Tag Archives: intellectual-property

Scrabulous and IP Wars

When I twittered Rory Cellan-Jones to ask why he didn’t mention Wordscraper in his blog post about Scrabulous, he replied “cos i couldn’t be bothered!” Years from now, when British journalism has finally breathed its last, this phrase will be engraved on its tombstone.

The thing is, the Wordscraper thing is about the most interesting thing about this whole sorry saga. Cellan-Jones misses the point. Badly. While Scrabulous did indeed cross the line by using the same look as Scrabble and using a name that was far too close to a trademarked property, the fact is you can’t copyright an idea and they have been free to set up an almost identical game.

Intellectual property law is at its murkiest when it comes to games. History is littered with people who sold their ideas to companies before their games made it big, least of all Scrabble-inventor Alfred Butts. How do you make money out of a boardgame when people can replay it countless times? Ironically, the answer that Mattell and Hasbro have come up with is to produce a whole range of merchandise. You can buy the official Scrabble dictionary of course, and a special turntable for your board. You can get the deluxe edition and if you want a really big game why not try Super Scrabble (unbalanced in my view)? In a hurry? Try Scramble. On the move? Try Travel Scrabble. They’ve even produced a pink edition to raise money for breast cancer research. Scrabulous hardly dented that market – if anything it helped it.

The point is, they’ve already realised that the real money to be made is not in the game itself but in creating a range of branded tat for the fans to buy. With that in mind, getting Scrabulous banned looks like a pretty bad business move. It probably won’t cost them much, but it has created a lot of ill will and has been built around getting people to sign up to their own, flash heavy and vastly inferior Facebook app. Meanwhile, the Agarwalla brothers appear to have got away with it. The big guys may have won, but it is a pretty empty victory.

Ultimately, this isn’t how big businesses are going to survive in the global internet marketplace. The Agarwalla’s may have overstepped the mark, but it isn’t hard to stay on the right side of the law. Frankly, if Mattel and Hasbro had any sense, they’d encourage developers to compete to produce the best internet version of the game, offering a license that would allow people to publish the game with their blessing, so long as it included a prominent link back to the official website (admittedly, contractually they may be prevented from doing this even if they wanted do but given how long it took their developers to produce a Facebook app and the poor job they made of it, it looks like we can safely add this to their list of cock ups). Think of the free advertising! Ironically, at a different end of the empire, Hasbro has been experimenting with something very similar. Their Wizards of the Coast publishing arm, which produces Dungeons and Dragons, positively encourages other publishers to use their system (albeit with restrictions, something which has admittedly caused some bad feeling). The result was to take a failing brand and catapult it right back to the top of the industry.

Not only are intellectual property laws becoming increasingly hard to enforce, in many ways they are becoming a serious hindrance to making money, which is what they exist to do in the first place. Properties such as boardgames that were devised in the middle of the 20th century (and superheroes for that matter) are a particularly interesting cultural battleground because to those of us who have grown up with them, they feel like public property. Ultimately, this becomes a question about who owns popular culture. The corporates won’t be allowed to win that battle, whether they want to or not.

The Alan Moore on a Train Meme

I’ve been watching Jonathan Ross’ In Search of Steve Ditko this evening and as I do sometimes it got me thinking. If Alan Moore sat down on a train opposite me, what would I say? Simply not talking to him wouldn’t be an option – this is a once-in-a-lifetime opportunity to receive wisdom directly from the Great Man after all. But by the same token, asking for his autograph or asking obvious, overtly fannish questions would be out of the question as well.

So my question to you dear reader, is what three questions would you ask Alan Moore if you met him on a train? My three would be:

1. What do you make of AARGH!? Was it a success? Do you think it helped challenge prejudice? For those who don’t know, AARGH! – or Artists Against Rampant Government Homophobia – was a protest book edited by Moore in 1988 to protest against Section 28. While it contains some strong content, it also includes two pieces which have always bothered me. The piece by Frank Miller is a clear case of the hardnut of comics having his cake and eating it by getting to “protest” against homophobia by producing several pages of what appears to be blatantly homophobic itself. This remember is the man you regards Socrates-murdering Athenians to be gay while the Spartans are the height of hetero-manliness. The piece by Brian Bolland, while less obviously exploitative, is by a man clearly uncomfortable with homosexuality.

