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Game Development Geek / Technical Politics/Government

Software Patents? No Thanks!

I just read an article on Gamasutra titled It’s Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games. I am interested in news and articles on software patents, and I’ve always been against them. While I believe patents can cover a physical invention, like a better mousetrap or printing press, I don’t believe patents should cover things like mathematics or intangible ideas.

You want to protect your software? Copyright covers your needs. It’s cheaper, and it’s faster. Trademark will protect anything from logos to specific characters. But patents? Way too expensive. They also bring the software industry to a standstill rather than push its progress along as claimed. Patents are supposed to be granted for non-obvious inventions. Most software patents are for obvious ideas. Anatomy of a Trivial Patent shows how easy it is to make something obvious sound incredibly complex and inventive.

When I read this article, I was hoping to receive information that either supports my view or gives convincing arguments for the opposing view. What I read, however, was lame B.S. about the “merits” of software patents. I will now go through each of these myths getting “busted” throughout the article.

Myth 1:
The first Myth being “busted” here is that you can’t patent computer programs. The truth is, you can patent specific ideas that are used in video games, but the author decides to argue this myth by first pointing out that you can patent the computer/console hardware. Huh? He then gets to the software portion:

  1. “Scoring based on goals achieved and subjective elements” sounds awfully familiar. Oh yeah, it is because most games with scores give you points for doing certain tasks, and the idea that you can get points for doing things in a cool way isn’t all that innovative, is it?
  2. A patent on the use of a machine? Again, not the same argument here.
  3. Sega’s patent on making characters run out of the way of an oncoming vehicle. Something that happens in CARTOONS and real life all the time!
  4. Battlefield strength and morale in a strategy game. Aren’t board games using this mechanic? Couldn’t I just as easily call these elements something else, like “popularity” or “happiness points”?

He also talks about how you can patent the distinct way a logo appears on the screen. These are actually the also-controversial “design patents”. I think trademark would do just fine here. In fact, that’s what trademarks are perfectly suited for because that’s what they were made to protect! Let’s look at the entry in the US Patent database: D487,574 has a list of other design patents that say essentially the same exact thing:
“The ornamental design for an icon for a display screen, as shown and described.”
“The ornamental design for an interface for a display screen for an electronic device, as shown and described.”
“Surface ornamentation for a handheld computer or a computer-generated icon for a handheld computer.”
“Icon for a display screen.”

Aren’t patents supposed to be granted for inventions? What’s so inventive about each of these that the others don’t already have prior art on?

And in any case, at no point is the “myth” that you can’t patent computer programs actually busted. You can patent techniques and algorithms, not whole programs. Nice try, author.

Myth 2:
The argument being made here is that even if you make a clone of a game, you have to have something unique about it, right? Patent that unique thing!

I create a power-up that makes the entire screen turn upside-down. Is that really going to be considered patentable?

Myth 3:
This argument says that while a patent might take a long time, you can get provisional rights, giving your application power even if your patent isn’t approved yet. Also, there is this quote:

Additionally, this may be another example of selling yourself short. Many inventions are broader in scope than the particular embodiment first produced by the inventor, and a good patent attorney can help an inventor identify the true, full scope of the idea that has been invented.

No, a good patent attorney can help an inventor identify the wording to make an otherwise specific “invention” cover a broad range of other “inventions”. You can patent “a mechanism for keeping point totals in order” and now you control the Top 10 List, but if you patent “a mechanism for displaying data in an arbitrary order” you have now patented not only the Top 10 List, but also end-game statistics for all kinds of games. Essentially, the author here is trying to convince you that there is a lot of money to be made by making your “invention” as broad as possible to cover as many possibilities as possible.

Myth 4:
Suing is expensive. The author ignores that point by arguing that patents are used for more than simply suing. Fine. But this line:

A patent portfolio is also a good defensive tool. Competitors, who will no doubt take advantage of the patent process for themselves, will think twice about suing you if there’s a threat of you suing them back (i.e., a countersuit).

