Online Games & The Law, Part Two: Copyleft & Trademark
by Shannon Appelcline
Last week I began a three-part series on Intellectual Property and online games. If you missed it, go take a read. It covers the topics of IP in general and copyright specifically.
This week I'm going going to expand the topic of copyright, by discussing copyleft, and then we'll move on to the next biggie: trademark.
As I said last week: I'm not a lawyer, and this isn't legal advice. I've just worked with these issue quite a bit over the years, and I'd like to try and codify much of what I've learned for your benefit.
Last column when I talked about copyright, it was all about what you could do to protect your intellectual property from being copied. But, what if instead, you want to make your IP available to lots of people? Just tossing it out into the public domain isn't the right answer, because you lose any rights at all over the property. Instead, a number of different people have come up with ways that they can retain rights over their property, but still let other people use it.
I've used the general term "copyleft" to cover these possibilities, mainly because it's not a specific method, but rather an ideology. When someone copylefts an IP they're really copyrighting it, but then releasing it to the public under a specific and broad licensing agreement. (We'll get to licenses more in the next column.) The idea, ultimately, is to say: "it's mine, but you can use it if you follow the rules without ever having to talk to me."
Here's a few specific copyleft agreements:
Open Source: This, or more specifically open source software, is a very general category of copyleft. It includes the widely used GPL, which I'll talk about in a minute, the Mozilla Public License, the W3C license, and theoretically anu open source license that you want to write.
For software to qualify as open source, it must meet the open source definition. Generally, for a software license to be open source, it must: allow free redistribution, include source code, and allow modification and derivatives. There's also some requirements that have little to do with actual copyright licensing, such as a couple of no-discrimination clauses and a de-facto rule against click-wrap agreements.
GPL: This is short for the Gnu Public License (or, the Gnu General Public License, if you're a pedant). As already noted, it's a form of open source, though it was actually the first. At the time of its creation Richard Stallman was releasing lots of free UNIX software as part of the Gnu project. The GPL was their way to protect those releases. Since, large numbers of free software projects on the net use the GPL as their core license. (I've seen numbers between 50% and 80% of all open source releases.)
The general idea of the GPL matches the open source definition pretty closely: it gives people the right to modify and redistribute the code. There are no commercial restrictions, meaning that people can sell the product if they're able, with or without modifications. However, anyone distributing a GPLed program must offer the source code to that program freely, including any additions the person made.
In addition, the GPL is viral: any modifications you make to GPLed code become GPL themselves.
Creative Commons: OS and GPL are all find and good, but they're fairly restricted to computer software. The Creative Commons is a much broader initiative meant to introduce more creative mediums to copyleft agreements.
The Creative Commons actually offers a number of different licenses, but the differences in these licenses center around four questions: is attribution required?; can derivative works be made?; can commercial use be made of the property?; and do changes and additions fall under the Creative Commons?. By your answer to those questions, you can decide which CC license you want. I suspect the most popular CC license is "by-nc-sa", which says that you can freely redistribute and modify a work, but you must give attribution to all authors, your changes fall under the CC license, and you can't use it commercially.
One of our newer columns, NeoArchaeology centers partially around discussion of open-source MUDs. If this topic interests you, I suggest reading the odd numbres of NA (#1, #3, #5).
It seems a bit odd to turn from the free-wheeling, shared-ownership world of copyleft to trademark--one of the types of IP used most directly for corporate control of properties--but that's the world of IP. It's all about protecting ownership of properties, and that should rightly run the gamut from individual to corporate good.
Trademark is, perhaps, the most misunderstood type of Intellectual Property. People confuse it was copyright pretty liberally, but they're not the same thing at all.
To be precise and succinct: trademark offers protection only over how you market a product.. Most commonly, trademark protects: a unique phrase; or a name associated with a logo. Generally, the more unique something is, the more likely it is to be protectable by trademark. Technically, the word "Skotos" may not be trademarkable, but the word Skotos as shown in a specific typeface, with a compass interacting with the words definitely is, especially if it's talking about computer games.
Sadly, the limits of a trademark usually go beyond simple phrases and logos--howe far beyond is often defined by how much money a company has to throw at lawyers. The more money you have, and the more lawyers you pay, the more likely you are to be able to claim that something is protected by your trademark, even if it doesn't use your logo, and in some bizarre cases, even if doesn't use your product name.
This all has to do with the "likely to cause confusion" clause of trademark law. Meaning: you may be violating someone's trademark if you market something in a way likely to cause confusion with a trademarked product. The laughable extremes to which this protection is taken, if someone has enough money, can be seen in the business of Toys 'R Us. They have regularly sued any company, national or local, that uses a reverse "R" in their company name, claiming that such is likely to cause confusion. Judges have regularly bought this argument, because Toys 'R Us has lots of money and lots of lawyers.
