Thursday, September 28, 2006

IP, Morality, and the Gaming Industry

IP. Intellectual Property. It's theoretically what encourages creators to create, but here's a dirty little secret: it generally (and I speak for the United States here, but there's an increasing amount of conformity throughout the world) doesn't protect games.

You see, there's two types of IP of general interest to most publishers: copyright and trademark. And, as we'll see neither of them protects what's actually the core of a good game design.

(And before I get going, let me carefully note, I'm not a lawyer, but I have been working with this sort of stuff for a while.)

An Overview of IP

Copyright is the most general type of IP. It covers ideas that have been made substantial and concrete. The idea itself isn't copyrighted, but the specific way in which it's made real is. So, in The Settlers of Catan, the rulebook is copyrighted as are the artwork on the components and on the box. In other forms of media, entire short stories, novels, songs, and movies fall under copyright.

Copyright is really easy to get. Theoretically it magically appears as soon as you write/draw/create something. You can register it if you want, but that's mainly so that you can sue for damages.

Trademark is a sort of marketing protection. It most frequently covers a product name and/or a specific logo in which that name is used, but it can also cover other unique elements that distinguish your product. UPS, for example, has trademarked the color brown for package delivery. Other companies have trademarked things as weird as the specific shape of a box. When you look at trademark violations there's a core question of "Would this cause confusion with the trademarked item?" So, The Settlers of Catan logo and probably name is a trademark in certain areas of entertainment.

Everyone can mark something as a trademark, but to have a legal basis for suits you really need to register it, and that's a labyrinthine process that keeps lawyers and suits in Washington in a job. However, once you've done it a few times it gets easier.

You'll note in these discussions that we've missed a crucial element of game design: the actual game mechanics. They're not covered by copyright, because that only covers the concrete, which is to say the explanation of the mechanics in the rulebook, not the abstract mechanis themselves. Likewise, trademark clearly doesn't cover them.

And there's another type of IP to fill the gap: patents. Patents cover inventions that are new and original, and this is where game mechanics could fit in. The problem? The process to get them is even more complex and convoluted than what's needed to file a trademark. Rigorous and technical documents must be filed, and it can (and does) take years for a patent to be accepted or denied. Even then the patent office (in the US at least) is a hotbed of massive incompetence; they regularly give out incorrect patents, and so having a patent doesn't actually mean anything until it's defended in court.

Patents & Games

As a result of all of this, patents almost never get filed for games. Among other things, it's just too expensive.

I'm aware of the occasional aberration. Wizards of the Coast, for example, was granted a patent for certain aspects of CCG play after they released Magic: The Gathering. However, the rest of the CCG industry thought so little of the patent that Wizards wasn't really able to enforce it--but word is that it gave them the leverage necessary to pull down the Pokemon license when it came to the US.

Very small publishers patent their ideas sometimes too, but it's usually a sign of inexperience and a lack of understanding of the industry. The phrase "Patent Pending" on a gamebox is generally enough to get me to put it back on the shelf.

And, honestly, it's a good thing that patents aren't widely used in the game industry. Because, as I alluded to above, the whole system is utterly and totally broken and corrupt. If there was enough money in the tabletop gaming field to support patent work, someone would have patented "resources depicted as cards", someone else would have patented "the once-around auction as a game system", and a third person would have patented "rolling dice to generate a random event", and the whole Eurogames industry would have come to a grinding and total halt.

However, the lack of patents in the industry, and more generally the lack of anything actually protecting game mechanics, does cause problems in the industry.

Duplicating Games

The most loathsome result of this that I've seen is Covenant Communication's game Search, Play and Ponder, which is an exact copy (mechanically) of Looney Lab's Aquarius. This story was chronicled by Andrew Looney a couple of years ago in Wunderland. In short: the folks at CC took Looney's game, commissioned new art and rewrote the rules, but it's otherwise exactly the same, down to the card counts.

Looney wrote in a rant, "Intellectual property theft has been committed against myself". And, although that's clearly morally correct, legally it wasn't. I'm fairly certain the Looneys never filed a patent on Aquarius' mechanics, and the folks at Covenant Communications changed everything they were legally required to.

There's a good ending to that story: when the Looneys confronted Covenant Communications, the offenders offered to destroy their stock of the game. In the Looneys' last posting on the subject, they were trying to negotiate a license instead.

Much more insidious is an Italian game called Vive L'empereur. All reports seem to indicate that it uses Richard Borg's "Commands & Colors" mechanics, but places it in the Napoleonic wars. The publisher simply says that they "stand by their product" and makes no apologies for co-opting Borg's work. Unfortunately, it's probably entirely undercut Borg's ability to ever design a Napoleonic C&C game for the European market.

