
Why Games Should Enter The Public Domain - Fargren
http://www.rockpapershotgun.com/2014/02/03/editorial-why-games-should-enter-the-public-domain/
======
skywhopper
Yes, please. I'd argue for all copyrights to expire at 20 years after
publication. The idea that there's a perpetual right to intellectual
"property" is a very dangerous one to a free society and to freedom of
expression. There's no inherent right to own ideas. That's a legal construct
created to encourage sharing of those ideas.

But the idea that a 20-year limit is too short to encourage authors and
musicians and game developers to create new creative work is ludicrous. If
anything, the essentially unlimited copyright of today encourages less
creative output and less innovation. Why develop any new characters or stories
if you've got multiple generations worth of copyright left to go? Keep pumping
out the sequels.

~~~
dottrap
Here's an additional idea to shorter copyright periods (not mutually
exclusive). Weaken protection for a copyrighted item over its duration.

For example, when the subject is first copyrighted, it enjoys all the
protections we have today, but say at different time periods (6 months, 1
year, 2 years, 3 years, etc.) more things become fair use or public domain.

As a simple example, take a copyrighted song. When first registered, it would
have all the protections known today. But suppose that after awhile, the
allowed cases of fair use are extended.

So at a certain point still within the copyright period, people may be able to
use certain bars of the song. And eventually people might be able to do their
own covers of the song, perhaps more/earlier fair use is granted for those not
earning money on it, e.g. your YouTube fan videos. And at a certain point,
people can start using parts of the song in other works that are not wholly
dependent on the song, such as use in a background track to a small segment in
in a YouTube video like the credits out-tro.

~~~
TylerE
Covers are explicitly allowed, even today. There's a standard royalty that
applies, but no permission, or approval process or anything.

~~~
jonhohle
Covers are allowed because they are performed in venues with ASCAP, BMI, and
SESAC licenses -
[http://www.ascap.com/licensing/licensingfaq.aspx](http://www.ascap.com/licensing/licensingfaq.aspx).
Covers performed in public in a venue without one of these licenses are not
explicitly allowed.

~~~
TylerE
I was thinking in terms of recording a cover on a album.

~~~
scelerat
No, even then the songwriters get paid, again, via ASCAP, BMI, et al.

Michael Jackson made billions off the Beatles catalog, for example. The
songwriting copyrights, not the recordings.

~~~
TylerE
Yes, I know that. My original point was that even under current law no SPECIAL
permission is needed to cover a song.

~~~
Sssnake
Yes, it is needed. That is what the license is, special permission.

~~~
TylerE
No. You. Do. Not. It's called a mechanical license.

"Since the Copyright Act of 1909, United States musicians have had the right
to record a version of someone else's previously recorded and released tune,
whether it's music alone or music with lyrics.[7] A license can be negotiated
between representatives of the interpreting artist and the copyright holder,
or recording published tunes can fall under a mechanical license whereby the
recording artist pays a standard royalty to the original author/copyright
holder through an organization such as the Harry Fox Agency, and is safe under
copyright law even if they do not have any permission from the original
author. Other agents who can facilitate clearance include Limelight, the
online mechanical licensing utility powered by RightsFlow. The U.S. Congress
introduced the mechanical license to head off an attempt by the Aeolian
Company to monopolize the piano roll market.[8]"

~~~
__david__
You're saying "Mechanical License", but I thought cover songs were Compulsory
Licenses [1].

[1]
[https://en.wikipedia.org/wiki/Compulsory_license#United_Stat...](https://en.wikipedia.org/wiki/Compulsory_license#United_States)

------
lostcolony
One thing his linked article misses is the fact that if these things entered
the public domain, a lot of games that are currently tied in ownership hell
would be free for GoG to remaster/rework to work on modern computers, and
sell.

And recall, a LOT of these games are only now available, even to the original
owners, because of GoG. The original owners just sat on the IP, because the
profits weren't enough to justify porting them to a modern OS.

~~~
jrs99
I think Microsoft should really work on this law.

They can easily have an INSANE game store that comes with all windows 8
machines. They also have an advantage in porting old windows games to newer
operating systems. Without development costs for game design, they just have
to port, and will be able to profit massively. They can easily make it
difficult to get a game working that is not from the Microsoft Classic Game
Store.

But, at the same time, this would still be GREAT for consumers, because games
would be cheap. They could just have a set of old Mario games or Final Fantasy
games even for FREE if you create a store account and add your credit card
information.

Companies with consoles or distribution (like Amazon) would have a great
advantage. Amazon could even provide every game for free if you sign up for
Amazon Prime.

