Despite most sectors of the entertainment industry taking hits in sales due to the declining economy, video games somehow not only maintained their core clientele, but, according to the Entertainment Software Associations 2010 report, have seen an annual growth rate of 10% from 2005-2009.  So it’s of no surprise that educators are taking notice and creating curriculum and programs aimed specifically at those interested in the video game field.  From schools designed to help elementary school kids learn through games to video game degrees in higher education, no longer does society see video games as something that your little brother plays, but rather as a possible career choice to those already interested in games.

New York University has been an innovator in the latter category of education and games, recently creating an entire center focused on video game design and game creation.  A tour of the Center boasts a few classic arcade titles sitting in the main lobby for all to enjoy.  And while this might be a gamer’s dream, the real surprise lies in the Game Center’s Open Library.  The Library has over 1000 titles from every genre and platform, from the Atari and Nintendo to the PS3 and Xbox 360, available for members to play during the Center’s open hours.  It even has themed weeks, such as a Legend of Zelda exhibition and even a Horror Week, showcasing the best of the survival horror genre.  While the library is a great idea and amazing addition to the curriculum the Center offers, one must wonder if this gamer’s paradise possibly infringes some intellectual property rights?  While it is possible that there are patent issues (all the hardware used is most likely patented) as well as trademark issues (any list stating the titles the Open Library has is probably full of trademarked names), this article will focus on the copyright aspect of the Game Center.

Congress’ authority to regulate copyrights comes from the Constitution itself, which allows Congress “[t]o promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries…” U.S. Const. Art. I, § 8, Cl. 8.  Even with this Constitutional mandate, it was not until the Copyright Act of 1976 that rights in published and unpublished works went almost exclusively federal, with Section 301 of the Act aimed at pre-empting various state laws.  As with patent rights, the Act grants no positive rights, but only the right to exclude others from doing a laundry list of things with the author’s works.  These rights are spelled out in 17 U.S.C. 106.  In general, the exclusive rights are those to reproduce, create derivative works, distribute, perform and display copyrighted works.  Currently, works created on or after January 1, 1978 entitle their owners to protection at the work’s creation and enduring for the life of the author plus 70 years after his death.

The Open Library is most likely open to liability for violating sections 4 and 5 of 17 U.S.C. 106, which are aimed at public performances and displays of copyrighted works, as  defined in Section 101 of the Copyright Act.  One violates the performance right if they perform the copyrighted work publicly without the owner’s consent.   For example, if you watch a movie or listen to a CD with friends and family at the park, while technically “public”, that does not constitute a “public performance” in violation of the Act.  Taking that same movie or CD and playing it for customers at a private movie theater without the copyright owners consent, on the other hand, does constitute a public performance, even if you restrict attendance.  Even non-profit viewings at a church or library can constitute infringement that could leave those who play the movies in hot water.  A “display” on the other hand refers to publicly showing a copy of a copyrighted work.  Thus, because displaying a work means showing a “copy” of it, the public display right only extends to copies.

While this may seem like an open and shut case against NYU, all is not lost.  The preamble language of a Section 106 also states that CR holder’s exclusive rights are subject to sections 107 through 122, which are not considered infringing uses.  Section 122, for example, states that secondary transmissions of local television programming by satellite are not infringements under the statute.  More important to this discussion, Section 107 deals with fair use, which states that copies made for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research do not infringe a copyright. While there are a few possible places for NYU to hang its hat on, its best bet might be the teaching exemption.  This not only allows for immunity from one possible infringement, but many, just in case NYU wishes to have multiple copies of a game for many students to play at the same time.

Clearly the teaching exemption is not a perfect fit, as one could argue that having a place for college students to play video games isn’t exactly what lawmakers thought of when they included “teaching” within the statute.  However, NYU could point to the educational mission of the center, and argue that even if it’s possible to see the Open Library alone as potentially infringing, taken as a whole, the program itself is an educational venture that can reasonably fit within the statute.  Also, NYU might point to language from Allen v. Academic Games League of America, 89 F.3d 614 (9th Cir. 1996), where the court had to figure out if a non-profit tournament of a copyright holder’s video games constituted a “public performance” under the Copyright Act.  Despite specific language in the statute that copyright holders had a right to exclude others from “playing” their works, the court held that the term “playing,” as used in the definition of protected performance, was not applicable to playing games. Furthermore, because the defendants didn’t make a profit from the plaintiff’s games, their use fell outside of the statute.  Id.  To add on to its educational use argument, NYU could say this is analogous to Allen because the Center isn’t making a profit by using the copyrighted material and people playing video games can’t constitute a public performance.

Either way, it’s unlikely the Nintendos and Sonys of the world would come after NYU for creating the Open Library.  The educational mission and free publicity the center brings to their games might be enough to stand as a deterrent.  “Also, with the educational system the way it is, think of the negative public relations that would backlash against any company trying to shut down a school’s ability to get people interested in games.”  And something tells me the NYU legal team may have done their homework on the subject before letting the school run with this.