It’s fascinating because here are a bunch of broadly liberal artists struggling with a topic like homosexuality in a way that my generation really takes for granted. Given that, and the fact that AARGH! fairly obviously failed to get the law stopped, I’d be fascinated by Alan Moore’s take on it 20 years later.

2. How would your ideal system of intellectual property rights work? In particular, what do you think of ideas like Creative Commons. Alan Moore has always struggled with publishers over creators’ rights and much of his best work has been work-for-hire, something which clearly grates with him. But ideas like Creative Commons conflict to some extent with the creators’ rights movement that had such an influence on the comics industry in the early 90s.

3. Did you ever really intend to continue Halo Jones beyond book 3? Halo Jones Book 4 is often hailed as one of the greatest comic books never written. It is rumoured even that Alan Moore originally intended there to be nine Halo Jones books. Yet I’ve always had my doubts over this. I always assumed that the “history” sections in books two and three were merely meta-narrative which served to give the character a certain mystique which Moore never really intended to fully explore. Book three ends perfectly to me and I’m not convinced I’d want the story to continue afterwards. And finally, with the possible exception of Big Numbers, Alan Moore does not appear to have ever let a project of his dangle if he still had a story to tell. His fallings out with comic companies tend to happen after the work is complete, not during (unlike, for example, Rick Veitch’s falling out with DC over his Jesus / Swamp Thing storyline).

Those are my three questions; what would yours be? To kick this off, I tag Alex Wilcock, Millennium Elephant, Nick Barlow, Justin McKeating, Mat Bowles and Jennie Rigg. If you want to do this meme and I haven’t tagged you, feel free to do so any spread the word!

More from the IP Wars front line

I wrote an article back in December about intellectual property becoming one of the big ideological political footballs in ther 21st century and it got a good reception. Time for an update of some recent trends methinks.

First of all, numerous posters have recently gone up around Islington claiming that, as you can read in Islington Now (PDF), DVD piracy “finances crimes including child trafficking, drug smuggling, gun crime – even terrorism.” If I were an Islington council tax payer I’d be demanding my money back.

Leaving the claims to one side for a moment, why is council and the police devoting so much resources into what is a civil matter? Couldn’t these resources be better allocated elsewhere? This is doing the film industry’s job for them, isn’t it?

Fundamentally though, is there really any evidence that dodgy DVDs fund trafficking? I get the impression that Islington officials have been watching too many 1960s espionage TV series. There is no global criminal organisation that exists to simply do evil things for their own sake. Is it really that complacent for me to suggest that if child trafficking, drug running and illegal arms dealing were such loss-making industries, people wouldn’t do them?

As for terrorism, anyone who has ever sat in a pub or cafe around Chapel Market will know who does the bulk of the illegal DVD selling in Islington: it is Chinese immigrants of presumably dubious legal status. I have to say I’m rather dubious about the claim that the money they make will be going to Al Qaeda or even Kim Il-sung. Is it really so hard to believe that illegal activities might be going to fund… criminals?

Onto other matters, and a return of the Performing Rights Society. The Federation of Small Businesses has been complaining that many of its members have started being harassed by the PRS – something which I reported on here late last year. I can certainly confirm that when the PRS rang my office it was of a distinctly threatening nature.

I can understand why any business which uses music as a marketing tool ought to pay the PRS, but why should TV license fee payers, listeners of commercial radio and individuals who have already paid for the music they want to listen pay twice? In that, I’d include car mechanics and people sitting in an office listening to their personal stereos. This isn’t about whether people should pay for the music they listen to, it’s about why they should be forced to pay twice.

And as for the PRS’ claim that 90% of their members are small traders themselves, that may be true, but you can bet your bottom dollar that those members don’t get 90% of the revenue the PRS raises. Perhaps if they did (but really, why should they?), they might expect a little more sympathy. But of course it is the big music stars who get the lion’s share so let’s not kid ourselves this is about sticking up for the little guy.

Finally, from PRS harrassment to harrassment by the US military. Clive Stafford-Smith wrote an interesting and at times amusing article in the Guardian on Thursday about how the US uses music as a torture weapon, and how the music industry doesn’t seem to care. It’s ironic, isn’t it? The music industry is busy trying to lock up everyone with an illegal download on their iPod yet are quite sanguine about using their intellectual property to hurt people (presumably the US army has a PRS license though, so that’s okay).

