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Copyright, trademark & money in a creative industry
by Steve Gaynor on 02/03/14 03:41:00 pm   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.

 
This is in response to John Walker's thoughts on the subject of copyright, trademark, and money in creative industries on Rock, Paper, Shotgun http://www.rockpapershotgun.com/2014/02/03/editorial-why-games-should-enter-the-public-domain/ It was originally published to Pastebin at http://pastebin.com/eiKaV8Rq
 
There is some argument going on about for how long a copyright holder should be able to charge exclusively for their own work, before it enters the public domain. John Walker argues that perhaps a good cutoff would be 20 years before an "idea" enters the public domain.
 
As someone who recently paid a record label money to license music that was recorded more than 20 years ago, and someone who last year released a video game I'm charging money for, I have opinions on that.
 
The thing about buying copyrighted media is, you're not necessarily paying only the artists-- and this can be a good and important thing. Money made from a copyright holder's older work-- their "back catalogue"-- continues to be relevant to the creation of new work. Creating media for profit requires investment, and is always a gamble. Will this work make its money back? Will it make MORE than its money back? Will it be a huge loss for its funders? It's impossible to say for sure-- and it takes money to even get to the point that you can test it.
 
So when something does make a lot of money-- when a lot of people do pay money for it it and, miraculously, want to keep paying money for it more than 20 years in the future-- that is a rare and important thing, and one you can't count on happening frequently, if ever.
 
When we licensed songs by Heavens to Betsy and Bratmobile that were recorded in 1991-1993 from the record label Kill Rock Stars to use in Gone Home, the artists got some of that money, but so did the label. The label, currently, is not using its money to record & promote bands from 20+ years ago-- it's using it to record and promote new material by new, unproven bands. Payment for work done decades ago subsidizes the creation and promotion of new work now.
 
Similarly at a large game company, when users buy games that are 20 or 30 years old, that money is part of a revenue stream that allows that company to fund and promote new, unproven work. Because developers need to be paid salaries and health insurance, promotion and distribution all have to be paid for BEFORE this new game makes money, if it ever does. That money has to come from somewhere-- a lot of places, actually-- including sales of games from the earliest days of the company's history, if people do want to keep buying them.
 
This is true across creative industries. I believe it's important that Cormac McCarthy kept getting paid for Blood Meridian which was published in 1985 so that he could be able to create The Road which was published in 2006-- and so that a number of authors who weren't as successful, who you might not have heard of, who received advances from the same publisher that made money from Blood Meridian and the rest of McCarthy's books, could eat and pay rent while they finished writing their own novels that may or may not be successful-- because who knows?
 
This is why the comparison to labor such as plumbing is asinine: plumbing is an individual trade for an individual client, and the work is (ideally) frequent and low risk with low ongoing investment (you personally buy your tools and truck and do your training and get licensed, then advertise yourself and look for work, and then you get paid on a per-job basis every day you do that reliable, verifiable job for a single client who has contracted you. Maintenance of tools and truck and re-up of advertising and license over time are ongoing-- but you don't invest millions of dollars into a new plumbing project then hope that enough people will decide to pay for it after the fact of its completion as possible, then have to invest an enormous amount of money and time into your next plumbing project and hope enough people show up and pay for THAT one to make your money back so that you can afford to ever plumb again... etc. The economics of different kinds of work are deeply, functionally different, and patronizingly oversimplifying those differences to rhetorical ends does a service to no one. re: the police analogy... unlike the plumber or the game developer, the police detective is being paid a salary and benefits by the government, which is paid for by taxpayers... there is simply no overlap between any of these economic models.)
 
So, anyway, I'm happy to have paid for the rights to incorporate music that was recorded more than 20 years ago into the game I made last year, both because I'm personally happy to have given the artists some money in exchange for the exploitation of their work, and because I know that new records are coming into being in part based on those licensing fees (and because it made our game better, which theoretically means we made more money, so I believe it's only fair to pass some of that on to the originators of the incorporated work.) Similarly, if I'm still making games more than 20 years from now, I sure hope I'll still be able to make money off of Gone Home, either by selling it myself or having someone else sell it for me, (assuming anyone still wants to buy it), as part of a means of funding new work in development. At that time in the future, people who didn't work on Gone Home will need salaries and benefits and office space to work in etc. while they make a new, unproven game that hasn't made money yet. And while income from work more recent than Gone Home will be more relevant to funding that theoretical future project, the deep back catalogue is still one important aspect of being able to make new creative work.
 
And that's the point: John's article doesn't differentiate between "ideas" and the work itself. Copyright protects the work itself: the actual film or record or game based on the intellectual property (ie the specific game called "Gone Home," vs. the title, characters, setting, etc. of Gone Home.) This is why anyone can (and seemingly does) make a movie/game/TV show/etc. based on and called Alice in Wonderland and starring Alice and the White Rabbit and the Queen of Hearts etc. etc., but Disney can still claim exclusive copyright to the Tim Burton film created in recent years-- to the work, the film itself inspired by the ideas-- not to the ideas themselves. I think there is a misfire here, between "why should Microsoft be able to profit exclusively off of the video game production Gears of War 1 for Xbox 360 and PC over an extended period of time" and "why should Microsoft be able to be the only entity that can create derivative works based on the IDEAS of Gears of War (sequels, merchandise, TV shows, books etc. using the names/characters/etc.) over an extended period of time?" Currently these two things are generally conflated in law as well, but perhaps that's what John is really striving for (or perhaps it's not, I don't know, I'm not John.) But there does seem to be a conceptual difference between "I created this work of entertainment, Gone Home, a video game production by The Fullbright Company that we charge money for a copy of," and "I created the IDEAS of Gone Home and the Greenbriar Family and Arbor Hill that were the basis of said specific work" etc. etc. and no one may have access to them to create their own derivative works until they enter the public domain.
 
One might remember the saying about 1% inspiration and 99% perspiration. When it comes to copyright, you're paying for the perspiration, and that money you spend allows more people to work in the future-- people who may not have worked on, or even heard of, the thing you're paying for-- and that's important. That 1%-- the idea that inspired the work, that might be an inspiration for other new works (that themselves would need to be funded)-- perhaps that's what feels more appropriate to enter the public domain on a shorter timescale. Because frankly I would love to make a System Shock sequel, but no way am I negotiating the rights for that.
 
 

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Comments


Bob Fox
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The reality is that old games should enter the public domain. There is so much abandonware in games. There are only a minority of game properties that become insanely popular and could qualify for exceptions. I've got tonnes of half-arsed games that no longer work properly like say Mechwarrior 2 3dfx that could have been fixed with a public domain system that allowed game-source for old works to be held in trust by libraries until the expiration and then opened so that old products can be repaired, updated and renewed by fans and players of games.

The problem with IP/Copyright in regards to game sis the model. The model was never designed for games but music and books. Games are different because games are *products* in that they are used by the purchasers. The reality is game developers were born into a period of history and law that was already deeply corrupted a century before they were born. So they have attachments to a system of law that is out-dated for the internet age because of their ability to charge rents to society from the illegal government enforced copyright monopoly and just how twisted and bastardized a model it is to try to apply it to games as it currently exists.

The reality is american's are hypocritical they love the free market until they don't and then ask the nanny state to come in to protect their profits. No one really wants a competitive market where people can build upon past works and innovation reigns because that means creative destruction.

https://en.wikipedia.org/wiki/Creative_destruction

I think of all the indie developers that can't use say Freespace 2 engine and build games off the nuts and bolts of space combat so they end up reinventing the wheel only much more poorly and they spend huge amounts of resources just re-creating something that doesn't need to be re-created.

