Dropped Tecmo suit means nudity for us all
Does the law tolerate modding?
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.
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.
Applying the theory
What about the case of Dead or Alive? Following these rules, Tecmo should be incentivised to create the game. Tecmo is incentivised, we might presume, through potential sales. Assuming hackers are buying the games in the first place - as is the case here - this justification for copyright should not prevent a hacker tinkering with it for his own end.
The second argument for copyright is that someone else should not profit from the creator’s work unjustly. No one at Ninjahackers was selling the nude patch (and, utterly correctly, a lawsuit by Tecmo against a for-profit firm that did just that was decided in favour of DoA publisher by the court - see also this  Gamespot report).
So, is it morally wrong for hackers to tamper with the code? The argument must be that having naked characters is damaging to the reputation of the company and will therefore harm future sales.
But is it? The moral rights of the creator hinge, to some degree, on the right of an individual not to have his body disassociated from his work. However, where a work is created by individuals and then assigned to a corporate body – i.e. the publisher -- does this argument lose some of its strength? We can be sure that no one actually programming the game would really care much at people playing with their code, as published.
Also, moral rights depend on damage to reputation. It could be said that the changes wrought by Ninjahackers are a difference of degree, not kind. Tecmo has gone 95 per cent of the way with ludicrously skimpy in-game bikinis, and even through openly publicising the realistic physics that affect both the environment in-game and the characters themselves, as well as their, ahem, physical features. Is removing (very few) pixels really a sufficient change in presentation to warrant a damage to reputation? “Tecmo purveys games with breasts displayed wantonly in tiny bikinis” is not so far removed from “Tecmo purveys games with breasts displayed wantonly”. It’s less than 15 letters, in fact.
Would there ever be confusion over the creator of the nude hack? To install the hack requires a) a modification to the Xbox console, which cannot be inadvertently done b) a patch download c) an in-game hack. No one would ever believe that this has anything to do with Tecmo, because the whole installation is targeted at, and performed by, geeky hackers, not the public.
Even if we say that, by some bizarre assumption, we assume that this nude hack might have been purveyed by Tecmo – doesn’t this rather prove the previous point, which is that they have next-to-no reputation to lose anyway?
And lastly, what about the users? Is it appropriate to restrict the modification activities of people who have bought the game and contributed appropriately to the publisher’s bottom line? The is the part the court will have a hard time deciding.
It's useful to look at two cases that we might suspect would come either side of the legality-line. Buying a game and modifying it to include an extra level, in the spirit of the original, would almost certainly be fair use. No damage to reputation is intended or consequential, and, because of the additional work required to get the level to load, no one will take it as an original. On the other hand, buying a game and using it to animate the world's first hardcore-pornographic Machinima  movie would almost certainly infringe copyright in the characters and be an unfair use.
The bikini-bottom line
But just playing with textures? We suspect that such an act would be considered legal, and here's why. There is little damage to reputation because of the small difference in kind between the hack and the original. Secondly, moral rights not to have a work changed are a stronger argument when the modifier is working with the original copy of the work. Because there are hundreds of thousands of unmodified copies of DoA potentially out there, the damage done by a few hacked copies is minimal - as opposed to if the hackers had altered the master code for the disc before pressing.
It's also fairly easy to concoct a high-brow justification for this kind of work that appeals to broader issues than just the nerdy instinct to check out boobs, and this is perhaps the crux of the issue. In removing the clothes from these characters, the Ninjahackers have created an important piece of social commentary.
In a world where women are objectified to the point of realistic breast rendering and virtual manipulation, a nude modification is a commentary on how cheap the human body has become. It's a thought-provoking idea that a man can remove a woman's clothes utterly without her complicity in this digital world.
Secondly, it's clear that the skills required aren't those of a Romeo, they're those of a geek. The DoA nude hack is a parody of the sex-obsessed, celebrity-focused culture that we live in, it's a message to the beautiful-is-better world that the future belongs to those with computer skills above the norm, and it's valid as an original work in itself, as important social commentary for the time and place we exist in.
Or so the argument goes. ®