RPS Takes On Critics Of The Idea That Games Should Eventually Enter The Public Domain

from the at-war-with-the-entitled dept

I’m going to dispense with the normal introductions for this post, because there’s so much meat here and we should all get to eating. To keep it short, RockPaperShotgun’s John Walker recently wrote an editorial about how GOG.com saves older games for consumers, with a sidebar about how video games should probably eventually enter the public domain after a reasonable period of time, say 20 years. 20 years, for those of you not into gaming, encompasses several eras when it comes to the gaming industry. Predictably, in my opinion, this set off a contingent within the gaming industry that railed against Walker’s desire to starve game-producers and murder small puppies, eventually leading to a request that he be fired. That’d be amusing, since it would essentially mean Walker firing himself, but I suppose that’s a remote possibility.

Given the maelstrom, Walker has since written a delightful follow up in which he takes the arguments presented against his reasonable approach to task. We’ll deal with them in order, with some of the highlights. First up is the annoyingly ubiquitous charge that any reduction in the ownership of creators will result in less incentives to create.

I think this argument is so astronomically false that my hat flies clean off my head when I read it. It’s so ghastly, so gruesomely inaccurate, such a wretched perspective of humans – these wonderful creatures so extraordinarily bursting with creative potential – and it makes me want to weep. The idea that creativity is only feasible if there’s a financial reward is abundantly demonstrably false…And not only does an argument for a more imminent end to copyright periods than the current monstrosities like “life plus 70 years” not inhibit someone from making a living from their creative works, but it also doesn’t even mean they couldn’t continue making a living from the creative works they produced after the copyrights have expired – that’s the magic of Public Domain! They just then share the ability to profit from those works with others.

This hits upon two points we discuss regularly. The first is that financial incentives are of course not the only reason creative folks create. This should be an obvious logical conclusion from the start. After all, would we say that people become creative once they are aware of the financial reasons to do so? Obviously not. Creative people create. The financial incentives are there not to spur creativity, but to create a structure that encourages the disclosure of the creation for public consumption. That point gets lost far too often. Secondly, this myopic view that the public domain ends the ability to profit off of the creation is so demonstrably false it isn’t even worth addressing.

Next, Walker takes on the idea that ideas should be owned through copyright as a matter of creative privelage. After digging into some of the history of copyright law, he lets loose with this cogent salvo.

But now copyright seeks to protect individuals, not ideas. In fact, its purpose is to restrict the free flowing of ideas, to prevent cultural exchange, for the profit of the few. Copyright itself is the threat to future creativity, attempting to artificially restrict that most human of actions: sharing ideas. It has returned to its origins, and exists as a form of censorship. Not a censorship many are willing to recognise as such, so successful and endemic is the international brainwashing by the copyright industries, but the censorship of ideas all the same. So why shouldn’t someone get to own ideas like they own a table? Because ideas don’t exist in an ownable form, are born of the shared cultural mass of humanity, and you can’t rest a coffee mug on an idea.

And nor, I would add, should society want idea ownership to perpetuate. Physical objects are one thing, but the moment we began allowing culture and ideas to be locked up, we entered very dangerous territory. Because, I would argue, the next step in this progression is going to be language. Don’t laugh, it’s not as silly as it sounds. If you think about it, we already do this to some degree tangentially. After all, software is essentially written in a programming language, and the result of that language is locked up. Trademark and copyright already lock down language in a very limited degree, but even that limited degree can be problematic, as the wonderful world of IP lawsuits has shown us. Ideas, culture, and language shouldn’t be restricted in any society that wants to continue to progress. That’s our entire point.

Next we have the notion that creators should be able to lock down their creations for at least as long as they’re alive:

Putting aside that an embracing of the public domain does not prevent someone from profiting from their idea, my response to this question is: why should they? What I’ve found interesting about asking this question of people is that I’ve yet to receive an answer. I’m either told it’s on me to explain why they shouldn’t, as if I hadn’t just spent thousands of words doing that, or I’m told that they just should. I’ve noticed a complete unwillingness for people to stop and engage with the question. Why should someone get to profit from something they did fifty years ago?

