30 November, 2013

Newegg Loses Patent Appeal

Patent trolls have been discussed, not only on this blog before, but all over the IP community in the last several years. Although steps are being taken to address this potential abuse of the patent system, until things are resolved these entities will still attempt to reap the benefits of their unused patents to make quick profits through settlement or litigation. One of the companies which has faced a wave of patent litigation of the past few years is the online retailer Newegg, having beaten Soverain, another patent troll company, on appeal after a tumultuous litigation process. It seems Newegg has yet to end its patent litigation chapter.

In the recent case against TQP Development, a company owned by Eric Spangenberg, Newegg faced a patent infringement case dealing with a patent invented by Michael Jones, which was since bought by TQP. The patent itself covers the usage of common encryption methods (SSL and RC4)  together to protect purchases online for example; although Mr. Jones did not invent the methods themselves.

This case is one which won't be fully cracked just yet
The jury in the case found that Newegg had indeed infringed the patent owned by TQP, awarding them with 2,3 million dollars in damages, and deciding that the patent held by the company was indeed valid. Although the decision has already rattled some cages, Newegg will without a doubt appeal the decision, as it has been their stance throughout all of their patent litigation history.

While the verdict itself is important, the motives behind litigation by not just TQP, but other similar companies as well, shows a blatant and open abuse of the current US patent system. The owner of  TQP Development Mr. Spangenberg openly states on his website for his company IPNav that he will "...[turn] idle IP assets into revenue streams", having sued a over 1600 companies in the last five years alone. Although clearly successful in his endeavors, Mr. Spangenberg's motives are highly questionable and only highlight a need for reform.

Newegg's Chief Legal Officer Lee Cheng took to Reddit and gave encouraging words over the verdit and previous ones, clearly further affirming their intentions to appeal the decision. Whether things will go better for them further down the line will remain to be seen, but at least this writer is optimistic.

Source: Ars Technica

26 November, 2013

Retrospective - Breach of Trust in Intellectual Property

Intellectual property, in essence, carries its worth and value in the knowledge or ingenuity of the inventor, or the creation of the author of a work, not necessarily in the tangible (or at times, intangible) property that is created from that. With this comes a great deal of risk, in modern days in terms of industrial espionage or the accidental or intentional leaking of details related to books etc, which renders the subsequent intellectual property much less valuable or even worthless. Through this one can understand that a great deal of trust is often placed on those with special access to particular information or details, which can be broken and cause potential damage to the creator. The modern doctrine of breach of trust is well-established, but it stems its roots from the mid-19th century.

One of the first cases that dealt with breach of trust in relation to intellectual property was Prince Albert v Strange all the way back in 1849. The case concerned a collection of etchings and drawings made by both Queen Victoria and Prince Albert of various domestic subjects for their own enjoyment, subsequently being commissioned to be printed as a collection. These etchings were made in a private press, due to their personal nature and thus Prince Albert's wish was for them to remain fully private. William Strange was a printer and publisher in London who somehow obtained copies of some of the etchings, allegedly through the aforementioned private press where the etchings were commissioned from. The prints made by Mr. Strange were made from plates held by Prince Albert and Her Majesty, thus bringing their acquisition into question. Mr. Strange (and the other defendants) wished to print a catalog of the etchings under the title of "A Descriptive Catalogue of the Royal Victoria and Albert Gallery of Etchings", which contained detailed descriptions of 63 etchings with additional critique of those works. Mr. Strange argued that he had the right to publish the works, even though disapproved by the Royal plaintiffs, and the Court of Chancery had to decide whether he was indeed entitled to do so, thus dissolving the initial injunction granted to the plaintiffs.

The case brought about the consideration of property and trust in relation to that property. This is best illustrated by the comments of Lord Chancellor Cottenham, where his Lordship stated that "[t]he property of an author or composer of any work, whether of literature, art or, science, in such work unpublished and kept for his private use or pleasure, cannot be disputed". What his Lordship is clearly saying is a property right of trust (or privacy in a sense) in personalty which is created by someone. This applied, prior to the case, for example to personal correspondence in the form of letters. The defendant did not contest the ownership of the property by the plaintiffs, but still argued that any person who obtains such property would still have the right to publish it. Even though the defendant merely intended to publish descriptions of the works, the Court saw that this would be akin to the publishing of the etchings themselves from imprints, which the defendant would not be entitled to do.

