[rant] Copyright, Creative Commons, and Artistic Freedom

[Ben Lehman]

Hi.  This is a spin off of Pricing and Marketing your game and mine

Also, since we're talking about legal issues here: I am not a lawyer.  This is not formal legal advice.  I am merely a private citizen discussing my views on copyright law.

I am a huge fan of all things open source and copyleft, and am actually kind of disappointed that so few indie-designers release a Creative Commons version of their game. In this respect, the indie-RPG scene compares very unfavourably with, say, the Interactive Fiction scene.

I have made a concrete decision as an artist to hold all the copyrights for all my work, or to release that work entirely into the public domain (which I have done once so far.)  I have very clear artistic and personal reasons for disliking Creative Commons, OGL, GPL, and similar licences, and I wanted to make my points in a public place where people can see them, but I didn't want to clog up an already wandering thread.

First, to get this out of the way, I am absolutely not opposed to reuse or re-interpretation of my work.  The fine print on the bottom of my website say this

All text in these pages copyright Ben Lehman, 2003-2005. All rights reserved. I encourage responsible, credited use of my work by others. If you have an idea that uses my work, please don't hesitate to contact me.

So, let me just lay out why I don't use any of the restrictive licences mentioned before.

1) They do not, generally, apply to game design.  Game designs are processes, not texts.  Processes are absolutely not copyrightable.  They may be patentable, but games are generally not subject to being patented, and even those that are rarely get a patent, because it simply isn't worth it.

To be blunt: I could, legally, produce a game which has the same tone, mechanics, and processes as Sorcerer, as long as I didn't take full sentences from Ron's text.  I'd be a dick to do so without asking first, but legally within my rights, because the processes Sorcerer describes aren't patented, and copyright only goes as far as his text itself.

2) Often, they take away more rights than they grant.  For instance, use of Creative Commons or GPL can take away your ability to sell your own creative work for a profit.  Use of OGL actually attempts to restrict your ability to cite sources, and also to use certain mathematical formula (which, see #1, aren't under copyright at all.)  This is exceptionally true because almost all of these licences are evangelistic -- to make use of the licenced material you, too, must adopt the licence.

Such licences usually downplay or fail to mention that most of the material could be used under fair use, without a need for conversion to their particular copyright viewpoint.

3) These licences are often incompatible with each other, meaning that each one gets isolated in its own little creative community and can't share with others.

4) They reduce and often restrict communication between artists.  Say Bob has produced something under Creative Commons, in such a way that anyone is free to use bits if their work is also for free.  I want to use some bits in my next game, which I'm going to charge for.  If Bob didn't have the CC licence, I could just write to him and ask if I could use them or licence them from him.  Since he does, however, he is likely to just say "piss off and use CC like everyone else," effectively making that licence to use parts of his work the most expensive possible -- it costs me %100 of my gross.

Even if Bob is willing to negotiate, he may not be able to -- if he is caught under such a licence because he used bits from other people's work, he would need to get all of their permissions, too.  The web is hopelessly complicated -- the "free" licence has effectively walled me off from using Bob's work forever.

5) This is the second most important, really ( #1 is the most).  Copyright law is actually quite sensible and generally does rational things.  It is not a giant monster.  It does not over-extend into stupidity.  Fair use is quote robust.  Taking inspiration from other's work is not, nor has ever been, a crime.

But, our society (by which I mean America and now Europe as well) has been the victim of a hideous, amoral disinformation campaign by large corporations, effectively selling us on the idea that copyright is vast, far-reaching, and makes any use of artistic material illegal.  This isn't actually true, but they've sold it to us through fear and ads.

Quite frankly, I see the whole "copy-left" thing as being a victim of that disinformation campaign.  Most of the rights that they are looking for are already in the laws.  We don't need to embroil ourselves in hopelessly complicated boilerplate licences that take away our rights in order to be a thriving artistic community.

And that's why I use ordinary, non-restricted, copyright for my games.  (Or, as I said, public domain.  Which ducks all of the above problems.)

Uhm...  That was more of a rant than I anticipated.  Regardless, I welcome critique, dissenting viewpoints, or agreeing viewpoints.

yrs--
--Ben

[Victor Gijsbers]

Hi Ben,

Although I do not agree with you, I do think I appreciate the general concerns you are voicing. Nevertheless, it seems to me that there are some tensions in your rant:

1. There is a tension between the first point and all the others; if copyright is not even an interesting issue for roleplaying games, that neither of the other points can be interesting issues. On the other hand, if they are, then the first point must fall - copyright is after all an interesting issue.

