Editorial: Why Games Should Enter The Public Domain

By John Walker on February 3rd, 2014 at 1:00 pm.

A few days ago I inadvertently caused a bit of a fuss. In writing about GOG’s Time Machine sale, I expressed my two minds about the joy of older games being rescued from obscurity, and my desire that they be in the public domain. This led to some really superb discussion about the subject in the comments below, and indeed to a major developer on Twitter to call for me to be fired.

I wanted to expand on my thoughts, rather than leave them as a throwaway musing on a post about a website’s sale. But I also want to stress that these are my thoughts-in-process, and not those of RPS’s hivemind. This isn’t a petition – it’s an exploration of my thoughts on the subject. Let’s keep that in mind as we decide whether I should indeed fire myself.

I said it frustrates me that games more than a couple of decades old aren’t entering the public domain. Twenty years was a fairly arbitrary number, one that seems to make sense in the context of games’ lives, but it could be twenty-five, thirty. It’s not the point here. My point was, and is, that I have a desire for artistic creations to more quickly (indeed, at all) be released into the public domain, after a significant period of time during which the creator can profit.

This annoyed a number of high profile names in the industry, leading to some suggesting that I don’t want developers to get paid, be able to eat, and so on. As this isn’t the case, I want to get into the subject far deeper.

So before we move on to the nuances of the argument, let’s get one thing out of the way: Expressing a desire for a game to enter the public domain, let’s say twenty years after publication, does not in any sense whatsoever suggest a desire for developers to not get paid. I resent having to type this. It’s a bit like finding yourself having to say that you’re not in favour of gruesomely starving children to death because you expressed a thought that they probably shouldn’t get to exclusively eat at McDonald’s. What I am in fact saying is: “developers should get paid for the work they do, and then keep getting paid for the same bit of work, over and over and over for the next twenty years, even though they stopped doing any work related to it many years ago.” It’s not entirely apparent how the two sentiments are being confused.

Well, it is, actually – I’m being facetious. The two are being deliberately conflated by a contingent who find the possibility of cultural artifacts ever returning to the culture that spawned them to be so repellent that they must eliminate anything that treads even close to challenging what they see as their perpetual rights to profit from ancient work. (And let’s be clear here – creators are arguing for perpetual copyright here, far outreaching even the current grasp of the law.)

I think the best approach here is to address the most frequent questions directly:

People need a financial incentive to create. If you take that away, it will harm creativity.

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. For someone to make their living from creative pursuits relies on some sort of financial return, yes. Creativity is not dependent on its being one’s living. That’s enormously crucial to remember. But even when talking about those seeking to make their living, the notion that a finite stretch of time in which exclusive profits can be made doesn’t prevent anyone from becoming a multi-millionaire from their work. An eventual transition to the public domain would in no sense take away the financial incentive to create.

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. I’m going to get into this far more deeply below.

While it might well stop Cliff Richard from being able to replace all the chandeliers in his mansions with money made from a song he recorded sixty years ago and hasn’t touched since, the potential of entry to the public domain is not going to make anyone poor. And I’m perfectly okay with Cliff’s dusty decor, not least because at the time of his recording said song, he would have agreed to that song’s entering the public domain by now.

But why shouldn’t someone get to own their own ideas? They created them, after all.

This is where things get a bit philosophical/metaphysical. But it comes down to accepting that there is a material difference (literally) between a game and a table, a song and a car. One physically exists. The other doesn’t. One is a thing, the other is an idea. And ideas is what this is all about.

Everyone has experienced the dribble-chinned tedium of various copyright industries screeching, “BUT YOU WOULDN’T STEAL A CAR!”* at us, as we sit in the cinema to watch a film while being told about how it’s our fault that no one’s sitting in a cinema watching a film, or indeed as we sit back to enjoy our legally purchased DVD. The comparison is false. And it’s a false comparison that it’s very much in the interests of the copyright industries to have us conflate. No, I would no more steal a car than I would tolerate a company telling me that they had the exclusive rights to the idea of cars themselves. However, there are things I’m very happy to ‘steal’, like knowledge, inspiration, or good ideas. And it was until incredibly recently that amongst such things as knowledge, inspiration and good ideas were the likes of literature and music.

The war for minds waged by the copyright industries over the last one hundred years has been so gruesomely effective that now the very suggestion that ideas are not immediately comparable with physical objects is met with violent anger. In a world where everyone alive has been raised in a system where Disney can pick the laws, it is perhaps not surprising that such contrary notions are met with such fury. What was once perceived to be a gross abuse is now ferociously defended by those abused by it.

Sudden changes occurred at the turn of the last century, where once ideas that were shared by oral and aural traditions, or indeed in copied texts, were confined to pieces of plastic. A couple of generations later, and these confinements were accepted as the only possibility. Then the relatively recent ubiquity of the internet has suddenly revealed this to be as transient and ethereal as it always was. However, vast industries had been built up around this temporary imprisoning of ideas, and they’re not all that delighted about their reign coming to its natural end.

Copyright has come full circle. Introduced in the 17th century as a form of censorship, an attempt by the monarchy to prevent the new-fangled printing press from being able to easily disseminate Protestant information, it was after a couple of hundred years eventually fenced into something vaguely useful. It stood to defend a creator’s right to protect their creations for a limited period, before they re-entered the public domain. Based in an understanding that creations are not uniquely birthed from the mind of a single individual, but rather the results of a massive collective sharing of cultural ideas over thousands of years, it made sense for their creation to be set free again at a later date. Those who found a demand for their creations, when they applied this shared culture to their own projects, would therefore receive recompense, either through patronage, or through payment for sales and performance. And they could (and can) continue to do so in perpetuity. Only, after that agreed period of time (different lengths in different nations), they would no longer exclusively own rights to that idea.

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.

But why shouldn’t someone be allowed to continue profiting from their idea for 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? In what other walk of life would we willingly accept this as just a given? If a policeman demanded that he continue to be paid for having arrested a particular criminal thirty-five years ago, he’d be told to leave the room and stop being so silly. “But the prisoner is still in prison!” he’d cry, as he left the police station, his pockets out-turned, not having done any other work in the thirty-five years since and bemused as to why he wasn’t living in a castle.

What about the electrician who fitted the lighting in your house. He requires a fee every time you switch the lights on. It’s just the way things are. You have to pay it, because it’s always been that way, since you can remember. How can he be expected to live off just fitting new lights to other houses? And the surgeon’s royalties on that heart operation he did – that’s the system. Why shouldn’t he get paid every time you use it?

So why should a singer get to profit from a recording of his doing some work thirty-five years ago? The answer “because it’s his song” just isn’t good enough. It was PC Ironburns’ arrest. “But creating that song may have taken years!” PC Ironburns spent years investigating the crimes before he caught that pesky crim! The electrician had to study for years to become proficient enough to rig up lighting. The doctor spent seven years in medical school! Imagine if this system we wholly accept from creative industries were accepted elsewhere – the ensuing chaos would be extraordianry. Take Broussard’s claim above, that “Creatives have a right to be paid indefinitely on their work”, and switch out “Creatives” for any other job. “Dentists”, “teachers”, “librarians”, “palaeontologists”… It starts to appear a little ludicrous.

The answer, “Because they should” just doesn’t address the question. That instinctive response is one born of the capturing of culture by industry, bred into us from birth. To stop, shake it off, and approach the question anew takes considerable effort. But then once shaken, the light suddenly comes shining in.

Why do we, as people who likely make money by working a regular job and getting paid for the time we spend doing it, so vigorously defend this peculiar model that is the antithesis of our existence?

I can’t believe you’re arguing that developers shouldn’t be able to profit from their games.

My poor head. But yes, let’s bring this back to videogames. Games feel different from songs, even films, don’t they? They’re modern. They weren’t even a concept before copyright had so grotesquely morphed into its current form. The industry was born into a world where creators already assumed a life-long possession of their particular manipulation of the culture they’d received from others. It is, perhaps even more than film, music or literature, an industry that has grown up most at odds with the concept of the public domain. (Which anyone over the age of 30 will recognise as quite a grim irony, as they recall the days of public domain gaming in the early 90s.)

And unlike music, theatrical productions, or story, they never pre-existed in a plastic-free form. (We could of course argue about snakes & ladders, hopscotch and ‘it’, of course, but for the sake of simplicity, we won’t.) I accept that it’s perhaps a far bigger cultural shift to accept that the whizzy graphics and explosions are, when all is pulled apart, ethereal concepts, ideas of 1s and 0s bouncing off our retinas, as possible to hold in our hands as a memory of an aunt’s house. But as much as it may not instinctively feel like it, it remains entirely true.

But 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.

But people who work deserve to get paid.

I’m being as patient as possible. And this is where reasonable copyright laws to protect creative pursuits can step in. Agreed standards within the culture from which the ideas were born where we bestow financial worth upon the action of a creator generating those creations. Because despite the question that is still bursting from some people’s minds about how I don’t want anyone to get paid, I ADORE to see creative people getting paid.

I even adore the idea of people getting paid for their work after copyrights have expired. Further, I absolutely believe that it is right and fair for anyone who works to make that public domain material available to me in a convenient form to be free to charge what they like for doing so. To those who interpreted my previous article as claim that GOG shouldn’t be able to charge for much older games, that’s entirely not the case. I’d just like GOG to be able to charge for their own work, and not to have to then include costs for the license they’re paying to whichever corporation owns the copyright on the game for which they had nothing to do with the creation.

You’re a hypocrite, because writing is a creative industry, and you don’t give all your writing away for free, and you get paid, and you’re ugly.

It’s polite to wait to find out if someone’s being hypocritical before calling them a hypocrite. However, despite there being little demand for videogame journalism written twenty years ago, and therefore not something I have to face too often, I do consider my older work to be in the public domain. I wrote for Future Publishing for about ten years, where my contract stated they had exclusive rights to the work for six months, and thereafter we shared rights to it in perpetuity. I have always immediately revoked any private rights to that Future work, and while I maintain the right to be recognised as the creator of the work, I’m delighted for anyone to use it in any fashion they see fit. If that person wanted to pay me for doing so, I’d be even further delighted. I believe in what I’m saying here.

So what do you want to see changed then, apart from developers not getting paid for their work?

There are very few cases of developers making their living from the profits of games made 20 years ago. Gaming, as a medium, has a far more rapid expiry date than music, film or any other of its contemporaries. Despite rich retro scenes, and dedicated emulator projects, getting an old game running at all can be quite the ordeal. Sites like GOG do a wonderful job of preserving old games and making them easy to run, but this doesn’t directly translate to astonishing sales that will keep the original developer in caviar-coated Jaguars for the rest of their lives – in fact, it’s phenomenally unlikely that a penny of most sales will reach the developers at all. Other sites dedicated to getting forgotten games working again – abandonware, as it’s known – are fiercely threatened and shut down not by the creatives who designed the games, but by the company that bought the company that merged with the company that had the IP rights. And if you don’t like 20 years, because that’s the mid-90s, and it feels too dangerously close, then make it 30 years. Make it a sensible length of time that ensures that developers are richly rewarded for their efforts, and then it is released into the cultural wild – people’s to share, copy, remix or add to their own peculiar retro project’s catalogue. People who are, you know, actually doing some work to make it playable.

And no, of course I don’t believe that gaming should be treated differently from other media. I believe other media should be rapidly reigned in to the same standards, before we see the cultural wells dry and crack.

But hey, here’s a thing: I don’t have any power. My saying this, my believing in returning creativity to the pool from which it came, doesn’t mean anyone has to. Shocking news. I have no delusions that writing all this out is going to spark a world-wide revolution in copyright law. Again, stunning revelations. But what I do hope is that some people, an odd few, might connect to this in some way, and see fit to opt to let their games enter the public domain. Or commit to publish their games with a promise that after a certain amount of time, they will do so. Even opt to publish their games under Creative Commons copyleft licenses, in order to maintain all the legal rights and protections they need, without stifling the cultural world from which they so richly drew.

I’m a romantic.

And just in case, let’s do this one more time: I love it so much when talented people get handsomely rewarded for their great creative work. It brings joy to my heart when I see stories of the likes of Garry Newman or Marcus Persson becoming fantastically wealthy in response to their brilliant creations. Little makes me smile more broadly in an average day at work than reading the indie developer who’s reporting their game’s sales mean they can give up their day job and focus on what they love.

Further, I would so enormously love to see a situation arise where we can see truly patron-led creative funding, where gaming communities put forward their money so that creatives producing truly wonderful gaming projects can do so without the need for commercial success.

I want money flowing toward those whose talents warrant it like we’ve never seen before. I want developers to get paid.

*I do also wonder if it can be the most effective campaign against people who do steal cars.

Further reading:

Nick Mailer’s essential essay on IP and copyright.
Techdirt’s piece on what should be, but isn’t, in the public domain.
Boingboing’s article on Naomi Novik’s testimony to Congress on copyright and fair use.

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583 Comments »

Top comments

  1. tumbleworld says:

    As a professional author, with a lot of published works over the last twenty years, I couldn’t agree more.

    Despite what people are led to believe, ideas are not unique sparks of wonder that flash down, full-formed, from some protean realm, directly into the brains of the talented. Ideas come out of the soup of culture all around us, bubbling to the top at a handy moment to be scooped out and devoured. Picasso phrased this as “All art is theft”; Newton as “If I have seen further, it is by standing on the shoulders of giants”.

    The concept of a creative idea being locked away out of the culture for ever more by some greed-poisoned dragon is utterly abhorrent. The things we do, as creators, come out of the wealth of the idea-space networks supporting us. Refusing to admit that is cretinous, at best. It’s exactly the same as the rich old scion of a Boston banking family smugly declaring “Well, I made my billions on my own, so those pathetic ghetto brats are just being lazy.”

  2. Barberetti says:

    Would be a bit of a weird situation for Broussard, seeing his game ideas entering the public domain before the actual game’s released.

  1. LionsPhil says:

    It’s not surprising Broussard would take offense to the notion that a twenty-year-old game should become Public Domain, since that’s getting close to when he last did anything of value.

    But, yes, basically correct article. Props to Revolution Software to sort-of doing this anyway for their own old adventure games, and I guess to Virgin Interactive, since I think they were the publisher holding those particular reins.

    • P7uen says:

      If that’s the stupidest sentence he’s ever read he clearly didn’t see the script for DNF.

      • aldo_14 says:

        DNF didn’t have a script, it had an Etch-a-sketch.

      • Humanji says:

        Did Broussard pay Sam Raimi for the lines from Evil Dead that he used in Duke Nukem 3d? Or does Raimi not deserve credit for what he created?

        • melnificent says:

          Lets see what influences where in Duke Nukem Forever. http://tvtropes.org/pmwiki/pmwiki.php/VideoGame/DukeNukemForever

          That’s a lot of peoples ideas to credit. Maybe Broussard as working up to it.

        • Leaufai says:

          Exactly. Add to that direct quotes from Army of Darkness, They Live, The Empire Strikes Back, Forest Gump and about a dozen other movies.

        • subedii says:

          I remember an interview from way back when Bruce Campbell was doing voicework for Tachyon: The Fringe. He made some sideways comments about ‘certain other’ games that basically lifted the persona and lines wholesale.

          So let’s see WHO exactly should be angry at WHO eh Broussard?:

          http://www.shacknews.com/article/2684/bruce-campbell-on-duke

          IGN For Men: Have you been approached for the (Duke Nukem) movie at all?

          Bruce Campbell: No, and I would say no because of the way they’ve handled it.

          IGN For Men: How have they handled it?

          Bruce Campbell: Well, they’re rip-off artists. Let them get their own damn material. It’s called hiring a writer. They’re blatantly ripping it off and if I was any kind of litigious guy they would’ve gotten a phone call by now. It’s depressing and I think it’s wrong. That’s why Tachyon: The Fringe will kick little Duke’s ass any day.

          Something something glass houses stones something.

    • Uglycat says:

      And CliffyB is getting on for almost 15 years since UT (which you can pry from my cold dead hands).

      • Deadly Sinner says:

        But that’s only the first, and how much money is he making off of it? It’s weird that he cares so much, since he doesn’t seem to care about UT, with the last one being 7 years ago, not to mention his leaving Epic. Jazz Jackrabbit would expire this July, but I literally cannot find any place that sells it. It’s not even on GOG (which seems like a no brainer) or the Epic website.

    • lorddon says:

      Broussard and CliffyB wouldn’t know a nuanced argument about copyright if Rowdy Rody Piper came up to them and was all out of gum.

