The Videogame in the Age of Mechanical Reproduction

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Author: Matt Barton
Editing: Bill Loguidice
Artwork: Buck Feris and Elizabeth Katselis
Online Layout: Matt Barton

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The following text (not including illustrations) is licensed under a Creative Commons License.

1. The Innovations and Aggravations of New Technology

Picture by Buck Feris.
Recognize this old game?
The New Galaga

Let us begin this rather ambitious article by proposing that someone finally gets around to inventing a nifty Star Trek gadget: The replicator. We’ve all watched as Jean-Luc Picard approaches this device and calls up his favorite beverage: a cup of steaming Earl Grey. We can assume that this replicating device works by rearranging subatomic particles to form whatever objects one cares to copy, be it a beverage or a diamond—other science fiction accounts for such devices with references to nanotechnology, or incredibly tiny, self-replicating machines. In short, this machine has the rather amazing (or alarming) effect of eliminating scarcity. If we can assume for a moment that the replicator runs on very little fuel, we can realize why there is no money or exchange in Star Trek: With an increase in supply comes a decrease in demand. If everyone owned a personal replicator, we could not become wealthy by cloning billions of diamonds and tons of gold nuggets. The worth of those diamonds and nuggets would diminish proportionately to the number of them we brought into existence. Thus, in a world where everyone owned a replicator, no object at all, including other replicators, would have any intrinsic monetary value. Even works of art like the Mona Lisa would fall in value as atom-perfect clones appeared that were utterly indistinguishable by even the finest scientific equipment. Walter Benjamin, a celebrated 20th century philosopher, argued that the "aura" of artworks will fade away once industrial technology permits the rapid, accurate mechanical reproduction of such works. The point I'm making is that at the very moment “replicating” technology becomes freely available for all objects, capitalism becomes feasible only with direct legal intervention. The only method by which capitalism could be preserved in the face of replicators would be to impose strict and utterly arbitrary legislation to prevent people from “illegal” replication of legally protected objects. There would be no practical reason to impose such legislation; it would be intended only to protect those people fortunate enough to be legally entitled to monopolies over certain pieces of “intellectual property.”

Now, of course we don’t need anyone to point out that the science of Star Trek is about as realistic as the notion that human beings will eventually stop arguing with each other and decide, once and for all, to “just get along.” Clearly, any one of the inventions of Star Trek, be it the replicator, the transporter beam, or the holodeck, would be in themselves enough to transform our current society into something far less conceivable than the pleasant Star Trek fantasy. It is more likely that any one of these inventions would spark a horrible world (or perhaps intergalactic) war that would plunge humankind back thousands, if not millions, of years. The current heads of multinational corporations would take an invention like the replicator about as kindly as the Church took Galileo’s telescope, which helped destroy a significant portion of the Church’s authority. Kings do not lie idly by as the serfs run away with the keys to the kingdom. If there is one lesson we can learn from history, it’s that our leaders, whether kings, presidents, dictators, or CEO's, are perfectly willing to block any technological progress that threatens their dominion1.

However, we need not concern ourselves with such upheavals, nor declare ourselves proletariats on the edge of a Marxist revolution quite yet. Science hasn’t even figured out how to make a decent electric razor, much the less technology as startling at the replicator. A good question is whether or not our government would allow such technology in the first place. How fair is the simple and rather cynical observation that the forces of multinational corporations fight any innovation that threatens their precious financial infrastructures, progress be damned? Let’s not get this point confused with rumors, like the gas industry’s battle to keep the hundred mile per gallon carburetor off the market. Instead, let’s borrow a page from the constitutional law professor Lawrence Lessig, from whose work Free Culture I derive my own stance on this subject. His story of RCA’s mission to stifle FM radio technology ought to arouse the anger of any patriotic technophile.

According to Lessig, Edwin Armstrong invented FM radio in 1933 (or, at least that’s when he registered the patents). As anyone knows who has ever compared FM to AM radio, the aural clarity of FM is unquestionably superior. However, despite its enormous potential for the evolution of radio, Armstrong’s invention would not reach the masses until well after his patents expired (patents last for twenty years). The reason for this slow progress was not any problems inherent in the technology, but rather the legal retardation imposed by RCA—Armstrong’s company. David Sarnoff, the president of RCA, realized very quickly that FM radio would destroy RCA’s profitable AM radio network. Through a series of devious dealings and political shenanigans, RCA triumphed and Armstrong took a shortcut from a thirteenth floor window.

