Johanna Blakely:
Lessons from fashion’s free culture

By Shamus Posted Saturday May 29, 2010

Filed under: Movies 90 comments

Link (YouTube)

Weakening patents would make it harder to “own” ideas. I’m one of those crazy sorts that thinks that our current patent system actually does way more harm than good. That is, a free-for-all might cut into the profits of some innovators, but that would be less damaging to innovation than the cloud of confusion, litigation, patent squatting, and patent abuse that currently makes up our patent system.

One important distinction between clothing and (say) movies or software, is that in the case of the latter the idea is also the product. I can “steal” a clothing design if I want, but afterward I still have to go out and make real clothing with that pattern. I need to turn raw materials into something people can wear.

If we wanted this same openness with movies and games, then you would be free to steal ideas from those as well. You can blatantly copy story ideas, tunes, dialog, gameplay mechanics, and character designs. But! You’d still have to shoot your own movie, perform the music, enact the dialog, or program the game yourself. I’m all for this style of free-for-all where ideas are free for the taking but you still have to realize them yourself.

But what we always end up talking about is a world where you make a product and people simply copy it outright. We’ve had this conversation at least a dozen times on this blog alone, and it always ends with two people arguing over the morality of piracy and whether or not it’s “stealing” if you’re making a copy of something.

For a long time the anti-copyright crowd was basically just pirates with a nuanced set of excuses. But now these ideas are getting a chance to prove themselves as people who produce content join the free & open crowd. Instead of consumers demanding that the entire copyright system be repealed and destroyed (which I don’t ever think can happen, at least not in my lifetime) we have people like MC Lars ignoring the system and simply making content for free. The idea seems to be to give away the music as a way of getting famous enough to live off of concerts and T-shirt sales. Kevin MacLeod is another, in that he gives his music away in exchange for credit for writing the music. That’s a pretty good deal if you need a score for your internet show of obsessive nitpicking and you don’t have a budget.

It will be interesting to compare the new and old music systems a few years down the road and see how they play out.


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90 thoughts on “Johanna Blakely:
Lessons from fashion’s free culture

  1. Jarenth says:

    Excuse me if I’m wrong here, but you seem to be mixing patent law and copyright law about halfway in. As far as I recall, ‘patents’ are for scientific innovations and inventions, and ‘copyrights’ are basically for stuff you create. I don’t think you can actually patent story ideas and character designs, for instance.

    Having said that: I would be curious to see what the effect would be of (essentially) ignoring copyright law in gaming, music and movies. Might be entertaining to watch.

    1. Shamus says:

      I was sort of following the line of reasoning in the original bit, which was comparing clothing (no patents OR copyright) to software (has both).

      1. Jarenth says:

        Yeah, I just finished watching the whole thing. I didn’t even know software hà¡d patents, but ok, whatever works.

        I stand by my earlier comment: I have no idea what the effect of divorcing the narrative elements of software from copyright would be, but at least it would be very amusing to watch go down.

        It could actually shed some light on the structure of good games. What makes a good game good: the software elements (good coding, modelling and composing) or the narrative / design elements (‘story ideas, tunes, dialog, gameplay mechanics, and character designs’)?

        1. Squash says:

          There is no copyright in an IDEA. There is copyright in the EXPRESSION of the idea. So, I can’t copyright the idea of a soldier from an advanced military culture joining a band of natives and fighting against his own people. But I can copyright a particular type of blue aliens with tails.

      2. Wilcroft says:

        Clothing actually can be patented.
        There’s two types of patents: Design, which is only the look of the device; and Utility, which is the function. A new styles of shirt, for example, would be a design patent, since the function isn’t new, while a new piece of code could be either, depending on whether or not it has a unique function.

        Patents for clothing:

        1. Yes.

          Not to mention, patterns get copyrighted.

          And design patents exist.

      3. Zaghadka says:

        Patents are tricky beasts. If I have some kind of patented material in my clothes, I could certainly patent and license that material out. The obvious reference being something like Lycra, whose name is still a registered trademark.

        In any event, it’s probably best to talk about only one kind of IP law at a time (copyright, trademark, patent) because this post made my head spin a bit.

        I’m sure you’ve got a good idea in there. I think it has to do with no longer treating ideas as property, and the use of an idea as a sort of “thoughtcrime” theft.

        I think we are headed in the thoughtcrime direction, and we do have to honestly assess the burden these kinds of incentive programs incur.

        I think it can be argued that the burden outweighs the incentive in any meaningful regard, and the original U.S. idea of copyright was to promote the sciences and arts, not to hand that endeavor to a bunch of conglomerates for privileged profiteering.

  2. Josh R says:

    I’m not sure I agree with you here.
    What’s the point in writing a fantastic score, if someone else can come along, copy it, and not have to pay you?
    Under your system, you’d have to charge less then it would cost to just have someone listen to the tune and decipher it. Which wouldn’t cost much at all.
    I think it would do a lot more harm then good.
    Even more so if you consider the fact that the details of most pieces of music can already be found on the internet, to inspire budding musicians to learn to compose.

    Especially in things such as Advertising. A lot of Band revenue is made by having your songs feature on an advert. If they could find some poor unsigned band who knows anything about music, they could perform it, and the band would get nothing out of it. This would be a terrible idea in a time when a lot of bands are struggling against piracy to begin with.

    Innovation is the keystone of our scientific progression, and anything that harms it, will harm us all. There’s a lot of legislation, but it does mean there’s a huge incentive to push forward.

    Also – how annoyed would you be to realise you’re playing the story of Jade Empire, but it’s been done by Bethesda, and whilst you know every twist and turn, loads of little “off” details will just annoy you.

    And games don’t seem to qualify as “too utilitarian for copyright protection”

    One last point to make is that everyone wears clothes, but gaming is still very much a fringe industry. I think broad comparisons are not possible.

    1. Shamus says:

      That’s the beauty of the way thing are happening now. You’re not “taking away” protections from people who are using them. Some people are simply choosing to not use the protections.

      1. Josh R says:

        Take the example of Arctic Monkeys – they released half of their debut album for free, and as soon as they were hugely popular, released proper albums that shot up the charts.

        This seems less like choosing not to use protection, and more like having a demo version.

        should kevin macleod achieve huge artistic success and reknown, it’s fairly safe to imagine he’ll start using protection.
        Should MC Lars or Dan Bull achieve the right points of success, they will copyright their music.

        Though I’d probably go along with being able to sample anything from anyone as long as it’s not-for-profit.

        1. (LK) says:

          Should kevin macleod achieve huge artistic success and reknown, it's fairly safe to imagine he'll start using protection.

          Forgive the dismissive tone, but it’s not safe at all to assume that much, it’s actually kind of presumptuous. It may seem likely to you but that’s more an opinion than an estimate.

