Extra Credits – Do You Own What you Make? – Minecraft, UGC, and Mods!

Okay everybody get loose you’re ready Good time zone internet hello and welcome to design Club live the only game design talk show on the internet that has an unusual number of guests this week I am your humble design club host will joined as always by my pal Jeff say hi to the people Jeff

Hi to the people Jeff hey everybody I am Jeffrey zatke and I’m the studio director of extra credits and game designer and residence join my my good friend will on the East Coast I’m coming in from the west coast and today we have two count them two extra people and I’m

Just gonna point up and we’ll get the first one hey who are you hi uh I’m John Downing I am an attorney a video game lawyer uh also on the west coast um I have I’m currently working at a small Law Firm here that serves primarily video game Publishers and

Clients uh but I’ve also had experience in-house uh at Electronic Arts um I yeah I’m also a lifelong gamer as you might be able to tell by some stuff in my vicinity um so it’s a pretty fun uh line of work that I’ve managed to luck my way into

Over the years here uh now off to my friend Joe hi uh I’m Joe Newman I work with uh John a law firms called Ty’s law so I’ve been practicing and doing video game law um for probably the better part of a decade um so I’ve been working uh I I actually

Started off at Electronic Arts that’s actually how John and I have met uh but then I worked so I worked in-house there for three years doing privacy consumer protection intellectual property a bunch of different and anything sort of consumer facing uh then I went to Ubisoft uh it was a privacy Council for

Them focusing on you know us and EU privacy uh then I went to Private Practice I was at a law firm uh Fenwick and West I worked with a whole bunch of different gaming companies clients events you know everyone as big as you know from Amazon and 10 cent to like

Tiny little Indies uh it was very cool and now I’m at Ty’s uh working with you know many of those same clients other clients um doing uh just a variety of gaming related stuff uh like John I’m a big lifelong gamer um also a musician I do a

Bunch of uh video game music covers and all sorts of nerdy stuff so which are pretty amazing we played a couple of them on the extra credits channel before um the licensable ones which we were careful but I asked you about that I got too much at stake for you guys to

Get in trouble yeah so uh um if the names appear familiar uh you may note that uh John and Joe have helped consult for several video game Law related episodes of The Animated extra credit Series in the past actually been the primary authors for um not just

Concerned yeah okay cool great I don’t I don’t get to see much of the behind the scenes there I’m I’m in the twitch box and the YouTube box is like we’re slowly merging the boxes but they’re a little separate so I don’t always say all the

Rain but right now we got lots of boxes that’s that’s correct we do have extra boxes on screen that’s the new name of the show is extra boxes Mr boxes um there we go before we get two options before we get to oh do it ah okay okay

Before we get too off track there is an important thing that we have to do because we have lawyer type people on and we need to clarify the nature of our conversation for the next hour or so so gents you are far better at this than I

Could ever be uh please do your normal disclaimer yeah so every uh we’ll just run through it really quick so we’re you know we’re going to be talking about legal topics we’re not going to be talking about any specific you know we’re not going to talk about our

Clients or protect you know potential clients or whatever uh we’re going to keep things fairly General um you know although we will be talking about legal topics so this is not legal advice uh you know we have to say that this is you know we’re not your lawyers

If you want us to be your lawyers you know reach out um but uh you know so yeah the we’re not your lawyers but we’re going to talk about the law stuff and if you if you have legal questions don’t rely on Twitch talk to a lawyer yeah IRL Wait nothing said it’s

Confidential or anything like that yeah don’t rely on YouTube either YouTube is an interesting place to learn fun facts about the law and become interested in the law and not a good place to study law yeah that was a hashtag not legal advice like the WebMD of law over here so yeah

Oh that’s awful that’s awful I just have what what’s what’s the what’s the legal MD version of webmds like jump immediately to it’s definitely cancer or lupus it’s either one of those WebMD like what’s the lawyer version of that it’s definitely I don’t know a lawsuit a

Tort it’s definitely not a tort but I like the word tort because it sounds like a tortoise practicing law and that just makes me smile on the inside so but comp side Jedi it’s never Rico [Laughter] here on the extra credit switch channel we do talk about politics and actually

We’re stealing that one because that’s uh Devin Legal Eagles thing it’s like it’s never Rico until he finally did an episode where it’s like okay this one’s actually Rico now it’s really Rico okay so um today we thought we would talk a little bit about eula’s eula’s have been much in the the

News recently we thought we’d talk a little bit about eula’s and ugc and what the law says about all of those things wait will yeah we just threw a whole bunch of acronyms out what’s a Eula that’s a really great question uh Joe John could you please uh

