[A2k] The End Of Copyright

[Soenke Zehle]

From: Frederick Noronha <fred@bytesforall.org>

URL: http://www.gamasutra.com/features/20051128/adams_01.shtml

The End Of Copyright

I think we are witnessing the beginning of the end of a major era in
world history. It may take fifty years, it may take a hundred, but the
age of copyright is drawing to a close. I don't know if this is a good
thing or a bad thing, but it's inevitable. And I say this as the
author of two books and over 75 columns like this one, all
copyrighted.

Just 550 years ago this year, a guy named Johann Gutenberg figured out
how to make large quantities of metal type in a hurry. He didn't
invent printing=E2=80=94the Chinese had been doing that with wooden blocks =
for
centuries=E2=80=94but he did find a way to make it fast and efficient.
Gutenberg changed the world and helped to bring on the Renaissance.

There were no copyright laws at that point. Before the
printing press, books in Europe were copied by hand, and having
someone go to the trouble of copying your book was about the highest
praise an author could get. But with the printing press, the concept
of intellectual property was born. Over the next two centuries or so,
copying books went from being high praise to being a crime. As
printing presses were large and heavy=E2=80=94i.e. difficult to conceal and
difficult to move=E2=80=94it wasn't all that hard to prosecute the offender=
s.
The smaller and faster they got, though, the tougher it became.

I'm old enough to remember when photocopiers became commonplace. At
first, there used to be signs in libraries, warning the users against
duplicating copyrighted material=E2=80=94any copyrighted material, ever. Bu=
t
people did it anyway. They didn't think they were doing any harm, and
they weren't planning to sell the copy, they just needed it for their
own use.

When enough people feel that it's OK to do a thing, that thing ceases
to be wrong in their own cultural context. You can complain about
moral relativism all you like, but the facts are inescapable: that's
how people behave. When the photocopier came along, people simply
didn't think it was wrong to copy a few pages out of a book, even
though it was against the law and the authors would have preferred
that they buy the whole book. So eventually, the Fair Use doctrine
evolved with respect to copyright materials. The law changed. It's now
OK to photocopy parts of books for educational, non-commercial use. In
effect, the authors and book publishers had to give some ground in the
face of the overwhelming tide of public opinion.

You can see where this is going, can't you?

On June 27, 2005, the US Supreme Court decided to hold companies that
make file-sharing software responsible for copyright infringements
perpetrated by the software's users. Everyone expected that they would
rule as they did when Universal City Studios sued Sony over the
Betamax in 1984: there were legitimate uses of the technology, and it
shouldn't be held responsible simply because it can be used
unlawfully. Instead, however, they ruled that file-sharing software
actively encourages piracy and the makers should be held accountable.

The Supreme Court's action has done the exact opposite of what MGM and
the other content distributors who brought the suit hoped it would.
File-sharing software will become open-source and public domain.
File-sharing will continue to grow ever more popular, but now there
will be no one to sue. The Supreme Court's ruling hasn't even delayed
the inevitable; it has actually brought it closer.

There's no intrinsic reason why someone should continue to get paid
for something long, long after the labor they expended on it is
complete. Architects don't get paid every time someone steps into one
of their buildings. They're paid to design the building, and that's
that. The ostensible reason we have patent and copyright law is, as
the US Constitution says, "to promote the Progress of Science and
useful Arts." But travesties like the Digital Millennium Copyright Act
don't promote the progress of science; they actively discourage it. So
do software and biotechnology patents. The patent system was intended
to allow inventors to profit for a limited time on particular
inventions, not to allow huge technology companies to put a
stranglehold on innovation by patenting every tiny advance they make.

Right now, the music and movie industries are howling and beating
their breasts and doing their best to go after anybody who violates
their copyrights on a large scale. The fury with which they're doing
it is a measure of their desperation. The Sony rootkit debacle is a
perfect example: in an effort to prevent piracy, they secretly
installed dangerous spyware into people's PCs, which itself may have
been a criminal act. This was about the dumbest public-relations move
since Take-Two lied about the Hot Coffee content, and as with
Take-Two, it will cost them vastly more than they could hope to gain
from it. Did they really think nobody would find out?

The lawsuits, the spyware, the DMCA: these are the death struggles of
an outdated business model. It's the modern-day equivalent of throwing
the Christians to the lions in an effort to discourage Christianity.
It didn't work for the ancient Romans and it won't work now.

