Why IP is still valuable
Every once in a while someone with a libertarian bent comes out of the woodwork to tell us that IP is outdated and destined to fall by the wayside. They argue that the digital medium has made copying and duplication so easy and painless that it doesn't make sense to charge for copies. On a more practical level, they argue that large companies can't stop individuals from making copies.
However, I will assert IP and laws protecting it are still very important, especially to the games industry.
In a nutshell, the reasons why IP still matters comes down to money. The big IP owners and distributors have the money.
This leads to the most obvious observation: entertainment companies with a lot of money still have a vested interest in protecting IP and strengthening IP laws. It doesn't matter what medium we're talking about here, either. And most of these companies have shown that they are willing to protect their profits using the means available to them. When you have companies this big with this much profit and motivation, you have to overcome a lot of inertia before things will change.
But, there's also a second aspect that people often overlook: the same laws that the large companies champion to protect their own rights also protect the rights of the individuals and independent developers. This is important because the large entertainment companies not only own but also distribute entertainment. Without strong IP laws, these large companies could rip off the work of smaller companies and use their distribution systems to make profits they didn't earn. As an independent developer, this is important to me. Keep in mind that IP laws allowed J.K. Rowling to create a wonderful universe and went from supporting herself on welfare to becoming a billionaire; without the protection of IP laws a larger company could have exploited her IP themselves.
IP is especially important to game developers. As experienced game developers know, a game development company is nothing without its IP. It is the developer's IP that makes them and their game stand out from the rest. Unfortunately, a developer's IP is what the publisher wants and will often try to negotiate to get control of it. It is the same IP laws I described above that allow the developer a chance of keeping their own IP and not having a larger publisher take it and farm the IP to another developer willing to work on the cheap. Of course, this isn't to say that some companies don't foolishly sign away their IP and have this happen anyway.
But, enough talk about big companies and their deep pockets, let's talk about how respecting IP helps the little guys. Every time someone violates copyright and plays a big-name game they haven't paid for, they are cheating independent developers. Instead of just playing a big-name game that "isn't worth" paying for, how about going out and trying to find an quality indie game instead. Downloading and playing a game like Diner Dash not only sticks it to "the man", it also helps a cool group of developers earn enough money to eat and continue making cool games.
And let me say this outright: Anyone who complains about innovation then violates copyright to play a game without paying for it is a hypocrite. The absolute truth is that you will not see significant innovation until the market rewards it. Unless people are willing to pay for games that are truly innovative, we will continue to see a lack of innovation in the market.
Further, people who violate copyright are hurting independents because they are killing alternative distribution methods. Developers looking at digital distribution for traditional games have to spend a lot of time working out ways to foil copyright violators. One of the big reasons why Steam runs so slow is because it has to do a lot of extra work to make sure people aren't using the system to violate copyright. A surprising amount of effort goes into making sure people actually pay for the game. You have crazy schemes that restrict you from moving your game from one system to another, or sometimes from even upgrading your system without somehow breaking your access to the game. Because of this, developers are reluctant to move entirely to digital distribution. Even games distributed on physical media spend a lot of time on copy protection schemes. One of my last responsibilities at 3DO was to make sure the copy protection worked on project we were working on. Ultimately, they probably spent more money on me messing around with the copy protection than they probably made on the game itself. But, keep in mind that copy protection isn't to stop everyone, it's to stop the casual copyright violators from handing out free copies to their friends.
Finally, supporters of IP elimination do not offer true alternatives. They say that people will create entertainment without financial incentive, but that ignores business realities. Even though I could be making a lot more money working as a programmer for a large company and have chosen a more modest life as an independent game developer, I do need a bit of income from my work to keep eating and pay rent. Many other people share this silly need for food and shelter, including some that wish to create entertainment. If people could afford to make entertainment like games on the cheap, you wouldn't see people selling their souls to large publishers and distributors in order to make them. Others cite public performance and merchandising as alternatives to charging for IP, usually speaking of music. Yet, how is a game developer or book author supposed to do a "performance"? Do they expect J.K. Rowling to fill stadiums while reading from her book? Do they expect Carmack to pimp T-shirts as he codes in front of an audience?
