Monte Cook Games Numenera Fan Use/Licensing Policies

Well-known game designer Monte Cook completed a very successful Kickstarter project for Numenera, his new role-playing game. (Full disclosure: I was most definitely a backer, and I have been a fan of Monte Cook for a long, long time.)

Monte Cook Games just released their Fan Use Policy and Limited License. This post by Rob Donoghue at Evil Hat almost perfectly mirrors my opinion on the licenses, and there’s also an excellent follow-up post at the Ninth World blog. Apparently some folks have been fairly upset about the licenses. I’m honestly not all that sure why. I may have some things I would have done a bit differently. I give them a big thumbs up for making the licenses human readable, but there are parts of them to the point where they are technically incorrect by omission. For example, their description of copyright is very, very simple- it ignores copyright exemptions and the role that commercial use plays in determining whether or not something is infringing- but that gets complicated quickly, which seems antithetical to their purpose for writing it that way in the first place. The policy provides simple explanation about how they’re looking at things, though, and it seems like it’s mainly there to help the community understand their views on fan use. I’m also sure they’re going to clarify the dividing line between fan distribution and distribution allowed by the Limited License if it ever comes up, and like Donoghue points out, you can still rely on fair use if you want to make other uses (aside: or that mechanics aren’t covered by copyright)- or of course, you can also talk to the folks at Monte Cook Games. They’re very approachable.

Copyright & Trademark in the Geek World. Part 2: Games Workshop Sends in the Space Marines

Trademark law basically started out as consumer protection law, but over time has also been turned into a tool for anti-competitive practices. The theory was that consumers should be protected from unscrupulous sellers attempting to pass off their goods as someone else’s. From trademark, we get concepts like false advertising, brand dilution, consumer confusion (…there’s a concept actually called a moron in a hurry, when looking at how likely someone is to be confused), and so on. People can trademark things like logos, phrases, brand names- basically, something that is associated with things sold: goods and services and the sources of those goods and services.

There are registered and unregistered (common law) trademarks. Common law trademarks are more limited then their federally registered counterparts- they’re developed merely by using the trademark commercially, not registered, and usually related to a specific geographical region. They also lack some other statutory protections. For something to act as a trademark, it usually needs to be involved in trade- actual commerce. And not only does it need to be involved in trade, but it needs to be involved in trade in a specific commercial area. Apple Computers (now Apple Inc.), for example, didn’t have to worry too much about competing with the very different company Apple Music (owners of the Beatles catalog) until it got involved with iTunes and the music industry, and then those companies had to work things out because they were competing in the same area. And neither of them should be too concerned with people selling the fruit. Trademark does not have much to do with creativity- that’s largely copyright’s bailiwick- and, in fact, things can at times be trademarked that other people created, even against their wishes.

One of the things about trademark, though, is that unlike copyright and patents there is an obligation for trademark holders to protect their trademarks. Generic terms can’t be trademarked- and once a term has become generic, then it loses its trademark protection (this process is sometimes referred to as trademark erosion). Aspirin. Elevator. Kerosene. Zipper. All of those were once trademarks that have been lost. That’s why trademark holders for Kleenex, Band-Aids and Xeroxes try very hard to make sure that those terms don’t become generic. Even given all that, though, there are limits.

There’s this idea that all uses of a trademark have to be policed. Several years back, Cory Doctorow referred to this as “a fairy tale that trademark lawyers tell their kids at night to reassure them that they’ll have a healthy college fund.” It’s not true for every use. If someone isn’t using the term in a competing commercial space, for example, then the terms does not have to be protected. Trademark holders do not have the right to police others use of the works in other spaces- and there a concept of fair use with trademarks, as well. For example, you can absolutely use trademarks to describe what they’re actually intended to describe. I can use the trademarked name “Games Workshop” to talk about Games Workshop. And beyond all that- and a lot of lawyers who should know better seem to forget this- you don’t have to be a jerk about it when you do decide you need to act.

So, “Space Marines.” Space Marines is a term that has been around for some time in fiction. It’s also a term used by Games Workshop in its miniatures and games lines. Games Workshop does have a registered trademark for space marines for those lines- but although they’ve created fiction involving their space marines, they do not have a registered trademark in the book/ebook space. In this kerfluffle, they contacted Amazon to take down a book that used the term “space marine” in the title. Why? What they seem to be attempting to assert in this situation is that they have common law trademark in the term “space marine” in books and ebooks. Essentially, they appear to be arguing that anyone who thinks “space marines” in fiction should think “Games Workshop.” They seem to be trying to un-genericize the term and create a carved out commercial space for them and then alone, excluding others, which according to their press release is because they have a duty to their shareholders. This is a Bad Thing for many reasons, and the whole event illustrates some of the problems with the system and the law that I alluded to in my last post.

First, of course, there’s the obvious idea that they’re taking a term with a rich history in fiction and attempting to privatize it. There’s a power discrepancy between Games Workshop and the indie author. There’s also the idea that Games Workshop has to be predatory in this manner to appease their shareholders. That’s silly- negative publicity will also hurt their profits. That’s one reason why the controversy is important- people have to show GW and others that this type of behavior isn’t acceptable. And people have reacted. There’ve been author complaints, blost posts, news articles, comments- I even discovered that someone at my school had been a fan of Games Workshop fiction, who has now sworn off of them. That’s bad for everyone.

So far, all GW has done is double down- they’ve reiterated that they were right to do this, and for a time they also deleted and banned people who commented on their Facebook wall about it. They even banned a fellow academic who was only asking for their side of the story. They are allowing comments on their explanation, but they’re sticking to their guns. That’s not good corporate behavior. While their actions might be technically legal, that doesn’t make it right.

Now, Amazon also messed up. Games Workshop sent them a cease-and-desist, and they unnecessarily complied. While there IS a notice-and-takedown provision for taking down copyrighted material, there is no such equivalent for trademarks. They’ve since made the book available again, possibly thanks to some help from EFF. And Spots the Space Marine by MCA Hogarth has received a lot of attention, and portions of sales are donated to the Wounded Warrior Project, so there’s some positives there. Let’s hope Games Workshop learns something, too.

Quick updates: Useful links for Google Books and the OCLC Policy Change

Many things have happened in the copyright/libraries and games/libraries world since my last post, and I’m not going to comment on them too much just yet. I did want to mention some resources I’ve found very useful when tracking some of the larger controversies.

-Walt Crawford’s March 2009 Cites & Insights has a wonderful summary of various perspectives on the Google Books settlement.  I’d add Scrivener’s Error for an additional useful perspective from an author’s attorney. ALA’s Office for Information Technology Policy also has a Google Book Settlement blog.
-The Code4Lib Wiki’s OCLC Policy Change article  has been very valuable when trying to keep up with that controversy.

I’ve been hired by ALA to write articles related to copyright for their Web site, so I’ll be working on that for a bit.  The articles will be available under a Creative Commons license, and I’ll probably make them available here as well. The Copyright Advisory Network group got together in DC this past December, and we’ve been working on developing resources on the revamped librarycopyright.net site since then (and we will continue to do so). In the near future I’m going to address a few issues related to some problems institutions have come across in their digitization projects and also when not to use a Creative Commons license (hint: when you don’t own the copyright in the material). Before that, though, expect a post on the Amazon controversy from the perspective of a Kindle 2 owner (as well as one who’s a bit frustrated with the Kindle 2 experience right now…)

Today’s slightly-off-my-normal-track link was to the Mont Blanc trademark infringement lawsuit against a person who was selling altered pens. Alas, the legal  documents have been removed from the places they were publicly available and are only accessible through Pacer at the moment. I’m not a fountain pen user- as a lefty with poor hand writing in general, my penmenship with a fountain pen is a pretty scary thing- but Holly is a dedicated collector, and I’ve been following this situation with some interest.

Fair Use in Scholarship

I’ve been involved in a few disturbing conversations the last couple of days.

Fair Use has a vital role in copyright law- it allows the use of copyrighted material without permission for what are essentially societal benefits. Criticism, scholarship, teaching and research are specifically mentioned in the text of the law as examples of the kinds of work that should be fair. Fair use is necessary for scholars.

I’m interested in a wide variety of subjects that don’t directly involve copyright- much like the field if Information, looking at copyright often involves looking at the areas that copyright touches, and much like the field of Information, those areas can be just about anything. So, for example, I look at how copyright affects the practices of libraries and archives, or K-12 education, or other subjects.

One of the things that got me interested in copyright in the first place were the practices of fans, because I am a fan and copyright seemed to bring up interesting and problematic questions for fan activities. In the anime fan world, for example, the practice of fansubbing- that is, groups of fan subtitling and distributing anime that hasn’t been released in the U.S.- used to be, and still is, relatively common. Anime club showings, where people get together and show anime, are also common. I have doubts that the anime industry would exist if these practices hadn’t occurred, but they certainly bring up copyright challenges. Anime itself has become a serious subject of study, and I’m on a few related mailing lists.

I recently gave a presentation about copyright to a group of archivists and educators from different universities in the U.S. One of the topics that came up was working with attorneys. At UT, we’re very fortunate to have strong copyright scholarship advocates like Georgia Harper. I know some other universities also have advocates in that area- Kevin Smith at Duke, for example. But one thing that really struck me from that meeting was that not all groups in other universities have that kind of support. A couple of people described how risk-averse their counsel is when it comes to copyright issues. That’s a problem. There’s too much going on in the world for fear to win those copyright arguments in education.

A related discussion popped up on one of the scholarly anime mailing lists I mentioned. One student working on a dissertation was told that he was required to get permission for every thumbnail or image he had intended to include in his work- well more than a hundred. A few people chimed in about how such a requirement seemed excessive, but many who contributed to that conversation said they had to work under that same restriction: “No permission, no dissertation, no graduation.” Some flat out said that they were told to just avoid such use altogether- don’t even plan on using images at all. If you had planned to, change your plans. Write about something else.

That’s terrible. Even when the law is likely on your side, your institutional situation can put you in a position where you’re not allowed to assert your rights and do the type of research that could contribute certain types of understanding. And when universities take this type of attitude and base their practice on this attitude, it affects the rights of scholars everywhere. Looking at actual practice is part of evaluating fair use. Making your practices so very restrictive is not only detrimental to your researchers, but to everyone doing research.

We, the scholarly community, need to be fair use advocates. We can’t let fear rule our decisions.

Censorship of Media; Copyright and Video Games

I came across two articles today that aren’t explicitly connected to one another, but are certainly evocative of similar issues.

The first is from CNN: The Pictures that Horrified America.
The article discusses the big push to censor comic book publishing in America, because critics alleged that these materials were corrupting the youth of the day. It certainly directly affected the industry, which took many years to recover.

I’m reminded of a trend we notice in copyright and technology: The New is Scary.
Phonographs? Evil. Cable? Evil. VCRs? Evil. MP3s? Evil. Etc., etc. The emergence of “disruptive” technologies shakes up the status quo, and the powers that be in the status quo respond fearfully- in the case of copyright, sometimes to save their existing power structures and business models. In the case of media, it’s generally to save society (or “the children”).

So video games are the new comic books. Or rock and roll. Or film. Or television. Or television show. Or cable. Or book. We’ve seen the same types of arguments used, the same types of language used, and the same types of “reform” proposed. We’ve seen many, many attempts at the passage of state legislation- that have been found unconstitutional.

The role of research in these arguments- copyright and media alike- is an important subject that needs to be addressed.

Moving on, Law of the Game is a great blog to learn about video game related legal issues. The author, Mark Methenitis, communicates clearly to a wide audience. In his most recent column for gaming weblog Joystiq, he provides a solid introduction to how video games and copyright interact. Because the subject is copyright, naturally there’s a lot more to it- but it’s a great starting place.

There is an occasionally acknowledged tension between copyright and free speech. One thing that makes video games different from other types of entertainment media is that they are generally interactive experiences that require the mediation of technology. Video games themselves are directly attacked as a new media in the manner I mentioned above- that is, there are clear free speech concerns dealing with the publication and expression in games themselves and those that seek to stop such expression for whatever reason. In the copyright realm, though, it’s the end-users who are most affected by law and policy.

Like other forms of software, video games begin their digital lives as digital objects, making them subject to some of the strictest areas of copyright law, such as the DMCA- which prohibits what might otherwise be fair uses. All digital technologies have to deal with those issues to a large extent- particularly when it comes to the preservation of older technologies- but video games are particularly difficult to deal with because of their interactivity. It is difficult to preserve interactivity, and one of the more obvious ways- copying- has a big hurdle to jump in existing copyright law.

Recent actions by the publishers themselves haven’t made this preservation any easier. DRM is both illegal to circumvent- even with what would ordinarily be legal uses- and provides significant technical barriers exacerbated by the commercial lifespan of a game. For example, it’s been announced that console hit Mass Effect is going to have a- well, silly- amount of DRM in its PC release in the form of software that requires one to be connected to a network in order to check the validity of your copy every 10 days or so. Of course, that means the game itself is only playable while those servers are supported. We’ve seen problems in this approach with music or video services that are ended- for example, when Microsoft ended MSN Music, MLB’s changing of access mechanisms, or Google ending Google Video’s purchasing programs. Furthermore, a person is restricted to installing the game on three computers (shades of Apple’s authorized iTunes computers…). This isn’t particularly friendly to end users, and it’s a sure way to destroy the longevity of your work. If I want to play Planescape: Torment now- nearly 10 years after it was originally released- I can. I won’t be able to say the same thing about Mass Effect. That is to say, I wouldn’t have been able to say the same thing had I purchased it- which now, I’m not going to. I’ve got a limited amount of money to spend on entertainment, and I don’t particularly feel like spending it on something I can never return to.

More on the Turnitin Suit, and Blizzard going after Glider

As usual, William Patry as some very insightful things to say regarding anything going on in the copyright world.
http://williampatry.blogspot.com/2008/03/turn-it-in-and-kiss-it-goodbye.html

He mentions a few of the problems that I have with Turnitin. I don’t like requiring students to turn over their work in that manner, I despise heavily one-sided End User License Agreements, and I don’t like assuming that my students are cheaters- even when we have found some that do cheat… at any rate, it’s one of those situations where I’m not particularly sympathetic to the party I think probably should win in the copyright arena. The judge found that Turnitin’s use was fair, and I think that’s a good thing for copyright and society, even though I think it’s a bad thing for the students. (I’m also not happy with the resulting reinforcement of EULAs.)

A similar situation is in Blizzard’s case against the creators of a bot (automated) program (Glider) in their World of Warcraft game.
http://gamepolitics.com/2008/03/24/blizzard-bot-program-creator-file-new-motions-against-each-other/

Once again, I’m not very sympathetic to the creators of the bot program, but I am very much opposed to Blizzard’s legal arguments. They’re attempting to use the bypassing of their Warden (anti-cheating) software as a violation of their EULA (which it very well could be) and by extension a violation of copyright (as circumventing a technological protection measure… ugh). They’re probably using copyright because that’s where the law has very strong protections and very harsh punishments, which speaks poorly for them and the law, in my opinion… At any rate, while I don’t condone cheating even in games, I am much more troubled by the implications of Blizzard’s actions. (Yes, people debate whether or not the use of the bot is cheating, and I tend to lean towards the idea that it probably is cheating.)

Video Games and Art

There’s been a great deal of talk about video games and art recently, and here’s the latest salvo-
http://blog.newsweek.com/blogs/levelup/archive/2007/09/18/the-question-of-whether-games-are-art-revisited.aspx
I find it interesting that they’re talking about insiders and outsiders.

To paraphrase a Washington Post slogan from the days of my brief stint there in the early ’90s, if he doesn’t get it, he doesn’t get it. Please understand, we don’t mean this in a pejorative way. We’re simply saying, as we’ve said before, that we “see” videogames with our hands, so asking a complete novice to play BioShock rather than, say, Wii Sports is like asking a four-year-old who’s got a so-so grasp of “Fun With Dick and Jane” to skip the funny pages and go straight for “Ulysses,” “Lolita” or “The Bluest Eye.” Or asking someone who’s got some half-remembered high school Spanish to read “One Hundred Years of Solitude” in its original tongue. It’s a fool’s errand.

Some of the people who don’t understand games- and especially the ones that don’t believe games are art- will read that and say “it’s just not art.” But this is exactly the same kind of conversation I’ve read about modern art, or appreciating museums, or whether movies and television shows are art, and so on. Which makes me think they’re art…

Volunteering at UT’s Videogame Archive Fundraiser

I promised I’d write more about the Center for American History’s Videogame Archive Fund-Raiser, so I’ll do that now. I’ll also be writing about archives, digital archives, and video games and archives over the next few weeks. There’s a lot to think about. ^_^ I was a gamer long before I came to the iSchool- pretty much before I hit the double digits- so I’m pretty excited about the creation of this particular archive, and not just because it brings so many of my interests (digital archives, games, copyright, etc.) together. ^_^

On September 4th, UT held a fundraiser for a new Videogame Archive out of the Center for American History. I was thrilled when the archive was announced. At the very least, it demonstrates one thing: people think that video games are important. For the gaming community such a statement is obvious, but for others… Recently, a doctoral student at the iSchool did their dissertation on community building in the MMORPG, City of Heroes. It was accepted, but there were certainly a few sideways glances. At any rate, the creation of the archive is a positive step in recognizing how video games affect society. I decided to volunteer to help out.

The afternoon started a bit bleak- after several days of sun, the clouds returned to continue our unusually mild summer. Ordinarily I’d be happy about that, but I knew that a great deal of the fundraiser was going to be outdoors. I got there a couple of hours early- not to catch an early glimpse of Garriott and his place, as my coworkers suggested :P- but to help set up. As it turns out, I drove in just behind Brenda Gunn, one of the archivists at the Center who’s been heavily involved in this archives’ creation.

(more…)

Golan v. Gonzales, UT’s Video Game Archive

I’ll be a guest blogger at Collectanea this month, and my first post gets to be about Golan v. Gonzales. ^_^

Yesterday, I had the chance to volunteer at UT’s Video Games Archives FUNdraiser. It rained, it was muddy, and it was great. ^_^ I’ll write more about the experience, video games and archives, Richard Garriott’s place, and more as soon as I have time to download a few pictures.

On a related note, today is apparently the launch party for Garriott’s new MMO, Tabula Rasa, at his estate. A pair of tickets was auctioned off at the fundraiser for $2100. Once we get the TR NDA release, I’ll have more to say about the game itself. ^_^

Copyright of an Avatar

ZDNet is reporting that a virtual land owner in Second Life is sending DMCA takedown notices to persons using screen shots of the now infamous, to put it bluntly, flying penis attack at a CNET interview with that person. There are several problems with this tactic, as ZDNet notes. Although the person has copyright in their Second Life avatar, that does not mean that they can control all uses of their copyrighted work. They certainly can’t stop fair uses, of which the reports including screenshots almost certainly qualify as.

Another problem is that one of the people they sent the notice to was the Sydney Morning Herald, which does not currently have to follow the U.S. DMCA, although they have their own copyright issues over there. :P