Take Sol Exodus, or even strike suit zero. If those guys could have used the Freespace 2 engine to make their space combat game all they would have to do is the art/animations/scripting and whatever changes they could add to it. But that can't happen under the current regime.

Everything is very closed and inefficient because of copyright as a monopoly. Nobody can learn from/build off past works because of this monopoly. So there's huge amounts of duplication of reinventing just the nuts and bolts of gameplay systems. Instead of having resources to focus on other aspects of the game like story, NPC AI, etc. Because everyone's busy trying to control everyone else through the law. The reality is copyright law, in theory could be good for everyone but in practice is just a privilege for the few lucky ones who won the lottery. Copyright law with regards to things like code and engine re-use is a net negative on driving game production costs down and creating an environment for innovative products.

So many games end up spending enormous amounts of resources just doing basic game infrastructure that already exist and are already complete. Basically the copyright/ip system that exists today has small developers being forced to make roads and sewers of gameplay infrastructure for many genre's of game. It created artificial barriers to entry and is ultimately anti-competitive. The reason why so many games suck is simply because games are too big and too massive, and hence there is a need to return to the commons and public domain basic infrastructure of games and gameplay systems.

We have a really inefficient system and anyone who thinks otherwise doesn't really love games or gaming.

Amir Barak
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Good thing it's winter around here, I can use all the blankets in your statements to warm myself up!

The only reality in your assertion is that YOU want old games to become public domain not that they NEED to become public domain.

Code reuse and 3rd party engines and open source have done nothing but bad things to the games industry; but that's MY opinion (see how easy it is to differentiate).

"Take Sol Exodus, or even strike suit zero.....But that can't happen under the current regime"
Why the f*** should it? they made awesome games. Making good games isn't easy, nor should it be, much like making good art and good food.

If someone makes an awesome game with awesome characters and awesome gameplay they should be able to profit from it and have FULL CONTROL over its uses for the rest of the goddamn eternity and if they don't want to put it into the public domain it's their privilege. Just because people feel entitled to stuff that they like (even for positive outcomes such as sequels) doesn't really grant them the right to it.

"The reason why so many games suck is simply because games are too big and too massive, and hence there is a need to return to the commons and public domain basic infrastructure of games and gameplay systems."
No, you're wrong. The reason so many games suck is because there's just so much technology to create games out there in public domain (including assets) that it's far too easy to make one. This isn't really reinventing the idea of wheels to make cars, forcing people to write and own their code/engines/assets/game/etc. will result in less games and more quality (well, at least less games :P ).

***
That isn't to say that Ideas should be locked away; ideas should be shared (and are shared by releasing the games to begin with). But the RPS article speaks of old games, as in the complete product, should be in the public domain and I fail to see why that should be the case.

Amir Barak
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"We have a really inefficient system and anyone who thinks otherwise doesn't really love games or gaming."
This sentiment casts a very ugly shadow on your reply and does very little to promote serious discussion. Are you really implying that everyone with a different opinion than this hate games and the games industry? Really???

Bob Fox
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@ Amir

I'm sorry amir but I'm correct. The game industry constantly complains about development costs and whether they'll be able to recoup money on games. We have huge lists of developers that went bankrupt or were disbanded/laid off and publishers like THQ that went into bankruptcy and it's the immaturity of people like yourself who are clueless about what actually adds to the productivity and wealth of the gaming industry.

From a standpoint of efficiency alone and driving down costs of game development, the IP system as it exists is a hindrance. Not a help. If one thinks of things like : All the duplication of basic infrastructure that is of marginal value to the actual product for its profitability but acts as the foundation for a game. AKA basic infrastructure of a game.

I'm sorry to say it but you're just the evil billionaire crying from the top of his lungs that he doesn't have enough. If one asks MATHEMATICALLY whether current game development practices are sound and helping the industry as a whole drive down costs you'll find that the whole IP/copyright regime as publishers use it against developers is a net negative.

So games end up duplicating huge amounts of stuff. The wheel is constantly reinvented in the game industry. So it's a net negative in terms of productivity and producing innovative products.

Amir Barak
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Wow, I'm actually speechless... I'd laugh at your response but it'd be like making fun of 12 clowns in a car.

What do you think is driving next-gen game development costs up exactly?

Also, how would public domain help THQ avoid bankruptcy?

And finally, the tools for making games have never been cheaper and more accessible (there are also alot of FREE tools), yet you yourself claim that more and more studios are going out of business. Logic, I don't think you're using it right...

***
Also, you mean statistically, not mathematically.

Bob Fox
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@Amir

The point is efficiency and enabling higher productivity. You have no clue the original purpose of copyright law was never to protect 'rights holders'. It was to incentivize the spread of culture and knowledge. It was intended to be a public good. A contract between people like yourself and the rest of society. You are granted a temporary monopoly in order to profit, but you have to return your work to the society that enabled you with special privileges in the law to profit in that way.

Here's the constitution:

"Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

For limited times because all things are drawn from the commons - Nature, the natural world. Idea's are just bits of matter and energy that pre-exist your own existence which you borrow from the natural world.

This is a concept so foreign to most readers here because they are not literate enough to have a historical view of copyright and the law.

Arman Matevosyan
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@Bob Fox

I am an Intellectual Property attorney. Your fixation on the natural world is more appropriate in a Patent discussion. Copyright focuses on creative expression, not nature. The key distinction in Copyright is between expression, which is protected, and ideas, which are not protected.

Copyright protects against an exact word for word, sentence for sentence copy of the Harry Potter books. It does not protect the idea of a story about a teenage sorcerer.

I suggest you stop pretending to be an authority on IP when your research seems rooted in wikipedia and reddit.

Christian Nutt
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Cool it on the "I'd laugh at your response but it'd be like making fun of 12 clowns in a car" type comments, please. Respectful disagreement is fine, but no need to cross that line. Thanks.

Amir Barak
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@Christian,
Because calling me an evil billionaire warrants a serious response??
Also, illiterate, immature and clueless are apparently terms to be bandied around without repercussions?

(Not trying to be contentious, simply observing a fact. I'll avoid further lines of disrespect).

@Bob,
While wild dissemination is quite educational at times you still haven't answered any of my questions.

What do you think is driving next-gen game development costs up exactly?
Also, how would public domain help THQ avoid bankruptcy?
And finally, free tools for making games have never been more accessible, why are there still so many defunct studios?

Christian Nutt
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Sure, that's not great either. Let's just say: these kinds of comments, from anyone, just get in the way of discussion. If nothing else, they tend to distract from legitimate points being made.

Arman Matevosyan
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@Christian Really? Bob Fox takes all these shots at Amir:

"I'm sorry Amir but I'm correct."

"it's immaturity of people like yourself who are clueless about what actually adds to the productivity and wealth of the game industry."

"I'm sorry to say it but you're just the evil billionaire crying from the top of his lungs that he doesn't have enough"

Those comments were respectful discourse? Amir somehow crossed the line when he said "I'd laugh at your response but it'd be like making fun of 12 clowns in a car"?

Bob Fox
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@arman

We're talking about game preservation and the rights of game owners to repair and preserve the games they've purchased.

The copyright/IP laws are one sided and it's more than obvious that they are corrupt. People who are taking the 'pro' side have no good arguments to basically get rid of public domain so they can confiscate works from the market. This is really about their greed and not anything of any kind of intelligence.