    • jrodman says:

      What did he ever do of value? I remember broussard being a joke back in 1994.

      In case it isn’t clear, being a “Producer” of a game doesn’t necessarily mean you meaningfully contributed to it. Sometimes the role is instrumental. Sometimes it’s pointless.

    • Afterice says:

      my co-worker’s mom makes $66 an hour on the internet . She has been unemployed for seven months but last month her payment was $18894 just working on the internet for a few hours. try this……
      http://www.Jobs84.com

      • BGH122 says:

        This spam doesn’t even make sense. There are 40 * 4 working hours in the regular working month, for a total of 160 hours. 18894/66 is 286, so those ‘few hours’, are actually ~120 more hours than a regular working month. Of course, since there’s no online job which pays $66/h, why not just crank up the supposed hourly wage to something that lowers the number of working hours? Why not just claim you have a foolproof method of getting $200/h?

    • ShamekaSKeener says:

      my roomate’s sister-in-law makes $81 every hour on the laptop . She has been laid off for 9 months but last month her pay check was $16495 just working on the laptop for a few hours. go now …………….http://WWW.MAC30.COM

  2. rustybroomhandle says:

    I actually agree.

    And yet there are entire catalogues of old ZX Spectrum / C64 games that are still being held onto like dogs to a hunk of meat.

  3. GenBanks says:

    George Broussard sounds like an idiot… What happened to politeness.

    • Prolar Bear says:

      Exactly. In the meanwhile CliffyB totally seems to have missed the point.

      And yeah, while the notion of creative works becoming public domain in the face of copyright holders is a bit romantic, I agree with the article. Plus it’s always a shame when a game stops being distributed because of copyright and license issues.

      • bit_crusherrr says:

        I think CliffyB’s current job title is “Twitter Warrior”.

      • dE says:

        I’m quite surprised CliffyB didn’t jerk in a PC Piracy Argument. That seems to be his favorite pastime.

      • Aaarrrggghhh says:

        If you look at CliffyB’s tweets you will notice that missing the point is his thing…

    • Kein says:

      Greed are it,

    • Hahaha says:

      Amusing comment when you look at who the author is

    • Dinger says:

      If I can defend Mr. Broussard for just a second. Let’s ignore Walker’s point for a minute, and focus on that sentence:

      As someone who firmly believes in the public domain, and finds it instantly aggravating that games over 20 years old cost anything, GOG’s current Time Machine Sale pulls me in two directions.

      I’m sorry, but as an article lead goes, this sucks. “As someone” should be modifying the subject (“Time Machine Sale”), yet we’re supposed to read it as modifying the object (“me”). So, reading this, we expect the subject in the first-person and get the object in the first person in the object. So you have literally made your lead “all about me”.
      In that limited sense, Broussard is right. It’s an awful lead, and we expect better from you. By being able to post on RPS, your voice is already privileged; positioning yourself only draws attention to your privilege and, in so doing, makes your argument weaker. It makes me and many others else look immediately to the byline and judge you.

      That said, I agree that extending copyright to infinity is a huge drag on creativity. And at least GoG is taking the effort to curate these games and to provide support for them, activities which have a cost and should be supported. So I don’t fundamentally disagree with either posting, but I will say: John, you can write better leads than that in your sleep, while having that surreal dream involving a battleship made of hamburger meat.

      • Kitsunin says:

        I don’t get why the first sentence has to be referring to the subject in the title of the article?

        The headline tells you the bare facts, it might as well say “TIME MACHINE SALE ON GOG”. Going from that to “As someone who…” shouldn’t leave you confused as you’ve now moved from title to actual article, in the same manner of a book titled “The Bog-Meister” of which the first sentence doesn’t automatically carry the Bog-Meister as its subject.

        • Dinger says:

          As someone who tried to explain himself clearly, you don’t seem to get my point. Maybe you too should try to explain yourself clearly.

          • Kitsunin says:

            I must have misunderstood. I thought you were saying that because the title refers to the sale as the subject, the first sentence’s subject should also be the sale?

          • thebigJ_A says:

            He was pretty clear, and addressed precisely what you wrote. “As someone” is in no way expected by readers of English to modify the title of the article.

          • Dinger says:

            Uh, my point has nothing to do with the title of the article (“subject” is a grammatical term, referring to the sentence itself, and having nothing to do with the title. Now go re-read what I wrote. I apologise for grammar not being taught anywhere in the world anymore). “As someone” sure as hell is intended to modify the first noun that comes after it, especially if that’s the subject of a sentence. If that’s not the case, it’s a poorly written and confusing.
            “As someone who thinks cars are for children, Ford shouldn’t sell automobiles” is grammatically poor and only works to the degree that we assume “As… ” modifies “I think”.
            So, Broussard is right. The first sentence sucks, and sucks demonstrably. If you’re gonna use that as your lead, you’ve given the reader no reason to look further.
            My statement is independent of the validity or even interest of the author’s point. As a professional, you shouldn’t do that. Yes, you’re granted a bad day; but I find it difficult to fathom that Mr. Walker would put up a combative follow-up post without even observing that he had a downright shitty lead. You have to respect the craft, otherwise all you’re left with is “tu quoque”. And we’ve had that lame-ass argument forever.

          • PikaBot says:

            Your example is indeed grammatically poor, but only because Ford is, or at least easily could be, a person’s name, meaning that it’s unclear whether the “someone” who thinks cars are for children is the speaker or Mr. Ford. Additionally, you’ve heightened this ambiguity by excluding any direct pronoun reference to the actual referent, making fit seem as though it must refer to Mr. Ford, even though logically that doesn’t make any sense. In John’s sentence, neither of these are issues: he includes the direct pronoun reference, and there’s no ambiguity because The Time Machine Sale is very obviously not a person’s name. There is nothing grammatically or stylistically wrong with John’s sentence.

            Despite your protestations that it’s other people who are confusing the terms, your argument only makes sense if you have conflated grammatical and rhetorical subject – or at least are arguing that not using the rhetorical subject as the grammatical subject of the opening sentence is a faux pas. Which simply is not the case. It’s a common and effective rhetorical strategy to open up not by speaking about your subject, but about oneself, whether it’s to position oneself relative to other perspectives or ease the reader in with an amusing anecdote. John’s sentence is indeed all about him, rather than the sale, but that’s an observation, not a criticism.

          • Dinger says:

            First, any style manual will tell you: “If the grammatical subject and your rhetorical subject are different, the sentence is weak.” Second, any sentence that begins with a long prepositional phrase that relates to a noun on the other side of the sentence is broken. If the best defense you can muster is “well, the reader knows the phrase can’t modify what it grammatically should, because, on reflection, applying logic, the phrase can’t work that way”, then you have effectively conceded my point. Third, injecting first-person does not make a statement more effective; rather, it makes it less effective. “I think the sky is blue” is weaker than “The sky is blue”. “Wot I think” as a title plays with this rhetorical weakening, but Walker’s lead doesn’t. It’s just lazy, and assumes the privileged position that we, the readers, give a damn about what he says. Well I do, and I don’t mind pointing out that the opening sentence is a journalistic abomination.

          • Kitsunin says:

            As a writer myself, let me tell you something: Style guides are just that, guides. You don’t have to follow them to the letter of the law and if the sentence reads fine while breaking one or even two it doesn’t automatically make it a poor sentence. The sentence reads just fine, sure it’s not an example of fantastic prose, but it is in no way confusing.

            Because we are reading a news article written by a person and where “as someone”‘s subject is immediately clear, there isn’t a problem with the structure. This is how we English speakers speak, guides to making your prose read better be damned.

            You can certainly argue that it’s poor journalism to focus an article on your own opinion about something, but RPS is not that kind of site, and I think that is clear enough you can stuff that opinion.

          • PikaBot says:

            And any style manual will also be a silly waste of paper, as they always have been, useful only to those most boring of assholes, the people who use grammar and official-seeming ‘rules of style’ as a club to denigrate others, and then look around as though expecting those around him to shout ‘zing!’.

            Good thing there are none of those around.

      • hotmaildidntwork says:

        Unless Mr. Broussard’s tweet has been severely misinterpreted (which seems unlikely given his other tweets) that was the most irrelevant and pedantic defense that I have ever seen.

    • snegtul says:

      Politeness was murdered by Twitter.

  4. afarrell says:

    “But I also want to stress that these are my thoughts-in-process, and not those of RPS’s hivemind.”

    Then I’m not sure why it says “Editorial” in the title?

    • Nevard says:

      …because “These are the thoughts of the editor, and not the communal belief of the production” is the literal meaning of the word Editorial?
      Like, you have basically just written out a definition for the word “Editorial” and then asked why it is being called an Editorial.

  5. Cheese Wold says:

    Clever, instead of attacking a straw man, you set it up so the straw man is attacking you.

    • Grey Cap says:

      It’s game journalism by an angry Socrates.

    • Dunbine says:

      Sounds like a good video game. Screw Steam Sales, I’ll wait 20 years to play it!

      • Gap Gen says:

        Scarecrows are the new zombies.

        • Aaarrrggghhh says:

          Wait, what? I thought it would be the Nazis turn again?!

          • Gap Gen says:

            What is this, Q4 2013? Get with the times! By April you’ll be crying blood at the release of yet another scarecrow shooter. Or maybe it’ll be the upcoming blood-eye pandemic, hard to tell.

    • djbriandamage says:

      I totally agree with John’s conclusion but your comment perfectly describes my feeling as I read his article.

      “…this doesn’t directly translate to astonishing sales that will keep the original developer in caviar-coated Jaguars for the rest of their lives…”

      Jaguars and poverty. There’s no middle.

      • Thurgret says:

        I initially read the last line of your post as poverty and jaguars.

      • SlevinT7 says:

        I have tons of respect for anyone that can coat a Jaguar with caviar and not get their face chewed off unless the Jaguar is dead.

    • KDR_11k says:

      I guess if he’s made of straw it’s no surprise that he didn’t finish DNF.

    • Kitsunin says:

      Oh get off it. You could argue that anything not directed as an argument against a specific quoted sentence is a straw-man after the fact.

      Those are arguments that I see constantly and while sure he’s not allowing for a rebuttal within his opinion piece, that’s kind of just the format. It’s his opinions, put down for our consumption, not a formal argument.

  6. Grey Cap says:

    I think there’s a significant problem with John’s time-frame: many games are parts of a long-running series, and whoever’s making those sequels wouldn’t want to be competing with their own, public domain work. Especially now, when graphical enhancement is stagnating, I’d be scared that (for instance)my studio’s game Murder Quest I (2014) would enter the public domain and hurt the sales of Murder Quest XIV (2034).

    • Drake Sigar says:

      The time frame seems negotiable. What’s important is that copyright law badly needs to be updated and big companies in entertainment industries shouldn’t be able to maintain a death grip on all the ideas for eternity.

    • Arvind says:

      Well, I’m sure any competent studio can make lots of improvements to their game in 20 years, so that Murder Quest 2034 blows the original out of the water.

      • dahools says:

        I think its the fact that murder quest XIV will be a holographic projection out of my hover board which i will play when i am travelling down the road (in the hover lane of course), whilst laughing at those old nostalgic idiots stuck indoors on those primitive head sets of decades ago, what were they called again? oh yeah occulus rifts!

        I doubt there would be a sales impact somehow.

      • keithzg says:

        I dunno man, Murder Quest 2021 was kindof the pinnacle. It was all downhill from there. And don’t even get me started on Murder Quest Reloaded. “Back to basics” my ass!

        But yeah, to be serious for a moment, there’s something a bit pathetic about the argument that it’s unfair for companies to have to create new works to stay relevant as businesses. Sadly neither CliffyB nor Broussard have worked on any truly classic games in at least a decade, so bitterness and fear of irrelevance may be no small part of their motives here. Relatedly, I remember being a partisan of Unreal back in the Unreal vs. Quake days, and I still maintain that UT is a superior game to Quake III, but the fact that John Carmack has since open-sourced all his old game engines (allowing tons of amazing original works, and also the appreciated drugery of making sure those older games still run fine on modern systems), and he’s still trying to stay at the forefront of gaming technology by first helping and now outright joining Oculus, while Epic’s games don’t even work right anymore in modern OSes . . . well what can I say, times have changed and I see the two companies very differently now.

    • vinipc says:

      I dunno man…
      I’d say that after 20 years, you ought to be moving on to something different, maybe?
      Or, if you’re making a game that actually competes with one released 20 years before, maybe the new game is not that good…

    • yobokkie says:

      Surely 20 year old games in a series would be better suited as a cheap promotional tool? And if they’re scared about direct competition of the old games it would be simply admitting that the game hadn’t progressed much in 20 years, which would admittedly be likely when call of duty 24 gets gets released.

    • Sparkasaurusmex says:

      Of course they don’t want to compete with the older games in the series, they might have to actually try to make decent sequels!

    • psepho says:

      It’s an interesting problem. I wonder how they dealt with it in the old days when copyright terms were shorter? It would be interesting to know if Shakespeare saw competition from his own early classics like Henry IV when he went on to release Henry VIII.

    • Kushan says:

      John has wrote a really great article here, but he’s missed a very important distinction. He’s asking for Games to be made public domain, but he doesn’t really talk about the IP behind the games. Let’s say, for example, that Duke Nukem went into the public domain – that doesn’t mean that Duke 3D, Manhattan Project, DNF, etc. are all suddenly public domain now, nor does it mean that someone else can release their own Duke Nukem games. The game itself might be public domain but the IP doesn’t have to be.

      • Shuck says:

        But that is what public domain means – that you can create new work of that IP. For book series that are half-in half-out of public domain, there’s nothing preventing authors from creating new works that use the characters and plots – they just can’t use story elements or characters from the books still under copyright. In the game industry, there’s often not the same developers working on sequels (nor much in the way of story or character continuity), so if someone else wanted to use the IP to make a new game, there would be very little difference between the “official” and “unofficial” sequels. Of course, since it’s quite rare for a studio to survive to do 20+ years of sequels, this would mostly only affect publishers, who would be incentivized to focus less on long-running IPs. (Which seems like a plus, frankly.) On the minus side, we’d be seeing a bajillion “Doom” games now.

        • Amun says:

          But I’d love a really good Doom sequel right about now. How is that a bad thing? =p

          • Shuck says:

            Good luck finding it in all the terrible Doom games, though. And there’s nothing stopping anyone from making a good Doom clone-sequel right now – they just can’t call it “Doom” nor have identical monsters (just the really similar ones you often find in games).

          • Malibu Stacey says:

            And there’s nothing stopping anyone from making a good Doom clone-sequel right now – they just can’t call it “Doom”

            Seemed to work out fine for Croteam so far.

    • KDR_11k says:

      If you didn’t add anything significant in those 20 years then yes, that can be a risk. However with the way games are developing I kinda doubt that. Even with games that are deliberately similar to their ancestors like the New Super Mario Bros series that’s not a major factor (because people have already played the old Mario games to death anyway and buying those anew won’t give them new content like buying the new game does). Chances are that if your old game still holds up then people have 100%ed it dozens of times already and want to see something new, if it doesn’t hold up why would people play it over your new game?

      Hell, did the existence of things like Spring RTS kill Planetary Annihilation?

    • tetracycloide says:

      On the other hand free access to earlier titles in a series can help people ‘catch up’ to paying the full price at release for whatever is next. Plus this while argument essentially boils down to denying people access to culture because you make more money that way which is pretty shitty anyway.

    • denialanderror says:

      I would argue that releasing a game to the public domain after 20 years would actually be the best thing for a (good) long-running game series. This could be a great chance to gain some series loyalty from: 1) gamers who normally play a different game genre and aren’t willing to risk spending money on trying something new; and 2) a new generation of gamers who don’t have disposable funds available to spend on ALL of the new releases.

      If you loved the first installment of a series, you’re much more likely to be that person standing in a line outside a video game store at midnight anxiously waiting to buy the latest sequel (I know the midnight release reference will probably be archaic in 20 years, but you get the point).

    • DodgyG33za says:

      I also think there is a problem with Johns time frame. It is too long. If a game hasn’t made its money in 10 years, it is unlikely to do so.

      So set the limit at 10 years. Allow a single five year extension for a significant fee (say 10′s of thousands) to allow for true exceptions which should have to be justified on the basis of an ongoing commercial operation. And bobs your uncle.

      Remember that the company can still trademark the name. And others can already clone software. Angry birds is a clone of an older rescue the maiden medieval siege game for example.

      This is just about the executable. I would apply the same to all IP, although personally I prefer the kick starter model of developing cultural capital. It makes us all into mini-patrons.