Yeah, I’m sorry. No. If IBM, Microsoft, or probably even EA decides to sue you, your single, measly patent isn’t going to do anything. These companies will likely claim that your patent is actually making use of one of their patents. Imagine coming into a water-balloon fight with a pack of balloons, and the opponent holds the only water hose to fill them. That’s what it is like. IBM has argued that its huge patent portfolio is a great set of assets not because they receive licensing revenue, but because IBM can write whatever software it wants. NO ONE can go to IBM and say, “Hey, you’ve infringed on my patent, so give me money!” because IBM will return with, “YOUR patent makes use of any number of the thousands of patents we have. You can go away now. Oh, and you’ll also let us license your patent at no real cost to us. Have a nice day.”

Myth 5:

The “spirit of innovation” works best when there is a free market of ideas, and consumers are better off if video games are not patented.A classic argument among those who feel that the entire patent system should be abolished. You might want to make that argument to your representative in Congress, because unless the Constitution is amended to do away with patents, they’re here to stay.

The quote above is one of the examples that really showed that this article wasn’t meant to be informative so much as to persuade through deceit. One, people aren’t arguing to abolish the entire patent system. People are arguing that certain types of patents, specifically software patents, shouldn’t exist. The second statement implies that the Constitution already mentions patents, when it doesn’t. The Constitution grants the power to create ways to reward people for progress, but doesn’t create any specific power, like copyright or patents.

The patent system changes. So does copyright. It isn’t a far stretch to think that some changes are better than others, and some changes are just plain bad. The ability to patent software is one such change.

In the last paragraph for this “myth buster”, he talks about Ralph Baer, who supposedly gets credit as the father of video games. Don’t most people believe that Nolan Bushnell did it first? In fact, the author mentions Pong, which is technically Bushnell’s game. Bushnell opted out of a patent infringement suit by Magnavox because Pong was based on Baer’s more complex Ping-Pong game. Other companies lost lawsuits, and Magnavox made a lot of money. The author then mentions that Spacewar was created by Steve Russell.

Unfortunately for him, Russell did not seek patent protection on his concept, and did not document his development efforts as well as Baer. We will never know how history may have been rewritten had Russell sought patent protection on Spacewar. The moral of the story is simple: you should act to protect your inventions.

It sure sounds like it. Baer makes millions, and Russell failed. No, wait. Let’s remember who Russell was. A programmer at MIT. He made the first game that would be distributed with the computers being used at the time, which were mainframes. Trading programs wasn’t called piracy back then. It was called sharing. And you did so with tape, not disks. No one downloaded anything over p2p networks.

Russell was a student, and he hacked just for fun on the new DEC PDP-1. No one at the time thought to make money by selling software, let alone games. So Russell wasn’t trying to make money off of his game. Once again, the author is trying to convince you that software patents are great by offering up hints of ideas that you will hopefully turn into facts in your mind. I know the story, and so I knew that this comparison was horribly contrived and the language implied something that isn’t true. How many people know about Steve Russell and Spacewar? How many people reading this article would think that Russell “failed” with his game while Baer succeeded with “his” Pong?

If that specific paragraph in the author’s article doesn’t convince you that this author is trying to sell you something, I don’t know what will.

Myth 6:
Patents are expensive. The research prior to filing may be cheaper than ever, but the filing of a patent costs serious money. Maybe EA can afford to pay the thousands just to patent games, but indie developer budgets can easily double or triple due to filing costs. Don’t forget that if you have to sue or defend yourself, your lawyers will cost money too. Not everyone will make millions by suing people who make card games.

In the end:

Video game innovations will play a large role in determining who shares in the ever-growing multi-billion-dollar video game industry. As more and more companies enter the market, and spend more and more resources developing those innovations, protecting those innovations will become even more critical.

Whoa, whoa, whoa! Back up a bit here. If the Constitution grants the power to create things like copyright and patent laws to promote innovation, and more companies are entering the market and creating things, do we need MORE protection? Doesn’t this just contradict everything the author himself was saying? Patents allow for progress. There is more progress. Therefore, we need to “protect” progress? From who or what are we protecting our “inventions”? The author doesn’t say. The implication, of course, is that other people will take your “invention” and start making money from it, and you need to protect yourself.

