File-Sharing: Has it affected the RPG industry?

[woodelf]

Please see below.

Things start to look iffy to me any time identical results through different means produce different legal consequences. Not saying this situation is obviously flawed, or that all such situations are, just that i want to look closer at the rationales...

But the means matter. The means are all we have to go by when constructing laws. The courts cannot look into your heart or mind to legislate based on your motives, but on the action that you take. The rationale does not matter for the determination of whether or not a crime was committed. It might possibly matter in the sentencing phase, possibly, if you can convince the judge that you are being honest about the rationale for your theft.

I was unclear. I'm not suggesting legislation based on motives. I'm suggesting exactly the opposite: legislation based on results. As opposed to legislation based on how you got to that result. IOW, it seems to me to be better to say that it either is or is not legal to have a digital scan of a book you legally own, rather than to say that it is legal to scan a book you own, but not legal to acquire a scan of a book you own. The current situation is, to my mind, actually more like trying to legislate based on motive, rather than action, in that it makes two externally identical results legally different based on how you got there (method in the piracy case, mindset in, say, a hate crime case). Part of the problem was my choice of words: the "rationale" i'm referring to is the rationale for differentiating between the two situations, not the rationale for commiting the action/crime.

 

[woodelf]

The Public domain isn't being strangled. The Public domain is constantly increasing in size, daily. Once something falls into the public domain, it can NEVER be copyrighted again.

Copyright is not perpetual. While extensions are permitted, even the longest extension is still finite. Eventually, the guy who got successfully sued by Disney for trying to do an animated Mickey Mouse ripoff porno movie will be able to do so. Well, probably not THAT guy, but anyone who still wants to do that could.

Except that, for the last few decades, copyright duration has been steadily increasing at equal to or greater than the rate of time passage. If the current trend continues--and i see no reason to think it won't--nothing will ever pass into the public domain from age again. Only those things deliberately released into the public domain will be there.

The ability to make the first economic use of IP is the essense of copyright. Instantly dumping IP into the public domain does no one any good.

Has anybody advocated that in this thread? What has been advocated is terminating copyright after a "reasonable" time, with differing opinions on what that means. Shortest i've seen advocated was 10 years, which is hardly "instantly". And, in most cases, probably exceeds the significant profit period of the work.

As for its affect on creativity- like it though I do- the OGL has probably stifled creativity more than it has stimulated it. Sure, there are plenty of D20 based games out there, but they're all D20 games. It used to be that if you bought a new game, you got a new system with it. GURPS, HERO, Palladium and Storyteller are still holding their own, but I haven't seen but a couple of completely new game systems actually hit the shelves recently. Looking at my bookshelf, I can see more than 60 different RPGs. All of the ones pre-D20 are different from the ground up- character generation, combat, spell system, etc., even the ones that were trying to rip off D&D. Since D20...lets just say that there are a lot of D20 versions of already extant good games from many companies- Traveller, Deadlands, Call of Cthuhu, Legend of the 5 Rings, The Trinity System, Silver Age Sentinels... When was the last major diceless RPG system released? Quite simply, new non-D20 games are handicapped in the current RPG market. How is the critically acclaimed D6 WWII superhero game GODLIKE doing? Green Ronin's Spaceship Zero? In Nomine? You should be able to find most of them in discount bins.

With that homogenization, we have gained conceptual portability-learn 1 game, learn them all. However, lots of character has been lost. Example, Traveller didn't use a decimal numeric system-it used hexidecimal (those silly math-heads!). It was also the only game system I know of that had the chance of PC death during character generation. Traveller D20 loses all of that.

Agreed. On balance, D20 System has lessened, not increased creativity in RPG design. However, we are luckily in a period when other production factors (easy quality e-publishing, affordable POD, online sales, etc.) have caused a simultaneous upswing in envelope pushing among commercial RPGs--you just have to hang out somewhere like The Forge to find out about them. Also, i disagree with the contention that systems like Storyteller, GURPS, HERO, D20 System, and other "mainstream" systems are really all that different. Conceptually, they're not significantly more differentiated than two D20 System games (such as M&MM and Spycraft, frex). Outside of the occasional innovator, most RPGs have been basically the same, mechanically. D20 System is just reinforcing this behavior and making it more obvious.