No one deserves to own a piece of the natural world forever. Whether you like it or not, ideas' are matter and energy that you didn't create, just remixed.

I know that was hard for you to fathom but that's the whole point of and original intent of copyright and public domain.

The historical intent of it as an idea was quickly corrupted and any university that studies such matters is the only credible source. Your lawyer credentials are meaningless because you were raised under a corrupt regime to begin with. There are other lawyers that would quickly point you in the direction of being educated to the corruption of the law.

http://web.law.duke.edu/cspd/

No one can take a look at the following article and say with any intelligence that people like Arman have not abused the law, they've gotten their way EVERY TIME like spoiled children and the public has gotten screwed.

http://en.wikipedia.org/wiki/File:Copyright_term.svg

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

Arman Matevosyan
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@Bob Yes you're right, the fact that I studied the field for three years and work in it is irrelevant. What matters is your tantrum.

The big bad boogie men and their corporations made money. They're all corrupt. They're holding the world hostage with all their evil copyrights. Everyone working for the system is corrupt.

Thankfully we have people like you. You're able to see through the corruption with your wikipedia articles and steer the rest of us sheep in the right direction.

Thank you!

Michael Eilers
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I think you are absolutely correct here; I think most of the responses to the RPS piece have been knee-jerk, less thoughtful and a lot nastier. When I used to teach an Introduction to Game Design course, I would always quiz the students: What is a trademark, a copyright, and a patent? I used to get a huge range of responses, largely erroneous and often completely wrong. I would then ask them what these terms mean when applied to games specifically, and I would get even more mistaken and assumption-driven responses.

I think part of this reasoning (that games "age out" and should become public domain) is driven by our rapid, forced obsolescence of our technology - just try to PLAY a game made 20 years ago - and the tendency of game designers themselves to relentlessly cannibalize and clone previous games and game genres. I can legitimately say that a song composed 40 years ago or a painting created 100 years ago is still useful and can still be enjoyed with minimal effort, while a game from 25 years ago might send me to countless forums and require things like spending an afternoon configuring DOSBox or making a Windows XP image for VMWare (or trips to Radio Shack to hook an old console up to my 1080p HDTV). Many of the naive arguments about copyright and patent are driven by this "utility" argument that something not being sold *today* that I can't instantly use has no value, and should be open to reinvention or free release. I think your argument that older works fund newer ones is really valuable, and I am very glad you raised that point.

I agree that there is an inappropriate failure to distinguish between the "idea" and the thing, but the other part missing from the conversation is the IP itself: intellectual property, which lives in between trademark and copyright, is the real value here and lives totally independent of the technology underneath it. A recognizable IP is arguably a more relatable "work" than an abstract game design idea (Mario's jump, Pac-Man's eating speed) and tends to be "valued" more over a long period of time. The key here is that the worth of an IP is related to its popularity, not exactly a finite legal condition. As you pointed out, Disney works with very old IPs (such as fairy tales) but makes it a point to change the story enough (names, locations, appearances, etc.) so that they can call it a "new" work and then apply modern copyright and trademark law to this product, derivative or not.

Luke Shorts
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Erm, Disney works with this "very old IP" because it is, in many cases (like the classical fairy tales), not IP anymore. It is "public domain". If this hadn't been the case, they couldn't have used it, or they could have only if they had agreed to any arbitrary restriction the rightholder wished to impose on them (speaking of Disney, the recent movie "Saving Mr Banks" illustrates the point quite nicely).

Of course, any derivative work that is original (which, in copyright terms, amounts to a very low standard of originality) enjoys copyright protection, even if the work as such is derivative and could be subject to legal action from the rightholder of the earlier work on which it is based.

Sam Derboo
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"When we licensed songs by Heavens to Betsy and Bratmobile that were recorded in 1991-1993 from the record label Kill Rock Stars to use in Gone Home, the artists got some of that money, but so did the label."

The difference with the majorities of old games like offered on GOG.com, the Nintendo Virtual Console or what have you, the publisher gets ALL the money, the people who did the actual creative work get absolutely nothing most of the time.


"And that's the point: John's article doesn't differentiate between "ideas" and the work itself. Copyright protects the work itself: the actual film or record or game based on the intellectual property (ie the specific game called "Gone Home," vs. the title, characters, setting, etc. of Gone Home.) This is why anyone can (and seemingly does) make a movie/game/TV show/etc. based on and called Alice in Wonderland and starring Alice and the White Rabbit and the Queen of Hearts etc. etc., but Disney can still claim exclusive copyright to the Tim Burton film created in recent years-- to the work, the film itself inspired by the ideas-- not to the ideas themselves"

All that is only legally possible because the orginal work is in the public domain.


"Similarly, if I'm still making games more than 20 years from now, I sure hope I'll still be able to make money off of Gone Home, either by selling it myself or having someone else sell it for me, (assuming anyone still wants to buy it), as part of a means of funding new work in development. At that time in the future, people who didn't work on Gone Home will need salaries and benefits and office space to work in etc. while they make a new, unproven game that hasn't made money yet. And while income from work more recent than Gone Home will be more relevant to funding that theoretical future project, the deep back catalogue is still one important aspect of being able to make new creative work."

Or you could, you know, produce something in the meantime to live off the 20/25/30 years after that. Copyright law in principle is an important institution to ensure creative workers can sustain themselves in a capitalist system because sometimes creative work takes time, but what the defenders of the status quo are demanding - and what the status quo offers - is nothing short of decadent.

Michael Eilers
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I'm interested in your use of the word "decadent" here, much like the use of the word "regime" by Bob Fox above. Both of these words seem to indicate a feeling that there is some sort of high-level conspiracy at work here, where the proletariat is being denied access to the Master's house. Is this really the case? Are young developers being "held down by The Man" when it comes to making new works? Just a gentle glance around Steam, Google Play and iTunes provides pretty good evidence that right now, more independent, original games are coming out from more authors on more platforms (and at more price points) than at any other point in history. I'd wager that more games are coming out per hour than came out per month 20 years ago, and per year 30 years ago. Not all of them are great, of course, but that was also true even in the early days of the industry (as anyone who has played the 522 games of the VCS complete catalog can tell you).

25 years ago, you most likely could have fit all the programmers capable of creating a "game engine" from scratch in a medium-sized conference room. Today, you would need several stadiums. This does not strongly reinforce the idea that somehow, copyright law is stifling innovation and entry of new creators into the game industry.

You are correct to point out that in the case of most sales of older work, the money goes to the publisher or label for that work, and only in extremely rare circumstances would any of that money pass on to the original author/creator/etc. However, a point of the argument in this article is that the money that goes to that label or publisher helps that company fund current and future development; it isn't necessary for that money to go back to the original creator in order to accomplish the goal of rearing new, original talent in the industry. Ask the Flappy Bird author how he struggled against the authoritarian regime of the oppressive rights-holders, and managed to succeed.

Sam Derboo
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"I'm interested in your use of the word "decadent" here"

Let me quote Wikipedia on that one for the definition I meant: "Decadence is a luxurious self-indulgence." I simply consider the desire to financially profit from a singular effort for one's entire lifetime as gluttonous. (Yes, I do know that there are lines of work where this effect is far worse than the creative ones.)


"25 years ago, you most likely could have fit all the programmers capable of creating a "game engine" from scratch in a medium-sized conference room. Today, you would need several stadiums. This does not strongly reinforce the idea that somehow, copyright law is stifling innovation and entry of new creators into the game industry."

25 years ago, the copyright situation was not much different from today. What has changed is the availability of and familiarity with the technology.

In what way would today's creative industries be damaged if Super Mario World would enter the public domain in two years? Talentless rip-offs would still be talentless rip-offs, featuring a bearded plumber named Mario or not, but for example the single most meaningful product (not a game, but a comic named Boys' Night) featuring classical Disney characters since Don Rosa's Life and Times of Scrooge McDuck would actually be legally unquestionable and the artists who created that would actually have a way to use their work to sustain their existence.

"However, a point of the argument in this article is that the money that goes to that label or publisher helps that company fund current and future development."

Again, if a publisher chiefly relies on sales of works that are more than 20/25/30 years old to stay in business, something is fundamentally wrong with that publisher's business practices. And history has taught that it's a crapshoot at best to rely on publishers to keep supporting the creative talent that earned them their fortunes. Granted, this aspect is becoming much, much less of an issue now as developers become more and more independent from publishers thanks to digital distribution, but that doesn't repair the damages of the past.

The real problem are not the publishers that keep selling games and reap all the rewards, though, it's those that don't exist anymore or simply keep sitting on their IP. In that regard copyright law might be a lot less awful if it was a bit more like trademark law.

Michael Eilers
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I still don't feel you are making your case here. I do not see a game market that is being stifled by people sitting on IPs. "In what way would today's creative industries be damaged if Super Mario World would enter the public domain in two years?" - the inverse of this question is equally true. Only Nintendo can make a Mario game right now, but thousands of 2D and 3D platformers in the Mario vein are published per year, and some of them go on to great success. The incidence of a major rights holder suing or issuing cease-and-desist against a game developer is extremely rare; so rare in fact that when this does happen, it generates major headlines.

I just do not understand this accusation of someone "sitting on" their IP. Do you genuinely think that (for example) a known game IP such as Q*Bert (not used in a major game in quite some time) should be declared public domain so that I can make an actual Q*Bert game, using the original sounds and images, and publish that on iPad right now, along with many other game developers also generating their own versions? How does this further the game market, and help encourage new developers to enter the industry? It seems pretty easy to me to instead leverage a counter-argument here: prohibiting clones and copies of known IP actually forces people to be more original and more creative, to compete! That would be an anecdotal argument, but I would also state that the argument that IP holders are stifling creativity or market flexibility is just as anecdotal and lacking in evidence. Similarly, your example of publishers living off old IPs is also anecdotal and lacking evidence; can you find even one that fits this definition?

All crimes require means, motive, opportunity. I don't see any of those with the current copyright law - you don't see the long arm of publishers crushing developers under an iron fist, except in a very few really obvious issues such as people making Chrono Trigger sequels as fan projects when the actual game is being released for sale on the same platform.

Bob Fox
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@ Miche

"Is this really the case?"

Yes. Game quality is suffering because independent developers have to re-invent the wheel constantly so games are not as good and deep as they could be if things like game engines and gameplay systems could be released into the public domain.

Just look at all the low scored indie games that could be much higher quality. Most stuff is not very good just because of the immense amount of duplicated effort spent on basic game infrastructure.

As an american you're great at coming up with convincing yourself you're the good guy when it's obvious the law is corrupt.

Amir Barak
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@Bob,
You still have not given a single example of how this is correct.

There are so many many free game development tools and cheap tools and people who are willing to help and yet the reality of it is that good games are hard to make.

"As an american you're great at coming up with convincing yourself you're the good guy when it's obvious the law is corrupt."
These assertions are not helpful for your discussion. And just FYI (for example), I am not an American... I'm from Israel.

Zachary Strebeck
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Agreed. Look at the breadth of "indie" games and concepts that are coming out now, more than ever before. I fail to see the stifling effect on innovation that copyright protection has. Just because devs can't use the Freespace 2 engine? There are plenty of engines out there that developers can either use for free or pay a reasonable license fee for.

Luke Shorts
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The problem when speaking of copyright is that - like all intellectual property rights - it involves a bundle of different issues, which can appear in quite a different light depending on where you sit. I will address just some of the points you make.

"That 1%-- the idea that inspired the work, that might be an inspiration for other new works (that themselves would need to be funded)-- perhaps that's what feels more appropriate to enter the public domain on a shorter timescale."

Copyright does not apply to ideas, or, in the words of 17 USC 101(b), "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work". The problem that I think you might be hinting at is that, given the fact that copyright infringement may be triggered by the reproduction of a very tiny amount of protected material, the protection afforded by copyright not only covers acts of classical piracy, but also puts a chilling effect on the development of derivative works (which, despite the bad name that derivative works enjoy, is not necessarily a good thing: in an imaginary world where copyright lasts forever, a lot of works that we consider masterpieces or classics of our literature would be derivative works and subject to infringement actions).

As copyright is supposed to protect and encourage the development of creative works, you can mitigate these - in principle unwanted - effects either by working on the standard for infringement or on the term of protection. Both solutions are not without side effects: reducing the standard for infringement is difficult, partly because the standard itself is a bit fuzzy, and it would encourage rip-offs of protected works; reducing the term of protection means on the other hand that the rightholder, at some point in time, loses compensation for his work. Given that the current term of protection is so long that profits keep being collected long after anyone involved in the creation of the work is dead, it is not outrageous - in my opinion - to put forward the notion that it ought to be reduced (note that I am not saying that it should be cut short to 20 years). Furthermore, I have never seen any credible study, supported by empirical evidence, proving that the current (or a longer) term of protection is needed so that authors receive a fair compensation for their contribution.

Another issue linked to the copyright term duration is that it kicks in automatically. Considering that many works (video games are a typical example) have a lifecycle much shorter than the copyright term, it may well happen that works simply become unavailable and get lost because there is no legal way to reproduce them. This is an issue that has been addressed in several venues, including here on Gamasutra. For this reason, some people are proposing (and I am not referring to some random IP philistine either, but to practictioners and scholars in the field) to have a shorter term of "automatic" protection which can be extended upon registration. This should avoid scenarios like those where, in order to publish an old game, you need to do some serious investigation work to find out which company got the rights during some sort of "IP garage sale" of the original rightholder (company which has in all likelyhood forgotten about those rights, has no connection with the original devs and might not even operate in the gaming business, so the chances that licensing revenues will be invested to foster new talent is very low).

Ivan Sproude
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Actually, there was a study published in 2007, that calculated that the optimal copyright term should be around 15 years, and decrease as the cost of creating productive work goes down :
http://arstechnica.com/uncategorized/2007/07/research-optimal-cop
yright-term-is-14-years/
http://rufuspollock.org/papers/optimal_copyright.pdf

Amir Barak
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I think there's a huge confusing here about the difference between "Idea" and "Product". If I make a product, ie. game, with a rich world, amazing characters and great gameplay, why shouldn't I be able to give the rights of it to my children? This isn't an invention that benefits humanity, it's not a mathematical equation nor is it instrumental to the progress of science. Why shouldn't I be able to sell and control my product through the duration of my lifetime? (and 20 years, I hope, is less than my lifetime)

If I make a billion dollars and put it in the bank my children get it (unless they annoy me and I give it to charity), it doesn't magically enter "public domain". If I build a house, same thing, why not my game?

