Game FAQs and Copyright

My housemate has gotten around to playing Kingdom Hearts, and naturally he’s been reading the FAQ to play through it. (It’s the only way he plays.) I’ve used FAQs from GameFAQs before, and being the copyright nerd that I am I always read the copyright notices. They almost always contain erroneous information, and part of the reason appears to be that the most popular copyright notices are taken from the same sources. Here are some examples of how these FAQ copyright notices are wrong or, well, kind of silly.

-“No section of the guide can be used without permission.”
Well, that’s not entirely correct, but since this term is pretty common even with attorney-authored terms it’s not surprising. There are certainly legal uses of copyright material that don’t require the author’s permission, and in fact may be contrary to the author’s wishes. That concept applies to pretty much everywhere you see “all rights reserved” and similar statements, which is why those statements tend to be misleading.
-“This includes, but is not limited to posting on your website, making links to my guide, including parts of my guide in your own, or making reference to any material contained within.”
These terms betray some pretty fundamental misunderstandings of copyright in a couple of respects. As I just mentioned, some uses may fall under copyright exemptions. More importantly, copyright law usually doesn’t cover linking. Linking is almost always legal. There are some additional complications here involving the linking to materials that circumvent copyright protection, but as generally attemptiong to disallow linking through terms like this doesn’t actually have a legal basis, and is kind of silly. And “making reference to any material contained within…” doesn’t violate any kind of copyright law whatsover. I’m referencing things found within. I’m not doing anything illegal.

Mind you, earlier versions of this notice are worse.
-“By reading this guide, you automatically agree to these terms.”
Er, no. I don’t. Sorry. I’m just reading. I haven’t agreed to anything by just reading. This appears to be an attempt to make a copyright notice a contract. It’s not. You can go the Creative Commons route and allow additional uses that would ordinarily be covered by copyright in a license, but you can’t treat a license and a contract like they’re the same thing. Most of the time.
-“Any material found used without my permission is plagiarism, and I won’t tolerate it.”
Material used is not necessarily plagiarism. When material used is plagiarism, it might not necessarily be infringing on copyright. Copyright infringement is not equal to plagiarism, although they are related terms. Copyright infringement is a legal issue, and plagiarism is a (very serious) ethical issue. When plagiarism does correspond with copyright infringement, it’s probably illegal. Otherwise, it’s unethical. While you may not tolerate it, there’s actually not a lot you can do about it besides publicly shaming the plagiarist.

The gamefaqs.com copyright notice is better, but still somewhat misleading: This may be not be reproduced under any circumstances except for personal, private use. It may not be placed on any web site or otherwise distributed publicly without advance written permission. Use of this guide on any other web site or as a part of any public display is strictly prohibited, and a violation of copyright.

Well, that’s pretty standard fare. However, I can certainly take excerpts from an FAQ in certain circumstances and publicly display them without written permission. This notice falls under the same trap as most copyright notices- it ignores exemptions such as fair use, educational exemptions, library and archives exemptions and so on.

Now, their copyright FAQ does mention fair use, which is a plus, and does provide some basic information. Their FAQ also has a great deal of information that is a bit debatable, or at least could be expanded upon. The fair use question is a good example. Their emphasis on “limited portions” is usually correct, but there are situations in which the copyright-related use of a complete work can be fair. The examples they give, though, about posting complete FAQs without permission are probably not fair uses, and those are the types of uses they’re concerned about.

The ironic part of many of these notices is that if companies attempted to behave the same way, these FAQs wouldn’t exist. FAQs obviously “refer” to content in games, and many quote game text pretty liberally.

Comments (6) left to “Game FAQs and Copyright”

  1. Jonathan Bailey wrote:

    I just wanted to say thanks for the article. As a fellow copyright nerd that has gotten more than a few chuckles from the misleading and outright erroneous information I really enjoyed this. I might have to do an article on this subject on my site as this and fan fiction are two of the biggest places where copyright confusion seems to rear its head.

    Once again though, bravo on the article!

  2. Carlos Ovalle wrote:

    Thanks! I find fan fiction another interesting area, also…

  3. Eric wrote:

    Carlos, well written out and the conclusion is indeed ironic, but this conclusion can be placed on lot of other copyright related cases. Wondering what the new copyright regulations will contain in EU and USA…

  4. Ben wrote:

    You touched on an important point at the end of your article, but I just wanted to expand on it. A FAQ for a video game is, by definition, a derivative work. Therefore, the copyright for that FAQ belongs to the author/publisher of the game, NOT the author of the FAQ. That being the case, the author of a FAQ has no protection at all (under US copyright law). The FAQ author may in fact be subject to legal action by the game publisher. Not that game publishers go around suing FAQ authors. Note: This is not just my opinion, but based on Section 106 of the 1976 Copyright Act which gives copyright holders exclusive rights to prepare or authorize derivatives works, among other things.

  5. Carlos wrote:

    Actually, I disagree to a certain extent. Because of what an FAQ does- in the way that it provides descriptions and gives instructions related to a video game- I’d say that most FAQs are fair uses, and thus copyright in them would belong to the FAQ authors. However, the same things that make it a fair use also make that protection rather thin. Obviously, they don’t have any copyright protection in the game elements themselves, and other people can use the same facts to make another FAQ without worrying about infringing the first one’s copyright, for example.

  6. Anonymous wrote:

    Hi i am from the Philippines my self and here many people dont even read the copyright notice and all games here are pirated. no one seems to even care if its original or pirated very pitty. well regarding the FAQ part we do read it to better understand the game it self and how to play and is very important to know the game well if you are a game freak like me.

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