Yeah, so this happened.
Not only is this yet another example of how hopelessly out of touch with reality Nintendo is, it provides a perfect opportunity to discuss the vagaries of copyright law as it relates to video games. Since copyright law is a really, really big topic, this is going to be broken up into several posts. This first one will primarily be a primer on just what a copyright is and the underlying policies behind the current structure of copyright law. This will probably be followed by posts on just what the hell is happening with Nintendo and Let's Play. After that, there might be a final post debating whether or not copyright law is really capable of handing these kinds of disputes.
A word of warning before we start; I'm an estate planning wonk, not an intellectual property wonk. My exposure to IP law was limited to first year property and an additional smattering in Internet Law and Media Law classes. Therefore, most of this is going to be pretty general as I am by no means an expert on copyright law. That said, I have been through three years of law school, which means I'm more of an expert than you. So there. To quote Craig Ferguson, "I look forward to your angry tweets."
Before really getting into a discussion of copyright, we need to discuss the different concepts that fall under the umbrella of "intellectual property;" patents, trademarks, and copyrights. It is important to get a good understanding of how these differ because they each do different things. They are also frequently confused. To wit:
Trademarks are particular symbols or phrases that identify a product with a particular seller. The quintessential example are the McDonald's "Golden Arches." The purpose of protecting trademarks is to stop people from confusing consumers by using the same or similar trademark, which would either allow them to "mooch" off the success of the original trademark holder, or damage the mark holder's business by selling inferior products under the same banner.
Patents are temporary monopolies on unique inventions or ideas. When a person creates a new invention, they may apply for a patent. Provided that it meets the requirements, such a demonstrating novelty or innovation, a patent is issued that gives the holder the right to exclude others from "making, using, offering for sale, or selling the invention in the United States or 'importing' the invention into the United States." This right lasts for a limited time, typically 20 years, after which the patent expires and the invention may be produced by others (i.e. "generics").
Copyrights protect the creative expression of an idea. A copyright gives the holder the exclusive right to do things like produce, copy, perform, display, or adapt their work. The holder of a copyright may choose whether to publicly disclose their work, offer it for sale and determine how many or how few copies of their work will be produced.
Patents and copyrights are the two forms of intellectual property protection that are most often confused, so here are a few of their differences to help you keep them straight:
- The term for a patent is much shorter than that of a copyright. A patent usually lasts for 20 years, with no opportunity for renewal. The period of a copyright is a little trickier to figure out, as it depends on when the initial copyright was filed. For recent works (1978 or later), the term is 95 years. Copyrights used to have to be renewed, but this requirement has more or less been done away with under more recent copyright law.
- A patent protects the , while a copyright protects the . One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.
- A patent protects not only against literal copies of the item patented, but also from derivations of the item that are not truly unique. For example, if you were to patent a single engine jet-powered flying car, then that patent would protect you not only against people making an exact copy of your idea, but also against people making a flying car using twin-jet engines, because the twin-engine car is not a truly unique idea, it is just a derivation of what you already created. Copyright, on the other hand, protects only the literal form of expression. If you were to write best selling novel, you could copyright it and be protected from people creating other books that use the text of your novel. However, this would not protect you if someone later wants to make a painting of a scene from your book because that is a , even if it is based on your copyrighted novel.
- Patent rights are , meaning that the holder can keep people from producing the same product, but don't necessarily have the right to produce the product themselves. For example, you could patent a new type of medicine and prevent others from producing it, but you wouldn't be able to produce the medicine yourself until you complied with any required governmental regulations. By comparison, copyright provides affirmative rights. If you hold a copyright, you have power over the form, timing, adaptation, etc. of your work and are free to produce as many or as few copies of your work as you please.