    • Devan says:

      @Grey Cap
      Actually, I would challenge the validity of that concern. If your 2014 game is good enough to compete with your 2034 game then presumably it was a very successful game and you’ll have earned more than enough profit from it, so I think that’s fair. Then, if your 2034 game is actually less attractive to a 2034 audience than the 20-year-old game, then it sounds like that audience simply doesn’t value that product very much and therefore you can’t expect much return from it in a capitalist market.

      I know you’re being hypothetical and don’t actually expect your future works to be less desirable than the very old ones, but I think it’s a good example. This situation is precisely the type that I don’t think we should incentivise, where a publisher is just milking the franchise and characters by releasing crap that wouldn’t stand on its own legs without the IP. There’s no creativity or innovation there, which is arguably what copyright should exist to promote.

  7. Geebs says:

    1) I’m not sure you abandonware logic applies to the GoG thing – as mentioned before, in their case you’re paying for convenience in getting something to run in the first place; in the case of video games, that gets paradoxically harder the further away in time you get from publication, because of changes in hardware and operating systems

    2) lots of software developers come from the states. The states has shitty health care, and generally illness happens when you’re no longer working. I think everybody there is probably subliminally terrified of any source of income getting cut off after an arbitrary period. I can understand why they would be upset.

    3) The software patronage thing I’m not sure about. Trends at the moment seem to be that you can get kickstarted for anything as long as it’s a reboot of something you did before which was commercially successful and therefore has nostalgia value.

    4) actually, come to think of it, point 3) is often invalid; a lot of the nostalgia-backed kick-starters aren’t actually using the same properties, it’s all “laser sword” instead of “light sabre”

    5) on the other hand, “patronage” == “high-risk preordering”. Which is shitty for the consumer – especially considering how often we get reminded on this site that we’re entitled morons for pointing out that it’s shitty.

    6) I think the job analogy is bollocks, and the idea that you shouldn’t have to defend your assertion about why creators should not retain rights is a bit weak when you go on to defend it with an analogy which is bollocks. All you’ve really said is that you don’t believe in licensing, performance-related pay or the ability for people to agree on a variety of business models. Not really proof of anything.

    • Gap Gen says:

      Yes, I don’t think John is arguing against GOG charging a fee for rejigging old games to work on new versions of Windows. Rather, the argument is that the original versions of the code should lose copyright after a given period of time.

      • Geebs says:

        I’m revealing my programmer bias, but as far as cultural significance for me is concerned, I think that’s covered by “open source but still commercially available”

        • djbriandamage says:

          Free as in speech and free as in beer are different philosophies entirely, and you can have one without the other. Surely some developers would rather give a closed-source product away for free than to charge money for the open source, and vice versa. But thanks for bringing up this point – it’s a very important one.

          I wish John Carmack would reply to this article!

          • Gap Gen says:

            I’d compare what GOG is doing to publishers who charge for out-of-copyright classic novels. You can download a work online, sure, but if you want a paper copy that you can read after the apocalypse has taken all our tablets and e-readers, then that option is available.

          • Geebs says:

            @djbriandamage

            I wish John Carmack would reply to everything

      • DrMcCoy says:

        The rejigging of the old games GOG offers was most often done by DOSBox and ScummVM people, completely free of charge and free as in speech.

        • WrenBoy says:

          While that is a very good point, I do like and am willing to pay for GOGs continued tweaking of games, the ease of finding the best and most complete working version of them and the convenience of downloading them anytime from GOGs servers. Of course since copyright is still draconian GOG have to include this in the pricing also.

          While its not really an argument for or against games entering the public domain, Im convinced that GOG is indirectly playing a large part in the recent nostalgia kickstarter games. How many backers of Eternity and the new Torment game have not bought PS:T from GOG? How many backers of Wasteland have not bought/obstained free of charge the Fallout games from GOG?

        • Risingson says:

          I still don’t know what to think of this subject, but maybe… maybe this: I prefer that GOG sells old games with dosbox and scummvm incorporated and people pay for them. Why? So people give them value. So people know that effort costs. If not it will happen what happened to music.

    • Ooops says:

      Yeah, and more generally, in many countries, if your lifetime income have almost essentially been derived from creative works, you get only very minimal old-age pensions, usually far from enought to have a decent end-of-life.

      I think abandoning the right to get paid for your creation in your lifetime shouldn’t be mandatory. It’s a personal decision, that is made by an increasing number of creators anyway.

      • Aaarrrggghhh says:

        This is here it comes back to the individual creator and doesn’t really apply to games most of the time. Who of the original devs is still being payed from those GOG and Steam sales? To a large degree the original studios do no longer exists and it’s publishers sacking the money from other peoples work, just because they hold the rights to the IP.

        • KDR_11k says:

          Also even if the company still exists that money isn’t going to the creative people who made those games (even if the lead people get a share what about the other 300 people on the team?), it goes into the corporate coffers, probably being paid out to people who never even knew the original existed.

    • psepho says:

      Patronage doesn’t have to be about pre-orders. Patreon, for example, works on the basis that you value a particular creator enough to sponsor them personally, rather than a specific product that they are making.

    • Thrippy says:

      GOG would not exist if not for Home of the Underdogs, the largest of the abandonware sites. Whenever a physical copy of a game, new or used, could be found for sale, HotD dutifully linked to that vendor. I believe CD Universe grew into the largest vendor, scouring existing stock inventories wherever they could be located, usually in small quantities.

      Abandonware could not have existed if not for publishers categorically refusing to pay for additional production runs, so that games could continue to be sold. New and used physical copies of games routinely grew in scarcity until illegal digital copies remained the sole survivor as a means to continue distribution.

      Sometime after that, I noticed publishers, like EA, reissuing games in classic editions on store shelves. Sometime after that, GOG saw an opportunity to compete in the marketplace against CD Universe. How GOG managed to cut deals with those first few publishers, after years of obstinate disinterest, is probably a very interesting story.

      At times GOG does very little to absolutely nothing in repackaging games to work on modern platforms. Many of the patches are identical to unofficial patches distributed on Usenet or HotD itself so many years ago. Sometime patches were written by the fans or the developers themselves working from home. Usually developers were happy to their games survive in a small modest way through the tiny community of abandonware enthusiasts. No one expected any money. Games simply stopped making money. They never resumed making money. It was illegal altruism backed by many grass roots man hours made possible because people who made money saw no money in it, and thus did not care to act.

      GOG is not evil. I don’t recall any friction with GOG’s rise in popularity, only mostly relief that abandonware had a newer, stable source. Profit lends more stability than the uncertain future of volunteerism, covering operating expenses with donations and out of pocket.

      The demise of physical media made classic gaming conceivable but I’ll always know that abandonware was the catalyst enabling publishers, vendors, developers to realize, with glacial slowness, how they could make money from a new emerging market of classic games. Fringer will always remain one the Internet’s early heroines who could perceive what others could not.

      • Geebs says:

        Good point about the differences in costs for digital distribution making GoG possible. On the other hand: Nintendo was cynically re-releasing everything on every new platform before HoTU was a thing, and was probably more instrumental in getting EA to recognise a money spigot.

      • Noelemahc says:

        You win seventeen Internets for remembering HotU. Another major thing The Underdogs did that people forget about was ASKING game creators or other IP holders for permission to host their games, and quite a lot of them not only gave permission, but also decided to make their games PD.

        As an abandonware enthusiast/collector/former major site administrator, I am torn between blindly praising the article and saying “but what if the game escapes the abandonware clause by being offered by SOMEBODY, be it the original rights holder or not?”.

        So for the craptons of people asking if Mario would be PD: No. Because Nintendo re-releases Mario games, ALL Mario games, for practically every console they put out. Heck, the 20th Anniversary of Super-Mario-All-Stars was in actuality the slightly modified original SNES ROM put onto a Wii disc with a proprietary emulator!
        Look at their Virtual Console offerings: virtually every single Mario game is there, excepting the PC exclusives, and I’m sure that Mario Teaches Typing will be released on 3DS and WiiU as soon as Virtual Boy support is added and its library of games is exhausted.

        • Malibu Stacey says:

          No. Because Nintendo re-releases Mario games, ALL Mario games, for practically every console they put out.

          It’s not only the old Mario games. One of the main reasons I refuse to buy a Wii is because of Virtual Console. You can get Super Metroid, A Link to the Past & other SNES classics on it & I really can’t afford to spend even more time playing games unless I give up work or sleep (the other main reason being the new Legend of Zelda games exist which would also leech all my waking time for months).

      • sinister agent says:

        This. HOTU was the greatest hero of the games industry so far this milennium. That nobody ever writes about it is a terrible act of neglect.

    • AngelTear says:

      From the article, in answer to point number 1.
      To those who interpreted my previous article as claim that GOG shouldn’t be able to charge for much older games, that’s entirely not the case. I’d just like GOG to be able to charge for their own work, and not to have to then include costs for the license they’re paying to whichever corporation owns the copyright on the game for which they had nothing to do with the creation.

    • Shuck says:

      As to point number two – Cliffy and Broussard are in positions of extreme privilege, relative to most developers. Most developers are work-for-hire in studios where the publisher likely owns the IP anyways. They’re not getting revenue from games directly, if at all. They’re lucky, if they’re still working at the same studio, to get a bonus check or two for their work on a hugely successful game. Many studios have lay-offs after completing a game, and most don’t survive 20 years. (The irony is that most of the DNF developers, for example, were paid below-market salaries while being promised profit sharing that never came.) Indie developers, on the other hand, generally don’t make much from even newly released games; the income from most 20-year-old games wouldn’t be worth the effort needed to keep it available for sale. The handful of indie, developer-owned games that will still have any demand in 20+ years are going to be the rare ones that have already made their developers a comfortable retirement.

    • programmdude says:

      I would love for games to be released open source after a certain amount of time. I have been playing might and magic 6-8 and heroes 3 lately, all of them could be so much better with people improving the engine so it runs better on modern machines. There is only so much patching you can do with only binary access. It isn’t going to hurt the company, 3DO has been gone for years, it’s not going to hurt EA, I’m still not going to buy their crappy newer versions.

      This is why any game I make will be released as source within about 10 years. So if they do get popular and have a fan base, people can continue to improve it. It’s unlikely that it would hurt sales of future sequels, either the sequel is good and has lots of sales, or its bad and people are going to play the older one regardless of the source being released or not.

  8. Gap Gen says:

    It’s also worth noting that the rights to a lot of older games are no longer attached to the people who created them – stuff like Alpha Centauri, I think, is owned by EA, not Firaxis (or indeed wherever Brian Reynolds is working, the SM in SMAC not withstanding). I think there may also be titles that only exist in pirated form or on ebay, whose copyright holders have no interest in distributing them for sale. Of course, a developer is entirely within their rights to develop an amazing game and then burn the only copies at a press conference as long as they don’t violate any contracts while doing so, but it’s a shame for creative works to languish in purgatory because their publishing rights are locked in a filing cabinet in a disused bathroom in the basement marked “beware of the leopard”.

    That said, I suspect this won’t happen particularly soon given the strength of media conglomerates in Western countries, and as you have alluded to, Cliff Richard has a vested interest in paying lawyers to maintain copyright on their older songs.

    • P7uen says:

      Totally agree, anyone who has delved into abandonware will have experienced similar thoughts. Would love to give money so Greatgame McOldman but some corporation now owns the publishing rights and some other conglomerate owns the IP blah blah blah.

      Do people argue what seems to be a more realistic side which might be “I believe corporation XYZ deserves to profit off the work I did 20 years ago”

    • Feste says:

      Then there are games which no-one knows who owns the rights to. I think Planescape: Torment was in that situation for some time, and the excellent Hardwar is another. 20-30 years would be some time to wait, but at least they would revert at some point.

    • Themadcow says:

      Funny you should mention Firaxis because my first thought reading this article was that the talented individual (Julian Gollop) who designed and created X-Com, didn’t seem to have any awareness that Firaxis had been given the gig to make a sequel to his game until well after the deal had been done*. It’s a very good example of how copyright applies in the games industry and the lack of protection given to the creator. What if Firaxis had messed up the franchise? That’s damaging a brand he created, developed and is forever associated with… and totally out of his control.

      * I’m saying that from memory – please correct me if I’m wrong

      • Gap Gen says:

        Ha. But sure, there are plenty of examples – Chris Roberts and Total Annihilation, Bohemia Interactive and Operation Flashpoint, Relic and Homeworld. Plus the issue of games being a collaborative effort – it’s not like Gabe Newell wrote Half Life 2 on their own in their parents’ garage.

    • taristo says:

      This is the case very often, for instance almost the entirety of the Psygnosis catalogue went over to SONY when the studio was bought, now that it has been disbanded (SCE Liverpool) a lot of their games and franchises like Discworld, Lemmings, Wipeout fell to SONY and are just sitting there like crates in a big warehouse full of “Intellectual Property” of the SONY Corporation, possibly to never resurface again and nobody that was originally involved in the creation of said software will ever get another penny if that will be the case.

      In some cases software can even get lost if it wasn’t for piracy, this is a rather interesting article since big corporations often don’t even know they “have some IP” or couldn’t care less: http://technologizer.com/2012/01/23/why-history-needs-software-piracy/

      Another very good example is Disney, they just amass IP like a sponge and some will lie there unused as a side effect of some recent acquisition. They recently bought Lucas Arts for Star Wars. Do you think they will make use of any of the other IPs like Monkey Island, Day of the Tentacle, Loom, Full Throttle and so on? The people responsible likely don’t even know they own them, nor do they likely care because they have Star Wars now.

      And there’s always the “hole of Copyrighted works” as it appears for instance in Amazon charts of works that aren’t in Public Domain just sitting there and barely getting used, marketed or sold while the interest in and amount of works entering the Public Domain is just that much higher: http://www.theatlantic.com/technology/archive/2013/07/the-hole-in-our-collective-memory-how-copyright-made-mid-century-books-vanish/278209/

      ”Last year I wrote about some very interesting research being done by Paul J. Heald at the University of Illinois, based on software that crawled Amazon for a random selection of books. At the time, his results were only preliminary, but they were nevertheless startling: There were as many books available from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.”

    • jrodman says:

      The IP-warehousing trend is probably the best argument aginst indefinite copyright really. If indefinite copyright really only enriches IP-warehousers and not actual creative people, then what is it really for?

    • Sleepymatt says:

      “are locked in a filing cabinet in a disused bathroom in the basement marked “beware of the leopard”.

      Douglas Adam’s inheritor is so going to sue your ass for using his copyrighted idea you know… it’s another 57 years before you can use that line so flippantly!

      Which by the power of Googleskull brings me to this remarkably apt article….

      Douglas Adams vs copyright

  9. yobokkie says:

    Brilliantly put sir… Other creative media that can’t be reproduced and resold over and over doesn’t make profit for the creator beyond the initial sale. Think of any art work, once it’s sold the artist gets his money and that’s it. Yes it is a little different but surely after 20 years the original creator has got as much money out of the thing as they will and it wouldn’t be the end of the world? 20 years of reward for a job is far more than 99% of all the other jobs that people do.

    • frymaster says:

      “Other creative media that can’t be reproduced and resold over and over doesn’t make profit for the creator beyond the initial sale”

      I’m confused. Games very much can be reproduced and resold over and over.

      • yobokkie says:

        Yes I’m saying that other medium like a statue for example, that can’t be reproduced and sold over and over, (unlike games) only make profit for their artist at the initial sale. He doesn’t profit from it for the next 20 years. It still makes sense to me when I reread it? :-)

        • frymaster says:

          “unlike games”

          Your first statement says the exact opposite. It said games were “creative media that can’t be reproduced and resold over and over”

          • yobokkie says:

            “Other creative media that can’t be reproduced and resold over and over doesn’t make profit for the creator beyond the initial sale.”
            I’ve reread this I don’t know how many times but it still says to me “other media” as in “NOT GAMES!”.
            AS IN: Media that can’t be reproduced through whatever means (IE: WE ARE NOT TALKING ABOUT GAMES HERE IN THIS SENTENCE AS THEY CAN BE REPRODUCED) doesn’t continue to make profit for the creator after the initial sale. AS IN: A statue which some creative genius makes is sold once and doesn’t profit the creator for 20 years thereafter.
            So I don’t know if you’re being a troll, just don’t do English or maybe are an English Major who’s being some form of vague, inside-joke grammar Nazi, but that sentence communicates my point just fine…

          • frymaster says:

            ah, I think I see. I was interpreting it like “all of the other things that share this characteristic with games” not “other things, that aren’t games, share this characteristic”

            Genuinely not trolling. A comma after “media” might have helped.