Define and in brief sum up uh what a Eula is does for a game sure um so a Eula is an end user license agreement uh it is basically a contract that the publisher or provider of a game or NES order of other software uh establishes with the user of that

Software so if you play a game or get a Photoshop or something like that you have to agree to a Eula uh they are usually non-negotiable they are enforceable and are sort of like a gateway to access this software legally it’s that thing you click through yeah

We spent a lot of time writing that no one ever reads right yeah absolutely and it used to be I I may be misremembering this some of us who are um older fogies and remember when stuff came on disks right because stuff doesn’t come on disks anymore there was

Like that paper seal that came on some like discs for a higher end software that was also like a Eula that you had to agree to to even open the disk it wasn’t even like insert and run it was if you like break this paper seal right

The seal all right break the seal unleash Armageddon or sign this Eula 50 50 what are the other and eula’s really can be written to say anything which is what we’re gonna get to a little bit here like my very first commercial game EverQuest because the lawyers were so

Nervous about selling a game with an online component the EULA if you boiled it down basically said you’re getting a box like it made no other claims after that that it if you parsed everything down to what it said it’s you’re going to get a box that has a game disc inside like

That was pretty much what the EULA summed up as what you actually got out of the agreement for getting the software and I once worked for a group that actually so thought nobody would ever read it that they hid I think it was a year of free service in their Eula for

The first like if anybody called in and said I read this and I can get a free thing and nobody called in for the first two and a half years yeah it’s uh I’ve I’ve seen a bunch of people have fun with Euless a bunch of lawyers have a

Good time with them there’s one that says uh that we own your Immortal Soul uh unless you opt out by just saying I opt out from you know and then there’s one uh the the organizers of magfest they said I think I can’t remember what

It was but if you didn’t opt out you had to bring the organizer like a cucumber or something it was just something like very silly but like yeah I mean the joke is that nobody reads them and other than you know when a dispute comes up and

Then you read them very very carefully right right see uh just responding to those uh looks like grass Vortex mentioned Baldur’s Gate 3 zeola which yeah it includes uh a note that prohibits you from making pacts with any sort of like uh fiendish or uh Eldritch

Or Fey being as in addition to the EULA does not include any Celestial Elemental or otherwise extra planar being just just noting that right because extra planar law is something you’re definitely not qualified to to speak consult with the fraternity of order for that please [Laughter]

But so to summarize the EULA is the end user license agreement that the software between whoever made the software and you and this is especially notable for things that you play or use for long periods of time right now importantly lots of software in fact gents would it

Be fair to say that most if not all software has some kind of Eula some associated with it in some way right yeah there’s always some sort of license agreement because otherwise yeah it could be a Eula it could be called a terms of service or a terms of use but

There is almost always going to be something papering that agreement okay so because that applies to all software that’s way too much so we’re going to chunk out a bunch of other things that are like games but are not games so today we’re we’re not talking about Photoshop or any of the

Um sort of that uh class of tool right we’re not talking and this is important because the other term we didn’t Define which was ugc user generated content is we’re going to be talking about games that allow you to build things within them which is kind of like a tool and so

Rather than discuss every possibility of that will is wisely narrowing our decision down to a smaller subsection right so carry on Sir so um uh we’re not talking about tools we’re not talking about um a bunch of the more um um oh Matthew said words and now my train of

Thoughts gone we’re not talking about tools we’re talking about games specifically and specifically games that let you make stuff now um there are a variety of games like that so uh many of those games and many uh non-law people lay people refer to the things that we make in those as

Ugc but that actually has a very specific meaning so could could you guys clarify real quick what what ugc means to you and we’ll use that definition for the rest of our uh conversation yeah so I’ll take that one so so I think I mean first of all these are all uh We’ve

Drafted a bunch of eulas and and this is all kind of whatever ugc is defined in your Euler or whatever you know it’s going to be a term of art essentially but the way that the games industry has generally thought about content um because you know games are an internet interactive medium

Um there’s content and then there’s user generated content so uh if you if the game allows you to manipulate its World in a way that you know creates content like you know easiest examples like your balder’s gate 3 character like you know it’s a creative character you that is content it’s not

User generated it’s more like user assembled right um and that is generally just you don’t own that that’s just a thing that exists in the game World um and there’s no sort of expectation of of who’s going to own it there’s no there’s no need for the company to even

Get a license to it yeah so just because I’ve spec a character a certain way and reclassed them and leveled up and gotten certain kinds of gear and strength and my character is functionally unique compared to every other build of that character in the game it still isn’t

