Cloning of video games is a Bad Thing. Or so sayeth Brian X. Chen and some video game developers (New York Times, March 12th, ” For Creators of Games, A Faint Line on Cloning”). Roughly, the thesis advanced is: ‘cloning’ can be destructive of developer motivation and the video game market, and thus seems to require legal intervention (by the application of patenting protections). I want to raise some questions that I hope will complicate the picture Chen provides us of innovation and its relationship to its legal regulation.
In any commercialized art form, be it movies, literature or fashion, the creators often tread a fine line between inspiration and shameless copying. Some small video game makers say that line seems to have all but disappeared….“When another company takes inspiration from the game and they try to make a different game out of it, that’s when getting imitated turns into a compliment,” said Rami Ismail, a co-founder of Vlambeer. “Getting cloned is like getting punched in the face. It’s like a robbery.” Demoralized, Vlambeer stopped development of Ridiculous Fishing for several months. “It was kind of a motivation black hole,” said Jan Willem Nijman, another founder. “It almost destroyed Vlambeer.”
So, copying is ‘shameless’; the imitated seems to think it is both a ‘compliment’ and ‘like getting punched in the face’ and like ‘robbery;’ it can act as demotivator. Ismail’s statement starts by noting ‘inspiration’ and the creation of ‘different games’, which would seem to be a good thing (for game players at least). But something goes wrong: even though a new game has been created, it has employed ‘cloning’, the copying of “the soul of a game — its gameplay mechanics, design, characters and storyline — “. And this has demotivated the folks at Vlambeer.
This story raises questions well worth pursuing. What did Vlambeer do? Did it make another game? Did the presence of the new, ‘cloned’ game force them into other innovative avenues of development, rather than just working on a previously explored artistic niche? Did the cloning prevent Vlambeer from staying safely and staidly on the same beaten track? What brought Vlambeer back to working on games? What do they work on now and how? More generally, is it the case that those developers whose games have been ‘cloned’ start working on another game or do they exit the development market? Does cloning produce an arms race with games developers innovating furiously to maintain a cutting edge?
Other questions suggest themselves. Did consumers get more games out of this episode of cloning? Were the ‘cloned’ versions of the game better in any regard? Even if the “gameplay mechanics, characters and storyline” are ‘cloned’ what does it mean to say the ‘design’ was cloned? Was the interface of the cloned version identical, or did the interface work ‘better’ in some interesting dimension? For instance, are any of the ‘cloned’ games faster? Do they load quicker? Do game players indicate their preferences for these new games in any way?
After not raising these questions, Chen turns to possible legal protections and regimes:
One reason that cloning is so frequent in the game industry is that there is no easy way to protect a game. A piece of published writing or a photograph can be copyrighted, but not the mechanics of a game. Small game makers could seek patents protecting software design, but they generally shy away from this because acquiring a patent can be both time-consuming and relatively expensive, said Ellisen Shelton Turner, an intellectual property lawyer at Irell & Manella in Los Angeles.
In addition, because games so often draw inspirations from previous works, many game creators believe that patent protections could stifle creativity in future games, Mr. Turner said. “A lot of them are anti-patents,” he said. “And only in hindsight do they think patents are the proper thing to do when someone has stolen their idea.”
But what are the ‘mechanics’ of a game and why are they kinds of things that could be copyrighted? Turner claims that developers shy away from acquiring patents because of the difficulties of the process but then in the next sentence puts it down to their acknowledgment of the creativity-stifling potential of patent protection. Those same developers might know that their development has drawn freely on the creative output of other developers and that seeking patent protections might be damaging to the ecology of the game development world; developers might be more cognizant of this ecology and its particular constraints, than say, corporate ‘intellectual property’ lawyers. The belated self-knowledge that Turner ascribes to game developers might rather be their acknowledgment of the particular contours of their development community: that their decision to not seek patents comes with a price attached while contributing to very particular freedoms enjoyed by game developers.
Finally, the central claim, that cloning results in bad outcomes:
The founders of Vlambeer, the maker of Radical Fishing, said they disagreed that cloning was good for consumers. They said cloning would make it more difficult for small companies to take risks on new ideas, but easy for big companies to succeed by rehashing old ideas. As a result, all new games could look extremely alike and unoriginal.
“If we go into that sort of spiral we’ll end up in a place where there’s only cloners, and there’s a limited amount of creativity happening,” Mr. Ismail said. “That’s the biggest horror scenario.”
This ‘horror scenario’ seems overstated. First, in light of the questions raised above. Second, because, peculiarly, in the scenario envisaged, game players appear to have no agency, no discrimination. They do not grant any game-maker first-mover advantage, they seem not to select between games, they mindlessly take on clones just because they are similar to extant games.
‘Cloning’ suggests the creation of identical copies; but the situation at hand deals with new games that incorporate central features of the older game. This fact, and the nature of the game development process, which draws on a ‘commons’ of code, algorithmic techniques, and a grab-bag of tricks and solutions to game development problems, considerably complicates the picture of the game development world and its possible legal regulation that emerges from Chen’s article.