The article everyone’s talking about.

Scott (who is suing me for this blogpost title) offers this viewpoint:

Suing an MMO developer for the copyright violations of players on its servers is more than mildly troubling.

I’d go farther than that. I think it’s a non-starter. When I was working at my startup, we were working on a game that centered around the ability to make movies with the in-game engine (i.e. “Machinima”). Obviously, the notion that people could recreate movie scenes that mimicked a sue-happy license owner such as Fox or Lucas crossed our minds.

Our prepared defense: we were a content facilitator, not a content creator. Compare City of Heroes to an ISP. An ISP is a content facilitator – it hosts web sites and sends email to and from its users blindly. If the owners of Marvel find some bad Wolverine/Marvel Girl fan fic on a web site that the ISP hosts, the ISP can force the web site owner to take it down. However, it would be cost-prohibitive for, say, America Online to guaruntee that every web site that it hosts is free of copywritten material. Thus, some of the burden falls upon the license holders to defend their license, and point out violations to the ISPs.

As such, City of Heroes has the burden on them to do what they can in a cost-effective manner. And they do – their name filter rejects exact matches, and the CoH staff is quick to bounce out any character whose name manages to evade filters through one letter swaps. If Marvel feels that it’s not being policed strongly enough, Cryptic has done enough, IMHO, that the burden must now fall on Marvel.

Note: all of this would be different if the content that Cryptic created (i.e. it’s NPCs and main storyline characters) copied Marvel’s too closely. As such, I’d point out that Marvel has a much stronger case against The Incredibles, a charmingly blatant ripoff of the Fantastic Four. They’ve probably got more money to boot.

But The Incredibles and City of Heroes aren’t Marvel’s problem. If anything, both of these excellent products have done more to make comic books cool again than anything either Marvel or DC has done in years. How sad is the comic book industry nowadays? Let’s put it this way: the free comic book that NCSoft ships to each one of it’s 200K or so players is, according to NCSoft, the number one most circulated comic book in the world. I can’t find numbers to verify that, but all the same, it’s high for a comic book. That’s not something that’s shutting down Marvel- that’s something that’s creating an appetite for steroids and tights that wasn’t there before.

Long story short: if Marvel can’t be troubled to get off their hineys and make their own superhero MMO (which would be a license to print money), they should be thanking City of Heroes for bringing superheroes back to the geek psyche.
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Update: for those who are interested, here’s the Wikipedia entry discussing the DMCA statute protecting ISPs from the need for prior restraint.