Copyright & Games

I want to make the case for the importance of copyright in video games. However, I will not approach this from the perspective of the evils of piracy, or the importance of a developer to earn a living (nor the importance of propagating further the starving artist myth). The former I disagree with, whilst the latter is self evident and doesn't deserve so much attention as it gets. I will come at this from the opposite and more interesting end instead, that copyright is important in relation to video games because it limits users, it limits culture and it can limit society as a whole.


Piracy & Free Software

Free software, by definition of freedom, allows recipients to distribute the software freely with others, whether through home networks or bittorrent and regardless of scale. This is a culture that exists without piracy, or at least has put piracy in its proper place as sharing, even if that sharing can now take place with strangers across the globe. This has also meant, however, that many in the free software community fail to account for the very real effects that piracy has, either failing to acknowledge its existence or even in some circumstances taking the claims of the major proprietary software vendors that piracy harms their business as truth. This may not necessarily be expressed directly, but it seems the obvious logical end point when assumptions that free software cannot be sold or will be limited (profit wise) to a niche are presented.

To properly account for proprietary software dominance, not only must you take into account the exclusionary nature of rights granted in copyright and patent law, or the networks effects and switching costs, but fundamentally where much of that power comes from, and it's from piracy. The zero cost, wide distribution model that Free software pessimists conclude will limit business incentives is in fact a defining feature of the proprietary software world. It is something they acknowledge, that many have accepted, and in fact carries large advantages to the producers of such software, even as they publicly claim their business declining because of it1. As Free software advocates talk doom and gloom about the inability to sell software and even the potential inability of certain sectors like the game industry to become FOSS due to zero cost, widespread distribution, proprietary companies admit the benefits they get from piracy that are allowing them to sell more software, in some cases to people and places they would not normally be able to reach either due to distribution inefficiencies or the high price of their own software.

As the SSRC's Media Piracy in Emerging Economies details:
In all the countries examined in this report, price competition and service innovation come primarily from competition among domestically owned media industries. The multinationals, our work suggests, simply do not have the incentives to offer significant price cuts in low- and middle-income markets, for fear that these will impact pricing in their larger, more profitable markets. In the software sector especially, piracy assists this policy by providing the vendors a form of de facto price discrimination that generates positive network effects for commercial products, while locking out “free” open-source alternatives. The Ponosov case suggests the complexity behind this balancing act—as well as the pragmatism of the Russian government in angling for advantageous deals with multinationals. The government’s strong stated commitment to open source appears to be just one part of this larger strategy of hedging and dealmaking.
Russia, P. 226, Sec2:212
As noted in the above quote, such strategy is not unique to any particular country. The main difference between countries like Russia and the US is simply the latters more developed economy and higher income, representing a later stage in the piracy myth propagation in which further rhetoric is used to dissuade piracy and a stronger position from which to appeal for stronger laws to effectively bully companies and individuals to pay licensing costs, all for what Richard Stallman might call an act of kindness if it weren't for the lack of freedom.
In our view, the Indian experience is consistent with the market development strategy outlined in chapter 1 of this report, in which the major software vendors (1) tolerate high levels of piracy in order to capture market share and lock out open-source competitors and then (2) progressively enforce licenses against the largest public institutions and organizations. Recent licensing deals with state governments in Karnataka and Maharashtra exemplify this second phase of operations, as do volume licensing deals with Hewlett-Packard and other locally- active equipment vendors, which ensure that new machines come pre-loaded with copies of Windows to discourage both pirate and open-source alternatives.
As elsewhere, the licensing deals are a gamble: they push public institutions into the legal software market but also increase the risk of large-scale adoption of open-source software as institutions think about their long-term software strategies. School-based open-source adoption programs, in particular, are widespread in India, with a large-scale pilot program in the state of Kerala providing the template for more recent adoption efforts in Karnataka, Gujarat, Assam, and West Bengal.
India, P. 404, Sec2:390
And as long as they're going to steal it, we want them to steal ours. They’ll get sort of addicted, and then we’ll somehow figure out how to collect sometime in the next decade
Microsoft Chairman Bill Gates to students at the University of Washington, in 1998
What we have here is a paradox of thought. As the Free software community laments its (entirely assumed) inability to sell software in a low cost distribution environment, proprietary software is reaping the monetary rewards of a low cost distribution environment. As the Free software community wonders whether it can become as big as proprietary software with community development models, more and more proprietary vendors are incorporating those same methods into their own model, ever more relying on community testers, documenters, feedback and even contributions, complete with donations even(!).

Not only does proprietary software compete in an environment with free distribution of its own products, it exists in an environment that increasingly justifies it, rejects claims of harm and seeks to address its illegality at the very least in non-commercial forms, without an associated push for freedoms that would allow them to break the shackles of their own making that free software has long recognised. The fact that research and people within the industry recognise the benefits piracy can afford them leaves a push to legitimise at least non-commercial piracy as a process that will result in little true change for the major software vendors.