We don’t need software patents to make software. Software patents don’t promote progress. They stifle it. Most software patents are being used defensively. Microsoft, IBM, and others trade licenses, and no real lawsuit gets completed anymore. “You can make use of our XOR patent if we get the right to use your patent on computer animation with color.” Not everyone is Microsoft or IBM, and so not everyone would benefit from software patents. The only real reason given in the article is to do it because everyone else is doing it. Get them before they get you.

Software innovation happens in spite of software patents, not because of it. If everyone who wrote software had to do a lengthy patent search before writing code or releasing projects, how many projects would be dead due to IBM alone? As the author explains, ANYTHING can be patented, so it isn’t like software patents are documenting actual inventions.

Software patents don’t protect anyone but large companies. They are expensive. They cover ideas, algorithms, and mathematics when patents are supposed to cover actual inventions. And even more important, the author was clearly trying to deceive rather than provide actual information. Can someone give REAL arguments for software patents? It doesn’t seem so. Most arguments “for software patents” tend to sidestep the issue and claim that patents are doing what they always do. Such arguments ignore the fact that software development is not like building vehicles, and they ignore the actual question: should software patents exist?

I believe they shouldn’t.

Some links:
League for Programming Freedom
Paper arguing that software patents would actually reduce innovation and progress (PDF format)

Categories
Games Politics/Government

Violent Video Game Ban Passed in Illinois House

I read this article in the Chicago Sun-Times. Apparently the Illinois House passed the law 100-6.

Someone on the Indie Gamer forums posted a link to the FTC study that gets cited a lot by the Governor. Let’s look at the findings:

Ability of a minor to purchase an Electronic Game: 85% in 2000, 78% in 2001, and 69% in 2003
Ability of a minor to purchase a DVD: no data available in 2000 or 2001, but 81% in 2003.
Ability of a minor to purchase a movie theater ticket: 46% in 2000, 48% in 2001, 36% in 2003.

Now, this study only shows whether a minor was able to make the purchase. It never details whether or not such purchases are being made normally, so there is no indication that there is a problem in the first place.

But remember, the Senior Advisor to Governor Blagojevich says “Whether such inappropriate purchases are part of a widespread problem or not, this administration thinks that no child should be able to purchase these types of video games without his or her parents’ supervision.”

That’s a perfectly valid point to make. If you believe that children shouldn’t be able to purchase violent video games at all, then that’s fine. But all the studies cited make mention of television and movies. Are inappropriate purchases of DVDs not as bad? 81% is a LOT. Even if it isn’t part of a widespread problem, should children be allowed to buy R-rated DVDs? Apparently so. And at 36%, it is clear that the movie industry isn’t the great self-regulater that it’s made out to be. 36% is a LOT, and the Governor’s office has made it clear that there shouldn’t be ANY minors buying inappropriate video games.

And there you go. “Protecting the children” sounds all well and good, but it is not consistent with the actions of the government. I’m sure you’ll forgive me for not believing that it is the goal of such legislation to actually protect children. If it were, then the laws would do something meaningful at the very least. You don’t cite studies saying that television, movies, and video games have an effect on children, but then only show outrage at the popular scapegoat of the year.

Categories
Games Politics/Government

Senior Advisor to Governor Responds to My Concerns

Awhile back I had sent a letter to Illinois Governor Rod Blagojevich. I received a generic form letter that didn’t address any of my concerns. I sent a second email to Safe Games Illinois asking someone to answer my questions. I figured I would receive a response from someone other than the Governor, but not the Senior Advisor!

Anyway, here’s the content of the letter (misspellings or other typos are likely mine):

Mr. Berardi:

Thank you for your two letters concerning the Governor’s Safe Games Illinois initiative. Although this administration may disagree with many of the arguments in your letters, we appreciate your interest in the issue.

You outline four broad concerns in your letter and I will try to address them one at a time.

Your first question deals with existing laws that limit minors’ access to materials such as books or movies with violent or sexually explicit content. Illinois law already restricts minors’ access to certain harmful material, as dictated by the state’s Harmful Material Statute (720 ILCS 5/11-21). This law prohibits minors from buying a broad range of sexually explicit material – materials such as pornographic books or magazines. So laws do in fact exist that prohibit children’s access to media other than video games.