Part of the issue is related to the question of how much money it took
to create a copyrighted work in the first place. With books and music,
the answer is simply, "not that much." Forget notions of what their
rights may be in law; the idea that a band or an author should be paid
millions upon millions over the next several decades for something
that it cost them at most a few thousand dollars to make, just feels
silly to most people. You'll notice that it's the megastars who are
fighting the hardest over this in music=E2=80=94Madonna, Metallica, and so =
on.
They're the ones who stand to lose the most. But the smaller, less
well-known groups are embracing new business models for distributing
their music. They're like authors back before the printing press:
"Copy my music and listen to it! Please!"

Movies and video games are more problematic. They take millions to
make in the first place and a good many of them don't earn back their
investment, even with full copyright protection in place. If we're
going to go on making video games, the publishers have to find a way
to make them pay for themselves. One approach is an advertising model,
although I'm reluctant to say it because I hate the idea of ads in
games. Another is to treat games as a service rather than a product.
With broadband distribution, I think this is increasingly likely: you
won't ever have a durable copy of a game, you'll download it every
time you play it. Each instantiation will be unique, personalized for
a particular machine and Internet address; encrypted to discourage
hacking; and expires after a few hours. After that you'll have to
download a new copy.

Yet another model is the donor model: somebody who is known for
creating great work can collect up donations in advance; when he has
collected enough to fund the work, he builds it, and releases the game
copyright-free when it's finished. The donors will have paid and
everyone else gets it for nothing, but they get it first and perhaps
some special recognition for their contribution. I'd be happy to put
down $40 two years in advance for a new Sid Meier game, particularly
if I knew it would be released copyright-free when it came out. And I
bet a lot of other fans of Sid's work would say the same.

The donors have to trust that the developer will finish it, of course;
but this is effectively how freeware development works now. Somebody
makes a name for themselves with a piece of freeware; they ask for
donations; the donations help to fund further work on a new version.
So far it has only been tried on a small scale, but=E2=80=94as the mobile a=
nd
casual games are showing us=E2=80=94there's still plenty of demand for smal=
l
scale games in the world.

(A variant of this system, pioneered by cyberspace engineer Crosbie
Fitch, is already in place for music, except that people give pledges
rather than donations. When the musician releases the work, she
collects all the pledges made towards it. See www.quidmusic.com for
details. Credit where it's due: I first heard about this whole idea
from Crosbie.)

In short, there are a heck of a lot of ways to recover the development
and marketing costs of video games besides trying to sell individual
physical copies and prevent their duplication. That system is awkward,
wasteful, and theft-prone. It supports too many middlemen and, like
Prohibition, puts money in the pockets of some very nasty gangsters.

Of course, some alternative distribution models still rely on
copyright, and publishers will still be trying to prevent people from
redistributing their content. But sooner or later that model is
doomed. The perceived value of a thing is inversely proportional to
the ease with which it can be duplicated. If the public simply refuse
to acknowledge that copying books or movies or software is wrong, then
in a democracy, it will eventually cease to be wrong. People elect the
legislators, and legislators make the laws.

Does the end of copyright mean that books or music or movies or games
will die? Of course not. The urge to create is too strong in all of
us, and consumers will always be willing to pay for novelty and for
excellence. It may mean that nobody gets mega-wealthy any more. What
it does mean for sure is that the giant dinosaurs that currently
dominate the distribution channels had better learn to adapt or die.
There are a lot of fast-moving little mammals in the underbrush eating
the dinosaurs' eggs.

And fifty years from now, kids will be asking, "What does that (c)
symbol mean in this old book, Grandpa?"

* * * * *
Ernest Adams

Ernest Adams is a freelance game designer, writer, and lecturer, and a
member of the International Hobo game design consortium. He is the
author of two books, Andrew Rollings and Ernest Adams on Game Design,
with Andrew Rollings; and Break Into the Game Industry: How to Get a
Job Making Video Games. Ernest was most recently employed as a lead
designer at Bullfrog Productions, and for several years before that he
was the audio/video producer on the Madden NFL Football product line.
He has developed on-line, computer, and console games for everything
from the IBM 360 mainframe to the Playstation 2. He was a founder of
the International Game Developers' Association, and a frequent
lecturer at the Game Developers' Conference. Ernest would be happy to
receive E-mail about his columns at ewadams@designersnotebook.com, and
you may visit his professional web site at
http://www.designersnotebook.com .   The views in this column are
strictly his own.