I am a game developer and a writer. And I do not support SOPA or PIPA.

Why?

Because I rely on the Internet and copyright, and these laws would undermine both the Internet’s functionality and the perception of copyright by the public in ways that would negatively impact me.

Some Copyright History

Copyright is complicated. There isn’t one law you can look at that incorporates the entirety of it. I wrote an article long ago as a what an indie game developer needs to know about copyright, but a lot of copyright law is related to court case rulings, so to really understand copyright, you probably need an expensive lawyer.

And that’s a mere symptom of the issues I have with SOPA and related laws.

The U.S. Constitution has what is known as the Copyright Clause: Article 1, Section 8 of the US Constitution specifically says that Congress shall have the power to “promote the Progress of Science and useful Arts”, and it specifies how Congress shall do so: “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Some people have this backwards and they think that the purpose is to protect creators, but copyright is supposed to be a means to encourage the creation of useful things.

Copyright used to last 14 years, with the right to renew for another 14 years. New laws changed the length over the last couple of centuries, and today we have copyright lasting for 70 years plus the life of the author, or in the case of a corporation, 95 years from publication or 120 years from creation, whichever is shorter.

Stacking the Deck

Effectively, copyright is no longer limited. Whereas creators from 50 years ago were able to depend on a rich replenishment of the public domain in their lifetimes (Disney was able to leverage the public domain to build up a very successful company), creators today see that the public domain hasn’t changed since that time. The constant change in copyright law and copyright length benefits those creators and businesses who have the resources and existing copyrights while making it more difficult for new creators and businesses.

Recently, the Supreme Court said that the public domain isn’t permanent, and while the case was about granting copyright to foreign works that were supposed to have copyright in the first place, the idea that the public domain can be made even smaller by an action of Congress stinks for new creators.

But even if you forget about the benefits of a healthy and rich public domain, copyright laws have become more and more biased towards large, existing companies and organizations.

Abuse of Copyright

Remember the Digital Millennium Copyright Act (DMCA)? It was signed into law in 1998, and among its provisions, it made it a felony to merely own the means of circumventing copy protection mechanisms, even if you didn’t use the means. Even if you did circumvent the protection and weren’t committing infringement as a result.

The DMCA was supposedly necessary to protect jobs and copyright owners, yet it was horribly abused, even by those who weren’t trying to protect their copyright at all. Google found that out of all of the takedown notices it has received, more than half involved a business issuing a takedown against a competitor, and over a third were for invalid copyright claims.

For one example, under the DMCA, Viacom issued thousands of takedown notices to YouTube, and some of the content taken down wasn’t Viacom’s copyrighted works. In another example, Walmart, Best Buy, Target, and a number of other retail stores issued a takedown notice to FatWallet.com to force them to remove user-posted sales prices for their Black Friday sales, even though price lists don’t fall under copyright.

In both cases, large companies with lawyers on staff were able to leverage the law against someone else’s legitimate postings. If you are targeted wrongly by a company using the DMCA, your recourse is expensive and slow.

You can read more about other DMCA abuses at the EFF’s Ten Years of Unintended Consequences page, but these abuses are getting to the crux of the matter.

The DMCA wasn’t about protecting copyright. It was about control.

Respect for Copyright Eroded

In the past, most people didn’t create copyrighted works. It was expensive to create and distribute books, movies, TV shows, and other content. There were gatekeepers and high barriers to entry. You needed a lot of capital to start a business that relied on copyrighted content.

Today, 48 hours of video gets uploaded to YouTube every day, and most of it is not produced by the MPAA. Today, print-on-demand and ebook publishing means there are more self-published books than traditionally published books. Today, many long-standing newspapers have found it difficult to compete in a world of citizen publishing. Today, the Internet and social media has created plenty of successful new business models.

And yet we keep hearing about how the major media companies are threatened by all of this individual expression and creation, as if a few companies are supposed to be the sole producers of culture and content.

The problem is, a lot of people act as if the media companies are right!

