Preserving Games

Tag: ip

  • Guarding Intellectual Property

    Roberts, Paul F., “Havok Finds Haven for Game Codes,” eWeek 22, no. 40 (2005): C1-C11.

    In my previous post about incremental innovation, I noted that intellectual property becomes particularly important within a stagnant industry.  Rather than continue to develop new technologies for each game, studios often rely on one or two of the most consistently successful technologies developed by other companies.  Thus, the studio that develops these coveted technologies have the most to gain from a rational industry uninterested in radical innovation.

    In Paul F. Roberts’ 2005 article, he presents an example of just how important such technological IP can be.  Irish company Havok, developer of the Havok Physics Engine, has sold its tech to several successful game franchises, chief among them the Madden NFL franchise from EA Sports.  At the time this article was written, Havok’s engine was receiving a great deal of praise, but it was also under attack by hackers looking to leak the engine’s code to the Internet.  In fact, hackers did succeed in leaking the source code for Half-Life 2, which included portions of Havok’s code.  Because of this breach in security, Havok was forced to take measures to protect its code from future theft, using a variety of digital theft prevention services, which occasionally made accessing Havok’s services more difficult for those entitled to it.

    Clearly, Havok and others in the industry recognize the importance of protecting coveted IP, perhaps the most valuable resource in a stagnant industry.  Despite complaints from those who said the security made using Havok’s engine more difficult, the studio maintained that such protection was absolutely necessary for the continued success of their company.  Havok certainly recognizes the power that it derives from this engine.  With so many game studios depending upon Havok’s technology to provide the physics processing so that the developers can focus on making incremental innovations in other areas, Havok can essentially set the terms of use for its product, no matter how difficult or annoying they may be, without worrying about industry backlash.  This may be one of few incentives for other companies to develop their own major innovations: the potential to reign over a particular segment of the industry.

  • Incremental Innovation

    Tschang, F. Ted, “Balancing the Tensions Between Rationalization and Creativity in the Video Games Industry,” Organization Science 18, no. 6 (2007): 989-1005.

    In this 2007 article, F. Ted Tschang argues that increased financial success within an industry often results in an increased hesitancy toward creativity, using the U.S. video game industry as an example.  As he notes, “product innovation usually gives way to efficiency considerations…[and] the market locks into a specific, dominant design that is based on certain firms’ superior technology, productivity, fit with the market, and capabilities.”  In other words, as the industry begins to notice growing potential for financial gain, a more rational focus on productivity overtakes the initial creative tendencies that provided for these gains. 

    Thus, a tension arises between the financial desires of the companies within the industry and the creative desires of the individuals working in those companies.  In order to appease these creative needs and also differentiate their products, each video game development studio allows for what Tschang calls “incremental innovation, which involves minor changes to the products’ components.”  As in the film industry, these incremental innovations are frequently made within a particular genre.  For example, games like Doom, Quake, and Duke Nukem 3-D were part of a radical innovation in computer gaming that resulted in the formation of a gaming genre called “first-person shooters.”  In the years following this initial innovation, various studios have developed incremental innovations of this genre with games like Goldeneye, Half-Life, and Halo, which introduce new weapon ideas, creature types, and landscapes but are ultimately unwilling to stray too far from the basic gameplay forms and visual styles that made previous entries in the genre so successful.

    Clearly, such a development strategy does not permit radically creative thinking.  Each development studio recognizes a certain number of genres as being consistently successful and requires its creative branches to work within those genres, cutting off the potential for wholly unique ideas from the very beginning.  Then, while creating games that fall within one of these genres, game designers are only allowed, at best, to develop one or two major gameplay innovations, just enough to assure consumers that they are buying a new experience but not revolutionary enough to scare those consumers away.   

    As Tschang notes, these tendencies make important the creation and acquisition of intellectual property.  In particular, two kinds of intellectual property are highly sought after in an industry reliant upon incremental innovation: (1) a coveted game engine or other piece of often-used technology and (2) a license for the use of a pre-sold property (popular film, tv, or book franchises, for example).  Because incremental innovation does not allow for the creation of a new graphics engine for each new game, each genre has essentially settled upon a proven piece of technology for use in most games.  Returning to the first-person shooter genre, Epic Games’ Unreal Engine, after wowing developers and consumers in the original Unreal games for which it was made, other studios began to use the engine in their own games.  Thus, while the development of game engines remains stagnant within each genre, Epic, through its ownership of a frequently used engine, enjoys continued financial gain.  A license for the rights to a pre-sold franchise also has proven to be one of the easiest ways to differentiate a particular products from others in its genre without requiring major innovation.  A studio can make essentially the same game it has made before, but this time with characters from Harry Potter or Spider-man, and market it as an entirely new product.

    Ultimately, this industry tendency toward incremental innovation means that the products independent game studios, working outside of the profit-driven rationalization of the major studios, are absolutely crucial if the industry is to continue making major creative innovations.  With the major studios having hit upon “what works” and choosing to focus entirely on those genres and gameplay elements, it is left to the independent studios to drive industry creativity forward.  As Tschang notes, individuals who feel their creativity is being stifled within the major studios frequently branch off to form their own, independent studios, where fresh gameplay ideas can perhaps result in the creation of an entirely new video game genre, which will then be picked up and expanded through incremental innovation by the major studios.