User generated that’s just me playing the game and using the content that they have provided for us exactly correct um and then the distinction when we talk about user generated content is there’s so much there are a lot of games now that allow you to take stuff that was

Created from outside the game and put it the game so you know think about a photo of yourself that you use as your profile picture or you know Forum posts or uh you know code that you write outside of the game and then use it for a mod or

Something like that so because you created it outside of the game environment um there the company technically doesn’t own it and it is technically copyright infringement for them to display it in the game without your permission so basically every decently written Eula contains a license so that says by

Uploading stuff into our game world that you created you basically agree not to sue us about that right we get a license to you know use modify change the size of maybe you know alter the colors or or even if we have to you know blur stuff

Out or you know whatever we need to do in order to operate our service and it’s it’s not that we are going to own it it’s is that we have a license like permission from you to use it as needed to run our game so if I um have a set of

Building blocks and that uh that set of building blocks is the game anything I can make out of those building blocks is content because I haven’t brought new tools into the space to make the the space significantly different transformative of the tool set even if I

Can assemble all of these blocks in a way that’s never been assembled before I don’t have any particular ownership over that concept it’s when I add something new I make a new building block that’s unique that I add to the space and that when I added to the space There is almost

Always additional agreements uh that are in place to accommodate me adding a new building block especially to an online space is that an estimation yeah and again I think we’re being a little reductive like there are examples of game companies that create their own tools and then explicitly say the things

That you create using our tools we’re more like a Photoshop and that you can own them but I’m the general you know way that the games industry has approached this is if you’re just using our tools to make content then it’s just it’s not user generated let me ask a

Couple questions here because this is actually something that I think most people who play and interact games would have had a different view on so for example if I go to the Warcraft or the Starcraft level editor and I go and I make a mod and or you know I go make my

Own levels in there or I go make a version of Tower Defense by using their you know you can do light programming inside the engine Etc or hell I go make something and I call it defense of the Ancients but all of it is using the warcraft engine the

Warcraft stuff I have not uploaded anything in it’s all built from building blocks in the game that is not considered user generated content that is just content because I am not uploading anything new into the game I’m using the existing game itself to make a new thing

I think um if we’re talking about like something like DOTA for example like the the there’s like the modification of the code itself and operating how the game works so that would probably even be more in my mind at least in the realm of a derivative work rather than content or

Ugc specifically and can we uh can we go ahead and do a quick summation of the notion of derivative work because when we talk about derivative works in the game Space it’s often pejoratively it’s like oh this is so derivative it’s derivative yeah yeah right um yeah sure so legally speaking

Um when we’re talking copyright uh copyright of course is the uh statutory protections for Creative expression uh in in works like if you write a book or if you write a song or you know draw think of make a painting you could have a copyright in that work

Uh that also applies to code and games and such um copyright comes with what’s known as a bundle of Rights um which includes things like to create to make copies of it and distribute them but also to create derivative works of that work and a derivative work in this

Sense is a separate expressive work that uses portions of or is based on that original work so for example uh an easy example this would be if you have someone who wrote A a novel and then uh had a screenplay made of it that screenplay would be a derivative work of

The novel okay that makes that makes perfect sense okay especially with all of the video game movie adaptations we’ve got coming out so those are all right derivative and that’s not taken in the way that we normally uh hear it spoken on the internet right um okay so that’s that’s really good so

So actually let me just tail off mine then real quick so basically you can use something in the game to make a new thing but it has to be a fairly extreme case me just taking the warcraft editor and changing up a level so that I play

On it would be considered content but not use is it pretty much always I have to upload something in this is the distinction that game companies make in their eulas it’s it’s not I mean it is always going to be dependent on what the contract says sure right because there are some game

Companies that are okay with you using you know their level editors and then Distributing the levels outside of the game or doing stuff like that um again you know one of the things that we have to really uh we’ll probably come back to this point a

Couple of times is that because making a derivative work is one of the exclusive rights of the copyright holder making a derivative work without permission is infringement and not only is it infringement but under the U.S copyright law system uh it is not actually subject to copyright protection itself so the U.S copyright

Law says if a work is used copyright protection does not extend to any portion of a derivative work that was used unlawfully and that’s a really really important distinction uh and I’ll just kind of because I don’t know if everybody knows this like I’ll give you a concrete

Example so like a friend of mine was complaining that he made a cover song and the cover song was used in like a far-right propaganda video without his permission and he’s like oh I should sue I should you know this is I’m you know I was just like well did you get