Most people don’t have much education about copyright law. Again, part of this is because of how complicated the law is, and partly because historically most people didn’t create copyrighted works. But part of it is because the major media companies have done such a good job of telling this story. Politicians are heard parroting absurd numbers provided by the MPAA and RIAA, and any media coverage is entertainment anyway so forget about getting the facts there.

So even though copyright is a tool for all creators, what happened is that the general public views copyright as a tool of the major media companies to abuse customers and make more money. And when laws like the DMCA and SOPA are supported by politicians who clearly have no idea what impact the laws would have on new businesses and new creators, it furthers this perception of copyright as a tool of companies who can afford to buy it.

SOPA and PIPA

If you still don’t know much about SOPA or PIPA, they are twin pieces of legislation that are supposedly about protecting U.S. copyright owners against offshore rogue websites dedicated to piracy. In reality, they would do nothing to prevent actual piracy while giving major media companies more tools to (ab)use the public with. Here’s a very informative video explaining the problems with how these laws would “work”:

Now, there’s a lot of problems that people have identified. Some of it sounds overly sensationalized, yet information security experts, free speech experts, computing experts, and business experts have all agreed that the problems are real. But I’ll leave it to them to talk about the technical, financial, and social problems with the proposed laws.

SOPA supporters say that the people who are opposing it are bringing up worst-case scenarios and that the imagined abuses wouldn’t happen in real life. Well, companies such as Viacom have shown that abuse will happen, and likely sooner than later.

The infamous comparison by the MPAA that the VCR is like the “Boston Strangler” and the broadcast flag regulations are attempts to control when and how people watch movies and TV. SecuROM are attempts to prevent copying that sometimes worked so well that legally purchased games wouldn’t run on some computers. Sony BMG’s rootkit made many legitimate music CD customers unhappy when their computers were compromised, especially as the company’s President seemed to shrug about the issue. And so on and so on.

Why I Care about Copyright Law

The failure rate of entrepreneurship is high, and I have enough trouble bumbling through learning how to run my own business. This crony capitalism makes it harder for me as an independent game developer.

There are new businesses taking advantage of the reality of the Internet. We like being able to take advantage of the ease of creation and distribution. Why do we have to worry about old businesses changing the laws in order to break what new technology allows so that they can continue their old scarcity-based business models? Why are they more important than the people starting new businesses and creating new jobs, especially in this economy?

When they cry that they are having existential dangers that need to be stopped while simultaneously reporting record profits year after year, why is the U.S. government saying that “online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs”? Who told them that? Where is the actual evidence? The Cato Institute analyzed the numbers presented by the MPAA, and it seems we have been conned.

And after all of the duplicitous, all of the lobbyist money buying regulations, laws and policies, and all of the chafing, I am supposed to expect that my potential customers will respect copyright law, no matter how absurd and one-sided it gets? I can’t make a living in a world where the major media companies get their way.

And they’re fine with that. Less competition for them.

And if the above didn’t convince you of the problems we’ll be facing in the coming years from the established media companies, this TED talk by Clay Shirky is a quick summary of the problems laws like the DMCA and SOPA/PIPA pose to small businesses and individual creators:

Why I Am Against SOPA/PIPA is a post from: GBGames - Thoughts on Indie Game Development

I had two roommates in an apartment-like dorm. The one I shared a bunk with was still asleep, but the one who was usually secluded in his room came out and told me to turn on the TV news.

I watched a building with smoke billowing out of it, and there was some speculation that a plane had accidentally flown into it. No one knew if it was an attack. Shortly after, I saw live reports of the second plane flying into the World Trade Center buildings, and it was clear that it was no accident.

Our neighbors across the hall knocked on the door, and we all watched the news in silence. Footage of the planes slamming into the buildings repeated, and news anchors provided what info they could, even though no one knew what was happening. Occasionally someone would say something, but we were otherwise numbed and unable to speak.

My other roommate appeared and asked what was going on since so many people were in our living room. I remember feeling a bit guilty that I didn’t think to go wake him up. He did a literal double-take when he saw the TV footage.

