Sometimes, but just sometimes, Things aren’t used for the purpose they were planned for. Technology, as my dear friend Yuval Dror expressed in his book, is neutral, it’s the people who decide what to do with it that matter. Technology does not, however, plan itself, it is a by far a deliberate scheme planned to make our life better, Evolution through Technology. That is why, when Technology evolved into video games, the legal concept was, and may still be, that the virtual space created by the game is, in full, property retained by the programmers and designers of that game.

Machinima is, in brief, a form of moving imagery art created (or forged) out of 3d rendering engines of Virtual Reality games. Machinima is a beautiful form of art which allows 3d animation at relatively low costs. For example, South Park’s episode “Make Love Not Warcraft” (S10E08, Boing Boing Review) featured live animation from the game “World of Warcraft”. This use of animation enabled to create a full episode with superior animation to the “construction board” animation style of South Park, and to express the children’s experience of playing the game through licensing of Machine-Animation.

Almost no legal action was taken against Machinimators as it is both a legal problem to prove copyright infringement without fair use and a problem to track down the infringers. Also, the publicity costs and the price the company will have to pay by being considered legally non user friendly.

The only virtual platform which allowed Machinima was, until lately, Second Life. Catherine Linden from Linden Lab, Second Life’s proprietors, stated to Second Life Insider that “I do like to say that filming in Second Life is like filming in NYC. Generic street scenes and landscapes can be considered “fair use” but filming individuals without their permission is not advised, just like in real life.“. Second Life’s terms of service were laconic in regards to Machinima as Linden Lab does not retain copyright over the Virtual World. Second life published tips regarding Machinima and encouraged it actively.

Different approaches were taken by different software vendors. Last month, two major software vendors, Blizzard Entertainment and Microsoft released their policy regarding Machinima made with their engines (via Vitrually Blind). Whilst Blizzard, the proprietor of World of Warcraft allows almost any use of the content, as long as it is non-commercial or actually distributed for free, Microsoft’s license was a bit vague regarding use of Machinima as it stated “You can’t sell or otherwise earn anything from your Items.” (also see); meaning that the possibility of embedding a Machinima clip in a Google-Adwords affiliated blog means that you “otherwise earn” something from your items (the legality of earning from other’s items is even more problematic.

Though this is a major progress to Machinimators, (even if they don’t realise it, as they think this restricts them), the distance between reality and the law is still too far. Vitrual Worlds and Vitrual Realty (and not Virtual reality) is too much of a legal problem to handle as long as no major financial interest lay down the path to the right legal rule. It may be too obvious that if one retains ownership of a house in Second Life or of a Sword in World of Warcraft, one must be the proprietor of that property and have the universal exclusive right to do with that property whatever he may wish, including, but not only, displaying it in some kind of manner. If one does not have this right, this mustn’t be considered “Property” but only quasi-property. .Quasi-Property is not what the Founding-Fathers of the virtual worlds had in mind when they allowed their participants to engage in commerce and sell this property.

So, if I am the proprietor of some kind of property in World of Warcraft, am I not able to benefit from this property by charging others to see it, use it or touch it? Think of a similar example in real life: I own a Gibson Les-Paul guitar. Think of what would have happened if when i bought the guitar, the manufacturer would have told me that .I can play the guitar anywhere and play any song I like, as long as I don’t earn any money from playing the Guitar OR charge others in order to listen to my work. Gibson would have started a new business model, they would have realised that inventing the guitar gives then technical copyright over all works created by that guitar, right?

So the proprietors understood that they could invent a new kind of business model, earnings through other’s work. You give them the engine, let them design, and just sit and charge money as they make it. Is this the right path?