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Games and Other Uncopyrightable Systems

43 Pages Posted: 30 Mar 2010 Last revised: 23 Apr 2011

Bruce E. Boyden

Marquette University - Law School

Date Written: April 20, 2011

Abstract

This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meaningful content.

Like solving a crossword puzzle, this Article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs of a system. Games and other systems are excluded in order to fence in copyright protection before it reaches user creation.

Keywords: Copyright, Games, Systems

JEL Classification: K00, K11

Suggested Citation

Boyden, Bruce E., Games and Other Uncopyrightable Systems (April 20, 2011). George Mason Law Review, Vol. 18, No. 2, 2011; Marquette Law School Legal Studies Paper No. 10-11. Available at SSRN: https://ssrn.com/abstract=1580079

Bruce E. Boyden (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
(414) 288-5492 (Phone)
(414) 288-6403 (Fax)

HOME PAGE: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=4152

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