Plagiarism and Originality

In the world of intellectual property, patents are based on being “novel,” while copyrights are predicated on bring “original.” Suppose I write (on this blog) a philosophy that summarizes the works of some great thinker. Further suppose I have never read that thinker’s works or been introduced (explicitly or directly, with my knowledge) to the thoughts and ideas of the thinker. Because my ideas are not new, my work cannot be called “novel.” However, because I developed it independently, it can be considered “original.” (There is some debate over whether, or to what extent, anyone can be said to develop any ideas “independently”; unsurprisingly, this debate is ignored by the law.) In the academic world, this concern translates as: Have I plagiarized?

If such a scenario as this seems far-fetched, I assure you it is not. Last month I was directed to a law review article concerning the philosophy of intellectual property. Nearly 3 years ago, I wrote my own essay on the subject, and I reached quite similar conclusions to those of the author. I was surprised, but also a little worried: if someone read both articles, they might reasonably suspect the more recent paper was influenced by the earlier paper without properly citing it (my paper was more recent by almost 2 decades). Yet I had never heard of the article or the author until years after writing the essay. In times now past, it would have been persuasive to respond that the author has a duty to research a subject before publishing. As the corpus of literature grows, it is less reasonable to expect an author to read even the majority of works on a topic prior to writing. As the number of authors skyrockets and the barriers to various sorts of publication modes (like blogs) decreases, it seems increasingly likely that ideas will overlap without the kind of prior knowledge that makes thorough research and citation possible. If this is true, do we need to re-think plagiarism? Or do we just need to be clearer as to whether academic plagiarism is a matter of novelty or originality?

What does this mean for IP in entertainment? I frequently consider and reconsider whether it’s better or worse that the plots, themes, interfaces, and other elements of videogames, movies, music, and books are not protectable by copyright. One argument in favor of such protection might be that it would encourage more creativity and diversity in entertainment if writers and producers had to come up with novel stories each time they produced a work (are we sick of “Generic-Brown-Grey-Shooter-Iron-Sight-Inspection” yet?). Of course, there is a practical problem with trying to determine the point at which one story sufficiently overlaps with another to claim it infringes.

I still think Torchlight 2 meets all of the street-level requirements to be called a rip-off of Diablo 3. The main differences are that Torchlight 2 works, is fun, and I still play it months after its release. Diablo 3 was full of problems, frustrating at every turn (in ways games shouldn’t be, with Error messages and dysfunctional game design), and I stopped after about 2-3 weeks. Perhaps the ultimate upside to the fact that a lot of would-be “IP” can’t be protected is that if your studio can do a better job with a basic idea or design, you can go for it. Therefore, the best protection for your unprotectable IP is to do such a great job with it that no one can improve on your game. It’s the opposite of preventing plagiarism in the academic world: To keep someone from copying your essay in a class, make it so bad that no one would want to sign their name on your work; to keep someone from copying your videogame (or movie, or song) idea, make it so amazingly good that no one wants to be compared to your work.

UPDATE: Critical Miss just published a comic related. If this is the generic video game IP (and it’s pretty accurate), and only one studio owned it, what would the other studios produce? (Anything at all?):

“Oh, Reputation, Reputation!” or “Caveat Emptor”? Gearbox, Blizzard, and GenY’s Revival of Old-Timey Quality.

The latest kerfuffle in the gaming world is over game studio Gearbox’s recent release of “Aliens: Colonial Marines.” The claim (apparently upheld by journalists for Escapist, Kokatu, and IGN) is that the game is terrible. The debate that goes further is whether Gearbox was deceptive in its advertising, demos, and promotions of the game in an effort to get people to pay for the game before it hit shelves (and customers found out that the game was perhaps not as amazing as expected).

Blizzard took a decade to release Starcraft2, and fans were ultimately accepting because of its fine quality. Duke Nukem Forever took forever to be released, and society was both disgusted and apathetic. When Blizzard released Diablo3 after a decade of waiting, fans were outraged because the quality of the experience (from Error 37 to RMAH delays to gameplay curve) just wasn’t up to expectations.

Brands are important to many industries, but I think that IP-based industries feel a special dependence on their reputation. Because the expression is protected by the copyright (and the idea is not), consumers go to their favored bran because they expect a quality of the expression. You can get a very similar game or story from almost any major studio, but people come to trust (or distrust) studios for their quality of interface, graphics, and overall gameplay experience. When a studio fails to meet expectations, there are always plenty of other places to turn to for an FPS or RPG or RTS.