But, let me assure my readers that I'm not some big-brother fan that is eager to have the government intrude upon our lives for a bit of profit. I actually feel that many IP laws have flaws in them and that they do not serve their original purpose. For example, I think that patents have a rather limited place in software. The fact that companies can patent gameplay aspects is just stupid. The number of rather obvious patents I have seen in the games industry upsets me, to be perfectly honest. Sometimes the patents aren't filed by some developer wishing to protect their invention, they are filed (or bought) by a company that patented an obvious extension to a game and hope to cash in as the industry finally moves that way. Given the length of patents, most aspects of software worth patenting will be obsolete by the time the patent expires that the knowledge never really goes back into the public as intended. As an independent developer, there is almost nothing I can do against a patent; I just hope that I can stay under the radar of anyone with dollar signs in their eyes if I were to inadvertently violate a patent.
I also think that copyright protection is too long, even though it protects my IP as well. The effort to get copyrights extended to be effectively permanent is a sad mockery of the original intent of copyright. Given the pace of the modern world, copyrights don't need to extend to a century or beyond; a modest number of years is sufficient. This allows work that becomes culturally significant to enter the public domain and allow ownership by the public.
In the end, however, these aren't arguments for the abolition of IP laws so much as an argument for the reformation of IP laws. Get rid of patents in software and get rid of ridiculous copyright durations. Protect creative people, allow them to make a living off entertaining us with their creativity, then allow the work to pass into the hands of the public as intended.
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There's certainly no doubt that IP is important, and that publishers and developers should have the right to defend their IP if they feel it's being misappropriated.
Whether or not to do so should be a right left to the IP owner, though, as certainly some have found that their IPs have been enriched by the little guys doing stuff with it. Of particular note, Lucas let several mod projects exist, including some that were competing directly with their licenses. Paramount has allowed and even encouraged the players to create fan movies and fanfic, even 'slash' fiction that other IP owners would have protested. The result has been continued enthusiasm from strong, net-savvy audiences. By comparison, Fox squashes all IP variations that threaten their Aliens and Predator licenses. As such, the only time these licenses are on the fan's mind is when the marketing machine swings into production.
The absolute truth is that you will not see significant innovation until the market rewards it.
That reward doesn't have to happen immediately. Text MUDs, Nethack, and Quake MODs are all the direct ancestors of the WoWs, Diablos and Battlefields that rule the shelves today.
Even though I could be making a lot more money working as a programmer for a large company and have chosen a more modest life as an independent game developer, I do need a bit of income from my work to keep eating and pay rent....If people could afford to make entertainment like games on the cheap, you wouldn't see people selling their souls to large publishers and distributors in order to make them.
People CAN make games on the cheap nowadays: Flash games, NWN Modules and worlds, Quake Mods, Text MUDs, Dungeon Siege total conversions, C&C and TA total conversions. There is literally no reason why someone who is interested in making games as a hobby who wants to give it away for free shouldn't be doing so. This is actually good news for the industry, as we get both ideas and personnel from these projects.
It is left to us who are charging money for these things to make better product and deserve the money we charge.
Comment by Damion Schubert — 24 July, 2005 @ 8:31 PM
Sure. Someone who owns some IP should have reasonable control over it as I said in my post. The original purpose of IP laws (patents and copyrights, in particular) is to allow someone who comes up with some unique intellectual property to profit from for a limited time. If someone wants to give that IP away, great. If someone chooses not to give away the IP, that's also their choice.
People CAN make games on the cheap nowadays...
You're missing the point of what you quoted. The people that want to abolish IP don't consider the real effects. How much game development would you do if you couldn't make money off of selling the games and charging subscriptions, Damion? I'd probably still do a bit of game development, but it would be as a severely limited hobby instead of a full-time job. We can't "give live performances" as the IP abolitionists assert musicians should do if IP protection were to be done away with. Maybe we could sell T-shirts, but without trademark and copyright protection people could just rip those off, too.
Anyway, to address the issue you did bring up: my argument isn't that people can't give away stuff for free, rather that people shouldn't expect commercial games to be free. Obviously, games based off other people's IP (such as NWN modules, etc) work under specific licensing rules. The core point here is that you shouldn't rip off someone else's work when they choose to take payment for it. They money they make from these games helps the development of other games. If you want to play for free then look for the free games out there. The people doing some of the worst damage to the games industry are the people complaining games are "crap", but then download the latest version for free instead of looking for the free or cheaper indie alternatives out there. If the game isn't worth paying for then don't play it. This behavior perpetuates the industry in its current state (which many agree needs improvement) and don't give rise to viable alternatives.