Okay. We’ve gone over some examples of how big business leaders squash technological developments that threaten to bounce them from their gravy train. We’d be somewhat hypocritical, I think, to claim that there is something evil about the simple desire to protect our financial interests; as a teacher, I’d be fairly upset if someone announced the invention of a “learning device” that transferred knowledge to students’ brains by osmosis and rendered human teachers obsolete. However, at some point we have to realize that such technological developments are ultimately good, not bad, and if they force us to reconfigure our lifestyles and learn new ways to make a living, so be it. The alternative is simply stagnation; yes, let’s be sure that there are plenty of old computer programmers who would have been quite happy if they had never had to learn another programming language after Cobol, but becoming a Luddite is not a wise or truly justifiable choice. A cure for cancer may put a lot of chemotherapists out of business, but we don't need to conduct a quick poll to see how many people will take their side.

2. Derivative Software and Copyright

Our discussion so far has been leading, quite predictably, I would think, to that rather nasty problem that has dogged the software market since Bill Gates secretly bought the rights to a product called QDOS for a cool $50,000 from a company called Seattle Computer Products. He then turned around and licensed the product to IBM2 and eventually other personal computer manufacturers—in short, that $50,000 investment led to one of the world’s biggest personal fortunes. The richest man in software history began his career not with creativity, but with cunning, a trait he has demonstrated on many occasions with other software products. Gates’ pattern, according to his more scathing critics, is simply to buy, borrow, or steal radical software innovations (like the Windows graphical-user interface from Apple, who took it from Xerox Parc), aggressively market them, stifle competition, and protect, at all costs, his “intellectual property rights.” Gates, in short, represents what a clever and ruthless businessperson can accomplish in a new and vigorous creative market. On the other hand, we must acknowledge that Gates and Microsoft have done a good thing by allowing a standard to develop. An easy analogy to make here is to AC plugs and outlets; European tourists are quite familiar with the hassle involved in seeking “adapters” for each electrical appliance. Often enough, a standard encourages innovation, even if it is inferior to many other possibilities. The problem begins when the standard is “protected.” What if every maker of an electrical appliance had to acquire an expensive license to make a standard plug? It’s not such a well-known fact that early phone companies tried to keep hotels from allowing guests to use the phone in their rooms; they wished to grant access only to paying subscribers3. Phone companies also tried to force consumers to rent an expensive protective coupler that supposedly protected the telephone network from dangerous third-party phone equipment, such as telephones made by other companies. Of course we see this same fight happening today with computer operating systems and the third-party applications that are allowed to run on them, or companies like Nintendo trying to block third-party development on their systems with special chips or technology built into every one of their consoles.

A history of videogames, just as a history of any software “type” or “genre,” will reveal an open-source origin and a legacy of “borrowers” and “derivers” hoping to capitalize on what was originally free, whether through buying up copyrights or creating enhanced commercial versions. With an increase in the size of a software corporation comes a decrease in the level of innovation one finds there, until finally, in 2004, gamers are confronted at the videogame store with hordes of cloned videogames and programmers are threatened at the courtroom by battalions of lawyers frantically protecting someone’s “intellectual property.” The protection that intellectual property law affords software developers is possible only by seizing the rights of the users of that software, even those who legitimately purchase it. As corporate lawyers, CEOs, and investors further entrench themselves in the software market, gamers and programmers will find themselves in the same dismal position as the ship in a game of Space Invaders.

Back in the early days of computing, programmers felt little need to copyright or try to protect their intellectual property. The world’s first videogame, Spacewar!, was what we would today call an “Open Source” project. Teams of hackers worked together to create the game, often modifying the source code to add innovations like an accurate star field or game controllers. It is doubtful that any of these programmers saw any monetary potential in their game—it could only be run on hopelessly expensive mainframe computers that were intended for “serious” scientific use. Perhaps a group of people that have not received their due credit for the invention of videogames are those kindly professors and lab supervisors who looked the other way as programmers like Steve Russell crept into the lab at night to work on “frivolous” projects like Spacewar!. The innovation that was to launch the videogame industry was not protected by copyrights or patents, nor were any of the people involved motivated by dreams of acquiring great wealth as a result of their work. The rapid development of videogames was possible because game makers enjoyed the four basic rights to software described by Richard Stallman's definition of free software:

1. The freedom to run the program, for any purpose.
2. The freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this.
3. The freedom to redistribute copies so you can help your neighbor.
4. The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. Access to the source code is a precondition for this.