As I've described before, piracy, sharing or whatever else you wish to call it is in itself not a problem. What is a problem is the blockage in thought, the inability to think past zero cost that stops individuals and groups moving free software into profitable business ventures as a challenge to traditional proprietary norms. What we certainly don't need is to fall back on the myths perpetuated by proprietary vendors after spending 20 years fighting them.

1 The Entertainment Software Association on piracy: http://www.theesa.com/policy/antipiracy.asp

A media piece from Gamepro that also tows this line, with focus on individual pleading about the harm of piracy with no real evidence presented on its effects good or bad: The Cost of Piracy

2Much discussion around FOSS games focuses on the inability to compete with free, typically resigning themselves to some reliance on "all rights reserved" or "some rights reserved" aspect, whether for code, art, or both.


3More and more evidence and research is being built up in this area. In particular see:

Media Piracy in Emerging Economies


Lessons from Fashions Free Culture (Youtube)

The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada

Channels & Conflict: Response to Digital Media Distribution, Impact on Sales and Internet Piracy (Youtube)

File-Sharing and Copyright - Felix Oberholzer-Gee and Koleman Strumpf


If You Still Think Patents are for Inventors...

Here's a quote from a book a family member recently picked up entitled "England in the Eighteenth Century (1714-1815)" by J.H. Plumb that I think quite nicely shows the folly behind the idea of patents solely as a social good to protect inventors:
Jealous of her own inventions and the supremacy of her industries, England viewed those of other nations with an envious eye. Naturally she welcomed Protestant refugees from France, Especially when they brought the secret of new industrial processes, but the most spectacular achievement in this field was by the brothers Lombe, an achievement which caught the nation's imagination. In Italy, the manufacture of silk yarn was highly mechanised, though its mechanization was a profound secret; but in 1716, John Lombe went to Italy and managed to steal plans of the machines which he and his brother, Thomas, patented on his return. A vast factory, 400 feet long, which became one of the sights of England, was built on an island at Derby. Unfortunately, John died but, in fifteen years, Thomas had made a fortune of £120,0000 and earned a knighthood. In 1732, the patent lapsed, but a grateful Parliament bestowed £14,000 on Thomas and the industry, now open to all, spread rapidly.
Wikipedia doesn't have much more detail, but when you see stories like this it does tend to highlight how systems like patents and copyright aren't at all what they're made to be publicly, in the past nor the present.


Freedom vs Freedom revisited

I've already written previously about the tension between BSD/Apache-license views and those of the copyleft GPL persuasion, mainly with the aim of pointing out that what is being fought over is 2 different ideals of freedom. However, I think there are some further points to add to the discussion, particularly in the role of the view of copyright that an individual has and how that affects their views of software licensing.

First, to summarise and help make clear my previous points:
  1. BSD/Apache style licenses favour a maximum choice view, in which the ultimate freedom is the ability for a developer to make a choice about how their own written code and opened code they receive can be distributed and follow through with that choice being enforced, even if that choice may not be considered the most beneficial to everyone as a whole (but may be particularly beneficial to the individual).
  2. The Copyleft/GPL style licenses favour a net benefit view, in which core, important freedoms are protected for everyone who receives the code at the expense of the ability of some to make or impose a certain choice for the wider benefit of society in ensuring all receive the same rights and opportunities as others.
  3. That either way, choice is inevitably removed from someone, the only difference being whom they favour (recipients or distributors). With this realisation, arguments about what grants the most freedom become obvious as red herrings, and that we should keep to debates on the fundamental merits of either view and also their relation to society.
However, I have also seen the tendency that such alignment to a particular preference of license may also arise not just out of deeper beliefs, but assumptions and beliefs about the nature of copyright law itself. In some cases, those who prefer "permissive" licenses appear to have the belief that copyright law is as much a matter of property as owning a car or a house, in that code they write is as much their property as any physical item to use, sell, rent and generally dictate terms of use. It's a belief in copyright as property1 (see the term intellectual property that also gets used in this context), one which has become more and more prevalent, and in turn promotes ideas of infringement as theft, in which the use of a work or the unauthorised sharing is as much stealing as breaking into someone's house and relieving them of their TV2.

With research however, they would find this is a view that does not really exist within most concepts of copyright. Indeed, within the US, copyright as granted as a temporary privilege for the means of creating a net benefit to society, not as a property right, and as such Congress has no requirement to provide copyright should there be seen as no net benefit to society3. To espouse the maximum choice/code as property view as the ultimate freedom is to actually be in direct contradiction with the intended purpose of copyright law that the enforcement of such licenses depends on.