John's analogy of the electrician and police officer also misses the point completely. A better analogy is an artist that made a million sculptures of the same unique design. If he sells half a million in twenty years should the other half million simply become public domain? Should people be allowed into his house to take them for free? Should not his children be allowed to sell them slowly?

Luke Shorts
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Copyright is neither about "ideas" or "products". It is about the right to make copies of an original work, and the right to distribute said copies to the public. The artist with a million sculptures of the same design is entitled to leave the half a million he did not sell in his lifetime to his heirs. These are tangibles goods that belong to him. What will expire under copyright laws is his right to forbid people to make other sculptures of that design, or to print that design on a t-shirt, and so on.

It is not by chance that the idea of property for tangible things, or products, is old as civilization itself. This is because tangible objects are inherently scarce in nature, as producing them requires a number of finite resources. This is why from the very beginning society needed a mechanism to regulate access to these finite resources (which ranged from the king having all rights on the resources of the realm and then "licensing" them to his vassals to the modern idea of private property). Intellectual property rights are a relatively recent creation and introduce artificially the concept of scarcity for intangible things; for instance, copyrighted objects have a higher value than the mere materials they are made of because the rightholder can artificially limit the supply of said copies into the market.

In the end, copyright is based on a notion of social contract; creative work is considered beneficial for the society as a whole but artists need to eat too. Before copyright, this meant that most artists created their works under the following conditions: if they were wealthy enough that they did not need to work, if they had a wealthy protector, or as a side job next to the one that brought them income. Copyright is meant to give directly creative people a fair compensation for the benefit they provide to society with their work; it is not an absolute right, of unlimited scope or unlimited duration.

Amir Barak
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I've got heaps of questions concerning your post; so I'll separate into different replies.

About the notion of tangibility;
While data seems to be intangible it isn't inherently so; there is a finite amount of space for storing everything we produce (certainly for one single person) it's just that the volume of space is REALLY REALLY REALLY BIG. But it isn't infinite nor intangible. Digital assets are digital property and while we can't specifically interact physically with them we can interact with them at the digital layer. I feel as though saying that IP rights introduce artificial scarcity is, I don't know, imprecise at best. We create these works using tangible tools, store them within tangible spaces and distribute them through tangible means.

I also think your idea of a king licensing his lands to his vassals ignores a whole wide range of other social, political and economical factors.

I agree that it is neither absolute nor unlimited. And we have mechanisms to protect people's ability to produce derivative work of the copyrighted material, how will forcing old games into public domain have ANY influence on this? How will forcing any IP? From what I can see we need a better definition of what copyright is, what inherent rights we have as creators and finally how can we, as creators, retain control over our products.

Again, why can I leave a huge amount of money to my children (money nowadays is no more tangible than games by the way) but not the rights to my game? Are we suggesting everything should default back to public domain on our death without us having a say about it?

Amir Barak
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Let's not confuse artistic work such as ours with scientific discovery. Scientists don't invent out of nothing; they work on top of other work and discover (through creative means of course) natural occurring phenomena which can be used for commercial use. These are copyrighted for a limited time so that later there can be economical competition.

We make games, we create a world out of nothing and this world has no inherent natural value (as much as we like to believe otherwise). Games are not scientific discovery, they are implementation of fluffy concepts and this implementation is our property and should fall under property law (I'm not sure what this entails).

I am neither a lawyer nor posses specialized understanding of copyright and intellectual property rights. I would love to hear legal interpretations from lawyers who specialize in this field; specifically how copyright law interacts with property law.

Luke Shorts
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@Amir, second post:

Intellectual property rights do not map 1:1 to different human activities. A game is a complex product and can be bundled with a number of different IP rights, such as copyrights, trade mark and patents. Actually, something as ordinary as a teabag may be protected with a plurality of rights, such as patents, trademarks and design rights. By what you say, I think you are conflating patents with copyrights, while I am referring specifically to copyright.

In any case, and just for the sake of completeness, the argument in favour of patents is also based on a social contract: in this case, society has an interest in technology development while the inventor needs a way to recover R&D costs. Key differences with copyright are that patent protection is not automatic, but you need to apply for it and pass the examination at the Patent Office, and its duration is also much shorter than copyright. By contrast the protection you get is significantly broader.

Luke Shorts
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@Amir, first post:

I don't know to what extent I'll be able to get my point across to you, but I'll do my best.

Starting from the beginning, I have already tried to explain that copyright is related to the right to make copies of and to distribute an original work. I have no problems to acknowledge that data is tangible in the sense that you need a physical device to store it. However, in case of copyright infringement you are not deprived of the tangible means that you use to store data and you don't lose the data itself: someone else, using his or her own tangible resources (their own internet connection and electricity, for instance, or their own blank dvd) has created a copy of the data, and it is this *action* that is protected by copyright. Once more, making copies of a work will always consume physical resources, but the price you pay for these copies is not due purely to the finiteness of these resources, but also to the fact that you need to obtain the rightholder's permission to make the copies to begin with. This is the element of artificial scarcity I was referring to before which is intrinsic to the operation of copyright and of IP rights in general.

"I also think your idea of a king licensing his lands to his vassals ignores a whole wide range of other social, political and economical factors." Of course, but can you point out what factors I am leaving out that are relevant to my argument? What I am trying to say is that copyright is a social construct, not a law of nature, and like all social constructs it should be subject to re-assessment as society evolves, the same way other social constructs (like the traditional notion of property) have changed throughout the years.

Lastly, I think that any re-assessment should not ignore the reasons why copyright is in place to begin with, which are, at least in case of modern legislation, to promote the creation of original works (which is considered good for the society as a whole) by providing means for content creators to be compensated and make a living from their creative activity. Giving such exclusive right to authors - or their successors in title - is not without drawbacks for the general public, however, because it means that cultural products do not circulate in the market as freely as they could and furthermore that the creation of further original, but derivative, works is restricted to some extent. This is why the right has to be of limited duration. Under the current rules, the term of protection is sufficiently long that you can leave the rights of your game to your children, but at some point these rights will expire, letting the game go back to the public domain which you also exploited during the creation of your game.

"we need a better definition of what copyright is, what inherent rights we have as creators and finally how can we, as creators, retain control over our products" All these elements of copyright are pretty well defined; if you have questions about those, there are many resources that you can consult.

"Are we suggesting everything should default back to public domain on our death without us having a say about it?" I don't know what *we* are suggesting, but I am making the case that currently there is practically no evidence that the copyright term as it is strikes a good balance between the two opposing interests it is supposed to protect. I am not saying that it should necessarily be shorter (although this would be my gut feeling), but that policy-making in IP rights should stick to the basics and be backed by evidence.

Amir Barak
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Thank you for expanding on your points.
I understand that a copyright is related to the ability of "copying" the original material. However intellectual property rights seem to be a separate issue as well (albeit interconnected). And I think that the original article on RPS is a confused mess of "feel good" sentiments and misconceptions of the actual issues. Beyond that I'm not sure the elements of copyright are so well defined given the amount of grey area which seems to exist.

My other issue with your applied logic is in regards to the un-inheritiness of my right over my creation. Why is it that my claim on something which I created is not given by nature (according to you) but your right over something which I created is?

What about a digital photo of your daughter, should I be able to simply pick one up from your facebook account and wait 20 years before making products with it? Will that ever fall into public domain?

As far as I understand copyright it cannot be applied to ideas (etc) but only to specific implementations. Why should that automatically revert to public domain ever? Unless, I as the author, want it?

Luke Shorts
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Briefly:

Intellectual property (IP) is just a catch-all term for a bag of rights that have been created by man throughout history, including copyright. Each of them has a distinct scope, and different rules that define how it can be obtained, maintained and enforced. If you don't believe me, please believe wikipedia (http://en.wikipedia.org/wiki/Intellectual_property). I don't understand what are the other issues you are referring to. As for the existence of a "grey area", this is not unique to copyright issues, but applies in most areas of law; that's why lawyers' most favourite answer is "it depends".

I never said that the article on RPS was particularly well written and/or that I agree 100% with its conclusions.

I don't know what you mean by "un-inheritness". As far as I am aware of, the only things that are given to us by nature are the laws of physics, so what my children will inherit from me given to them by nature is about 50% of my genes. The rest are constructs that we create to function collectively as a society. When we see that something does not work, we change or replace it with something else, hopefully better (like when the XIV amendment suppressed slavery in the US or, in the case of copyrights, the Statute of Anne brought the right to make copies in the hands of authors, whereas the Licensing Act previously assigned it to a corporation of publishers).

Again on "un-inheritness". You are aware that, as a matter of law, the copyrights you have on your creations will expire, right? Until then, you can dispose of them as you please. That's simply how the law it is. This does not mean that it has always been like that, or that it will stay this way forever.

About the "digital photo". This is actually a complex question, because besides any issue of copyright, a person normally enjoys so called "personality rights", i.e the the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. But if you substitute my "daughter's picture" with any other doodle I make during my free time that I posted on the Facebook page I don't have then yes, I'd be cool with it being reused by others, provided that the same term of protection applies to every other work under the same conditions.

Amir Barak
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We agree here by the way, I was merely elucidating on my point that the law is arbitrary to either side. There is no proof of copyright benefiting society or harming it too much either. Laws adapt as time goes by which is how it should, though we now have some say in the direction (at least somewhat).

As for your doodle vs. picture; that's the point, the law cannot make an automatic case for either. You, as the author, must acknowledge your responsibility and take a stance. If you want everything in public domain, fine, but that should be your decision not an arbitrary 20 years because someone wants to use the image.

Finally, yeah, I'm not sure where I fully stand on the length of copyright and the way it is applied and misapplied but I think that a blanket statement on defaulting into public domain is, let's call it naive and leave it at that.

What is the issue taken by people with the notion that someone can hold a copyright to a fiction work for as much as they like? I honestly can't understand this?

Again, it isn't like science where we discover a finite amount of natural laws to better understand the universe. There isn't a finite amount of implementations over an idea, what's the problem with coming up with more?

James Margaris
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What exactly is the "problem" with long copyrights? Can someone concisely articulate the supposed harm?

Does anyone look at films and games today and think "man, the big issue facing these mediums is that there aren't enough derivative works!"?

Reading that RPS piece it's hard to fine ANY actual argument in favor of short copyright terms. It's a bunch of awful analogies and rebuttals to twitter comments, with little argument affirming the actual position being taken.

If I want to write a comic book about a flying superhero from another planet why is it a "problem" that instead of using Superman I have to invent my own guy? How is copying someone else more creative than inventing my own spin?

The RPS piece focuses on ideas, but creative ideas are not really copyrightable. I can't sell a Superman story using Superman but I can sell a comic story involving a superhero who can leap tall buildings and comes from an alien planet. There are literally a dozen Wolverine copycats - Marvel has a copyright on Wolverine comics and a trademark on "The Wolverine" but they don't own the idea of a dude with claws. I can make an FPS about burly dudes who take cover and fight aliens. I can even make it with the Unreal Engine. Is it really a "problem" that I can't call it Gears of War?

Other than extremely hand-wavy arguments about the suppression of creative spirit (because nothing says creativity like derivation!) I have troubling finding any argument as to why this is a "problem" at all.

I can't sell copies of Super Mario Brothers or make games using Mario. And?

Ivan Sproude
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If you want to understand why the current copyright system is bad, why derivative works are important and especially why it stifles creativity, I recommend this book :
http://www.free-culture.cc/freecontent/

Zachary Strebeck
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Yes, I fail to see why 20 years is fine and reasonable, but the current time period is somehow not. I know that they are vastly different, but there wasn't a clear articulation in the RPS article as to why 20 years is acceptable. If anything, as you point out, giving exclusive rights to that particular expression of an idea fosters innovation and creativity more than allowing everything to be in the public domain.

Nejc Eber
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Please watch Everything is a Remix. Exclusive rights don't foster innovation, because you can't use things that works and build upon them, just because something is patterned. Imagine someone's great great great great... grandfather patterned Pythagorean theorem or something crazy like that and everybody using it would have to pay for using "his idea." Why do you need to make everything different if some things just work? Why waste time on things that work, archive what you want, and not work on other stuff? Why reinvent the wheel every single time? Hollywood was built in California, because they escaped Edison's pattern enforcements regarding cameras and they flourished and is now known as the most famous movie making place in the world. Ironically they are now one of the biggest copyright enforcers.

Nejc Eber
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As an art student I can give you 2000 examples in art. Here is one:
http://shrani.si/f/3m/bm/4DXeG5Z/artist-copies020.jpg
http://shrani.si/f/1S/Tu/4vnsIwqy/artist-copies021.jpg

Zachary Strebeck
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I'm loading up Everything is a Remix right now, so I'll reply about that afterwards. Just two points, though.
1) You can't copyright an idea like the Pythagorean Theorem. You can't even patent it. You're conflating and coming up with irrelevant counter-examples. How about this. Imagine you wrote Sherlock Holmes. Then someone else wants to write Sherlock Holmes stories the year after you publish it. This is innovation? The second person is free to write any story about a detective that they want, just not one about a character named Sherlock Holmes that has those exact traits (or substantially similar). I'm not sure how that DOESN'T foster innovation.
2) Hollywood escaping Edison is a patent issue. Again, copyright would prevent people from making copies of Edison's films. Do you not think that Edison and company should make a profit from the work they put into inventing camera technology, sprocketed film, etc.? How does not being able to protect your invention foster innovation?

Zachary Strebeck
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I watched it. I'm not seeing how "exclusive rights don't foster innovation" comes from watching that documentary. Let's take Star Wars as an example. Lucas took the IDEAS from all of those various influences and merged them into something wonderful and inventive. The same goes for Tarantino. They are using ideas. They are not copying the expression of those ideas, for the most part. Copyright law allows for this. It also allows for independent creation, which seems to be brought up as an argument against intellectual property protection in the film. It also allows for something called Scene A Faire, which allows for genre conventions to be beyond protection. Therefore, anyone who wants to make a slasher film would be able to use the expression of many ideas that are in all of those films.
The documentary also talks about Thomas Edison patenting the light bulb. Another terrible example, because patent law specifically covers novel improvements to other patented technologies. There are cases where the improvements have been found to be obvious, and therefore no patent was granted (or it was revoked). "Standing on the shoulders of giants" is perfectly fine under both of these intellectual property regimes.

Arman Matevosyan
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@Zachary I've read your blog posts and comments in the past. I enjoy them thoroughly.

Zachary Strebeck
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Thanks! Comments like this and on the posts themselves are very encouraging. Nice to know that someone is reading.