Your second concern questions why the Blagojevich administration is singling out violent and sexually explicit material in video games and not in other media that may be potentially harmful to children. It has become painfully apparent that video game retailers are not self-regulating and that they continue to sell adult-rated video games to minors. In October of 2003 the Federal Trade Commission released a study which found that underage teens were able to purchase M-Rated games 69% of the times they tried. A press release for this study is available on the web http://www.ftc.gov/opa/2003/10/shopper.htm. Last January State Representative Paul Froehlich (R-Shaumburg) sent a 15-year-old boy to 15 retail stores in the Northwest Suburbs and found that this boy was able to purchase M-rated games at 11 stores. Whether such inappropriate purchases are part of a widespread problem or not, this administration thinks that no child should be able to purchase these types of video games without his or her parents’ supervision.

Your third concern is regarding the administration’s efforts to educate parents about inappropriate video game content. One of the critical components of the Safe Games Illinois initiative is to educate parents about the harmful effects that violent of sexually explicit video games have on children. A large portion of the Safe Games Illinois website is dedicated to providing parents with information on particularly violent or sexually explicit video games as well as with links to organizations that consistently monitor and rate the various video games that are arriving on the market. Here are three Safe Games links that you might find useful:

Also, one of the mandates of the Safe Games Illinois Task Force, a body comprised of many individuals who are parents, is to educate parents on the harmful effects that violent or sexually explicit video games have on children. It is the opinion of this administration that if parents are educated about the dangers of these video games and their children cannot legally buy these games without parental permission, then violent video games are less likely to be played by an inappropriate audience.

Your final concern dealt with the wording of the propose Safe Games Illinois legislation and the legislation’s definition of violent. The legislation’s current definition of “violent” video games include those games with:

Depictions of or simulations of human-on-human violence in which the player kills, seriously injures, or otherwise causes serious physical harm to another human, including but not limited to depictions of death, dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.

I don’t think any reasonable interpreation of this definition would exclude children from purchasing age-appropriate games – such as Super Mario Bros or Donkey Kong.

If you have further questions about the bill, I strongly encourage you to take a look at the web site for House Bill 4023, maintained by the Illinois Legislature:

http://www.ilga.gov/legislation/billstatus.asp?DocNum=4023&GAID=8&GA=94&DocTypeID=HB&LegID=20889&SessionID=50

Thank you again for your letter.

Sincerely,
Sheila Nix
Senior Advisor to the Governor
State of Illinois

I’ll admit that I am ignorant of the laws regarding materials deemed harmful for children. According to Sheila, this law prohibits children from being sold pornographic books or magazines. So, where’s the analogous violent content law that does the same, which is what I was mainly concerned about?

The statistics they were using were presented in a way to insinuate that children are buying violent video games in droves or that it is an epidemic. For example, in this letter “underage teens were able to purchase M-Rated games 69% of the times they tried”. Ok, but how about commenting on studies that say that it isn’t happening that often in real life? That children DO tend to get their parents’ permission or have their parents present when they buy these games?

Another choice quote: “Whether such inappropriate purchases are part of a widespread problem or not, this administration thinks that no child should be able to purchase these types of video games without his or her parents’ supervision.” Ok, and because the motion picture industry is so effective at self-regulation, we won’t pass a similar law to stop the one or two instances when a child CAN get into an R-rated movie? I mean, even if it isn’t part of a widespread problem, doesn’t this administration think that no child should be able to view such movies? Perhaps I’m being petty, but I think the example is analogous.

And regarding the wording of the law in question, I’ve played games where the main character dies as a result of non-human characters or where the main character isn’t human. Are those allowed to depict death or dismemberment without falling under this law?

Someone in the ASP games newsgroup pointed out that if a law like this is passed, who pays for the rating system? How much would it cost to get a rating on a game to sell it in Illinois? How long will it take to get the rating? A mainstream game might have a million dollar budget and so the publisher might consider the cost to be a drop in the bucket, but an indie title does not usually have the means. Whatever the cost is, it will be significant to the indie. In any case, such a requirement would be harmful to the industry while having only dubious arguments to support it at the most.

Looks like I have another letter to write.