2. Point 3 and 4 are directly opposed. Suppose I want to use some CC-license, and Bob has licensed his game using the GFDL. What do I do? I contact Bob, and ask him whether I can use the text under a CC-license. He'll probably say 'yes'. The only differences with him just having copyrighted his text are that, first, I could also have used his game under the GFDL, and, second, I can be certain of a positive reaction.

Your second concern appears to be based on misinformation - unless I am the one who is misinformed. "Use of Creative Commons or GPL can take away your ability to sell your own creative work for a profit." Could you show me where the CC-license or the GPL-license says such a thing? Companies like RedHat and Suse make their money by selling GPL-based software. The Creative Commons licenses fall into two categories: commercial and non-commercial. The difference between these is that with the first, people can use your work to make money; with the second, they cannot. But neither restrict your own ability to sell your own creative work for a profit.

Which leaves the fifth point as the main one, I think. Is copyleft merely an overreaction against a totalitarian interpretation of copyright laws? I'd like to first ask you a question, and approach this point based on your answer. Do you think the copyleft approach has been necessary for the huge and complicated project in the open source community, such as the many flavours of Linux?

[Owen]

At least in the software world, there are Open Source licenses that are not copyleft (i.e. they do not require derivative works to also be open).  These are generally referred to as BSD-like or "academic" licenses, because they often used for academic research projects.  The general philosophy behind them is that the work should be free because its availability to anyone enhances the body of human knowledge.  Generally, they grant unlimited free use of the work for any purpose so long as the copyright notice is preserved.  Some prevent the use of the name of the original work/author in advertising materials for derivative works.

That's the kind of license I prefer.

[jerry]

I tend to agree; however, there are some very good reasons for using an open source license as opposed to releasing a game's text into the public domain. And there are good reasons for using an open source license on a game that you don't want to release into the public domain, if you want to protect certain kinds of re-use.

I'm in the midst of finalizing an article about this for my own web site, but basically, if we had reasonable copyright laws and an assurance that they would remain reasonable to the foreseeable future, I'd probably just release all of my game texts into the public domain immediately. The problem is that they aren't reasonable.

One scenario you're leaving out is what happens when Bob dies tomorrow; we cannot ask him for permission, and we probably have no idea who we need to ask for permission. But even if we do, there is no guarantee that they will understand Bob's wishes, or follow Bob's wishes if they do understand them. If Bob has released his game text under the Creative Commons, GPL, or GFDL, his wishes are legally binding. A text that does not have a legally binding re-use license on it will eventually become unavailable for re-use.

Things change.

Yes, the chain of permissions can be complicated; but this is only because the copyright term lasts so long. If copyright terms remained a reasonable length of time, the chain of permissions would be severed much sooner. Part of the purpose of copyright was that things can be re-used, but that purpose is no longer served outside of open, viral, license terms.Something released into the public domain rather than as an open, viral, license does not require allowing the re-use of of texts that use those public domain texts.

This is part of what you appear to be asking for: you want Bob to prefer to let other people use his texts without them having to let other people use their texts. You don't want Bob to have the option of letting other people use his texts only if they are also required to let other people use their texts. But that's part of the purpose of many of these open licenses: to return copyright to a system that encourages re-use.

Things change in many ways, and they don't have to get better. If you wrote a game text in 1974 and released it into the public domain or granted other people permission to use that text, thinking that anyone basing another game on that text would have their text return to the public domain within 28 years anyway, or 56 years at most, you would have found that copyright law changes. The copyright term that you thought was in effect was changed to a far, far longer one, one that is for all practical purposes to anyone alive today forever.

But laws change in other ways as well. Copyright restrictions cover more ground today than they did thirty years ago, and far more ground than they did a hundred years ago. There may well have been people who died thinking that their texts could be freely translated to other languages, but whose heirs took advantage of new copyright laws to block such re-use. In another fifty years, copyright restrictions may become extended to game rules (as they already have been extended for computer program instructions). Even though you left copyright restrictions on your game texts thinking that people in the future could re-use your rules, your heirs would be able to block such re-use. If, on the other hand, you released your work under an open license, you would have protected the re-use of things that weren't even restricted when you released your work.

Jerry

[axonrg]

I would disagree with you on several points:

They do not, generally, apply to game design.  Game designs are processes, not texts.