What is most interesting is the reaction of the musicians themselves. It should surprise no-one that Napster-slaying and all round dickheads Metallica seem to think it is wonderful (“If the Iraqis aren’t used to freedom, then I’m glad to be part of their exposure,” according to James Hetfield). David Gray at least laments it: “It’s shocking that there isn’t more of an outcry. I’d gladly sign up to a petition that says don’t use my music, but it seems to be missing the point a bit.”

He has a point in that the real issue is music being abused in this way, not whose music. But he can do more than sign a petition – it is surely within his rights to not allow it to be used in this way? If intellectual property rights are worth fighting for at all, surely they should be used in this way? If I owned a gun and left it lying around I would be criminally negligent. Surely it is equally negilgent (morally, if not criminally) of musicians to knowingly allow their music to be used in this way? If musicians aren’t prepared to stand up for their rights, why should we respect them?

Doctorin’ the Asylum

Interesting article here about the 1994 BBC serial Takin’ Over the Asylum starring David Tennant. Leaving aside the “before they were famous” anecdote and the interesting stuff about how mental health issues are portrayed in the media, what caught my attention was how the BBC is now cashing in on the fact that a bunch of fans put the serial up on YouTube. It is now available on Amazon, priced £12.98.

We’re always told how much piracy costs the entertainment industry. Given that in this case the reverse is clearly true, should “Catyuy” and “Midcirclenine” be expecting a cheque in the post?

Evening Standard piece on JK Rowling

This was published in the Evening Standard on Thursday, slightly edited:

The Harry Potter series is one of the most derivative works of fiction ever devised, from its boarding school setting (The Four Marys, Billy Bunter), magical theme (too many to mention) and even its plot (drawing from the same well as Star Wars and even The Matrix). He isn’t even the first fictional English boy wizard with spectacles and a pet owl, as fans of Neil Gaiman’s Books of Magic will testify.

None of this is to deride J.K. Rowling’s genius for taking hoary cliché and making something new out of it, but perhaps one would have thought it would have given her a more enlightened view regarding intellectual property law. The Harry Potter Lexicon is clearly a blatant cash in but one which will only promote her original books. If she wants to produce her own, more authoritative encyclopedia, no one is stopping her.

In any case, existing copyright laws mean that while the strikingly original and iconic Alice in Wonderland books became public property 50 years after Lewis Carroll’s death aged 65, Harry Potter will be owned by Rowling’s estate for 70 years after her death. The state of modern medicine and her millions mean that she is likely to survive well into her 90s. I don’t begrudge her money, but I do have an issue with her great grandchildren continuing to rake it in during the 2120s.

James Graham

Handbags! Not so extraordinary gentlemen…

I was somewhat underwhelmed to read in Empire this month about alleged tensions on the set of the film The League of Extraordinary Gentlemen (as I insist on calling it) between Sean Connery and director Stephen Norrington. After 7 pages, it emerges that this consisted of little more than not getting on very well and Norrington on one occasion goading Connery to punch him, which Connery declined to do. Oh, and one of the stages got flooded. Ho. Hum.

It is particularly unfortunate that we only get to read one side of the story: Connery is certainly a bona fide movie star, but he has always seemed to be quite precious about it (okay, I admit it, I just don’t like his politics).

But the real problem with this article, and the reason for this rant now, is that it doesn’t touch on either the ongoing travesty that is Hollywood’s inability to “get” Alan Moore (the best thing that can be said about “LXG” – as they like to call it – is that it isn’t quite as godawful as From Hell) or the legal battle that Moore faced when some no-mark sued him for plagiarising his never-before-heard-of yet vaguely similar screenplay. That’s a far more interesting story.

It’s also a missed opportunity not to mention the Black Dossier, the latest League comic which is currently unavailable in the UK due to several potential copyright issues.

Alan Moore is a funny one. In a recent article in the Megazine, Alan Grant describes Moore as a “character developer” as opposed to a creator. This seems like a gross insult to the man until you realise that it happens to be true. Name an Alan Moore classic comic and the chances are it is derived from something else. There are exceptions – V for Vendetta, Halo Jones, DR and Quinch – but most of his best work has been based on other people’s creations.

None of that is to deny his genius. But it does make one wonder why he is so extraordinarily precious about his own intellectual property.

