UGC and IP in a cloning world
Slashdot is discussing an article at Joystiq about UGC and IP rights which comes from a GamePolitics news item of a few days ago about the update to the PSN TOU around UGC — specifically because of LittleBigPlanet.
The bottom line, amidst all that linkage? Sony is taking a fairly traditional approach to IP rights, from a networked game sense:
Sony can use user content without restriction to advertise. They can also ‘commercially exploit’ your creations without permission, and if they do benefit ‘commercially’ (read: monetarily) from your creations, they owe you nothing. You’re also agreeing to abandon your moral rights to the work. Most importantly, you’re not allowed to commercially benefit from your creation without their permission.
— Mark Methentis, Joystiq
Now, LittleBigPlanet feels more like a toy in a lot of ways — you work with the pieces they give you. Then again, it took mere moments in UO for someone to grab a bunch of fish and spell out a dirty word on the bridge in the middle of Britain. (What’s more, seeing that occasioned a moment of glee from the team, though perhaps not from management).
As more UGC-centric design flows in, the demands from users for retaining ownership or even monetizing their expression is going to rise. And it’s going to come into conflict with the notion of “derivative work” — everything in LittleBigPlanet is clearly of LittleBigPlanet. It is also going to run into strange problems with cultural appropriation — the Tetris clone in LBP is a strange agglomeration of cool and illegal on so many fronts that it boggles the mind.
In music we have the notion of a “cover version.” The original songwriter still gets credit and even cash, if the cover makes money — and sometimes the cover is very faithful, downright imitative. In games, we have infringement and we have homages and we have “a game in the same genre” and occasionally we get “remixes” like the modernized versions of Atari classics that have been popping up on XBox Live Arcade (the Missile Command sucks — sorry, widescreen makes the game worse, not better! — but the Warlords is pretty good!).
Games are formal systems. This means like much like mathematical proofs build on each other, new games tend to wholesale take the grammatical structure of an older game and change a few atoms. Sometimes these are purely topology of the challenge landscape — my preferred example is dated, but if you look at the old Dreamcast game Donald Duck: Going Quackers, it is a direct, top-to-bottom rip of the original Crash Bandicoot in every respect save for the art and the levels. Same controls, same everything.
In fact, as I have argued before, much of the issue with genre advancement in games is that whole genres are built out of increasingly baroque elaborations of simple games, with the result that genres gradually become less accessible to the uninitiated.
This leaves games in an awkward position as far as progression of the medium goes. Learning cover songs is how a musician learns. The entire field of classical music performance is predicated on interpretation! And indeed, many young game programmers and designers learn by remaking classics. In Metaplace, we have seen remakes (with variations) of Tetris, Pac-Man, Tron‘s lightcycles, Robotron, Kaboom, Space Invaders, and more. Now, with games like these, there are so few atomic elements to the game that it hardly takes a big change to create something that feels substantially different from the original. (As an example — the Pac-Man-like game is multiplayer; the lightcycles game has no start or end, but runs full-time and users join and depart at will, etc).
If UGC really does succeed in democratizing game creation to the extent that many of us hope, we’re going to have to reach an accomodation with this question. When people learn and create Tetris within LittleBigPlanet, should Sony claim ownership? No, it presumably belongs to that holding company that controls the Tetris rights. But should they claim ownership? Shut down someone who is learning their craft? Is there an educational exception?
Way back in the early 90s there was a Tetris clone known as “Wesleyan Tetris” that you can’t get anymore. Randall Cook, a student at Wesleyan I presume, made a Tetris clone that made snarky comments at you as you played. It raspberried. It played cheers and weird sounds (roosters crowing, etc) as you did things. It told you “good move!” when you made a good move. It added invisible blocks. Rows that shifted sideways unpredictably, ruining your strategy. It was the best damn version of Tetris ever.
More recently, we saw this happen with Geometry Wars and Grid Wars, which was arguably better balanced than the original.
