Many libraries have offered game tournaments for years. In the “June 2008 School Library Journal, a media specialist asks: “Since these games are intended for home use, isn’t that similar to purchasing a movie and showing it to a large audience?”
Carrie Russell, the ALA copyright specialist, suggests:
Librarians can: (1) continue to offer video-game competitions and let the chips fall where they may; (2) contact the rights holders and ask if their licenses can be modified to accommodate your programs; or (3) email the rights holders and tell them you’re opting out of the portion of the contract that allows only home useâ€”and unless they tell you not to, you’re planning to offer gaming tournaments. Although the last option sounds incredibly brazen, copyright experts say it happens all the time in the business world. Of course, there’s always the possibility that your library may be held liable for misusing a video game (sorry), so each of us needs to determine how much risk we’re willing to take.
Which option does/will your library take? Do other options occur to you?
In the latest games in libraries podcast (http://gamesinlibraries.org) (full disclosure, I contributed a segment to the podcast too), Scott Nicholson reports on case precedent he found that ruled that games, which are meant to be played, are not considered public performance in a court of law. So the answer to the question that Carrie failed to provide is that the courts have found that playing games is not a public performance, so (1) is not as dire as it’s made out to be.
In addition, there is a very strong Fair Use argument for using games for a public event at a library. It’s a non-profit use that does not subtract from the right’s holders ability to earn income from the content (usually quite the reverse). Solid fair use doesn’t stop a company from filing suit, but it generally stops their lawyers from thinking they can win. Never mind the fact that game companies are supplying libraries with prizes and hardware, and not subpoenas.
It cannot definitively be said that this is safe from a lawsuit, because essentially anyone can file a suit about anything. However, 5 years into this, I’ve not heard of a single library being told that they can’t do this or having any sabers even quietly jiggled at them. I asked Nintendo’s PR firm, if I needed permission to do these events and they laughed at me. I’ve heard of libraries that weren’t allowed by their administration to have a madden tournament until they received permission from EA. Nobody at EA would return the phone calls, so they never had an event. Meanwhile, for-profit madden tournaments are happening all over because the tournament organizers never fretted about whether or not what they were doing was specifically allowed or disallowed by a shrinkwrap license; they just did it.
If you need definitive proof that this activity is protected under the law, you’re not going to find it, but you could say the same thing about a wide range of library services. We have always existed in a gray area, and the first sale doctrine which is essentially the basis of the entire library business was once no more than case law. Gaming events are on no less solid legal ground than anything else we do at libraries.
Two more takes:
Lawyer Mark Methenitis, who authors Law of the Game, says to read the End User License Agreement (EULA)
Much Ado About Game Night
A segment on episode 3 of the Games in Libraries Podcast by Scott Nicholson, talks about the case of href=”http://bulk.resource.org/courts.gov/c/F3/89/89.F3d.614.html”>ALLEN v. ACADEMIC GAMES LEAGUE OF AMERICA 89 F.3d 614 (9th Cir.1996) that determined playing a game is not public performance.