Is there honestly anybody out there who didn't see this coming? With a handful of top-tier titles now available which have taken the time to emphasize user-created content, the community has responded in kind, filling these new games with thousands of lovingly-crafted creations. Of course, some of these users have "created" more than others, basing their submissions off of existing works and/or copyrighted material. Just last week, reports started to roll in that Guitar Hero: World Tour has been deleting songs from its GH Tunes section -- songs based on popular video game tunes such as the Mario and Zelda themes, for example, have notably vanished from the available downloads. Similarly, Sony's user-created playground, LittleBigPlanet, has started to axe creations which may reference copyrighted properties, deleting popular levels based around Batman, God of War, or TV's Scrubs.
I've touched on the grey areas of homebrew content once or twice before, and for the most part, I'm in favor of it. Gaming is a fantastic medium for the world's creativity, and an environment that actively encourages and rewards the act of creation is something I deeply admire. It's for this reason that user-driven content showcases like Kongregate and Whirled are so wonderful, in my opinion. Bringing these same possibilities to mainstream console audiences should be similarly applauded. But, as any user-content site can tell you, from YouTube to Flickr, users have a tendency to upload content that's not exactly their own creation. By the same token, on any one of these sites, that content has a nasty habit of disappearing -- and the same thing is happening here.
None of us are surprised by this, I imagine. By "this," of course, I mean both sides of this situation: I am neither surprised by the fact that users are submitting legally questionable material, nor by the game operators' decisions to remove it. The question is, who is in the right in these cases?
Legally, there's not really a debate to be had. Companies like Activision and Sony have the right to protect themselves when a blatant case of copyright infringement pops up on their services, but even in the case of uncertain works -- works that might, with further examination, qualify as fair use or original content -- technically, they can still do whatever it is that they want. We might not care for it, but from a purely legal standpoint, there is nothing to stop them from saying "Our game, our rules, our call to make," essentially, taking their ball and going home. LBP's own EULA, which users are made to view at least once and are reminded about upon every sign-in, states clear terms such as "SCEA may modify game content, including User Generated Content, at any time for any reason," and "You agree that you will not create, transfer, share, send, submit, or upload any User Generated Content that is protected by copyright, patent, trademark, or trade secret or otherwise subject to third-party proprietary rights..." I don't have ready access to World Tour's EULA, but I have to imagine it sounds about the same, just like every software EULA over the last decade. Sony and Activision have a fairly unassailable legal standing, but if Law & Order has taught us nothing else, what's legal isn't always right, and what's right isn't always legal.
For one thing, while there may be a few users out there who are trying to shortcut their way to fame by relying on someone else's popular name, let's face it: People submit content based on their favorite properties because those are the things that they like. The Mario theme is a song that gamers identify with, it's a tune we've cherished for years. If we are presented with the tools to play the song in an interactive fashion, in a setting that has already proven enjoyable for a "music-making experience," why on earth wouldn't we want to do it? To some degree, this is our god-given right -- is Nintendo going to come to our house with a Cease & Desist any time we plunk out the Zelda theme on the piano? Of course not; not a court in the land would grant them such power. For that matter, probably 75% of folks who own instruments are not music composers -- they will use these tools to play music that someone else has written. That's why the sheet music business is alive and well.
It's arguable that games like World Tour or LBP, with their extensive suites of content-creation tools, are the instruments of a new era -- mechanical devices that, when manipulated by experts, can produce art for the enjoyment of themselves and others. Yes, I'm well aware of how pretentious that sounds, but the principle holds: If I were to use these games to replicate existing works in the comfort of my own home, I fail to see what anybody could do to stop me -- and whether I'd even be breaking a law. I'm within my rights to draw Super Mario Bros. World 1-1 on a sheet of paper, or model it with a rendering program, or build it out of LEGO. What difference is there, then, in constructing it in LBP, or playing its music in World Tour?
The difference, as I see it, comes from uploading it to the game's online audience, potentially damaging any sale of works that the content's actual owner might some day hope to realize. Granted, some of these situations are serious longshots, but it's still a possibility that has to be considered. Let's say, for example, that you come up with a really stunning rendition of Tom Petty's Into the Great Wide Open via the GH Tunes creation suite. The arrangement is distinctly your own, but the song is instantly recognizable as the Heartbreakers' classic hit. Tom Petty is not available as DLC for any known music game, people love to play the song, and who knows; maybe you convince a few fans to buy some albums.
Assuming all of these conditions are true, it's a win-win ideal situation, right? Unfortunately, the trouble arises from the idea that Tom Petty might some day want to sell DLC for Guitar Hero, and your song might give him some trouble. While Tom Petty's original recording of the song is undoubtedly the better one, here's your alternative rendition on GH Tunes, available for free (subscription plans notwithstanding). Not to mention the fact that your song has been available for quite a while now, meaning that folks who have already downloaded it and experienced a version of "Great Wide Open" in Guitar Hero are less excited when another version comes along, regardless of the difference in quality. While it's true that the majority of music fans will gladly buy the original rather than accepting an imitation for free, not everyone will be so charitable, and Activision needs to protect its future interests.