Spacewar! was, of course, not the only videogame to find its roots in an open-source community. The original adventure game, appropriately named Adventure, was created by William Crowther. Crowther saw no financial potential in his game, either, and sat idly by as the source code traveled about the still-limited 1970’s software community. A copy ended up in the hands of Don Woods, who felt compelled to contact Crowther and gain permission before maknig some substantial improvements to the game. Even later, a fellow named Jim Gillogly converted the code to the C programming language, making it available on the emerging personal computer. Again we see a critical breakthrough in videogames that originated in a freely giving, freely sharing environment, and none of the individuals responsible were inspired by greed or felt any need to protect their "intellectual property." They were people whose major interest was in building fun videogames and ensuring that their friends got the chance to play them.

The ubiquitous first-person shooters that dominate the videogame market today also find their origin in free software. Id’s Wolfenstein 3-D, released in 1992, and the later and more popular Doom, released a year later, began life as shareware3. Id relied on free, networked distribution to get its product to the masses—and it worked. Id’s strategy was not to stifle competition, but to exceed it, often with marketing tactics that would have never passed the first phalanx of managers at other software corporations. For instance, Id actively encouraged users to design their own levels and modifications to their games. This encouragement led to the forming of a huge “Doom community” that actively supported and maintained enthusiasm for far longer than anyone could have reasonably expected. Id published the source code for Doom in 1997 with certain restrictions; it was then re-released in 1999 under a general public license and has led to the near endless stream of derivative first-person shooters dominating the software charts today. Just imagine how differently the videogame market would look today if Id had been willing and able to prevent all other companies from releasing first person shooters.

Perhaps the most famous and ubiquitous videogame of all time, Tetris, was not even produced in a capitalist country. Alexey Pajitnov was a Russian living under Soviet communism, and thus could hardly be said to have created his game out of desire for profit. Like all game-makers before him, Pajitnov did not "come up with" his game from nowhere; he was inspired by a simple board game--this one called pentominoes. Ironically, the companies who shadily acquired the “rights” to the game from the Soviets, Mirrorsoft and Spectrum Holobyte, ended up battling the matter out in court. Sadly, Pajitnov emigrated to the United States and acquired the rights to his game in 1996, which he promptly decided to enforce. Now, a company named the Tetris Company, Llc. is dedicated to hunting down and stifling the “unlicensed innovations” of would-be Tetris clone makers, commercial or otherwise. One wonders if Tetris Company, Llc. has offered to make royalties to the makers of his pentominoes game.

Other examples of popular public domain, freeware, or shareware titles that were “borrowed” or “repackaged” for commercial distribution are the famous artillery style games—Worms and Scorched Earth are probably the two most popular examples. Worms, of course, is commercial, but Scorched Earth was released as shareware. The first of these artillery style games for personal computers was apparently (1983) Artillery Duel, written by one Jerry Brinson for the Commodore Vic-20, but the game existed on mainframes long before, and the names of the original programmers remain a mystery (probably a good thing for the makers of Worms). Computer role-playing games can be traced back to the many Rogue clones available on UNIX, which were freely distributed to the ultimate benefit of modern CRPG fans. Finally, though the first one-on-one fighting game, Nutting Associates' Warrior was released commercially, the fighting game that "started it all," Capcom's Street Fighter, was based squarely on two earlier fighting games--Data East's Karate Champ and Konami's Yie Ar Kung Fu.

The history of arcade games reveals thousands of borrowings and derivations of older titles. The first arcade game, Nolan Bushnell and Ted Dabny’s (1971) Computer Space, could hardly be called anything but a rip-off of Spacewar!. Computer Space failed to generate substantial revenue, but Atari’s (1972) Pong hit the jackpot. Scads of Pong clones hit the market soon after, but rather than spend precious time and resources suing his rivals, Nolan Bushnell tried another strategy: Keeping a step ahead. Knowing that the money-hungry clone makers (he called them his "jackals") would have difficulty keeping ahead of the innovative team at Atari, Bushnell consistently strove to make Atari stand out with radical new videogames, and discouraged his programmers from claiming authorship of their games4. We can only wonder what would have happened if Bushnell had worried more about suing pirates and bootleggers than driving his team on to new projects; perhaps we would never have played Asteroids, Battlezone, or Tempest.