While it may certainly be true that game mechanics or design are not copyrightable that doesn't mean there is no benefit to "open sourcing" the copyright of your game. A lot of game writing is re-creating boiler plate text or customizing existing rules for your own purpose. A copyleft license permits you to easily copy-and-paste text from another document, republish a document, make changes or improvements to existing documents, etc.

Often, they take away more rights than they grant.  For instance, use of Creative Commons or GPL can take away your ability to sell your own creative work for a profit.

I would disagree strongly with the above. In fact, groups like the Free Software Foundation and the Debian Legal mailing list work very hard to ensure that free software and open source licenses do not take away any of the rights or freedoms you enjoy normally.

Furthermore, it is a common misconception but there is nothing in either the CCPL or the GPL that removes your ability to sell your work for profit (unless you use the objectionable NonCommercial license option in the Creative Commons). The publisher always retains the copyright to his work and you can certainly sell that work for profit. For example, many companies dual-license their works under both a FOSS license and under traditional copyright for profit. You can certainly charge for copies of a GPL work (Non-NonCommercial) Creative Commons work.

Such licences usually downplay or fail to mention that most of the material could be used under fair use, without a need for conversion to their particular copyright viewpoint.

The situations where you can have Free Use are actually fairly restrictive and you certainly cannot use "most of the material" in a book under fair use. I would also note that outside the US jurisdiction (e.g. the UK) there are few or no Fair Use laws.

These licences are often incompatible with each other, meaning that each one gets isolated in its own little creative community and can't share with others.

That is certainly true, although I would that both the GPL and the Creative Commons have a vast wealth of content licensed under their terms. Surely its better than being isolated in a community of only one person under traditional copyright law?

I want to use some bits in my next game, which I'm going to charge for.  If Bob didn't have the CC licence, I could just write to him and ask if I could use them or licence them from him.  Since he does, however, he is likely to just say "piss off and use CC like everyone else," effectively making that licence to use parts of his work the most expensive possible -- it costs me %100 of my gross.

Again, the above is only true if you hold that you cannot make money from open/free content which does not necessarily follow (see above). Alternatively, you can always ask permission from Bob to use his work through traditional copyright regardless of whether he has licensed it under the the Creative Commons or not. Ultimately, though, it is up to Bob how others use his copyright. If he only wants his copyright used through the terms of the Creative Commons or only if you pay him that's his decision and then there isn't much you or I can do about it.

It is his is the second most important, really ( #1 is the most).  Copyright law is actually quite sensible and generally does rational things.  It is not a giant monster.  It does not over-extend into stupidity.  Fair use is quote robust.  Taking inspiration from others work is not, nor has ever been, a crime.

It maybe true that some copyright is "sensible", I would note that, across the globe, copyright laws are becoming more and more unreasonable. Copyright terms are extended beyond the lifetime of the author, things that previously were un-copyrightable  are becoming rapidly copyrightable (such as mixing soundtracks, limitations to fair use, DMCA, etc). I know for a fact that Wizard's of the Coast, for example, do consider game rules, mechanics and "designs" to be copyrightable and, now that they are owned by Hasbro, are certainly in a position to lobby governments across the globe to accept their viewpoint, or pay expensive lawyers to enforce that view in the courts.

Quite frankly, I see the whole "copy-left" thing as being a victim of that disinformation campaign.  Most of the rights that they are looking for are already in the laws.  We don't need to embroil ourselves in hopelessly complicated boilerplate licences that take away our rights in order to be a thriving artistic community.

As a member of said copyleft movement I would note that,judging from your comments above, you seem to have been victim to your own disinformation campaign on copyright law.

Proper free content, free software and open source licenses do not take any rights away from copyright holders, and only pass on benefits to third parties who would not normally be able to take advantage of copyright thus ensuring the creation of thriving artistic communites where there were none before. See the open source movement for more details.

[Victor Gijsbers]

Furthermore, it is a common misconception but there is nothing in either the CCPL or the GPL that removes your ability to sell your work for profit (unless you use the objectionable NonCommercial license option in the Creative Commons).

The NonCommercial option in the Creative Commons license ensures that other people cannot sell your work for profit. It does not in any way restrict the copyright holder of the work to sell it for profit. (Nor could it, since - I strongly suspect - you cannot have such legal obligations to yourself.)

[axonrg]

Good point, I only noticed that after I hit the submit button. You are, of course, quite correct, not even the NonCommercial license option of the Creative Commons prevents you from selling your own copyrighted works for profit. It would only affect downstream users of a licensed work (licensors) not the licensee.

[axonrg]

Sorry, I meant "It would only affect downstream users of a licensed work (licensee) not the licensors."