People were reported to be jumping out of the burning towers, which eventually fell as well. The Pentagon was attacked, and we heard the relatively good news that one plane crashed in a field instead of hitting its intended target. One neighbor said it looked like the fall of Rome, and I remember being bothered by the statement at the time but in a way I couldn’t put to words. It was all horrific, and the footage was on constant repeat.

I remember my mother called me, which was difficult since the phone lines were tied up. Everyone was calling everyone, it seemed. “Where are you?”

“I’m at school.”

“What are you doing there?!”

“Mom, I live here.”

Even people who live in the Chicagoland area sometimes think that all of Chicago is Downtown Chicago. Even though I was miles away from downtown, my mother probably thought I was hanging out near the Sears Tower, which I’m sure everyone thought would be a potential target.

I knew of only one person in New York, a prominent QBasic game reviewer, and I was relieved to find out he was safe.

The school set up some TVs in the cafeteria, and I spent part of the day with friends there. Eventually I realized that I was getting fatigued by the news on repeat. It was a lot to process and take in. There was so much death and destruction, and while I was aware that people might be used to such attacks in some places in the world, it was the first time I can remember seeing such an attack so close to home.

I recall the face of Osama bin Laden appearing on TV, with people speculating about his involvement, and I remember thinking that we don’t know who did it, and yet now everyone in America who looks remotely Middle Eastern will be suspected of being a terrorist. I was reminded of “The Siege,” a movie starring Denzel Washington, Bruce Willis, and Annette Bening. There is a scene shortly after a terrorist attack with talk radio personalities arguing that we should deport all Arabs, since we “know” they’re the ones responsible. Everyone was afraid of everyone, and I worried it was going to happen in real life.

One Muslim friend of mine reported being on a crowded El that week and wondering why no one would take the seat next to her, until she realized it was because everyone was afraid of her. If you knew her, you’d realize how laughably absurd it is to be afraid to sit next to her, and yet that was the climate of fear the country was in.

I remember going to class downtown the next day, and while waiting for the elevator, a friend asked me if I was nervous. I said I wasn’t, because I figured the day after an attack is probably the safest time to be anywhere. In the days that followed, though, I was incredibly aware of the fact that the Sears Tower was mere blocks away, and I couldn’t help but imagine how terrible it would be to stand where I was and witness it burn and fall.

There was a lot of ugliness on September 11th, and at times you couldn’t believe that the only thing we have to fear is fear itself the way the media and politicians went on, but I remember some things that weren’t horrible. While I didn’t know anyone who had died in the attacks, and I don’t think I knew anyone who knew anyone either, there was a lot of goodwill and love. I remember a number of us were being turned away when trying to donate blood because so many people were trying to help. It seemed every other person had shirts proclaiming that they hearted New York. Everyone was a New Yorker. The outpouring of support from the nations of the world included statements like “We are all Americans.”

With so much support, goodwill, and strength, how could the attacks possibly compare to the fall of Rome?

In the years to follow, I remember recounting the day with friends every so often, and I realized that “Where were you on September 11th?” was going to be a question along the lines of “Where were you when John F. Kennedy was killed?” A friend said his alarm woke him up because a radio personality was saying that if you’re just tuning in, you’re waking up in World War III, which he initially dismissed as some alarmist version of what might likely be a relatively benign event. Another was interviewing for a job and saw the flags at half mast upon arrival.

In all of these stories, it seems as if time stands still for the person when he/she realizes what happened. Priorities become reevaluated. And there is always this feeling that it was an unreal experience, as if this remembering was not of the past but of a bizarre dream.

I wish I had a good moral or point to tell. Maybe if I was a better writer, I could turn my story into a point about the dangers of fear, about how terrorism is about terror, and when we allow ourselves to be afraid, the terrorists have done their job. Maybe I could even throw in the well-known quote by Benjamin Franklin on those who deserve neither liberty nor safety. But in the end, it was a horrible morning involving a lot of suffering and death and destruction, and this article was merely my memory of it.