Of course, Bushnell’s “one step ahead” strategy was not the only way to deal with clones; lawyers are always a phone call and a small fortune away. In 1998, Data East decided to take Epyx to court for allegedly ripping off their game World Karate Championship. The court ruled in favor of Epyx, declaring that any young boy could tell the difference between World Karate Championship and Epyx’s Karate Champ. Later, in one of the most ironic court cases in videogame history, Capcom tried suing Data East for “ripping off” Street Fighter II, but again the courts ruled in the clone-makers favor. Unfortunately (or, perhaps, fortunately), the courts are no longer displaying favoritism towards clone makers, especially when the case involves patent rather than copyright infringement. A case in point is the infamous Amazon.com vs. BarnesandNobles.com, in which the court upheld Amazon’s patent on “one-click ordering.” Many critics of the case cite it as a patently offensive example of why the patent office is long overdue for an overhaul. A flood of patents in the videogame market represents the greatest threat to innovation and creativity yet leveled at independent game developers.

Readers knowledgeable about the early history of Atari will have undoubtedly wondered when (or if) I would acknowledge that Bushnell may have “stolen” Pong, and, indeed, the home videogame console, from an engineer named Ralph Baer. Baer was completely alien to the concept of freely sharing information and ideas with others; his work was motivated purely by a desire for wealth, and he is well-known today mostly for his acquisition of many patents. Baer claims to have “come up with the concept of doing games” on a TV set in 19665. He did not develop the console himself, but allocated the task to other engineers working at Sanders, a defense contractor. The resulting product, the Magnavox Odyssey, did not sell well, perhaps due to poor advertising and legendary mis-marketing. Nevertheless, Baer, a meticulous if unsuccessful businessman, secured a number of broad patents that he would later use to extort a licensing fee from Bushnell’s more popular Atari system. It seems that Baer did not pursue the same fee from the thousands of other Pong manufacturers; perhaps he feared his patent would not stand up in court and may be overturned (Magnavox settled out-of-court with Bushnell). Undoubtedly, the history of videogames would have taken a steep turn if Baer had successfully shutdown Atari and eliminated all competition for the Odyssey.

At this point I should perhaps distinguish between some features of copyright and patent6. Whereas modern copyright is granted to an author at the moment of expression, a patent is only granted after a long and expensive formal registration process. Perhaps the biggest obstacle to securing a patent is the lengthy review process clerks must undergo to ensure that no one has already received a patent for an invention—most cost between $5,000 and $30,000. Applying for and receiving a patent, therefore, is far out of the reach of most ordinary citizens, and have become little more than an effective way for big businesses to monopolize the manufacturer of certain products and, alarmingly, secure the privileged use of various business processes, like Amazon’s one-click ordering. Patents, unlike copyrights, are limited to 20 years. Usually, ridiculously broad patents are overturned, but fighting such suits requires vast sums of money—which most small or startup companies lack. Obviously, there is some question as to whether or not patent law truly promotes progress.

Copyrights originally required a similar registration process to patents. After 1976, copyright was stretched to cover any act of expression, published or otherwise, without any need for registration or even marking materials with the famous ©. Furthermore, throughout the history of copyright law the length of its protection has gradually increased. Lawrence Lessig describes these developments quite succinctly:

In the first hundred years of the Republic, the term of copyright was changed once. In 1831, the term was increased from a maximum of 28 years to a maximum of 42 by increasing the initial term of copy-right from 14 years to 28 years. In the next fifty years of the Republic, the term increased once again. In 1909, Congress extended the renewal term of 14 years to 28 years, setting a maximum term of 56 years.
Then, beginning in 1962, Congress started a practice that has de-fined copyright law since. Eleven times in the last forty years, Congress has extended the terms of existing copyrights; twice in those forty years, Congress extended the term of future copyrights. Initially, the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by nineteen years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the term of existing and future copyrights by
twenty years.


Some people, including me, will agree with Lessig that these developments are hardly anything to feel proud of as American citizens. The problem becomes obvious when we consider what copyrights and patents really protect: monopolies. The original idea was that granting authors a limited monopoly over the publication of their work would encourage progress in the sciences and the arts; it’s simple capitalism in action. If we assume that people are by nature too greedy to reveal helpful ideas without being paid to do so, we can appreciate the “protection” offered by a sensible copyright law. However, Congress ruined this simple plan by repeatedly extending the length and scope of that monopoly. Now, copyrights are virtually infinite (we can expect them to be consistently extended now) and even wider in scope; whereas the original and most early copyright laws did not cover “derivatives” of a work, modern copyright laws do. The consequence? DJ Dangermouse gets sued by EMI for daring to create a “remix” of “the vocals from Jay-Z's The Black Album and the Beatles' White Album.” Here we have a clear case of how copyright law protects the wrong people; only a fool would contend that D.J. Dangermouse’s Gray Album conflicts with the sales of either commercial album, or that consumers might mistake it for one of them. Creative artists who attempt to merge copyrighted works into new forms are the target of one infringement suit after the next, even if their work is strictly non-profit.

