Game modifications and the law (Paper Topic)

Some of you who are gamers may be aware of the concept of "game modifications" or "mods."

Mods are popular in the First Person Shooter category, with favorites such as Rocket Arena for Quake and Counterstrike for Half Life being notable examples. The Counterstrike mod became so popular that it is now a stand-alone product published by the creators of Half Life.

A game modification is defined on Wikipedia as "a software modification to alter a computer-game's appearance or play." Sometimes mods will add new weapons or characters, or alter gameplay in some manner. An example of a gameplay modification is "Instagib." In first person shooters, an "Instagib" mod alters gameplay so that players can only use the "Railgun" (or similiar weapon), and one hit kills. The game structure is otherwise unaffected (ie, you still run around killing each other), but this one change dramatically affects the pacing and strategy of a match.

The legal issue here is that mods are often made by consumers without the permission of the game publishers. Arguably, they are derivative works. Some issues I want to look at (although I will probably have to narrow down to a few) are:

The Copyright status of game modifications absent licensing (is there an inherent right- protected by fair use- to modify games? It can't hurt the market for a game, because you still need to purchase the game to use the mod.)

Licensing- The availability of mods can greatly enhance the value of a product, and so game companies sometimes license the creation of mods, giving developers access to code before the game even comes out, so mods are available at launch. How are game mods licensed, and what do different licenses look like? Are there categories? How does this interact with open-soruce licensing? (sometimes game code is publically released underopen-source or other licenses after the game has run its course. The code for Doom, Quake 1, 2, 3, was released years after the game was popular.)

The legality of mods that use another companies IP. For example, someone might modify a game so it has a "Star Wars" theme, so instead of shooting terrorists you shoot Stormtroopers.

Reverse engineering. If you make a mod without permission of the publisher, you might have to perform some reverse engineering to figure out how the game works in order to modify it the way you want. Is this reverse engineering a violation of copyright?

I also want to look at the legal issues surrounding mods that "unlock" content that the game maker specifically decided not to include in the final game, but nonetheless was still available somewhere on the disc. For example, in Grand Theft Auto San Andreas, it was possible to hack the game so that a sex scene would play. This scene was added by the programmers, but was not intended to be included in the final version. This ended up causing the company PR problems, and ultimately the rating was changed from "Mature" to "Adults Only." This likely cost the company millions of dollars, because many stores do not carry "Adults Only" games. Should the modder be liable? Or was the company at fault, because after all, even if they never intended the scene to be playable, it was included on the disc the modder purchased? How does the First Sale Doctrine apply? Should the modder be able to mod his own game to have the scene, but not to distribute the mod? A case that might be instructive here is Harper & Row v. Nation Enterprises, the Ford memoir case. Remember the discussion of unpublished works. Was the sex scene "published" in the GTA case? Is it possible for content on a disc I bought to but unpublished because it is inaccessible without modifying the game?

Editing software. Sometimes a game company will release editing software with the retail version of the game, allowing consumers to make their own levels. The roleplaying games Morrowind and Neverwinter Nights did this. What is the legal status of these levels- who owns them? May they be sold? Most likely these questions are handled by license, (ie, you agree to their terms as a price of using the editing software) but what if there was not a license?

Case studies on Counter-strike and Team-fortress. These particular mods became commercial successes, and I want to look at how the licensing and other legal issues worked out in practice. Who owns the mod? Did the mod-creator have any say in how and whether the mod was published commercially? If he or she did, was the publisher legally required to give the creator a say, or was this done merely to avoid antagonizing customers?