Where Were You On September 11th, 2001? is a post from: GBGames - Thoughts on Indie Game Development

There were three priests playing pool. One of the priests asked the others, “If you knew that the world was going to end in the next 10 minutes, what would you do?”

One priest answered, “I’d go to the church and lead the people in prayer. I’m sure there will be plenty who are afraid or lost, and I would want to be there with them to pray for forgiveness and strength.”

The next priest said, “I’d go home and pray alone, as Jesus suggested was best in the gospel according to Matthew. I’d shut myself in my room, and I’d pray for forgiveness and strength.”

The two looked at the third priest and asked him what he would do. He replied, “I’d finish this game.”

The End of the World is a post from: GBGames - Thoughts on Indie Game Development

Check out the 2011 candidates to get your last minute votes in!

This post was scheduled to be published at a time when I will not be able to access the computer. I’ll respond to comments when I return at the end of the month.

Last Day to Vote! is a post from: GBGames - Thoughts on Indie Game Development

Opinion: The “Virgin Mary” of Video Games? is a piece at GameDev.net by Lew Pulsipher, a board game designer and game design educator, which analyzes the predominance of games that depict violent death.

He links to a short post by John Sharp in 2009 which asks the following question:

If representations of Mary are used as evidence of the centrality of Christianity in the culture of the Italian Renaissance, what does the preponderance of guns say about our culture, and more specifically, the cultural form of games?

Pulsipher argues that guns are too specific, especially when you consider the vast majority of games set in a fantasy environment in which there are no modern weapons, and posits that a large number of games depict violent death.

He doesn’t question why it is so. He doesn’t demand the game industry account for itself. He and Sharp both simply question what it says about our culture that our entertainment is so violent.

And they’re not the first ones to ask this question, and it isn’t just games. Why We Watch: The Attractions of Violent Entertainment is a book from 1998 that explicitly analyzed not how violence in our entertainment affects us but why we specifically look for it.

There’s an article on video games by Jeffrey Goldstein in this book that mentions Mortal Kombat. If you recall, there were two versions released for home consoles at the time. The Sega Genesis version had all of the blood and gore included, but the Super Nintendo version was toned down.

Although there were more Nintendo than Sega game systems present in U.S. households, the bloody Sega version of Mortal Kombat outsold the less violent version by about 7 to 1.

The article goes on to discuss the distinction between aggressive behavior and aggressive play, and it says that there are 25 possible reasons for an appeal to the latter ranging from biological to psychological to social reasons. One reason children war play or enjoy violent media is surprisingly out of a need to seek out justice. After all, it is more enjoyable to see a film about a violent criminal who is caught and brought to justice than it is to see one about an unresolved murder.

And again, the book that this article comes from is from 1998, so the questions asked aren’t new. I do think, however, that there aren’t many answers that have been provided since then. There is, of course, the notable exception of Everything Bad is Good for You by Steven Johnson. Johnson argues that the content of the video games isn’t as important as the form. That is, the systems of the game provide the appeal and benefit rather than the actual content.

But it doesn’t explain why a bloodier Mortal Kombat sold so much better than a toned-down version, although marketing could have much to do with it. And it also doesn’t explain why video games tend to focus on conflict and violence as themes, especially if they don’t need to do so.

So what does it say that most video games are violent? Pulsipher says he doesn’t know and would like his article to stir up some discussion. Goldstein mentioned a number of possible explanations, but he admitted that there isn’t much research to indicate what may or may not be the case. Hasn’t there been any more thoughts on it? Are depictions of violence in video games indicating a problem or a cultural bias in learning, or is the content unimportant?

To put it another way, what would it say about our culture if violent depictions in video games were incredibly rare? Would it indicate that gamers are more civilized? Would it mean people weren’t gaming anymore?

Does violence in video games stop appealing to gamers as they mature, or is it a certain type of person who specifically doesn’t enjoy games which feature violence heavily in their themes?

Do you know of further research which indicates what violence in our cultural artifacts means? Are games inherently good for exploring themes of violence, struggle, and survival, or is it simply easier for game designers to focus on such games?