At first the connection between a mixed album and software may not be clear. However, when we consider that the next round of clone court cases will probably go the other way, we do have something very real to worry about. Small-time videogame makers simply cannot afford litigation whether they are in the right or wrong. Lessig makes this point by telling the unfortunate story of Jesse Jordan, who did a terrible thing (in the eyes of the RIAA) by improving the search engine at the Rensselaer Polytechnic Institute. Accusing Jesse of creating another Napster-like music-thieving device, the RIAA served him papers. At first Jesse and his family wanted to fight, but Jesse’s uncle, a lawyer, discouraged him:

The cost of fighting a lawsuit like this, Jesse was told, would be at least $250,000. If he won, he would not recover that money. If he won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt. So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement.


Keep in mind that Jesse was not accused of being a “pirate” himself; RIAA was accusing him of enabling piracy by creating a search engine, which users could use to easily find “illegal” music files. What chance does the small-time programmer (like the early Paul Norman, David Crane, Al Acorn, or even Bill Gates) have against the collective forces of corporate America, armed as they are with lopsided copyright power? To make a long story short, we have a situation where powerful monopolies effectively dominate the public with unfair and repressive legislation.

I have already described how so many of our most beloved videogames can trace their genealogy back to freely distributed, open-source type projects. These efforts were later cloned and distributed by either commercial entities or shareware or public domain authors. If we would like to browse the shelves of any videogame store today, we will not find a single title that can be reasonably described as an original; they are all derivates of earlier games and build willy-nilly on the foundations laid for them by “classic games,” the great bulk of which are less than thirty years old. Ironically, most videogame or computer projects that were not heavily protected by intellectual property laws have flourished, whereas many tightly-controlled proprietary projects have failed miserably. Would Microsoft’s Windows have become the standard operating system of the world if it had been impossible or even difficult to illegally copy and distribute it?

If we will allow ourselves to fantasize for a moment, we might wonder at where videogames would be today if the original copyright term of 14 years had not been changed by Congress. In this case, all games made before 1990 would have now entered into the public domain. Furthermore, the source code to these games would no longer be subject to copyright either. Clearly, Thomas Jefferson or Benjamin Franklin did not consider this to be a “fantasy” when they wrote the original intellectual property clauses in the U.S. Constitution. They were fully aware, like we are, that a large and vibrant public domain full of relevant works would be a major asset to innovation. There is a balance here between rewarding artists for their hard work and promoting progress by building a public domain from which all citizens were free to build. The current monolithic copyright system can only be described as information feudalism7.

We shouldn’t toss around terms like information feudalism lightly. This is a strong term, and ought to make the bile rise in the throat of any historically-conscious lover of liberty. Feudalism can be defined quite simply as “a legal and administrative order founded upon the exchange of reciprocal undertakings of protection and loyalty among the administrative, military and ecclesiastical elite.” Chiefly, feudalism involved property. A lord was granted, by virtue of his blood or standing with the king, control over a measure of property and the serfs who lived upon it. The serfs worked for the lord, turning over a share of their crops in return for his protection. The lord’s duty was to protect the serfs, of course, but also the king, who would enlist the lord’s aid in fighting off attackers from other kingdoms. Perhaps the most significant aspect of this system was the severe class distinction between lords and serfs: There was no social mobility possible. People found themselves born into a rigid caste system over which they had no control.

This system was rightly challenged, of course, in various revolutions including the famous American one. The Americans of 1777 had a profound dislike for feudal kings, especially when it came to matters of the pocketbook. Why should good American folk pay some distant king a share of their crops for nothing in return? Of course, good loyalists to the king were quick to point out that the king deserved what was owed him; after all, the American colonies were his property, and the colonists ought to be happy to pay up. It didn’t matter that the king did not allow the colonists any representation in government, or periodically hiked taxes or executed the occasional dissident. It also didn’t matter that good King George was prone to random bouts of madness. Americans ought to abide by the law, even if they had nothing to do with making that law.

