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 You could also add trade secrets to that, but we're talking here about published material, not unpublished.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.

Yehuda