I cannot wait for Mario on Xbox. haha. That's going to be weird but seriously
awesome.

------
msandford
Anyone who argues about needing lifetime + 20 years for video games is isn't
paying attention. The half-life of a video game is perhaps 2-6 (depending on a
bunch of factors) so a 20 year gives you between 3 and 10 halvings. More than
enough time for you to capture the bulk of the sales that you're entitled to,
but also a reasonable amount of time to return the ideas you borrowed from
society & culture back to the public domain.

~~~
jiggy2011
When do we start the clock? You're right that most games are pushed out the
door and get most of their sales within the first few months and are basically
abandoned after that.

However there is the trend of "early access" games as well as games that
continue to receive updates over time, minecraft or Wow would be examples of
these, so there is a more gradual flow of sales.

It's not inconceivable that a game like minecraft could go on for 20 years ,
even if it's future form bares little resemblance to it's original release.

~~~
650REDHAIR
EVE online was released more than 10 years ago and is still going strong (and
growing). I wonder where they would fall in line.

~~~
theandrewbailey
AFAIK, the EVE Online server was never released, and being an MMO, that's
where the game actually happens. At that point, it might actually be
perpetual. Even if it all was public domain, the creators (CCP Games) would
still be in the best position to profit.

------
mehwoot
I guess the explanation to why someone deserves to be paid for something as
long as they live is: if somebody is creating something to be sold to other
people, and that is their job, why should it matter _when_ that thing is sold
to someone? A policeman isn't being paid for keeping someone in Jail, they are
being paid to put them there. Content creators don't get paid for creating a
work, they get paid for selling it to somebody- so why an arbitrary
restriction saying once X years are up, you can't sell it anymore (or can't
effectively since anyone can have it for free).

The answer is, it is in the common interests to have these rights expire _at
some point_ , since after a certain period of time the utility of having
everyone be able to do what they want with the work is greater than the
expected value the content creator would be able to extract. But if you
believe that copyright should be valid for any period of time at all, don't
act like it is a given that it should expire after some arbitrary period of
time. You are taking away a right from somebody in the interests of the public
good, and there is always going to be discussion when that happens because you
are taking away from one group of people specifically to benefit society as a
whole.

~~~
usea
Copyright isn't a right to sell a work, granted to the creator. It's a
restriction on copying works that others have created. You can still sell
something to somebody, even if it's in the public domain.

~~~
mehwoot
I know it isn't technically, but that is the effect of it and for all intents
and purposes the right it grants.

------
jrs99
Every year, Microsoft could come out with a very cheap console. The first
could be called something like

THE 1993 COLLECTION

It would just be a simple box with a 1993-strength processor on it. And it
would have a controller and a huge hard disk on it that has every game created
from 1993. I think that would be a great idea for gamers. Something else
Microsoft could do is release an XBOX ONE disc with the top games from 1993.
That could be a huge hit and I bet a lot of the classic games would make a big
comeback and get popular again.

~~~
alanctgardner2
I'd just like to comment, because this comment hasn't attracted any replies
yet, and it is:

a) moronic

b) completely tangental to the point under discussion

The list of "things that people could do" is quite long. You, for example,
could go live in a hole far, far away where there is no internet. To qualify
for this list, things do not have to be: profitable, rational or feasible.
However, when a company like Microsoft creates a product, they consider all of
those things, likely in that order. Thus when you propose that "a thing
Microsoft could do" is to find _every game created within every calendar year_
, then, at great expense, replicate the antiquated equipment on which that
software ran, then market and sell it _very cheaply_ despite the costs of
research, licensing and quality assurance, I think that is a thing which
Microsoft is very unlikely to do. I don't think it would be a very clever
thing for Microsoft to do, nor would it be good for gamers, because after the
inaugural release of a million games from 1993 nobody cares about Microsoft
would cease to exist as a commercial entity, having wasted all of it's
resources on this terrible, terrible idea.

On the other hand, why were you even compelled to write this? The most
imaginative, creative scenario you could imagine was that if software
copyrights expired very quickly, you would like to pay someone for that
software? Which is totally already a thing you can do, and the proceeds (in
reality) would go to the creator of the software?

