Tuesday, November 17, 2009

Games Workshop, Copyright, IP and Bullshit (PT.2)

[Disclaimer]: Again, I am no lawyer, so don't consider any of this legal advice. All copyright laws discussion is based on the US laws.

Before I get started, I just had a Eureka moment. The three sites being handed C&D letters all have one more thing in common - the products they primarily deal with are all licensed by to other companies by GW in some fashion. A direct port of blood bowl to the PC came out not too long ago (published by Focus Home Entertainment) and the Rogue Trader RPG is licensed to Fantasy Flight games. Is this a reason? I dunno. Food for thought.

How I feel
In part one of this discussion I touched on a copyright owner's rights and talked about GW's rights specifically. I may have come off as this insensitive jerk or maybe even a staunch supporter of GW's actions. In actuality, I'm far from either of those things. I simply understand why GW pursues its copyrights. I don't, however, have to like it.

GW has a pretty long history of being dicks about their IP - and usually only when it gets them some gain and usually under a bullshit cover about IP theft. Internet orders policy anyone? The Dark Reign and TalkBloodBowl* examples are just the latest in a long series of GW's consistent 'fuck you' approach to existence in my view.

I could go on and expound upon my feelings at great length. However, my opinions (and yours) only matter as far as we're willing to defend them. Which means, as Raptor Pointed out, that our particular views of fair use and copyright are valid right up until the point we aren't prepared to defend them. Which brings us to...

The Cease and Desist Letter
The ol' C&D letter is a common first step for people who are trying to stop some form of copyright infringement. Remember how I said that the C&D letter IS the polite way to tell someone to stop infringing? It is. However, its also a bunch of other stuff - primarily its a very cheap compromise.

Taking someone to court for copyright infringement is, potentially, an expensive (legal/court fees mount up) and long process that may not actually net any gain in the long run. Hell, even getting people to pay up can require another suit. Then there's always the issue of people's opinion of you - very important for larger, say... corporate entities. In the GW case, it'd probably be bad for publicity when people find out that you're suing your fan base over what amounts to some server fees.

The C&D letter is often an attempt to side step alla that. No lengthy court case, less bad publicity and a much shorter time frame for resolution (assuming all goes well). The letter senders get what they want and nobody has to go to court.

However, the C&D letter can also be used as (and often is) a bluff or a weapon. For all the compromise that a C&D letter represents for the parties involved, it is often abused by people who just simply don't like what you're doing with your fair use rights. It may be that the sender may have no intention of suing you and is trying to scare you. It may also be that someone disagrees with you and is just being a bully to protect their bullshit.

In any case a C&D letter or even a lawsuit is where your opinions of fair use and copyright come into question. Whether you simply convinced you're right or you're actually right, it doesn't matter until someone calls you on it. Which is nice - until someone does something about it, you can carry on your merry way. Once you get a C&D letter or some lawsuit paperwork, you have to make a serious choice about how far you're willing to stand by your position. Ultimately, if you go all the way, you'll end up with a judge making this decision for you. However, this is a long and expensive road.

The Problem With Copyright in the US
Before I get into my gripes with the state of things, I think I need to talk about why copyright is, in actuality, pretty great. Downright necessary, truth be told. Simply put, it protects EVERYONE'S right as a creator, thus encouraging people to create. As an extremely beneficial side effect, this means people can make money off of their ideas. And, if you're the government, people making money is good for a lot of reasons. So you protect a creator's rights.

Copyright is also not the inviolable domain of the super rich and powerful entities that exist in our world. Copyright applies to the little guy as well. You see all these words on this page? These are mine. People can't use them without my permission. If someone does steal my work, then I also have the right to do something about it

But having the right to do something and being capable of doing something are two different things. And that's the problem with copyright (and IP in general**) in the US. It's not really the laws themselves (although they can be awful), but the way these laws are enforced - specifically the US civil justice system. The old cliche of 'pay to play' legal system is pretty true here. Copyright law is civil law - which means the people involved are responsible for protecting their own rights. You have to pay your own way since very little is provided for you save a judge and jury.