Nejc Eber
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I appreciate that you took your time and watched the videos :)
I agree with a lot of what you have said. The thing is that it depends on how broad your copyright claim is. Some claims are just crazy, like this example:
http://www.youtube.com/watch?v=XJtLSLCJKHE
It has been resolved since this video has been posted, so yay, but examples like this one are pissing off creative people.
"Do you not think that Edison and company should make a profit from the work they put into inventing camera technology, sprocketed film, etc.? How does not being able to protect your invention foster innovation?"
I do think they should be able to make money, but sometimes the royalty fees are just too high, and that makes it impossible for individuals to make creative work and that is a good example on how they had to flee to make a creative boom.

James Margaris
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As far as copyright extending to source code, assets, etc, as related to re-use - even if source code and assets were not copyrightable source code and raw asset files are typically not released at all. When you get a game you don't get the source, you get an executable. You don't get the level editor or pipeline tools. The assets in the game are in baked form, not the raw Maya files.

So, if you want people to be able to use those assets and source files you are going to make the copyrights expire on them, and also what, force the authors to release them?

Michael Eilers
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Further complicating this issue is the use of SDKs, APIs and plug-in code: you can't release the source of your game when you did not author 100% of that code. Very few games today are built without some sort of SDK or add-on code.

Back in the '90s a friend of mine worked on a "port" of the game Deus Ex to PlayStation 2. The Unreal engine used various tools for audio and music that Epic did NOT write, and thus when he got the Deus Ex "source code" there were large parts of it that he had to re-write from scratch, rather than port, because Miles (or whoever, I don't recall exactly) did not make a PS2 version and would not issue him the source code for their tool. None of this "make games public domain" argument is really considering the reality of that issue.

Haran Sened
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This article, as most criticism of the RPS post, focuses on the fact that shortening copyright would reduce the earnings of developers. I wonder if any objections would remain if we thought about it as part of a double industry change, compensating developers for this loss of income - e.g. limit copyright, and give creative industries some tax break. If no other objections exist, I believe that this (limiting copyright while compensating creators financially in another way) is a worthy goal, as releasing works into the public domain opens up a myriad of options. Historic games such as Gone Home could include whole CD collections, video game cartridges that you could pop in and play a game inside the game, etc. (I don't think this would have been a good design decision but the option doesn't even exist today). Brands would leave IP hells and someone could make System Shock 3. Parodies and references within games could explicitly include their source material, researchers on old games could work easily, etc, with the creators of those old products already compensated.

Sam Derboo
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"Prohibiting clones and copies of known IP actually forces people to be more original and more creative, to compete! That would be an anecdotal argument, but I would also state that the argument that IP holders are stifling creativity or market flexibility is just as anecdotal and lacking in evidence."

My intended argument may be formulated like this: Forcing new faces to come up with new IP hinders uncreative people (who produce highly derivative works either way, just outside the purview of copyright and trademark laws), while privatizing our cultural heritage hinders creative people, those who have this awesome artistic vision that relies on existing elements. There's no doubt that the latter are the minority by far, but the others are a non-issue. They keep producing noise in either scenario.


"Similarly, your example of publishers living off old IPs is also anecdotal and lacking evidence; can you find even one that fits this definition?"

Someone who has nothing to do with games is still earning royalties with the Wizardry sequels that are produced in Japan (the actual creators had actually fought a long legal battle to get the rights, but then again, neither of them has contributed to the medium of video games for decades). But I'm not arguing that this is a big problem now, but that the argument that this should be secured as a viable business model is not valid.


"I just do not understand this accusation of someone "sitting on" their IP. Do you genuinely think that (for example) a known game IP such as Q*Bert (not used in a major game in quite some time) should be declared public domain so that I can make an actual Q*Bert game, using the original sounds and images, and publish that on iPad right now, along with many other game developers also generating their own versions?"

I genuinely think that Q*Bert, the original game, should be free to distribute for everyone so people can legally experience the history of the medium. (Disclaimer: I don't know if the original Q*Bert is currently sold anywhere.) I also genuinely think that Wreck-it Ralph should have had the right to use Q*Bert. They did have him and presumably paid roaylties, but my problem is that the copyright holder could have easily prevented that (as no doubt countless others have done; the cast of that movie doesn't strike me as their first choice. In Wreck-it Ralph it's not that much of a problem though, because the important point is more that they ARE old video game characters, not necessarily which ones).


"We make games, we create a world out of nothing"

No we don't. We create worlds out of our experiences and inspirations from our world and our culture. "From nothing comes nothing" might be getting outdated in astronomy, but it is not in our culture.


"If I want to write a comic book about a flying superhero from another planet why is it a "problem" that instead of using Superman I have to invent my own guy? How is copying someone else more creative than inventing my own spin?"

Because Superman comes with a cultural context that can be crucial to an artistic vision. No one would bother to dig up Alice in Wonderland again and again if she was just a gal meeting strange creatures in a fantasy world. Alice and Superman, Mickey Mouse and Mario should be in the public domain because they're much more than products.

Read Boys' Night by Max Landis and AP Quach. The main characters absolutely have to be Mickey and Donald and Goofy for it to work the way it does. Once again, it's the most meaningful work featuring these characters in decades. Yes, there are mechanisms to protect the artists (defend as parody/satire in this case), but it also seems very likely Disney would crush them under litigation if they had tried to publish it commercially.


Also, part of the drive of the original article the above was a reply to was game preservation. I think that's even the most pressing issue here. We cannot legally ensure that Sorcerer of Siva or Panorama Toh don't get lost forever.

Amir Barak
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Yes, we create out of OUR experiences. Not other peoples. Or are you saying we shouldn't create from our experiences, I'm confused...

How many games or any work really is derided as overly derivative. How many RPS articles review games with low scores as derivative, generic and boring?

I did read "Boys' Night" and while it is a well written story it could work with other characters as well, not to mention one might argue that it succeeds because of the copyright restriction placed over the work (would it be better as a "normal" derivative of Mickey, Donald and Goofy?). And as you said, there are mechanisms to protect derivative work such as this; and yes, if they wanted to publish it commercially they should pay royalties or come up with other characters.

"it's the most meaningful work featuring these characters in decades."
That's your opinion. It has nothing to do with the value of the work itself or has a place in this debate concerning the legality of the work.

"Because Superman comes with a cultural context that can be crucial to an artistic vision"
Absolutely, and that context comes with a price.

Sam Derboo
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"Yes, we create out of OUR experiences. Not other peoples. Or are you saying we shouldn't create from our experiences, I'm confused..."

I'm saying your experiences would be a dull ocean of nothingness if it weren't for our shared cultural context to inspire it. You don't pay royalties for every word you write in a commercially published work, even though someone else came up with almost every single one of them. Nintendo never paid royalties to the kid Miyamoto allegedly saw hiding in a garbage can to come up with Mario diving down pipes, even though it was the kid's idea to hide in that can. You don't pay royalties if you use elves, dwarves or dragons in a fantasy story. My experiences include Superman and Mickey Mouse in the exact same way as Tolkien's included dwarves, elves and dragons. There is no purely ethical claim on intellectual property, the only ground to defend its legal protection is based on economics.

"(would it be better as a "normal" derivative of Mickey, Donald and Goofy?)"

As a legal derivative of Mickey, Donald and Goofy, it would have the power to sustain the creators' existence without being forced into dependence of people who by now have just as little to do with the creation of the original characters ("should pay royalties" hardly even seems like a solution in this case, because it's not likely that the Disney Company would approve of its publication).


"Absolutely, and that context comes with a price."