Oh, and don't blame the WotC OGL, blame the D20SRD and/or the D20STL--the WotC OGL, for all it's flaws, is not to blame for the homogeneity of mechanics. It's just a [mostly-]open content license. It's the material that's been released under it, and the trademark license that accompanies it, that feed into the homogeneity. That, and the current vicious circle of consumer demand and producer marketing.

 

[woodelf]

The closest thing to a trust fund in the USA is the NEA, and you've seen how well THAT works over the past 10 years. The only good, supported art is that which passes conservative muster. Nothing challenging the status quo will ever come out of the NEA as long as there is a morality board overseeing the process.

Of course, the flaw there isn't paying artists to create (rather than paying them specifically for their works), it's using criteria other than artistic merit when deciding who to pay and how much.

I'll say this, though- auctions tend to lead to higher prices than competition.

Actually, my experience is that it's slightly more complex than that. If supply significantly exceeds demand, auctions seem to lead to lower prices than "regular" selling. If supply and demand are close, or demand exceeds supply, then auctions seem to lead to higher prices. Problem is, the stuff i've always bought used is stuff where demand apparently matches or exceeds supply: I buy a lot fewer RPG books nowadays because they go for a lot more on eBay than i used to pay for them online.

I know I don't tend to pay for things I have gotten for free, and I get free stuff (legally) all the time.

Well, i know better than to use myself as a representative data point for much of anything, much less economic behavior. But today on the way home from work i dropped $5 in the return slot of my favorite video store. They suffered some water damage (covered by insurance) in the recent storms, and i just wanted to help out, even though they probably don't need it. I also frequently pass on the opportunity to use store coupons at my favorite retailers, because i know that the savings for me simply come out of their income. For that matter, as a general trend, i'll probably give more money to the person who gives it to me for free than i would be willing to pay if the good or service was being charged for. Heck, i bought OtE 2nd ed precisely because there was essentially nothing new in it, and Atlas had deliberately written it so that those of us (like me) who already owned OtE 1st ed would feel no "need" to buy the new edition. So i bought a 2nd copy of the RPG, effectively, just to "reward" the company for what i see as good behavior towards the consumer, rather than out of any economic gain on my part.

Perhaps our hobby has more ethical types. But people are people, so why should it be that ...um...the ethics of downloading differ between IP fields?

The ethics sholudn't differ. But perhaps the situations do. And, moreover, perhaps the behavior does. It is not at all bizarre to me to think that the very same people might behave one way when it comes to downloading MP3s, and a different way WRT downloading RPG PDFs. Which, getting back to the topic, might mean that all that data on CD sales and MP3 sharing we're all bandying about (on both sides of the debate) might be mostly meaningless to predicting how downloading has affected, or might affect, RPGs.

 

[woodelf]

The reason you haven't seen it yet is that the technology is still being tested in real-world field conditions, a set of industry standards has yet to be adopted across the board (some international standards do exist, mainly for such specialized things as tracking animals), and the cost of the chips themselves needs to drop very much lower (for the supplier), as does the cost of the readers (for the retailer), for things to become truly ubiquitous. These are for the passive RFID systems that are the rage; the active ones have been used for the past several years in some larger inventory systems, generally with many different competing software platforms.

Wal-Mart has mandated that its 100 top suppliers incorporate the chips on cartons and pallets by January 2005, but at least some suppliers are talking about problems they're having with that compliance. Most center around the cost, reader confusion, interference from certain goods (usually ones that contain a lot of metal or water), and unreliability - some suppliers are reporting as high as a 20% failure rate when most agree that even a 1% failure rate will put them in a worse position than they are now with barcodes.

So, it'll probably still be some time coming.

Actually, a couple of high-end retailers (clothes, i believe) would have already rolled out RFID inventory tracking, but consumer complaints caused them to decide not to. And while Wal-Mart insists the delays are due to technical issues, according to at least one article i read on the matter (Scientific American?) there is reason to believe that concerns over consumer backlash are also part of the delay, just not something they want to admit to publicly. Now, whether those early adopters would've had successful systems is another matter--it's quite likely that, had they stuck to their original schedule, they would've run into exactly the technological problems you describe. Be that as it may, it was consumer pressure that prevented them from even finding out how real-world performance was.