On the surface this is fine, but getting your own lawyer for an extended period of time is outside many people's ability to absorb financially. This is where people with more money than you come out ahead - they can afford to pay the copyright lawyer and you can't. Further, even if you can, the big corporation with the lawyers on retainer can drag the case out and make you spend a whole hell of a lot of money to press on. Then there's the small matter of what happens if you lose. Can you afford the damages? Pretty risky (financially speaking) if your opponent can afford better lawyers and more time than you.

Even if you're the one being infringed or complying with fair use, not being able to afford to prove that really puts a damper on your opinion. And I'm not even talking about the extreme circumstances of the copyright lawsuit as a weapon - right or wrong, a corporate entity with money is more than capable of running regular broke people into the ground in court.

Hence, your opinion matters only as far as you are willing to pursue it.

Tort Reform
In my mind, the biggest challenge to making copyright work as intended is not the copyright laws themselves, but tort reform. You can change the laws all you want - but as long as the current civil justice system is where the rubber hits the road, you aren't doing anything except making lawyers find new loopholes and stripping protections from the little guys

The US Pirate Party wants to bust copyright terms back to 14 years, for example. They raise some good points and concerns, overall, but nowhere do they mention tort reform. Without tort reform, the only thing that a 14 year copyright term is gonna do is destroy businesses and fuck the little guy out of chances to actually have enough time to make money of his idea. On top of all this, 14 year limits aren't gonna stop people from filing lawsuits and generally being a dick.

I've written all of this because we live in a world were intellectual property is everywhere and is an incredibly important concept that touches virtually every thing we do. Yet few people have much more than the tiniest sliver of a clue about the realities of intellectual property. Oh, but they're prepared to write reams and reams of text laying out their opinoin, though. There's a lot chest thumping and nerd rage poured into anonymous forum posts with little real knowledge of whats going on. Most of it carries with it this weird sense of entitlement that's usually borne out of ignorance.

To be honest, I can't stand ignorance. Thus, I have attempted to educate.

Bottom line: GW may be shit heads for the zest and verve with which the pursue their IP rights and corporate dick headery, but its their right and you also have to considered the possibility that the people on the receiving end of this may also be shit heads. Its good to know and its good to know why.

Further Reading
Below are some resources I've used in my professional life to gather info on the various kinds of intellectual property and related laws.

Standford Copyright and Fair Use Center - This is my personal favorite. Its maintained by qualified people and covers a ton of plain language info on copyright. The section on fair use is particularly amazing. There are also some relevant court cases mentioned.

The Chilling Effects Clearinghouse - This is another site maintained by qualified people with an aim to elp you with your 1st amendment rights. As bonuses, this site has a slant towards online topics of copyright as well as a pretty neat cease and desist letter database.

United States Copyright Office - Home page of the US copyright office. Duh. Has a ton of info about various protections, how-tos, some useful basic info as well as links to an online version of the relevant US laws.

Games Workshop Legal - This is burried in tiny text on the bottom of their site. However, it does explicitly tell you what you can and can't do with GW IP. Good to know.

There's more stuff out there, but these three are the ones I'm willing to vouch for as I've spent the most time on them. The Copyright Website seems pretty interesting, but I've spent next to no time perusig it.

[Foot Notes]----------------------------------
*I've excluded FUMBBL as I feel that attempting to publish a full version of Blood Bowl AND expediting to be allowed to do it is as close to 'retarded' as you can get without needing to wear a helmet.

**It's important to note that while patent, trademark and copyright all get lumped under the term 'intellectual property', there is no single unified IP law. Patent, trademark and copyright are all dealt with by separate parts of the law with their own rules.


  1. It's stuff like this that makes me think a business law class should be required in school. Bottom line is that you can defend yourself legally, but only to the best of your knowledge.

    Past that, you're also correct to point out that the legal system IS run by money, to an extent. The only way to get a free lawyer is to commit a crime, go to court, and not have the money to get one yourself. This will not actually help you defend your copyright law priveleges, so yeah.

    If memory serves (and it's been a few years since Business Law class...) Tort refers to how much money you can make off a case, yes? Or am I totally making that one up off the top of my head?

  2. Limiting how much money that can be awarded for damages is a big part of it, but its also reducing the the amount of litigation in the first place.