It comes with a price now. It didn't for Walt Disney when he adapted Snow White, it didn't for Tolkien when he adopted elves, dwarves and dragons into "his" fantasy world, it didn't for Goethe on Faust and Reynard the Fox.

It's also not as simple as that, because many big IP holders are insanely protective about their property, so in many cases that context doesn't come at all.


"That's your opinion. It has nothing to do with the value of the work itself or has a place in this debate concerning the legality of the work."

That seems nonsensical? Opinions have everything to do with the value of everything. No opinions, no values. Also the debate is not about whether or not it is legal, it is about whether or not it should be legal, and to determine that, comparing values is the only way to have a meaningful discussion at all.

Michael Thornberg
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What are you afraid of ?.. comes to mind.

Amir Barak
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Clowns. I thought I made it clear before :P

Sam Derboo
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"What exactly is the "problem" with long copyrights? Can someone concisely articulate the supposed harm?"

The biggest problems are preservation and curation. There are hundreds of games from ca. 30 years ago that currently only survive through illegal means due to the floppies they're stored on slowly disintegrating and the copyright holders not being available and/or not caring. Meanwhile, the first two games (are there any more by now?) the Smithsonian added to its permantent collection were Halo 2600 and Flower... because they are the ideal two works to represent the art of video games? Hardly.

Zachary Strebeck
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It's very possible that a use such as this would be a "Fair Use" under copyright law. I'd be interested in getting an official ruling on this issue. In the context of a museum, I mean. I also wonder at the ease at which a museum looking to feature such a game in their collection of the greatest games of all time would be able to get a license for such a use. I know if I owned a company that owned an old game (that is most likely not making much money), it would benefit the reputation of that game (for future releases, new versions, etc.) to have it featured as such.

Sam Derboo
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That's the thing with fair use though: It has to be used as a defense in court, and no one has/is ready to spend the resources it takes to set a precedent by defending use in litigation against a corporation with virtually indefinite funds, so it may as well be the bare minimum definition of the concept.

Zachary Strebeck
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I agree with you; I think fair use is "broken" in this regard. I was just reminded of something regarding archival - http://www.copyright.gov/1201/2006/index.html
There was an exemption for archival of software on obsolete systems from 2006-2009. They only last for three years, though, and it looks like it wasn't renewed in 2010 or 2012. Another problem...

Ivan Sproude
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See also page 64 of the .pdf, page 417 of the document "Free as the Air" of the effect of DMCA on nonprofit libraries, archives, and educational institutions :
http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved
=0CEMQFjAC&url=http%3A%2F%2Fwww.benkler.org%2FFree%2520as%2520the
%2520Air.pdf&ei=IqbyUsf5FOOH0AXb6YCABw&usg=AFQjCNF4h6sz8ppskIjLpU
HwmPtOa1R7dA&sig2=T0ezhfFMV6y3K6eDji9gWA&bvm=bv.60799247,d.d2k

Paul Laroquod
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This is the second article in as many days preaching copyright maximalism on Gamasutra. These two about antipathy to the public domain -- a universally positive concept -- from so-called 'indie' developers, of all people! The reasons: fearmongering. Last week, you had an article claiming that it's somehow hypocrisy to not want big studios to be able to trademark everyday words, assuming that somehow we all agree that indie studios should be able to trademark everyday words. (We definitely do not all agree about that.)

Is this why I am reading Gamasutra? Why am I reading this site? So that I can read a bunch of Uncle Tom indie devs selling out the Commons and our common heritage to corporate ownership, in some misguided hope of scrounging every last penny when hitting a sell-out jackpot??

I have absolutely no interest in this kind of article, and I am completely uninterested in Gamasutra's point of view on copyright, which is singularly uneducated and consistently takes a pass on important questions of the public good in order to kowtow to a legal regime that every reasonable person in the world can agree is completely f'ed up.

I read this site to get inspiration for my game designs and to read notes on process, not to have copyright maximalism shoved down my throat on a weekly (now daily!) basis. If that's what Gamasutra is about, then I am not about Gamasutra anymore. I am unsubscribing, and this will be my last contribution here. Goodbye.

Sam Derboo
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Way to overreact. Ever thought about not reading the articles you're not interested in?

Paul Laroquod
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Somebody has to say 'No.' This time, it's me. Next time, let it be somebody else because I won't be reading. You may call that an overreaction, but whatever it is, it is a fact.

Paul Laroquod
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P.S. The other recent article on public domain by Paul Taylor is not as bad as it seemed upon reading the first few paragraphs (in which this article was praised). I have noted in that other comments section but I'm still unsubscribing because I find posts like this too alienating: to me there is no better evidence of the utter sell-out sham that is 'indie games' than posts like this right here. I just don't want to be exposed to this kind of B.S. because it makes me think less of the whole indie games community, which is quite demotivating. And I don't want to be demotivated. *plonk*

Amir Barak
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That's a bit rough ain't it?
People are entitled to their own opinion, whether you like it or not, of course you're also entitled to quit out in huff but what is that going to achieve really?

I've been trying to teach my kids that if they think I've been unreasonable they should speak up and argue; try to convince me that I'm wrong and they're right. That's how we learn... I know I've learnt quite a lot from other people on this site and specifically these article/s and their comments, why so much hate/anger?

'Sides, I dunno about some of the other programmers here but some days this is the most lively argumenting (what, that's almost a word) I get all day seeing as I'm a single developer hiding away in my office in my house!

Christopher Ellington
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One thing that makes games distinct from other forms of media/art is that games are extremely ephemeral. Technology changes quickly and often games, and all their content, become lost in the ether as new consoles or operating systems replace the old. This makes it difficult for copyright holders to keep their games available to the community and also maintain a profit margin. Does this mean that if a game is no longer economically viable it should no longer be available to consumers in any form, anywhere?

I don't think the point of the argument for adding games to the public domain is to take money out of developers' pockets, but to maintain a rich and diverse cultural history of the game design medium itself. We all work hard to develop quality products/media and deserve to be compensated for that. But what happens when the maintaining availability of a game is no longer economically viable? Should the game just disappear? Should someone's hard work just go away if the copyright holder is unable/uninterested in maintaining it?

The best example I can think of for this is Grim Fandango, or even any of the old LucasArts adventure games. Disney aquired LucasArts, and shut it down. You can bet that Disney has little interest in making money off of Grim Fandango at the moment, so they cannot be expected to make this game available to willing consumers. Should I be forced to find illegal means to play this game just to experience it again? Should it disappear from the gaming culture because Disney has no interest in it?

I would make the argument that a game like Grim Fandango adds quite a lot to the cultural landscape of video games, that young designers who play it might learn something. You could even argue that playing Grim Fandango would create even more respect for designers such as Tim Schafer and encourage enthusiasm for the work he and others are doing at Double Fine. No matter what I would see a gaming culture that is without the early LucasArts adventure games to have lost something very special, and be worse off for it.

If in 20 years, people are stilling willing to pay money for Gone Homer (and they probably will because it is a great game) then you should be able to do so. You should be able to reapply for your copyright at no cost. Then, if you want to invest in maintaining its availability, you or the new copyright holder can do that. If, however, the copyright is purchased by a different entity, or you simply lose interest in maintaining the product, it should be allowed to naturally slip into the public domain. This keeps the game alive so that players in the future can experience the game firsthand, and possibly feel inspired by it. The gaming culture will be better off for it.

Christopher Ellington
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It looks like I just spelled "Gone Home" as "Gone Homer." This is because I am stupid. I am sorry >_<


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