Comment by Psychochild — 25 July, 2005 @ 12:54 AM
This is all really interesting, but is it the same thing that we're doing on our UO free shards? I suppose I don't understand the difference between a "mod" and a server emulator.
It seems there's a big difference between someone who mods existing software and someone who writes their own database manager.
And what about content use? We don't actually send the graphics, art, and animations from our server to the client. That information is already existing on the client. What if I add to or totally supplant that art? Not just taking the art out, changing it slightly, and adding it back in; but totally remove the old art and use my own.
Assuming someone legitimately paid for the client to begin with, and then they simply add to, or supplant what's existing, what difference does that make to the developer whether or not they play on the developer's server, or someone else's server? Other than the fact they aren't getting the $10+ per month they expected to get from the the sale of that client CD.
Maybe I'd agree with everything you say if EA offered a refund when players get sick of playing the game on their server. Then players could send the client CD back to EA, get their money back, and everyone would be thrilled. Otherwise, I'm stuck with a CD that's essentially an expensive (and not very effective) paper weight.
What's the definition of violating copyright? When I play a CD on my home stereo, and charge $5.00 a head for people to come to my party, then aren't the artists who's music emmanates from my stereo entitled to a piece of that $5.00?
When was the last time you mailed off $0.03 to the recording artists who helped make your kegger a good time? Oh, you didn't. And you wouldn't bother. Huh. Me too.
Comment by Jaycen Rigger — 25 July, 2005 @ 1:32 PM
I'd highly recommend anyone interested in this learn more. If you're running a business, seek the advice of a lawyer. Even if you are an individual, there are resources out there for you. (Disclaimer: I'm not a lawyer, that page (and this comment) aren't legal advice, I don't know that it is 100% accurate but it's probably a good jumping-off point for your own investigations.)
What if I add to or totally supplant that art?
The client code, even in object form, is protected by copyright. I'm not sure if the communication protocol is covered under copyright as well. So, if you just change the art you are making what is known as a "derivative work" which would generally belong to the original copyright owner.
Assuming someone legitimately paid for the client
Here's the thing: you didn't pay for the client; you paid to license the client. You own the physical medium, but you do not own the assets on the CD.
Let me give an example to clarify how this works. My GF really likes fantasy art. As such, we have purchased two original watercolor paintings from Nene Thomas. We own the physical paintings and they are hanging on our wall. Now, we can do anything we want with the physical picture: we could rip it up to make an expensive jigsaw puzzle, we could use them as the background for a dartboard, we could hang it outside as a flag. But, we do not own the rights to the image itself. We cannot make a copies of the original and sell it. I can't take the art and put it into M59 even though I own the original. There is a difference between the physical medium and the image or assets on the medium.
In the case of software, you are just licensing use of the assets as I stated before. You know that EULA that you click through without reading? That's what specifies the terms of the license.
Maybe I'd agree with everything you say if EA offered a refund when players get sick of playing the game on their server. Then players could send the client CD back to EA, get their money back, and everyone would be thrilled.
However, you used and enjoyed that content. You paid for the license, then you paid to connect to the server. You have no claim of ownership to the client on the CD.
Again, allow me an example to illustrate. I rent a house because I certainly don't make enough money to own one. :P I'm paying to live here, and I've paid quite a bit of money to do so, but I don't have ownership of the house. I won't get compensated once I move out (hell, I'm lucky to see my security deposit get returned). (Now, be careful about taking this example too far, there are some obvious differences between buying a software license and renting a house. This example is to illustrate that payment does not mean ownership.)
When was the last time you mailed off $0.03 to the recording artists who helped make your kegger a good time? Oh, you didn't. And you wouldn't bother. Huh. Me too.
There's a large difference between playing some music at a one-time party, playing music at a for-profit business, and using copyright material as the primary focus for your hobby.
If you were to hold keggers every night for profit and you played music, then you would have to pay appropriate fees. Heck, I think in some places you have to get a rebroadcasting license if even play the radio in your business.
Finally, just because you get away with something doesn't make it right. I was able to shoplift things a number of times as a kid and didn't get caught. That doesn't mean that I got any slack when someone did finally catch me.
Comment by Psychochild — 25 July, 2005 @ 2:55 PM
Great. You're probably right on with everything you said. It certainly made perfect sense.
I was wrong. I don't think I'll stop doing it though. I guess that does make me a theif. Interesting.
Comment by Jaycen Rigger — 25 July, 2005 @ 6:16 PM
Woah, wait a second. *whew* My conscience had to do a double-take for second.
