Mods as Lightning Rods: A Typology of Video Game Mods, Intellectual Property, and Social Benefit/Harm
| Author | Mel Stanfill,Mark Kretzschmar |
| Date | 01 August 2019 |
| DOI | 10.1177/0964663918787221 |
| Published date | 01 August 2019 |
| Subject Matter | Articles |
Article
Mods as Lightning Rods:
A Typology of Video Game
Mods, Intellectual Property,
and Social Benefit/Harm
Mark Kretzschmar and Mel Stanfill
University of Central Florida, USA
Abstract
Video game modification, or ‘modding’ – nonprofessionals altering or adding to games –
is, in some interpretations of US law, copyright infringement or a violation of end-user
license agreements. However, though mods are roughly all equally (il)legal, the industry
only sometimes uses its legal power to stop them. In this article, we explore the eco-
nomic and social factors that impact how video game corporations employ the law in
relation to modding, revealing a symbiotic relationship. We argue that the specific
content of a mod matters for how it’s assessed and whether rightsholders attempt to
stop it. We propose a new model where structural analysis of the modder–industry
relationship is supplemented with textual analysis that asks of specific mods who they
benefit and harm. We argue that this will enable a better understanding of when and how
the industry takes legal action.
Keywords
Copyright, fan studies, intellectual property , media convergence, modding, modifica-
tions, user-generated content, video game studies
Initiating a new playthrough of Bethesda Softworks’ role-playing game (RPG) Skyrim,a
gamer finds their character headed for execution. The protagonist is miraculously spared
when the dragon Alduin arrives to wreak destruction. Yet this playthrough is different.
Alduin is nowhere to be found. Instead, the great evil that has befallen the virtual world is
Corresponding author:
Mark Kretzschmar, Texts and Technology, University of Central Florida, P.O. Box 161990, Orlando,
FL 32816, USA.
Email: kretzschmarmark@gmail.com
Social & Legal Studies
2019, Vol. 28(4) 517–536
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663918787221
journals.sagepub.com/home/sls
professional wrestler Macho Man Randy Savage (FancyPants, 2012). When this video
game modification – or ‘mod’ – i s activated, dragons in Skyrim don Ma cho Man’s
cowboy hat, sunglasses, tassels, and boots, and players are serenaded with some of
his most famous one-liners. What was once a serious scene foreshadowing events to
come suddenly becomes sidesplittingly funny. Welcome to the world of video game
modifications.
Video game modding – the practice of nonprofessionals altering or addin g to games
– is by some measures presumptively illegal. Because modding uses intellectual prop-
erty to which modders don’t hold the rights, it could be argued that it’s copyright
infringement; others might argue ‘mods’ transform the original text and therefore
constitute fair use under US law.
1
In addition to potential copyright infringement,
mods frequently violate the Digital Millennium Copyright Act (DMCA) and/or Com-
puter Fraud and Abuse Act (CFAA): modders must usually circumvent copy prote ction
technology on the source game and/or violate the end-user license agreement (EULA).
That is, how modding happens technologically is often illegal regardless of whether
what modders do textually would otherwise be legal – regardless of whether, for
example, the content may be commentary or criticism protected under the US fair use
doctrine. However, though mods are roughly all equally (il)legal, the industry only
sometimes uses its legal power to stop them.
Accordingly, while modding is often approached either through its risks for right-
sholders or its expressive benefits for users, we contend that each of these approaches,
alone, is incomplete. As Loren (1997), Sunder (2012), and others have compellingly
argued, sociolegal analysis should take into account broader questions of benefit and
harm in determining the legitimacy of intellectual property reuse by those other than the
rightsholder. Therefore, we argue that the specific content of a mod matters – changing a
game to contest its violence against women is very different than changing it to increase
violence against women, for example.
In this article, we explore the economic and social factors that impact how video game
corporations employ the law in relation to modding, revealing a symbiotic relationship.
We engage US law specifically. We do this partially because the existing conversation
about modding in which we intervene is US-focused. Additionally, following Tushnet
(2007: 141), we focus on US law because it ‘is unusually open-ended, whereas many
other countries have limited exceptions to copyright for which fan creations are less
likely to qualify’ – like fair dealing more often found in the Commonwealth of Nations –
and ‘U.S. copyright owners, like many other U.S. entities, are relatively swift to threaten
lawsuits when they perceive an interference with their rig hts’. Moreover, US-based
multinationals are large and well-resourced enough that they can (and do) lean on
legislation and enforcement globally.
To understand how the video game industry’s responses to modding are shaped by not
only legal but also economic and social factors, we begin with a literature review
examining both the legality of modding and patterns in fan–industry relationships around
modding. We then argue that the rela tionship between the industr y and modders is
symbiotic, predicated on perceived benefit and harm to both parties, and specifically
that the content of a mod matters for how it is assessed. Therefore, we propose a new
model where structural analysis of the modder– industry relationship (examining the
518 Social & Legal Studies 28(4)
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