Permission for your cover is you’re covered properly licensed and they’re like no I just threw it out there uh and I’m like well then it’s technically it’s an illegal work and it doesn’t get copyright protection uh and it’s a really you know it’s a it’s a pretty harsh law

Um but it’s one that you really have to be careful when you’re putting work out there that’s unauthorized and you know derivative because you may not be able to do anything that does have the copyright then in that case uh it just doesn’t exist there is no copyright protection in that work how

About the person who originally did it though well I mean they can they can claim that their rights have been infringed but they don’t just get to own something that somebody else made because it was derivative so so in that case in that in that concrete example

Um your friend has no rights because they didn’t get permission and the original composer of that cover doesn’t automatically get rights to your friend’s cover either it’s sort of right but they could still go I mean the original rights holder could go after the far right propaganda right okay

Because it’s still you know the the far right has still infringed its rights by correct posting a derivative copy of their original work okay but so you could theoretically run it uh an individual who had created an unlicensed work and felt as though it was being

Misused could then sort of go back to the original right tell her to say hey I did it bad but not as bad as these other people did you should know about this thing that’s using what you have copyright to that’s the only real style of Remedy that’s available under the current

Copyright system yeah and it doesn’t really get you anything it doesn’t get you right yeah you’re sick in the original guy you know sure yeah which is something I mean if I mean a lot of Ip rights holders are happy to learn that you know there’s

Oh hey our there’s our work is being misused in this way but you’re also kind of putting yourself on the radar well and and um this is very important too and one of the reasons that we’re speaking so generally is that many companies have different viewpoints on the ways that they treat derivative

Works of their work from things that have embraced and um authorized mods right because under this framework mods are all derivative Works um things like uh Minecraft or um uh Skyrim that include mod loaders in their games right that’s like a Thing versus someone Sims or Fallout I mean so

Many games right uh versus something like uh on the Other Extreme end Nintendo’s uh long-term uh no mods no nothing it’s ours no derivative Works um Viewpoint and that’s not to say anything about any of those just mention that there is a wide spectrum of ways that a company can choose to behave

Towards derivative works and those rights that’s that’s the company’s choice and they get to make that depending on what their legal strategy is for defending their own copyright that’s absolutely right okay and that’s why eulas are so interesting is because companies basically say this is how you

Are allowed to interact with what we have made and or modify it and because each Yule is a little bit different there isn’t like one industry standard it’s like every video game uses this one it in some cases can be very unclear to somebody interacting with the game who

Isn’t good at parsing a Eula right on what their what if any rights they have for the things that they create in and around the game yeah absolutely so one of the interesting uh phenomena I guess is that games get updated we are playing games right now that have been around

For more than a decade games like Minecraft and it turns out that the EULA that they wrote at the beginning of Minecraft when it was a beta game with like four developers in a basement in Sweden get guess what is it good enough anymore so they had to

Update it how common is that process guys is that like uh is that that’s relatively common it just sort of like flies under the radar or is that um uh not super common but also not unheard of like how how is that done can you walk us through that so yeah so there

Um it is extremely common for companies to to update their gulas many times uh there is always a uh behind the scenes debate because so if you read the Euless they’ll always have some um language in them that says like we reserve the right to modify this you

Live any you know at any time we will notify you of any material change um material change is always a thing that gets heavily debated and discussed internally um because you’re always making tiny little tweaks and like you know oh whoops we’ve made a spelling error or whatever like you know and like

Obviously those aren’t material changes but there’s always a question about oh man we’ve made actually like a pretty substantial change to how these games are going to work and notifying every player that you have is extremely difficult and expensive and invites a lot of scrutiny so

Um there’s always a question of well is this a material change or not and in the Minecraft case that you’re talking about that was a material change so they they you know said you know we’re changing the rules for how you can do I think it was monetized servers or whatever then

And and they specifically said from now on all uh you know servers have to be appropriate for all ages yeah and that’s a big change because like they are the same even people who have already you know made not safer work Minecraft servers or whatever like now they that is affecting

Them in a pretty substantial way yeah a lot more attention because it it does change the rules for people who’ve already will and I both have questions I can tell right so um I want to ask a quick clarifying technical question and then we can get into like the big the

The bigger questions about that so my quick question is you said that notifying all players of a game is expensive but can’t I just slap a big old pop-up on the home screen of the game the next time it phones home and call that good like isn’t that enough

Well it just notify in this case means something with a um is that a legal technical term for how much information must be given and how it must be delivered rather than hey there’s been a Eula update press ok to accept it and go back to playing your video game

So I’ll I’ll start the answer and then John if you have stuff to add um but um so first of all even adding a pop-up that says we’ve updated our Eula a lot harder than you think uh sure particularly for a game that is like years and years old and doesn’t have