          This kind of voluntary waiving of copyright privileges is kind of a new phenomenon, at least in the form we see it in today. Anyone who pretends with any authority to say a certain future outcome is “safe to assume” is extremely likely to be completely incorrect.

          If there’s one thing people are universally bad at, it’s predicting future cultural trends. This is a “wait and see” kind of thing. You have no idea of the likely progression. Nobody does.

        2. Felblood says:

          This right here:

          is the reason this won’t pan out in the long run.

    2. Josh R says:

      The graph shown at 12:40 is ridiculous.
      The lack of copyright in FOOD is not why it sells more then cars.
      And AUTOMOTIVES have thousands of patents per new design.

      1. OEP says:

        The real question is whether removing the IP laws from the industries with high IP protection would result in higher sales. Prove that and you have a case.

      2. Veloxyll says:

        Are the patents actually effective though? Just cause it says patented on your Hub-cap (seriously patent office, HUB-CAPS? They are not a new idea) doesn’t mean if you started producing hub-caps that were the same that they’d actually be able to prosecute successfully.

        Even with absolutely no copyright and patent protection, they still can’t steal the badges and name, since those are trademarks.
        Edit: The fashion industry actually found that it was those trademarks that sell their product, rather than the uniqueness (or otherwise) of their products.

        1. Mari says:

          The way you get a new patent for your hubcap is to put a new gegaw on it and demonstrate to the patent office that this significantly changes the design from the original. It’s not actually the hubcap that is patented. It’s the hubcap that clips on with this specific type of clip or the hubcap that has this specific aerodynamic groove or what have you. This is how many items get patented. She talks about it in the video with “low threshold of originality” or somesuch in the EU’s fashion laws.

        2. Tizzy says:

          You could make a good case that patents laws as they are have a huge potential for abuse, and benefit no-one but patent lawyers. For actual companies, it’s as much a headache and a drain of finances as windfall.

          1. (LK) says:

            Copyright and patent law is a real Monsterâ„¢ of a double-EDGE©’d sword.

      3. FatPope says:

        I entirely agree. I edge towards the anti-copyright side generally but some of the things she says in this presentation are either clearly fallacious or patently absurd. That diagram is the shining example. Correlation does not equal causation! I’m not even sure whether she actually believes what she’s saying here or thinks it’s just a handy lie that she can use but to me it seriously damages her argument

        1. taellosse says:

          Agreed. The industries she shows that lack copyright are the ones considered “too utilitarian.” That means that EVERYONE USES THEM, because everyone needs them. I.e. everyone eats food, everyone wears clothes, and most people drive a car. Whereas the other industries shown are almost entirely entertainment industries. And while nearly everyone consumes entertainment of some sort, almost no one consumes ALL of it. Hardcore movie buffs tend not to be hugely into reading books, tend not to be heavy gamers, etc.

          That said, her argument is not without merit. The fact that the high-fashion industry not only survives but thrives suggests there’s more to this equation. I wonder if all software were open source, would brands acquire cachet like those in fashion? The problem with that line of thought is that in fashion, the design and the execution are different things, but in software they are identical. If one were to take the full codebase of Microsoft Office and replace all the logos and trademarked names, the software would be identical in all other respects to the original, automatically. Idea theft and material theft are the same for bits. For non-entertainment software, at least (operating systems, and applications that let the user make stuff), I’d see no incentive on the part of the user to buy the name brand over the knockoff. I think games, music, literature, and film would probably operate better in that kind of environment, though–particular creators would develop reputations and people would support them the same way designers in fashion are.

      4. Foods have all sorts of patents. !?

        1. Veylon says:

          Well, sure. Additives, flavors, preservatives, methods of production, etc. etc. All these entail research on how best to come up with them and those formulae and procedures and machinery are what are patented. A Chicken McNugget is only the end result in a long, long process.

        2. cl says:

          Hell…the grain that makes the food is IP. She’s completely wrong. Her entire argument is based upon faulty and incomplete data. Ask Monsanto about their IP on the corn that grows that feeds you and the animals you eat and then makes the chemicals that make the packaging of that food. She’s wrong. Food has patents and IP protection to the point that if you grow your own corn or soy bean down wind from someone using Monsanto’s IP corn or soy…they can take over your farm for infringement since the wind “could have” cross pollinated your corn or beans with theirs.

          Another example of someone spouting off only knowing half the facts…

  3. Ross Bearman says:

    Another content produces who releases his content for free is Cory Doctorow, whose books are all available as DRM free downloads under the Creative Commons license. He’s reported that making his books available for free has greatly increased his exposure and book sales; attributing poor sales for a lot of artists to obscurity, not piracy.

  4. TSED says:

    The last time you brought up Lars and such, some commenter mentioned that not all musicians can work like that.

    I feel this is very important to repeat.

    Lars basically just has to be able to afford a computer. Let’s look at something else, let’s pick… Death metal!

    So, we’ve got our death metal band here. Two guitarists, a bassist, a drummer, and a vocalist. Some death metal bands have their vocalist be one of the above, but that is actually rare in the genre. Guitarists are working with guitars in the $3000 price range, so is the bassist. Vocalist’s mic and switch board is much cheaper, though how much depends on whether or not they go for the classic Shure SM58. Amps across the board cost a bloody lot (I can’t give any example for that – I can just say they will easily run you over a grand). And drum kits will cost as much as any two other musicians – and don’t forget THEY need mics for every drum and amps on top of that.

    So we’ve got a band here with a cost to own the things they need to make their music running over $20,000, easily.

    Compare that to Lars’ laptop.

    Compare that Lars splits his concert and t-shirt revenue with himself. Overhead will presumably be about the same for both bands, but this fictional death metal band has 5 members who get 20 cents to every dollar Lars gets. Their start up is ridiculously high.

    Now they need to go on tour to recoup those losses. Ok, no biggy – but they can’t be the tour headliners. No one would go. So they piggy back on some other, already-made band… And get a tiny portion of the ticket sales. They end up not really making a profit and are kind of lucky if they just break even. Oh, and they’re in a niche market (musically) so they KNOW they will never have that large a fanbase.

    This is important to realise. Not every musician has the same freedom to throw their music to the masses. I’m sure all of them would love to – a lot of bands, even though they’re in the ridiculously nasty scenario outlined above, give their music away ANYWAYS. But it’s ridiculous to assume that what works for one musician will work for the next.

    That being said, I agree with you on the copyrights thing. What needs to happen to the music world is to get out of this “I own the music” phase and get into… I don’t know how to explain it. Basically, the consumers (of music) need to become educated on the subject, and every band needs to reject a record label owning their music simultaneously. Absolutely impossible, I know, but this will result in bands spreading by word of mouth – by satisfied customers (fans) – instead of bands being famous because they get marketing handjobs from their labels.

    1. TSED says:

      *TLDR: Not every band can copy MC Lars’ success formula. That doesn’t mean I agree they should copyright their music, you just have to consider more musicians while trying to fix the problem.

