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Games and the Public Domain
by Paul Taylor on 02/04/14 08:39:00 am   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.


Yesterday, John Walker over at RPS posted about his desire for games to enter the public domain twenty years or so after release:

Steve Gaynor (of Gone Home fame) wrote a great response which is worthy of your time:

I’d like to add a few points to this discussion.

Profiting from work in the public domain

Steve makes the point that profit from work > 20 years old is pretty vital to someone’s long-term career as an artist; I agree completely.

However, making something public domain does not mean that the original creator cannot go on profiting from it at all: John makes that point very strongly and he is completely correct.   It would be good for this discussion if people actually listened to the point he was reiterating and didn’t stupidly attack him on false grounds.  He did say that quite a few times, after all, just in case you weren't paying attention.

Now that’s established, let’s look at what could potentially happen...

- A game being PD wouldn’t affect the sales of that game on GoG (or equivalent) all that much

There would be an impact on sales but my general suspicion is that it wouldn’t be all that great. I don’t have much evidence for this: I’d suggest that it is somewhat equivalent to the current piracy situation around single-player only games but that’s mostly conjecture...and obviously highly debatable in its own right.

- However, it would affect licensing a great deal

A large amount of value vested in IP’s that persist meaningfully for longer than twenty years (and indeed in ones that don’t) stems from their potential to be licensed for new products.

So it’s revenue from new products that mostly help support the original creator, not revenue from the original work.

The creator would not, in any way, be able to profit from the license, because the characters, art, story and anything meaningful to do with the IP would be free for anyone to use. So there goes merchandise, movie adaptation, animation rights (yes I’ve just started watching Arrested Development, please ignore me)...and, especially, reboots.

We’re seeing a lot of classic game reboots at the moment: these would all happen without the original creators getting a dime, when that person was still alive, well and creating.  That doesn't feel right, and it doesn't seem like it would make financial sense either.

Integrity of your IP matters, not just its monetary value

When something becomes public domain, anyone with any agenda can repurpose it. I would feel concerned if, in my lifetime, Frozen Synapse was turned into something used to promote ideals that don’t reflect our own: I’m sure Ian, the game’s designer and the one who originally conceived it, would feel even more strongly about that. I doubt we’d feel much better if that happened in our kids’ lifetimes when does this become acceptable?

Think of the worst possible thing someone could do with work that you spent four years creating, then imagine you have no legal protection against that.

Most of us do not have experience dealing with big IP’s. The makers of Minecraft have to see rubbish, derivative junk products and scams which use their product’s name cropping up on a daily basis; they have to put in a huge amount of effort to stop this from happening while maintaining the rights of those who want to do genuine creative things with their game. Why are they suddenly not allowed to fight this battle after 20 years (or 25 years, or 30 years etc.)?

Creative work has a unique risk/reward paradigm which other forms of work do not share

I believe that there is a strong case for society treating creative work differently from other forms of endeavour.

I think John’s workman analogy is the weakest part of his argument and undermines his more interesting points, so I don’t want to dwell on it too much. I will add, though, that our hypothetical workman is building up a kind of value when he works which is inaccessible to a lone creator:

- The workman should, in a lot of cases, be able to earn promotion or increased salary simply by doing his job well over a long period

- He may, after a while, acquire enough knowledge about his trade to start his own business, or expand his current one. Growing a service business is significantly and inherently simpler than expanding a creative business. It’s Ian’s unique combination of talents and insanities that make our games the way they are; we can’t hire another one of him, nor can we clone him... Sure, we could hire another development team and expand that way, but please don’t try to tell me that’s like a plumbing company hiring another plumber.

For Ian and myself, something which has always attracted us to making games is that there is “no ceiling”. There is a very, very low chance that something will become a ridiculous hit and go on being a success for your entire lifetime. Again, this isn’t entirely about money, and I agree with John’s point that it’s facile to suggest that money is a prime motivator for creativity. A lot of that feeling - for it is mostly a feeling - is to do with the fact that nobody can ever take it away from you.