Like a working development team on it um because yeah like the eulas are usually company-wide and they affect all games right um then there’s the question of well what if they say no um you know if they don’t accept the eulog well we can’t take away their

Right to play the game so like there’s always a bit of a question about like can we really Force these changes um do we have to allow people you know an opportunity to write Us in and say I opt out or whatever um but then yeah I mean here’s the thing

That’s really tricky is not everybody’s playing the game anymore so if you even if you were to put a pop-up notice in the game well what if I’m not playing the game anymore um and I don’t see the notice right so you you know there’s email notifications

There’s uh you know other ways of getting the word out um you’re there’s always going to be a potential if you ever have to litigate over Eula was this version of the EULA properly accepted or not um and it is and it is actually something that we do see get challenged

A lot I know there are a bunch of questions in the the chat about like oh well you know is it even enforceable actually there have been cases where they’ve said no this Eula is not enforceable it wasn’t presented it wasn’t affirmatively accepted you didn’t get it in player spaces effectively interesting

Yeah I think just to kind of add on to that one of the things that uh kind of you know in law generally that keeps getting I keep circling back it was always like was the effort to notify the audience reasonable uh you know were

Were is the pop-up is an email is you know knocking on their door and tell them that you will is updated it’s all just like within reason of uh getting that notice out and received um and that that’s always going to be I think kind of like a context

Case-by-case basis as well based on the nature of the game how people play it um how frequently you email them Etc so there are multiple ways to provide notice of an update to a Eula and it just kind of matters on the specifics of the game itself right so it’s so it’s

Not uh so it goes beyond you get a notification to your in-game mailbox that you can ignore but is not quite we have to hire a private investigator to process serve each and every player of World of Warcraft about the latest balance changes that include a major

Tweak to the Euler so it’s somewhere in that space you have to prove that you tried and that the player accepted it within a reasonable to a reasonable level yeah and that’s I mean when you’re when you’re doing legal counseling on so much of what you’re doing is just

Assessing risk and sort of making judgment call about like well how big is a how big of a change is this do we need to alert the media you know Etc right yeah um yes chat uh the pinkertons would be such an example of a process serving

Agency yeah that is definitely an agency which could serve people a process that’ll be a process yeah okay cool it’s a magical process so like it’s interesting that you said you know you may not have to allow them to say no because I feel like there have been eulers on games especially games

With live service components that it’s basically this is our new Eula click yes to accept and that there isn’t kind of an opt-out because for me to continue using that basically saying for me to continue using this game I must accept the new terms of service yeah and

I said I feel it’s slightly different on live service games than non-live service games is that does there have to be an opt-out or is that an exception if it’s to continue playing this thing that we are offering so I think in this in the situation of

Like live service games you can sort of have um an affirmative acceptance is continuing to to play in some situations uh because like with a live service you are continually getting updates to the game you are continuing to heating support um maybe new content gets added to it

Over time and like if you don’t accept this new one you might still be able to play the old unupdated versions but you won’t be getting any of the new stuff or something along those lines right um you know you could always disconnect your console from the internet and

That’s the way that you don’t have to you know and and the game will still run but if it was League of Legends in other words I cannot play unless it’s online on the latest servers because I can’t play an old version they’re they they will no longer host the old version

Like yeah and some of these get interesting and so you kind of you gotta accept and that’s the that’s the agreement that you are signing up for when you play a live service game and the game companies a lot of things will come back to you know the argument that

No one’s forcing you to play League of Legends or anything you don’t have to continue playing but if you want to continue these are the terms you have to accept so uh a word came up in uh in sort of uh our our discussion um and and we’ve sort

Of like hedged around it a little bit um but so there are we’re not talking about tools but there are several classes of game right there are games that are um so a single player Standalone experience uh we’re gonna say original Skyrim before all the mods right Skyrim

Single thing one experience one you love no the now you know 18 releases of Skyrim later I’m sure the Yule has been updated for Skyrim but that’s not what we’re talking about we’re talking about a single player self-contained experience and then league is another example of a kind of thing right we’ve

Got this live service persistent game but there’s this other type that has this interesting interaction of users creating a lot of content and user generated content again those are two separate things right and those are um are called platforms so is have I missed anything and what defines the

Nature of a platform like um a game that is hosting a lot of stuff uh something that is more um in a dialogue with players about ugc and the the content that gets uploaded yeah I think there are there are game companies that have uh said well we are creating a platform for