Lord Cottenham agreed that the right of privacy in property did exist and that the defendant would not have the right to use and publish them even if he had acquired copies of those works. Although an interesting notion, what is of importance for us in the case at hand is whether there would be a breach of trust should the defendant have published the catalog; this being the need for the injunction itself.

An artist's rendition of the Royals' etchings
The potential breach of trust related to the actual possession of the etchings, which were potentially obtained through illicit means. Mr. Strange's possession of the etchings, in his Lordship's mind, had to have originated in a breach of trust, confidence or contract on part of the printer's employees or the printing press' owner (one of the other defendants in the case). How the etchings were obtained remains unknown, but as his Lordship observed, this would not matter as mere possession by Mr. Strange was enough to establish that fact. This was further expanded on by his Lordship, demonstrating this very point, using the case of Tipping v Clarke: "If the Defendant has obtained copies of [artistic works], it would very probably be by means of some clerk or agent of the Plaintiff; and if he availed himself surreptitiously of that information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract". Mr. Strange was subsequently denied the dissolving of the injunction due to this breach of trust.

The Court's observations do match a common law notion of copyright in unpublished works (something which even exists today); however the Court's observations could potentially extend to a right of privacy over property of confidential nature, irrespective of it being copyrighted work or not. Although the case is of little relevance in the sphere of modern breach of trust or confidentiality, it goes to show the importance of certain types of works, especially in relation to intellectual property.

22 November, 2013

Google Free to Scan Books - For Now

Google Books is a great resource, especially for books which have gone out of copyright. As a part of their vast repository of both partially available and fully available titles, Google has taken upon themselves the task to digitize millions of books from libraries in their Google Books Library Project. As stated by Google this Project aims to "...make it easier for people to find relevant books – specifically, books they wouldn't find any other way such as those that are out of print – while carefully respecting authors' and publishers' copyrights. Our ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers". As one can imagine, several publishers did not like this initiative and sued Google over the Project. After a legal battle that has been waged for over 8 years, the matter has come to an end - at least for the time being.

The case of Authors Guild v Google came to its initial conclusion a little over a week ago, and the decision has already shown a clear division of opinions. As briefly explained above, the case concerned Google's attempts to digitize book collections from public libraries in the United States, having digitized over 20 million books since the effort began almost 10 years ago. The main concern for the copyright holders in the case, represented by the Author's Guild as a part of a class-action lawsuit, was the provision of 'snippets' of books which were still under copyright (making the entire book searchable), in addition to a multitude of books no longer under copyright. The plaintiffs in the matter argued that Google was infringing copyright in the digitization of these books and providing the snippets for the public to view as a part of their search results in Google Books.

"Daddy, what's a 'book'? Why isn't it on the computer?"
What Justice Chin had to decide was whether Google's use of the books fell under the US doctrine of fair use. More specifically the Court was concerned as to whether the use would amount to a 'transformative' use, or in other words, adds something new to the old work or alters its expression or meaning. In the Court's view Google's use of the books was indeed transformative, due to the creation of an index of the information which aids readers, scholars and the like in the finding of books. The service also aids libraries in their work in identifying and finding books. Under an overall assessment of the four factors Google's use would fall under fair use. The Court also accepted that the text snippets provided did not infringe copyright as their only provided a mere glimpse into the expressive value of the books.

Justice Chin weighed the benefits that the service provides heavily in Google's favor in his decision, in his mind: "It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders". In addition to the benefits the service provides the Court saw that Google could not be liable as a secondary infringer, as the libraries themselves do not infringe copyright in their uses of copyrighted material; "...if there is no liability for copyright infringement on the libraries part, there can be no liability on Google's part".The plaintiffs have indicated that they will appeal the decision to the US Court of Appeals, potentially lengthening the proceedings till 2015 if the matter goes all the way to the Supreme Court.

The decision was also criticized by Hillel Parness (a partner at Robins, Kaplan, Miller & Ciresi), where he stated that "[t]he suggestion is that if a particular unauthorized use of copyrighted materials becomes ‘essential’ or ‘important’ to society, the fact that it was brought about by brazen, unapologetic copying becomes far less important... It gives rise to the dangerous idea that allowing society to become accustomed to - or even reliant upon - such widespread commercial copyright infringement will damage the ability of the rightsholders to obtain relief". Whether Mr. Parness' concerns are valid is questionable, as the provision of books as searchable results does not, at least in this writer's mind, provide individuals with an effective route to infringe copyright. Should Google provide full text versions of the books the matter would be different; however a index of books and some of their content fulfills a useful tool for readers, not infringes.