Copyright is a function of social benefit. There was no theory of property behind its conception and not because they hadn’t thought of copyright and patents in this way, but because this view had been outright rejected4, with similar views behind copyright law in other countries too. There are a variety of reasons and views as to why copyrighted works should not be considered property, primarily of which is the simple notion that my copy or use of an idea or particular expression of an idea is not one that is exclusive of yours - my downloading and sharing of your song for example does not mean you no longer have that song as in theft, the only assumption is that my non-exclusive distribution of your song may interfere with your potential market for selling or licensing the use of said song. However, such an assumption is less and less supported by reputable evidence, particularly as new means of distribution, development and subsequently new business models have emerged5.

Because of this, economic assumptions as to why a BSD style license is needed or is outright better than a GPL style license are also becoming increasingly thin. If the assumption of being “more free” is a red herring, if a smaller group of copyright-as-property thinkers find themselves not supported by the view of the law, and the economic assumptions for why a BSD license may be needed contradict the research, what is left beyond a need to conform to legacy assumptions and restrictive business models?

1. For a variety of examples of such a view, you need only google. Here however are a few immediate examples:





2. Once again, a mere Google search will find plentiful examples of such a view: http://blog.aflcio.org/2011/07/13/digital-theft-agreements-a-good-start/








3. “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.” U.S. Constitution, Article I, Section 8, Clause 8 https://secure.wikimedia.org/wikipedia/en/wiki/Copyright_Clause

4. “Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.” Thomas Jefferson to Isaac McPherson http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

5. A wide variety of research that contradicts popular assumptions about copyright, patents and their utility is available from a number of sources, including even Governments that themselves enact stonger laws:

Hargreaves Report



Gowers Review

Media Piracy in Emerging Economies

Against Intellectual Monopoly






Either Way, Choice Is Removed

Often when a debate between GPL or BSD style licenses erupts, the matter of discussion focuses on choice. Typically, it is said GPL removes choice, and is subsequently detrimental, wrong or even draconian because of this. GPL has a unique characteristic compared to BSD in that if forces developers who decide to share software to do so in a way they may not want to (provide source code), thus removing choice and is a bad license for doing so. What this neglects however is that BSD style licenses allow and were created specifically for such instances when someone would want to remove choice from others - it is a license that also encourages the ability to remove choice from others.

The fundamental difference between the two is a matter of perspective. The GPL and software freedom movements started from the perspective of a recipient of software, a user who may or may not know how to develop a program. Proprietary software is bad it is said because the user has no say in how the code can or can't be used - they are dictated to by someone else, and most commonly in ways that do not allow redistribution or modification. The recipient has a disadvantage in not being as knowledgeable as to how the code works and what it does, and should they have problems, have little personal empowerment to do something about it unless it is assumed the provider is inclined economically or otherwise to do so. The GPL attempts to rectify this so that whomever the recipient is and their status, they always have some means to practice this freedom, have control over their lives and their machines that perform important tasks in their lives.

The BSD style licenses assume the perspective of a developer, who wants full ability to decide what they can do with their code at any time, and should they be the recipient of any opened code, to maintain full ability to decide what to do with that code - enforce privacy or to release it openly. Freedom in this case is the freedom to have a complete decision opportunity over the code you write and potentially code you receive should someone else have opened theirs, whilst having that decision enforced or protected (by copyright law), perhaps most often for economic reasons (the assumption that selling copies of software is the only "real" business is fairly ripe)1.

The license assumes the role of someone creating or distributing, but with no regard for recipients should a decision be made to keep the code private even if the software is distributed publicly in binary form. BSD allows for creators and distributors to have freedom, but not recipients should the creator decide it not important or economically to their advantage to do so. BSD style licenses enforce the ability to remove choice from others should you so decide.

The perspective of the likes of the FSF and Richard Stallman however was not so distracted by the tension between choice and who should be "restricted", but was on which choice was of more social importance and benefit. The wider view is not about whether someone should have choice or not, but whether or not that choice is of more wider social benefit, and the consequences of the means with which those choices are enforced, often in ways that are of large social detriment like draconian DRM laws.

GPL and free software inspired licenses are reactions against what are seen as unjust laws and incorrect assumptions about the social and economic consequences of software development and distribution, whilst BSD style licenses are reactions that support those same old assumptions that a software developer or distributor may need to restrict the recipients primarily for economic reasons. Richard Stallman and his creations of the FSF and the GPL were attempts at social change against negative social forces, whereas BSD style licenses are aimed at providing maximum commercial opportunity, even if there may be other social costs involved.

1. FreeBSD documentation asserts ill thought out assumptions and generalisations about the economics, practical effects and intentions of the GPL for example:


and another article was written asserting similar ideas under the guise of finding a “real” business model: