Patents and Copyright, Oh My - (Some of) The Rules of the Game Industry Game

In my RSS reading early this morning I encountered something which piqued my interest. I wish I'd somehow managed to attend this event, because I've been very interested in patent and copyright law as it relates to the video game industry. Even more disturbing was the title of the talk given in London to a group of IGDA members. That title was, "Rules of the Game: Legal Issues in Game Development," which though purported to be about copyright, trademark, and patent law seems at least based on the notes to have been more about copyright and trademark.

Anyway, the following bit caught my eye:

Game Career Guide - IGDA Rules of the Game

How Similar is Too Similar is Too Similar?
"There has to be copying," says speaker Vincent Scheurer, a speaker at the IGDA meeting. "Accidental similarity is not an infringement." Scheurer expressed his disgust with the similarities -- or what he thinks is just plain copying -- between Webzen's art style (left) and Nintendo's in Wind Waker (right). He wonders why the Japanese game giant allows Webzen get away with it, as Nintendo has never filed suit.

Which lends yet even more evidence to a theory that has been developing in my head throughout my research. Namely, that Nintendo has a different vision of what patent, copyright, and trademark in the game industry is supposed to be doing. While Scheurer seems to look down on "plain copying," as he sees it, Nintendo seems to see something else.

This same sort of non-litigation has occurred in the space of patents by Nintendo as well. Nearly every 3rd Person game for the PS2, PS3, Xbox, Xbox360, Gamecube, and Wii actually infringe on several patents by Nintendo related to the use of analog sticks on controllers. Yet Nintendo does not litigate. So it is either (in the case of patents anyway) done out of only self protection, but I'm beginning to suspect that it is also done out of a desire to carve out new areas in the world of game development and to protect them.

So sure, "Webzen get[s] away with it," but maybe Nintendo is willing to carve new directions out for others to also pursue. Remember, frequently Nintendo seems simply happy to be somewhere first, they don't necessarily want to rule those places.

I Just Wish I'd Said It, "Copyright is always Government Intervention"

A key aspect of my dissertation is talking about the mobilization of the state on the part of corporations to do things which they could not do otherwise. This little gem is great.

The Patry Copyright Blog - Copyright is always Government Intervention

If one has been around long enough, one has seen a great many such groups as well as efforts to equate "respect" for copyright with a high level of rights. The copyright to which one asked to respect is of a special kind, though. It is limited to strong enforcement of content owners' rights as well as agreement with content owners' expansive interpretations of those provisions. And, it includes a promise to "prevent diminishment" of rights, as the Copyright Alliance put it. Respect for copyright is thus narrowly regarded and unidirectional: ever expanding rights and greater penalties. (The use of the term "diminishment" is a classic conceptual metaphor in which less has negative associations, while, conversely, "expansive" has positive associations. George Lakoff has explored such uses in a number of books, see here).

Title 17, however, also includes the limitations on subject matter protection contained in Section 102(b), the lack of protection for U.S. government works in Section 105, fair use (107), library photocopying (108), first sale (109), performances for educational and other purposes (110), copying for the blind (121), and well as compulsory licenses, the safe harbors of Section 512, and the personal copying defense in Section 1008. Copyright further includes judge-created doctrines like permitting de minimis or non-substantial uses, independent creation, the idea-expression dichotomy, merger, scenes a faire, and defenses such as misuse and substantial non-infringing uses for secondary liability. As Justice O'Connor wrote the Supreme Court in rejecting another metaphor ("you shouldn't reap what you haven't sown" as applied to copying facts), "it is not unfair to permit the fruits of another's labor to be used by others without compensation: "this is not 'some unforeseen byproduct of a statutory scheme.' … It is, rather, 'the essence of copyright,' and a constitutional requirement… This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." If respect for copyright is going to be one's pass into society, then we should be far more rounded and inclusive about copyright is: copyright does not end with Section 106; not even chapter 1 of title ends with Section 106; there are 16 sections that follow, limiting copyright owners' rights dramatically.

One thing should be beyond dispute, and that is copyright is always an act of government intervention. Without Congress enacting title 17, there would be no (federal) law at all, as the Supreme Court held in its very first (1834) opinion in a copyright case, Wheaton v. Peters. Copyright in the U.S. is, therefore, in its very essence, an act by Congress interfering with an inherent lack of rights: every grant of rights represents government intervention. I support such intervention when it is responsible, as it has been for much of our countries' history, at least until 1998, when in my opinion things ran permanently off the rails with term extension and the sui generis DMCA provisions of chapter 12.

Making a Video Game from Start to Finish: A 100,000,000 Mile Up Perspective

Ok, because I really have respect for the fact that this DigiPen student took the time to write an article which he thought would be useful to others. At the same time, I think rather than calling it a guide for beginners, it needs to be considered a view from outer-space of the game development process.

The trouble with beginners is that they're not really even ready for that view. If anything it abstracts away what is hard about all of it. That what makes you "grow to hate it" or "love it" by the end. All that hard stuff in between.

So, if you want to make a game you need to start by writing a design document? Probably not. What you need to do first is figure out where your skills lie. Are you a good artist? Can you program? Can you make up a fun board game with paper, pen, and scissors? If you cannot do any of these, or not willing to take the time to learn them, then you ought not even start making a document.

The Design Document ends up being a starting description of your game. Designers tend to be the drivers of this document. Those people need to understand how to create games, create relationships between user and the underlying game system. They need to describe those feedback loops, their behaviors, and all of that makes up how the game works. Do not confuse how it works with how it is coded.

The other thing is that typically at a pitch you'll need some sort of prototype of your game. This means that you're already too late to the game if you wait to think about your technical design document and engine until after the fact. Most pitches I've heard include prototype and information on feasibility.