 

[Dannyalcatraz]

First of all, you are comparing apples with oranges here. Are you saying that anybody who has downloaded music actually makes profit selling the stuff he downloads? That just doesn't happen!
Those that are actually directly making money with downloads are the minority, by far, as far as I can speculate (and, unless a new research ha come out, my speculation is as good as yours). You might say that _those_ are the immoral guys... but I won't say it: they are behaving badly, but they wouldn't have a market if the prices for CDs, books, whatever were lower, and/ or if their customers had some morality, too.

My counterexample was apparently unclear:

You're correct- there are actually very few people are making money from downloads. iTunes and the other pay-per-download are making money, largely off of the major acts. However, if someone steals your IP, almost any money he gets selling it is profit for him.

In my counterexample, I wasn't referring to recoupables in the normal record company contract sense.

I was assuming that you and your bandmates had a private label and spent $20k to make an album, and your band does not get Metallica-level airplay. Your music is stolen (either before pressing or after, it doesn't matter) and sold by the thief, not neccessarily in your core listening market. You have no way of recouping (recovering) the money you invested in the album short of finding the thief with your money.
===

Here's the problem: i haven't seen a major label produce *anything* i want in, say, 15yrs. How long do i continue to subsidize them (as opposed to subsidizing the artists directly), while they continue to, as far as i can tell, studiously pass over the artists i want to hear from, because they won't make enough money? So, while i may not steal from them, because they're not producing what i want to hear, i also am not sure i should judge it a loss if others steal from them.

This paragraph doesn't make sense to me.

If you haven't bought anything from a major label in 15 years, you're NOT subsidizing any artists on their labels at all.

If they haven't produced anything you want to hear, you have no "reason" to steal their product, so, as you say, you don't.

But because you don't value their product, you don't think its criminal if someone else steals it? It is obviously of value to someone- the creator, the thief, and the intended market.

This is a classic legal slippery slope problem- if a law is not enforced merely because you find that the victim of the crime is worthless, at some point, the law will become unenforceable.

Or, to put it another way, if you refuse to act while someone is robbed your neighbor, your neigbor will not act when you are being robbed. If you (and others) refuse to convict someone of CRIME X on the grounds that you don't like the victim, eventually, the state will not bring charges of comitting CRIME X even if the victim is a saint.

 

[Dannyalcatraz]

Re: Judges' Guild Modules

I can't speak to this one, not having all the facts on the case. Did Judge's Guild use the Str/Int/Wis/Dex/Con/Cha routine? Did they use THAC0s?

Yes they did use those stats, no, they didn't use THAC0s (this was before THAC0s).

Re: Returning from public domain

Beware! Many foreign works that were previously in the public domain ... were restored to copyright in 1996.

The claim was that nothing can ever be restored to copyright once it hits the public domain. I was refuting that point with a counterexample. It is a point of fact that some foreign works were at one time in the public domain in the United States and were later restored to copyright status. Thus the claim, "nothing in the public domain can ever go back to copyrighted" is necessarily false by counterexample.
Regardless of the justification used in restoring something's "copyrighted status," (even if it is on technicalities), the point is, there IS precedent for returning public domain works to copyrighted status. That was all I was trying to point out. *shrugs*

Something being placed in the public domain erroneously and then being restored to its correct status is not a technicality. The foreign works in question should never have been placed in the public domain in the first place. Restoring their protected status is no different than giving a kid his stolen bycycle back.

I refer you to Eldred v. Ashcroft, only one of the most high-profile copyright cases of the last decade. The case was a challenge of the validity of the retroactive extension of copyright...Thus, that very point HAS been challenged in court... and the challenge was lost. The ruling means that copyright is for all intents and purposes perpetual, so long as perpetuity is only claimed one finite chunk at a time (say, a 20 year extension every 20 years)

Eldred v Ashcroft sits on my desktop in pdf form. A reading of the 5 page summary of the 89 page case reveals much. It does NOT hold that copyright is for all intents and purposes infinite as long as claimed in small chunks. What it does hold is (in no particular order) 1) The law Eldred was challenging merely brought the US in line with other 1st world nations' copyright law AS REQUIRED BY TREATIES, 2) the extension was within the power of Congress to grant- rationale based on a bunch of cases, 3) the change was justified because of changes in technologies and other variables, 4) the extension granted by the Term Extension Act (CTEA) was no different than extensions granted by the 1831, 1909, and 1976 acts, 5) Eldred's First Ammendment argument was fundamentaly flawed,

Re-the breadth of copyright protection to all media forms.

