you give them the revenues [from it]. It’s a question whether or not you’re allowed to do that. Obviously they own the intellectual property and they’re allowed to do what they want with their intellectual property and they can police it how they want. But there’s a question as to whether or not doing a ‘Let’s Play’ video is transformative enough use where they wouldn’t have control over it any longer. That has not been in a court yet.
OR: What is a ‘transformative use’?
RM: Transformative use is where you take someone else’s intellectual property and you change it enough that you can then call it your own.
For example, Jason from Friday the Thirteenth and [Michael] Myers from Halloween, if you boil them both down, they’re both serial killers with a mask in the suburbs that are killing people. But there’s enough different about them that they are transformative from each other, [despite] whichever one of them was first.
” It’s going to have to be legitimized. We’re gonna have to look at an actual union for the players. We’re going to have to collectively bargain with an actual league. ”
OR: Is this the same thing as with the Game Genie and the Game Shark back in the day?
RM: That’s different. That’s more akin to modding.
OR: Is modding legal?
RM: Modding is legal if the game says it is.
Again, that’s not something that’s been tested in the court either. In those Terms Of Service and in their EULA, those game companies say what you can/cannot do with the game. Oftentimes they will say what you can and cannot do with mods.
OR: So game companies often have all the power when it comes to digital games.
RM: Right. Because it’s their product. They should have all the power to say who can do what with it.
OR: What protections, if any, do streamers and YouTubers have against publishers going after them and attempting to take down their videos?
RM: You don’t really have a lot, since there’s no legal precedent protecting you. A popular argument on the internet is that that’s ‘fair use’, and it’s certainly what we argue, but it’s not something set in stone yet by any means. So it’s gonna be up to one of these game publishers to go after someone who’s not playing ball and that’s when a court decision will get made.