IP Wars: Episode Two

Thanks to all concerned for all the positive comments I’ve had regarding my post last week on intellectual property. I’ve been pleasantly surprised with the response despite the article’s glaring flaws.

One of the things I meant to write about, which Jock reminds us of (via Mises Blog) was the whole Radiohead/In Rainbows phenomenon. Amazon currently rates this album, released this week, at 2 in its music sales chart, and 1 in rock and indie. Not bad for something being given away for free a few weeks ago (speaking personally, I really didn’t think much of the album being a pre-Kid A kind of guy, but each to their own).

It does make me wonder however if the future of physical music purchasing lies in the 70s. Back in the days of vinyl, bands would often turn their LPs into wonderful must-haves, with large, glorious artwork, books and sleevenotes. The scrappy booklet that can be found inside most CDs doesn’t compare. Already all major releases (including Radiohead’s) have a limited edition; at what point will these become standard issue?

Doctor Vee also highlights another omission: the argument in 2007 about whether or not to extend the copyright of recordings, lead by the rather deep pocketed Paul McCartney and Cliff Richard. He points to a paper by Rufus Pollock arguing that the optimal length of copyright from an economic viewpoint should be around 15 years. I haven’t read the full paper yet but it looks interesting.

Anyway, it made a nice change from the endless strings of memes and goodwill messages that dominate the blogosphere at this time of year.

Intellectual Property – the big 21st century faultline?

Eqypt are set to pass a law forcing royalties to be paid to, erm, Egypt, every time anyone makes a copy of a pyramid or an ancient Egyptian relic. This presumably means I’ll owe them money every time I press the arrow (^) key. But of course, this isn’t the first time a government has passed a special law to protect a specific piece of intellectual property: after all in the UK we have given Peter Pan protected status specifically with a view to bankrolling the Great Ormond Street Hospital, and who could object to giving money to sick children?

This is a rather extreme example of the what is increasingly emerging as a major faultline in civilisation which seems set to dominate much of the 21st century. On the one hand we have global multi-media empires which look set to exploit – and extend – IP as much as possible. What some economists call “superstar economics” means that a piece of IP – pretty much any piece it seems can be exploited for millions, even billions of euros at a global level. On the other hand, there is the open source movement, the idea that the future lies in collaboration and sharing. Largely voluntary movements such as Creative Commons may seem benign enough, but Bill Gates has already denounced open source as a new form of communism, and beyond the obvious face offs such as Napster, we have yet to see how more sophisticated ideas about opening up other mediums and industries might challenge the status quo. One thing to look out for in my opinion is how the movement for opening up access to public data develops. Already there are rumblings objecting to the idea that people should have free access to something that the government has been flogging to private companies for years. Crown copyright has effectively lined the pockets of companies such as Dod’s for years; what will lobbyists do if large amounts of what companies such as this do suddenly becomes available to every Tom, Dick and Harriet? Somehow I doubt Dod’s is going to take this lying down.

One thing is sure, the traditional industries are feeling insecure and starting to behave in a manner not unlike a cornered animal. The ridiculous behaviour of the Performing Rights Society, described on this blog last month, is far from unique. Buy or rent a DVD, or go to the cinema, and it is now par for the course to essentially accused of theft by the very company you have just increased the coffers of in the form of their insulting and bossy FACT warnings (to be fair, their recent cinema adverts are somewhat gentler and might even be accused of having a sense of humour, if you don’t mind being talked down to by a cartoon rodent).

Over the past few days there have been a number of articles in the press about the music industry (and now MPs) taking a stance against websites such as eBay selling on tickets. We are now to understand eBay and the like as being virtual “pimps” – an analogy which is fine so long as you accept that the same basic description applies to estate agents (indeed any kind of agent) and indeed anyone working as a middle man in any industry (including, erm, record companies).

Harvey Goldsmith is proposing legislation to make it illegal to resell tickets to music gigs along similar lines to the existing legislation that applies to football matches. Yet this legislation is there for a very specific reason: it is designed to prevent football hooligans from buying their way onto their rivals’ terraces. Whether you approve or disapprove of this legislation, its intent is to stop people from being maimed and even killed; Goldsmith is calling for nothing more than the protection against their own gullibility.