When large, successful studios release poor quality products and then fail to apologize sufficiently, it can create the impression that the studio no longer cares about its fans as much as it cares about its money. Somehow, corporations sometimes think they have to weigh the interests of their “investors” against those of their customers, forgetting that customers are the ultimate investor in any business venture.

The videogame industry might have the lowest tolerance for deceptive advertising or failure to meet basic expectations. The consumer base is often prone to research and has a very communicative community. The nature of an IP based-business demands a lot out of the expression of the idea. Todd Howard likes to note that “execution” of an idea is more important than the idea itself; having a great idea doesn’t matter as much if you don’t pull it off as well as a less awesome idea done really well. Because no game studio can copyright the idea of a first-person shooter or stealth-based game, the ability of a studio to execute its ideas might be the single core criterion by which a videogame can be judged and compared to its rivals.

I don’t think “Aliens” would be in such hot water if the advertising had been less ambitious. I don’t think any of the games I mentioned would have faced such negative receptions if the expectations had not so far outstripped the reality, and if the industry wasn’t able to offer so many alternatives (Torchlight2 is shockingly similar to Diablo3… except for all of the errors and problems).



Two “Oughts” Of Law and Who “Ought” To Decide Them

There are two types of “ought” in US Law. The first type is in reference stare decisis and precedent: if a previous decision handled a situation in manner X, then a similar situation should also be handled in manner X because of that previous decision. For areas of law without a clear and certain statute, this is the essence of how legal issues are decided. (It is called “Common Law.”)

The second type of “ought” is the normative, moral ought we often when discussing law: the government ought to adopt policy X, because it is good for the economy; the court ought to decide the case in manner X because it is the right way to treat people’s property rights. It is based in our sense of right and wrong, good or bad, and not in what has previously been decided or enacted (unless, by coincidence, we base our sense of good and bad on legal continuity and reliability).

Political debates can be confusing when each party is using different meanings of the word “ought” (or similar word, like “should” or “must” or “needs to”). It is often disturbing, yet none the less true, that the legally required answer to a problem may differ or even conflict with what we consider the morally required answer.

Some have felt that it should be the obligation of the courts to alter the law so that the legally required answer aligns with the moral sensibilities of the community. This poses a problem in the face of US governmental structure because judges (all Federal and many state ones, at least) are not elected and as such lack the kind of connection to the voting democratic population that we associate with legislatures and executives (governors and presidents). The issue is this: In a democratic republic, should the unelected branch of government have veto power over the elected branch of government? This issue was brought to public attention last year in the 9th Circuit (mostly, California) when a ballot initiative passed popular vote but was struck down by a federal judge.

Some focus too much on the substance of the law in question, but that approach can’t provide categorical answers. If we think it is ok for the judiciary to strike down laws passed by the people, we must seriously question whether we are really true to the notion of democracy. If we think that the only check on the voice of the people should be the voice of the people, we might be concerned that if 51% of the people vote to kill/imprison/beat up the other 49% of the people just because they feel like it, there can be no kind of recourse or justice for that 49%.

This becomes the problem that is described in academic literature as the countermajoritarian difficulty vs. the tyranny of the majority. Should we allow the majority to be countered, or should we risk the majority abusing their power of the ballot? The Constitution establishes a framework for government, but it does not establish a meta-framework for itself.

C.P. Snow and the Digital Divide.

C.P. Snow lamented a gulf between science and literary intellectuals. That gulf still exists (perhaps it is a little different now than in the mid-20th century), and the explosion of technological development highlights it. Video games (and other entertainment media) offer a chance to bring together the left and right sides of society’s brain.

It may be that the law feels the distance between art and science that Snow considered in the context of academia. Patents may be associated with the protection of the scientific world (though they protect technology, not science) while copyright protects artistic expression. Does a distance between science and art keep a distance between two halves of IP (Trade secrets and Patents vs. Copyrights and Trademarks)? I think it does, but I’m not convinced this is altogether terrible: there are good arguments for treating patents and copyrights differently.

Law is sometimes seen as being an institution of order, measurement, and judgment. However, law is also the tool by which we gauge and weigh other institutions in society— and it is not reasonable that the instrument of measurement can measure itself. Law is often an effort to balance art and science, logic and experience, is and ought, the many and the individual—yet, if it is fair, it cannot wholly be any of these things. Perhaps an effort to bridge Snow’s Gulf could benefit law as it could bring a more holistic context to choices about either art or science. Understanding the technology and science underpinning patents as well as understanding the cultural implications of artistic expressions help each respective discipline grow. More importantly, this cross-information becomes essential as these disciplines overlap. Legal practitioners are better able to make proper legal decisions if they understand both what YouTube is (how the technology works) and what the economic and cultural implications of posting videos with copyrighted materials on YouTube are.