      **Also: effects pedals, practice space (non-computer-created music requires rehearsals, which will cause noise violations if you try to do it in some cramped apartment), ‘disposable’ costs (guitar & bass strings, drum sticks, etc.), wiring, switchboards, hauling (some one needs to be able to afford the band van), etc. The list of expenses goes on and on and on and on.

    2. krellen says:

      I don’t really need a car to make money or earn a living, but I still have one, and it cost quite a bit more than $20,000.

      $20,000 isn’t really that big a money-drop for something you want and/or like doing, so I’m not sure I’d necessarily make the claim that these costs have to be recouped, and have to be recouped quickly.

      If it costs a lot to make the product you’re selling, you might have a point; if it’s largely a question of up-front costs for a hobby-turned-business, not so much.

      1. taellosse says:

        Yeah, but very few people buy a car up front–they take out a loan that they pay off over 5-10 years. And while a car loan is a pretty routine thing for most people to get with anything above absolutely terrible credit rating and some form of gainful employment, getting a business loan from a bank to start a band is a whole other kettle of fish.

        $20,000 over time is no biggie for most people. $20,000 all at once is a LOT OF MONEY.

        1. krellen says:

          If you’re serious about starting a band, you’ll get a loan for the equipment just like you get a loan for a car.

          And of course, that price tag was for the entire band. Each individual’s cost is only around $4000. That’s a loan most people can get with ease.

          1. Shamus says:

            Not being a musician myself, but: Wouldn’t you actually acquire a lot of that equipment just in the process of learning to play and practicing? So, if you ARE a band, you have a lot of equipment already.

            1. krellen says:

              Another good point.

            2. FatPope says:

              Yeah, I don’t entirely see the point of this argument. What does this have to do with copright? Bands have to pay money to buy the instruments that enable them to play music. That’s a given no matter what form of payment method you’re using. The only thing that may change here is the money in. Surely that is what any debate should focus on?

            3. TSED says:

              Some of it.

              Most people learn how to play on cheap versions that are definitely NOT of stage or recording worthy quality. You might have a few effect pedals and the cables to connect everything, though. Some of those effect pedals might need replacing, but probably not.

              Amps are another big deal – they cost a lot, and people learning to play generally only have practice amps. Hence the name, you know?

              Not to mention booking shows (not many places will let you do it for free, from what I can tell, and then you need to find a way to attract enough people + have a high enough ticket price to recoup the profit. Unless you look at it as a publicity investment.)

              Keep in mind, this is all start up for something you don’t even know for sure will have good chemistry. Plenty of bands have fallen apart due to differences in playing style, musical goals, or just interpersonal incompatibility. And if you’ve ever tried to start up a band, you know how frustrating these hurdles can be.

              To be fair, though, once some one has these amps or nice-enough instrument they don’t really need to replace it for a long time. There are exceptions (tragedies, drunken rampages, improper care warping the instrument, etc.) but yeah, it’s a long-term purchase.

              Still, compare that to MC Lars’ $400 or whatever laptop + $100 for software? Assuming he got professional software and not open source stuff, and not really really expensive software. Compare how he gets to book shows whenever he likes and doesn’t have to work with 4+ other people. Compare how if they want to go on a tour, all 5 need to quit their day job or miraculously all get vacation at the same time.

              1. krellen says:

                If you really think Lars does what he does on a $400 laptop with $100 software, you clearly don’t know anything about computers or software.

                Lars has probably invested at least $4000 to have his laptop studio.

    3. Tizzy says:

      I’m not sure exactly how the copyright thing works in music, and of course it varies on a case-by-case basis, but I am pretty sure that a beginning metal band would sign away their copyright (or whatever it’s called in that case) to their label. In exchange for royalties that may or may not come.

      I’ve heard a few stories of musicians using nontraditional models mainly to avoid the headache of dealing with a label and avoid being kept on a short leash. In all these stories, the musicians sounded much happier.

      1. Veylon says:

        Yes. The problem isn’t so much the copyright law itself, but the fact that musicians have needed distributors so badly to gain exposure in order to have even a chance at fame. Those distributors have taken every advantage of this.

  5. Silemess says:

    Dictionaries used to (and still do) have the same problem. They can’t “protect” their work. Everyone uses the language, and that other guy down the street might be copying your work or might genuinely simply be copying the output by virtue of their own unseen development work.

    So dictionaries wound up putting in nonsense words that don’t exist, or putting in wrong definitions. Then when those errors showed up in someone else’s books, they could point and say “ah ha, where ever did you come across those in your intensive research?”

    Following your proposal for software, it would be akin to putting in a nonsense line of code that would have no effect (such as a comment, or a null call out). It would have to be rather obvious that it wasn’t in there by accident. We all make mistakes, is anyone going to claim their code is golden? But it would also have to innocuous enough that it wouldn’t be discovered by someone weeding through the code.

    Then factor in that you’re going to probably have seed it throughout the program to cover any sections, modules, functions, etc that you’re worried someone might lift? It’ll be a lot of work, and no guarantee that you’ll catch the thief. Software doesn’t have to go out and confirm the definitions of the wild, at least not outside of the compilers.

    In the end, I think its necessary to be able to protect the product of your work. From there, one can decide whether they actually do want it to be theirs, or release it. What’s important is that we protect WHAT is produced, not HOW. The problem for things that are mentally created is agreeing where that blurry line falls.

    1. FatPope says:

      Mapmaker’s used to do that too. They’d invent entirely fake streets. Only cul-de-sacs though so nobody would get too lost using their maps

      1. Steve C says:

        Mapmaker's used to do that too.

        Argleton is a fake Googlemap town. The concept of putting purposeful errors to strengthen copyright claims is called a copyright easter egg.

        1. cl says:

          Electronic circuits can not be patented only copyrighted. Which of course means that if you hang a left at the ta resistor instead of a right it’s a new design. That’s why for the longest time circuits were completely covered with black resin so no one could see what the circuit did. Now they put in the easter eggs steve talks about…circuit legs that do nothing.

  6. Jeysie says:

    Personally, I think that instead of weakening copyright and patents (as few people have the means or desire to give away their work for free… why should a creative person be forced to hold a pointless side job to pay the bills instead of getting to do their talent as their job), we should just lower the number of years they’re effective and/or be more lenient with derivative works.

    There needs to be a balance between a creator getting to profit off of and control their idea and society getting to remix it into other ideas, and IMHO both the anti-copyright movement, and our current status of overly restrictive and misapplied copyright (with too many ideas owned by companies instead of individual creators, to boot), are too far at the extremes.

    1. krellen says:

      Yeah, the main problem in copyright law (it’s not such a problem in patent law, actually) is not that protections that exist, but the length those protections persist.