Your content uh and that’s a fundamentally different business model than we are creating a game um and it comes actually and part of the reason why it’s a difficult business model and one that requires a whole different set of legal resources and you know practical resources is that

Different laws apply when you’re running a platform um you can be held responsible uh for the content that other people upload to your platform if it is particularly bad you know and there are a lot of laws right now that are trying to uh explicitly make platforms more responsible for for moderating their

Content actively um and you know this is a super interesting and hotly debated area of the law but like you’ve just it is uh content moderation particularly at scale is an entirely you know it’s a it’s a huge complicated area of both practical and legal concerns yeah and uh I well so

Obviously it’s the the life of your huh the line between being a platform and not being a platform is not that does not feel like a clear delineation right because we have to throw a couple things out there like having worked in this exact area for a while the platform part

Is both the creation the hosting and in some cases the audience coming together it’s like if I go use RPG Maker or pixel game maker I can go make a game but they are not in any way hosting that game Distributing or bringing me an audience so that’s game creation without that if

I’m going to go play Halo and they are hosting a server that people can log in and match make on but I’m not making anything new or otherwise that is also not necessarily a platform that’s like game matchmaking but but it’s kind of that sweet spot of here’s a thing you

Can make things within it players on the platform because that includes the login and the credentials and everything else can come play the thing you’ve created possibly monetize off of that the monetization isn’t actually part of the platform aspect but it is the hosting the content within the same place that

The audience also has the login credentials and can be brought together right be a good part of my definition of the platform usually with some sort of communication method if there’s also games which then brings up the whole policing of not just the content but of the users interacting with the content

Right and this goes back to the um the whole push for uh that uh in our in our example that Minecraft says that all Minecraft servers have to be family friendly right which we can’t know for certain but seems reasonable to suggest that that’s in some way related to this

Push for platform responsibility because Minecraft means many of the definitions of what Jeff uh is saying as a platform though not all of them which is why I think gets a little it’s a little fuzzy um as a I guess here’s my question for Euless since most players accept the

EULA as a whole and there aren’t like separate little like if you’re gonna do this with the game except this if you’re gonna do that with the game except that there’s no like a la carte useless set up right um uh would it be fair to say that in most

Cases players accept the most strict version of the EULA so for instance uh if I have a game that has a single player and a platform style component right but I’m only gonna play single player I’m probably still gonna have to accept the more stringent platform-based Eula correct more or less

That’s generally how the industry does it uh I don’t I don’t know if I agree so I think so if you look at like Roblox they do actually have modular terms like they do have different terms for if you’re just a player that’s right and versus if

You create if you’re you know you’re a Roblox Creator and I think that’s partially to avoid the problem that you’re kind of getting at where you have people agreeing to terms that aren’t actually applicable to them so I think you know if if you are a

Simply a player of Roblox then you are gonna agree to like a certain set of community guidelines and you know you’re going to agree to you know all ages you know and and all that sort of things but then if you create con you know if you’re a Creator if you’re a con

Ugc generator um then there are different and additional rules that apply to you and and in the Minecraft um you know Minecraft also has separate you know terms for if you’re creating I believe I may not uh but the point is like if you’re creating a server then

They have rules about what you can call that server and rules about like how you can monetize it and you can’t be paid to win and things like that so those aren’t applicable to just everyday users of Minecraft they’re just a different set of terms for people who want to create

Right I think I’ve even seen companies even some EA companies that have a separate Eula as soon as you click on the online component for the first time so if you’re playing single player version of the game you know you get the initial one and then as soon as you click the online

Play it pops up an extra thing and my guess based on what you’ve said is that divides it up it makes it easier to inform the correct group of people on a material change to the EULA because it can be a smaller subset of people that

You have to go after on that update it feels very much like the legal version of online interactions not rated by the ESRB sort of which I think a lot of us are familiar with right that the game is rated T for teen but there are definitely some things online that are

Happening that are not T for teen um uh I think well so I think in I’m speaking only from experience sometimes uh the reason that we have a pop-up in game before you go online is not necessarily for legal reasons because like you’re already subject to a

Yola that says Don’t Be a Jerk It’s more just to remind them don’t be a jerk yeah absolutely yeah they’re um and different communities and different companies take that uh responsibility and enforcement of Don’t Be a Jerk very differently um I’ve been perusing uh the the videos

Of several creators who move from World of Warcraft to Final Fantasy 14 and they both have very similar language in their online terms of service about don’t be a jerk but the ways that they’ve chosen to deal with jerks in their online environment are radically different uh

To one another shall we say so Um I just wanted to Circle back to this platform question right and how how it relates to ugc so I think part of the the there was a lot of pushback in in the public sphere when the Minecraft Eula got updated and I think a lot of it