As said the Google Books saga has yet to face its ultimate conclusion, but this writer for one believes the result was right. Whether the decision is upheld on appeal will remain to be seen, but Google should keep optimistic about their chances. As HathiTrust before it, fair use for digital indexes seems to be firmly within fair use.

Source: GigaOM

18 November, 2013

Retrospective - What is an Invention? An Early Australian Perspective

When considering the humongous advances through invention humanity has undergone in its existence in this world, starting from the primitive inventions such as the ability to control fire to more modern marvels such as the Internet, one cannot be nothing but at awe with the collective capabilities of humans. Inventions themselves can cover almost anything when thinking in laymen's terms, but what amounts to an invention under law? In Australia this is judged based on the NRDC case, which has been discussed on this blog prior; however a case nearly 50 years earlier set the stage for NRDC which is often overlooked.

The case in question is Rogers v Commissioner of Patents, decided in 1910 by the High Court of Australia. The invention being dealt with in the case was a device or a contraption designed to burn down standing timber, causing only a segment of the bottom to burn, thus felling the tree once burned sufficiently. The device used kept the burning piece of wood used to burn down the tree in constant contact with the tree through a tripod of sorts (two forked pieces of wood) which rested the burning piece of wood against the base of the tree at an angle. Due to this the smaller burning piece of wood would fall towards the base of the tree as it was heavier, keeping it in constant contact with it as desired. 

Much like the aforementioned NRDC case the question at hand for the High Court of Australia was whether this device would fall under the 'manner of manufacture' requirement in the Statute of Monopolies 1623. Chief Justice Griffith contemplated the phrase's meaning in the majority decision, seeing that the word 'manufacture' can apply both to the product itself or the manner in which it is produced. He further distinguished that mere new ideas themselves will not be sufficient to be patentable, drawing from the case of Harwood v Great Northern Railway Co: "...you cannot have a patent for a well-known mechanical contrivance merely when it is applied in a manner or to a purpose, which is not quite the same, but is analogous to the mariner or the purpose in or to which it has been hitherto notoriously used". His Honor clearly refers to the use of the two forked sticks in the device in question as to whether they would fall under such a definition. In further explaining his position, his Honor referred to the case of Lane Fox v Kensington and Knightsbridge Electric Lighting Co: "A patentee must do something more; he must make some addition, not only to knowledge, but to previously known inventions, and must so use his knowledge and ingenuity as to produce either a new and useful thing or result, or a new and useful method of producing an old thing or result".

Joseph was confused as to how to use the device
As said above, the use of a very primitive device, clearly already known, would be hard-pressed to fall under the definition of a manner of manufacture under his Honor's considerations. His Honor does go into more detail applying the aforementioned precedents in the patentability of new ideas: "There may... in some circumstances be a patentable invention if the discovery involves novelty in the use of a known thing as distinguished from novelty of purpose or if any new modification of the thing or any new appliance is necessary for using it for the new purpose". In his mind a tripod, as the two sticks served as, did not fall under this doctrine, as the device was not a modification of the conventional tripod nor was there a new appliance; the sticks merely served as a tripod even under the new use. His Honor dismissed the appeal on these grounds.

Justice Isaacs showed a different approach, giving a dissenting opinion. In his Honor's mind new uses for old apparatuses could attract patentability, quoting a number of cases, the more illustrative of which is the House of Lords decision of Patterson v Gas Light and Coke Co: "...if by reason of knowing the theory he [the appellant] is enabled to make some improvements he may take out a patent for those improvements, but he cannot take out a patent to prevent others using what they had used before, though only empirically". In his Honor's mind the use of the tripods in this manner would be patentable.

As one can see the old views of what can be considered an invention, or a manner of manufacture, showcase themselves to be incredibly archaic, although still very useful in further considerations. Rogers v Commissioner of Patents was used extensively in NRDC, and therefore merits discussion, but it's application in today's patent law can be said to be minimal at best. Regardless, this case is still overlooked, and does give more insight to the origins of modern patent laws and their application.

