Games and Copyright

by ahoodedfigure

This is in response to a post Jeff Gerstmann made about the recent crackdown on game makers who clone original work for profit. Cloning is akin to copying, so it may be a clear example of unacceptable activity to some, but the issue is crazy deep. Jeff went into the idea that the prosecution is not so much because they have a strong case, as that the plaintiffs know that the programmers, who are often individuals with little means to defend themselves legally, are more likely to buckle under the pressure. Below I'll try to tackle some of the other facets of this evil gem.

Attack of the Copies

These are more copies than clones, unless you count the armor.Most would understand a book's author going after someone for plagiarizing their writing, in part as well as in whole, or a musical artist going after someone who copied their song. However, games have been subject to very lax standards when it comes to copying ideas. Games in general, I believe, have been treated as second class when it comes to acknowledging creators. This goes for all games, board games included, wherein the industry basically accepts that the rules they write for a game are going to be snapped up by competitors. Outright copying of a game and selling it as your own may be wrong, but you can make a decent facsimile and likely get away with it.

It gets tricky when you think about how software writing has two sides to it, though. What you see on the screen is an end result; there's a lot going on in the code that you'll likely never know. If someone can program a clone of a game on a system that's never had it before, or they write very elegant code that totally trounces some bulky original version, this needs to be recognized too. With writing and singing, what you see or hear is what you get. There's thought behind it, but thought is never in danger of being copied (and is thus the subject of endless debate: what did the author mean when he or she wrote this?). Computer programming has thought, then code, then user interface.

What they're trying to nail people for is the user interface part.

But this user interface part, when we're using the word clone, means it's a copy of game play someone else designed. It's what matters to most of the people who see it, and it's what drives the games market (though I have strong appreciation for anyone who can code a game that doesn't force you to upgrade your damned hard drive).

In this particular instance it's more that folks who own the properties (that others created a long time ago) are having their properties cloned, and those copies are pulling money away from them, so they are finding a way to stop this. The effect is it stifles innovation of this particular game's concept, but since we're all concentrating on the fifty versions of tetris there are out there, it also suggests that innovation of games as a whole is slowed down when people are still producing breakout games. Really, how hard would it be to add some sort of feature to make it different?

Nice sweater vest! Where'd you get it?

Revenge of the Clones

The sticky problem with this is not so much that people are copying games, though. Would a graphical overlay be enough, or adding a new feature or two? How many first person shooters copy each other, and just cover this up with different graphics? How many of them really innovate? Most try, but I'd say a good number fail. If you have someone crack a game's copy protection and then spread it around the internet, claiming it was theirs, and getting paid for it, I don't think anyone would have an objection with prosecuting them, group or individual.

As long as we're talking straight clones, like 100% copies including misleading titles that make you think it's made by the original property holders, and exact graphics there'd be no question that the market is set up to stop this, even if the code is more elegant. But how much do we have to change a game to make it unique?

Finally, a big problem is that these games are being sold for profit. It's not like the innovation was done just to show it could be coded in under X amount of kilobytes. When it comes to actually making money off these games whose outside is essentially the same, all the sheen of innovation gets muddied. It's one thing to freely distribute a game you're proud of (although it's rough to let your babies go away for free sometimes), but if you're getting cash from copying someone's idea, you've crossed some sort of line.

This debate might actually strengthen games being considered a form of speechAlthough this feels a bit depressing to think of losing access to games in favor of only having official versions, it's exciting to me that these quesitons are finally being addressed. in court, allowing game makers the chance to say what they want in their games. It starts with stuff like Breakout, but it affects everything.