The media companies had everything to do with it, as it was the lobbying of Walt Disney Co. that has directly led to the past two copyright extensions.

I'm sorry, but you're incorrect. The catchall clauses I mentioned go back before the megamedia companies were even formed. Even in the 1800's, some legislators were actually visionaries who foresaw that there might be media beyond the printed word. As the years passed, the protected media clauses became more specific, including by name the new technologies, but catchall clauses remained.

They are, however, the most obvious beneficiaries.

As for the Digital Millenium Copyright Act, the protection is there to prevent people from stealing the data on the media. An unintended consequence of this is that fair use of the material in that form is not possible.

There is a simple, if time consuming, way to gain fair use of locked media-ASK. So far, every time (but once) I have made such a request, I have been given the materials I requested.

 

[James Heard]

There is a simple, if time consuming, way to gain fair use of locked media-ASK. So far, every time (but once) I have made such a request, I have been given the materials I requested.

Of course you're a lawyer. In this world today I find myself often considering the notion that when dealing with lawyers in general that the best course of action is either full compliance with any request or absolute rejection. I know that any failure of mine to comply with even a simply request could backfire and cost me a huge chunk of cash defending myself in an area where I'd be defended mostly by my ability to afford to pay another member of the profession. Counterwise, by flat rejection I can only hope that sufficient will can't be mustered to force me by legal means. That's the essence of argument of the oppositional behavior of the RIAA lawyers in most of the infringement cases, when you're being charged with enormous and ridiculous statements of damages (legal or not it) amounts to extortion by forcing a settlement. I understand that's normal for the legal process, but just because the RIAA might somehow force a 10k settlement from 30% of it's customer base doesn't mean that it's ethical, right, or sane to do so. That the RIAA would no doubt cheer such as a victory and use the money to further lobby for more power to extort money from the other 70% is almost a given. It's an environment of greed and fear, there's no good faith in any of it. At this point paranoia would demand that I not give my real name to any organization affiliated with big copyright. Such a dealing is almost guaranteed to be unethically balanced in my disfavor. Even if I could make such a simple, time consuming, request of a copyright holder I wouldn't find any assurance that it wouldn't lead to invasive scrutiny on some sort of suspicion of wrongdoing. Perhaps that's a misrepresentation of how things are, but that's certainly the environmental miasma that surrounds big copyright. It's much simpler to find the tools to unlock such media on one's own, and to simply not deal with the sort of people who are most dangerous to my way of life.

 

[Lazybones]

Indeed, a system where you can be held liable for $150,000 per song placed in a directory shared via a p2p server is only going to breed contempt for the law, IMO. The penalties for copyright infringement have gotten so far beyond the pale that I think most people regard these laws for what they are, bought and paid for by the entertainment industry. Indeed, the fact that the RIAA is suing users of these services for millions of dollars, and then accepting quick settlements of a few thousand, while a perfectly valid and perhaps effective tactic, smacks to many consumers as extortion.

Thus far the legislative apparatus has been loyal to the corporate powers in this area, but I think that said powers need to be leery of stirring up enough of the lazy masses to drive a backlash. Legislators follow the money, unless there's enough public outrage on an issue to threaten actual votes on it. Witness the insanely fast action on the "Do Not Call" list last year...

 

[Dr. Harry]

In response to my post...
Are you saying that anybody who has downloaded music actually makes profit selling the stuff he downloads? That just doesn't happen!
Those that are actually directly making money with downloads are the minority, by far, as far as I can speculate

The ones who download material illegally are the ones who are stealing sale by sale; the ones who make the material availible for download are the ones who are commiting the greater theft. If someone makes 20k worth of copies of your band's CD and gives them away free on the street, the market for your work, and the financial damage done by the act are identical to what it would have been if the CDs had been sold.