      Another good change might be to make corporations no longer able to hold patents or copyrights. These things are intended to allow the creator to turn a profit, not the creator’s investors. Corporations have no business holding these things in the first place.

      1. Jeysie says:

        Yeah, I think removing the ability of companies owning copyrights would go a long way towards removing a huge chunk of the current problems with copyright.

        Because not only is it basically ensuring that ideas can now never go back into the public domain (since even if a corporation “dies” oftentimes a new company just scoops up the copyrights from it), but it’s leaving a lot of creators in the bizarre and backwards position of no longer being able to do anything with the very thing they created, as they no longer own the copyrights to it!

        1. cl says:

          So, you are saying that a man or collection of men in the case of a company shouldn’t own property? The law isn’t good enough actually. If I make it, design it, write it, do it…it’s mine. Remember the word “mine”? Not someone else’s…mine. This Marxist or Collective theology that everything is for the good of “man kind” is ridiculous. It’s mine, not yours. In fact you should own your property and your IP for life. Why? Because it’s yours.

          Simple as that.

  7. Nathan says:

    I don’t see how getting rid of copyrights, patents, or trademarks would help gaming at all. Even right now, game mechanics can’t be patented or copyrighted. If one game introduces a brilliant and innovative new control scheme, gameplay element, interface style, or even a totally new genre, then everyone else is free to take those ideas liberally. Look at how much Halo influenced all of its competitors in the years since its initial release. Look at how a game like Castlevania: Symphony of the Night can borrow all of its core concepts from the Metroid series created by a rival company.

    You don’t need to pull apart the copyright system in order to help innovation in games. Innovation spreads like wildfire throughout the industry already. If something succeeds, then everyone will immediately turn around and steal all of its ideas and produce a knock-off competing product. This is the exact reason why so many FPS games made these days are so similar; every game is building upon all the innovative and popular gameplay ideas that have been put into all previous FPS games. Changing laws wouldn’t do a thing to promote innovation in the gaming market. Only actual innovation on the part of designers can possibly do that.

    Honestly, changes to copyright laws and the like would only serve to make it almost impossible for game companies and game designers to make any money, and even if the game industry did survive a radical change to copyright laws, I imagine it would still be the death knell for large-budget games. Copyright doesn’t do anything to limit innovation in gameplay or story, but it does protect against people lazily stealing the code, art assets, voice data, and script for a game and using another person’s hard work to churn out their own product. This is exactly why comparing the fashion industry to something like the gaming industry doesn’t work. In the fashion industry, most of the time-consuming and expensive aspects of production, the creation of the physical end product, can’t be copied and thus doesn’t need to be protected by copyright. It is not that they don’t have copyright laws, it is that they are unnecessary for that industry because the final, sellable product is a physical object that can’t be infinitely copied. On the other hand, all of the expenses regarding the creation of sellable product in entertainment industries go into the creation of something that can be copied. All of the hardest work of people in the fashion industry is uncopiable, but all the hardest work of people in the entertainment industry is copiable. This makes the two too different to compare.

    Shamus, you say that removing copyright would let people steal the script but force them to go to the work of enacting it, but copyright is the only thing preventing a company’s rivals from just copying all the voice and art samples used to enact the script and shortcutting the process themselves. What is more, people are pretty free to borrow pieces of dialog and story elements already. I really don’t see how loosening up copyright laws would help create the world you are envisioning.

    1. Shamus says:

      I mentioned this in the bit I wrote. I pointed out that clothes are not the same as software, precisely because copying the design means also copying the product.

    2. “If one game introduces a brilliant and innovative new control scheme, gameplay element, interface style, or even a totally new genre, then everyone else is free to take those ideas liberally.”

      I wish that was actually true. For a counter-example, consider the innovative idea of including a mini-game or other interactive content on the loading screen: NAMCO owns the patent on that.

      Another example: A driving game in which the direction to your next waypoint is indicated by an arrow floating over your car. SEGA owns the patent on that and successfully sued the makers of Simpsons: Road Rage for infringing it.

      Of course, these examples also demonstrate the current insanity of the patent system. For example, NAMCO was successfully granted (and has enforced) the patent on mini-game loading screens despite the fact that they were used prior to NAMCO being granted the patent. And using an arrow to point people in the direction they’re supposed to go is ridiculously trivial and self-evident.

      1. FatPope says:

        These are absolute absurdities, no doubt about it. Thankfully, as far as I’m aware, very few patents are actually granted for ideas like this, so the number of such absurdities are relatively low. Still far from ideal though

  8. I think it would be interesting to lift the concept of the statutory mechanical royalty rate from the music industry: Basically, in the music industry anybody can record a cover version of a song. The copyright holder is legally mandated to offer a license for that use at a minimum rate set by law.

    Imagine that we had a system in which ANY copyrighted material could be similarly used. To pull numbers out of a hat, let’s say 25% of revenue or a flat per-copy fee (whichever is higher).

    So you want to write and publish a novel based on the Star Wars franchise? Go for it. Just pay 25% of your revenue from the project to LucasFilms.

    Want to make a movie based on your favorite book? Go for it. You simply owe 25% of the revenue you make from it.

    Of course, 25% of revenue is (practically speaking) ridiculously high. But creators and IP-owners could still make separate licensing agreements for lower amounts. The point is that such a system would make ALL intellectual property available for common use. Just as the statutory minimums in the music industry allow anyone to form a cover band or just record some cover versions of their music.

    There’s also obviously a lot of unresolved details. For example, what happens if your product is using IP from multiple sources? I’d suggest a tiered system where additional IPs increase the revenue share in steps up to some maximum cap, with the revenue being shared equally among IP holders. But you’d also need some safeguard against people creating Alien vs. Predator, but then having the film star characters they own through eight different shell companies to funnel the revenue share back into the own pocket.

    I have two big objections to the current copyright scheme:

    (1) The relative difficulty for ideas to enter the common culture. (We benefit from the fact that the works of Shakespeare or A Christmas Carol can be re-used, re-interpreted, and riffed upon.)

    (2) The ability for parts of our culture to be arbitrarily sealed off and made inaccessible. (For example, Howard’s original Conan stories were kept out of print for decades while the copyright holders allowed pastiche novels to be published because they made more money off them.)

    And this would resolve them.

    1. silver Harloe says:

      One problem: what if you make something to be released for free that “borrows” from another source?

      According to your scheme, if I make a version of the update Star Wars which only differs in that Guido never gets a shot off, I only have to pay LucasFilm 25% of my DVD sales (actually, it’s pretty unfair already), but what if I don’t release it for sale, and just make it available for free download?

      1. Jarenth says:

        If you’d be doing something like that uncommercially, wouldn’t it fall under Fair Use anyway?

        EDIT: Unless you plan on completely duplicating Star Wars, sans edited scene, of course. In that case, you could expect Lucasarts to be pissed about ‘lost revenue’.