It’s the same argument I’ve always made, which is that those attempting to take action have the onus to prove the need for that action. Human beings share inherently. Locking sharing down via copyright may arguably have some merit for some period of time, but it’s on those advocating for it to prove that, not us. And that’s a tall mountain to climb. Demonstrate that the culture in question deserves payment for the amount of time of a creator’s life, demonstrate its value, demonstrate what society gets as a result, and demonstrate that any harm is outweighed by the benefit. That’s on the copyright folks, not on us to prove the opposite. They’re imposing upon us, not the other way around, no matter what copyright advocates would have you believe.

Finally, there’s the argument that people who think the public domain has value don’t want those working on video games to be paid.

Games, unlike some other creative pursuits, are often made by huge teams of people. While there may be a project lead, this isn’t like a book’s author. This is a company. People getting paid to do their job, to make a game. The rights to the game, the ownership, lies with the publisher that funds it, not the creatives who create it. When a 20, 30 year old game is still being charged for, not a single person who was involved in its creation is getting a dime. When it is more like book with an author, an indie developer and their self-published project, then yes, there is a greater chance they’ll see the money. But then we return to the my larger, more significant argument: that after those decades of getting paid for it, it’s time to return it to culture.

This, too, is in Techdirt’s wheelhouse. When we combat this argument with the way many in the industry, and other creative industries, actually go out of their way to not pay those involved with the creative work, there never seems to be much of an argument against us. Whether its labels ducking royalties, horrific contracts, or movie studios using hollywood accounting practices to keep as much money as possible out of the creative folks’ hands, the end recipient of much of this long-term copyright money is a company headed by people who weren’t creating in the first place. Yet it’s we who are making war on creativity?

Go give the entire thing a read, but this is spot on in nearly every respect. Kudos to Walker for not shying away from the argument. Or firing himself, either.

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Comments on “RPS Takes On Critics Of The Idea That Games Should Eventually Enter The Public Domain”

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madasahatter (profile) says:

Additional argument

One argument against lengthy copyrights is very few works will have any but de minimis sales after a few years. Look at the commercial availability of books or recordings after they have been released. After about a few years most are not readily available because the demand for the items is very low. In publishing, there were bookstores in New York that sold “remainders”; books that were no longer selling. The prices for these books were about 10 to 20% of the list price. Often these books were only 2 or 3 years old.

I doubt the basic sales curve is that different for any media. The would a period of high sales with the sales tapering off to virtually none after a few years.

With computer games, on issue for older games is the availability of hardware (or emulators) to play the game on.

Christopher (profile) says:

Re: Re: Additional argument

There already are fully functional emulators for that system.

The systems that have fully functional (can play almost any game) emulators are NES, SNES, Genesis and N64 (with some codicils for the last).

It’s harder with the other consoles after those because they are more complex and the console makers put in ‘breaker’ scripts that are poorly documented except in secret company documents.

Christopher (profile) says:

Re: Re: Re:2 Additional argument

Umm…. no. The PS2 emulators for computer that I have seen have ‘issues’ with various games… not rendering shadows properly, having the wrong textures/colors for various things, etc.

The Saturn emulators out there are touchy as well and have issues.

Really, I don’t understand why these device makers do not make emulators for their systems after they stop selling their systems. Is it that hard to do? I’d have to say “No” considering that non-company hackers can do it, by and large.

crade (profile) says:

Re: Re: Re:3 Additional argument

Yes, it is that hard to do. The hackers are better than the company and it takes them many years of sacrifice and dedication because they love the system.. The company would never sacrifice themselves, loves money and prefers their old games locked forever up so that their new ones have less competition.

crade (profile) says:

Re: Re: Re:4 Additional argument

Or if they do spend the effort they put their emulators on their new systems, so if you buy every new system ever released you could play your favorites if every company chose to do this. But then they don’t have the rights to republish the games made by others for the systems anyway, so you likely won’t be able to play your favorite games (that you already own) even by buying a new system plus buying the game again.

Christopher (profile) says:

Re: Additional argument

Bingo, mad. Consoles usually only last 10 years, tops with the hardware and even the game carts/discs before they are irreparably damaged due to scratches or other things.