    • Moraven says:

      As are Art reprints.

      • yobokkie says:

        Ok but an art reprint will never fetch the same as an original, and artists don’t pump out millions of the things to be resold, if they did the price for each would be virtually nothing. And that also only applies to flat paintings, not a statue or sculpture. Any way you slice it, for a lot of the creative world the artists is paid initially for their work and that’s that. Game developers produce a product and upon release people buy into that, it’s unrealistic that they should still demand profits from it more than 20 years later. That creative ad executive who made that brilliant advert got paid what he was owed and doesn’t expect to get paid for it again. The journalist who wrote that expose on corruption that shook the world, got paid for doing their job and won’t get paid for it again. It’s incongruous that certain creative outlets should be treated as a once off payment, but others expect lifetime benefits. Especially ludicrous when you consider how far games have moved in 20 years. 20 year old music can still be relevant but a 20 year old game, even a very good 20 year old game is still going to be really dated, I can only think of a couple of 20 year old games that I would genuinely enjoy playing now, and none that I would want to pay more than $5 for.

      • TechnicalBen says:

        As supply reaches infinite, costs of distribution and copying reach zero. Demand also reaches zero, thus both costs and market price dictates a price of “zero” for the “work/copy/art”.

        Add to this, as supply reaches infinite values, prices reach the lowest amount, sales also reach infinite levels. Thus with an infinitesimally small price, a worker/copier/artist can make a living wage off it.

        This is an ideal though, assuming perfect markets and stuff. But it’s not imaginary. Current indie and digital distribution examples prove it. Take MC as an example. Distribution costs scale to almost zero per copy, thus the creator gets a higher level of income per sale, thus they can price lower, thus customers have less barrier to the purchase etc. The artist ends up with millions at the end of the day, plus trickle purchases cover more creative development. This is even so considering piracy of Java (MC is written in) makes copying MC at zero cost trivial. The game made millions even though it had a competitor that offered a litteral “free” alternative “copy” of the artistic work. It’s customers were (in 99% of the cases, I’m assuming there though :P) wanting to pay the wage of the creator of the work.

        So all in all, yes, a “copy” or “print” may provide some value, but less than an “original” or a “limited” distribution. We are living in a time where the limits to lots of products for the number of copies of the scale of distribution is artificial only. As there is no limit to copying or distribution.

        If the horse and cart become obsolete, they become obsolete. If Youtube makes a movie producer obsolete, then it sadly does, as we all become movie producers, and the market becomes saturated by consumers producing items for them selves.

        There is no “magic bullet” to the problem of getting paid for the work done. But there is a requirement to find a demand for that work and a need for it to be done. That is not always the case with creative works (of any type of media). So I do not see an ability to demand a price. Though I understand we do consider different ways to apply ownership.

  10. GallonOfAlan says:

    I can see an argument for still being able to make a dollar from the likes of Duke Nukem 3D, but $5.99?

    DN3D is 18 years old, released in 1996. So if we were sitting in 1996 and looking back 18 years, we’d be looking at 1978 and the Atari VCS. Would it have seemed reasonable to be charging $12.00 for VCS games ?

    • frymaster says:

      a game’s either under copyright or not. You can’t say “sure, you can charge, but only what I want”. If you were arguing they shouldn’t make any money at all, fair enough, but otherwise they have the right to charge a billion dollars (and make no money, because they’re stupid) if they wish

    • -Spooky- says:

      .. and we need eye cancer, from this kind of engines these days? Sry, sir .. Computer says: “No!”

  11. torchedEARTH says:

    I wish I could come to your aid but quite frankly I am not clever enough. I will point out though that:

    “There are very few cases of developers making their living from the profits of games made 20 years ago.”

    is why this state of affairs is unlikely to change any time soon. If there were NO cases, then you might have a stronger argument right there. As there are some cases, then people are getting paid for very old software and I am sure they like that very much.

    We can be happy that certain developers, R* as an example, do indeed give away some of their older games for free. Let’s hope their attitude propagates further into the industry.

    I personally see any artwork I do as fleeting. I deliberately draw on post it notes and weekly magazines because I know everything turns to dust over time and time is relative.

    As an article, it is well thought out and I hate twitter being used for a reasoned response to anything.

  12. CheekyLee says:

    I completely agree with John, here. For future reference, there is a simple way of knowing what the right side in any of these debates is. Pick the side that Cliffy B isn’t on.

  13. AbigailBuccaneer says:

    So just to confirm, you think that game developers should have their soup kitchen meals slapped out of their hands while you spit in their face, right? :)

  14. RPSRSVP says:

    Seems to me the gents in question jumped to conclusion, reacted before fully digesting John’s thoughts.

  15. Pundabaya says:

    Bravo. A healthy culture requires a healthy public domain.

  16. zachforrest says:

    Great article. John Walker! Rational and romantic *swoon*

  17. bokkiedog says:

    John Walker, this is disgraceful. You wouldn’t keel a Tsar! I wish to unsubscribe from your despicably piratical organ forthwith. To whom shall I send my torn cheque?

    Anyway, I think it best to quote Lord Camden in his 1774 Judgement:

    “If there be any thing in the world common to all mankind, science and literature are in their nature publici juris, and they ought to be free and general as air or water. They forget their Creator as well as their fellow-creatures who wish to monopolise his noblest gifts and greatest benefits. Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties for the common welfare of the species? Those great men, those favoured mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which Heaven meant for universal benefit: they must not be niggards to the world, or hoard up for themselves the common stock. We know what was the punishment of him who hid his talent; and Providence has taken care that there shall not be wanting the noblest motives and incentives for men of genius to communicate to the world the truths and discoveries, which are nothing if uncommunicated. Knowledge has no value or use for the solitary owner; to be enjoyed it must be communicated: scire tuum nihil est, nisi te scire hoc sciat alter. Glory is the reward of science; and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the world with their wretched productions; fourteen years is too long a period for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his PARADISE LOST, he did not reject the offer and commit his piece to the flames, nor did he accept the miserable pittance as the reward of his labours; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless of profit as others are rapacious of it, and in what a situation would the public be with regard to literature if there were no means of compelling a second impression of a useful work! All our learning would be locked up in the hands of the Tonsons and Lintots of the age, who could set what price upon it their avarice demands, till the whole public would become as much their slaves as their own wretched hackney compilers.”

  18. frymaster says:

    Can I just say I really don’t like your technique of setting up a straw man to address your comments to, especially when you berate it for not keeping up with your arguments. I’m also confused why you keep going on about “ideas” which have literally nothing to do with copyright.

    I agree that copyright length should have a strict expiry date. I also think “fair use” needs to be much more explicitly defined, and laws like DMCA and the European equivalent tweaked such that efforts to keep games in a runnable state for archival purposes aren’t hampered. But I still disagree with a lot of your arguments.

    • John Walker says:

      I can assure you that none of the statements to which I reply are “straw men”.

      • bokkiedog says:

        They are. Every single person who has repeatedly and tediously made those “objections” to your arguments obviously has a head filled with straw. I mean, it’s clearly not neurons.

      • frymaster says:

        I am aware the points raised are, in and of themselves, points that people have raised. But when you link them conversationally with “amusing” asides about how patient you’re being, it begins to leave a sour taste

      • SRTie4k says:

        Creating your own opposition from your interpretation of a couple of Twitter comments is most definitely a straw man.

        If there was anything of substance of the opposition’s argument, I assume you would have posted it in this article over the snide comments you created yourself as a stand-in for your opponents.

        • Thurgret says:

          Creating your own arguments is quite an old tradition, where writers have set up a supposed opposition to their view to have an argument with. Perhaps more familiar as a narrative scheme where each involved party is assigned a particular name and identity, I guess.

          • SRTie4k says:

            Yet it’s still a logical fallacy.

          • jrodman says:

            Uh, it’s.. not a logical fallacy unless you are actually implying the position of specific people is as you state.

      • MichaelGC says:

        Even the “ugly” one? Boooo.

    • Damien Stark says:

      I also clicked this link having already been in complete agreement with John’s premise, and found myself actively put off by the argument itself. That said, the Internet requires a new term, straw man isn’t quite right. For nearly any argument, no matter how ludicrous and far-fetched, you can find some angry commenters on the Internet who claim to believe it. So it can’t really be called a straw man. But specifically engaging the ludicrous comments and excluding the reasonable ones is essentially the same process as fighting straw men.

      If you’re serious about making an argument and convincing people, you engage the strongest and most serious of your opponents.

      I think the most powerful point here is the one that Gap Gen raised – even under the existing system the artists/creators/developers are almost never getting paid for sales of their work 20 years later anyway. With music, sure I imagine Cher gets paid when someone buys her songs today. But no matter how many copies of Startopia I purchase, Mucky Foot and its founders aren’t getting any richer.

      • jrodman says:

        Selective presentation of opposing views isn’t the same as a straw man, but the two things do bear comparison.

  19. Eddy9000 says:

    I’m not really sure how copyright inhibits creativity, surely if used well it forces people to innovate rather than imitate? The ‘workman fitting a lightbulb’ argument is pretty weak also, a workman DOES get paid everytime they fit a lightbulb in the same way that a dev gets paid evrytime a game is sold, people do not pay for a game everytime they play it in the same way as a workman doesn’t get paid with every use of said lightbulb.

    So I pretty much disagree with most if the article, but yeah, a bit of politeness in debate goes a long way. John, did anyone tweet more thoughtful rebuttals than the pointless and boorish ones you used here to represent those that disagreed with you?

    • John Walker says:

      I’m quite at a loss as to how to better explain the workman analogy, unless you think his turning up to work each day to carry out brand new acts of manual labour in different places is the equivalent of sitting still in a chair while a shop the other side of the world sells another copy of your game.

      I’m also intrigued to learn how I’ve been impolite. Yes, I received a range of responses on Twitter, but it made sense to highlight the one from the very famous man in the games industry, that called my writing “so god damned stupid” and called for me to be fired. I was responding to the fury I received in response to my comments. There was no need to respond to the people who agreed with me, because, well, they agreed with me.

      • Llewyn says:

        I’m also intrigued to learn how I’ve been impolite.

        He didn’t suggest you had.

      • frymaster says:

        I believe he was referring to the impoliteness of the people who replied to you

      • Eddy9000 says:

        Easy there, I was referring to the respondents you quoted being impolite rather than yourself. The important thing about debate is that a diversity of views are heard and rudeness just shuts them down. It was in the interest of hearing a more diverse selection of views that I asked if anyone who rebutted you made points that you thought were worth considering, rather than just insults like the examples given.

        I also think it is important when using metaphors to represent arguments that what they represent can be debated. In this case I think you’ve confused your metaphor. The workman is not analogous to the developer, rather he is the distributor of the lightbulb and analogous to a game distributor. The person that made the lightbulb is more akin to the game developer, and both people are paid a small percentage for every unit moved by the distributor. If you’re at a loss for a better way to put it then that’s okay, but it hasn’t convinced me.

        • FriendlyFire says:

          Let’s go over this super extra slowly.

          The lightbulb producer does the following work: create the lightbulb in a factory.

          The game developer does the following work: make a game.

          The lightbulb producer is paid once, when the bulb is first sold to the consumer. That bulb can then be used indefinitely at no extra cost (until it burns out).

          The game developer is paid each time someone obtains a license for their game. They’ve only made one game, but they’re being paid many times for it.

          By making the equivalence that one copy sold is the same as one bulb sold, you’re confusing who’s doing the work for the copy sold (hint: the developer has nothing to do with it).

          • Eddy9000 says:

            No, I was refering to the person who designs and patents the lightbulb, not the manafacturer of it. And i dont see why the method of production should be a factor in the rights of a designer to profit from their design. And if you’re going to use snarky language like “super extra slowly” then I’m really less inclined to think you have anything of interest to say.

            The fact is that patent and copyright don’t just help big developers and designers, they stop people like zynga with huge marketing, publishing and manufacturing resources taking ideas from less empowered designers and using their resources to capitalise on an idea that wasn’t theirs. The fact that they often have more money to ‘patent troll’ is a problem, and one that is rightly called out, but that is the problem, not copyright law per se. Under Johns 20 year rule Zynga could publish a straight copy of ‘jet set willy’ as an app for the iPhone right now, and I don’t see how that would be helpful to anyone. Consumers would not benefit from an original idea, and the original dev who worked single handedly from his bedroom would not profit. Hard work 20 years ago is still hard work.

          • Henson says:

            The game developer seems less analogous to the producer of light bulbs than to the designer of light bulbs. This is the problem with analogies: we quickly confuse the situation.
            I guess that’s why Mordin didn’t care for them. “Hate metaphors. Get doctorate. Have real conversation.”

          • njursten says:

            Though gameplay or game design isn’t protected by copyright, is it? Only the art and sound would be, in this case. You can still make clones, just not using the same sound and art.

            And, I see no iPhone Jet Set Radio game, so I guess a lot of people would benefit from it, being to play that game on their iPhones. Well, I guess me not even googling to see if there’s an iPhone version would explain why I’m not seeing it.

            Edit: Oh, right, the story is also copyrighted.

      • Malibu Stacey says:

        I’m quite at a loss as to how to better explain the workman analogy, unless you think his turning up to work each day to carry out brand new acts of manual labour in different places is the equivalent of sitting still in a chair while a shop the other side of the world sells another copy of your game.

        Well lets invert that analogy shall we?
        Since you posit that “a plumber demanding a fee every time you use the tap he installed in 1992″ is unreasonable, how about a developer or publisher is only allowed to charge for one copy of their game? I mean they only made one game, seems unreasonable for them to be allowed to charge multiple people for multiple copies of the game right?

        Good luck finding one person to pay for that one copy of the game when development costs run to hundreds of thousands if not millions of pounds.
        I suspect if any creative industries worked in this way, none of them would exist beyond the purvey of enthusiastic amateurs.

    • Gap Gen says:

      I don’t know whether copyright rewards innovation over imitation – after all, it’s perfectly legal to make a very similar game to another game, as long as the two products are clearly different. Stuff like patents and trademark would presumably cover that. What it might cover is if someone decided to sell a fourth Hunger Games book, or make a game called “Command and Conquer: Tasty Biscuits” without consulting the copyright holders, but this is a fairly limited thing (and indeed it’s not like Tsiolkovsky was wrong for using Romeo and Juliet’s name in their work).

      I think John’s argument was that copyright is in general there to ensure that creators are paid for their work, but that profiting directly from work you did 20 years ago is quite rare in other fields – an electrician does work every time they fit a lightbulb, but a developer does no work every time a game is sold; their work is done beforehand. I agree that copyright and maintenance work are different things in other aspects, and that creating something represents a risk, since you aren’t sure to make a return on your work, whereas the electrician is contracted to be paid for a certain task. The question isn’t whether creators have a right to be paid, but at what point that work is considered open for fair use, since all work becomes public domain at some point.

    • frightlever says:

      While I’m pretty much aligned 100% with John’s opinions on this, he’s not exactly being polite in his rebuttal either, is he?

      The irony of what Broussard is claiming is that he isn’t really doing any of the heavy lifting in making these games. The developers toiling in the code mines are on a salary and don’t see any residual payment (AFAIK). He’s tackling this from the viewpoint of someone who is paying other people to put together a portfolio of intellectual property which he’ll be able to exploit for years afterwards. Basically, he’s aspiring to be Interplay. Which is funny.

      Anyway, you’re (yes, YOU) arguing against your own best interests by tacitly defending copyright the way it is now. The way it is now will seem like paradise compared to the way it’ll be in ten years time if people aren’t mobilised to protect and ideally extend the public domain. The public domain belongs to every man and woman as a right and we should be jealously guarding it against the greedy depredations of copyright holders.

  20. kael13 says:

    Broussard is a pillock and those comments are yet another example of greedy entitlement.

    And it’s not just video games. Lots of Disney properties have been due to enter the public domain, but they just keep moving the goal posts to have it fit, despite most of their work being derivative of past culture.

  21. -Spooky- says:

    ["I'll never get over the culture that doesn't understand that developers need to eat and have mortgages and that games cost money to make."]

    What the ..? Developers – they are already grabbed by greedy companies like [insert rnd huge Corp. / Publisher here]? Splitted up in other teams or get, in the worst case, totaly closed (poor WipeOut Studio for example)?

    I´ve huge feelings for this old devs, they are going in full indie or on a kickstarter release these days. *throws the benjamins on the monitor*

    END of story!

  22. Ny24 says:

    Awww …. you just got walker’d, dude!

