Minecraft, Intellectual Property, and the Future of Copyright

In mid-November, shortly after 4,000 Minecraft fans descended on Las Vegas for Minecon, the Mojang team held a Q&A session. A young kid was the first to get the microphone. He didn't so much ask a question as offer an idea: pajamas.

Pajamas in Minecraft would be crafted like armor, he explained, but their function would be to help your avatar fall asleep faster. Minecraft's Swedish creator, Markus Persson -- better known as Notch -- smiled politely and handed off the pajamas idea to Jens "Jeb" Bergensten, who was soon to become the lead developer of the game. Jeb played along, suggesting that these pajamas might also make the wearer invisible to monsters.

It was not surprising that the first question at Minecon turned out to be a conversation about a new idea. Minecraft is primarily a game about making new things. Some game reviewers describe it as a sandbox game, which it is, but somehow that designation doesn't capture what makes Minecraft so different.

The breakout panels at Minecon showed just how much Minecrafters really like to make new things: panels offered advice on how to build functional computer circuitry in the game, how to keep monsters from wrecking your buildings, how to build epic architecture with the "wow" factor, and the best strategies for creating multi-player servers.

There was even a panel where Hippoplatimus, a 15-year old who created a "pistons" mod, gave advice to aspiring Minecraft modders. His mod was such a hit that Mojang incorporated it into the game.

When people think of the sandbox genre, they think of games like The Sims, and when it comes to user generated content, they might think LittleBigPlanet -- games with a large variety of outcomes, and games that allow custom maps. Minecraft goes beyond that.

Part of what makes it so special is Notch's direct communication with his player community. Compare, for instance, the 50,000 Twitter followers of Media Molecule (maker of LittleBigPlanet) with the 500,000 followers of Notch. Minecraft players know that Notch, and not some unknown guy in a cubicle, made Minecraft's code. At Minecon, they knew that if he wanted to, Notch could add those pajamas in a heartbeat.

But Minecraft's success is about more than a guy with a signature fedora. As everyone knows by now, with almost zero marketing, Minecraft sold over 4 million copies in two years of open beta. Compare that with LittleBigPlanet's 4.5 million sales -- even as a series backed by a major gaming platform holder.

Notable commentators have offered various explanations of Minecraft's success, and no doubt they are all part right. You can attribute Minecraft's popularity to luck, artistry, accessibility, community, and even authenticity... but let me throw in my own suggestion: those pajamas. More precisely, Minecraft is a hit because it was a game that took the creativity of players just as seriously as it took the creativity of its creator.

My daily work is teaching and research the law of intellectual property. I find Minecraft fascinating because it seems to me that Notch never got the memo on IP that the game industry now knows by heart. Notch made a game that lets players, kids included, feel like they are architects. Minecraft isn't so much a game that shows off the amazing things a game designer did, as it inspires you (even requires you) to make amazing things for yourself. Minecraft is a game about letting people discover their own creativity, even if they have no initial intention of being creative.

In theory, bigger and more experienced studios could have come up with a game like Minecraft years ago. The reason they didn't, I think, is that most developers in the industry have been steeped in the logic and culture of intellectual property. In short, the dominant story of intellectual property is that game developers should make content and players should consume it. And that is right, generally, but it misses out on the potential for players to be creators too.

I should say at the outset that I'm not opposed to intellectual property protection. I teach the law of IP and I have represented IP rights holders in litigation. I firmly believe that IP has been and will continue to be essential to the development of video games as an art form. Ever since the litigation over the Pong patent, copyright, patent, and trademark law have played a key role in allowing game creators to reap the benefits of their creativity.

Intellectual property laws give game makers the right to sue those who pirate, copy, and clone their creative works. Some of the earliest video games, like Pac-Man and Defender, were also the sources of some of the earliest lawsuits over software rip-offs and clones.

Video games actually gave birth to the legal protection of software as a form of intellectual property. In other words, if it were not for Defender and Pac-Man establishing copyright in computer software, Apple and Microsoft would have been historical footnotes, not the economic titans they are today. Companies like Google and Facebook may have never existed.

Since the video game industry took off in the early '80s, the importance of intellectual property has only grown. Today the shelves at Walmart are stocked with games based on Star Wars, Harry Potter, Tolkien, Marvel, and other cross-media franchises. Games like World of Warcraft even create publishing empires of their own, spawning novels, comic books, game guides, board games, and other media. Video game production is more and more bound up in the business of intellectual property generally.

The core assumption of all of this activity is that we all benefit when creative companies have the ability to profit from the downstream use of their creative products. In today's transmedia age, however, we seem to be pushing intellectual property rights to their maximum reach. Paying every rights holder for every new work is becoming increasingly complex: a new game based on a film may require licenses from the studio that made the film, the author of the book on which the film was based, the actors who portrayed the characters, and many others.

In this system, where so much emphasis is placed on commercial compensation for existing content, creativity can be constrained. And it becomes especially easy for those in the game industry to overlook the creativity of players.

Sandbox games are the exception to the rule perhaps because they create cognitive dissonance for developers: players do not have the creative skills to make games, so why should they have robust creative tools? They'll just make boring junk.

Creative freedom in most games is usually an afterthought. If it exists, it is heavily managed and doled out in small doses. Players might be permitted to change the faces and hair colors of avatars, but most games run players on rails through pre-programmed content, showing off what game developers make and giving players little freedom to shape their virtual worlds.

Minecraft, intentionally or accidentally, took the opposite approach. It recognized that players appreciate artistic and creative freedom. However, for companies seeking to duplicate Minecraft's success, this is exactly where the law of intellectual property can create headaches. Our laws generally discourage game developers from offering powerful creative tools to players.

The litigation several years ago between Marvel and NCSoft over the City of Heroes MMOG is a perfect example. Cryptic Studios created City of Heroes for NCSoft. The game includes a "Creation Engine" that provides players with a powerful tool for designing superhero costumes.

For some City of Heroes players, the Creation Engine is the most interesting part of the game. But several years ago, the tool provoked a lawsuit from Marvel. Marvel sued NCSoft because it claimed that the costumes created by the players included Wolverine and Iron Man lookalikes. According to Marvel, these were copyright infringements. Marvel claimed that because NCSoft made the tools the enabled the infringing costumes and hosted them on its servers, it should be liable for the player-created copyright infringements.

If online game hosts were automatically liable for player-created infringements, no game developer would ever host a sandbox game. After all, statutory damages for copyright infringement can run up to $30,000 or more for each work infringed, and hosting the production from any creative online tool would quickly bankrupt the maker of any sandbox game.

Luckily, Congress passed a law in 1998 that gives online hosts some relief from that risk. The Digital Millennium Copyright Act provides a safe harbor for service providers who unknowingly store infringing material that is created by users of the service: i.e. infringing superhero avatars created by players. However, to comply with the DMCA, the game company must follow certain formal requirements, including designating a DMCA agent and instituting a procedure for the swift removal of infringing content upon notification.

Marvel was well aware of the DMCA rules: it had contacted NCSoft and demanded it remove a list of infringing avatars. NCSoft dutifully deleted scores of costumes, but Marvel argued this wasn't good enough. It told the court that NCSoft should be liable despite the DMCA, since it was technologically complicit in the ongoing player infringements.

The federal court hearing the case never rejected that argument. In fact, it denied NCSoft's motion to dismiss Marvel's copyright claims. Soon after that ruling, the parties agreed to settle the litigation on undisclosed terms. As a result, the case was closed and the issue of whether the Creation Engine infringed Marvel's copyrights was never conclusively settled. For designers who might want to offer similar creative tools, the case offers a warning about the legal risks of this approach.

If NCSoft was right, any game company that hosts player-created content should be able to take advantage of the DMCA procedures and avoid liability for player infringements. For over a decade, this has been the general rule: the DMCA protects online hosts from secondary liability for copyright infringement claims. Smart game companies use the DMCA as a shield. But the DMCA is again under attack, just as it was in the City of Heroes case.

Currently pending in the Second Circuit Court of Appeals is a lawsuit by Viacom against YouTube. Since its creation, YouTube has followed the DMCA rules to the letter. It hosts user-created videos but it removes them when it receives notice from copyright holders. Viacom, echoing Marvel, says that compliance with the DMCA isn't good enough.

It wants YouTube to actively police its servers for copyright infringement and claims that if it fails to do that, YouTube should be held liable for infringing videos. Like Marvel, Viacom is essentially attacking a business for providing creative users with a set of tools and a platform. If Viacom is successful, those sorts of tools and platforms will be harder to find.

There is a legislative front to Viacom's efforts as well. Pending bills like the Stop Online Piracy Act (SOPA) are essentially asking Congress to revisit the compromise enacted by the DMCA. While it seems unlikely as of today that SOPA will become law, the balance between technology and copyright may still shift to make the technology industry carry more of the burden of copyright enforcement. For instance, online payment companies that do business with sandbox game makers may face legal threats due to the copyright infringements of users.

Unlike Hollywood and the recording industry, the game industry has perspective on both sides of the SOPA debate. The split between the ESA and developers like Riot Games demonstrates this.

However, it seems that most of the major players in the industry are choosing to side with the content industries in the digital copyright wars. To the extent new laws work against the development of sandbox games and interactive platforms generally, this is understood as an acceptable tradeoff for stopping piracy.

But now back to Minecraft -- because Minecraft goes against the grain of conventional wisdom on intellectual property.

We can start with its creator. Notch is a member of Sweden's Pirate Party (which has two seated members in the European Parliament) and he has, so far, been very complacent about the sale of games that some consider Minecraft clones. In fact, he seems pretty complacent about software piracy generally.

He has publicly stated that Mojang opposes SOPA. His personal philosophy shows up in Minecraft's Terms of Use, which is worth a read if you have a few seconds. Admittedly, the terms include standard legal disclaimers and they expressly prohibit the redistribution of Minecraft.

But they are written in colloquial language and they take up a single web page. At one point, an explanation for this approach is offered: "We're not going to put up a huge EULA. We're trying to be open and honest, and we hope people treat us the same way back."

But Minecraft's real challenge to intellectual property is not in Mojang's terms of service or Notch's personal opinions, but in the game itself. In its Alpha version, Minecraft was little more than a game about building things with virtual blocks. It verged on being a weird CAD program, yet many found it fascinating.

Now available in its completed 1.0 version, there is certainly a game of sorts to Minecraft, but the game still seems to be an excuse for building with blocks. In fact, Minecraft's game elements are fun primarily insofar as they provide a game-like context for creativity.

If you use Minecraft to build a working virtual computer, like some people have done, rain falls and the sun sets on your cobblestone computer by the sea, while cows and chickens bounce around the logic gates. If you're building your own version of Minas Tirith or the Starship Enterprise, you'll be especially annoyed by the damage done by mischevious Endermen and exploding creepers.

The example of Minas Tirith takes us back to the City of Heroes litigation. If you make Minas Tirith in Minecraft, you probably haven't talked with the Tolkien estate, so what makes you think you have a right to build on Tolkien's creativity? (Perhaps you do have a "fair use" right, but some lawyers might disagree -- fair use is a very fuzzy legal doctrine.)

Unlike NCSoft, however, Mojang does not need to worry about the risk of copyright-infringing players. That's because Mojang does not host player content on proprietary servers and this largely frees Mojang from the DMCA system and the risk of copyright infringement liability.

Minecraft's player infringement burdens are pushed off to those who do host potentially infringing content. Lo and behold, the primary target here is YouTube, the defender of the DMCA rules in the Viacom litigation. A search for "Minecraft" today on YouTube returns over 1 million results. How many of them are in full compliance with copyright law?

It's possible, even probable, that Mojang lucked into a situation where third parties like YouTube hosted the staggering amounts of player creativity unleashed by the game. During Minecraft's beta, while the game was changing constantly, Mojang simply could not have taken an aggressively proprietary approach toward player-created content.

In theory, larger and more established game companies could try to duplicate Mojang's curious strategy here. But I'm not sure that they will. It isn't clear to me that many other game developers, and especially major industry players, can change their worldview enough to pull off Minecraft's intellectual property jujitsu.

To sum up Minecraft's strategy:

1) rather than keeping players on rails and limiting what they can do creatively, give players a radical level of control over their environment and give them simple tools (digging, building, and crafting) for authorship

2) rather than hosting, organizing, and policing the content created by players, push that content off your system and onto external content sharing sites like YouTube

3) rather than vigorously asserting your proprietary rights, remain ambivalent to (or even enthusiastic about) mods, clones, and piracy

4) rather than making games built on the same licenses used to sell action figures and Happy Meals, make a game that inspires your players to have genuinely new ideas (like magic pajamas).

In other words, at every point where the norms of intellectual property law would say you should zig, Mojang chooses to zag.

Who knows where Mojang will go with Minecraft in coming years? An Xbox Live Arcade version was on display at Minecon and an iTunes version had just been released. Notch has apparently moved on after the 1.0 release, handing the creative reins to Jeb. And Mojang's forthcoming Scrolls is a much more traditional game. Yet as the SOPA debate continues and the YouTube litigation drags on, I think there is something important to see in the story of Minecraft's commercial success.

Today, Hollywood and associated content industries are pitching a particular philosophy of intellectual property to courts and Congress. They claim that creative individuals simply can't make money unless we reshape computer networks and digital technologies to better serve the business models of Hollywood. Meanwhile, quietly in the background, a member of the Swedish Pirate Party was making a simple game that let the public of gamers unleash their own creativity. The players loved it and the developer made millions.

Instead of passing new laws in this country that primarily hamstring technology to better serve past models of intellectual property, perhaps Congress should be thinking a little bit about Minecraft? Perhaps rather than using copyright to restrict innovation, we might do something genuinely innovative with copyright law?