We need to backup those things to a computer system that is more difficult to damage in order to not lose a lot of games to disc rot and console damage.

Personally, I feel it is past time to make console manufacturers release ALL their documents and make their own emulator that works on the most common OS’s available at the time (I.E. today Windows 7+, iOS, Android, OSX) so that we do not lose a bunch of cultural advancements.

Anonymous Coward says:

Re: Re: Additional argument

not quite. all old and cartridge based consoles have a much longer lifespan then CD based consoles and an extremely large number still functions. Cartridges that are not intentionally mistreated usually suffer only from save issues because their batteries died, which can be easily fixed with a fitting screwdriver, cr 2032 battery and soldering iron.

It is the modern games with online features and optical media you have to be mostly concerned for, modern consoles have a bad life expectancy and easily damaged media. The old stuff will be fine for years to come.

Anonymous Coward says:

Re: Re: Re:2 Additional argument

I only had 2 cartridges die on me, both my fault. Replacing a battery without paying too much attention or getting distracted wasn’t that smart.

If you have problems with the contacts, either clean them with brass cleaner or similar stuff, or if they are genuinely worn out, retrace the contacts with conducting pens or similar stuff. I have not seen any cartridge that couldn’t be made to work again.

s7 says:

Re: Additional argument

1st generation Playstation 3 at release had the actual PS2 Emotion Engine chip in it to play PS2 discs. Too expensive!

2nd generation PS3, No Emotion Engine chip, software emulator (FREE!). Discs’ play fine with only a few hiccups.

3rd generation no more software emulation. But Sony is now happy to offer to re-sell you old PS2 games through their store for $9.99 – $14.99 each.

Patents on the NES, SNES, and Genesis hardware have seemingly run out at this point. You can easily find 3-1 systems on Amazon, Ebay etc. that will play cartridges from all of these systems.

Mason Wheeler (profile) says:

Very good points, mostly

The idea that copyright was created as a tool of censorship drives me up the wall, though, because it’s not only false, it’s harmfully false, since the truth is not only true but also presents a more beneficial narrative for those of us who are sick of copyright abuse.

The “censorship” in question has to do with the old Stationers system. That system eventually failed, and became irrelevant. The thing that happened then, though, is that with nothing to keep publishers in line, everyone with a printing press began publishing anything they wanted to, however they wanted to, and completely screwing over the authors. It was to rein in this abusive behavior that copyright was invented, and this point is made quite explicit in the text of the Statute of Anne, the original copyright law.

Why is this a more useful narrative for our purposes, beyond simply the fact that it’s true? Because it allows us to take it and say, “copyright was originally created to stop abusive publishers. It’s been corrupted to the point where it now serves principally to enable abusive publishers, and this is why we need to fix it.” The idea that copyright was always used to enable abuses does nothing but further legitimize current abuses.

Mason Wheeler (profile) says:

Re: Re: Very good points, mostly

I have my facts straight. You’re talking about the Stationers’ censorship regime, which had nothing to do with copyright as we understand it today, and predated the rise of copyright, which, as I explained (since I have my facts straight) arose as a reaction to widespread abuse after the Stationers’ censorship monopoly ended.

Karl (profile) says:

Re: Very good points, mostly

The “censorship” in question has to do with the old Stationers system. That system eventually failed, and became irrelevant. The thing that happened then, though, is that with nothing to keep publishers in line, everyone with a printing press began publishing anything they wanted to, however they wanted to, and completely screwing over the authors. It was to rein in this abusive behavior that copyright was invented

That’s a slight misreading of history.

It is true that the Stationers were the enforcers of censorship by the Crown (largely of “heretical” religious works). But from the Stationers’ perspective, it was simply a way to obtain a monopoly over bookselling – a monopoly that they exercised against authors:

Control over authors was asserted through mandatory entry of books in the Stationers’ Company register:

It began to be assumed that when an individual (stationer) entered a book in the Register, he acquired the unique right to print that book. Although this was not explicit in the Company’s own regulations for some years, it rapidly became the practice to fine those who infringed what the company’s records call “other men’s copies.”