Feels like in light of our conversation that it was most likely due to not understanding the the um ways that eula’s happen in general I think that feels like a common thing in your in your experience with lay people right you’re both Gamers and you’re both lawyers which means you talk to other

Gamers but probably not about lawyer stuff and you talk to other lawyers who are Gamers because you work in game law which is awesome probably second only to bird law but like game law is pretty great um would you say that most lay people don’t have a firm grasp on all of these

Like legal terms right like the idea of derivative work I even before our conversation I didn’t have a firm grasp of what the boundaries of derivative work meant in a legal sense do you find that that’s that’s common when you get asked at cocktail parties like hey

What’s up with that Eula anyway I I assume at least one person has asked you what’s the EULA anyway and then done finger guns uh it feels like something you might think okay great awesome yeah so I don’t know if it’s like I don’t want to like

Just say it’s like not you know it’s not really necessarily an ignorance of it because the the guy I assume the people reading you will understand a lot of the language there because the eula’s a good Yule is written in language that is easy enough to understand okay uh and

That that’s an important aspect of them I do think that people reading a Eula especially in isolation um may not fully grasp the broader like environment that it exists in especially with regards to other eulas that are out there and sort of um uh a bit of um

Almost a paranoia whether found it or not that a company will be maximalist in enforcing their rights provided in a Eula um it’s also like impossible to account for every single like Fringe possibility that a Eula may or may not account for like um you know like Jeff talking about you

Know the the example of recoding and using assets and stuff like that’s a a different a different animal altogether than like ugc or content that may not be accounted for in a Eula um so I don’t think that it is necessarily an ignorance rooted issue but uh at

Least not pertaining to the specifics of the EULA itself um but it’s a much bigger Universe than what the EULA itself contains I think and that is maybe something that people are not always inherently aware of yeah and just to piggyback on that I think you know with with respect to

Minecraft again we don’t know specifically why they made the change to make everything family friendly but you gotta imagine that it has to do with their own legal exposure yeah um and when you know you’re justifiably paranoid when you read or Eula and you

See oh we can change it at any time and you’re you know it can really disrupt your that thing that you’ve been working on um but that’s going to be in literally every Eula like they all have that that freedom to change it is that the Darth

Vader thing you were talking about yeah yeah I’ve altered the deal of prayer brother yeah like that’s that is a risk that anybody takes when they invest a whole lot of time and energy into making like a derivative look and that’s not specific to games by the way like that’s

YouTube Every extra credit video you know if YouTube tomorrow wants to go change the algorithm to you know how we get exposed or change you know how naming structure is done or they just put a thing out it’s like hey we are changing how monetization is done these

Check boxes are going to go away in a month like if you’re work if you’re playing in somebody else’s playground you are subject to whatever they said is the playground rules if you want to keep playing in the playground even if those are retroactive at a lot of people

Um to go off of what John said are very worried about that maximalist approach not understanding that there are some very good reasons why a company would want to explicitly remind people that they have those rights for instance Minecraft servers right host all kinds of communities right but I don’t think

Anyone wants uh for example any game company wants any uh server that they’re hosting to be a Haven for hate speech as an example they don’t want their branding associated with that and so they’re retaining the right to say hey not that right right and that makes

Sense right that that is a sensible argument but I think a lot of people are saying you know oh no I said in my Minecraft server that Jeb was a poopy head now they’re gonna shut down our Minecraft server and I think that that that

The leap from uh what what can be done to what will be done is a very common leap for end users right people don’t like ambiguity like because Nintendo could do a thing or you know Microsoft could do a thing with Minecraft you’re basically living on the sufferance that they won’t

Yeah yeah I think that ambiguity and change together uh is a frightening combination for a lot of people so yeah absolutely I think that’s an excellent line for it yeah um and and like we said earlier as well um and Chad’s mentioning Nintendo yeah Nintendo’s Eula is Nintendo great

Um that’s it they have nothing to gain from a business of people making derivative works out of their character right correct and they they have this broad um and like we said that is entirely up to the individual companies right Minecraft has been rather on the

Permissive end of that up until uh up until now and they still are they’re slightly less permissive than they were before but they’re still on the more permissive end of that they just said uh essentially the the bullet point version is be family friendly okay that makes

Sense they’re in e-game for everyone and their target audience is you know young young kids this is in Second Life right I had forgotten second life and then you reminded me and existed and I’m upset with you for it um the uh the um uh we have a video on the channel from