The trouble is, in this beginners guide, a beginner is never actually given an instruction how to figure out which area they might be interested in. Art, design, engineering? Ok, maybe you want to do it all. What must you start to learn to make this possible.

This article actually encourages what I see as "I want to make a game, tell me what to do," email message that I so frequently see on game related email list serves.

Ummm... are you an engineer? Go learn programming languages, and techniques related to game development. Don't expect to find example code for everything you want. Learn how to read documentation and integrate that code. Check out open source engines and libraries.

Are you an artist? Make some concept art for a game, turn that into pixel are and low polygon models. Do some texturing of your models. Learn how to export them what that means for what you've created. Talk to an engineer about how to get those into an engine.

Designer? Make games. Try to tell people about them, explain how they work. Write descriptions of them. Make some levels for an existing game. Learn how to script. Talk to an engineer about what is hard to do. Talk to an artist and get them to make some things that would fit into your games.

Manageability is the key for beginners, not interstellar travel visions.

Game Career Guide - Making a Video Game from Start to Finish: An Overview for Beginners

Game development starts with an idea or inspiration. It's kind of like magic. You think, "Hey, what if there were a game like this, and like that, and with elements of this?"

But building a game is like any other formidable task, like building a cathedral or writing a novel or painting a picture. Building a video game takes passion. It takes dedication. Some might even say it takes obsession. It takes a great deal of your time, energy, and thought. It's never finished. Even when it's technically finished, you find things, new things, little things, that you could correct or change or fix.

It's a very demanding and highly stressful endeavor. If you don't love it completely, with all its misgivings, you'll quickly grow to hate it.
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The Game Design Document
One of the first things you need is a game design document.
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The Pitch
When you pitch your game to a publisher, you give the publisher a short presentation that describes your idea, target demographic (the people who will be most interested in the game), and why your idea is the one they should fund, instead of any hundreds of others. It's often helpful to have a demo, a rough and incomplete version of your game, so that you can effectively communicate what your game will be like. In other words, by the time you are ready to pitch an idea to a publisher, you should already have some kind of working game. It doesn't have to be a great big years-long finished product, but it does have to be playable. Publishers aren't interested in ideas alone. They want to see a prototype.
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The Technical Design Document
One of the first and most basic requirements of any game that has just started production is a technical design document.
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The Engine
Now that the game has been described inside and out, you can start assembling the pieces that were laid out in the technical design document to form the most critical part of your game, the engine.
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Content and Art
In addition to the engine, a video game must have content and art. Ideally, the content of a game -- that is, the levels, characters, music, and art, which includes textures, 3D models, and animations -- will be separate from the game engine, allowing the developers to easily make modifications to them as the needs of the project change.
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Focus Testing
At some point in production, the game theoretically begins to resemble the vision that the designers had for it. It's at this point that it becomes critically important to start focus testing.
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Launchpad
Now that the game is ready to ship, you're ready to begin your career as an internationally acclaimed rockstar game developer.

How to Make an Industry Researcher Laugh out Loud

GameSetWatch - Game Developer's Top 20 Publishers - The Sassy Version!

"Activision - Solid - if unimaginative
Atari - First the good news. Bruno's gone. Now the bad news. Bruno's gone.
Codemasters - Plucky, intelligent senior management willing to take a risk.
Disney Interactive - Does what it says on the tin - and no more.
Eidos/SCi - Could yet grab defeat from the jaws of victory.
Electronic Arts - Currently in therapy.
Konami - Trying to be less Japanese. Currently failing.
LucasArts - Looking increasingly rudderless - the industry's biggest vanity publisher
Majesco - Two words - New. Jersey. 'Nuff said.
Microsoft - Succeeding in spite of itself. Will miss Peter Moore more than they know.
Midway - Sumner Redstone's folly. Spectacularly, almost entertainingly bad.
NCSoft - Playing the long game - and has the cash to do it.
Nintendo - It's their ball - and we can all play with it - on their terms.
Sega - One to watch - clever, nimble leadership who know how to succeed.
Sony Computer Entertainment - Sadly lacking leadership skills at the highest level - expect changes in 2008.
Take-Two - GTA 4 better be good.........
THQ - Looking a bit lost - despite some good work, does anyone know what is THQ for?
Ubisoft - The amazing Guillemots and their dedicated senior team run rings around slower, bigger competitors.
Vivendi Games - World class - in parts."

[Disclaimer: GameSetWatch doesn't necessarily think this arch wit is right. And fortunately, most responders to the survey were a little less flippant. We do think he's pretty amusing, though, whoever he is.]

What's Really AFTER World of Warcraft?

Gamasutra - The Academics Speak: Is There Life After World Of Warcraft?

So, I feel a little bit bad, because I saw this headline on Gamasutra the other day, and my first thought was, "Yeah, what are researchers going to do once gamers have tired of World of Warcraft?" But, of course that's not what they were talking about.

Instead its an article about what the next big thing for gamers is going to be once they're done with WoW. The author talks to luminaries in the game studies world like Castronova and Jenkins, and it is interesting. But my original question I find more nagging. I'm all for asking about where they think gamers are going to go next, but I think there is a more fundamental question, other than following these gamers around to wherever they do go next, what is it precisely we're hoping to learn from online worlds and gamers?

Or more directly, other than watching virtual worlds and people in virtual worlds, what is it precisely we're hoping to achieve here?

It is also a bit troubling that four men and one woman was interviewed, a criticism of the article, not the interviewees. There are quite a few women researchers just as "luminary" as those who they did talk to, who have been studying MMO's (T.L. Taylor instantly springs to mind), but the best they could come up with was a Ph.D. Candidate (something you cannot pooh-pooh, nor would I, considering I am one as well). I was happy that she did manage to bring up gender, though that wasn't the word she used.