As one commentator described this evolution: “Registration gradually became a method of establishing proprietary rights and book entries (made when the registration fee was paid) ‘became a permission,’ an ‘Imprimatur,’ rather than cash receipt.” The rights granted to (or assumed by) the Stationers Company were not copyrights in the modern sense – the right to reproduce intangible intellectual creations – but rather rights in “copies,” the physical product, regardless of whether the work of authorship was ancient or contemporary. Authors qua authors were in no way protected, although they may have been able to claim the protection of the common law for unauthorized reproduction of their unpublished manuscripts. Authors who could not make satisfactory arrangements with a member of the Stationers Company occasionally attempted to sell their works themselves by subscription, only to be subjected to bitter public recriminations by the Stationers.

So, it was the Stationers themselves who “began publishing anything they wanted to, however they wanted to, and completely screwing over the authors.”

And the Statute of Anne was not enacted to rein in this abusive behavior:

The world was beginning to change, however. Government censorship, government-created abusive monopolies, and lack of protection for authors were becoming inconsistent with the spirit of the Age of Enlightenment. As a consequence, in 1694 the world of the licensing acts and exclusive Stationers? rights ended, as the House of Commons, aided by arguments purportedly drafted by John Locke, refused to renew the 1692 Act. Independent printers sprang up in competition with the Stationers. For five straight years thereafter, the Stationers Company unsuccessfully petitioned Parliament for a new licensing act and then fell silent, no doubt regrouping to develop a new strategy.

In 1703, 1704, 1706, and 1707, petitions to Parliament were presented by the Stationers. On February 26, 1707, leave was granted to introduce a Stationers’ sponsored bill “for securing property in such books as have been or shall be purchased from, or reserved to, the authors thereof.” A bill was introduced two days later, but died in committee. This new approach of emphasizing the author as the source of rights was taken not out of a conversion to the cause of authors, but out of a strategic judgment that the Stationers could hide behind the cloak of authors.

Quotes above are from Patry, “Copyright Law and Practice,” Chapter 1: England and the Statute of Anne.

It is, and always was, a myth that copyright is supposed to protect artists from economic exploitation. Then as now, it was a fig leaf for legacy publishers to maintain their monopoly.

Mason Wheeler (profile) says:

Re: Re: Very good points, mostly

You’re ignoring the relevant facts here, attempting to twist history to fit a harmful ideology. Yes, after they lost their monopoly/censorship regime, the Stationers attempted various bills to renew it, but as your historian notes, every one of them was unsuccessful.

The Statute of Anne was passed in 1709, 2 years after the last of the unsuccessful Stationers’ bills was introduced, and it was not a way to restore the stationers’ monopoly, but a way to guard authors against the abuses that had sprung up in the power vacuum that resulted when the monopoly fell. Attempts to equate copyright with the Stationers’ monopoly are both dishonest and harmful to the goal of positive copyright reform, so I wish you wouldn’t persist in it.

Anonymous Coward says:

Re: Re: Re: Very good points, mostly

The idea that copyright went initially to an author was a bit of spin by the stationers to get a bill passed. It created a right that could be transfered to the stationers, once again giving them control over producing copies. The problem that copyright solved was avoidance of competition on a single title in an industry that had to use batch production. This required that a printer estimate the volume of sales before printing copies of a book and the printer produce the estimated number of book before selling a single copy.If somebody else came into the market with the same title, the result was often that both printers were left with a large number of unsold copies. That is at the level of a single title, competition in producing copies was disastrous for the competing parties. The control over who got to print a title was a beneficial side effect of imprimatur. When imprimatur was abolished, the stationers made several attempts to restore it in a milder form as a printers right, and when they realized that parliament was not going to give them this right they came up with the idea of creating an authors right, which could be transferred to them by contract.
Then, as now, think of the starving author,artist,musician is the cry of those who would control their works for their own profit.

Anonymous Coward says:

Re: Re: Re:2 Very good points, mostly

It is interesting to trace the progress of the stationers’ arguments over the years – initially they pitched the benefits of censorship – only later did they come upon the idea of protecting the author. Also I have never seen any evidence that authors suffered during the period between the lapse of the last of the old style stationers’ charters (~1695) and the advent of the statute of Anne. As far as I am aware printers continued to pay authors for their work at a similar level throughout the period and I believe that some evidence to this effect is available via copyrighthistory.org. It was the printers/publishers who felt threatened and they used the supposed plight of authors as an excuse.