How do we find a way to get “the best damn version of <insert game here> ever” while still retaining IP rights for original creators? If someone makes a better Tetris, at what point do we really say it is OK to monetize it? If they do it in LittleBigPlanet, who should own what? If someone remakes an X-Wing as a Spore creature, should EA claim ownership?
And trickiest, to my mind: In a world where UGC is dominant — bear with me a moment, because that’s not the world we have now — when does supplying building blocks turn into moral rights as a creator?
15 Responses to “UGC and IP in a cloning world”
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It has little to do with supplying building blocks. Art stores supply building blocks, canvas, paint, brushes, etc.
Is the digitial supplier selling so ownership transfers on the materials that are eventual made into something?
Also notice art supply stores and art galleries are two distinct businesses. Seems game companies are trying to do both and control what is made by what is sold. That does not work in the art world.
My thinking exactly, UnsGub. Just because I buy your brushes doesn’t mean you own the art I create with them. The tricky part is that they kind of own the studio in which you are creating your art. Even in the art world, they sometimes get a piece for that.
For me, the key issues of ownership are tools (as you’ve identified) and time (at work, they pay for my time, so they own my IP, not true of Sony). I think the time area is where the MMORPG companies (and possibly the mod tool owners) will run into (legal) trouble.
I think blocks –> ip happens similarly to patents, a non-obvious step. So putting two Lego blocks together does not constitute a new product that can be marketed and sold. Building whole games within games is a non-obvious step.
The real problem is that companies are getting us to sign ELUAs that violate our own rights. In Canada at least, those kinds of agreements don’t stand up in court (like when the bungie jumping guy gets you to sign away your right to sue if he forgets to attach the bungie cord), so all it may take are a few court decisions (http://arstechnica.com/news.ars/post/20080901-washington-court-deals-a-blow-to-unconscionable-eulas.html).
The other trouble at work here is rewarding good work. We also can’t stifle creativity (and clone-learning) by giving too much back to the originators. The clone-learning exception can be handled (again, at least in Canada) with the educational exemption. The snag is that it couldn’t be monetized nor really even massively released, but for the purposes of learning, simply doing the thing and having a few people play it might be enough. Can we agree on a stock 10% on cover games? Or a shorter cycle of IP ownership (like pharmaceuticals and generic versions of drugs)?
I work mostly in the field of experimental interface design, and we have a lot of trouble protecting our ideas from copying. Interfaces (much like games/modding) sit in this grey area between copyright and patent law, not fully protected by either.
Sorry that this is a bit scattered. I suppose a “comment” isn’t supposed to be perfectly structured vision of my rapier wit, but it always feels like it should be. Also, my comments about Canadian law are not meant to imply that Canada’s laws on this kind of thing are better, just that I know them better.
This brings up an interesting concept that you see quite often in Japan these days: that of “doujin,” or fan works. While at some technical level it’s an infringement of copyright, these derivative works are actually leveraged by companies as a form of free statistic tracking and interest generator and are thus not actively discouraged. As an example, many popular franchises have self-published comics, games, music albums, and even model kits and figures; all made by fans and sold to fans at large events to fund the next. It’s a very interesting environment and might provide some insight into a good resolution for this current dilemma (okay, I’m not that delusional. Most of these companies would rather fold than make one iota of concession on ownership of their abstract ideas).
The interesting part is that games by themselves are not copyrightable. From the U.S. Copyright Office (http://bit.ly/3Xaplb):
It’s clear from this that the idea of e.g. Tetris is certainly not copyrightable, but the art, sounds etc are, and naturally there are trademarks for the name “Tetris”. There still may be patents to contend with (e.g. Harmonix had plenty of patents on “game playing with music”). Whether these get invalidated by the recent ruling on business method patents (which has implications to software too) is another thing.
P.S. I’m not a lawyer, so take this with a ton of salt.
To me, the best version of Tetris was Tengen’s Tetris on the NES, for the cooperative play mode. But, I’ve never played Wesleyan Tetris, so.