And, he has no options because of the bad integration of IP laws & games.

Barbarossa & Cluzzle

Which brings us, finally, to what got me started on this article: Klaus Teuber's Barbarossa and Dominic Crapuchettes' Cluzzle two similar games that on the other hand show that this sort of issue isn't black and white.

In Teuber's game each player make clay models, but they can't make them too good or too bad. If they're easy the player will lose points when they're guessed, and if they're hard they'll never get guessed (costing the player the opportunity to get points).

Players get points when their puzzles are guessed (as long as they're not guessed too early) and when they guess other puzzles.

Besides guessing you can also ask "yes or no" questions and request letters in an answer.

In Crapuchettes' game each player makes a clay model, but they can't make them too good or too bad. If they're easy the player will get just 1 point when they're guessed, and if they're hard they'll never get guessed (costing the player the opportunity get points).

Player get points when their puzzles are guessed and when they guess other puzzles.

Besides guessing you can also ask "yes or no" questions.

Now, there are a lot of differences in the details of gameplay. Barbarossa has fantasy theming and players get to take different actions each turn, depending on where their pieces land on a small board. In Cluzzle there's no actual board, and instead questions are asked in quick-fire 2-minute rounds. Crapuchettes also says that his Cluzzle is really directed at a different audience: it's an easier game with less rules.

Nonetheless when Crapuchettes recently asked me if I'd liked to review some of his games, I told him I wasn't comfortable doing so because of these similarities.

My viewpoint goes something like this:
  1. Mechanics aren't generally protected by law.
  2. But the tabletop gaming industry is a very small one, and it behooves its members to act politely and morally toward each other, because the industry doesn't have the money to file patents or talk to lawyers and we want to encourage our designers to keep designing.
  3. When two games can be (correctly) summarized as similarly as the two summaries I offer above, that's too close for me.
Crapuchettes offered an interesting alternative point of view. He entirely understood the issue of patents & gaming IP, and said that he'd waited until a patent would have expired if Teuber had actually filed one before he released Cluzzle.

(This isn't actually true, by-the-by, but it's close. Teuber released Barbarossa in 1988, while Crapuchettes released Cluzzle in 2004. That's a 16-year difference. Before 1995 the U.S. length of a patent was 17 years after the patent's release, while since 1995 its been 20 years after the patent's filing. Because there is often a 1-3 year gap from filing to release, the two lengths were about the same thing. If Teuber had filed a U.S. patent in 1988 it would have expired somewhere between 2006 and 2008. Crapuchettes says that he thought that patents lasted 15 years at the time that he released Cluzzle.)

Since Crapuchettes actually went to the heart of IP by imagining a world where games could be protected he somewhat side-stepped the whole issue of morality & legality, and instead offered the question how should things be? In other words, when Teuber's theoretical patent expired this year or in a few years from now, would it then be OK for other people to entirely stripmine his game, even moreso than Cluzzle does?

Crapuchettes said the following in one of his emails to me:
"Do you know why patent law exists? It is to benefit the people. Allowing 17 years of exclusivity gets individuals to risk years of their life (as is the case with me) to invent things that are better than what currently exists. Ending that exclusivity and returning the idea to the public domain allows others to build upon these ideas. Why? Because it is in the best interest of people. If things did not return back the public domain, we would not have electricity, we would not have cars, we would not have running water, we would not have plumbing. In short, we would have nothing. We would cease to be a civilization."
He's right, that is the purpose of IP, and it's something I sometimes overlook because of my own strong interest in IP as a creator.

But, on the other hand, I'm still not convinced that it's fair in the gaming field. If Klaus Teuber were a writer, his work would be protected for an absurd amount of time (namely, for about 95 years, which is honestly too long). But, as a game designer instead he only gets 20 years, even if he could file a patent. This difference doesn't strike me as right--that a creative writer gets a lifetime of protection and a creative game designer doesn't because his games are considered "inventions" if they're protected at all. I still think that an industry of the size of tabletop gaming needs to protect its creators even (and especially) when the law doesn't do so adequately.

But I understand Crapuchettes' point, and I can see some validity in putting out similar games that nonetheless aren't direct copies (and Cluzzle isn't) as games age. Even when there's a whole lot of similarity.

It's overall a difficult question, and so I also open it up to you, the readers.

10 comments:

Chris Farrell said...

I think this is an easier question to tackle as a matter of policy if you ask what is "in the public interest" rather than what is "morally right". Clearly it's in the public interest for IP protection to exist - otherwise, theoretically fewer people would innovate and we'd all be poorer. But it's also clear that IP protection should expire. Not just because everything is built on top of something else; but also because if someone has a great idea but makes a total hash of selling it, we want to allow that idea to escape, and because at some point there is a point of diminishing returns in terms of motivating creators, and we're all better off if the ideas go into the public domain.

So what kind of time period of protection do we need to motivate people to innovate? Clearly 95 years, longer than an individuals lifetime from the point of creation, is too long. Heck, even 5 years might be too long for a technology patent, and there is a reasonable argument to be made for ditching those patents entirely.

For boardgames, I'd have to think some sort of strong IP protection for 15 years, something that would cover mechanism as well as physical description, would be entirely reasonable. It's tough to think that a generic Settlers of Catan might come out in 5 years; but on the other hand, Settlers has built up a strong brand that would be covered by trademark and copyright, and the fact that Kosmos and Klaus Teuber were only able to sell 5 million units or whatever is hardly going to deter him from working on his next innovation because it's just not worth it.

I would certainly suggest, though, that we as both consumers and reviewers should not reward designers for doing little more than re-presenting an old but still in-print game.

As a further postscript, the fact that the gaming industry has been able to get along pretty well in general without robust IP protection does make you think about the whole concept a bit.

Shannon Appelcline said...

Great thoughts, Chris.

As I said, I agree that the length of copyright is ridiculous, and I can definitely see what you're saying about technology patents being too long (and at 20 years, they definitely are). One of my issues in the particular area of game design is that patents aren't really the right class, because it's not technology, and so you've got square pegs and round holes.

As for your point on the gaming industry existing fine without real IP protections, I ask the question: how well would it do if more unscrupulous people *realized* that was truly the case?

Michael Leuchtenburg said...

I 'd like to see a return to earlier forms of copyright, actuallyy. The current term, being at least 70 years but more likely 95, is absurd. Something like the original copyright used in the US - 14 years + 14 years extension available only to the original author - would be much better. At least then I would have a chance of getting to use things published during my lifetime.

huzonfirst said...

An interesting discussion of a thorny topic, Shannon. I share a lot of your feelings.

I understand Andrew Looney's outrage, but a little research would show him he's far from alone. You know those dice games where you roll two dice and then turn down one of 12 (or 9) numbered tiles that match the roll? I must have seen about 50 different versions of that--no exaggeration. And look at all the ripoffs of Monopoly, Rubik's Cube, etc. Copying successful games has been around forever. And with all due respect to Andrew, Aquarius isn't much more complex or innovative than that dice game. I'm also sure he sold a ton more of his games than his rival did because he and Kristin know how to market their games and he has a large and loyal fan base from Fluxx and other creations. So while he was definitely wronged morally, it probably didn't affect him much at all.

Vive L'empereur is a more disturbing case, since it's a much more elaborate game and the system the "designer" swiped from has become so well known and successful. Like you, I was upset when I heard about the Napoleonic game, mostly because I felt bad for Richard Borg, who's a very nice man. Once again, though, I bet Borg could design a Napoleonic C&C game and not have its marketibility be hurt by the ripoff. The target audience is eurogamers and wargamers and THEY know where the system comes from and would much more likely support the original designer (and very possibly boycott the copied version). Even if I was nutso over Napoleonic battles and held my nose and purchased Vive L'empereur, there's a very good chance I'd also pick up a Borg version from the same period--it would probably have nicer components and might well have better or more interestingly developed scenarios. This in no way defends the man who lifted the C&C system for his own profit, but at least it shows that the harmful effects of such theft needn't be overwhelming.

Cluzzle is a tough case. I know Dominic and am convinced of the sincerity of his arguments. Still, like you, the new game makes me a bit uneasy, particularly since Barbarossa is a personal favorite. Cluzzle IS a somewhat different game--it isn't a direct copy. And much to Dominic's credit, he's always been open about the inspiration for his game. (I think the same openess helped Bruno Faidutti when he used a distinctive mechanic from another game in his very successful Citadels--Bruno acknowledged the source and thanked the other designer before his game even hit the streets. Most gamers appreciate that kind of honesty.) So I'm willing to give Dominic the benefit of the doubt with Cluzzle, while sharing your disquiet. I don't think I'd avoid playing the game or refuse to review it, but any review I wrote would be sure to discuss the similarities and differences with Barbarossa at some length and might even talk about the morality of reproducing such a similar game.

Shannon Appelcline said...

I've always gotten the impression that Bruno asked permission the several times he's borrowed a notable mechanic. I could be wrong.

Scott said...

Imitiation is the sincerest form of flattery.

