Tuesday, October 10, 2006

IP Followup

Shannon wrote about IP, and I would like to follow up.

For background information, I, like Shannon, am not a lawyer, but have done substantial research into the issues. I have written posts about these issues on my own blog, including a call for open-sourcing basic mechanics in games, and lists of recent game patents.

As Shannon mentions, the primary means of legal protection through courts are copyrights, trademarks, and patents. You could also add trade secrets to that, but we're talking here about published material, not unpublished.

The Clown Code

The first thing to note is the addition of the word "legal" in the last paragraph. While it is true that legal protection is limited and sometimes expensive and difficult to obtain, that doesn't make it the only protection available to content creators.

As some of the commenters to Shannon's post mentioned, members of the game community instinctively recoil from purchasing products where they feel an injustice has been performed, even if no legal code has been broken.

There is strong precedence for this reaction. For thousands of years we have had ethical codes in place in society, ones that enforce rules that are either too petty or two obvious for the law to pay attention to. Various philosophers call this the "Social Contract".

More than a thousand years ago, clowns and performers would not copy each other's particular face make up or routines, according to the "Code on non-infringement", sometimes known as the "Clown Code".

With or without any laws to tell us, humans instinctively know that it is ok to compete with other people but only fairly.

Laws and Ethics

Laws tend to take over when we fail with ethics. It is usually that mutant person who arises one day without ever having graduated from childhood and notices that a customary practice that people observe, or "etiquette", is being arbitrarily followed. Unlike stealing his baby sister's doll in the play room, no one is going to spank him or put him is his room if he violates this custom. And woo-hoo! He is being individualistic. He is breaking out of the artificial constraints of society.

And right there along with him you can sometimes find his confused parents or teachers who have told him all along that he should speak his mind, challenge assumptions, not repress his feelings and instincts, and generally go for it.

The trouble is that there is no inherent solution to all behavior. Life has to remain gray in some areas. The more laws you create, the more complicated life is going to become. The more you will be missing the point, and the more you won't actually be solving anyone's problems; you'll be creating new ones.

But no laws leads to complete moral ambiguity and lack of repercussion. It's that happy ever-shifting middle ground that has to exist. We call that "Manners" and "Etiquette", and if people would understand that these are just as important as laws, despite the fact that no government is going to fine or jail you for non-compliance, the better off we will all be.

Manners and etiquette have their own means of enforcement, do remember. As some of the commenters mentioned, these include shunning, boycotting, denouncing, and/or refusing to have anything to do with an offender.

The Problems With Existing IP Laws

Now for another line of thought. What are IP laws, again, and why do they exist?

Remember, a human's natural state is ethics, not laws. Laws are brought in, one would hope, only to prevent the most egregious abuses that Manners can't deal with, such as murder, rape, theft, and so on.

The natural state of humans is free expression. If I see something, I can talk about it. If I hear something, I can repeat it. Ethics tells us to acknowledge the source, but law doesn't (often).

If I see something, I can imitate it, be it a roof, a wheel, a spear. It is only when we introduce market economies that things begin to deteriorate with this model.

Now you have the situation where someone has a bright idea, but it will cost him time or effort to realize it. He doesn't need it for himself, like a spear or a roof. Yet after creating it, the world will benefit. A natural state implies that as soon as others understand the idea, they can also do it.

But what happens is that this guy says to himself, "Eh. Not worth the effort." And then we all lose out, because the idea never gets communicated.

To solve this, law came up with the idea of limiting the absolute freedom of expression of people in order to allow someone the ability to recoup on publishing his invention, e.g. to make it worth the effort. This is a huge thing: to restrain free speech, the rights of millions, now billions, of people to encourage a person to contribute to the benefit of mankind.

What things could possibly benefit mankind to be worth this suppression of basic rights? Apparently, the law framers decided: writings, music, performance, architecture, processes, and inventions (the former as copyrights, and the latter two as patents).

Even from the get go, however, it was understood that this right suppression has to be worthwhile for the public, and just enough to encourage the producer and no further.

That is why some things, such as recipes, fashion design, and game ideas, have never benefited from this legal protection. Is it really worth limiting the rights of billions of people to express themselves just so that we can have a new cut of clothing? Or a new recipe? Or a new game?

The answer is generally no. Some games, of course, could be argued to be of great benefit to mankind, but that is more the exception than the rules.

The fact that the overwhelmingly vast majority of all writings, songs, movies, and so on are also of no benefit to mankind is a potent argument, of course, but more for the idea of abolishing these protections altogether, not for similarly applying them to games, thereby compounding the problem.

It is only in the last century that our IP laws have really gone down the tubes, however. As more laws are made, and as the twentieth century turned into a great law-fest, progressed through the sixties into a dramatic loss of ethics, and turned out more and more people who want to do whatever they want to do, we find more and more ethically-challenged individuals who step boldly up to the gray lines and say they can do what they want because the law doesn't tell them not to.

And thus, at a point where any well-mannered child could tell you that copying a game and reselling it is immoral, we can't seem to get adults to agree on this. And even the best intentioned ones think that the solution is to make more laws and more rules to try to enforce this, which in the end will create yet more gray areas and more conflict.

