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Does the law tolerate modding?

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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. ®

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