  • Mark Methenitis’s “Copymark”

    Mark Methenitis is a practicing lawyer in Dallas and he rights a blog called Law of the Game in which he talks about various legal issues as they relate to videogames and the gaming industry in general.  Not surprisingly, he writes extensively about the complex nature of copyright law as applied to videogames and other software.  Recently, Methenitis has started a series titled “Intellectual Property 2.0” in which he discusses instances in which “the law has lagged behind the practicality of intellectual property management,” and he suggests possible solutions to these issues.

    In the “Intellectual Property 2.0” series on May 14th of this year, Methenitis posted an entry titled “Convergence of Copyright and Trademark.”  Essentially, as the title suggests, Methenitis proposes that we fuse together the rights of copyright and trademark into a “copymark.”   The age old problem that Methenitis is trying to address is that the date for release of copyrighted material into the public domain stands at 1923 and will probably continue to do so while Disney has the requisite funds to lobby Congress to keep Mickey Mouse from going into the public domain.  Underlying this problem is that although Mickey Mouse is a trademark of the Disney Corporation, the trademark will expire in the event that Steamboat Willie (the first appearance of Mickey Mouse) is no longer protected under copyright.  So extending copyright is all well and good for Disney and for other corporations who would like their money-making brands to stay out of the public domain, however 86 years of history are in danger of being lost forever because no one has access to certain copyrighted materials.

    There has been a lot of talk about how the copyright system is broken and about how we need to revise our system of protecting peoples’ rights over their works while at the same time ensuring public access.  The idea of copymark is so simple that I’m surprised I’ve never heard of this idea before.  Essentially, under a copymark provision, a company would forego their traditional rights to trademark and copyright over a given expression.   Under copymark, however, they would retain the same rights they would normally have to trademark and copyright, but they would have to renew the copymark periodically.  If they failed to renew, then the work would automatically be released into the public domain regardless of the 70 years after the life of the author provision as it currently stands under copyright law.

    This would create a situation, of course, in which Disney could continually renew the copymark over Mickey Mouse indefinitely, however the alternative is that Disney and other corporations continually lobby Congress so that nothing that was created after 1923 ever goes into the public domain.  Methenitis also points out that something which is copymarked would still have fair use provisions.  So copies of copymarked material would still be available in libraries and archives.

    For the most part, I think that this is a fascinating idea.  One major potential flaw that I see in a “copymark revolution” is – to whom do we allow the right to copymark materials?  If we allow it to everyone, then everyone could potentially copymark everything they create and then nothing would ever be public.  The solution, then, is to charge a fee which would be steep enough so that only those who are making significant amounts of money off of their copymarked material would have the incentive to renew their copymark.  This would potentially create a kind of heirarchy in which only industries could maintain a copymark, however if traditional trademark and copyright laws were to remain intact, I’m not sure that this would be a problem for individuals.  Disney could also, of course, balk at the requirement to pay to copymark their intellectual property, but they’re essentially doing the same right now by paying (who knows how much?) to lobby Congress.

    At the very least, I think Methenitis has proposed an interesting idea, and it is ideas like these which need to start circulating if we are ever going to have public access to the history of the generations which are alive today.

  • Interviewing Within the Industry

    For a while now I’ve been concerned about my ability to conduct interviews within the industry. I have been told by someone who would know that very few studios are going to allow me to look at their development process because in many cases, that process is itself a trade secret. I’m early enough in the process to not know if this is true or not, but in an attempt to be prepared, I’ve come up with a few workarounds for this issue:

    1. Collect oral history interviews with pioneers regarding their early experiences building video games, the processes and tools they employed, their needs then and now, and their attitudes regarding preservation of their creations. I figure that many of these people still hold IP on their first games (although I might be wrong on this); and even if they don’t still hold copyright, talking about their experiences during this formative period of development is beyond the reach of industry lawyers. Who would some of these pioneers be? And does anyone have contact information for them? I’m envisioning this as something like the Stanford and the Silicon Valley project at Stanford. I know that there are lots of interviews with pioneers out there, but I’d like to conduct some oral histories as well.
    2. Interview out-of-work designers and developers. I’ve been told that this group is large in Austin specifically. They may or may not be under gag orders, but again, talking in generalities about the development process seems like it should be fair game, particularly if I never mention the name of the interviewee, the companies they worked for, or the games they worked on.
    3. Interview open-source game developers. (both text-based and image-centric) They, by definition, are not beholden to “the man,” and should be able to freely talk about their development process,  their needs, attitudes, and tools. I’m also making the assumption that they work under the same conditions, with the same tools and and work processes as those within industry (but again, this assumption might be wrong – but anything I find will be interesting).
    4. Finally, talk to those players who have the ability to modify their games (this can be related to Second Life, or events like machinima). I don’t know if players have systematic methods or tools for modifying their games, or common attitudes towards creation and modification, but it certainly would be interesting to explore it more deeply. Additionally, interviewing players/modifiers  would be interesting from the “what is a creator when everyone can be a creator” point of view, as well as from a preservation perspective: “what is important to preserve: the original system or the ability to modify the original system in the same way that it was possible to modify it when it was originally available?”

    Any thoughts would be appreciated.