Furthermore I have seen some comments that the flourishing of creativity that happened shortly after the statute of Anne was actually caused by the LOSS of a perpetual copyright and its replacement by a short lived one – forcing the publishers to source a continual stream of new works – where previously they had mostly stuck to re-publishing the same material again and again.

Karl (profile) says:

Re: Re: Re: Very good points, mostly

The Statute of Anne was passed in 1709, 2 years after the last of the unsuccessful Stationers’ bills was introduced, and it was not a way to restore the stationers’ monopoly

The Statute of Anne was one of the Stationers’ bills.

And it certainly did restore the Stationers’ monopoly – to some extent. Who do you think the Statute of Anne explicitly stated would handle all copyright registrations? (Hint: It was the Stationers.)

but a way to guard authors against the abuses that had sprung up in the power vacuum that resulted when the monopoly fell

As far as authors were concerned, there were no more “abuses” after the monopoly fell than there were beforehand. As stated above, authors never had any kind of copyright protection. Prior to the Statute of Anne, the monopoly copy rights went to the Stationer that entered the work into the register.

Authors may have supported the Statute of Anne, but only because that statute created artists’ rights. In essence, those authors (most of whom had already dealt with the Stationers) hitched their wagon to a bill that was introduced and supported by the Stationers, in order to gain rights in their works that they had never before held.

Pragmatic says:

Re: Very good points, mostly

With respect, Mason, it’s true that copyright began as a censorship tool. See this link for details: http://www.copyrighthistory.org/cam/commentary/uk_1557/uk_1557_com_972007121517.html

It’s not just copyright that was used for censorship, but it was an essential tool. See also http://www.historyofinformation.com/expanded.php?id=41

The idea was to only let “registered journalists” publish anything and light everyone else on fire if they dissented.

If you still believe I’m wrong, please provide a link or two to support your assertion. Please note I’ve tried to avoid using partisan sources.

Anonymous Coward says:

20 years is way too long. It should be as soon as the console in question is not sold in any store anymore.

Even then, unless a person is commercially selling those games, they should not be penalized for downloading them online.

I’ve got a huge collection of old NES, SNES, N64 and PS1 games on an external flash drive. Since none of those consoles are sold anymore, I feel no moral pangs about downloading them off the internet.

Anonymous Coward says:

Re: Re:

Define “not sold in any store anymore”. Sony finally ended production of PS2s just last year, but I think most stores stopped carrying it before that. Conversely, it’s pretty easy to find “stores” on Amazon that sell older consoles.

Furthermore, you’re tying the copyright of the games to the console they happen to be played on. Which is many respects is like saying “this movie should no longer be under copyright because they don’t sell VCRs in stores anymore”. People still make games for older consoles while the console maker is pushing a newer console. You’d be punishing the game maker for making a game for a console that’s widely owned, but that many retail stores have dropped in favor of the newer console.

Likewise, just because a console isn’t sold in stores does not mean that it automatically becomes scare. Millions of people have functioning older consoles lying around. Should it be legal to download any Super Nintendo game, just because I don’t feel like hooking up my fully functional Super Nintendo?

Watchit (profile) says:

It’s not like many people actually BUY games older than 20 years now a days… And usually even if you wanted to, older games just aren’t available to buy anymore. Unless the title was popular enough to be re-released or put up on GOG, you usually have to track down a used physical edition, which doesn’t even pay to the publishers, let alone the people who actually created the game. The only recourse for most is emulators and cracked copies.

I dare someone to find me a legitimate unused copy of DuckTales: The Quest for Gold for sale.(DOS or Comodore 64 version, I don’t care)

I won’t hold my breath, because you can’t. All that exist are emulators from third parties.

Digger says:

Can you say Duhhhhh

Uhm… one small problem with that.

You CANNOT copyright something without releasing it to the public domain, period.

Sorry folks, just cannot be done.