Categories
Games Politics/Government

Governor Blagojavich’s Video Game Censorship Laws

I recently got a letter from the IGDA regarding Illinois Governor Blagojavich’s proposal to censor video games.

I have to say: it’s about damn time the IGDA said something.

I sent a letter to Blagojavich months ago regarding this issue. Weeks later I received a form letter that did not address my concerns or questions, and I suppose that’s expected, but why ask people for their opinions and then not do anything about them? So I went to the Safe Games Illinois website and submitted a comment where they explicitly ask for comments. The form didn’t appear to work since I got database errors when I tried to submit it. Apparently it did work, as I received an email from them, but they could not read my letter since the URL was malformed by their stupid form. I responded, so I hope to hear a response that actually addresses my concerns.

Anyway, the IGDA letter points out that the Illinois House passed the bill last week, and the Illinois Senate will receive it in early April. I decided to write to my Illinois State Senator Don Harmon:

Dear Senator Don Harmon,

Recently the Illinois House passed HB 4023 by an overwhelming majority.

Governor Blagojavich claims that these laws are necessary to protect the children. I sent him a letter asking for clarification on just how children can be protected, but I received a generic form letter that did not address my concerns. You can read my letter to the Governor on my website: https://www.gbgames.com/gov_letter.html

I urge you to oppose this bill when it arrives in the Senate in early April.

I do not believe these laws will be effective at protecting children from violent or sexually explicit games. Children get access to games because a parent or other adult already buys the games for them. Just because a child can buy a violent game, as demonstrated by a crime task force in recent months, it does not mean that they ARE buying games. My letter has a link at the bottom that cites a study that finds a majority of children get access to games through their parents.

I do believe that the games industry is being unfairly targeted. Even Governor Blagojavich cites claims that it is not just video games but any media that can have an effect on children. Why make a law that targets James Bond-themed video games while ignoring the James Bond-themed books and movies?

The laws will also require labels to be placed on games, yet the games industry already has a rating system in place. The MPAA has a motion picture rating system in place that has been used for years, and no one has needed a government enforced rating system for that industry. I believe that a second video game rating system will only serve to confuse the people it was meant to serve. Imagine going to a movie that is both rated PG-13 and rated I.G.E.T. or something similar. You would not know whether or not it was appropriate anymore.

Video games are being treated differently than other forms of media. Is there a reason for such treatment? No studies cited by Blagojavich claim that video games are alone in their impact on children, and yet no other media is being targeted by these proposals.

I urge you to oppose Governor Blagojavich’s laws on the basis that they are unfair and would actually hurt the public more than they would help.

Thank you for your time, and I look forward to your response.

Gianfranco Berardi

Now, I personally think that violent video games aren’t the scourge that Blagojavich and others claim. If they’re so horrible, why is it that people don’t kill others more often? Statistically, with millions of video games having been played over the past two decades, why aren’t there more incedents of people killing others if video games affect them so?

It’s because they don’t. I am not sure what to think about these laws. Is Blagojavich just trying to get a quick approval jump from families who are afraid of something they don’t understand? Is this a strategic move, where he knows he doesn’t have to actually DO anything to make said families think he is? Does he actually believe in what he is doing and is just misinformed?

I don’t know. What I do know is that video games have always had a bad rap. The following may be a bit off-topic, but I want to get it out there. Even before they were considered an evil that promotes killing, video games were unfairly associated with the antisocial. How many of you gamers have ever been told, “Why don’t you just put down the stupid games, go out, and get a life?” Last I heard, even the earliest video game consoles had two controllers at least. Why is a board game or a card game (or for that matter going to a bar to drink and smoke) considered healthy and social, but playing Super Mario Bros or Quake 3 Arena considered antisocial behavior?

Movies. Books. Those are ok. Being a bookworm used to be insulting, but it really isn’t. Neither of those mediums promote interaction with others much, and that’s fine. But play a video game, and besides being considered antisocial, you’re now promoting murder simulators. It’s absurd, and yet people have no problem making this leap in logic.

If you live in Illinois, please urge your Illinois State Senator (in your Senate District, not the Federal Senate) to oppose Governor Blagojavich’s video game censorship laws. I also plan on contacting my State Representative and ask her why she voted yes.