  23. Ooops says:

    While I certainly don’t agree with the toneof Broussard, I agree with him that forcing a creator to abandon his/her rights after X years is a terrible idea. It’s a terribly selfish idea, and sounds a bit like spoiled children to me.

    There are already more quality games in the public domain (or not in PD but freeware) than one can play in a lifetime. Aside from hardware, you can game for free for all your life. Why do you feel like you absolutely need more free games?

    In my country, Belgium, and I suspect this is the same in many others, if you’ve only earned money thourgu your creations, when you reach retirement age, you’re only entitled to a very minimal pension allowance, one that isn’t enough to live decently. That’s the time when you need income the most and that’s precisely qhen you want to deprive the creators of revenue.

    It’s not the most stupid thing I’ve read, not by a long shot. But it’s not a good idea nevertheless.

    • bokkiedog says:

      Oops: It’s a mark of a spoiled child that he be happy to share his toys with all the other children, isn’t it.

      “Creators” don’t have rights because we want to pat them on the head. Copyright was meant to be a PRAGMATIC restriction on the DEFAULT freedom of cultural sharing, for which culture quickly and efficiently got more cultural goods in the public domain as “payment” for this temporary monopoly against its natural rights.

      It is well within a culture’s rights to re-visit that pragmatic deal to determine whether it’s getting ripped off.

      • Geebs says:

        Not to invalidate your flying spittle, but you didn’t actually address his perfectly valid point.

        • bokkiedog says:

          Could you delineate precisely which bit of my spittle was flying? And could you enunciate precisely which “point” you wish me to address?

          • Geebs says:

            1) the bit in ALL CAPS where you said that SOCIETY is being ripped off by THE CREATORS
            2) um, the point made in the post you replied to (hint: it’s in the post you replied to)

      • Ooops says:

        Geebs is right, you misread my point. I’m not saying this is not a valid debate. I’m saying I don’t agree with the side of the debate that’s championed by John.

        And in my book, a spoiled child isn’t happy to share. That’s why it’s often referred to as a spoiled brat. One’s inclanation for sharing is usually not proportional to the size of one’s possessions. I used the spoiled child analogy because I suspect most people who will champion this public domain idea will do so because they feel they are entitled to have everything given to them for free. (I say that in general, I reckon John’s argument is more subtle than that)

        • pepperfez says:

          I know you’re trying to be reasonable, but talking about spoiled children and entitlement in this context just makes me blindly furious. Expanding the public domain isn’t some kind of handout to the lazy, it’s restoring the system that has profited humanity for its entire history before the mid 20th century.

    • John Walker says:

      It’s interesting that you equate arguing saying that we should share things, with spoilt children. I’m fairly sure it’s usually the other way around.

      • Geebs says:

        You must have had a very sheltered childhood. I still have brick marks in the back of my skull from children who wanted to “share”

        (also: do not pick holes in the use of idiom on the internet. Just ‘cos everyone has surprisingly good english doesn’t mean they are.)

        • Aninhumer says:

          It wasn’t a criticism of idiom use, it was a response to a rhetorical analogy by turning the analogy on its head.

      • Henson says:

        I don’t think that ‘sharing’ is a good word to use, since the action described is compulsory. When sharing becomes mandatory, I cease to see its unassailable value.

        Or, to quote Ultima V: “Thou shalt donate half of thy income to charity, or thou shalt have no income.”

        • pepperfez says:

          Well, except John doesn’t accept the idea that indefinite copyright is an actual ownership right. It’s not that he’s calling for people to be forced to share their things, he’s pointing out that those aren’t their things to begin with. Copyright is a gift given (by society) to creators, not something they’re owed.

      • Ooops says:

        In this article, you’re not advocating for sharing. You give the example of YOUR writing that YOU decided to share and I can only applaud to that. But the rest of your article want to make it mandatory. At that point, it’s not about sharing, it’s about forcefully taking from others.

        The spoiled child analogy is that you demand that everything in the shop is given to you, without considering the costs (in the original idea, the cost for the creator, in the analogy, the cost to the parents).

        • DXN says:

          The point is that ideas, designs and other forms of creative output are never entirely our own; they are always derived in some measure from the ocean of creativity and ideas that we as a species/culture have been producing for the past few-thousand years. If this store of shared cultural ideas is too tightly restricted by greedy, selfish creators, we’re all worse off, including, or even especially, artists.

    • KDR_11k says:

      Isn’t that pension thing because you didn’t pay into the public retirement fund either?

      • Gap Gen says:

        In the UK, if you’re self-employed you still have to pay National Insurance, which covers pensions. If you don’t pay into NI for enough years, you aren’t entitled to a pension, I think.

      • Ooops says:

        It may be (in truth, I don’t know), but it doesn’t matter. I have never said creators should get a bigger old-age allowance. I said they shoud still get revenue for their creations.

        • KDR_11k says:

          But usually they don’t since most works lose relevance and commercial viability rather quickly. You should save money for your retirement, copyright or not because if your book stops selling you don’t wanna live on the street right?.

    • Pete says:

      I’m a software developer. I write code for a living.

      I have no idea whether any of my code will still be of any value when I retire, but it’s not relevant because none of it is my intellectual property to start with. Like a majority of working programmers, my IP belongs to my employer. There is no question of me relying on IP rights in my retirement; I write code, at the end of the month I get a paycheck, and some of that goes in an actual pension. This is the coding equivalent of being a session musician.

      The same is true for the vast majority of people who’ve actually worked on creating a game, especially the big AAA titles with hundreds of staff. None of them get any pay beyond that of the months they work on the game, and even that isn’t adequately compensated for the hours in that month (ea_spouse passim).

      For one-man-band indies, yes it’s different. But the income is still so very heavily frontloaded – with kickstarter, you can even get paid before you create.

      My personal preference would be an actual abandonware law: if something has been sold to the public, and you stop selling it for a sufficient period of time (a year?), you’ve declared it commercially worthless and it should go out of copyright. (You can think of loopholes, but you can also think of fixes for those loopholes).

      Or, like a Georgist land tax, an IP witholding tax on sufficiently valuable IP.

    • LordEvilAlien2 says:

      Nobody is forcing the creators to give up anything. it was just an opinion.
      How many 20 years old games were sold last year? How many did you see in the shops? How many did you buy? How many creators are making useful revenue off of 20 year old games?
      If you are working for yourself or a private company you have to make plans for your retirement. invest in a proper pension. if you don’t you will be entitled to a pittance from the state – this applies across the board.
      Releasing these old games into the wild is not to provide more free games – like you said we have more than enough already – it is to set the ideas free to inspire future creative efforts. it is good for the creators too- it gets their name out there (especially in the days of kickstarter). it can only be good for the future of gaming

      • gwathdring says:

        It should be noted that some mediums have a longer profitable lifespan than others. Games from 1994 are much more out-of-style than films and books or even albums from 1984. 20 years isn’t necessarily a good fit for every industry, though it’s by no means a bad place to start and it’s not as if your typical book or album of film is going to raking in cash 20 years from now.

    • Xen Monkey says:

      Creatives should do what the rest of us do. Namely pay into a pension and save for the future. Aging happens to us all

    • Ich Will says:

      If someone hasn’t done anything useful i.e. a “creative” hasn’t made something that anyone wants to buy for the last twenty years of their working lives, why should they get a large pension again?

    • FriendlyFire says:

      I’ll flip that on its head: it’s childish and selfish that you keep your works to yourself when, by and large, those works are as much under influence of the culture around you as they are from your own mind. The culture shared with you, it’s only polite to share back. This is pretty much the whole idea behind open source and it works pretty darn well.

      The argument of the number of games is so ridiculously pointless that I don’t even understand how you brought it up. Should we make a quota on the number of games to enter the public domain while we’re at it? This isn’t about quantity or being spoiled for games, it’s about the notion of sharing back to the culture that shaped you. There could be 10 games or 10,000,000,000 and it wouldn’t mind one single bit.

      If you’ve only earned money through copyright and were stupid enough not to actually set money aside (you know, like every working person), then you’re stuck living on a pittance, yes. I don’t see why that’s a problem.

  24. Low Life says:

    Facts:
    It is currently not possible to buy Jazz Jackrabbit.
    Video games shouldn’t enter public domain, because that means its developers can’t afford to eat.

    Conclusions:
    -> Cliffy B is receiving as much money from Jazz Jackrabbit as he would if it was in public domain.
    -> Cliffy B can’t afford to eat.

  25. Earl-Grey says:

    I wish I had something constructive and clever to contribute with.
    But all I can say is that I wholeheartedly agree with you, John.

    And I feel I must add that writing like this is why I have been visiting this site countless times per day since you started back in 2007.
    Bravo, don`t ever stop.

    • Earl-Grey says:

      And what the blazes happened to common decency?
      This Broussard comes across as a right nana.

      • Dances to Podcasts says:

        Interesting how developers reflect their games. Or was it the other way around?

  26. pasports31 says:

    Great read.

    I guess I can see both sides of the argument. I still tend to lean toward the developer’s side, though. I’ll compare to my own occupation:

    I’m a social worker (intensive case manager). I link services to clients and counsel them. That’s the service I provide. My company gets reimbursed for every “unit” (15 minutes) of service I provide. Obviously, once I provide a unit, they don’t continue to get reimbursed for that singular unit. I believe one unit of my service, however, is analogous to one sale of an old game (let’s just say Tomb Raider). One copy of Tomb Raider can be looked at as one unit of service. Similar to how I don’t continue charging for a single unit I provided in the past, once a consumer buys Tomb Raider, they don’t continue paying for the game – they’ve paid for their unit, and that’s that.

    I think some of these analogies don’t quite make sense – for example, you’re correct, a doctor doesn’t keep charging for a single surgery they do on a patient – that’s one sale, and then they’re done. But once another patient comes in and needs the same surgery, they make another sale. Just like how when Tomb Raider is sold to one person, that’s it – that person no longer needs to pay for the game. But when a new person wants Tomb Raider, they must pay for it. Just because their work was done in the past doesn’t mean they shouldn’t get paid for it when NEW customers want to benefit. Just like how if a surgeon does a surgery 20 years ago, they don’t get paid now, but if a new client wants that same surgery, they don’t get it for free.

    • RedWurm says:

      I think it’s a problem using analogies based on some kind of physical work being done – I agree that a later sale isn’t somehow of less value than an immediate one, but the surgeon doing a second operation could equally be compared to a developer doing a second game. I also have some sympathy towards the developers’ side of the argument, but without some major changes to the way the industry works it will be a tiny number of developers who would still make any kind of income from their old work, while gamers who may be interested often cannot even legally obtain a copy.

    • GROM says:

      as a fellow social worker here’s an analogy that makes more sense. after 20 years you lose your right to earn money on your advice, methods and experience you have accumilated over this time period. now everyone who wants will be able to consult your clients, they can charge what they want or they can even do it for free, because hey, it’s in the public domain. they can also use your experience, methods or advice in any way they want, bending it to their own worldviews. sound good to you? I can assure you it doesn’t sound good to me.

      also all the analogies in this article are far fetched and non compareable. I’m not a proponent of indefinite copyright but this arbitrary 20year rule is BS. what if you’re george RR martin who just recently got his big rise to fame. does he lose the the right over his first book, or over the IP? can we expect other compagnies to sell his first book because it’s public domain now? can we expect them to remake his first book, because it’s public domain now? I don’t see the answer there, just a rant about how utopia should look like.

      John can look at this from his high and mighty principal standpoint all he want, it doens’t change the fact that a lot of people who make a living of this will get the shaft as well

      • pepperfez says:

        Isn’t that pretty much how social work actually works? Like, there’s no IP protection on professional best practices, and anyone is free to offer services to your clients (subject to professional regulations, etc.) at any price. And honestly, if your methods are that effective, fuck you if you don’t think they should be widely used. There are people who could be helped!

      • Sunjumper says:

        GROM first of all public domain would not stop you from working. You are still a fully qualified professional with decades of expirience and you would still have a core of people who relie on you.

        Furthermore your knowledge and expirience and all your knowhow would not be suddenly in the open for everyone else to absorb. You still mantain your professional postion and your knowledge, hopefully protecting you against being fired so that someone younger than you can replace you.

        What John was trying to say was that in your case, if you came up with a great emthod of making your work much more effective you should have the right to it, have it protected and get paid for it for say 20 years so that you see some financial reward for what you have come up with until it then goes to the public domain so that everyone can use it, modify it or extrapolate new methods from them.
        The new method is your cration, it will be paid and protected for quite some time.

        What you are arguing for is that every creator should have his creations secured and get reimbursed for them everytime they are used. The money will keep flowing even after thier deaths and this will go on for at least 70 years, better yet for ever.
        If we take your job what ever that may be, you’d have to pay licence fees for everything you have ever learned and every method you have learned reimbrusing the original creators. Even after finishing your education you will have to continualy keep paying your teachers, and everyone else whose knowledge, inventions and ideas you are using on a day to day basis.

        • GROM says:

          I feel pretty stupid actually for comparing this to doing social work, because it’s nothing like it. I guess I was pretty annoyed at the stupid analogies being thrown around that just don’t make any sense. providing help or a service is not something that can be copyrighted. I certainly didn’t get into his line of work to make money, because if I did I’m in the wrong bussines.

    • FriendlyFire says:

      That argument doesn’t fly for one simple reason: the game developer does not work more when more copies are sold.

      You get paid $X/hr. That’s a fixed payment for a certain amount of time worked.

      Game developers work a fixed Y hours and then receive a potentially boundless payment. The payment is entirely disconnected from the Y hours worked. If they sell 1 copy or 10,000, they get paid more, but they’ve not worked more.

      This is why comparing a game sale with any form of actual work is pointless.

      • pasports31 says:

        Then technically shouldn’t only their first sale get them money? Since they only write a book once, or produce a game once, there should never be any additional money made beyond the initial sale, right? Do you see the lack of logic there? I’m not denying that it’s an imperfect analogy, but how else are we supposed to compare creative output to hourly output? It doesn’t make any more sense to set an arbitrary end date of “Well, your product that YOU made and YOU should own the rights to has been out for 20 years, so now it’s free. It’s no longer yours, despite the fact that you made it, not me. Now it’s mine because it’s been out for two decades,” than it does to compare my field to a creative field. And where does it end? Should I walk into Walmart and expect to get my vitamins for free because they’ve been around forever, so they’re public domain now? I guess I now own the entire series of Star Trek: The next generation, now that it’s been out for 20 years. It just doesn’t really make sense.

        • FriendlyFire says:

          No, because that’s what this debate centers on: to determine just how long is an acceptable amount of time for which the author should be paid. Not that long ago, before the recording industry arose, artists weren’t even paid for that copy at all. They’d get a patron to pay them to create works, but they wouldn’t sell those. Didn’t stop some of the most brilliant works from being produced, did it?

          There ALREADY IS a set length of time for which authors get paid, after which point the works becomes public domain anyway. The thing is that it’s too long, and that some people want it to become infinite.

          Also, once again, you’re not understanding what “public domain” means. It’s still your idea, you still get to profit from it, you still get your name attached to it. You just don’t have the exclusive right to profit from it. Is that so hard to grasp?

          • pasports31 says:

            The recording industry arose in the late 1800′s. That’s long enough ago where it’s irrelevant to our conversation. So is the fact that many great creative works were done in the past with little financial incentive. You’re right, people will make great creative works regardless of money, but that’s an irrelevant point when it comes to whether or not somebody DESERVES to get paid. And I DO understand what “public domain” means. It means it’s available to anybody, and no longer protected by copyright. So basically anybody can use it without permission or having to pay for it. That basically means it’s no longer yours, since anybody can use it whenever they want. Sure, you CAN profit from it, but who is going to pay you when they don’t have to? I know if I made a movie or a game or wrote a book, I would want all the money I can get from it – I made it. I don’t care if it’s tomorrow or twenty years from now, why should somebody else get to use the things I made without my permission?

          • Sunjumper says:

            First: of all you would get paid for many years so you get to profit from your work.

            Second: if you wrote a book and I loved it and 20 years pass and that book goes into the public domain and you wrote a new book that is set in the same world as the first one I would go and buy your new book. I certainly would not buy some fanfiction rip-off.

            Third: many authors are paid if at all a flat-rate for their books and they don’t see royalties for quite a while. If the books do not meet sales expectations or are to slow to sell the story ends there. The publisher retains the rights, the author doesn’t see another dime ever again and the book will remain out of print at the very least until it is in the public domain again.