It’s part of the copyright process, you are granted a copyright, not to profit, but to prevent someone from copying your work and presenting it as their own.

With this prevention you agree to release your work into the public domain after a reasonable amount of time.

Since computers and software advance so much more quickly, copyright on software should be about 13 months.

Now as to *ahem* the false crime of “Copyright theft”…

Ehhhh – doesn’t exist.

You can’t steal a copyright.
You can’t compromise or break copyright law unless you do 2 things.
#1 – Copy the entire work and claim it as your own.
#2 – Profit from said copying.

If you do neither of those 2 things you have NEVER violated copyright law. Anyone who claims otherwise is just wrong.

The RIAA/MPAA and other senseless corporate drones are lying, have been lying, continue to lie to the public and the government.

Just re-read the actual copyright laws.

Unless you are pirating (charging for copies of copyrighted works on some form of physical medium that someone can hold in their hands and walk away with – ie books, cds, tapes, etc) there is no copyright violation.

Anonymous Coward says:

Re: The Right to Fix It

There is a MASSIVE difference between releasing the release code into the public domain, and releasing the source code. Especially as so many of these source codes are using proprietary libraries that can cost buckets.

Are you arguing that legally the company has to dump its game source on github after a decade? Cause that will never happen.

Mason Wheeler (profile) says:

Re: Re: The Right to Fix It

By definition, after a certain amount of time has passed from the publication of that game, an even greater amount of time has passed since the point at which that hypothetical proprietary library was released to the game’s developers. So what’s the problem? By the time a decade has passed, LibCoolStuff 3.5, which the game was written with, will be obsolete anyway and (if the authors are still around) it’ll most likely be on LibCoolStuff 5.8 by that point anyway.

eroticreader says:

my opinion

As a gamer myself, I do think that game publishers should be obligated to release the source code of the console/game after 10-15 years. After all, many games from the N64 era, and even now the early PS2 era are becoming very scarce. In fact, I believe that video games should be covered on a separate copyright regime altogether, lasting only until five (possibly seven) years AFTER the game is published for a particular platform.

Jay (profile) says:

Got a point but...

I can’t stand the amount of hyperbole that Walker uses. I also don’t like him for a number of reasons. That said, I do recognize his points as agreeable to my own and where I stand with wanting to abolish copyright for a number of reasons.

In the gaming world, it’s harder than ever to allow people to utilize older technology that others may find no use for thanks to corporate takeover of the public domain.

Square is notorious for this. Want to make a movie based on FF7? You have to pay a license which they’ve NEVER shown to the public.

How about reverse engineering the first few games of Rad Racer or SMB? Again, copyright intervenes.

I’ve recently had a battle with people over Floppy Birds being technically legal because copyright has no moral aspects to it in US law (and given that the guy who made the game is Vietnamese, that begs the question of how copyright should be utilized to compensate more authors).

But the question remains in how to “re-enrich” the public domain. I believe a few things can be extrapolated from this discussion.

1) Those at the top of the table will always work to protect their own interests. Yes, Cliff Bleszinski is a douchebag and never should have opened his mouth when his work was created on the Unreal Engine and he didn’t pay much money to license that engine for his work on Gears of War. He also didn’t have to pay all of the authors of all the fiction novels that have told a story about a war torn planet that his ideas are based off of. And he’s a really easy target because I like him about as much as I like Walker.

2) The public domain should encompass far more than what it does now. What I mean here is that a game along with the sum of its parts, should be opened up to serious tinkering and innovation. There should be an option that if an American game company goes bankrupt, that company’s assets should be viable for the public domain instead of merely sold to other entities. Just think about if someone wanted to make games available from the 80s such as Tengen’s Tetris, or Journey to Silius and put it on a Steam-like platform for all.

3) The past needs to be preserved, not locked away.

The archival powers of copyright are nonexistent without some ability to preserve the past. The past fades away and dies if there is no one to remember a work. Only the Gods know how many viewpoints and interesting works have died a nonexistant death thanks to these laws that destroy culture.

These are but a few ways that copyright has interfered with the rights of the public. Perhaps it’s time for a conversation that goes beyond what corporate powers want for it.

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