(Photo: Fight Club by Polina Sergeeva | CC-BY-2.0)

Depictions of Violent Death in Games is a post from: GBGames - Thoughts on Indie Game Development

LD#15: My Time Lapse is a post from: GBGames - Thoughts on Indie Game Development

I did it! I submitted my entry just in time for the end of the competition, too! And it is the first time since LD#11 that I’ve submitted a game with audio, no matter how jarring!

You can download the GNU/Linux version here: Mineral Miner for GNU/Linux: 1.2MB

I’ll try to have a Windows port up as soon as possible. Mineral Miner for Windows: 2.1MB

Controls:
Use the arrow keys to move around.
Press the space bar to jump into and out of the front of your tank.

Collect all the minerals and return to the exit to finish the level.
You can only hold one set of minerals at a time. Return the minerals you collected to your tank to collect more.
Watch out for monsters! If you get too close to a monster lair, a monster will come out and attack you. You’ll have to find a way to stop them from coming out.

Congratulations to everyone who participated and finished a game in 48 hours!

LD#15: Mineral Miner – Final Entry is a post from: GBGames - Thoughts on Indie Game Development

Copyright, trademark, and patent laws were created to provide the latter in the hopes that it encourages the former. While anecdotal claims have been around for some time which insist that patents are stifling innovation, especially in the realm of software development, the prevailing view is that patents are good for innovation. Of course, that claim is also anecdotal.

Dr. Andrew W. Torrance and Dr. Bill Tomlinson simulated different types of patent systems, using PatentSim, which sounds like an MMO based around owning and utilizing patents. Based on their simulations, using different patent models, they found that the data “suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system.”

Read about the study at Patents and the Regress of Useful Arts.

Changing the US Patent system is tough, especially since so many businesses exist with an interest in keeping the status quo, but if promoting the useful arts and sciences can be more effective by NOT continuing with current practices, it sounds like “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” was an erroneous assumption on the part of the Founding Fathers.

Do Patents Stifle Innovation? is a post from: GBGames - Thoughts on Indie Game Development

Modern cars are equipped with computers, which means repairs and auto work now require more than just hitting your engine with a hammer. It seems that in order for non-dealership service shops to fix your cars, they need to circumvent the encryption of your engine.

And of course, according to the Digital Millenium Copyright Act, circumventing “technological protection measures” is a felony.

The DMCA was passed under the impression that artists and authors would produce more creative works since without these protections they had no incentive in the modern age. What we’ve seen is security researchers barred from discussing research on computer security, which also discourages said research in an age when we need such research the most. What we’ve seen is Wal-mart, Best Buy, and a number of other major retail companies use the DMCA to prevent comparison shopping websites from posting uncopyrightable prices. What we’ve seen is the removal of public domain works from sites such as The Internet Archive. For a list of abuses as of 2003, see the Electronic Freedom Foundation’s list of abusive DMCA subpoenas and takedown demands.

The DMCA doesn’t require the accuser to demonstrate proof. No judge needs to be involved to allow overreaching takedown powers. If the accuser sends a notice to an ISP, the ISP needs to take steps immediately or be found at fault and liable for damages. If you upload a video you made to YouTube, and Viacom or 20th Century Fox sends a DMCA notice to YouTube accusing you of uploading THEIR content, you can defend yourself…after the fact. Most likely you will find that your video has been removed, even if it was completely original and under YOUR copyright. Imagine if Microsoft or EA managed to get your game removed from your servers by sending a DMCA notice to your ISP.

And now apparently the DMCA is being used to lock-in service work for car dealerships. Seriously? In this case, it doesn’t even involve a copyrighted work! It also discourages hobbyist car mechanics from tinkering with their cars. It’s disgusting.

So apparently after the DMCA gives all of these absurd powers away, we need laws to patch up specific abuses. Researchers can do research under an exception. If you’re blind and want to be able to listen to ebooks? You need an exception. Now there is a Right to Repair Act on the way to allow people to take their cars anywhere they want for service. Where’s the Right to Repair Act for everything else?