            Fourth: if you do write a book you will be using inspiration from many sources, which strictly speaking you should not be allowed to do because you will be stealing the ideas of other people. If you find a clever way to write it in a way that according to the law you are not infringing on somene’s IP what you are doing is taking advatage of a loop-hole, but you are still stealing the ideas of others.

            The idea of the law is to protect you for a fair amount of time so that you can profit from your work to hopefully make a living (most artists never get to that point), after which the ideas enter the public domain so that they can grow and prosper. It also protects you as an artist because everytime you draw inspiration from someone else you are able to do so, which allows you to continue your work publish more and secure a healthy income ontop of that of your earlier work.

          • gwathdring says:

            Sunjumper brings up a very important point, which I’m going to use as a spring board.

            The instances where creative works continue to be profitable after long periods of time and would suffer substantially from people copying what it does well and riding the bandwagon are exceptions. This whole line of argument, in my view, suffers from the delusion that in America causes us to believe we have to preserve people’s path to unfettered fortune just in case one of us common folk becomes Andrew Carnegie all of a sudden. Most authors are not J.K. Rowling. We should not design our system primarily to protect J.K. Rowling because what that ends up doing is protect the publisher and harm the creative industry until such a time as another J.K. Rowling comes along in which case it is protecting one sodding solitary person at the expense of restricting the many. Rinse and repeat. That’s just so backwards to me. Why do we feel the need to expend such energy to protect our more fortunate few when we could instead design realistic legislation that protected the whole system better rather than just it’s moguls and magnates? Why must the middle class always protect the upper crust on the off chance that some day they get there? It’s the same damn thing and it’s only somewhat less frustrating in economic policy surrounding art than in economic policy surrounding everything else.

            Because that’s the other thing: copyright is economic policy. We should think of it as such, not as some noble quest for the preservation of ideas. But I suppose even if we thought of it that way, it would still be designed utterly wrongly since currently it’s designed to protect the profits of the few rather than the ideas of the many and inventive.

            Finally, let’s return to J.K. Rowling and Stephanie Myer. Tell me … can you honestly say that their ideas have not been borrowed and bungled and stolen and copy-pasted and resissued? Their band-wagons not thoroughly overwhelmed so as to proceed down the bath at a mere crawl making dangerous creaking and buckling noises as it goes? Can you honestly say that copyright has prevented other people from profiting from their ideas? You cannot. So what *has* it done than? It hasn’t preserved their idea; it hasn’t kept other people from writing Teen Paranormal Romance so furiously following the Twilight extravaganza that it has become a whole damn genre shelf in Barnes and Nobles. It hasn’t crippled creativity in the industry nor has it preserved ownership and sanctity of the originator’s ideas. But has it protected the originator’s profits? Well, that’s a difficult question with cultural works–is Stephanie Meyer the originator? How original was her work? How much of it was hers? What did *she* legally steal as her many follow-alongs legally stole from her? What did she take without technically copying? Who’s work did she lean on? Whose advice did she take without more than an acknowledgment page mention if even that returned them? Further, has she not already been justly compensated? Has not her published raked in enough cold hard cash such that even she will never see a pittance in comparison? Has financial justice not already been done?

            Consider how copyright is used. Oh, no! I used the word “Twilight” in my title for “Twilight Haze,” a book about werewolves forming a college fraternity at the University of Washington in Seattle. Poor Stephanie Meyer and Stephanie Meyer’s publisher, they just must sue for me to cease and desist this travesty never mind the shelf in Barnes and Nobles filled with thousand more flagrant copies that avoid using this phrase, that name. That’s perhaps a bad example because with enough money I could probably win that one–but you get the idea. You’ve heard those cases. You’ve heard of those mass-mailings, those C&Ds, those desperate attempts to preserve a monopoly even against the least threatening targets. All this in the name of protecting some fortunate and extravagantly successful creator’s right to profit *decades* after their death which in turn came *decades* after they passed out of any danger of losing their precious window of opportunity to profit either because they succeeded and made it big or because their work had fallen into obscurity. Tolkien is long dead, but his progeny continue to man-handle his licenses and rights and keep a firm hold on his ideas which, while close to my heart, are hardly representative of particularly profound originality–rather they are representative of particularly profound creative *effort* and *labor,* effort and labor that–duly compensated or not, can no longer be compensated seeing as the fellow is tone dead. We need not preserve the profitability of his damn corpse as though he created something so precious and unique and fundamentally his own it needs must be encased in the creative and financial equivalent of museum glass, trotted out only when the curators need to make a quick buck.

          • Sleepymatt says:

            Pasports31 “The recording industry arose in the late 1800′s. That’s long enough ago where it’s irrelevant to our conversation.”

            Actually, had lifetime + 70 years been the norm in the late 1800′s, then it could quite possibly still be directly relevant in 2014. Assume a work created in the year 1895 by an artist aged 20, who lived to 80… that work would still be copyrighted for another 11 years under our current system, even though the artist’s children and grandchildren (and perhaps even great-grandchildren) are all also dead. Who exactly is life + 70 protecting now??

          • gwathdring says:

            @Sleepynight: It’s protecting Christopher Tolkien. ;)

    • TechnicalBen says:

      Yes, but if one of your customers gives a nice remark to a friend, off the counsel you gave, you do not charge them for it.
      If a patient from a surgeon then goes on to become a doctor, they are not recharged.
      If I make a copy of a game… I’d be? If I try to sell a copy of a game?
      That’s not to say we should be allowed to make copies, but it shows that media and copyright allows a producer to ask for royalties for anyone doing similar to their work. In other industries, a “plumber” cannot insist other plumbers pay them for “cutting a pipe like they would” or “fitting a bathroom like they would” etc.
      Media is paid for not for “production” but for “distribution”, unless you do it as a Kickstarter style (like they did most of history!) to fund the original production.

  27. Ztox says:

    Agreed John, awesome article. The comments from George and Cliff made me laugh, how silly.

  28. Orija says:

    If I didn’t believe that you should leave RPS, I certainly do so now.

    • frymaster says:

      while I wouldn’t go that far, I honestly don’t think John does his causes any good with these articles.

      • djbriandamage says:

        I often agree with John’s philosophy while disagreeing with his specifics but I greatly appreciate that he kindles the conversation. Games journalism is well established as buyers’ guides and industry news, so why not philosophical and legal discussion as well?

        Having said this, now I’m curious. Why should this article be the last straw for John?

      • P7uen says:

        I think openly discussing ideas quite often does causes some good. You expressed your ideas too, and lots of people read them and thought about them too. It’s a good thing.

        • Dances to Podcasts says:

          Discussing stuff is one thing, but you do wish the articles themselves were better constructed, as that greatly influences the discussion that follows as well.

    • grom.5 says:

      Ow nope.

      If I go on this website, it’s especially because you have much more than only tests with copyright/20 or general news.

      Everyone progress by asking and receiving question, not by putting your head in the sand and say everything it’s fine. Subject like this one make discussions which are really more profitable for peoples.

      You don’t agree with the problem ? Fine. That’s another opinion which help me to estimate my own.

      P.S : Keep on John. I am far to always agree with the subjects, but at least it always make me curious about it.

    • FriendlyFire says:

      On the contrary, this is why I want John to stay here. Articles like these get my complete and passionate support.

  29. KDR_11k says:

    My personal take is that copyright should lapse early if a work (or a close derivative of it in the case of necessary changes to keep the work usable) is not commercially available for a few years so that the public may reproduce copies before the last one is lost. Don’t wanna lose your copyright? Then make sure people are able to buy it!

    • c-Row says:

      I like that idea a lot.

    • Horg says:

      This would be a great solution for the games industry. That it doesn’t exist in law is just another example of how the law has failed to keep pace with technology.

  30. Kollega says:

    Okay, I have a serious question here. I don’t agree with every argument put forth here, but it’s obvious that something has to be done with copyright, because as it is, it’s practically infinite (not unlike Horace). And I even think that something could be done if enough people get up in arms about it. And here’s the question. The Civil Rights Movement in America succeeded because at that point in time, many people agreed that racial discrimination has to go. With the Internet promoting free sharing of ideas, is it possible that in the near future many people will agree that draconian IP laws have to go too? I’d like to think that it is possible, and even inevitable, but what does everyone else think?

    • djbriandamage says:

      I’d say this is already happening. Maybe it’s a generational thing. We have Pirate political parties not only forming but winning seats in governments. We have a generation of children that find iPads no more astonishing than hot water from a tap. We have 3D printers coming into the fore. The next era might be the age of duplication.

      In my opinion the next big battle won’t be “what is intellectual property” – it will be “what is property”.

    • bokkiedog says:

      Seriously, read my paper:

      http://ip.cream.org/

      It grapples with exactly the sort of thing you mention.

      • Kollega says:

        So, the suggestion you put forth is that we should let the corporations anger the public with their stupid laws to make public protest and cause a revolution in the way creative works are handled? I hope that if that happens, it won’t last for long, and will be more like the Civil Rights Movement than the Prohibition (since the latter lasted for 13 years before it was officially declared stupid and repealed). The scenario I’m picturing is that the public will grow more aware of such issues, and then some high-profile, clearly unjust court case will cause public outcry and start the wave of protests against draconian IP laws. That would probably be the best way for this to go.

        • Gap Gen says:

          Worth pointing out that the British public have been largely tolerant of insane libel laws for a while, and ultimately no-one turned over any police vans over the agreement of the major ISPs to internet censorship by default. I wouldn’t underestimate the public’s ability not to care about flaws in the legal system or about encroachments on civil liberty.

    • Vardas says:

      EDIT: Posted as answer by mistake, but nvm :)

      Very interesting article. And although I’m still not sure whether I agree with it (since I see the Creative work of Games as a creation, rather than an idea) I will say right now that Broussard sounds like a greedy man, too afraid that he will lose his money to actually consider any conversation on a topic. And I know Cliffy B is impulsive in his responses so nvm that, I like the guy nonetheless.

      @ Mr. Broussard:
      Rejecting or bashing an idea before you’ve even considered it makes you closeminded. Pausing to consider something makes you civil, and (newsflash) you don’t have to agree with it!

      If you actually stop and consider an idea that you are initially opposed to only one of two things may happen:
      1) Allow you to find sufficient reasoning in your own mind to reject the idea, which will only help reinforce your initial view.
      2) Convince you that the idea is correct and that you may be wrong in your opposition against it.

      So unless you’re scared that this opposing idea may actually make sense and sway your opinion I don’t see why you’d be so quick to dismiss it as foolishness.

  31. djbriandamage says:

    “I’m a romantic.”

    This is basically the the article in a nutshell. I bet this is true of almost every RPS reader, myself included. It can be countered with the inverse “I’m a businessman” as George Broussard and Sir Cliffenheimer have.

    I was chatting with Will O’Neill, author of Actual Sunlight, before his 3D Unity version release, and he expressed doubt about whether he’d charge for this version of the game. He felt that charging money implies a contract between customer and developer that he will be available to give perpetual support. “Your game doesn’t work on my Linux-based smartbong.”

    So why not make this the happy medium? 20 years of selling the game as-is, and if the developer wants to continue to sell the game they must make active efforts to keep it working on modern platforms. What do you think?

    • zachforrest says:

      pfft romantics among RPS readers? bunch of empircists subjecting every sentence to wikipedia analysis, more like

    • Blackcompany says:

      Now this…this has merit. This is a real, valid idea. In the event that all parties associated with a title have been contacted in good faith and asked to assume responsibility for keeping their software functional on modern platforms – and assuming those parties have refused to do so – one could make a case for the property entering into the public domain. That I could see as having merit.

      But simply taking away an author’s right to a game after 20 years? Why? So EA/Zynga/King.com can copy it wholesale, update the graphics and put another 20 year time stamp on it without recompense to the original creator? Cause that is, essentially, what you would usher in with this system.

      • gwathdring says:

        Once something enters the public domain, it doesn’t get another 20 years–they could put 20 years on the updated clone if they changed just enough about it (which they’d be savvy enough to do, of course), but the old game is still public domain so they wouldn’t have grounds to prevent, say, a fan-remake of the original game for modern platforms.

    • Shieldmaiden says:

      That’s how the original creator is supposed to be able to continue making money from their creation once copyright has expired. Or at least it’s the software version of the principle behind it.

      If I made Mega Facepuncher today and the copyright expired in twenty years, I could still make money selling Mega Facepuncher once that time was up, especially if I was still updating it and making sure it ran on modern hardware. Sure, people could grab the original Mega Facepuncher for free, or someone else could sell it, but they wouldn’t get my updates and support.

      The existence of pretty much every single digital distribution and streaming platform out there demonstrates that people will pay for something that they can technically get for free, if it’s easy, convenient and reasonably priced. Disney could still be making a crapton of money selling special edition Snow White blurays without ridiculous copyright extensions.

      • gwathdring says:

        Yes, all current copyright does is encourage creators (or more to the point their publishers) to squat on works and licenses and send out C&Ds–because they don’t have to worry about adding value to their product to keep it alive. They just have to keep shoving restrictions down their customers’ throats.

    • FriendlyFire says:

      You’re reinventing the notion of derivative works here.

      After copyright has expired, anyone is able to create a derivative work from the original work. This includes the original author. An updated version of the game would be considered a derivative work and would therefore be given protection through renewed copyright.

      The nice thing is that you don’t have to police it in any particular fashion, unlike all those sideways solutions proposed here. It all naturally springs from the notion of the public domain and limited copyrights.

  32. merle says:

    Well I agree so much with all of that, that I actually found the energy to dig my username out of the papyrus it was written on, not even bother to try to remember my password and changed it and log in to comment to say it. Given that people seem to have problem with those arguments even when applied to the more traditional fields of music and literature, extending them to VG will be an epic battles, but still…

    I do wonder though, how does it actually currently works? Each bit got their own authors (artworks, music, script)? A video game is not considered a cultural artifact anyway so the whole public domain thing is moot? Granted 70yrs after the death of a VG designer is still a long way away…

    • FriendlyFire says:

      It’s rather muddy for games because there isn’t one particular “author”, so technically it could be taking the last person from the dev team to die + 70 years, or perhaps they consider the company itself a “legal person” and thus it’s 70 years after the company shuts down if it ever does.

      The whole thing doesn’t really matter anyway because you can be sure Disney and others will be pushing for an extension (and get it, easy) when the date looms for them, which it will way before any videogame comes close.

  33. Koozer says:

    When you pay an electrician to do your wiring you pay for the parts and for their knowledge. If you call them out and they say ‘oh the problem is x you just need to do y’ and it’s done in 2 minutes with no parts, you still pay them for their expertise. Just because he may have used this knowledge before 20 years ago doesn’t mean he can’t now charge you for it. This is more analogous to software where you are buying the product of the creator’s knowledge.

    The 70 years post mortem thing is ridiculous though. Thanks Disney.

    • FriendlyFire says:

      The electrician still does work though. To make the comparison accurate, the game developer would have to come into your office and code the game for your computer specifically, thus accruing a certain amount of time worked for your copy sold.

  34. Wulfram says:

    Well, it’s ultimately about whether copyright is a natural moral right or not. If you believe in that moral right, you aren’t going to accept pragmatic arguments for a reduction, because it leaves things open for further pragmatic arguments for further reduction or even removal.

    • DXN says:

      So we can’t have any limit on copyright at all, because slippery slope? There’s such a thing as practical compromises worked out between two opposing parties…

      • pepperfez says:

        But if copyright is a natural moral right, why should “creatives” compromise at all? In that case, it really is just the leeching masses demanding a handout by way of state-sponsored theft.

        On the other hand, if we (correctly) take copyright to be an inherently pragmatic system of the government granting temporary, contingent rights for the good of society, then we can find the term that best serves everyone (while giving creators enough incentive to work).

        • gwathdring says:

          Indeed. Morality is itself a mere pragmatic shorthand. It’s there for people who don’t have the time, privilege or inclination to look past the surface of social regulation and into it’s purpose–flaws and all.

          Suggesting that something is a “moral” issue is just avoiding the discussion. It is not an argument. Morality is crafted–even if it were handed down by some higher power, such cannot have been done so perfectly or be proven so explicitly as to avoid the reality that morality is a structured, crafted thing to keep us on someone’s best approximation of the proper path while we’re too young, underprivileged, ignorant, or disinterested to think about it too closely for ourselves. Morality is very important and very useful. It is not and never will be an argument.

      • Wulfram says:

        If you consider yourself to own to own something, who would you be willing to compromise? Particularly when you’ve really been pretty successful in convincing the world as to your moral right.

