Online Games And Crowdsourced Creativity: The Next Frontier In Intellectual Property

If you ask a non-“gamer” to name a few places where some of the world’s most compelling contemporary architecture can be found, you’re likely to get answers like Beijing, Dubai, Shanghai, and Tokyo. But ask a gamer, and the answer may well be the name of a server that hosts his or her favorite massively multiplayer online game (MMOG).

There is a veritable architectural boom occurring in the online gaming world, with millions of people engaged, both individually and collectively, in creating an endless variety of virtual buildings. And architectural designs represent only one of the many forms of user-contributed intellectual property (IP) that are redefining how people interact in online games.

Who owns all of this IP? And how can those ownership rights be protected? Such questions are not merely academic. According to online games research firm SuperData, the global virtual goods market approached $15 billion in 2012 and is expected to exceed $20 billion in 2014. The virtual economy is thriving, and as in any thriving economy there are opportunities for enterprising people to identify new goods and services that have value to the community.

Intellectual property, which consists of copyright, patents, trademarks, and trade secrets, has always been an important aspect of games. Traditionally, however, it was the companies making the games that generally held the associated IP. Consider the classic 1970s-era table tennis video game “Pong”. The job of a Pong player was to adjust the vertical position an electronic paddle on one side of a television screen so that it would intercept a “ball” and send it back to a player the other side of the screen. There was skill involved when ball speeds got high, but the act of playing Pong did not produce any IP.

Modern descendents of Pong – including many of the offline games played on console platforms like the Sony PlayStation 3 and the Nintendo 3DS – are leaps and bounds more sophisticated. But much of the IP for these games still resides with the game manufacturers as opposed to the players.

By contrast, in multiplayer online gaming environments that allow players to create complex virtual worlds, opportunities for both game designers and players to generate IP abound. In fact, in many of these games the lines between designers and players are blurred. Consider Minecraft, which was developed by Stockholm-based MojangMillions of copies of Minecraft have been sold, including over 450,000 on Christmas Day, 2012 alone. Minecraft supports a multiplayer mode allowing players to set up and manage a server that can host dozens or even hundreds of simultaneous players in a single, persistent virtual world (for an example of a popular Minecraft server, see Meepcraft). A server owner can customize a virtual world with specific rules and economic models for player-to-player interaction. Players who spend time on the server, in turn, can design and construct their own buildings, and in many cases, use them in various types of commercial transactions.

Thus, in multiplayer Minecraft there are multiple levels at which intellectual property is being created and used: Mojang, the company that sells Minecraft, provides IP in the form of the underlying game itself. A Minecraft server owner adds IP by designing a specific type of virtual world, and the players within that virtual world then create their own IP as they develop its infrastructure and economy through their own in-game interactions. And in yet another layer of IP complexity, server owners often incorporate software provided by third-party developers, and in some cases also hire people to write code to add customized features to the server.

As Minecraft illustrates, in sophisticated multiplayer virtual environments there can be user-contributed IP pretty much everywhere you look. Copyright, for example, arises through the player-supplied software, architectural designs, and graphics that are employed to help run and populate the virtual world. Trademarks arise through the names and symbols used to identify a seller’s unique virtual goods. Trade secrets can be found in player-developed (non open source) add-on software and in economically valuable, non-publicly-observable methods used by players to enhance their gameplay.

Player innovations providing specific types of gaming experiences may also be patentable. An interesting precedent will be provided by the outcome of a pending Nintendo patent application regarding methods for MMOG players to collectively alter a virtual environment without directly interacting with each other. (In filings with the U.S. Patent and Trademark Office during 2012, Nintendo has substantially narrowed the claims with respect to those in the original 2010 application.) Nintendo, of course, is a game company, not an individual player. But that is not relevant from a patentability standpoint. If Nintendo can patent new methods relating to providing certain types of MMOG gameplay, then players should be able to do so as well.

In the coming years, many of the most interesting online games will be produced not by large teams of developers at big-name corporations, but instead by smaller, independent groups of developers who allow their customers to be partners in creating the IP that comes to define the in-game experience. And when, as will inevitably occur, player-generated IP acquires substantial real world monetary value, players should be able to access that value. This will require that game sellers adopt terms of use allowing players to retain an appropriate, commercially meaningful ownership interest in the IP they create. It will also raise complicated jurisdictional challenges due to the global nature of gaming. Where, for example, should a copyright or trademark claim involving in-game content created on a server in the U.S. by a player in Japan using software provided by a server owner in France be enforced? And, it will require sorting out copyright rights for intricate chains of derivative works.

And for those people who aren’t gamers, and who might wonder what all this has do to with the non-gaming world, there is this: Some of today’s massively multiplayer online games are at the very forefront of crowdsourcing creativity on a global scale. The lessons learned could help spur innovation in domains that go far beyond gaming.