Arguably, Sony’s lawyers likely know their agreement won’t stand up in court if real products are developed, and is putting that language out there more to cover their own butts so that it can’t later be claimed they said nothing. The language is defensive in purpose even if offensive in tone (and, I’m not naive here, they would wield it as a weapon if there was something worth seizing).
After all, if there is no specific mechanism by Sony for obtaining that required permission to exploit your own works, then the agreement is faulty on its face.
Well, there is another difference in that, at work, you’re explicitly building things for your employer. It seems synonymous with ghostwriting: the point of the exercise is to have your IP folded under someone else’s umbrella.
That’s not the same social contract extant here, and that doesn’t seem to be properly spelled out.
>when does supplying building blocks turn into moral rights as a creator?
YOu had me right up to the last point. Can you elaborate further?
>XBLA remixes
Pacman CE is f***ing brilliant. Go spend a little time with it if you haven’t yet.
Moral rights: http://cyber.law.harvard.edu/property/library/moralprimer.html
In short, it’s the legal principle (used worldwide, though the link provided focuses on US law) that underlies several aspects of IP protection, particularly around visual arts. To rephrase my question:
If you provide a bunch of building blocks, which might range from small pieces up to large building blocks, and IP is vested in you, and it gets remixed, at what point do you lose moral rights (IP ownership)? On the sliding scale of “barely tweaked” to “radical remix reinvention”, where does it stop being “yours”, if ever?
If someone makes a giant collage of Mickey Mouse out of PacMan stickers, what do the IP owners of Pac-Man get to claim? (I am sure Disney has a claim). What if it is a collage of an original creation?
If you want to enable user generated content in a game while at same time providing company developed content as well you have to find some way to deal with the ownership issue.
Take WoW as a example if they enabled user generated content for that game given the large numbers of players WoW has you would be looking at sevral hundred thousand people generating content. Most of it would be low quality but the massive volume would very quickly exhaust almost all paths for original content that Blizard might try and release in the future. Even if Blizard isolated its devlopment team from user generated content odds are given the massive amounts of user content being designed that large aspects of any content Blizard designed would be the same as user generated content.
The problem becomes if Blizard doesnt own the user created content then there at risk of being sued by the creator of that content. Sony aserting ownership of user created content is there answer to the issue. While this answer works for them it probally doesnt work for the people generating the content because while sony has gotten rid of the legal issues on its side the people on otherside still face to threat of being sued by sony if they use the ideas they created for any game under this eula for another game.
I think there needs to be a way for both players and companys to generate content at the same time without fearing being sued. People generating user created content for a game need to understand they can not sue because later company generated content looks like what they created. Companys need to understand that users will probaly take the content they made for your game and redo it in other games as both user generated content and if given the shot then company generated content for another company.
User generated content is going to be important in the future but not tell both creators and companys agree to not sue each other over it.
Just because Sony says that they own everything you make, doesn’t necessarily mean the courts will always agree with them. It is a blurry line and judges are forces to make decisions all the time about what is considered an original work and what is considered a rip-off. Until we have a way of quantifying creativity, this is the system we are stuck with. The best solution would be for everyone to play nice together, give credit where it is due, and not sue anybody.
First game I ever made was a Pac-Man clone. 🙂
“It is a blurry line and judges are forces to make decisions all the time about what is considered an original work and what is considered a rip-off.”
Letting a judge decide sounds like an uncreative solution for everyone involved. We can do better then that.
“First game I ever made was a Pac-Man clone.”
I do not see anything getting made in that statement. The first game you reproduced\modded was Pac-Man.
If I make a chair, I still say “I made this chair” even if I used someone else’s design.
Mike Weldon would only have “reproduced” a pacman clone if he had done:
copy pacman.exe pacman-clone.exe
He’d have only “modded” a pacman clone if he had patched the binary of an existing pacman implementation.
Creating a new program that mimics playing pacman *is* creating a new program. Similarly, if I paint my own version of the Mona Lisa, I can say I painted that copy of Mona Lisa.