        And I think the slope is inherently pretty slippy, because once you accept that this is a pragmatic issue, and that things being copyrighted is a loss to the rest of society, I don’t see how you justify anything like 20 years as the term. I think you’d be talking more like 10 before you start really stopping people form following creative careers. Maybe lower in PC games if you were to get more specific.

        • gwathdring says:

          The trouble with slippery slope arguments is that they’re next to meaningless. A slippery slope to what exactly? In what way is it more or less slippery than the alternative? Which direction of slippy-sliding results in bigger problems?

          The current system is quite clearly a slippery slope–Disney and it’s ilk have made that abundantly clear.

  35. petrucio says:

    I’m a developer myself, and I don’t agree there’s a ‘developer’ side to this, as some has said. I agree with John, and wouldn’t mind my games becoming PD after 20 or so years.

    One issue we would be facing to implement that is this: it’s becomming more and more difficult these days to dettermine a hard date for a game’s release. Has Rust been released? Would publishers leave their games artificially more and more time into the Early Access bin just to avoid hitting said release dates?

    • frymaster says:

      Strictly speaking I suppose it goes from when it’s written, so a steady stream of rust updates will enter PD in close sucession.

      Ditto the Linux kernel, which, if we settled on 20 years, would have already started becoming PD

    • Graerth says:

      “One issue we would be facing to implement that is this: it’s becomming more and more difficult these days to dettermine a hard date for a game’s release. Has Rust been released? Would publishers leave their games artificially more and more time into the Early Access bin just to avoid hitting said release dates?”

      How about “20 years from the day money was accepted first time in from customers” (so 1st cash shop sale, pre-order, sold game, hat or beta access).

      Sure this might pinch some time from these extended open betas, and kickstarted games might essentially lose more because you’re getting the money before you’ve even made the work, but again it’s just a number problem (i.e. make it 25 instead of 20 and everyone should got atleast that 20, unless they make another DNF turd and somehow manage to kickstart/sell it before starting development).

  36. Blackcompany says:

    Respectfully, Mr. Walker, I feel your entire premise is flawed. Your idea that games should just go freely into the public domain at or around the 20 year mark fails to take a couple of things into account.

    Firstly, someone – or a group of someones – made that game. Now, I will agree with you that it does not take monetary incentive to be creative. However, monetary incentive is absolutely necessary in order to set aside the time to turn creative ideas into concrete, marketable goods. Games take time to make – often years of time, for larger games. Moreover, they take years of time not spent doing anything else, including making money at other endeavors. As such, there is absolutely no reason why developers and publishers – as much as I loathe publishers – should not continue to profit years after the release of a game that took years to make.

    Moreover, gaming is already a copycat industry. Allowing games to enter the public domain after 20 years will only serve to compound this problem. I can see already a future wherein, every 20 years, publishers scramble to update and re-release someone else’s hard work with better graphics. And in your world, the people who created that product originally could not profit from this blatant rip off in any way, since their work has entered the public domain. If someone copied your article word for word 20 years from now and released it as their own work, you would be angry; you would demand recompense. Yet you ask that game developers give up their rights to their works.

    I share your desire to not see games fade into obscurity. I too am glad GoG is rescuing older games from this fate. At the same time, I am also glad GoG is making sure people continue to profit from their earlier works years later. If this allows developers to take a break now and then and spend more time with their families, then good for them. They worked hard; they deserve it. As for the cost of these older games…GoG has sales. If you think $10 is too costly for a game this old, avoid the purchase and wait. Should enough consumers do this, the price will go down.

    But asking developers to simply give up their rights to their work and sacrifice all profits from their creations no matter how those creations are utilized simply because 20 years have passed since the creation’s initial release is somewhat selfish.

    • John Walker says:

      Are you aware that

      a) developers in large groups get paid for the work they do, at the time they do it?
      b) they don’t receive a share of the profits from the sales of the game?

      Let alone that I’ve argued for a model where publishers “continue to profit for years after the release of a game”.

      But most of all, oh good heavens, how can you interpret this as selfishness?! I’m fighting so damned hard for an end to the current selfishness.

      • frymaster says:

        developers in those groups traded a regular paycheck in exchange for the rights to their work. In which case, the rights and rewards pass to the people who gave them that money

      • Geebs says:

        Doesn’t RPS get paid for advertising clicks/views from old articles? In which case you should surely be refunding the money, because you’re not getting paid at the exact time when you wrote it, since an article is really just a bunch of freely available words, a bit like a bunch of code.

        • c-Row says:

          Maybe if they would stop publishing articles for 20 years, but as I see it RPS is a single “game” that gets updated regularly.

          • Ich Will says:

            John never said that the rights holders shouldn’t continue to be able to sell the games – the analogy is that if an article John wrote 20 years ago was copied onto someone else’s website and they earned ad revenue from it, he wouldn’t stop them. Which is, correct me if I’m wrong, what he said in the article?

            EDIT: This was a response to Geebs

          • Geebs says:

            Good point. I misread the “at the time they did the work” thing. My bad.
            My personal angle on this is that I’d like to see the creatives continue to get paid (let’s face it, artists get paid for shit and it would be nice if they could get a windfall if they work on something successful, beyond the windfall of “not getting fired”) when their work is re-published. However, I’m not sure with the idea of those guys getting paid off for that work isn’t disingenuous coming from somebody who is in the position to be his own publisher because is initial outlay is essentially nil.

        • KDR_11k says:

          At that point they get paid for hosting them. I suppose you could try mirroring all old RPS articles and running your own ads instead if you wanna give this PD stuff a try. PD does not mean that you are not allowed to profit anymore, it just means you no longer have a monopoly.

        • Runty McTall says:

          Not so – to be consistent with his above argument he would simply need to not enforce his copyright against other people printing/displaying his writing (which he suggests that he is doing on the older aspects of his back catalogue). If people choose to come to his website instead of another to read what he has written then that’s perfectly fine.

          In the context of games – he’s not arguing for it to be illegal for creators (or whoever holds the legal title to the content, since these are rarely the creative people who actually made it these days) to make money off the works after a certain time, merely for them not to have a legally supported monopoly after a certain period has passed.

          By way of example, if I so choose I can go to a bookshop and buy a paperback of Oliver Twist. I can also go to Project Gutenberg and get it for free. Mr Walker isn’t arguing that it should be illegal for me to hand my money over to someone if I want to do so, either directly or by coming to their site such that they get advertising revenue.

      • Juan Raigada says:

        This is not true. Depending on the country and it’s jurisdiction, certain individuals (writer, musician, director) are considered “authors” of the product and therefore are entitled to their share of the obligatory 5% of authors rights. Even is the game is created under contract to a corporation. And they do receive a share since those rights are intransferible (no mater what the contract says). Now, I don’t know how this works in Britain, and definitely, in the US this is NOT the case. But in a lot of EU countries this is operative (it’s basically a translation of the model of film authors rights management to games, and it’s sort of recent).

        Although I see some merits in your arguments, what I don’t understand is why, instead of arguing that games should go public domain because in a lot of jurisdictions their makers see no share of the profit, don’t we fight for the right of those individuals to access their rightful share of the revenue? Let’s try to make things fair for the workers and then we think of the consumers. Otherwise we are making a bad situation even more unsustainable. The concept that creativity should be paid through a paycheck and not through percentages of shares (therefore taking into account the impact of such creativity) does not hold.

        I agree with the basic feeling that copyright law has been overextended, and that life + 70 years is outrageous, but I would never argue for something less than life OR 70. Because when an author wants their work to enter public domain, they can make it do so. This is not an imposition, but a protection. That the author should not have the right to choose, while he is capable to do so, is incomprehensible to me.

        Lastly, it’s important to stress the need for frameworks that make an industry sustainable, even if they are faulty in some respects. In Spain I have seen the disappearance of the professional musician (and the ongoing disappearance of the professional novelist) due to rampart piracy. It’s only amateurs and part-time performers/writers now, especially if you don’t count those who achieved professionalism before the 2000s. I would loathe to live in a world where only the higher class (with no need for sustenance) can commit themselves fully to creative endeavors, as used to be the case. I do not believe true creative output can be achieved with less than full-time commitment, except by extremely few individuals (among the extremely few already that are capable of worthwhile creative endeavors) in extremely specific circumstances. Again, let’s fix the problem of piracy (creators not being able to fully profit at all) and then we can talk of lowering the public domain threshold (because they profit for too long).

        As a sidenote: the article is full of paintings that entered public domain, but the protection of paintings (and works of “art” ) is even greater that any other cultural product, since authors get even a percentage of the resale value of their work any time their work is sold for a profit (droit de suite, EU law).

    • KDR_11k says:

      20 years leading to a copycat problem? These publishers copy ideas within two years. If it’s 20 years old then to them it’s only useful as a name to grab some publicity for their new game. What games were out there in 1994?

      http://www.mobygames.com/browse/games/1994/

      Now yes, there are an awful lot of games that have modern sequels on that list but how true are those sequels to their originals? How many games are actually still copying ideas from back then without taking a ton more from much newer games? Doom may get cited as the ancestor to modern shooters like CoD but the common pattern for an FPS has changed massively since then. Except for those who are deliberately going retro nobody is looking at Doom as a reference for what their new AAA FPS should be like. They are looking at games from last year instead.

      We’re at a point where an updated version of some of those old games would count as innovative again. Look at the new XCom, that didn’t enter into a massive pool of similar games, it was practically alone in its genre! How much competition was the new SimCity facing? Were people dismissing Space Hulk as “another one of those”? Are people currently tired of endless Mega Man X clones?

  37. tumbleworld says:

    As a professional author, with a lot of published works over the last twenty years, I couldn’t agree more.

    Despite what people are led to believe, ideas are not unique sparks of wonder that flash down, full-formed, from some protean realm, directly into the brains of the talented. Ideas come out of the soup of culture all around us, bubbling to the top at a handy moment to be scooped out and devoured. Picasso phrased this as “All art is theft”; Newton as “If I have seen further, it is by standing on the shoulders of giants”.

    The concept of a creative idea being locked away out of the culture for ever more by some greed-poisoned dragon is utterly abhorrent. The things we do, as creators, come out of the wealth of the idea-space networks supporting us. Refusing to admit that is cretinous, at best. It’s exactly the same as the rich old scion of a Boston banking family smugly declaring “Well, I made my billions on my own, so those pathetic ghetto brats are just being lazy.”

    • frymaster says:

      I’m sorry, talking about ideas is all very well but it’s got sod all to do with the matter at hand. You can’t copyright ideas. All art may be (idea) theft, but the lack of artists being sued into oblivion suggests it’s not copyright violation.

      • pullthewires says:

        Surely it has everything to do with the matter at hand because it illustrates that copyright is often arbitrary nonsense – unless you are able to pinpoint exactly when an idea becomes art.

        • frymaster says:

          copyright is about the expression of the idea – the exact words used, the exact 3D models and textures etc. If Romeo and Juliet had been in copyright at the time, West Side Story would not have infringed it. Minecraft doesn’t infringe infiniminer, and that’s a brilliant example of a game author being proud to take inspiration from someone else’s work and making something new from it. Quake 3 Arena doesn’t infringe Unreal Tournament’s copyright. I could go on.

          • pullthewires says:

            You see, it still seems bizarre to me – like expression is protected because it’s the part of the ‘idea’ that interacts with the world. But why should the first person to express an idea in a certain way have that monopoly, and why should certain efforts be given this extremely special protection when the work of most people isn’t?

      • FriendlyFire says:

        What is “intellectual property” if not a set of ideas determined to be off-limits by anyone but the ones who thought about them first?

    • vivlo says:

      Precisely, Picasso said “good artists borrow, great artists steal” :)

  38. pullthewires says:

    The current state of copyright and the way it’s moving seems to be based on an assumption that there is no such thing as shared culture.

    • pepperfez says:

      The current state of western government pretty much denies the existence of a shared culture, so no surprise.

  39. malkav11 says:

    It’s gotten to the point where I couldn’t convince my parents that it’s unreasonable for the creator’s -children- to continue to live indefinitely off the copyright from the creator’s work. I agree with John generally speaking, particularly because of the way copyright is hindering the preservation of older games whose rights are either being sat on or are in legal limbo, but I don’t necessarily object to the idea of life-of-the-creator copyright or some reasonable facsimile thereof if it’s a corporation. But FFS, what possible benefit does the common good derive from letting people who had nothing whatsoever to do with the creative work continue to have arbitrary control and be funded by it?

    • KDR_11k says:

      I’m not too happy with a death-of-author cutoff because that may encourage homicide.

      • Ich Will says:

        Presumably you would be happier if the state seized all your parents assets on their deaths then.

        • malkav11 says:

          I would be completely fine with that. I make a living on my own and have made no life decisions with any expectation of inheriting anything from my parents on their death, especially since that will hopefully be many decades away. I don’t think it’s unfair to expect other people to do likewise if they have any capability to do so whatsoever, and if they don’t there are societal provisions to deal with that.

          But that’s rather beside the point. I am proposing here that copyright should not be inheritable, not that inheritance in its entirety should go away (I wouldn’t necessarily disagree with the latter proposition, but that’s a different conversation). It’s a good thing to reward creators for their creative works, but what have their heirs got to do with it? Why should they continue to receive an income stream that is based on nothing they’ve ever done and for which they don’t necessarily have to raise a finger? And does it really benefit society more to assign this control and income stream to an arbitrary someone than to make the ideas involved available to society as a whole? I think not.

          • Ich Will says:

            Oh I completely agree with you, I was making a dumb comment on the “encourage homicide” remark made by someone else, because by that measure, we should not consider any scenario in which someone may make a gain from someone else’s death, most pertinent being inheritance! But it was a dumb stupid comment made to highlight the dumbness and stupidity of the comment of the chap who disagreed with you!

      • malkav11 says:

        Yeah, there’d need to be some sort of caveat to avoid incentivizing homicide, and of course it doesn’t work for companies, so there’s probably a better term. I just feel like copyright no longer serves any kind of useful purpose once the creator’s not the one whose income is being protected by it.

  40. Viscera says:

    I think it’s better to do it like id: Keeping the games commercial, but releasing the source codes. At least, that’s somewhat realistic (although it’s still not going to happen) and not so naively idealistic.

    Also, do you really think that GOG would charge lower prices, if they didn’t have to pay licenses? They are still a business and commercially-oriented. I love GOG, but I don’t trust them more than the average distributor (at least, I trust them more than Valve).

    Nice article, though. Makes some good points, despite seemingly being written for a strange parallel dimension where everybody is inherintly good-natured and nobody is really materialistic oriented. Very condescending, though, but I didn’t expect anything better. At least, it convinced me that you aren’t full of shit (unlike Broussard and Bleszinski, but that’s nothing new with those guys).

    • RedWurm says:

      I have no idea if it would directly change the prices on something like GOG, however it would certainly make more games available though those sorts of service, and it would possibly make it a more competitive market if there are no longer so many legal considerations to releasing rejiggered older games.

  41. VelvetFistIronGlove says:

    John, can you explain what you’re referring to with your parenthetical comment “the days of public domain gaming in the early 90s”?

    • John Walker says:

      You used to get these fantastic floppies on the covers of magazines with “PD” written on them, stuffed with public domain games and apps.

      • VelvetFistIronGlove says:

        Thanks. I guess I missed out on that, not being in much of a position to buy gaming mags in the early ’90s. I did encounter a bit of the shareware revolution though (speaking of George Broussard!)

    • apa says:

      It was bit like F2P except it actually was free, as in beer.

  42. Robin says:

    George Broussard isn’t calling for perpetual copyright, he’s calling for lifetime copyright.

    Seeing as the arbitrarily picked ’20 year’ figure doesn’t take anything into account other than the selfish desire to play games one couldn’t afford as a child for free (there is still clearly a market willing to pay for games older than that – the faulty ‘Abandonware Manifesto’ logic comes from a time when a game’s lifespan was dictated by how long you could find it on store shelves, and when the majority of games were incompatible with new hardware), I don’t see anything unreasonable with a copyright regime in line with every other form of creative media.

    Especially as all the counterarguments in the section about this are arrant nonsense. If I make or buy a physical object I then own it forever. If I sell it outright I have no further claim over it. How long ago I made/bought something has no bearing on whether I still have the right to exploit it. If you genuinely think that creators bring nothing to the table apart from ideas synthesised from others, then you are welcome to imagine any game or other creative work you want, for free.

    • KDR_11k says:

      Nobody wants videogames to have different copyright terms than other media, we just think that life of author +95 is fucking ridiculous.