To whit: this problem is already solved by Manners and Ethics. Taking it into the realm of Law is just one more nail in the coffin. For every law created, one problem gets solved and three more are created.

What Sells Games?

Nevertheless, what really sells games, anyway? The mechanics? I think not.

I have argued against this before. If you produce a great game that requires a checkerboard and 24 pieces to place, I may buy a copy. If you produce another game with slightly different rules and requires a checkerboard and 24 pieces to play, odds are I'm not going to buy the next game but I will play it anyway. If you make a third, I can guarantee you that I won't buy it and will play it anyway. And that's even if you spent twenty years designing each one.

You may have spent it, but you are selling the wrong thing. I do not owe you money for thinking, nor do I owe you money for publishing information. The market supports items that have real value; I, as a consumer, get to decide what has value unless limited by ethics or law. And in my humble opinion, I am neither legally nor ethically obligated to give you money for an idea that uses common items that I already own. You are going about it the wrong way.

You shouldn't even be trying to sell a game idea that requires no new components. There are many other ways to make money other than trying to sell ideas. You can consult, you can teach, you can attract investors, you can lecture, and so on and so on. The possibilities are endless. To assume that an idea has to be sold is tantamount to destroying the social contract from the other direction. Otherwise, if you don't tell let me play your game, I'm not going to tell you where the bathroom is unless you pay me first.

People don't buy games by and large because of the ideas. They buy it for many other reasons:

- Branding: Numero uno, most likely. Either the branding of the licensing, or the branding of the publisher, the designer, the game series, or so on.

- The components: If I want the components, I'll buy them, knowing exactly what I'm getting for my value.

- The convenience: If I don't want to cobble together my own game, I'll buy yours, assuming that the price is less than my effort.

- Loyalty, status, etc. And other reasons.

The Upshot

Go ahead and make a carbon copy of Settlers of Catan for a third the price. You know what? It won't hurt the original game seller in the least.

Settlers of Catan is a brand, first of all, and the game is bought due to word of mouth and component quality. The game is part of a series that fits together, which the cheap version probably won't. It is sold by a reputable company that will provide service for missing or broken components.

Anyone who buys it probably wasn't going to buy Settlers, anyway. Many people who buy it will eventually hear of Settlers and buy the better version.

And anyway, Teuber, Kosmos, and Mayfair are all off on creating new projects anyway, taking the risks and producing other games, which are not going to be copied until they are already successful (because why bother copying it, otherwise?) and therefore will already have a lead in the marketplace and loyalty with gamers.

And that's the point: not to ensure that anyone gets rich off of what he already made, but to make sure that the incentive was just enough to get it produced and no more, and to encourage you to get started on the next one.

Richard Borg will have little trouble selling a Napoleonic C&C.



Scott said...

"I do not owe you money for thinking, nor do I owe you money for publishing information. The market supports items that have real value; I, as a consumer, get to decide what has value unless limited by ethics or law. "

This concept scares me. I write software for a living. Granted, I do embedded code so it's not quite as scary. However, this statement seems to imply that software packages aren't worth anything. They are just a way to use your components (computer) a different way.

This concept could apply in other areas as well.
What is writing except arranging words and letters?
What is art other than putting colors in a novel pattern?

ekted said...

Say I spend $100 million on research and develop a pill that cures all forms of cancer and AIDS in a single dose. Of course I patent my results. Now I decide that I am going to sell these single doses for $1 million each. 1000 dying rich people could be cured, and I will get 10x my investment. Do you think the patent system could really withstand the social implications of this?

Chris Farrell said...

Now I decide that I am going to sell these single doses for $1 million each. 1000 dying rich people could be cured, and I will get 10x my investment.

Patent law is just law, and patents are an asset like anything else, and can be expropriated by the government. The railroads went through forced nationalization during WWI; if your fanciful and nonsensical scenario (with a clearly blatantly vindictive patent owner) actually came to pass, I'm sure our elected representatives would find the, ah, flexibility to write a new law to make it work.

I do find Yehuda's rather bold assertation that ideas are not worth paying for a little batty though. If I have a clever new idea for a game that can be played with a 52-card deck, wouldn't we all be better off if I could sell it and you could use your existing deck, instead of me either a) sitting on the idea because I can't make any money off of it, or b) having to come up with a new overpriced customized deck of cards which I can sell you even though it's totally unnecessary to the functioning of the game?

Clearly ideas - fully formed ideas, anyway - can use some protection, and everyone would benefit if that protection made sense. I think in general we err today in giving things too much protection, not too little, so I personally wouldn't support a lot of protection for a new idea for a 52-card card game. But some would seem perfectly reasonable.

Fraser said...

Why I buy a game:
1) I have fun/like playing it and want to be able to continue to do so with family and friends in the future
2) If I haven't played it, but my research including GeekBuddies indicate that 1) will most likely be the case

Some things including brand and mechanics may contribute to the above, but in most cases they are the main reasons.

Caradoc said...

First off - I'm with you Fraser.