15 November, 2013

Irish Copyright Review: Modernizing Copyright

A wave of copyright modernization seems to be sweeping the common law system, with reviews being undertaken in both the United Kingdom and Australia at the moment. Not to be outdone by its common law brethren, Ireland launched its review of its copyright legislation in 2011, with the final report having been released late last month after almost a year's delay in its release. Although arguably a lesser force within the common law system, Ireland's review of copyright does still serve as an indication of where copyright will be potentially headed in the future; both in the common law and elsewhere. As the report's first sentence aptly states: "Copyright reform is in the air".

The report is very extensive, touching upon most contentious areas of copyright and attempting to suggest changes to the currently in-force Irish Copyright and Related Rights Act 2000. While all of the topics discussed merit further evaluation and offer much to the current discourse of copyright not just in Ireland, but also globally, discussion will be left to only parts of the report by this writer.

Fair Dealing

One of the biggest questions in copyright globally is the line where fair dealing (or fair use) should be drawn, and Ireland is no exception to this. Under the current Act Ireland has a very limited fair dealing scheme which allows for the use of copyrighted materials in research and private study and in criticism or review. The report does recognize the incredibly limited nature of the current regime and attempts to remedy its shortcomings under the recommendation "...that the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors". These factors would include a very wide scope of consideration, varying from the purpose and nature of the copying to the possibility of obtaining the work legally; a lot of which resemble considerations already used in a number of other common law countries.

The report actively tried to distinguish its approach to fair use from the often used US fair use doctrine, which has been adopted in a number of nations even outside of the common law, but the suggested regime does not differ largely from its US counterpart as presented. It does go further in its considerations and presents Irish courts with more specific factors to use, but one can clearly see the connection with the American provisions. All in all the suggested changes are incredibly welcome, and showcase the importance of fair dealing in copyright; something which this author and others have advocated on a number of occasions. In addition very similar considerations were put forth in the Australian submissions for reform; however their final form is still pending the release of the final report by the Australian Law Review Commission.


The report also deals with the role of intermediaries in potential infringement situations, considering more clear immunity provisions to the ones already provided under Irish law. The report proposes changes which would bring these immunities better in line with the European Union Copyright Directive.

After the tightening up of already existing provisions the report also suggests further protection of potential secondary infringers, especially as "...in the current regime, intermediaries bear a significant burden in implementing monitoring or “notice-and-action” procedures, and there are arguments as to whether this burden is a legitimate cost of doing business as an intermediary or an unjust cost of protecting rightsowners’ rights". This would be a EU matter to further legislate on and provide clarity, as the provisions relating to this are largely of EU origin.

In addition the report suggest a potentially more proactive approach by the Irish legislature to introduce immunity provisions specifically relating to search engines, immunity as a result of the sophistication of internet browsers (in other words, the displaying and caching of copyrighted content, causing the browser to being the primary infringer), and immunity provisions relating to cloud computing. As the report states: "...Irish law should await whatever legislative proposals emerge from the EU consultation. If nothing comes of it, then it may be appropriate at that stage to return to the question of Irish legislative immunities". Immunities over linking to content were also discussed, raising the recent UK Supreme Court decision of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd as an example of taking these immunities in an express direction.


The extent to which you can use your legally acquired content has been a contested issue in copyright for decades. The report poignantly raises the heart of the issue: "...the centrality of rightsowners in copyright law, but the law recognises other interests as well, and seeks to balance the interests of rightsowners in protecting their monopoly against other legitimate interests in diversity and expression". The balance between expression and creation by the end-user against the rightsowners' interests is paramount, but clearly there have been issues on the balance being swayed towards the rightsowners in recent years.

In addition to the aforementioned fair dealing considerations the report raises the potential to add new exceptions for private use. Private copying is largely supported by both sides, and in itself supports "...users’ reasonable assumptions and basic expectations" relating to the use of their legally acquired content. This has been suggested in the above EU Directive, and the report endorses its introduction into Irish law. Certain reproduction rights relating to different formats and back-ups were endorsed, again reflecting the reasonable assumptions made by users over their material.

An exception for parody, caricature and satire was also suggested, reflecting a much larger introduction of this exception in the common law; one which has been introduced in Australia a while ago. Following the recent changes in Canada the report also suggests the creation of a non-commercial user generated content exception. Although not expressly mentioned in the above EU Directive, the report still recognizes its inclusion in spirit and supports its express introduction into Irish law.