        In the movie bit that sparked this whole debate, Johanna talks about what seems to me a similar thing: highly expense fashion gets knocked off and replicated cheaply, and yet, the expensive fashion continues to sell.

        If you make a complete replica of Star Wars (minus edit) and release it for free, there’s a good chance there’d still be people willing to pay for the original. So in that case, it’s not really an insurmountable problem for Lucasarts.

        I hope this makes sense, it’s late and I’m having trouble wording my thoughts.

    2. TSED says:

      I actually really like that idea.

  9. Amarsir says:

    Using Kevin MacLeod as an example, he still has a copyright. He just doesn’t charge money for use. If there was no copyright, then I could take his music and claim that I wrote it. Which wouldn’t be good for him or for the public I’m lying to. So there’s a value to copyrights and patents even there’s no charge for use.

    And that makes sense. Offering your work for free as a type of promotion isn’t anything new, we’re just framing it differently now. But I wouldn’t want to live in a world where people don’t have claim to their work, because the resulting nihilism would inevitably de-motivate creativity. So “yes” for the right to release your work, “no” for the obligation to do so.

    I read something not long ago about how the software and pharmaceutical industries have very different attitudes about patent enforcement. Drug companies want absolute control over their patents, and anyone infringing to be shut down. It’s not even a matter of getting paid, as a licensing payment could always be set up with nice royalties for the patent-owning company. It’s more about how drugs are powerful and scary and solutions are hard to find, and someone who copies you but makes a mistake could get your drug pulled off the market.

    In software however, copyrights are frequent and minor. It was said that Microsoft knows whenever they release something new that they probably stepped on a hundred copyrights in there somewhere. And they really have no way of knowing. So their attitude is “look, if it’s a valid copyright let us know and we’ll pay a royalty for the use.” Which works for both parties.

    So even when rights are valid and enforced, the preferred methods vary by industry. Thus I think it’s really reaching to take an entire yes/no position about rights in general and apply it across industries.

    1. Tizzy says:

      Very interesting and valid points. The pharmaceutical aspect is new to me, and it certainly makes sense. I’m not sure about software, but in domains like mobile phones, the patent wars rage on. In high-tech settings, I’ve read some pretty silly patents. The typical example is patenting a possible process, when you have absolutely no idea how it could be implemented at all. If someone else comes up with a good idea, well, you’re on the ground floor to reap some serious profits.

  10. Fefe says:

    Part of the problem is that it is very hard to define (if not impossible) if something is genuine.
    In case of musicians, they benefit from a million of free examples of music. In fact it is neigh impossible to actually write a piece of music that would not heavily borrow from other music. Finding a smallest common denominator of what is protectable is something I’ve failed at for some years already.
    If we have a common blues lick for example, it seems to be free for all, but if we write an inane melody, it seems to be protectable.
    There seems to be no boundary that can’t be led ad absurdum, imagine
    individuality like a limes running rapidly towards 0. Every thing
    is made from trivial factors which are by nature not protectable (not that people would not try to patent hot water). Combining trivial things doesn’t neccessarily give a protactable thing, just like a math equation returns a number for an input, and numbers are not protectable.
    The same concept is true for any kind of data that is not material,
    be it code or pictures or audio or etc…

    TLDR: Aristotle was wrong. The whole is exactly the sum of its parts, if you account for all of them.

  11. silver Harloe says:

    Okay, I might be stupid, and please help me if I am, but:

    while I get copyrights and patents as systems of helping innovators profit from their innovations… what I don’t get is:

    a) the idea that copyrights extend beyond the period in which the original author is trying to make a profit. for example: I write a song and copyright it. I “should” be able to make profits from it as long as I sell it as a product. But when I stop? When my CDs are no longer made? Why should my “profits” be protected when I no longer seek any remuneration for my goods?!

    b) why patents are transferable. The idea is to promote innovation by allowing the original inventor to profit from their exercise for a certain number of years. Fine! I’m good with that. But patent transfer means someone who had no inventive ability at all can decide how an invention is used, expanded, or built upon. What the heck purpose does THAT serve?

    In many ways I conflate the ideas of copyright and patent in my head (but not trademark – I understand the concept of “branding” as it applies to a service economy where you might bet that Known Company A can provide better service than Strange Newbie B) – and while I’m not expert enough to advocate their legal conflation, I think both copyright and patents should adhere to a rules of “first inventor only” and “expiration when the inventor ceases to TRY to make a profit from the invention”.

    Oh, sure, lawyers can game my system as well as any other – they can ask the inventor to offer an item for sale long after anyone chooses to buy it… but, in general, I think the idea of “protecting innovation as a source of profit” is what copyrights and patents should be about — as opposed to their current status of “protecting corporate lawsuits from dismissal” and the ‘usual’ proposed status of “eliminating any protection for innovators whatsoever”

  12. Mr. Tramp says:

    Well… Okay. Sure, software isn’t a “hardy copy” product, but it still requires lots of work to produce, the same as food or fashion.

    Try this one, guys: When you get dressed in the morning, you don’t put on a “look” that you’ve purchased wholesale from one particular designer. Instead, you ASSEMBLE your own unique style from a bunch of “off-the-shelf” options, plus perhaps a few small alterations that you make yourself (if you know how to sew).

    Do we have that option in gaming? No, we don’t. We have to buy and then sit down to play a game that is EXACTLY as the one publisher sells it, even if the game is unsatisfying or buggy, regardless of how many good and fun points it has.

    A ha! But, no you don’t have to settle, not if you’re a PC gamer and you have ready access to: MODS! Mods are the ticket to full enjoyment of a game. Swap some mechanics, add items, add stats, change levels…hmmm…Just like getting dressed in the morning!

    Instead of selling games a big “must-have” items in totality, why not sell the components of games? Now I’m not talking about consumers downloading copied stuff, that’s piracy and is a different issue from trademark.

    I like this idea. There’s a car company out there called “Local Motors” that doesn’t sell cars. Instead, they sell car KITS. Why not sell games like the company “Local Motors” sells cars? (Here’s the link to a article about it.)

  13. AR says:

    I don’t see a loss of copyright changing the gaming industry because the industry is ALREADY without copyright, de facto. Getting rid of it legally would just be recognition of the existing situation, but that hasn’t stopped games from being made.

  14. Aaron says:

    a) the idea that copyrights extend beyond the period in which the original author is trying to make a profit. for example: I write a song and copyright it. I “should” be able to make profits from it as long as I sell it as a product. But when I stop? When my CDs are no longer made? Why should my “profits” be protected when I no longer seek any remuneration for my goods?!

    Just because you aren’t seeking to profit from your creation now doesn’t mean it has no value or that you might not want to profit from it in the future. Just because I have land that I choose to let lie fallow doesn’t mean that I won’t want to sow it in the future.

    b) why patents are transferable. The idea is to promote innovation by allowing the original inventor to profit from their exercise for a certain number of years. Fine! I'm good with that. But patent transfer means someone who had no inventive ability at all can decide how an invention is used, expanded, or built upon. What the heck purpose does THAT serve?