Naturally, we should not feel obligated here to retell the history of the American Revolution, describe the original U.S. Constitution, or examine the Bill of Rights. We would inevitably paint a rosier picture than these events warranted, as almost every decision made in these times seems to have resulted more from a misunderstanding of the needs of big business than anything else. It is likely that if Thomas Payne were revived from the dead and witnessed what had happened to America, he would rush to the nearest gun shop and arm himself and anyone else who’d ride along with him to Washington, D.C. Thankfully, we don’t need Payne’s permission to say, “Give me liberty, or give me death!” (a phrase that would be subject to copyright had it been printed today.)

This is not to suggest that we start shooting the lawyers, senators, and representatives who got us into this mess. Resorting to violence of this sort does seem necessary in a fight against the lords of feudal Europe, but other weapons are needed in this modern fight against the intellectual lords of multinational corporations.

3. Pirates or Information Liberators?

We began this article by describing a rather silly device dreamed up Gene Roddenberry; namely, the replicator. I want to return now to that discussion, but discuss “replication” in terms that are far less fictional than the RIAA, MPAA, or any giant software corporation would like to imagine: Software copying.

It is difficult to copy a carrot short of growing one, and even that’s not a copy but a completely different carrot. Most of us don’t try to grow a carrot when we’re making a salad; we go to the store and pick up a bag of them. We rightly consider it wrong to take that bag without paying the clerk. Somebody put a lot of work into growing that carrot, and, assuming the price isn’t excessive, and assuming we don’t find carrots unfit for human consumption, we don’t mind purchasing carrots. However, let us assume that upon our next visit to the grocery store, we were informed that a new system had been devised for selling carrots. It went something like this:

These aren’t just carrots. These are a special hybrid carrot created by Beta Carotene Cartels, Inc. You are not allowed to share this carrot with anyone—it is ONLY for your own personal consumption. You are not allowed to modify this carrot in anyway, including boiling, baking, peeling, washing, or adding it to other vegetables (i.e., vegetable medleys). You may only eat it raw. You are expressly forbidden to try to plant this carrot and grow another carrot. You are not allowed to reverse engineer this carrot or make any chemical analyses of its structure. Finally, if you eat only part of the carrot and return later to eat the rest, you must pay the full price of the carrot again. Failure to comply with this user agreement will result in fines of up to $1,000,000.


Bugs Bunny would ask, “What’s up, Doc?” About fifteen minutes later, Elmer Fudd would be tounge-tied and close to suicide, all because of the clever antics of that wascally wabbit. Needless to say, Bugs would break every one of these rules and have a damnably good time doing it, too. In the end, Fudd would end up a poor, sobbing wreck, a victim of his own stupidity and mean-heartedness.

Thirty years after the Copyright Extension Act of 1976, and six years after the Digital Millennium Copyright Act of 1998, we still aren’t posing that simple question to the Fudds of this nation. Instead, we sit by as the RIAA takes kids to court and ruins the lives of creative artists in this country and beyond. We try to rationalize Congress’ ready granting of eternal monopolies not only to artists, but to corporate copyright owners of works created by authors long dead. We comply with all of the ridiculous stipulations attached to our carrots because we feel powerless to do anything about them, and we all fear being made an example of by the powers that be. We keep our heads down and try to stay out of the way as big business and corrupt politicians make a mockery of the Constitution.

There is no question why the RIAA and other conglomerations of copyright holders targeted Napster. Peer-to-peer file sharing marks a new stage in the evolution of digital distribution. Never before has the mass distribution of films, songs, texts, and software been so easy or so efficient—and it all took place not only without, but against the desires of multinational corporations and “copyright holders” the world over. Never before in history has it been so easy to reproduce and distribute works of art, never before has the average man or woman—indeed, child—had such access to the important works of culture and society, whether that be ancient Greek texts or the latest videogame. As far as digital media is concerned, we now have the Replicator.