Even though the report is far more extensive than what is discussed above, it showcases a wave of change in copyright globally. This change has been late in its introduction, with still years till the potential changes would even be implemented, but shows a willingness to adapt and mold the law to modern users and spheres. This writer endorses this and highly awaits the final report here in Australia late this month in further assessing where things will go. Right now Ireland is paving the way in the wake of the change in the common law.

11 November, 2013

Using Trademarks to Silence Critics?

The law is a tool often fraught with controversy in its application, especially when this yields results contrary to the wishes of the public or a smaller segment of society more adversely affected. Most areas of law have examples of this, more recently some discussion has been raised about issues such as this relating to copyright. Intellectual property law does run the risk of being used selectively, either maliciously or through attacks to silence or influence others. In this writer's mind a statement made by Lord Denning in the famous case of Combe v Combe encapsulates well the idea in the use of legal protection, more specifically relating to intellectual property rights, even though the case itself pertained to promissory estoppel; "[the law] is a shield not a sword".

That is one snazzy logo
In a recent example of a potential misuse of the intellectual property rights afforded by trademark legislation is the company Canonical's attempt to influence a website operated by Micha Lee called Fix Ubuntu; a website which seeks to remedy alleged shortcomings of the operating system "Ubuntu". The name of the operating itself is a registered trademark owned by Canonical, having been filed in May 2013. Although the company's motives on the outset are purely to protect their trademark, which they are wholly entitled to do and have to do should they want to retain it, what lies underneath their initial steps can be questioned.

The use of trademarks (and other intellectual property rights) as a way to silence critics or to prevent active discussion as to the potential faults of company or a group is nothing new. The Church of Scientology has reportedly used its rights to attempt to take down websites, and Playboy has utilized its trademark rights to take down a website operated by the feminist group FORCE which parodied Playboy's website.

Canonical were not critical of what Mr. Lee had written on his website, but were mainly concerned about the use of their trademarked name and logo, as can be seen through the email sent to Mr. Lee:
"Unfortunately, in this instance we cannot give you permission to use Ubuntu trademarks on your website and in your domain name as they may lead to confusion or the misunderstanding that your website is associated with Canonical or Ubuntu. 
So, whilst we are very happy for you to write about Ubuntu, we request you to remove Ubuntu word from you domain name and Ubuntu logo from your website."
Prima facie the intentions of the company are wholly legitimate, as has been said above; however it has been pointed out that Canonical has been selective in its protection of its trademarks, leaving less critical or even promotional websites not associated with Canonical operational without hindrance. This by itself showcases a potential motive to use trademarks as a sword, not a shield.

The potential misuse of trademarks is a problem, and can be illegal if it hinders the rights of its users under freedom of speech provisions. Even though this writer does accept that companies can, and should, protect their rights, they should be more cautious in their endeavors to do so. Claims over infringement should be thought through and be legitimate; not merely an effort to stifle criticism or commentary.

Source: Ars Technica

08 November, 2013

Retrospective - Copyright in Names

The name of a company, much like the names of people, carries significant weight in the company's identity in the mind of the consumer and in the corporate sphere. Names like Apple, Microsoft and Google tend to evoke the image of certain services or a certain level of quality, making them incredibly important for the companies that carry them. As such, others can strive to use similar names to evoke a similar image, although in the connection of something entirely different. In most cases these names will be protected under various trademark provisions, or under the tort of passing off, but could a company's name be protected under copyright?

The case which dealt with this question was Exxon Corporation v Exxon Insurance Consultants International Ltd back in 1982. The case concerned the name "Exxon" used by the well-known fuel company. The name was registered as a trademark by the company, which formerly traded under the name Standard Oil (also Esso in other countries); of which a passing off claim was also put forth in the proceedings. Although the question of passing off was of full relevance in the case, of interest in this particular case is the fact whether the name "Exxon" would be a literary work under the then in-force UK Copyright Act 1956 or not. Subsequently Exxon Corporation sued Exxon Insurance Consultants International for copyright infringement and passing off for the use of the word Exxon in theirs.