When we were doing the channel split of uh one of the kids of one of our artists of two of our artists teaching Matt how to play Minecraft and she’s single digits low single digits like just yeah yeah just starting school and she has a firm grasp with my graph

Mechanics and knows more about Minecraft than Matt does which is great right but it does mean that they want to cultivate an environment where those kids are safe to play those games in that way right um and I’ll say like so I do a ton of work in in privacy and kids protections

Yeah and this is an area where like it’s explicitly required in these new laws that you have to do community moderation you have to make sure that your your platform isn’t toxic to kids and we had a big FTC uh you know a settlement against epic because they’re you know it

Was under Kappa but also section five but basically it was just your your fortnite is toxic for you know and it’s leading to kids getting harassed and like you know it’s not like anyone from epic was contributing directly to that harassment or toxicity but when you operate any any sort of online service

That you know kids are going to use it just you’re you you have certain obligations right yeah and so um to kind of draw us back to the to the content end of this right and people’s understanding it really feels like this is all a a Confluence of things so we

Have this these platform obligations that individual platforms have uh that have been given to them by regulatory body right these regulatory bodies say you are a platform you have to um hold to certain standards for the content that will be available in your platform and then there’s the audience

That consumes it correct and the audience that consumes it and then we also have this whole um ugc and what I I don’t know if there’s a right word for it but like um uh freeform content right and people’s perceptions that they that that is theirs

Um that that is uh a thing over which they want to have control and it feels like those two things sort of arrive at this misunderstanding of why Platforms in general want to control the content that that uh arrives at it like what John said right that there’s some

Synthesis of obligation and users wanting to be users that ends in this place of they’re gonna take they’re gonna take my OC and I even said Please Don’t Steal on it in the name of you’re talking about two of the hardest things in the world we

Need to keep a thing safe and policed we allow people to make almost anything they want yeah and then they mesh and that’s where the you know company gets into trouble and has to write a strong Eula to try and figure out how they defend themselves against basically mutually contradictory things allowing

Users free expression and creation while moderate while also um bringing an audience on and moderating what that audience sees right yeah right because because there is a big benefit to in in games and in any media but to having a thriving fan Community you know even if in the world

Of literature you know embracing fan fiction embracing you know like there there are it is becoming a more standard it is becoming uh harder for cut authors to be like no fan fiction or or you know and and to say I don’t want to see the the fans engaging with my work um

But at the same time obviously nobody wants their work mangled right yeah and there is a bit of a copyright aside to that as well in in certain aspects of like character copyright ability but that’s a whole other question so yeah right we have uh many of you in chat and

Uh we call them Janet the YouTube comments here on Twitch that’s Brad over on YouTube that’s Janet don’t worry about it it makes sense um uh so um Time Warp over here exactly Rocky Road astounding um uh you may have noticed that we intentionally avoided some Avenues in

This conversation and that is because that looks like a little side alley detour and then you get past the initial part of the side alley and then you realize that you’re in like the whole sewer under city of New York in like this giant very deep nuanced discussion

That we have neither the time nor space nor frankly two of us the expertise to engage in the legal more more mores of of all of the copyright edge cases and the words I’m going to say the words and then we’re not going to talk about them fair

Use we’re not getting into that discussion right yeah they shivered perhaps in a future extra credits maybe another maybe another day maybe speaking of which if you happen to be watching this say about a month in the future right there’s a very excellent episode written by Homeland can I point the

Right way yep these two Joe’s guys those yeah see I did it the the those guys that uh will be on the channel so yeah I heartily recommend we actually have a YouTube playlist I believe called video games in the law that is a collection of every episode

That we’re where we talk about legal issues that is fascinating if you love this kind of stuff yeah discussion is there anything that you really felt like elucidated this whole question of ugc ownership and platform responsibility that I I have neglected to touch on in our in the traffic of our our conversation

At the level we can do in a yeah right talk show I think we’re good yeah all right excellent yeah well uh Joe John thank you so much for joining us for this episode of design club uh as always chat please let us know uh what you

Think in the comments below about this conversation did you find it informational um did you have certain preconceptions as I did going into uh our conversation about uh the rights and responsibilities for user generated content or uh just making content like your Minecraft world um that maybe this conversation uh

Helped clear up uh if you do leave them below and we’ll take a look at them later and in the description by the way we’ll throw a link over to uh where these two uh work up here in case you happen to have some expertise we have

Worked with them in the past they are excellent that was an unsolicited endorsement from them like yeah these are good people and they know their games and their law yeah they really do and as always thanks gents it’s been abs a blast having you yeah so from Roger

From all of us here at EC design Club we’ll catch you all next time bye everybody foreign