Copyright Industry Perspectives: The Pivotal Role of TPMs in the Evolution of the Video Game Industry

Abstract

The story of the video game industry, like that of many other creative art forms, is in part a testament to the power of copyright law. Compared with many other industries that rely on copyright protection, however, the video game industry is relatively young. Although there is considerable debate about the industry’s precise birthdate, most point to the earlyto mid-1970s as the point at which video games entered into the mainstream consciousness. Coming of age around the same time that the 1976 Copyright Act was being debated and later implemented, an initial challenge for the industry was simply ensuring that authors of video games received the same scope of copyright protection as authors of more traditional forms of media. Given that the defining characteristic of video game software was its interactivity, with the audiovisual output controlled in part by user interaction, there was initially some uncertainty about the extent to which early video games could be protected by copyright. Indeed, the Register of Copyrights once famously declined to register a copyright claim in the audiovisual components of a video game in part because the content was not an original work of authorship due to its interactive nature.1 In denying the claim for copyright, the Register noted that the audiovisual components of the game could not be registered because “they are created randomly by the player and not by the author of the video game.”2 Of course, the Register was subsequently persuaded to register the work,3 and questions about the copyrightability of video games have faded. Unsurprisingly, however, other copyright challenges have emerged. Like most desirable digital content, video games are subject to extraordinarily high levels of online piracy and other forms of copyright infringement. Although the pernicious effects of piracy are well known, the steps the video game industry has taken to combat piracy—and defeat it in the marketplace—warrant closer