In conclusion, the internet has broken me. I have no more will to live, and I
can only hope in the distant future a giant, faceless corporation will
populate different planets with clones of all the people born in each year, so
that my clone can go and live happily on the planet 1991 forever. Hopefully
your clone will not be present.

~~~
MartinCron
People have bad ideas all the time. You don't need to be so intentionally
cruel and insulting tearing this one up.

------
dagw
Not entirely the same, but I really wish the concept of compulsory mechanical
licensing that exists for music would cover more creative endeavors. I'm kind
of OK with creator of the original Duke Nukem character getting royalties for
uses of his character, I'm less OK with him being able to forbid anybody else
from ever making a 'cover' of his game.

~~~
jiggy2011
What would a 'cover' of a game be? You can make a game which is very very
similar to Duke Nukem as long as you don't reuse characters , assets or code
from the original.

~~~
girvo
Tell that to anyone who cloned any Nintendo game ever, even if they recreated
_everything_.

~~~
jiggy2011
Do you have any examples? There are a ton of platformers which are very mario-
like and I don't think got into any trouble. Of course if you reproduce a
mario game with a mario character even if you redrew him you would be in
trouble.

~~~
girvo
That latter sentence of yours is entirely the point! Wouldn't it be cool to
get a "mechanical license" to allow you to recreate (I'm your own way) Super
Mario Bros with the original characters (even if you make the graphics
yourself)? Quite literally a "cover", in a way that's more recognisable than
just sheer mechanics? You can argue that you almost can now, and in some cases
yes, but I'd love to pay royalties to someone to "cover" my favourite RPG from
the Megadrive, beyond just making a "spiritual successor"!

~~~
jiggy2011
I wonder if this could work for games in the same way it does for music. With
music there is a significant "brand" around the artist to the point where the
success of some artists seems to be more down to their image and persona than
their actual music.

This means that a cover version of a song performed by some tribute band is
not really a substitute in any way for a performance by the real artist even
if the cover band can reproduce the original with very high accuracy.

Game developers don't really have the same halo and fame surrounding them, so
perhaps customers would be happy with a cheaper clone of a game provided that
the assets etc were of at least a similar quality to the original even if not
identical.

~~~
aestra
Plenty of covers are just as good as the original some more famous.

[http://www.businessinsider.com/17-cover-songs-better-than-
th...](http://www.businessinsider.com/17-cover-songs-better-than-the-
original-2013-10)

[http://mentalfloss.com/article/53336/20-songs-you-might-
not-...](http://mentalfloss.com/article/53336/20-songs-you-might-not-know-
were-covers?bypass=1)

------
higherpurpose
20 years is more than enough to monetize a game, and even most franchises out
there (I very much doubt anyone will care about buying an "Angry Birds" game
15 years from now, or even a "Mass Effect" one). But franchises don't even
need to be included in this rule. You can just take every game on its own. So
Mass Effect 10 would still benefit from 20 years of copyright, while Mass
Effect 1 will be in the public domain by then.

~~~
dllthomas
I certainly agree with "most", but there are definitely franchises that have
spanned more than 20 years. The first Final Fantasy was released in 1987, the
first Zelda a year before.

~~~
skywhopper
And I think both Square and Nintendo have more than made their money back on
those franchises. A 20 year limit on copyright would not have prevented
Nintendo from making The Legend of Zelda.

~~~
jrs99
Once a developer makes their money back, the game should go public domain.

Nintendo would still be able to make tons of Zelda games, it's just that there
would be good competition with several hundred other studios making Zelda
games. They would probably even do a better job than Nintendo and make the
top-selling Zelda games.

~~~
dllthomas
_" Once a developer makes their money back, the game should go public
domain."_

This is reasonable as a design goal, if you're taking into account risk (I
make 10 games, only one meets any success - is the cost of development the
money invested only in the one game or also in the other attempts that - for
whatever reason - didn't catch on?). I'm leery of it as a hard and fast rule,
because it is way to hard to say what costs actually are (/ should be).

------
vezzy-fnord
In Broussard's defense, Duke Nukem 3D _was_ GPLed in 2003, with the exception
of the assets.

Although he's against the idea of entering the public domain outright, he's
not resistant to openness and giving to the community.

~~~
potatolicious
That's not much of a defense at all, the cultural impact of Duke Nukem 3D is
in the assets, not the code, though the BUILD engine was itself remarkable in
its era.

Good on George for GPLing the engine, but his "openness to giving to the
community" seems to stop short of anything that the mainstream public would
benefit from.

And on a snarkier and less philosophical note: maybe Duke Nukem _should_ be
given over to the public domain. After DNF maybe someone else should have a
shot. It, after all, would not stop Broussard from pursuing his own new Duke
Nukem game, and might allow someone else to salvage a pretty influential part
of 90s culture.