Secondly - I think ideas do have some value and should, ideally, be protected, the problem is the can of worms protecting ideas opens up. Since it is next to impossible to police these issues effectively, especially in a marginal hobby like gaming, I can only hope that gamers out there are discerning and 'honourable' enough to reward the 'true' games by buying them and not buying the copies.

KK Su said...

Excellent article. I read a book once called the 'E-Myth' that examines why most entrepeneurs fail. One of the interesting concepts it had was that an item's market value is NEVER what the seller quantifies it to be (in terms of time, effort, components, etc) - it's what the buyers PERCEIVE it to be. If you want to successfully sell something, you need to invest time and effort to heighten the buyers' perception of your item. This is called Marketing.

For eg, I would have never purchased Puerto Rico if my perception of the game hadn't been heightened by the reviews and ratings this game had in BGG.

The scary thing is, games like C&C aren't known well enough world-wide. If Mattel decides to create a C&C clone and starts advertising it on Sat mornings during kid's TV prime time (which, incidentally, was when Heroscape was advertised in Melb, Aust), you'll suddenly get a horde of willing buyers for Mattel's clone, Richard Borg's original be damned.

In short, Yehuda's concept of ethical protection only works among an informed community, and doesn't work when a someone decides to break ethics and has access to a community larger than the informed community. Sure they might lose out in the 'informed community', but I'd reckon that they'll make enough money off the ignorant masses to care less. Ethics fall flat when the masses don't even know what's ethical.

The only real protection game designers like Richard Borg has lies with people like you and me - that we'll spread the word and thus increase the size of the 'informed community'. When you've got communities as big as whole countries, then you can consider your product fairly safe.

Matth7 said...

I invented a 'strategic' board game back in 2002. I played it with friends, family members, at small party or get together and I got a lot of thumbs up.
How can I go about developing or marketing that idea? I tried to contact some toy companies and they said I need a toy broker to represent it. I contacted Some of of the toy brokers and they ask for too much money. Please let me know about any other alternatives.

Best Regards

Yehuda said...

Chris: Supressing freedom of expression for billions of people is a reasonable balance in order to secure something that will more than make up for it. Supressing the freedom of expression for billions of people is not acceptable in order to secure an idea for a game.

Please note that the games of Bridge, Eucre, Hearts, Cribbage, and the entire contents of Pagat.com have come into existence without any need for this supression.

If someone wants to make money for a game that requires no components, let them try selling a nicely illustrated version of the rules for $1 each, or let them sell it to a magazine or book that is willing to pay them to publish it in a convenient format. Don't ask me to buy a deck just to get the rules.

fraser: That's not why you buy the game. That's why you play the game. You buy the game because it is more convenient than making it yourself, you want to support the designer or publisher, or you like the components.

kk_su: The point of IP laws is to provide incentives to designers to release the game to the public. In the case of someone figuring out a way to sell a game that the original designer hadn't considered, it is obvious that the designer didn't need this incentive to release the game.

Certainly there has been an ethical violation in taking someone's idea and profiting off of it. But there was no need for additional legal protection.

If the designer now looks at his next game and decides that it is no longer worthwhile releasing it under the previous terms, but he now will only do so if he also gets worldwide distribution rights, then let him do so.

matth7: Make several prototypes of the game, as nicely as you can. Bring them to some game conventions, such as BGG.con . Ask on BGG or BGDF for playtesters. Get it playtested. If you get positive reviews, approach some of the game companies and ask them if they are looking for submissions. Make contacts. Be polite and proactive. Look on all the game publisher websites and follow their instructions on how to submit your game for consideration.


jwandke said...

Wow, I disagree.

If someone creates a game and you want it, you should pay to get it, not steal it and make your own version.

If you create a game, would you be OK with me making my own version? How about me making fifty copies of your game and selling them? How about changing one rule from your game, changing the title, and marketing it?

I think all of those things are wrong.

Yehuda said...

jwandke: If you create a game, would you be OK with me making my own version? How about me making fifty copies of your game and selling them? How about changing one rule from your game, changing the title, and marketing it?

I have created a game. In my opinion:

- It is both moral and legal for you to make a copy of the game to play, rather than buying mine. I'm not selling you an idea; I'm selling you the components of the game in a nice package.

- It is legal but immoral to make your own copies and sell the game, changing the rules, name, and art, in order to sell. It is proper to let the originator of the idea profit from the sale, if he or she can.

- If you change the game significantly, and changes the art, names, and text, it is both moral and legal to sell the new game, although you should give acknowledgement. You are now selling a game inspired by my idea, not the original game.

- If you change the game very minorly (such as, the number of starting stones, or the number of cards, but nothing else), and you change the art, names, and text, it is legal but immoral to sell copies.

- It is illegal and immoral to copy the game without making any changes, to sell, or to use my art, names or text to derive new ones.

You are under an illusion that the first example is "stealing". If I say the word "bugerdidoo", and then you go say it to your friends, that's not stealing, even if I tell you not to. It's free speech.

Trying to sell "bugerdidoo" t-shirts is a different matter.