Law and Science

A debate arose in class concerning whether an electricity company was responsible for delivering a service or a product (“electricity”) to its customers (because products and services are sometimes regulated differently). I liked the question for several reasons. As my science-degree-holding brother noted, there is a scientific fact of the matter as to what electricity is: alternating current is the oscillation of electrons. You are not getting new electrons pouring into your house, but having energy put through electrons in the wiring. General, the expenditure of energy is considered a service. However, we can quantify electricity (in Kwh, for example) in a way that allows us to talk about it in the way we talk about solid, tangible goods.

The takeaway isn’t about whether electricity is a good or a service, but this issue can be reasonably debated. It is also important that the science of the matter does not determine the law, and Oliver W. Holmes explains why in his adage, “The life of the law has not been logic; it has been experience.” Law is an odd, swirling mix of logic, language, and science on one hand with anthropology, sociology, ethics, and emotion on the other.

My core interest is how the law can meet the emerging technological issues of the 21st century. It is clear that, as in the debate I described, the science of digital technologies alone is not enough to dictate the law that governs it.

If culture evolves and science expands, the law cannot remain stagnant.

For a different view on the relationship between science and the law, I recommend this presentation:

The Law and Art

Art can be at odds with law at times. The law is the essence of order and structure, in the tradition of Apollo. Art, especially in the last 50 or 75 years, has something rebellious, chaotic, and even destructive or reconstructive about it—it smacks more of the orgiastic tradition of Dionysus. Yet the law sees a need to protect art. In the US it does so through both constitutional free speech provisions as well as through copyright protection.

What makes art powerful? Art takes the small pieces of our lives that we don’t notice or don’t want to think about and magnifies them for us. It helps us (or compels us) to see what we don’t [want to] notice. Art is necessarily always a little closer to the edge, because its function is to explore those fringes and bring back to us the parts of ourselves and our realities that we omit. It is easy to be afraid or critical of art in society because if it is done properly, it brings us face-to-face with some truth—and that can be an uncomfortable experience. From the protest songs of the 1960s to the Gothic Architecture of the high Middle Ages, art has felt a need to express the feeling of a generation distinct from its predecessors; art is forever dabbling in change, shift, exploration, progression (even if through regression), or rebellion or some sort.

How can something rebellious and chaotic be protected by order and law? Why should it be? Perhaps it is because the law sometimes understand its own need for growth and transformation—a need to endure through flexibility rather than to break as a thing brittle and rigid. Perhaps art both crafts and chronicles the human condition and our human experience. Inasmuch as “the life of law… has been experience,” it is entirely fitting that art and law be friends.

Two Developments in First Person Shooters

My favorite development in First Person Shooters is the inclusion of story alongside exciting game play. As a child, I would ask my older brother what was going on in Doom. He conceded he didn’t really know, but he knew that it took place on Phobos,  a moon of Mars. Beyond that, details were fuzzy: demons from hell broke loose and the player had to stop them– or something. It didn’t make the game play any less fun, but I’m not sure I would get the same degree of enjoyment out of the game now as I did then. However, there’s one game I might enjoy more now than when I first played it as a teen: Outlaws (LucasArts, 1997).

There are some games that just click with us in some way. I always found Outlaws to be an early example of what the video game can be: a storytelling medium in which we guide the main character. Outlaws had all of the fun, mayhem, strategy, and twitch play of a FPS, but it had a clear story with meaningful characters. I won’t argue it as the most incredible literary work in western civilization, but it was a tremendous leap forward from the usual lack of story in other games. Some games do better storytelling than others: I think Unreal could have done a much better job of fleshing out the ancient Nali civilization, and most of the current “realistic shooters” feel like a bad remake of the dying James Bond franchise—with Spec Ops: The Line as an exception, as it has the advantage of being based on the classic literary work Heart of Darkness, by Joseph Conrad.

I don’t think every good video game needs a story- Pong is forever the quintessential example. Also, good stories apparently don’t rest on tremendous artwork or game play (I have yet to play Thomas Was Alone, but I’ve heard good things). But sometimes good game play and good story telling can come together in one of those synergistic ways that makes the whole greater than the sum of its parts.

My second favorite development in first person shooters is slow-motion, guided sniper bullets, because I hate it when bad guys hide behind things.