    If the original inventor can sell the patent to someone else then he’s profiting from his invention. If he could not sell the patent, then that’s a potential avenue of profit that the inventor does not have. One could argue that allowing a proven inventor to sell his invention to someone else and free himself from the headache of managing the property could spur innovation, by allowing him to focus on inventing something else.

    1. Jeysie says:

      Actually, I’m with Harloe on this one. Copyright should be like trademarks… you use it or lose it. If you’re not going to do something with your idea, let it free to people who will.

      As it stands, there’s a lot of creative things that more or less get lost forever because the creator refuses to do anything with it and just sits on it… and by the time it finally passes into public domain there’s no copies left to build on.

      There’s many many video games that are going to suffer this problem, there’s TV shows it’s also likely to happen to (and has in some cases; there’s some TV series which have episodes and even whole seasons that are literally lost forever), and the problem used to definitely happen with films before they started finding ways to bend the laws for preservation purposes. With how the climate’s changed regards impermanent media and things like corporate copyright that basically never expires, we’re seriously in danger of losing whole portions of our creative culture thanks to copyright gone horribly wrong. The idea is that when copyright ends, the idea then gets passed along to benefit society… except increasingly that part is never happening.

      As for the idea of transferring patents, you should be able to lease production of your patent for a set period of time, then it either reverts to you at the end of that period or if the person/company you leased to stops production on it (whichever comes first). You’re then free to develop it on your own or re-lease it.

      That way an inventor can still lend out usage of their patent if they wish, but we never end up in a situation where someone/thing that didn’t invent the idea has control of it, or, again, people are allowed to sit on ideas and not let society use them somehow.

      1. Felblood says:

        I must disagree with you on the matter of copyrights expiring.

        The need to employ trademarks constantly to retain them has led to a number of less than stellar products being released at times that were detrimental to the franchise and the trademark holder.

        An author should be permitted to authorize printings of his books at whatever interval he feels is appropriate, without some artificial legal rule forcing him to print new copies every seven years.

        If there is a serious danger of a work being lost to history, there are already rules in place to allow for archival copies.

        As to the patent licensing thing. It’s rarely ever a good idea to sell a patent anyway, and you should always license it out instead, if you can. Getting rid of patent sales would be a good move to protect the individual inventor, but it get’s tricky when the original patent holder is a company, who hired a team to develop the technology.

        1. Jeysie says:

          I guess we’ll have to agree to disagree, then.

          Especially since, despite your claims of archival laws (which I don’t think cover all media anyway; certainly it doesn’t cover games, as there’s only now an attempt to legally archive games that’s been busy trying to jump through hoops to get set up), there are films, video games, and TV episodes that have already been literally completely lost.

          And many other things that are only available if you’re rich, because they’re only available on rare out of print media and the only company/person with control refuses to sell it ever again.

          The point behind copyright is to let the creator profit from and develop their work, not to let them lock it away from society forever (which is what effectively happens frequently now that companies are allowed to hold copyrights).

  15. Daemian Lucifer says:

    I always thought that it would be way better for movie industry if they removed all copyright,and instead made movies either specifically for theatres,or make a very limited number of dvds sold for large sums,but that included autographed pictures of the cast.This way,anyone can see the movie,but if they want the full experience they have to go to the theatre,or if they want to own something physical and valuable,they need to buy the ultra pricey dvd.Of course,this would mean that movie makers would need to put extra effort in every movie in order to become so good and popular that people are willing to pay for the tickets,or the ultra pricey dvds.

    However,this wouldnt work with games.Sure,you could make figurines and such to up the price of your game,but I doubt it would pay off on the long run to focus just on that.Unlike music and movies,games dont have that much other things you can sell with them.Except for multiplayer servers.Though I dont think many people would like it if games became multiplayer only.I know I wouldnt.

  16. Mephane says:

    On a totally unrelated, off-topic note:

    I'm all for this style of free-for-all where ideas are free for the taking but you still have to realize them yourself.

    English is not my native language, and I had always learnt that “to realize” never means “turning an idea into a real thing” (like the German “realisieren”), and using that word in this fashion would be a major mistake.

    I’d assume a native English speaker would probably know better than my English teacher in grammar school, but I’d still like to have some clarification here, heh.

    1. Daemian Lucifer says: says this:”2. to make real; give reality to (a hope, fear, plan, etc.).”

      1. Mephane says:

        Weird… I learnt that it meant something similar to “to understand”…

        1. krellen says:

          Like many English words, it has many nuanced meanings. That’s part of why English is such a bitch to learn.

  17. vede says:

    Shamus, there’s another group of people who produce content for free, and they have been for quite some time. And they’ve been the largest portion of the “anti-copyright” crowd for a very long time, while not being pirates at the same time. That is, everyone who works on open source software of any kind. While not all are against copyright, a hefty few are, and almost all people who ascribe to this demographic tend to be averse to patents of any kind.

    Unless you’re trying to call the open-source crowd pirates, but I doubt that, since that’d just be rude.

    And software has a stupid amount of patent cruft. And there are patents for some really, really asinine things. For example, Amazon’s patent on a ‘method and system for placing a purchase order via a communications network’. A patent on internet shopping, essentially.

    I’m also one of the few hardcore pinkoes who’s against all forms of copyright and patents, both. As far as I can tell, the only purpose they serve is to allow people to act like they own ideas, and restrict the creative freedoms of everyone else. I’d like future generations to be able to create whatever they want, without having to worry if someone fifty or a hundred years back already ‘owns’ that concept.

    1. krellen says:

      The original purpose of patent and copyright was to secure rights for a limited time. The eternal copyright is a relatively new concept, created largely thanks to lobbying by Disney (yes, seriously.)

    2. H.M says:

      As someone who creates art for a living, that is a load of crap. Whats the point of trying to create interesting characters and stories if anyone can just steal it and claim they came up with it first? I’d have no way to protect my own creations

      Yeah, copyright and patent is abused quite a bit, but I’d rather have that than no system at all.

      1. (LK) says:

        Arguably, the only reason you’re for it is because you’re a part of the privileged minority who benefit from it more than they are harmed by it.

        Outright theft of works without any protection against that is a form of parasitism. Do you know what, though? So is degrading the best interests of society and law as a whole in order to benefit the livelihood of a cadre of artists and businesses.

        There is no moral high ground in the discussion of copyright. It is, and always has been, one selfish cause arguing against another selfish cause… and the best ideas for improving the system come from people with the humility to look beyond “well, I might make less money! I don’t want that!”