      Preservation becomes a massive issue, especially as game copies become more and more ephemeral with digital downloads, services like GFWL and various DRM schemes (special shout out to Capcom’s CPS2 system that stored its decryption key on a battery-backed RAM, when that battery dies the game copy becomes unusable). Currently any attempt to preserve these games is technically illegal and it’s only a lack of lawsuits that keeps these games alive. A law that is only workable by a lack of enforcement is a terrible law.

      While we’re at it there’s also a need for shorter patent terms on tech, 17 years is enough to completely obsolete something three times over.

    • Sleepymatt says:

      Broussard should read a dictionary then, as “indefinitely” is the exact opposite of “lifetime”, which by definition must be a finite period of time.

  43. derbefrier says:

    I am gonna have to side with the developers here. Its their property so it should be their desicion to let it go to public domain or not. With the advent of storefronts like GoG and their succeess you can’t argue these games can’t be profitable long after they have been released.

    This has nothing to do with preserving works of art or anything like that. We just want to play old games for free without the guilty conscience. Most of the old classics have survived in one form or another despite any copyright laws and as long as the internet exists so will these old games. I mean I was able to download every single star wars vs tie fighter with ease and start playing it. Acceessibility isn’t a problem either. This basically boils down to not wanting to pay for old games becuase art. There is no danger of the truly great games, the ones worth saving dissapearing. So the developers are right and you are wrong Mr Walker.

    • bokkiedog says:

      “I am gonna have to side with the developers here. Its their property so it should be their desicion to let it go to public domain or not.”

      Ladies and gentlemen, if you care to come closer, I present to you a beautifully preserved archetypal example of the Begging the Question Fallacy, made more piquant by its demotic “gonna”.

    • SominiTheCommenter says:

      You are thinking in the perspective of the player, this article isn’t about that. This is from the perspective of new creators.

      Tolkien made LOTR based on European folklore and the world war.
      George Lucas took the Hero’s Call storyline, Kurusawa films and other shared culture elements to create Star Wars.
      Why can they steal these elements for their stories, but if some indie dev makes a game about Luke Skywalker in a Millenium Falcon, Disney pounds them with lawsuits? What’s the difference between their cases?

      • GROM says:

        because being inspired by something is completely different from blatantly copying or stealing something. If you write a paper for university why wouldn’t you just copy someone else’s work? oh right because it’s plagiarism, I almost forgot.

        • SominiTheCommenter says:

          Duck Nukem stole the bubblegum line from They Live.
          So did Tarantino in his all career. And yet nobody bats an eyelid, and chalk it down to “homage” or referencing other works.
          If you don’t want anyone stealing your good ideas then don’t publish them, simple as that.

          • GROM says:

            Well apparently someone doesn’t know the difference between referencing something or stealing it. If duke nukem was about some guy who can see aliens through his special alien glasses and they had him rambling the script of they live, yeah then they stole it. Yet having it set in it’s own universe with it’s own characters and aliens, making duke uttering that one line is referencing to that other alien movie where they have where aliens invade earth, acknowledging part of their inspiration, you get that right? you also get that this is a thing writers have been doing since forever, like H.P. Lovecraft and Robert E. Howard right? It’s how comedywriters can make satire, it’s how mel brooks made space balls.

          • SominiTheCommenter says:

            Of course, but the current copyright law doesn’t allow it, because the works take too much time to enter the public domain. At least for many smaller companies, it’s unthinkable to even touch certain properties with a 10ft pole.

          • GROM says:

            except it does, you can make a game about lucas ozonstrider spacesamurai, with two comedy robot sidekicks and call it galaxy quest or whatever. they just don’t allow you to copy star wars and call it your own.

          • Corb says:

            No, that’s what it is supposed to do. Instead it is widely abused by companies like King.

        • Sunjumper says:

          When you write an university paper you usually do steal tons of other peoples texts. You have to quote them and show where you got them from, but it is not only perfectly possible but you must do it if you want your paper to be taken seriously in any way or form.
          You need not pay the original authors whose quotes you use though.

          • GROM says:

            yup, you reference them, and are even allowed to directly quote a certain percentage in your work, provided you cite your sources. But i can assure you that just blindly copying stuff will cost you more than money. Failing or beeing fired from your job as a professor and losing your PHD for example tends to suck, hard.

  44. SominiTheCommenter says:

    3D Realms “creates” Duke Nukem out of every 90′s action hero, with a quote from They Live, and they talk about stealing.
    The nerve!
    Does Michael Bay gets any revenue from every Duke Nukem game? What about John Carpenter? Billy Piper?

    • Bluerps says:

      I think you are confusing Billy Piper and Roddy Piper. Though now I wonder what it would be like if the Doctor had a professional Scottish wrestler as a Companion.

      • SominiTheCommenter says:

        Damn, better get some more bubblegum.
        Piper the Wrestler is a better name.

  45. Philopoemen says:

    I’m sort of torn between the two honestly; I’ve been a published author in the past, but my stuff was very much work for hire, and as a result of that, I relinquish control of those works as soon as I’m paid. I’m also now a cop, and you are only as good as your last arrest; my value to society is not based on something that I did years ago, but my reputation might be.

    And I think this is what the more militant game developers need to realise; their worth is not based on receiving royalties on something from years, their reputation from that something is what decides their worth now. If I’m a horrible investigator, my bosses are going to shunt me to crossing guard duty, but if I’m decent, I move through the ranks and sections according to my worth to the agency.

    Look at Chris Roberts, Jordan Weisman, InXile etc – they’re not not pulling down royalties from past glories, but those past glories is why they’re getting the reward now.

    Game developers should look at their pieces like art – once sold, it;s no longer theirs, but the success of that art is what allows them to get better renumeration for their next work of art.

    • Malfeas says:

      Very well said.

    • FriendlyFire says:

      And this I think is the ludicrous thing: Roberts doesn’t see a dime for the games he’s made, but Microsoft still sells them and pockets the money. Worse, they deny anyone else from doing the same on the basis that they “own” the games.

      I find the whole thing absolutely ridiculous.

    • P.Funk says:

      The hollowest part of the arguments about developers and money and copyrights is the fact that these laws are written specifically to allow those who did no creative work to profit, while those who did the actual work don’t.

      So yes indeed the creatives stand taller from their reputation, while the corporations make the residual profits over time.

      When people argue that diminishing copyright laws harms developers I ask how? The only thing that harms developers is the horrible contracts they’re mostly forced to write relinquishing their creative property to conglomerates who have no desire to contribute to the culture.

      • darkChozo says:

        Well, theoretically, the answer is that the developers wouldn’t have even gotten the money they did get if it weren’t for copyright. The companies paid them a salary back when the did make the game, as well as paying for everything else that went into the game. They assumed the risk that all that money could go to waste if no one actually bought the thing. They did this because, due to copyright, they could sell the game for money for a long time and make back the money they made, plus profit.

        If you limit copyright more than it is limited now, you limit the potential profits, meaning the risk is riskier, meaning that companies are less likely to spend that money. The end result is that developers either get paid less or don’t get paid at all. That’s the theory, anyway.

  46. Tuhalu says:

    I think we could use an addendum to this flow of thoughts. I’d like to hear John’s thoughts on the difference between copyright, intellectual property (IP) and trademarks. Specifically, whether or not IP and trademarks should be limited in the same way as copyright.

    This is an important distinction, because if IP was limited differently, you could easily have a case where anyone could make a copy of a Game, but not make a new game using the same IP. Naturally the same applies to copyright limitations and ownership of trademarks.

    For example, Nintendo still makes Mario games after some 28 years. Should their 20+ year old games be public domain? The article argues yes. What’s not articulated is: Should anyone be able to make a game with the Mario IP now? If so, should anyone be able to use the Mario trademarks to sell their game? My impression was that the article assumes No on both counts.

    • 2helix4u says:

      “What’s not articulated is: Should anyone be able to make a game with the Mario IP now? If so, should anyone be able to use the Mario trademarks to sell their game? My impression was that the article assumes No on both counts.”

      Yeah its no. They would still have their modern day copyright or trademark or whatnot that prevents people from making their own Mario games. However it would be possible for people to use their 20 year old games to create their own IP I believe.

    • KDR_11k says:

      I think with Mario it’s the same as with “Steamboat Willie”: The original concept from back then has been altered MASSIVELY. Making a Mario game without using any of the evolutions present in the still copyrighted works is gonna be hard, especially as Mario is only a small pile of pixels in those games. The modern 3D Mario character would still be far from becoming PD. Similar with Mickey Mouse, the MM you saw back in Steamboat Willie is far removed from the one that is being shown on TV these days (though I can’t remember if Mickey is even being used these days) and you’d only be allowed to use the old one.

      Additionally I don’t think anyone said trademarks should lapse so you could use the old Mario character but not advertise your game as a Mario game. Of course trademark holders should be prevented from using their trademarks to stop redistribution of their PD works.

    • VelvetFistIronGlove says:

      @Tuhalu: There is no such thing as “IP”, legally.

      Trademarks protect distinctive names, words, and visual designs (“Coca-Cola”, “Coke”, the white ribbon design, the coke bottle shape). For full protection, trademarks have to be specifically applied for and registration fees paid to maintain them (though there is some protection for unregistered trademarks too).

      Copyright protects a fixed expression of an idea, which in practice means the textual, visual, and auditory work in books music, films, games, etc, and also the actual code in software. The protection also extends to partial copies of a work, with some limitations for various “fair use” or “fair dealing” copies (depending on jurisdiction). Character designs and names, and plot elements are often considered part of the distinctive elements of a work, such that copying them is generally considered to be infringing copyright. In most situations, copyright immediately applies on creation of a work.

      Patents are quite different again, but of little relevance to this discussion.

      When people in the games industry refer to “IP”, they generally mean the distinctive elements of a work and the trademarks and copyrights that it has. It’s a convenient term, but has no legal meaning.

  47. 2helix4u says:

    A good article. (And I am one of the people who thought the comment in the previous article was stupidly put, if not stupid in concept.)

    One heading I’d have like to have seen an answer to would be: So if a song is not a car, why is a game an idea?

  48. Fergus says:

    A fantastic editorial, thanks John, it made for some great reading, and I’m now finding myself wholely agreeing with you, you clever handsome man you.

  49. AReasonableMan says:

    Why is it that every time I see a new John Walker article I say to myself “Jesus, this site has gone to hell.”

    Oh, right. Because he exposits poorly on issues barely tangentially related to gaming in an unnecessarily verbose and condescending style.

    Also, regarding “Further, I would so enormously love to see a situation arise where we can see truly patron-led creative funding, where gaming communities put forward their money so that creatives producing truly wonderful gaming projects can do so without the need for commercial success.”

    That’s called kickstarter, and it’s a horrifying model in practice. A product that doesn’t have to worry about making back its funding has no incentive to appeal to its customers. It doesn’t need to be any good. It’s already succeeded before it existed.

    • bokkiedog says:

      “Because he exposits poorly on issues barely tangentially related to gaming in an unnecessarily verbose and condescending style”

      Is that recursive meta-irony?

    • John Walker says:

      Since I’ve written for RPS since the day it launched, we must have started in hell and stayed there!

      Kickstarter is absolutely not a patronage model. Patreon would have been the site to reference there, but hey-ho.

      But yes, as for a connection between an article about games entering the public domain, and games… You’ve got me there.

      • Aninhumer says:

        I’m not sure what you mean by saying Kickstarter is not a patronage model? While I can see that there are some differences between individual patronage of an artist, and collective patronage of a specific project, I feel like they’re far more similar than they are different.

        • Gap Gen says:

          Patronage as ongoing financing of someone who produces creative works, rather than a single donation towards a specific product, I assume. But sure, depends on the context as to how precise you want to be with the term.

    • Aninhumer says:

      A product that doesn’t have to worry about making back its funding has no incentive to appeal to its customers.
      Of course they do. They want to make something good enough to convince people to Kickstart their next project. And that’s without even considering their simple creative desire to make something people enjoy.

      • Kitsunin says:

        Of course, and with something like Patreon (Monthly donations rather than payments per-product) it’s the same concept. You want to keep making good things, because you want people to continue to think it is worth sponsoring you to continue to work. If you haven’t made something good to start with, nobody will think to sponsor you, so it’s effectively the same thing as making a game and getting paid afterwards, just without the constant possibility that you will make something that nobody else likes and suddenly you’re in the hole because nobody wants it after the fact and it’s too late to bail.

        Of course this isn’t a concept that gels with the idea of us being the consumer and the developer selling their “Product” so I think it will take a long time to really see how it works. I’m sure it would work on a large scale, however…but it might require some large-scale society wide changes in how we view things.

      • Sleepymatt says:

        Aninhumer just took the words right out of my mouth. It’s amazing how some people forget that developing a good reputation is perhaps the most important thing in ANY line of work if you wish to continue to be paid in the future for work you haven’t done yet.

    • pepperfez says:

      ‘Why is it that every time I see a new John Walker article I say to myself “Jesus, this site has gone to hell.”’

      Because you read comments like the quoted one?

  50. Malfeas says:

    I have to fully agree. I personally think the current copyright law is an appalling piece of crap. It should be impossible for something that was created before I was born to never enter the public domain.

    Going somewhat off-track here, but it kinda makes sense:
    I have no idea how it’s handled elsewhere, but in Germany we have the so-called Gewohnheitsrecht. If you live somewhere for 30 years, you can’t ever be evicted. It’s based on the idea that someone who’s lived somewhere for 30+ years might not be willing or even able to change, without suffering emotional harm. It basically gives that person a great amount of rights, based on the fact that a place has been part of their lives for a very significant portion of it.
    They still have to pay their rent, but can stay if they’re not able to. But will lose it and suffer further charges if they pretend not to be able to.

    I believe this is a good law because it places human well-being above profiteering, in cases in which these conflict but tries to minimize the cases in which this conflict occurs.

    I believe copyright laws need to be rewritten, at the very least back to what they were before Disney screwed the public.

    But then again, social changes seldom occur by laws being changed. Usually the law follows suit, after something has been a certain way for a long time, anyway. So the only thing to do is create games and give up the copyright after a certain amount of time. I vow to do that with the game I currently am developing.
    20 years or less after release, I will release it to the public domain.
    I’ve thought about it for a while and I believe that’s quite enough time to profit from it and even profit from it receiving a revival.

    What more could one ask?

    • Access says:

      Even the most conservative copyright advocate acknowledges the importance of all works belonging in the public domain. This is absolutely non controversial. The only question in debate is what should the duration be before all works fall into the public domain.

      Instantly is to short, Life + 90 years is probably too long. The famous example of Happy Birthday written in 1893 has just recently fallen into the Public Domain. Some may suggest this is an extreme example, but all works by default fall into this extreme category. No mega company will hand over valuable IP as it could be exploitable decades later and reads as a valuable asset on valuation reports.

      Copyrighted works deliberately extend longer than the life of the artist. Which means after owners die the inevitable owners of all the worlds valuable works are sucked up by immortal companies. It’s no coincidence that Disney owns Winnie the Poo, the Muppets, Marvel, Pixar, Star Wars etc.

      There are five major companies that are stable and immortal enough to own the entire creative output of the planet. All films, music and television are owned by one of them. Video games are a young industry industry that the video games mega companies and IP are owned by comparatively little companies. Nintendo, Activision, EA, Square-Enix etc. These will all one day be owned by General Electric, Time Warner, and Disney etc.

      These mega companies no longer have to create, they just need to exist long enough to collect the much loved IP of the entire planet and lobby governments to never let copyrighted works fall into the public domain.

      Copyright was intended as a method of encouraging more creativity. Now it is an excuse for the children and grand children of artists to never work, and for mega companies to never spend money on new ideas.

      Everyone likes to complain about Patents (especially Software patents), but they only last 14 years. Could you imagine if patents lasted life + 90 years, this would halt entire industries!!?? No government would ever agree to patents being immortal, and yet they sign off haphazardly on laws suggesting copyright works should be.

      Well Copyright laws are halting creative progress and creative progress is equally important as industrial progress. Let’s simply make Copyrighted works fall into line with Patents. If a developer can’t make money after 14 years then they aren’t going to.

      Besides, people can still make products based on there own public domain creations. You can still buy copies of Alice in Wonderland right now from a bookshop. Even if people could make their own Mario games or Spider-Man comics after 14 years. People would still read Marvel’s Spider-man and play the Miyamoto/Nintendo Mario games.

      GOG can still sell games. Developers can still get profits. But it could also fall into the public domain.
      The public domain is precious and needs defending.