The nature of (video game) software has been disputed from the very beginning. Whilst software’s binary code cannot be perceived by the naked eye, this note will show that it still has physical properties of mass and volume. In this blog, Senior Associate Stephan Buck considers the law – and the science – behind the tangibility of (video game) software.
Gamers worldwide are expected to spend around $138billion USD (£105billion GBP) on games in 2018 according to Newzoo’s Global Games Market Report, and the means of transfer are shifting from data carriers (e.g., CD, DVD-ROMs) to downloads. Accordingly, one might not be surprised by the software developers’ interest to limit the (property) rights of the gamer and to restrict secondary markets—a multi-billion-dollar industry.
Using supposedly magic words, software developers have started protecting their creation and investment by licence agreements. But why should off-the-shelf (video game) software be any different to a book? Should it be possible to resell (video game) software? If someone buys a book, he/she purchases a particular copy of the book, and possession of, and title to, that copy are thereby transferred. In relation to that copy, the buyer has ownership rights, such as the right to use, to transfer, and to exclude a large and indefinite class of other people—the world, including the seller—from that book. However, he/she cannot reproduce, copy or distribute that book without the permission of the copyright owner.
Case Law and Legislation
Long before UsedSoft v Oracle and Nintendo v PC Box, the Court of Appeal stated in obiter dictum in St Albans v International Computers that goods include the medium on which a computer program is recorded, but that a contract for the sale of the programming code itself (without the medium) is not a contract for the sale of goods.
Digital content has finally been acknowledged in the Consumer Rights Directive 2011/83/EU inter alia to overcome the inconsistency between a consumer’s protection for software sold on a tangible medium and as a download.
Adopted in the Consumer Rights Act 2015 (CRA), digital content has since been defined as ‘data which are produced and supplied in digital form’. But whilst the new law provides a consumer who is buying digital content with the same (or at least similar) rights and remedies as if he/she was buying tangible goods, it does not really affect the transfer of ownership.
Similar to St Albans v International Computers, only digital content supplied ‘on a tangible storage medium’ (but not the digital content itself) is regarded as ‘goods’ (CRA, section 16). But what if this is the wrong approach? What if (video game) software and other digital content has a dual—tangible and intangible—nature?
Software’s Ambivalent Nature
Is it possible that (video game) software has ‘physical properties of mass and volume’? The physical copy is not merely a right or an idea. The purchaser of (video game) software neither desires nor receives more knowledge, but rather receives a certain arrangement of matter that will make his or her computer perform a desired function. This arrangement of physically recorded matter might be considered a corporeal body.
Unless and until the programmer’s ‘know how’ culminates in the physical programming of a piece of hardware, there is no (video game) software: only the idea and the knowledge to create it. Once this idea has been implemented, and possibly a copyrightable computer program produced (section [b] of the Copyright, Designs and Patents Act 1988), however, an additional, potentially legally different entity—the copy—is created.
Software’s Physical Properties of Mass and Volume
Copies may be stored optically, magnetically or on semiconductor, but they will always have some form of material presence because they ‘cannot float in space’. When stored (optically) on a DVD-ROM, each bit of information is represented by either the presence (0) or absence (1) of a tiny pit in the surface of the disc determining the amount of light reflected back when a laser ‘reads’ the computer instructions and the data provided by the software.
Even if stored less permanently, temporarily or transmitted from one computer to another, each bit of binary data has still some physical presence. When stored magnetically on a computer hard disc, tiny magnets are used to store the information and the magnets’ North and South poles represent the 0s (south-up) and 1s (north-up) for the machine to read. And similarly, semiconductor storage in computer RAM, where information is stored in a memory cell and represented by an electrical charge (1) or a lack of an electrical charge (0) at different positions within that memory cell.
Since pits may be moulded, magnets (re)directed and memory cells (dis)charged when copies are written, overwritten or erased, each storage medium loaded with a copy is physically different from that same storage medium with a different copy on it, and different from any blank medium. This is true regardless of whether or not this difference can be perceived by the naked eye.
As long as the copy exists, it does so in corporeal form (not only contained in a physical medium, but as a corporeal feature of that medium). This corporeal nature is also illustrated by the fact that hardware has only a finite capacity for storage: because of its material presence, copies take up physical space on whichever medium they are stored.
Are Downloads Different?
But does this also include downloads? Whilst the tangibility of electricity or of electromagnetic signals is arguable—even more than the tangibility of the copy itself—one might agree that the form of transportation should not affect the tangibility of the (video game) software. Not only is it often a matter of chance or convenience how software is supplied to the user but otherwise the nature of the (video game) software would entirely depend on the transportation device.
Although (video game) software in its binary form cannot be touched or felt, it is as tangible as the typical tangible thing. Separating the copy from the programming code would help to resolve the ongoing dispute on the exhaustion of rights and reconcile the limited statutory monopoly granted to copyright owners with the physical property rights of the individual.
Property rights in online video games which use client-server system architecture will be covered in an upcoming blog post.
Please contact Stephan if you have any questions regarding the above.