Let’s talk about the X-Box One. Microsoft’s policies were draconian and silly, but in all honesty, no more silly than how draconian consoles already are. Though Microsoft may state it is no longer moving in an always-online direction, given that the system employs options which allow intellectual property owners to determine the state and functionality of their games, it’s fairly likely that the future is exactly what Microsoft is, or was, discussing. Because of little firm legislation with regards to software ownership and actively detrimental legal snafus such as the Digital Millennium Copyright Act (also known as Google’s new censorship bar), it seems unlikely that either Sony or Microsoft are actually going to give up on the idea of wrenching ownership away from end-users. Truth is, they’ve been doing it, slowly, for years.
See, a lot of people are worried about the always-online nature of a lot of these new pieces of hardware, but more problematically, even beyond the console’s desire to always be online is the problem of hardware itself. The console, the piece of hardware on which games are played, is the first and strongest level of Digital Rights Management (DRM). Normally, ownership of an object determines right-to-use assuming the object was legally acquired. When you buy a disc, although you may not own the information on the disc, the end-user does own the right to use and re-use that information as long as it retains legal status. The end-user cannot resell the information, though the exact wording of this is problematic as what determines resale is becoming increasingly more vague due to Youtube.
Youtube actually has a lot more to do with digital ownership than might be apparent at first glance. Youtube is used now as a hub to show and re-show data owned by a myriad of rights owners, the problem is mostly with regards to whether or not the derivative works created by speedrunners or let’s players can be defined as original property despite re-using assets from videogames. The real issue comes down to whether or not these… let’s call them context creators (whereby content is created via another media’s context), have the right to make profit off of the context they provide to the content. Thus far, the legal answer seems to be a resounding yes, not due to court cases specifically, but due to a general lack of legal intervention.
The crux of ownership is now problematized however, if a user can create something based on owned intellectual property and provide it legal status whose ownership is not clandestinely the original owner’s, there is now a question of legal ownership at stake with regards to the property. There is a law that states that not providing sufficient legal defense for properties owned forfeits a right to ownership, but this is an increasingly sticky problem due to the lack of legal precedent of what exactly determines software ownership specifically. In most cases where a videogame company has sued individuals for modification of game properties, cases have almost always landed outside of court, with cease and desist orders generally shuttering what the company deemed as offending content. The result is that there is still a hard question of what determines ownership of software rights. Short of explicit open-source projects, software ownership seems to be an iterative problem and the reason for it is mostly a lack of precedent.
Determining ownership becomes more and more vague as time passes, and that is the reason companies continue to create stricter and stricter policies with regards to ownership are a result of software being itself an intellectual property. If somebody passes usable knowledge onto a person, there is a sense of conferred ownership, regardless of whether or not legal ownership lies with the license holder. As a result, to determine the legal status of an intellectual property, it may be wise to reconsider what exactly determines ownership, even thinking beyond source code. Source code will allow the building of a rudimentary piece of software, but having source code does not necessarily grant a compilable piece of software, as assets, including music pieces, scripts, artworks, and other related properties are needed to create a usable, rather than formally functional, product. If rights holders are to consider ownership in the future with regards to their properties, it might behoove them to argue for a more holistic form of ownership which does not regard the end-product as necessarily needing to be owned by the company in order to confer right of ownership of the intellectual property as theirs. Rather, it would confer considerable advantage to the rights owner, if they can hold ownership of the intellectual amalgamation which makes up a product, rather than needing to claim ownership to the end-product itself. The result also allows the end-user to have more rights without necessarily challenging or being challenged by the end-user’s right to ownership.
The right to ownership is tantamount to having a healthy consumer economy, and in order to separate ownership, ownership must come to mean something different than in the past. In the past, ownership implies the consumption of a particular thing, in the future, ownership may come to mean the right to a set of ideas assembled in a specific manner. Although there is already a great deal of wording about this, it has not been aggressively pursued as what determines legal ownership. Instead, it is seemingly believed that by attempting to poorly restrict the end-user’s ability to use a product will constrain the property against theft. It’s a rather foolish notion which is perpetuated all the more by draconian policies such as those first presented by Microsoft with regards to the X-Box One. Due to consumer outcry the largest of problems appear to have been rescinded, but it makes the hardware no less problematic in that it determines right to ownership as meaning the ownership of a certain thing, a certain end-product, rather than the process which makes that end-product possible. In a sense, software is itself becoming more like a patent, a right to ownership of a set of ideas which result in a certain set of contexts. Legally however, we are still very much stuck with the idea that ownership relates entirely to the product, rather than the process (and this is problematic across all forms of software, it is simply more problematic in the situation of consoles due to the continued worry about piracy, which has clearly been beyond anyone’s control for decades now).