The difference in all of those cases is that you are somehow turning a profit by whatever angle you're playing. Even if you're rebroadcasting in a bar, you're making money from the patrons who are there mainly to drink and carouse, but are by extension, enjoying the atmosphere provided by the broadcast.
In my case, I'm not making a thin dime from anything. In fact, this proposition is only a money pit. Which part of the law covers what I'm doing? Is it illegal to take a private copy of a movie and play it on the street corner for anyone who walks by? If you don't accept any money from it, and you aren't trying to draw people to your place of business, is there anything anyone can say to you for being altruistic and sharing what is yours to use in whatever way doesn't infringe upon the copyright of the copyright holder?
So, back to my original arguement from Damion's blog, how can I be stealing when I don't make any money from the endeavor? I'm putting it up at my expense. I support it at my expense.
I even paid for the server space for my website and message boards so there are no add banners on them. I guess I'm not a thief, though I might very well be a jackass:-)
Cool, I can live with that.
Comment by Jaycen Rigger — 25 July, 2005 @ 6:43 PM
[H]ow can I be stealing when I don't make any money from the endeavor?
Because the law says it is? Just as illegal as if you were to break into someone's house and use it for your kegger (even if you weren't charging people). There's a difference between playing some songs at a one-time party and knowingly violating someone else's copyright over a sustained period of time. BTW, playing the movie on the corner is known as "public performance" and is covered under copyright law.
Again, I highly recommend you take the familiarize yourself with IP law. I can't explain every nuance to you in these comments, unfortunately.
And, fair warning: any more discussions involving grayshards on this topic will probably be deleted. You can talk about IP issues if you want. I appreciate your thoughts and participation, but we're not rehashing our discussion on here.
Comment by Psychochild — 25 July, 2005 @ 8:10 PM
That's fine. Seeing as how your post obviously developed as a result of those discussions, and seeing as how it's your blog, you can do what you like:-)
I read the copyright laws, and I read fair use. Naturally, the reality of the law is up to a court to decide, but I have to tell you that I've never felt safer from prosecution until I actually read what it has to say. The likelihood anyone would persue a free server for copyright infringement is miniscule at best. The odds aren't very much in the companies favor, in my case, at least.
Comment by Jaycen Rigger — 25 July, 2005 @ 8:32 PM
Actually, this post was more inspired by a lot of the rants I read on Slashdot. There's a lot more libertarian-minded people there, and most of the arguments I attribute to the anti-IP people were drawn from discussions on Slashdot.
I also wrote it so a lawyer friend of mine didn't think I was too libertarian in my own views of IP. ;)
Comment by Psychochild — 25 July, 2005 @ 9:51 PM
When it comes to all the copy protection stuff going on, though, while it stops the casual 'mom & pop' disk copies, it hasn't stoped some of the mass theifs you see, specialy in asia. Companies are worried that little Jessy is going to give a copy of Super Smasher 3000, the 27th game of a dated IP they are milking, to his best friend to play. When Mr XiaoXi in China just broke the encription on it, made 30k copies, posted it on 20 warez sites, and now is distributing it cheep all over China and South Korea. Sooooo, is it working? Hmmm Let me see. Um, no.
Steam? There's a joke. That got broke before it even went public. Has been cracked for a while too. And people expect it to stay pretty well hacked for the rest of Valves lifetime as long as they try to keep Steam open.
A good argument about Encription and Copy Protection is the only people it keeps out are the people who honestly paid for something. First week HL2 went live, thousands of people couldn't play the game they paid for while thousands of hacks played away offline after DLing the game over a Torrent Link. Did Copy Protection work then?
I personaly believe in IP laws, but I also think that the way things are, the laws promote a more stagnant marketplace then an active one. Heck, today Most of the inovative gaves I've seen come from Japan. America seems content to re-release old Atari games or remake last years game all over again. Ya, they MIGHT make a game that's inovative, but the big corporations seem to prefer carbon copies with assured successes then taking any risks. Understandable, but disappointing.
Tony
Comment by Tony — 26 July, 2005 @ 5:23 AM
The original purpose of IP laws (patents and copyrights, in particular) is to allow someone who comes up with some unique intellectual property to profit from for a limited time.
Um, no. The original purpose of copyright, at least in the United States, was "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." Patent law was similarly created to create innovation. The purpose was to provide more science and more art to be used by society, and the profit motive was seen as just a means to that end, not as an end itself.
