[freeroleplay] Re: Game mechanics copyright status
- From: Ricardo Gladwell <president@xxxxxxxxxxxxxxxx>
- To: freeroleplay@xxxxxxxxxxxxx
- Date: Fri, 14 Oct 2005 18:29:23 +0100
On Thu, 2005-10-13 at 08:53 -0700, Jerry Stratton wrote:
> Here is the first draft; it's a bit long, so I'll just link to it:
>
> http://www.hoboes.com/html/RPG/Gods/?ART=77
Thanks for putting this together: its a really well researched, well
written and complete summary of the arguments for non-copyrightable game
mechanics. I've put together some thoughts on the essay below. I just
brain dumped so they are quite long so please bear with me.
Also, apologies if it seems a little harsh: there is a lot that is very
good about this article but I've sometimes tended to focus on my
personal doubts with parts of what you say. Of course, I totally agree
with your central premise (I think it's fairly clear that game rules
aren't copyrightable) and I've tried to focus on being as constructive
as possible so I hope you won't take any offence.
> "Why do we need open source games?"
>
> "If game rules cannot be copyrighted, and if compatible supplements
> require no permission, what is the point of an open source game book?"
The first thing I would note is the use of the term "open source". Would
it be possible to use the terms "free content" or "free content"
instead, or perhaps both terms or some sort of amalgam (e.g. FOSS)?
I would also note that it tends to focus on US law. It would be handy to
include some notes on how US legal precedent in this area affects
international law and whether it applies or not in other jurisdictions.
Obviously, it's a bit much to ask you research all possible
jurisdictions but it would be something useful to think about in future.
However, my main point about the article is that it states quite a lot
about copyright law quite resolutely. Can we be absolutely certain that
the legal status of game rules mechanics will be interpreted identically
in a court of law as is given in the essay? Whilst I'm left in doubt
that game mechanics *should* be non-copyrightable, I'm not sure that
this means that the US or other legal systems agree with me, or that
there is sufficient legal precedent to state with confidence that this
is true in all cases. For example:
"Even there, though, there is still some controversy about the
appropriateness of applying copyrights to computer
instructions."
While this may or may not be true, it would be handy to have references
or sources here to back this up. What sort of controversy? Contradictory
legal precedents? Conversely, you also state that:
"Recipes, for example, cannot be copyrighted, and neither can
game rules."
When I think we can all agree there is at least some controversy,
perhaps only put about by WotC and friends, that game rules are
non-copyrightable.
Perhaps the introduction would be better if written in a "we believe
this, and here is why" way.
"Because copyright has not been extended to cover âsystemsâ or
game rules, there is less need of open source licenses for
table-top games than there is for computer programs."
I'm not exactly sure what you are saying in the above, but, again, it
seems quite strong. Could there not be an equivalency from computer
software/programs and game rule books to software algorithms
(non-copyrightable) and abstract game mechanics? In other words, it is
only the narrative expression of the abstract game mechanics that is
copyrightable. In the same way you can copy algorithms from computer
programs, you are free to copy game mechanics from game rule books, but
you are disallowed from copying the actual text. If so, then there is as
much need for open source licenses for table-top games as for computer
programs. I think your argument still stands without stating that there
is less need for free content license for RPGs.
"The idea for a game is not protected by copyright. The same is
true of the name or title given to the game and of the method or
methods for playing it.... Copyright protection does not extend
to any idea, system, method, device, or trademark material
involved in the development, merchandising, or playing of a
game. Once a game has been made public, nothing in the copyright
law prevents others from developing another game based on
similar principles."[1]
I would also note that the US Copyright Office statement does not
necessarily say the same thing as your following thesis:
"...anyone can rewrite a new version of any game by taking its
rules and rewording them..."
Nothing in copyright law prevents you from developing game based on
*similar* principles, but does it stop you developing a game based on
the *same* principles? Copy right does not extend to any idea, system or
method, but does a specific collection of systems or methods constitute
a copyrightable expression?
"While anyone can take any game and rewrite or reuse the rules
however they wish..."
I would note that this is not necessarily true: wouldn't rewriting the
rules would be effectively creating a derivative work based on the
original rules? Do you mean that anyone can take the abstract rules from
a game and re-express them? Or do you mean we can copy the rules text,
simply rewriting them to avoid copyright?
"...a good open source license for gaming will protect the
gamerâs right and ability to: acquire an easily editable file of
the rules that is not tied to a proprietary format..."
I would argue that the legal right to reverse engineer and thus support
all formats, proprietary or not, that we currently enjoy means that
licenses that do not require a proprietary format are not necessarily
"bad" free content or open source licenses. For example, there is
considerable opinion that the GPL is a "good" open source license but it
does not require the source in a non-proprietary format. Some open
source licenses, such as the BSD, do not even require source be
provided. Also, should we be distinguishing between good and bad open
source licenses?
"Under United States law, compatible supplements are even less
restricted by copyright than rules are. Anyone can make a
supplement or add-on for any game. No permission is needed for
this, because supplements are original works. They are neither
copies of the game rulebook nor are they derivative works."
Again, another strong claim but I'm not sure I see the evidence to back
it up. This is also, by your own admission, not true in all cases: for
example, if a supplement copies text from another rulebook then it
clearly is a derivative work.
"The ability of third parties to use copyrighted works and
trademarks to create competitive products is one of the
underlying purposes of copyright and trademark."
Actually, I would argue the inability of third parties to copy (a use of
a work) copyrighted works is on the of the underlying purposes of
copyright law. Similarly, the purpose of trademark law is specifically
to prevent others using trademarks that are considered unfairly
competitive (i.e. pretending to be your competitor).
"In the United States, competition in a free market is
paramount. This means that neither the copyright monopoly nor
trademark can undermine the free market in compatible products
such as supplemental materials and adventures."
Again, I'm not sure about this point: if you can copyright characters
from books then surely you could argue here that the right to fair
competition in a free market is secondary to the authors exclusive right
to their characters: i.e. the right to compete with J.K. Rowlings to
write better Harry Potter sequels. In other words, competition in a free
market is not always paramount, strictly speaking, which would seem to
destroy the rest of your point here.
"Because the TMSS has the effect of regulating access to
the Genesis III console, and because there is no
indication in the record of any public or industry
awareness of any feasible alternate method of gaining
access to the Genesis III, we hold that Sega is
primarily responsible for any resultant confusion.
What the court was saying is that supplemental materials must be
allowed."
I'm not sure they said exactly that in the quote you give: the court
ruled that using technical trademark tricks as above to restrict access
to consoles is not allowed. I'm not sure you can make the logical leap
from there to "supplemental materials must be allowed" without some
other evidence.
"Game supplements have not traditionally taken a section of the
rules and improved or expanded that section."
I'm not sure I agree with that: for example, many magic supplements do
indeed expand or improve upon old rules, adding new spells, new optional
rules, etc.
The section on character copyright was particularly interesting and
detailed.
"Even though Sam Spade was the main character in the book, he
did not âconstitute the story being toldâ, and thus the sequels
that Dashiell Hammett wrote after selling the rights to The
Maltese Falcon were not derivative works of that book."
I think some explanation of the meaning of âconstitute the story being
toldâ here would be helpful in understanding why Sam Spade's character
could not be copyrighted. The phrase seems to appear from nowhere.
I also note a lot of use of terms like "healthy free market". While I
appreciate we all have different political leanings, attributing
positive aspects like "healthy" to terms like "free market" is a little
partisan. There is nothing wrong with that in general, but it would be
nice to talk about these things in more sober, neutral terms or
attribute claims of "health" etc to specific sources, purely to ensure
that some readers do not feel side-lined.
I would also note that the disclaimer should probably say a bit more
about liability. There are plenty of IANAL disclaimers that give more
coverage out there that you could copy here. It might be an idea to
display it more prominently. Whilst I agree we shouldnât need to be
lawyers just to write an essay on copyright, it always helps to be
cautious.
I would also note that the article could use some footnotes and more
references so as to become a link farm so that people (like me :) can
throw links at people when debating on-line.
Overall, I would argue the emphasis of the essay should be changed a
bit. I think it would be better to focus on the arguments about why game
rules are not copyrightable, rather than focusing on why we don't need
open source licenses in all cases. We'll always be able to rely on FOSS
opponents to find plenty of reasons why not to use FOSS licenses, and I
think readers will be more than capable of applying your reasoning about
what is and isn't copyright about games to free content games as well.
Kind regards...
[1] http://www.copyright.gov/fls/fl108.html
--
Ricardo Gladwell
President, Free RPG Community
http://www.freeroleplay.org/
president@xxxxxxxxxxxxxxxx
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