The public loses again.

Another Abuse of the DMCA is a post from: GBGames - Thoughts on Indie Game Development

Doctorow suggests a fascinating idea: self-service licensing. Let’s say you create a game, and someone wants to create plush toys of the characters and sell them online. Technically, it’s illegal unless they get your permission. Disney, for instance, would want you to negotiate an agreement with their expensive lawyers…which requires you to hire your own expensive lawyer. Unless you’re a huge manufacturer and intend to sell to hundreds of thousands of customers, it’s not worth the expense and effort.

But you’re an indie. You don’t have an army of lawyers on staff. Your staff might consist of just you, in fact. So if someone wanted to make a plush toy out of your video game characters, and you had no problem with people doing so, even for commercial gain, but wanted to make sure you were protected, what could you do?

Your options used to be sticking your head in the sand, risking the dilution of your trademark, giving permission but worrying about what legal rights you might accidentally give away, or preventing people from making what are essentially derivative works without your consent. But why not just give them consent? After all, it isn’t your core business, and they’re taking all the risk. Wouldn’t it be nice if you could make an agreement with them without having to negotiate over the course of weeks or months?

Doctorow suggests some general wording that covers your obligations to your own trademarks and rights while also allowing others to understand what they can and cannot do and how you expect to be paid from their profiting off of your works.

The key part is simplicity:

Complexity is your enemy here. Two or three sentences are all you want, so that the idea can be absorbed in 10 seconds by a maker at three in the morning just as she embarks on an inspired quest to sculpt a 3D version from your logo using flattened pop-cans.

The secret to simplicity here is in the license fee, the payment schedule, and the enforcement regime.

What’s exciting is that such simplified, self-service licensing opens up potentially multiple market research opportunities! Someone can make plush toys and determine if they sell well WITHOUT you needing to invest in it. They carry the risk, and you can earn royalties if it works out for them. Someone else can do paper-craft, or craft some earrings, or create a movie, or make a painting, or any number of possible derivative works, carrying all the risk of seeing if there is a market for these things, and if it turns out that there is, you always have the option of doing something bigger with them.

Without self-service licensing, you have to dictate everything yourself. You need to prevent everyone from doing fun crafty things based on your work, but you also only have so much time to dedicate to your own business, which means less time to do anything that could potentially create new markets based on your work.

When I was younger, I drew pictures of Super Mario Bros characters. I tried to sell them at a garage sale and also at a shopping center. Now, keep in mind, I was a child trying to sell pictures I drew, and I had no idea that I was infringing on Nintendo’s copyrights and trademarks. Nintendo wasn’t going to do anything to me because they didn’t even know I existed. But if I had done it today, you could imagine that I would be using eBay or some website, which means the entire world could find me. Suddenly, my personal little craft is just that much more dangerous. Nintendo could shut me down if they wanted to. A lot of the creators of Nintendo-themed woodwork and art are only getting away with it because Nintendo hasn’t pointed their legal team at them. But if Nintendo had a self-service license, it would simultaneously protect their trademark while also allowing fans to create and sell crafts on a small scale. My Nintendo-themed drawings could be sold, legally and without harm, and Nintendo gets a small cut of any revenues I get.

Now, Nintendo might not care too much about the relatively small amount of money that would come their way through such a system, but what about you? Do you have fans that would love to create works based on your game? Wouldn’t it be nice if they were given a simple, safe way to do so? One that would give them peace of mind that they wouldn’t get sued by your company on a whim, and that also lets them kick back some extra money towards you?

And even if self-service licensing doesn’t appeal to you (although I would strongly suggest reading Cory Doctorow’s article to see a much better explanation since it might change your mind), the idea of simplifying your licenses in a Creative Commons way would only help. Copyright is confusing, and most people don’t know what it is, let alone why they should pay attention to your EULA. Why provide 37 sections of legalese when you could tell them what you expect in 4 plain-language sentences?

Simplifying Copyright for the Modern World is a post from: GBGames - Thoughts on Indie Game Development