I do agree we should not let judges decide – judges are people too! If we cannot decide, why do we think judges will be able to magically see the right solution? Similarly, I really am not at all convinced Sony has any actual need for such a strong claim. Half of it is grabbing for imaginary needs, such as the ability to reuse your generated content for their own profit. This is a pointless claim. 90% of users content is crap so you don’t want it anyways. The other 10% is of “free” value, ie, the sort of thing that is valuable but can’t be monetized without ruining its value. The extraordinarily rare case where someone actually does generate something of value? Make a deal with the person then. It’s not like you won’t already have a huge advantage in any negotiation when you, the multinational Sony, enter discussions with the individual who did the work. Even if they want to go their own way, the marketing coup of a real-world success engendered from your in-game game likely will more than cover the potential losses. Contrast that with trying to forcibly take it from the creator – a huge public backlash irrespective of the legality of your EULA and the potential for some judge to choose in favour of the author despite the EULA! The other reason to seize all content is for marketing – you want to be able to point to users content as examples of how cool your creation system is. Two easy solutions to this. One is to explicitly allow the use of people’s work for marketing the platform. The other is to instead run periodic contests. Users submitting to the contest will waive appropriate rights (possibly even all in this case!) You get two bonuses here – not only do you get the rights explicitly freely given to you, but you also get a built in selection process to determine which things are worth looking at in the first place! Yet another reason to seize content is for control: to allow the deletion and editing thereof. I’m not sure this requires any right transfer, it just requires a disclaimer that you reserve the right to corrupt your database at any time. Another reason is because your internal tools allow people to copy from each other’s content. The problem here is that you might be seen as an enabler, in a grokster fashion, of the duplication. Similarly, when someone does submit to the contest, or agrees to developing some solution externally, there is the question of the source of all the bricks they used – how can you ensure all the sources granted proper permission? By demanding complete ownership of everyone’s content, you can ensure all mish-mashes created are also yours so have simple ownership rules. This, however, is an illusion – if I illegally submit a building block into the system which contains ideas that I do not own, I would not have transfered the rights to Sony (since I didn’t have them to transfer) Thus, any aggregate *still* needs to be vetted against some player having injected an illegal texturemap.
This is all just a long winded fashion for me to reassert that I really feel these grab-all EULAs are misguided and unnecessary.
You know you just shot yourself in the foot with the second sentence there, right?
I’m thinking about two different implementations of UGC on my system: Spore and Second Life.
Spore has wonderful content creation tools that can produce a fantastic array of imaginative and intricate creatures, buildings and vehicles. Second Life tools are clunky and wonky by comparison, with some creation entirely impossible to accomplish without third-party applications (which are hellaciously expensive and/or require intensive study to master, usually both).
But EA asserts ownership over anything I create in Spore. By default, they upload everything I make and distribute it freely to other players, gratis. Linden Labs allows me to not only retain my IP interest in my creations, but also to sell products to other residents in a medium exchangable for real-world money. Their cut? I pay base tier on the space my shop occupies. That’s it.
So I spend painstaking hours polishing and tweaking Second Life objects, trying to get each detail perfect, but scant minutes tossing together Second Life creations. My personal investment is higher in Second Life because my creations are mine, and each represents potential income. And since Spore is just for fun, the Spore community won’t ever get my best effort as a creator (not to imply this is any great loss for them).
When you enable UGC, you see a flourishing of content. But when you concede player ownership and allow them to monetize their efforts, you see a flourishing of GOOD content (plus a great wave of mediocre content with really excellent marketing, but that’s the biz).
At what point do the platform providers get to step in and seize control of an asset that has generated a lot of buzz?
Will they be able to absorb it and use the symbol of it in ways the original creator would object to in order to further the success of the platform?
What if they can they rework the original creator’s design in a way that fully realizes the platform’s capabilities because of unpublished information they hold?
Tread carefully, industry….tread carefully