How have the forces of industry and the government responded to this miracle of modern technology? The government has become a disgusting parody of that hallowed body that drafted a few half-forgotten documents in 1776; rather than promote literacy, the government fights it—first by slashing budgets to American schools and second by allowing our court system to be flooded with feudal legislation brought by the assembled might of multinational corporations against individual Americans—even youths. Instead of glorifying in the enormous potential of the Internet to disseminate information and enable progress on a global scale, our government has sided almost exclusively with those forces whose only desire is to mercilessly squeeze profit from the blood, sweat, and tears of the folk of all nations. The government talks of the importance of maintaining egregious, even embarrassing copyright laws. At the same time when a new videogame is likely to cost $50, a new CD $15 (which is often more than the DVD of which the CD is a soundtrack) the president of the RIAA earns more than $1 million a year, and the average recording artist makes $45,900. Let us not even pretend that the talent behind our favorite videogames receive the rewards of their labor; reports in the Occupational Outlook Handbook report roughly the same earning potential for computer programmers while “Many CEOs make more in a year than their employees will make in a lifetime”—even if the business fails they may still earn multi-million dollar payouts (the "golden parachute"). Considering that the only time we hear of CEOs is in reference to their monstrous salaries or decisions, we can reasonably infer that they exist purely as a means of stifling innovation and oppressing anyone with the misfortune to be under their power. We might best refer to them as mobile lords of the digital millennium.

Clearly, the history of videogame development bears out the thesis that innovation decreases with the increase in corporate control. We might reasonably infer from this that the profitability of modern software is its primary obstacle to truly radical new developments, for the simple reason that profitable ventures attract the attention of the most uncreative people imaginable; the feudal lords who lord it over us from their perch atop the shoulders of giants.

The Pac-Man copyright Game.
Copyright-Man.

There have always been those “wascally wabbits” who have made life difficult, or at least somewhat irksome, for the lords of commercial software: Namely, those pesky spreaders of “warez,” the software pirates. I do not intend here to venerate pirates or champion software piracy, even though at times the atrocities the multinational corporations commit against struggling artists is enough to make me particularly sympathetic. My wish is not that we would all become pirates, but that we could fight to change the laws and make some forms of “piracy” perfectly legal—as they ought to be. Rather, what I do wish to point out is that the pirate’s audacity in circumventing “copy protection” in a few specific conditions is often highly advantageous even to “legal owners”: One, by enabling rightful owners to make more efficient use of the product either by copying--for purposes of backup copies or installation on a hard drive, or by modifying the software for useful or creative ends (i.e., the addition of a “trainer,” level editor, bypassing annoying manual-searches and so on). In short, if a software company tries in some mechanical way to limit the uses to which their product can be put by rightful owners, then we should find no fault with pirates with the talent and motivation to circumvent such artificial and arbitrary limitations. Incidentally, it is this very type of “piracy” or “hacking” that is specifically targeted by the Digital Millennium Copyright Act, which is the reason why it’s so hard to find a DVD copy program capable of making backup copies of personal DVD collections. Simply put, it is entirely ethical and reasonable for the purchaser of a digital product, whether that be a CD, DVD, or software program, to decide how best to use that work, including making personal copies or even sharing it as one would share a book (not a photocopy of the book, but the actual book).

The second, and to my mind more controversial, utility of piracy is the circumvention and distribution of any software that is more than 14 years old—the terms set by the original copyright clause of the U.S. Constitution. I hold that 14 years is enough time for a creative software artist to profit financially from his or her work. This makes sense enough with printed books; almost any novel will be long out of print after 14 years, but it makes even more sense with software—most 14 year old pieces of software (99%, perhaps?) will not even run on modern computers (without emulation software, hardware, or both), and a “revamped” or “updated” version of the game is rightly considered an entirely new work—the original version ought still fall into the public domain after 14 years have expired. Those who love “abandonware” titles can either abandon their desire to play an out-of-print game or risk the legal perils of “emulation.” This last tactic is risky at best, since at any moment the owner of a copyright may surface from the deep and bring everyone responsible for this “infringement” to court, where, as we mentioned earlier, the individual has no option but to lose.

Legal emulation is difficult because (a) the owner of the copyright must be tracked down, (b) this owner must grant explicit permission for this use, and (c) emulation in general is a legal “gray area” that may itself constitute a copyright infringement even if the copyright owner grants permission (since the “emulation” software might represent a violation of the DMCA by bypassing the copy protections built into the software). Tracking down the owner of a copyright is not an easy task; since no one has to register copyrights with the government, the only way to get at these owners is a horribly expensive and tedious cat-and-mouse game. Pragmatically speaking, only rich corporations have the money, knowledge, and time necessary to track down these owners and negotiate a copyright settlement—and, naturally, that’s what we have seen happen. A given piece of “abandonware” becomes a hot item on the emulation circuit, and groups like Cloanto go to work to purchase or license the copyright. Copyright secured, these companies go to work scouring the net for the “illegal ROMS” and resort to chilling effect tactics to shut them down. Soon enough, only these third-parties, who had nothing whatsoever to do with the making of the software whose copyright they “own,” are the only companies from which it can be purchased. Much like feudal lords squatting on a piece of property granted them by birth, these information lords then demand their “fifth.” Piracy may be the best weapon to keep these practices from becoming too profitable and thus more prevalent.