Esso fuel - not to be eaten for breakfast
"Exxon" had been fully created by the company, being a word not existing prior to its creation in the English language. Evidence was put forth as to its careful creation and selection in this process through a large time, expenditure and labor investment in the word's creation, potentially indicating it is an original literary work within the Act. At first instance Justice Graham rejected Exxon's argument as to the word being a literary work, on the basis that "[i]t is a word which, though invented and therefore original, has no meaning and suggests nothing in itself. To give it substance and meaning, it must be accompanied by other words or used in a particular context or juxtaposition"; a position which the Court of Appeal fully accepted. 

The latter court did accept that the word was indeed original and originated from an author, due to the effort and research that was put into the creation of the word. Several cases were brought before the court in argument over both sides; however the Court particularly used the case of Hollinrake v Truswell in its considerations. In the case Lord Justice Davey set out what in his mind a literary work means:  "...a literary work is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment", also mentioning a possible contribution to the stock of human knowledge. Lord Justice Stephens, in the present case, fully accepted this definition to be applicable under the Copyright Act 1956. The Court decided on the basis of this that the word Exxon would not afford any information or instruction, nor would it provide pleasure through literary enjoyment by itself; therefore not being a literary work under the 1956 Act and there was subsequently no infringement of copyright.

Clearly names are not afforded copyright protection by themselves,but they could be protected should they be a part of a larger piece, such as being mentioned in a book. That would not apply to the name in itself, but as a part of the larger work itself. Arguably the proper route to protect names would be under trademark or the tort of passing off, through which Exxon was afforded relief in the aforementioned case. The line of argumentation by Exxon was interesting, and goes to show just how flexible intellectual property law could potentially be.

03 November, 2013

Video Games and Copyright - 21st Century Art

Video games have surged to become the new pass-time of choice for millions of people, with sales of new titles like Grand Theft Auto V reaching a billion dollars in sales in its first three days alone. This clearly demonstrates just how important video games are in the sphere of commerce, and therefore the sphere of intellectual property. Even with its immense popularity video games have still been largely left out, at least in terms of specific protection, in most jurisdictions. In addition to this the sheer complexity of video games as copyrighted works presents some issues.

A recent study prepared for the World Intellectual Property Organization attempted to shed some more light on this matter by looking at a variety of jurisdictions and the protection they offer for video games. The study clearly is weighted towards civil law countries (included were for example Denmark, Germany, China and Russia), but common law countries such as Canada and the United States were included in the study.

Super Mario - a modern literary hero?
Copyright protected subject matter in video games shows exactly just broad the category itself is when dealt with under copyright. Three distinct elements can be found in video games, along with their sub-categories respectively; audio elements (e.g. speech, music, sound effects), video elements (e.g. images, animation, text), and computer code (e.g. game engines, ancillary code, plug-ins). In addition to the above any  literary works would be covered as well, including scripts, maps and characters. However the study does point out that "...the real issue, and one of the objects of this study, involves analyzing the legal protection of video games as single, unique works of authorship, since it is irrefutable that the individual elements included in video games can deserve independent copyright protection". The objective of the study is not to introduce possible legal reform or frameworks to protect video games, but to increase awareness to all possible stakeholders, through which potentially exact change or better protection for video games.

In Canada video games are not protected by themselves under the Canadian Copyright Act, but predominantly as a computer program. This would still include all the other copyrighted parts individually, and potentially as a literary work as well. In addition video games could be protected as a 'collective work' as a sum of several distinct parts by different authors. In the US video games would fall under 17 USC § 102, although not expressly mentioned, should it fulfill its specific requirements. Video games have shown some problems to the American judiciary, as is pointed out by the study, but can be said to fall under the protection of copyright.

Always pointing fingers
So this begs the question: why should there be specific protection for video games? Arguably the protection offered to them as it stands can be said to cause some uncertainty. If a video game is not protected as a whole, if individual elements are not deemed protectable the entire game's integrity as an artistic work would clearly be undermined, as the pieces making the game arguably constitute that very artistic expression as a part of a whole. Even in the case of Brown v EMA, the US Supreme Court saw that "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)..."; clearly demonstrating this very point. Video games as a whole are a work which should be protected, not merely a collection of pieces which only merit protection by themselves.

The study is an intriguing and wide-scoped view of the sphere where video games currently reside, and do highlight some issues in a variety of jurisdictions, not to mention their protection in the world as a whole through inconsistencies in approaches. As the medium has become very prevalent, this matter should be addressed further and provided with explicit protection not as a mere collection of different forms of expression, but as a viable form in itself.