This journal article is a profile of the Modifying or “Mod” Community who use existing video game engines as the framework to create video games of their own. It focuses on Mario Orsini who with his team of 15 is developing a Mod called “Orbit Wars.”

It becomes germane to the subject of Video Game Copyright issues because the Mod Community itself is a bit of an oddity in the context of a Video Game Industry laden with myriads of complex copyright and patent laws. When a video game is created, it is programmed in two fundamental parts, the engine, which is the part that defines the physics of the gameplay itself, and then there is what the author refers to as the “aesthetic package” which defines the look and theme of the characters and visual effects. Modders take the engine from an existing game and create an aesthetic package of their own. In essence, they create a derivative work, the kind in which one conventionally thinking, might believe to be under fire from waves of lawsuits. As this article demonstrates, not only is that premise not true, but the situation is quite the opposite. Several examples are cited which illustrate the encouragement of the modded video games. It becomes clear that the Mod Community is looked upon by the industry as a way to seek new talent and embrace innovation.

The aim of the article seems to be in its illustration of benefits the Mod Community provides for both Modder and Game Maker. It does this by alluding to situations such as Id Software’s “Quake” line, which was the first game to include a set of developer’s tools with the game. They also cited the popular Mod “Counterstrike” which was a created with the engine of a game called “Half-Life.” Counterstrike’s popularity grew so much among the online Mod Community, that Sierra Entertainment, who published the original Half-Life, picked it up and sold it commercially. It would go on to sell “at least 1 million units.” These are effective and well-known examples that support the argument. Ultimately, it may be a way to show the Mod Community as a shinning example of the ideal relationship that could exist between Game Maker and Consumer. The context of this relationship entails one of mutual respect where the creative aspect of the game comes from both ends. It also demonstrates that the knee-jerk reaction to protect the content of the software can often end up hurting the product because it shuts it off from the community of people that support it through sales and allegiance.

This was one of the most famous and controversial cases in the arena of the issues surrounding Video Game Emulators. The irony is that the case had nothing to do with a single piece of software. Instead it was over a screenshot of a Sony Playstation game screen that appears on the back cover of the packaging of the Bleem software. This screenshot was a comparison of what a game looked like when viewed through the normal Playstation console vs. how it would appear on the Bleem software, with supposedly enhanced graphics due to a properly equipped PC’s superior ability to represent color and pixels.

Sony had filed suit and won over the issue of this screenshot, it was quickly appealed and argued before the 9th Circuit Court. Bleem openly admitted that it took the screenshot and used it for advertisement and for the packaging, but doing so was protected as a fair use. The Court made special effort to apply the four factors in determining fair use: The purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the whole, and the effect on the potential market or value of the copyrighted work.

The fair use argument of Bleem brought forth examples from landmark cases like Campbell v. Acuff-Rose and Harper & Row v. The Nation. The Court’s attempt to avoid rigid application to copyright statute illustrates the frame of mind in which this decision was made. It was found that Sony’s argument did not stand the scrutiny as the screenshot did not have enough substance or was not the heart of the work, which was supposedly infringed. In relation to the last of the four factors in determining fair use, Sony was in the market in this instance with video game hardware and software, yet argue that they at the same time were in the market with the screenshots themselves. The Court clearly rejected this line of argument because the screenshots had no adverse affects on the market that Sony represented. Although the case was not directly about the Bleem emulator software, its presence undoubtedly hung as a pendulum over the entire case and was even addressed by the Court. It was not difficult to read between the lines to find what this case was really about.