My next point is not so much about piracy as the benefits of promoting derivatives of published works. As we discussed earlier regarding the derivation of all modern software titles from works that have come before, and the questionable nature of litigations against “cloning,” we ought to loudly oppose and find ways to resist practices that stifle this form of creativity. Contemporary software programmers ought to feel as free to borrow from old and new software as freely as those who came before them. The term “clone” here is misleading, because I cannot advocate the silly practice of literally copying a work and then taking credit for it. What I do fear is that software innovations will soon be challenged by the giant multinational corporations on the basis of an alleged patent or copyright infringement. Amazon’s one-click ordering is one thing, but what if the major software makers began patenting concepts critical to a genre of videogames? Let us assume, for instance, that someone owned the patent to “first person shooters,” and required all subsequent first-person shooter titles to either purchase an expensive license or, more likely, simply forbid all such derivations (to maintain a stranglehold monopoly). What about the maker of a racing simulation who threatened other game-makers because their products mimicked the “look and feel” of theirs and thus infringed on a patent? Clearly, we ought to fight software patents as much as we can; I can think of no advantages to this scheme and only looming disadvantages to everyone involved (including the owner of the patent, who ought to be worried about making further innovations rather than forbidding those of others).

What I hope to have accomplished here is a challenge to naive notions of copyright and intellectual property, especially regarding videogames. My contention here is that the copyright law is not fulfilling its obligation to “promote the progress of science and useful arts” but is functioning in the opposite manner by stifling competition, encouraging monopolies, and alienating independent and small-game developers with a “chilling effect.” As many economists point out, good capitalism requires good competition, and “copyrights and patents are superfluous and wasteful,” reducing competition along with quality and efficiency. The return to the 14-year term of the founder’s copyright is important enough for the formation of a public domain in all arts and sciences, but nowhere is this need greater than in software, where it simply isn’t feasible for game developers to wait 75+ years for a work to make its way into the public domain. We need these works in the public domain not only for the fun of playing them, but, more importantly, so that generations of future programmers can learn from, and build on, the triumphs of their predecessors without fear.

I would strongly recommend that you visit the following Websites for more information on this topic:

The Creative Commons. Creative Commons is an organization committed to offering creative authors (software, music, etc.) a less restrictive form of intellectual property protection. For instance, a CC license may allow users to copy software as long as they provide attribution to the original author.

The Electronic Freedom Foundation. A heavy-weight champion of intellectual freedom, the EFF has fought long and hard against the draconian forces of multinational corporations to control information. Please visit their site and consider offering a donation.

GNU Operating System - Free Software Foundation. This is Richard Stallman's site and contains a great deal of information about the cultural benefits of software freedom.

Notes

1 A fun literary example of this is Ray Bradbury’s “The Flying Machine,” which describes an ancient Chinese emperor’s fear that an inventor’s flying machine will render the newly-finished Great Wall obsolete. Unfortunately, due to copyright restrictions, this wonderful story from 1953 is not freely available.

2IBM is now actively fighting Microsoft by dumping billions of dollars into the development of Linux, an open-source operating system.

3It is important to distinguish shareware from freeware or open-source software. Shareware is freely distributable with the expectation that users will either donate money to the programmers or buy an “official” or full version of the software. Many shareware products are classified as “trialware,” which means that they will either stop working after awhile or have many “crippled” features to encourage purchasing the full versions. Freeware is totally free to distribute, and the users are not expected to contribute money. Furthermore, there are no disabled features. Another term for freeware is “Public Domain software.” Finally, open-source software is software whose “source code” is made available to anyone distributing it. Open-Source software is not necessarily freeware, however.

4Electronic Arts got its start by recruiting "star talent" and offering their programmers much better publicity, in effect treating them like "Rock Stars."

5Source: Kent, Stephen L. The Ultimate History of Videogames. New York: Prima, 2001.

6An excellent text that clearly establishes the necessity of abolishing the patent system altogether is David R. Koepsell’s The Ontology of Cyberspace.

7There is a popular book called Information Feudalism written by Peter Drahos.

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