I'm torn on this, too. As a consumer, I really want designers to use the best new concepts out there in their games. I have several games that use cards as a resource. If there were IP protection of this concept and the owner wanted ridiculous licensing fees, there wouldn't be as many of the games that I really enjoy in the market.
On the other hand, I know a few designers and others that work for game companies. I do believe that they should be rewarded for their efforts, so printing cheap ripoffs is bad for them.
And where would expansion maps for AoS and variants of 18XX fit into the world with strong IP protection?
So I won't save a buck or two to buy a cheap knockoff, but I may buy a knockoff whose theme is better suited to my preferences. In most cases, I probably have the original anyway. :-)

Nonamnon said...

I know that my naivete is going to show horribly from this comment, but I have always thought that the boardgame industry did well without robust IP protection specifically because of the type of people attracted to this industry.
What I mean by that is that game enthusiasts are by there very nature people who abhor cheaters, cheating, and anything resembling such people or activities.
Now, if the industry continues to grow, and becomes a billion dollar industry like the video game industry...then, sadly, more robust IP protection may need to occur.

Chris Farrell said...

Sorry, let me just add one more thing.

Again, let's look at the Settlers of Catan example, since it's the most popular German-style game and one of the more worthy candidates for some sort of IP protection.

It is possible for a person to rip off a game entirely and still add value from the consumer's standpoint. If, for example, someone could bring some production experience (or a clever production innovation) to bear and produce a Settlers of Catan game much more cheaply than Kosmos could, that would be clearly of value to consumers. Someone could customize Settlers for markets Kosmos is ignoring or doesn't have the resources to persue, which would have value to consumers. And someone could have a clever marketing idea which would sell Settlers to a different market niche which Kosmos isn't interested in.

There are plenty of ways that someone can take one existing idea and add another idea - not necessarily related to the "crunchy" product itself - and add value for society as a whole. Obviously, we don't want to tie up the Settlers IP for so long that these options won't be explored.

Reading the comments and following the discussion and doing some more thinking, I've sort of convinced myself that 15 years is too long for boardgames, and 10 might be more appropriate. I mean, what is the average shelf-life of a game? A game these days has come and gone from the shelves in a year, maybe a couple years if it's good. A great game, like Puerto Rico, may go 5 years. Only the truly exceptional - Settlers, Scrabble, Monopoly, ASL - survive 10 years or more. Give people a chance to milk it for 10 years, then let it pass into the public domain, or be protected by a weaker copyright protection (which does still prevent a total rip-off).

I should say too that borrowing smaller ideas - like Bruno borrowing the role selection from Veraetter - is the sort of thing that is never going to get protection, IMHO, nor would it be a good idea. This sort of creative borrowing of bits and pieces goes on all the time in creative fields, and any sort of IP protection that got in the way of this sort of thing would be hugely negative, I think, at least from the point of view of the public - who, after all, is the one granting the short-term monopoly.

huzonfirst said...

I agree, Chris, 10 years makes much more sense than 15.

Some of the things you're talking about with Settlers have already happened. Jeremy Young rethemed the game for the Mormon community and I understand it's sold very well. It was a smart move and definitely improved society and the gaming world at the same time.

However, and this is the key point, he had Teuber make the changes and he licensed the game from Kosmos. This wasn't necessary for his target audience--most Mormons had never heard of Settlers, which was the whole point of the retheming--but rather for the rest of the gaming world. No experienced gamer would have touched an Uberplay game if this step hadn't been taken. Of course, Jeremy is not only a smart business man but an honest one, so I'm sure he never even considered cutting Kosmos out on the deal.

And I think the self-policing that Nonamnon talks about is the missing part of this argument. Gamers have long memories and strong loyalties. Copy a key mechanic and no one blinks (well, hardly anyone). But take an iconic game like Settlers and just make a marginal (or even a significant) improvement, but give no credit or royalties to the original, and I think you would have gamers avoiding it like the plague. There might be some payoff, but it would be limited and the dishonest publisher might well do better to use his brain rather than follow the instincts of his corrupt soul.

I don't think giving value to consumers is enough, Chris, even if this is the source of the copyright laws. There has to be a basic sense of fairness or people will rebel. The rules of what you can and can't do are by no means clearcut, but when they're violated, the gaming world as a whole usually agrees with its judgement. Cluzzle is right on the dividing line, which is why it's an interesting case.

Chris Farrell said...

I don't think giving value to consumers is enough, Chris, even if this is the source of the copyright laws.

I think you misunderstand me, Larry. I'm just saying that there are many ways to improve a product that involve ideas that aren't central to the actual manifestation of the game itself. If you just phrase it as, "don't rip off other people's ideas", that seems a no-brainer. But if we followed that dictum to the letter, we would be giving undue power to people who have the initial idea.

It's ultimately a balancing question, though. The question of regulation has to be answered by deciding what gives consumers the best value, and we can have a reasonable discussion of what combination of protections gives the proper incentive to create. The question of moral right, though, I'd rather leave to consumers when making their purchasing decision.