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.