        1. H.M says:

          So… its parasitism to want the rights to what you make yourself? This isnt so much a matter of money as it is that I want the final words what is done with MY work. I should have the right to sell my work without having to worry about someone simply stealing it, then claim they made them, or simply take for their own use. If I give them permission, fine, but otherwise, it belongs to me. This isnt up for discussion, you dont have to read my stuff, nobody is forcing you.

          Exactly how is it selfish to expect not to be exploited by the people you try to entertain?

          1. (LK) says:

            Attribution rights are trivial and are the most basic of copyrights. You can even reserve attribution rights in open source licenses and creators often do. You can also reserve the right to specify who is allowed to use your work. An example of both can be seen in the Creative Commons Attribution Non-Commercial license for example. The rights reserved by that particular license are very open, very lenient, yet wholly preserve your right to (in this example) deny commercial use of your work, and any distribution that doesn’t give you credit.

            If all you care about is the control of your work that is trivial to retain without requiring a system of the size and complexity which currently exists.

            What’s selfish is denying, ignoring, or otherwise allowing to persist the fact that the current system is a detriment to others. Expansion of copyright protections and breadth in recent history is often synonymous with the curtailment of free speech and other basic human rights.

            This is how it is selfish. Your hard-won copyrights have been swollen to the point that the system which grants them has begun encroachment on basic human rights. It also has been used as a de facto annulment of a number of consumer protection rights which were won with very difficult legal battles.

            Copyright as it exists today is removing rights from other people while claiming to be to protect these simple, reasonable rights you want for your works.

            You’re for it, because all you want is these simple, reasonable rights and that’s all you care about… but this is selfish, because it irresponsibly ignores the preponderance of the laws responsible, many of which are a detriment to free society.

            People chime into these discussions, without much grasp of copyright, and say “well, we need copyright, I need to make a living from my work! I need the right to control it!” But what they fail to comprehend is that this vast system which falls under copyright also removes civil rights, consumer rights, etc. and that ignoring these detrimental effects they’re saying that they don’t care that their ability to make a living and control their work adversely affects the civil rights of the entire society or even world in which they live.

            So, selfish. Yes, that’s correct. Maybe you need copyright, sure, but if you want it you need to be responsible for the whole of it, not just the parts that immediately interest your needs. Narrowing it down to just the parts that you care about and defending the rest as necessary so you can get those parts is shamelessly self-absorbed and, as such, it is extremely selfish.

      2. Blake says:

        I’m assuming you’re a writer here,
        I agree that you need protection for the story in it’s entirety but that the characters themselves, individual plot lines and general story are not anything that should be protected.
        Imagine if someone tried to patent the monomyth/heroes journey or any narrative or character archetype.
        One look at TVTropes reminds you how many stories reuse the same elements just in a slightly different fashion without harming creative innovation or cutting into the writers profit margin.

        If people want to reuse your characters and sell those stories then they should be able to try. I don’t think fanfics would sell that well.
        If people tried to reuse your stories and sell them on the cheap people could buy cheap knockoffs but wouldn’t buy any stories from that writer again as it would likely be an inferior product.

        So long as they’re not using your exact words I feel your work should be free for others to use.

        1. Syal says:

          What counts as a character here? Robert Jordan was just a pseudonym; does that mean everyone can call themselves Robert Jordan and write Wheel of Time books?
          Also, I’m wondering what would happen when someone releases the first part of a trilogy or epic, then someone else releases the same book but ties up all the loose ends and adds, “The Complete Novel” to the title. Assuming the knock-off writer is talented, would people stick around for the sequels?

          1. El Quia says:

            Well, that happened with the Quixote. After Cervantes wrote the first book, someone under the pseudonym Alonso Fernà¡ndez de Avellaneda wrote a second part. The book was so bad that Cervantes got angry at it and went and wrote the second part of Don Quixote just to disprove Avellaneda’s version and give a “canon” second part. If it weren’t for Avellaneda’s book, Cervantes would have never wrote the second (and, in my opinion, best) book of Don Quixote’s adventures.

        2. H.M says:

          Right, but I dont think that. And well, writer AND actual artist I suppose, but since both could be reused and essentially stolen without my permission in this case, lets go with both.

          Okay, so according to your logic, I dont have the rights to anything I create, and sell, because ideas and concepts should be free for anyone to screw around with as they see fit. So say I make stories and characters I care about, and want to be able to tell others. Now according to what you want, anyone can just take them, and screw them up however they want, and I wont be able to protect my own creations. My only option would be not to create anything at all

          Yeah, a lot of incentive, right there

          1. acronix says:

            Actually, you have another one: have a better marketing campaign than those that used your ideas. Both options stink, because it favors the wealthy man instead of the creative one, because writting/etc well isn´t in itself enough publicity to sell.

            1. (LK) says:

              The current system favors the wealthy more than it favors the more creative or skilled, also.

              That is why such a thing can exist as the modern games publisher. They provide the capital for marketing, for mass production, for worldwide distribution.

              This is why a game without such a publisher, an indie, can be of the same quality and creative value as a similar game released by a major publisher, and yet be considered a success with the kind of sales figures which a large publisher would consider an abject failure.

              Making the largest profits in the game world is reserved for those with the deepest pockets to handle the logistics of the market and advertising.

              It’s really no different with writing books, either. A skilled author is going to make much more money if they can get a deal with Random House than they would with a vanity publisher.

              Thankfully, skill alone can land someone such a deal with a publisher. Ironically, however, such a deal also can entail surrendering some creative control over their own work… precisely one of the reasons that people desire copyright!

          2. AR says:

            You know, this IS essentially how Japanese doujin culture already works, right? That doesn’t stop talented people from creating original content, and people still pay attention to who created given characters first. But you also get massive amounts of fan-made work that can also be very high quality, that couldn’t exist if the original author tried to assert exclusive control.

            Your hypothetical examples of people just forgetting the original author are absurd. A fine example is the Touhou series. The amount of fan generated content far exceeds the main series in both volume and, in many cases, quality, but it is still the case that only the original creator can make official games, which are still considered canon.

            Rather than imagining all sorts of crazy scenarios where authors are forgotten, maybe we should be wondering about all the original content that we are missing out on because people can’t freely produce content based on others ideas.

  18. Felblood says:

    There are a lot of serious problems with the patent and copyright systems, but simply abolishing them is not a solution.

    This is akin to the crazy old woman upstairs, who stands on her balcony screaming at me to take my car to the junkyard, whenever I go out to work on the engine. Sure it solves the immediate problem of needing to do repairs, but it would cause an even bigger problem in that I wouldn’t have a car.

    Patents on basic game design concepts, like loading mini-games and directional arrows, need to go away, certainly. In fact, game makers who build their game around a single mechanical gimmick will be dismissed as hacks by anyone who knows anything about the industry, so you could argue that these sorts of patents do not even protect creativity. After all, nobody would grant a mechanical engineer a patent on the inclined plane, so why should the mini-map and the interactive loading screen be in danger?

