游戲版權保護外文翻譯（節(jié)選）

1、中文 中文 3300 字， 字，1900 英文單詞， 英文單詞，1 萬英文字符 萬英文字符出處： 出處：Boyden B E. Games and Other Uncopyrightable Systems[J]. Social Science Electronic Publishing, 2010.GAMES AND OTHER UNCOPYRIGHTABLE SYSTEMSBruce E. BoydenThis article so

2、lves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never

3、been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two ot

4、her categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. Neither definition gives the term any meanin

5、gful content.Like a solving crossword puzzle, this Article uses each of these questions to shed light on the other. Games are uncopyrightable because they are systems. The case law that led to the adoption of Section 102

6、(b) demonstrates that systems are schemes for transforming user inputs into a correlated set of outputs. Games do exactly that. A game is a scheme for transforming player activities into moves within the game. The reason

7、 why games and other systems are uncopyrightable then becomes clear: the purpose of a system is to serve as a forum for user activity; it is users, not authors, who provide the primary informational value to the outputs

8、of a system. Games and other systems are excluded in order to fence in copyright protection be- fore it reaches user creation.INTRODUCTIONGames are deceptively simple objects of human culture. They are familiar and commo

9、nplace and often easy to learn: young children play them at an early age. For most people, games are a pastime, a form of recreation that involves relatively little preparation or time commitment. They are thus the very

10、opposite of work, and hardly comparable to such serious pursuits as scholarship or art.For all their seeming ingenuousness, however, games are also deeply puzzling. Defining games is a notoriously difficult enterprise. S

11、cholars from several different disciplines have struggled to determine what the nature, or essence, of games really is. And the elusiveness of games poses problems for intellectual property law as well. Games seem to str

12、addle the boundaries between copyright and patent, between author, performer, and reader, and between protected and unprotected material. Games are an entertainment medium on a par with such copyrightable material as mus

13、ic, films, or novels. But games are also comprised of rules and instructions, like uncopyrightable recipes and patentable procedures. Games convey an experience of play to users, just as music and drama convey an aesthet

14、ic or narrative experience to viewers and listeners. But the play of games must be experienced by direct interaction with the game itself, whereas the aesthetic experience of music and drama can be conveyed indirectly th

15、rough performers.Games therefore pose a number of challenges for copyright and patent law. Yet to date, intellectual property doctrine and scholarship has not really grappled with the slippery nature of games. Indeed, co

16、pyright has developed a very simple black letter rule to handle them: games are not copyrightable. That rule begins to fall apart on close examination, however. It turns out that bridge strategies—in which the plaintiff

17、appeared to be attempting to protect against use of a similar idea by a competitor. But even in cases involving more modern board games, such as “Pass the Nuts,” Scrabble, or Monopoly, the copyrightability of the game in

18、 question received little attention.The first case that mentioned such a rule in the United States was Whist Club v. Foster,22 a 1929 case from the Southern District of New York. The case involved a suit by the Whist Clu

19、b for infringement of its book, Laws for Auction Bridge—1926, against Foster and others, who had published Foster’s Simplified Auction Bridge (with the New Laws). Judging from the titles of the books and the language of

20、the opinion, it seems that what Foster had done was include the Whist Club’s 1926 version of the rules of auction bridge in his book. But it is difficult to be certain of that or anything else about the case, because the

21、 entire opinion takes up only one paragraph. It begins: “In the conventional laws or rules of a game, as distinguished from the forms or modes of expression in which they may be stated, there can be no literary property

22、susceptible of copyright.”23 The court pro- vided no citations for this rule, perhaps indicating that it was already well-established. The court noted that although the defendant “re- stated the same set of conventional

23、precepts” in his own words, “[t]his under all the authorities he was entitled to do, and neither the general acceptance of the rules as official, nor, if it were true, their rejection as officious, could have any bearing

24、 on this controversy.” The Whist Club court unfortunately left it a mystery what “authorities” it had in mind.Later cases added little to Whist Club’s analysis, often merely citing earlier decisions as authority for the

25、rule. Chamberlin v. Uris Sales Corp.is typical. The sum total of the court’s discussion of the issue is as follows: “It is very doubtful if rules of a game can, in any event, be copyrightable subject matter.” The court c

26、ited Whist Club and two other cases, neither of which offered an extended analysis. Perhaps due to the paucity of analysis, the influential Nimmer treatise on copyright law begins its discussion of copyright in games wit

27、h a somewhat skeptical report of what prior cases have held: “It is said that games are not copyrightable, but this general proposition is subject to qualification.”The qualifications Nimmer refers to are extensive. Whil

28、e a game itself may not be copyrightable, all of its constituent elements are. The board, box, or cards may be protected as graphic or pictorial works, or even maps; game pieces may be protected sculptural works; even a

29、particular statement of the rules of a game can be given limited protection against verbatim copying.30 The limited nature of the rule against the copyrightability of games is, on its face, rather odd: what purpose does

30、such a rule serve? It is as if there was a rule that “novels are not copyrightable,” but a novel’s plot, characters, setting, dialog, and cover art all were. What would be the point of such a rule?CONCLUSIONGames are unc

31、opyrightable systems. The age-old doctrinal rule against the copyrightability of games is not an anachronism; it is deeply embedded in the structure of copyright law. Copyright excludes systems whereby the informational

32、or entertainment value that is extracted from the work is supplied by the users, not the author. Games, like other systems, establish the arena for use—the “magic circle”—but the experience of play is supplied by the pla

33、yers, not the game designer. Copyright has long excluded such “state machines” from its protection. It is only relatively recently, in the confusion wrought by software and widespread litigation over commer- cial guides,