[edit] Thought about this some more. The return of a work into the public
domain is less about the ability to redistribute it verbatim and more about
the ability to extend and derive from it.

The cultural impact of public domain for Shakespeare are the million spinoffs,
reimaginings, and new productions. The freedom to redistribute the original
text is only a tiny part of the intent of public domain. This is the public
good that comes from the work being in the public domain.

So GPLing the engine, or even opening up the assets, does not even begin to
address the intent of public domain. Until someone (anyone!) can make a new
Duke Nukem game, or a Duke Nukem movie, or a Duke Nukem novel (Prohibition-era
Duke?), or incorporate Duke into some other work, the core intent of the
public domain isn't being met.

~~~
amurmann
Yes! There are so many amazing IPs in the gaming space that are just sitting
there or get mutilated by the holder.

------
argc
This idea, that ideas come from society and should be returned to society,
resonates with me profoundly. (And 20 years seems generous.) It almost seems
selfish to keep ideas from the public so that the "creator" can continue to
profit. As developers, we have seen over and over again the exponential
multiplier that the community can be. Release the source and open the doors to
infinite possibilities.

------
mehwoot
_Expressing a desire for a game to enter the public domain, let’s say twenty
years after publication, does not in any sense whatsoever suggest a desire for
developers to not get paid. I resent having to type this. It’s a bit like
finding yourself having to say that you’re not in favour of gruesomely
starving children to death because you expressed a thought that they probably
shouldn’t get to exclusively eat at McDonald’s._

 _“But the prisoner is still in prison!” he’d cry, as he left the police
station, his pockets out-turned, not having done any other work in the thirty-
five years since and bemused as to why he wasn’t living in a castle._

Dude complains about people exaggerating his opinion and then proceeds to
completely exaggerate the opposing opinion (a policeman deserves to live in a
castle for arresting one criminal 35 years ago).

------
danso
OK, someone who _is_ a lawyer...what are the implications for reusage of non-
technical assets? That is, if Super Mario enters the public domain, would I
have the right the appropriate its theme music and characters for my own
profit-making venture?

~~~
gabemart
I am not a lawyer, but I am fairly confident that trademark law would apply
even where copyright did not. That is, because Mario's likeness is a trademark
of Nintendo, you might not be able to use that likeness in a video game, even
if the underlying assets themselves are not protected by copyright.

[https://en.wikipedia.org/wiki/Public_domain#Trademarks](https://en.wikipedia.org/wiki/Public_domain#Trademarks)

[http://www.publicdomainsherpa.com/trademark.html](http://www.publicdomainsherpa.com/trademark.html)

~~~
joveian
This also means that franchises can protect the franchise name even if they
lost copyright on individual works. But it is much more limited than copyright
and it might have a little but I would guess not that much impact on the stuff
that GOG does, for example. Most game companies are not using 20 year old
graphics to promote their new games.

------
chrismcb
I'm amazed at some of the complaints about the original article, I wonder if
they know that their copyrights will end eventually? But to put it into
perspective, here are a few of the games released in 1994: Doom II, Mortal
Kombat II, Marathon, Daytona USA, Super Metroid on SNES, Earthworm Jim.

------
Fasebook
While we're at it lets let industrial applications and nuclear technology
enter the Public Domain. The same argument works there.

~~~
lucb1e
If it weren't for all the idiots in the world that don't care about Mutually
Assured Destruction, that might not be a bad idea. MAD keeps countries at
peace, or, at least there is something to say for it.

I'm not sure MAD is really the way to world peace, but the idea that owning
nuclear weapons is inherently bad for any government in the world... I'm not
sure how right that is, either. If you are sure that you will be destroyed as
soon as you attack, no matter whether you attack first, there is suddenly a
lot less incentive to attack.

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justinhj
This is very long and I made it only a third of the way. Does it say anything
more substantial than. "I would like to play old games for free?" I did enjoy
the pictures.

~~~
argc
I don't think its about playing old games for free. I think its about
releasing the source of old games so that the craftsmanship, ideas, technology
etc can be used and reused by the developers of today and tomorrow.

~~~
teamonkey
Uh, tech's not really a great reason. The tech behind 20 year old games is
hardly an arcane mystery. The Games industry in general is pretty good at
sharing techniques, perhaps because by the time they're shared, they're
already old.

You don't need a game to enter the public domain to deconstruct ideas and
craftsmanship either. You DO need it to legally play the majority of games for
free, or to resell without paying royalties.

------
pikachu_is_cool
How about games enter the public domain the instant they are released?

How about these developers spend their efforts on something that has actual
value to society?