    However, copyright and patent still needs to protect complete programs, and the muddy art versus invention nature of software means that you probably need both to be safe. There’s a lot of great accounting software out there, and the people who made it deserve to profit from it, without having to compete with recompiled mods of their own work (which is not to say that the end user shouldn’t be allowed to apply mods his legit copy, once he’s paid for it.).

    Copyright in general is quite restrictive, but those restrictions exist for the same reasons that patent needs to protect finished games. It would be nice if we could all agree on whether a program is a work of art or engineering, but until that day comes, we need both kinds of protection. Patents protect the mechanical parts of your game, like the graphics engine and the physics, but copyright protects the narrative and dialogue(though not the generalized events or plot structure, for the same reason you can’t patent the pulley).

    Trademark protection (which even the fashion industry still has) is the most important for protecting and encouraging creativity. I know nobody important has come against this in a serious way here, but we can’t over-express that this is critical.

    Ideally, trademark would be the biggest (not the weakest most under billed) part of a games legal protection. You might not be able to patent or copyright the idea of a magical, time-traveling samurai, who fights an undead army led by a shape-shifting embodiment of evil, but if anybody wants to imitate you, he still has to make his own time traveling samurai story, because your character, his name, and his character design, are all trademarks of your franchise and part of a world that you have ownership of.

    This is key to protecting your brand from profiteers, who would pillage your franchise’s IP to make a quick buck, and associate your trademarks with inferior products. Imagine the cash-in movies, and lead painted Chineese toys that would flood the aisles, after the launch of every successful franchise. Sure, this also restricts creative people from doing good things with your setting, but so long as the building materials you used can be emulated, it actually pushes people to create interesting settings and characters of their own.

    Consolidating the strength of our legal protection within trademark is would definately be a plus for innovation, but trademark protection from derivative works, wouldn’t be adequate without some form of protection for complete programs.

    Personally, I think that the patent thing should be dialed back, and that copyright should be made stronger, simply because copyright is less prone to abuse by people who will try to hoard game mechanics for themselves. On the gaming side, copyright and trademark alone would be enough, but some measure of patent protection is needed for the guy with the innovative new data encryption program, or the clever new database software.

    1. (LK) says:

      The trademark system does actually need a fair amount of reform too, as it’s full of just as many trolls as the patent system.

      c.f. Monster Cable, and EDGE-trolling.

      Any system which allows completely unveiled parasitism and predatory profiteering may have long overstepped the point at which its’ protections were simple necessity.

      1. Felblood says:

        “Any system which allows completely unveiled parasitism and predatory profiteering may have long overstepped the point at which its' protections were simple necessity.”


        If a system is being abused, it probably isn’t necessary anymore? Is that what you’re saying? Because if it is (and I’m not terribly sure, so forgive me if I’m wrong) I don’t see how those two things could be that closely correlated.

        People will try to abuse any system that exists; it’s basic human nature to act like a selfish douche. If a system is being successfully abused in a consistent way, like what Tim Langdel is doing, then it needs to be fixed, but the presence of Langdel doesn’t mean Trademarks themselves are evil. Honestly, most of Langdel’s jackassery would be stopped if the trademark office simply started reading his applications before filing them, since single English dictionary words (like “edge” or anything else you can play in Scrabble) can’t be trademarks without a very specific context.

        I’m not arguing against the reform of all three of these systems, I’m just saying that a reformed trademark system would be a more effective way to protect the valuable parts of video games, without trampling the creative freedom of rival companies.

        It wouldn’t be enough to protect the code itself, which would need copyrights, or (less desirably) patents, but it is a valuable tool. Blood, I’m not even saying it’s essential. Manga continues to sell in Japan in spite of the thriving market for Doujin comics (which are basically commercially viable fan-fiction).

        Trademark does a decent job of keeping people out of eachother’s yards, right up until some lunatic pulls the fence out of the ground and throws it at a house. –and you can hardly blame that sort of behavior on the existence of fences.

        1. (LK) says:

          The point was that if the system makes it so easy to consistently abuse it… to the point of making a career out of exploiting the failings of the system, then it’s swollen to a point where it places an unacceptable preponderance of rights and privileges in the hands of IP holders at the expense of accomplishing its’ purpose.

          Basically I’m just saying trademark law is also severely broken and needs reform.

          You were advocating for more use of trademark law and presenting it as a useful tool in this situation if it were used more heavily. I had to point out that trademark law is royally screwed, too.

          All three of these systems have grown past the protections and litigation options that are actually necessary to accomplish their purposes.

          Simply: the systems need to be pruned. They do as much or more harm than they do good, because they give too many rights and bestow too much legitimacy to trolling and predation.

  19. Nick says:

    An example of how stupid the patent process is:

    Method of swinging on a swing

    1. Jarenth says:

      Inventive kids and handy parents the world over owe one Steve Olsen a great debt, it would seem.

  20. Emm Enn Eff says:

    I’m fairly certain that in software, the idea is not the product. The same goes for movies, music, and books.

    Ideas are easy. Coding a good app is hard. If it wasn’t, most programmers would be out of a job. Likewise, filming a movie isn’t free. Writing a book, or some music doesn’t take 0 hours, either.

    No, I’m not advocating that someone should be able to grab Microsoft Office, hack the binary, change a few string constants, and sell it as “Bob’s Office.” That’s stealing an implementation of an idea.

    But nothing should stop them from coding their own Bob’s Office, from scratch, with the same feature set, and using the same algorithms as those used by Microsoft. To make a car analogy, I’ll take a wild guess, and say that the basics of a Ford 6-cylinder engine don’t differ much from a Crystler one. The algorithm is the same, the implementation differs.

    The problem with software patents, is that algorithms, and ideas can currently be patented. Never mind that algorithms are more like cooking recipes, being a set of instructions, and that jerks that patent ideas like “One click shopping” and “Interacting with avatars in a virtual world”, without actually implementing them *strangle* innovation. Innovation that is supposed to be encouraged by copyright and patent law, rather than discouraged.

  21. Jon Ericson says:

    A few years ago, a friend excitedly asked me if I wanted a DVD of X-Men before the movie was even released to theaters. He didn’t care about X-Men or comic books or even the movie itself. He was thrilled that some guy had smuggled a video camera into a pre-release screening and posted the file on the internet. That guy was never a customer for Marvel or Fox or any local theater chain. True fans of the movie and/or the characters would never bother themselves with such a sub-par experience. (The talk pointed out the same is true for high-end fashion.)

    For the record, I wasn’t a customer for either the pirated DVD or the movie. I waited until it came to the video stores to rent it.

    In the absence of copyright protection, and to be objective copyright protection is pretty much a joke already, content producers have to make the paid experience better than the free experience. At the moment, the situation is reversed for PC gaming. Downloading the pirated version of many games is a much better experience than playing the legitimate version.

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