You might say that _those_ are the immoral guys... but I won't say it: they are behaving badly, but they wouldn't have a market if the prices for CDs, books, whatever were lower, and/ or if their customers had some morality, too.
...
Anyway, you didn't answer my question: how can you tell that downloading is immoral and unexcusable, when you have the RIAA guys on the other end of the table?

What you are saying here - explicitely - is that an act is only immoral if it is the worst thing going on. Whatever you want to do is morally upright as long as *you* judge that the person that you are doing it to is worse than you are.

Even within what I consider to be a dratically flawed argument, you have a problem. You advocate downloading in thread about downloading, and its effect on the RPG industry, while also saying:

I admit that the RPG industry is way better than the music industry in this aspect. I prefer to think that the reason for this is that we RPG people are "better"

Thus implying that even within the worldview that you advocated above, this does not even fit your own criteria about when it is moral and defensible to steal!

But the companies could do more. I would improve the PDF size of the market, offering out of print stuff at a discount, and lowering the prices even on new PDFs, where possible. I do believe that lower prices generates more buyers and more money, in the long run.

All this exists (RPGnow.com, SVGames.com, even the direct to pdf stuff Malhavoc puts out; the growth of the market has been slowed and held back by the high level of piracy once any product appears in pdf form.

Let me take this opportunity to say that I, personally, am very happy for the existence of the pdf market as I have no problem with reading pdf's on my computer vs. books, and my wife is very grateful for the space saved by having the stuff electronically.

 

[woodelf]

But are they different in a meaningful way? What if the bookstore burns down that night, or if the thief is arrested much later, after the bookstore goes out of business with two copies of the book still on the shelf? Is the thief less cupable if no "loss" is incurred by the store?

That's what i'm asking. An argument that says they are not meaningfully different might persuade me. But if you simply state that there is no difference, it feels like you're jumping to conclusions, glossing over a hole in your argument so that it doesn't get exposed. I'm not saying you are doing that, just that it feels like you are. It's probably just a difference of POV: you seem to see it as an already-answered question, while i see it as a significant point of the debate [on the legality of filesharing].


(1) possessing illegally, and (2) denying someone of possession

Let's think of it as two acts, thing (1) and thing (2). The difference with electronic copies is that we have considered (1) and (2) as linked for so long that if thing (2) doesn't come into play, there are plenty of people (some of whom have posted elsewhere on this thread) who see the lack of (2) as permission to do (1) to their heart's content - as long as "they wouldn't have bought it, otherwise". After all, we can have a legal code with more than one crime one it, so we don't have to stop prosecuting for arson, et al.

Agreed. But i consider it a relevant point of debate as to how the situation differs when (2) doesn't come into play. How does that change the situation? You seem to be saying "not at all." But that doesn't make sense to me, because we clearly recognize in other areas of law that denying someone of their possessions is wrong. If (2), on its own, is wrong, and (1)+(2) is wrong, then it seems to me that (1)+(2), minus the (2), should be somewhat less wrong, because we're not doing (2), which is in and of itself a wrong. Especially since, generalizing over various acts that are usually agreed upon to be wrong, the relative magnitude of wrongness of (1)+(2) and (2) are comparable--one does not significantly overshadow the other. I'm not arguing for simple economic addition here. I don't think that if, say, stealing a $10k car and destroying a $10k car have the same penalty, that therefore the illegal possession part of the car-stealing crime must be valued at zero. Nor do i intend to extend that to claiming that pirating is therefore a zero-cost crime. But, at the opposite extreme, it doesn't make sense to me that it is "just as much of" a crime as stealing. That would imply that if you pirated someone's IP, and then later destroyed their version, you would've done nothing more wrong. After all, if the piracy is just as bad as theft, then you're already guilty of that magnitude of crime and you've done nothing worse by also depriving the creator/owner of their copy. Does that seem right to you? Or should you be charged with two thefts in that situation? IOW, is it worse to pirate a copy, then destroy the original at a later date, than it is to simply steal it all in one fell swoop?