This gives rise to a number of increasingly unlikely hypothetical situations, of course. I expect we'll see Guitar Hero appearing on The Phantom before we see Nintendo agreeing to license the Mario theme to Activision, so why shouldn't we be allowed to share our enjoyable arrangements with the world? Because, even though we all know it will never, ever happen, it could happen -- and unfortunately, that's how Activision needs to operate. This is doubly true if Activision intends to go through with its ill-advised GH Tunes subscription idea; it's one thing to let users share amateur versions of copyrighted tunes, and it's quite another to charge money for someone else's song. Just because Activision won't get sued today, doesn't mean they don't have to prevent themselves from being sued tomorrow.
The same thing holds true for LBP. It's admirable that the community has chosen to pay homage to its favorite properties by making Mirror's Edge levels, Batman levels, and so on. However, what if Sony has plans to some day use LBP levels as a promotional tool? Maybe they'd like to make an arrangement with EA, such that gamers who pre-order Mirror's Edge are granted access to an exclusive LBP level, or will receive an exclusive set of "Faith" costumes or decals. With users submitting their own Mirror's Edge-based works, suddenly EA's content isn't so exclusive. As cheap or nakedly greedy as it is, and as disappointed as I know I would be to see LBP be utilized in such a fashion, I do not own the rights to the game. It's not my call to make.
Even in cases where the works are thoroughly original creations -- nobody is going to confuse the "Scrubs" level for an episode of the TV show, for example -- the mere act of dressing up the level in the trappings of an unlicensed IP is a spotty issue. GameCyte's legal consultant points out a similarity to the act of sampling, in music, which seems quite apt: Nobody in their right mind would argue that "Ice Ice Baby" would damage sales of "Under Pressure," yet the former song undoubtedly profits by way of the latter's work. From the wikipedia article (an ironically user-generated work) on sampling:
Today, most mainstream acts obtain prior authorization to use samples, a process known as "clearing" (gaining permission to use the sample and, usually, paying an up-front fee and/or a cut of the royalties to the original artist). Independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage - unless they seek the services of a professional sample replay company or producer.
Given that LBP users are unlikely to get such clearances from the various games, movies, and other properties they use for their levels, it would seem the cause is lost. The tragedy, unfortunately, is that this zealous zero-tolerance approach is so damaging to the content creators and their unique interpretations of our favorite franchises.
If you didn't get a chance to see some of the "objectionable" levels in LBP, the fact that you'll never have the chance is really unfortunate. Some of these levels won't be missed, amounting to little more than half-assed platform excursions dressed up with familiar characters, but some were fully-realized experiences, clearly crafted with love and care by their creators. The Batman level that started in Wayne Manor, opened up into the Batcave below, and played a tongue-in-cheek chorus from the Batman TV theme gave me quite a smile -- and the God of War level, which asked you to hurl 20 hapless souls into a fire, and then immediately perked up with LBP's signature happy, pleasant music as you got to work, was hilariously done.
Judging from the complaints that are now arising over the deleted works, these were not submissions that the creators took lightly: tales of woe are being told that claim hours upon hours of work are being deleted without so much as a warning -- and, worse still, without allowing the creators the chance to amend or fix the offending content -- in the case of "moderated" LBP levels, so the story goes, the penalty goes so far as to restrict the level for even personal use or editing on one's own home console. That, by any stretch of the imagination, is much too harsh of a reprimand, and what's worse, it ends up levying the worst punishment on the most creative among us.
It's the same argument that is frequently applied to draconian methods of DRM: The negative consequences only do harm to loyal, paying customers. A pirate won't care about your copy-protection scheme that he's already circumvented, whereas an ordinary Joe will be upset that he can't play a game he's paid good money for. Similarly, some schmoe who spends half an hour on a bare-bones level dressed up in shades of "LOL PS3 IS TEH GAY" isn't going to miss his deleted creation, while someone who spends an entire day to add value to your game world is going to feel hurt when he can't even enjoy his work in the privacy of his own home. Legal or not, the people this policy harms the most are the customers LBP desperately needs, in order to remain viable and engaging. Protect your interests if you must, Sony, nobody will fault you for that -- but wiping out the work on the creators' own consoles, with no chance given to repair the offending content? That's low.
In the end, it's important to realize that this argument, like so many gaming topics, is not an entirely new one. One could even suggest that gaming is irrelevant to the discussion -- we would likely find both sides of the argument to be equally apt a century ago, discussing the merits of letting amateur performers plunk out their favorite artists' tunes in a bar on an upright piano. Homage vs. rip-off, fair use vs. protected property, breeding new fans vs. damaging someone's livelihood. The tropes are all there, the argument has simply spread to a new venue. Still, gaming is our venue, and it's important that we continue to have the debate, so that we know what's in store for user-content-driven games to come.
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