Much of what seems to be developing appears to be perfectly legitimate. For example, what’s wrong with creating a futures market for ticket sales? It sounds like a perfectly good service for sports and music fans.

The solution to all this seems to be obvious to me: rather than trying to shut down the auctioneers, who are only providing services at the price people are willing to pay, why not sell all tickets in this way in the first place? The music industry appears to take great delight at how quickly they sell out of mega-gigs, yet all that ensures is that the tickets go to the most enthusiastic, the luckiest and the most organised. The average punter loses out at every turn. Surely auctioning tickets would not only ensure that the company (and artist) gets the right price, but would limit the potential resell value. We don’t need new laws, we just need new business models.

(The music industry in particular doesn’t seem to get market economics. If it isn’t complaining that the value of tickets to gigs is to high, it is complaining that the value of CDs is too low. The CEOs of Sony, EMI et al wouldn’t look out of place in the management board of a tractor factory in Stalin’s Russia)

But it doesn’t end there. Both global patent and copyright laws have been extended in recent decades. The original idea behind such laws appears to have been forgotten and pure greed has taken its place. Globalisation means that the earnings potential from a new idea has massively increased; yet at the same time we’ve artificially increased it further still, and long lives will extend this still further. To take one example, J.K. Rowling, a rich woman who can afford the very best in healthcare, is likely to have a very long life. Let’s assume she lives to 100, in 2065. The copyright on her books will stay with her estate until 2135. That means that her great-great-great grandchildren will still be profiting from their ancestor’s books. Is there really any justification for that? I’m all for an artist’s work being protected, but when a work becomes a global brand, doesn’t there come a point when the money made from it is no longer reflective of that work’s value and more based on the value of the marketing behind it? Doesn’t there come a point where these laws no longer protect creativity but stifle it?

Compare Batman to Robin Hood. Anyone can make a Robin Hood movie; the character is in public domain. To make a Batman film (or comic for that matter), you need the permission of Time-Warner. Who does this serve? Isn’t Batman now an iconic enough figure in popular imagination in such a way that is bigger than any corporation?

It is, I readily acknowledge, a moot point. But I’m less concerned about the here and now than I am about the prospect of a century of corporations owning vast catalogues of intellectual properties archived from the 20th century and trying to find ever more creative ways of exploiting them. As a civilisation, we’ve never had to face such a privatisation of ideas before. Technology will make it easier for corporations such as Disney to take legal action against anyone using their IP without permission – on the web and, without wanting to get too sci-fi here, ultimately in your mind? – yet what moral rights do they have over such cartoon characters that have become part of our folk memory?

It strikes me that all this could take a turn for the much worse and inevitably there will be a backlash. And ultimately this is deadly serious because it goes far beyond books, music and cartoon characters; much of the value of our stocks and shares are rooted in intellectual property; challenging the laws allowing Marvel to keep hold of Spider-Man could have enormous consequences for instance. And that means huge vested interests are at stake here.

As with land, I can’t help but feel that the debates on intellectual property that were raging at the turn of the last century will increasingly be revisited in the not so distant future. At stake is nothing less than who owns our very culture.

More PRS balls

As a follow up to my blog post a couple of weeks ago, ‘Ron‘ from Linksway Hotel has written the following:

I have just been contacted by this society and been advised that I need to pay some £1800 per annum for hotel guests to view and listen to music in their rooms.

We pay for a Television Licence for the hotel.

The law states that once you have reserved a room in a hotel, it becomes your private residence,so any viewing of tv or listening to radio is deemed to be private.

It seems to me that someone at the PRS has gone a bit bonkers. I also received an email from an MP a couple of weeks ago saying that they had received a considerable amount of casework about this issue and was pursuing it further. Watch this space.

Performing Rights – should everyone be sued?

My office has just had a phone call from the Performing Rights Society (asking for a company that ceased to exist 10 years ago, natch) demanding that we take our a PRS license on the basis that some people in the office listen to personal MP3 players. Sounds like crap to me, but their leaflet is even more vague:

By law under the Copyright, Designs and Patents Act 1988, if you use copyright music in public (i.e. outside of the home), you must first obtain permission from every writer or composer whose music you intend to play.

Essentially they are asserting that every time you walk out of your front door and put your iPod on you are breaching copyright. I’ve never thought about this before, maybe that is the letter of the law, but in that case isn’t the law an arse?