Otherwise, I agree with most of what you say. I think that the laws are favoring the copyright holder way more than they should, and to society's detriment.
In an age when it is much easier for people to create and publish their works, it can be argued that the profit motive isn't as important as it used to be. Publishing a book doesn't cost thousands of dollars and months of time anymore. An ebook or html document can be published to the world instantly. And people write things all the time. Creating a work just doesn't have a high cost anymore.
Creating high quality work can, of course, cost more, but there are exceptions. People make high quality mods for existing game engines, often for free, for one. And Wikipedia is an example of something that grows because people like you and me can change it at whim. I didn't feel a need to profit from my changes. I just wanted to make sure a resource was accurate for someone who may find my change in the future. Sure, there are "business realities", but there are also business assumptions and business fallacies. High quality work is sometimes created by a person who creates for the love of creating, something that may not be very easy to do just a few years ago.
But I think it is obvious that software patents don't encourage innovation, and neither do draconian copyright laws, especially when the length of copyright becomes as excessively long as it has. Clearly both sets of laws need to be reformed, and I'm glad to read the opinion of someone who also understands that "limited time" didn't mean lifetime + 70 years and that giving the work to the public domain is needed for progress to accelerate.
Comment by GBGames — 26 July, 2005 @ 11:26 AM
Oh, and I also appreciate that you didn't use the term "theft" in place of "copyright violation". Just wanted to say thank you for not muddying the waters as some people would.
Comment by GBGames — 26 July, 2005 @ 11:30 AM
Um, no. The original purpose of copyright....
Yes, I know what the U.S. Constitution says about copyrights. I focused on how the law encourages "the progress of science and useful arts" in particular. The law does this by giving people a monopoly so that they can profit from their work, which is what "exclusive right" means in today's capitalist society.
To be honest, I was trying to stay away from the "founding fathers" arguments because that's not only U.S.-centric, but also a bit overdone these days. And, although there are examples of people creating things for free, I'd argue that the profit motive is behind a majority of IP creation; remember it doesn't have to be some giant company profiting from IP, it's also small developers like me (and I assume like you) that would like to provide for their families doing what they know best.
Creating a work just doesn't have a high cost anymore.
I don't think that's strictly true. It still costs a lot to create high-quality work. I might spend a bit of time posting on my blog, but I'd spend a lot more time and effort if I were writing for a book. Since I am writing a book soon (details to be posted soon), I have some experience here. I think that it's easier to produce a work if you don't expect to get paid for it, but if you want to make a living off of your work, it still requires a lot of time and effort and creativity. I suspect for you creativity comes easily, so you underestimate how much effort goes into these things.
Thanks for your comments.
Comment by Psychochild — 26 July, 2005 @ 2:41 PM
The difference in all of those cases is that you are somehow turning a profit by whatever angle you're playing. Even if you're rebroadcasting in a bar, you're making money from the patrons who are there mainly to drink and carouse, but are by extension, enjoying the atmosphere provided by the broadcast.
In my case, I'm not making a thin dime from anything. In fact, this proposition is only a money pit. Which part of the law covers what I'm doing? Is it illegal to take a private copy of a movie and play it on the street corner for anyone who walks by? If you don't accept any money from it, and you aren't trying to draw people to your place of business, is there anything anyone can say to you for being altruistic and sharing what is yours to use in whatever way doesn't infringe upon the copyright of the copyright holder?
So, back to my original arguement from Damion's blog, how can I be stealing when I don't make any money from the endeavor? I'm putting it up at my expense. I support it at my expense.
You could be denying money to people who have a legitimate right to earn it. Fox threatened the 'Aliens vs Predator' mods with legal action because they were working on an AVP FPS game, and felt the AvP mod would take away sales. And you bet that, if a company heard you were showing "V For Vendetta" on a street corner for free while the movie was still in theaters, they'd come after you as well.
You don't have to be profiting to cost the IP holders money. Still, shooting down your fan communities is also short-sighted. I think a lot of IP owners are going to find ways to work with their fan communities in the future, to ensure that the fan contributions increase the value of the license.
Comment by Damion — 27 July, 2005 @ 11:01 AM
I wish that were true.
Unfortunately, there are legal implications related to fan-made material which get complex enough for written material, and when you hit games they become downright bizantine (sp).
Someone taking a game (someone's IP) and modding it to use someone ELSE's IP...gives lawyers headaches.
Comment by Andrew Crystall — 27 July, 2005 @ 11:33 AM