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Analysis Game developer Tecmo dropped its lawsuit against console website Ninjahackers.net this week.

The lawsuit follows almost four months of legal wranglings over game modifications that the Ninjahackers created, and then posted to their website.

Tecmo publish several games including Dead or Alive, a beat-em-up, and Dead or Alive Xtreme Beach Volleyball, a volleyball sim featuring, you guessed it, the DoA characters. Part of the appeal is in the manga-styled characters, who are often depicted in-game wearing next to nothing. Want to watch a busty blonde wrestle with a Japanese schoolgirl? Tecmo will satisfy you, as it were.

However, the publisher thought that Ninjahackers took things a too far. The console kids reverse engineered the Tecmo Xbox games to create nude hacks for the titles which rendered the girls not just scantily clad, but utterly unclad.

In a lawsuit filed in February, Tecmo alleged that this violated US law. By reverse engineering the code, the hackers had breached the copy protection that comes on the DoA Xbox game disc, prohibited under the Digital Millenium Copyright Act, it said. Secondly, it alleged that its intellectual property had been infringed by unauthorised modification and usage.

Tecmo settled with Ninjahackers this week, out of court, and the Judge accordingly dismissed the case. No one knows what the actual settlement was, since one of the conditions of it appears to be that no one talks about it. Appropriately, it's all rather Fight Club.

However, the Judge in the case did take something of an easy way out, because the suit raised an awkward issue: do users who buy games (note: buy, not steal) have the right to modify them as they wish? By simply dismissing the case, the Judge missed the opportunity to discuss this issue.

Justifications

Leaving aside the DCMA considerations, what are the factors that courts should be considering when deciding this issue in the future - as someone, somewhere, will inevitably have to?

The first thing is to think about is why we have copyright law in the first place. Scholars have argued for years about why copyright should or shouldn't exist - indeed, many opponents substitute the phrase "Intellectual Monopoly" for "Intellectual Property". However, we can reduce the argument for copyright to a few key points.

Let's take person A, who creates a theoretical Work B. The argument goes that we, as society, should incentivise people to create works; therefore to allow them to have exclusive use and monetary monopoly over their work provides an adequate incentive. The upside is that if people think they can make money out of a work, they will create it. The downside is that every penny the work earns over the threshold at which the artist would have considered it worthwhile to create is, effectively, wasted money.

To allow someone else to profit from ones own work can be considered unjust. If person A writes book B, and person C takes the manuscript, publishes it and makes lots of money, we can get a sense that person A has been, as they say, stuffed; and society thinks this is A Bad Thing. Hence, by preventing people just taking other people’s work, copyright promotes justice.

Both these justifications for copyright go to the issue of money. However, there is another justification, and that is the moral right a creator has not to have his work tampered with. A work is the production of a human being, and a part of that human being is indelibly printed on it. To change it is to deteriorate the mark of that person, to disassociate the creator from his work. The changed item could do harm to the author by mocking him or damaging his reputation. The consuming public might mistakenly think that the changed work is the product of the original creator. This, society says, is wrong.

The flipside of this is a concept of the rights of the user. British law has no so-called doctrine of “fair use”- unlike the US, which caters explicitly for it - some notion of what it is appropriate that a person should be able to do is considered. Unduly restricting the freedom of the consumer is something that copyright should not justify. The rights of the creator must be balanced with the rights of the user.

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