March 25, 2008 @ 14:03pm
If students at a college play games using a college-owned DVD player and monitor in a public setting, does the college have liability for violation of public performance rights? And in a separate question, would the college have liability for allowing students to use college equipment to play games the students did not legally own?
March 25, 2008 @ 14:03pm
What excellent questions. ^_^ First, keep in mind that copyright in software does not have the amount of case law associated with it as other types of copyright, and video games even less so (although there are some cases in that regard). So there is a good amount of uncertainty about some specific actions there.
I believe I can safely assert that there public performance rights in video games, and I've found at least one court case backing that idea up. However, you can make a fair use argument depending on the circumstances of the situation. If a student organization, for example, was playing video games on screen during the course of their meetings, I believe you could construct a good fair use argument.
As far as the second question, it's going to depend on the circumstances, so any more information you could provide would be useful. Generally speaking, a college usually doesn't take responsibility for the actions of its students- most colleges can't. If the item in question was a legally purchased item, then there probably isn't a problem, whether or not the college owns it, the student owns it, or someone else owns it. It's probably covered by first sale or by a license. If it's covered by a license and the student is the person agreeing to the license, the student is responsible for the terms of that license. If the student is playing games that the student has illegally acquired, and you know about it, then you should most likely stop that kind of activity, because then I would be worried about liability.
March 25, 2008 @ 14:03pm
I would like to add a bit about the public performance aspect, without going into the specifics of videogames versus other media. I've seen a fair amount of back and forth of what constitutes public performance and what does not, and while there are certainly black and white cases, it can be tricky when you get into the grey. That said, my understanding is that the setup of the gaming stations might have a lot to do with whether what you describe would be a public performance or not.
For example, my college had small cubicles in the library with monitors and video players set up. Students could check educational videos out from reserve, and watch them in the cubicles. These cubicles were semi open, so someone walking by and looking in would be able to see the screen, but it would be very uncomfortable for more than one person at a time to actually watch. Headphones were required to listen, as the monitors lacked speakers. My understanding is that the library did not consider this to be public performance. However, in the dorms, we had movie night. Sometimes only one or two people attended, and no more than ten or so people could comfortably watch in the dorm's common room, but this was still considered public performance. So, with the video game setup, I think that if the setup were closer to the library one, so that it was clearly intended for one person and any viewing by others would be incidental and uncomfortable, it would probably be pretty safe. If it used a large monitor and was out in an open space where people could easily gather around, perhaps not.
March 25, 2008 @ 14:03pm
[quote=Freya Anderson]These cubicles were semi open, so someone walking by and looking in would be able to see the screen, but it would be very uncomfortable for more than one person at a time to actually watch. Headphones were required to listen, as the monitors lacked speakers.[/quote]
This is what I would call a private performance in a public place. I discuss this idea in a little more detail in response to a similar question: http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=923 .
March 25, 2008 @ 14:03pm
In the case of public performances of movie DVDs or movie videos, the exceptions are narrow because the movie performance is a "dramatic" performance under section 110. Section 110(1) allows dramatic public performances in the classroom, but most other exceptions in section 110 do not cover "dramatic" public performances.
For games, however, I would argue that the public performance of a game is not "dramatic" under section 110 and that, therefore, the exception in section 110(4) would apply. As long as the public performance of the game complies with section 110(4) - i.e., performers are not paid, audience doesn't pay to attend, nonprofit, etc. - then no infringement.
Please note, however, that labeling a game performance as "nondramatic" is only my opinion. I do not have case law to back this up.