If you're still having trouble, try to "follow the money." Where is the value in the item? If the value is in the actual underlying concept, you are probably dealing with a patent. If the value is in the particular form of expression, then you are probably dealing with a copyright. For example, a SmartPhone is an example of a patented object, because the value lies in the concept surrounding the actual physical device. By comparison, a book is an example of copyrighted material. The value lies in the actual text on the pages, not on the physical structure of the book.
Understand all that? Good. From here on out, the discussion is going to be almost entirely devoted to copyrights.
Copyright law is in a sense plagiarism protection for the real world. Whereas in school you would be expelled for stealing someone else's idea, in the real world you get hit with a copyright suit. The rationale underlying both concepts is also the same - we want to see people get credit for their work. Whereas in the academic world this is so that the authors can get credit and recognition for their research, outside of academia the recognition is primarily so that people can earn money from their ideas. The money angle is important because like it or not, money it is one of the primary drivers of innovation, and innovation is exactly what copyright law is attempting to encourage. Any innovation typically requires an initial outlay in money, time, effort, planning or some combination of these. If people can't be certain of making their investment back because of others stealing their work, they are less likely to start up a project in the first place, which slows down the pace of innovation. Hence copyrights to protect the work and investment contained in a completed idea.
Take for example the highly successful game Super Meat Boy. If you are like me, you found it a ton of fun. It was also a massive amount of work for the creators, Edmund McMillen and Tommy Refenes. If you have ever seen Indie Game: The Movie, then you know those guys spent almost two years producing the game and nearly went bankrupt in the process. Clearly they had a massive investment, both financial and emotional, in the success of the game. Thankfully, the game was a smash hit, and the money earned from the game not only saved McMillen and Refenes from destitution, but also made them fairly wealthy (I seem to recall Refenes was able to buy his parents a house). Since Super Meat Boy was an original work, they were able to use copyright law to protect their creation, which ensures that all of the financial benefit of their effort actually goes to them and not to someone else looking to make a quick buck by copying their idea.
Now assume a world where copyright law doesn't exist. I come along and notice the initial success of Super Meat Boy and see that it is going to make a TON of money. Since I like money, I decide that I want to tap that market too. However, I have no appreciable programing skills to speak of. Now, I could go and learn some programming so I could make my own game, but I'm also lazy and learning programming would be a lot of work and probably cost money. I'm also not very creative, so coming up with something as original as Super Meat Boy might be tough. I'd rather just steal an existing idea. Therefore, I learn just enough programming to figure out how to unlock the game code, pallet swap some stuff and put everything back together (yes, I am aware this probably isn't how it works. I'm a lawyer, not a computer geek. I don't even do my legal research online - I use print books). I release the game without changing anything else, except for the title, which I switch to "Super Meet Boy." Since there is no copyright, I'm able to do this without getting sued, and I siphon off some of the people who would otherwise have bought Super Meat Boy but buy my version instead. Since I was only making changes to an already completed product, my financial and time outlay was much smaller than that of the original designers, so I likely come out ahead; if not in absolute terms then in the sense of return on investment.
Understanding copyright's role in driving innovation is important because it will factor into later discussions (assuming I get around to them) about just whether copyright law as currently structured is really capable of handing the problems of intellectual property in the digital age. I definitely get the sense from looking around online that people feel Nintendo is abusing the system a bit. That's entirely possible, and it might very well mean that changes are necessary to make the system fair again (if you believe it isn't now). However, understanding the reasons for copyright law will help make suggestions for change a bit more constructive.
So that's my really vague primer on copyright. Next up, an explanation of just what is going on between Nintendo, Let's Play, and the uncomfortable middle-man YouTube.
P.S. Does anyone know if it is possible to save a draft of a blog on these forums? This stuff takes a considerable amount of time to write, and I typically don't do it one sitting. I've been writing on blogspot just so that I can copy and paste it over here when I'm done. Cutting out the middle-man would be nice.
P.P.S. If you have any questions about the material, post them below and I'll try to answer them. Mileage may vary - graduation is this weekend and family will be here so I'll be pretty swamped.