Publishers holding IP’s exclusively / creators not getting paid

This is a completely separate discussion in my eyes: briefly, I don’t think there is a “moral right” to be paid for work where you have consciously and knowingly signed up as work-for-hire and waived those rights.

Trying to fix this by enforcing a situation where nobody owns rights after a certain time is somewhat of a nuclear option and not an elegant solution to this particular problem; I don’t think conflating these issues is helpful.

Things that do need addressing

A world where IP holders can just sit on both an IP and a product for years and refuse to allow anyone access to it for no good reason is fairly silly. It would be nice if, perhaps, there were some means to force older games to be available in some form: perhaps they should have to be released for free (but not PD) if they are not commercially available in any way for a length of time?

We need better, clearer and wider application of Fair Use to allow free quotation and intertextuality without threat of legal action, facilitating things like sampling in music (which is a whole different kettle of fish). Not-for-profit fan work should be actively encouraged; repurposing of game footage and machinima should be more than just quasi-legal.

The “giving back to culture” idea that John mentions does appeal to me.  I'm actually still thinking about this in the context of my own views - I don't have any real conclusions on how to facilitate this yet.

Rather helpfully, that brings me on to my final point...

Thoughts on discussion

This is a very emotional issue for people: John illustrated this at the start of his piece with the vehement reactions to his off-hand comment.

I’m personally utterly sick of big games industry topics like this one dissolving into ad hominem idiocy; I wish that everyone could grow up and focus on the actual issues involved.

I'll admit to having been annoyed by that initial comment as well: I thought it reflected views that were hopelessly different from my own.

But here is an instance where John has taken the time to expand his off-hand remark into a significant, thoughtful piece about a nuanced issue. We should respect him for that: it’s easy to just become more entrenched in your beliefs and leave the discussion when responses are combative; instead he’s actually done something that benefits everyone.  In the course of his writing, he took me from just being a bit irked by something he said to fully engaging with his argument: much more interesting!  Maybe I don't fully agree with everything he said, but he  overtly stated that wasn't his main goal, so everyone's now happy, right?

Why aren't people praising and encouraging this instead of being defensive and stupid about it?  If you can't explore the reasons for your own beliefs and just get increasingly tumescent with rage when challenged, that's a good indication that you're probably wrong.

I'd like less knee-jerking, more brain-thinking, please: I guess I’m a romantic as well.

Follow me on Twitter @mode7games

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Kenneth Blaney
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"perhaps they should have to be released for free (but not PD) if they are not commercially available in any way for a length of time"

There actually are exceptions to digital copyright carved out of the DMCA that allow for things like this for archiving purposes and the like. So in some cases of this debate when people are saying "X should be legal if Y", they are asking for an exception that already exists.

Something I'm surprised no one has mentioned specifically is the issue of orphaned works since that issue came up quite recently in the video game industry in the case of "No One Lives Forever" and "System Shock 2" (although it was resolved in the latter case).

Luke Shorts
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I like the way you are approaching the issue, as well as the fact that you don't claim to have "the Ultimate Solution" to all (real or perceived) copyright woes.

If I understand you correctly, you'd be in favour of a long term of copyright protection (although it's not clear to me whether you envisage this term to be equal or longer than the one we have now) but you would address the issue of "giving back to the culture" by means for a wider application of Fair Use so as to cover a certain number of derivative works and a sort of copyright exception triggered when a rightholder is not interested in keeping a particular work on the market any longer.

Although your solution would address a lot of the complaints that the current copyright regime receives, it presents a number of practical implementation issues. For one, the definition of fair use is purposefully a bit "fluffy"... it would not be easy to come up with a new definition of fair use that covers what you hint at without the risk of causing unwanted side effects. An alternative would be to codify a number of well-defined copyright exceptions on top of fair use.

Also difficult to implement is the idea of making games which have been out of the market for a while available for free without putting them in the public domain... what happens if the right holder decides to enter the market again? Are those people who got the game while it was "up for grabs" infringers all of a sudden? Alternatively, if there is a defense available for those copies, how is the "restored" copyright going to be even remotely enforceable?

A brief note about IP integrity: as I mentioned in the other thread, most products nowadays are actually carriers of a bundle of IP rights, so the end of copyright does not necessarily end all the rights you have on your game. For instance, your moral rights and any trade marks based on the game (neither of which really expires, the latter provided that the mark is kept in use) would still prevent others from passing off as you, or to put on the market products that might be mistakenly associated with your brand.

Paul Taylor
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Sure - a meaningful redefinition and extension of Fair Use would be complicated to achieve, but possibly worthwhile.

On the "abandonware" topic, I agree again that it would be difficult to make it work. I was really flagging areas where I think existing copyright law is imperfect rather than directly looking for practical solutions.

Paul Laroquod
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I wrote on Steve Gaynor's post that I am unsubscribing due to his post, this post, and Mona's last week. I still plan to do this, although this post on full reading is not as bad as I thought. But that isn't the point. The point is that this is an incredibly polarising issue and I do not come here to get polarised. I want a site that is about the art of games and where no space is given to arguments in favour of our stupid legal regime. It is also cool with me if no space is given to arguments against that regime. The point is, this site isn't it. It's just that when I am deep in game design mode I do not want to open my RSS and read about other indie devs supporting our ridiculous and utterly counterintuitive system of 'owning' expressions and ideas. I find it extremely depressing and it makes me feel like frankly not being a part of the indie gaming community at all. I do have other skills -- I could just write. Anyway, I just wanted to say that this article isn't as bad as I thought but I'm still quitting the site because, politics in my game design: I do not agree with you and I do not want to listen. So my decision stands.

Daniel Gutierrez
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I don't understand why you expect a site with the word "business" in the tag line to not include anything about laws and other things that greatly dictate how the business of games are done. Especially on sites like this when compared to Kotaku, have articles of this nature that do a very considerate & thoughtful breakdown without trying to shame others people into oblivion.

Zachary Strebeck
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Great article. I agree that some aspects of copyright law need to be cleaned up to deal with new technology. Particularly Fair Use, as you say, should probably be more of a proactive rather than reactive defense to infringement. As I have said before in my blog posts, though, if you're relying on Fair Use for your income, then you're probably making a mistake. Get a license.

Adam Bishop
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I think there may be something of a mid-point solution that addresses some of the concerns of both sides (though obviously not all of them). After a given period (20 years, 30 years, whatever) copyrighted works could enter a state that's something like the Creative Commons where the copyright holder would retain rights over *commercial* uses of their art while allowing that non-commercial uses such as sharing, remixing, etc. are perfectly legitimate. That way we get many of the benefits of being able to freely share and build on older works without allowing people to profit by merely selling the work of others.

Durick Ben
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The article is great and some views over copyright are accepted of the authentic use.

Kyle Redd
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"I would feel concerned if, in my lifetime, Frozen Synapse was turned into something used to promote ideals that don’t reflect our own... Think of the worst possible thing someone could do with work that you spent four years creating, then imagine you have no legal protection against that."

Speaking specifically for Frozen Synapse, could you give a hypothetical example of something someone with free access to the IP would do with it, that you would find objectionable?

My impression is that you're thinking of something along the lines of "Super KKK Bros." ( - Be cautioned that this is potentially offensive content to watch). My guess is that if you asked Shigeru Miyamoto what the worst possible thing someone could do with the Super Mario Bros. IP, this hacked ROM would be a likely candidate. The creators of the hack did so illegally, obviously without Nintendo's permission.

And yet, there it is. It exists and is available to download, play, and view by virtually anyone who feels the desire to. The IP laws as they currently stand have done nothing to prevent its distribution. So then the question: Do you think the Mario brand has been damaged by the existence of this hack, or by any of the hundreds of other illegal Mario hacks that have been created? Do you think there is even a single reasonable-minded individual out there that thinks Nintendo had anything to do with it?

I would like to note that Frozen Synapse is one of my most-played games in the last several years. I've put over 300 hours into the game, and the last time I checked I was in the top 10 ranking on the leaderboard. I've very much enjoyed playing it. That said, there are several outstanding issues with the game - one of which is the lack of an option for unranked matches - that I'm presuming will never be addressed, as your team has now moved on to Frozen Endzone and other projects.

Certainly I don't expect you expect to continue to work on Frozen Synapse for another 20 years. And in that time, it is very possible (if not likely) that it will become unplayable, just as games like Grim Fandango have become unplayable for anyone not maintaining an old Windows 98 computer.

But if the Frozen Synapse IP were to enter the public domain, there is a very good chance that someone like me, who still have a strong desire to play it, could put in the time and money it would take to fix up the game and charge a small fee for the effort. Doesn't that sound like a reasonable compromise, especially since you would still be making money on the official, original game?

Amir Barak
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" Doesn't that sound like a reasonable compromise, especially since you would still be making money on the official, original game?"
No, it doesn't actually because it isn't yours to fix. How about putting in the time, effort and money towards creating a competing product so that Paul is forced to fix his in order to compete (or not). Why this sudden concern for other people's stuff, would you come fix the hole in my wall that I made with a skateboard so my family doesn't get drafty in winter? Should you then be allowed to live in my house because you did?

These guys worked hard on Frozen Synapse and if in 20 years the game is unplayable and they don't feel like fixing it then tough luck for us... let's create something better!

" That said, there are several outstanding issues with the game - one of which is the lack of an option for unranked matches"
YOU think that these are outstanding issues and obviously they don't. If they wanted you to fix it they'd pay you for it, why should you force your help on them then charge other people for it?

Ivan Sproude
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You're speaking like Frozen Synapse was actually their property. Except it's not. The term "Intellectual Property" is wrong, and immoral, because you can only own land or things - you cannot and should not be able to own ideas or expressions of ideas, no more that you should be able to own people.

Authors of works are granted temporary monopoly over the copy rights of their works. (This monopoly directly impacts the freedom of expression and property rights of everyone else, but society has deemed it to being beneficial in the big picture of things.) They also get the moral rights. Do not confuse those with property rights.

Alex Covic
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I had a short period as an artist. I didn't get the Damien Hirst kind of money and attention, so I decided to give up on it and now, what I did not destroy (and managed to scan) is public domain.

You want to live as an "artist"? Sell short (contract work), or sell big (galleries). But if you depend on the dripping coins after 20 years or even your children and children's children making money from your work ... is pathetic in my view.

There is not enough credit for artists in the video game making space, but then again - it's collaborative work. If you are an "Indie" and proud of your work, share it freely? People, who like what you do will support you, anyway?

The time of "I discovered this amazing artist, s/he is doing this stuff for 30 years. Nobody has seen it" pre-Internet era is long gone.

Depending on selling "long-tail" of games you did 20 years ago only means, you're out of juice? Try something else?

Titi Naburu
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"Steve makes the point that profit from work > 20 years old is pretty vital to someone’s long-term career as an artist; I agree completely."

I disagree. If you need to prevent other people to use freely the works that you did 20 years ago to do your job, then you are not creative at all.

Worth Dayley
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As a game maker with Disney in my work history yet someone who supports the public domain, I've thought a bit about this issue. I want to cultivate our culture and it's disturbing to me that most of our cultural works of the past 50+ years are locked away from access by the people who's culture it is. On the other hand, I love that artists don't have to be starving lunatic poor people anymore and being a career artist, even a career INDEPENDENT artist is a viable life choice.

Anyway, my point is, I'm surprised that there isn't more talk of OPEN SOURCE releases and alternative licenses like Creative Commons and such in this discussion. Games that have gone open source like Quake 2, for example, continue to have communities developing them and building upon them. Cultivating culture. When you release something open source, you're essentially volunteering it into the public domain. It becomes a goodwill donation to the culture of gaming, and you can even convert an IP to open source after years of retaining the copyright. I don't think copyright laws are going to change anytime soon; I worked for Disney, I can tell you they wont be giving that up without a fight, BUT, we can all, as content creators and IP holders, voluntarily contribute to our own culture in meaningful ways of our own volition. We don't have to be forced to give up our properties, we can choose to donate them.

Maybe I should follow trend and write my own blogpost... :)