Before I finish up the general discussion of trademark, I should add one addendum: trademarks theoretically exist for consumer protection, so that you aren't tricked into buying untraceable, substandard goods. Right, consumer protection. Haha.
Other Types of Trademark
Though the most common uses of trademark are to protect phrases, names, and logos, trademark can technically protect any marketing element. Here's some other common protections:
Tradedress: This means the general look and feel of a product, especially if you have a distinctive look for a product line. Take the "For Dummies" line of products. They all have yellow backgrounds with a hand holding up a green-edged sign with black background and yellow, serifed printing. That's trade dress (and, as it happens, the For Dummies company is another corporation notable for throwing money at lawyers to protect their trademark, when it's really morally protectable or not).
When I talked about look-and-feel copyright in the last column, I mentioned that I found it untenable ... but that in same cases similar ideas might be protected by trademark law. Here's where that's true. If I create a front page for a website that exactly matches the look and feel of, say, those For Dummies book I might well be violating their trademark.
Service Mark: I'm not sure that Service Marks are technically trademarks, but in any case, they're about the same thing. They protect a marketing logo/phrase/etc for a service, as opposed to for a product. They're often used by standards bodies and certification companies, and beyond that probably will never cross the RADAR of an online game designer.
Any Other Marketing Element: Depending on the jurisdiction, you might be able to protect a color (as UPS has with regard to 'brown' and package delivery), a sound, or even a smell. The shape of your packaging might even be trademarkable, e.g., if you have a unique shaped bottle for your drink, or a unique package shape for your computer program. Anything is technically trademarkable if you can show that it's a unique aspect of your marketing approach which might cause confusion if someone else adopted it.
Trademarks, Registrations, and Classes
Technically, you can mark anything appropriate as a trademark. You put the little "TM" simple next to the mark and you note that "XXX is a trademark of Me, Inc.". This gives you some limited protection.
However, if you want to have strong protection over your trademark, including the ability to sue for damages, you need to register your mark. At least in the United States this is a complex and byzantine process that will take months or years of time, hundreds or thousands of dollars, and probably the help of an IP attorney.
Registrations have to be made for specific "classes" of commerce. There are a total of 34 international trademark classes, from chemicals to smoker's articles, plus a few more for service marks. And, yes, those classes are as stupid and arbitrary as they seem. Smoker's articles, as one of the 34 categories of all international commerce? Clearly, some cancer-stick conglomerate greased a number of palms in some WTO-like organization.
In any case, to register a trademark you write up some forms that depict your trademark and you list the appropriate classes and you show examples of use, and you send it off with some money. Then the trademark office comes back some number of months later and tells you a few of your classes are inappropriate, and you resubmit your form. Then the trademark office comes back and says, oh, they've found some new classes to include your trademark in as well, and will you please send some more money for those registrations, and you do. Then your trademark goes publics, and people have the chance to oppose, and quite possibly someone will. 3-12 months later, you now mark your logo or phrase with the circle-R that shows it's a registered trademark.
As an example, here's the trademark info for RPGnet. Note in particular the dates: filed in January, 2001; final version submitted in May, 2003; and registered in August, 2003. You can also note the classes we have it registered for: Class 35 (Advertising and business services); Class 36 (Insurance and financial services); Class 38 (Communication services); Class 41 (Education and entertainment services); and Class 42 (Scientific and technological services; Legal services). No, I don't know why all of those are appropriate, but the trademark agent said we should include them after reviewing the first couple of applications, so we did. And paid the extra fees.
Before you even try and register a trademark, however, you should do a search to make sure that no one else is using it already. Technically, you're OK if they're not in your class, but I've seen trademarks rejected even when they fell into totally different classes from current ones, so uniqueness is your only protection.
And that's something you should be thinking about before you name your company or game, not just when you decide to trademark it.
Trademarks are only protected on a per-country basis (except in the European Union), meaning that you have to pay money to every government that you expect to hold up your IP rights. However, an international understanding of how trademarks work is based on the Paris Convention and later WTO's TRIPS agreement. So, at least there's some uniformity about how different countries resolve trademark issues.
Trademarks: Use It or Lose It
You can file for a trademark with an "intent to use", but more often people file once they've already used a trademark in a marketing manner at least three times. Even after you've filed, it's easy to lose the rights for a trademark if you don't use it and protect it. To be precise:
If you don't use a trademark, you can lose its protection. (Conversely, unlike copyrights, you can keep renewing a trademark forever.)
If you let someone else use a trademark without your permission, you can lose its protection.
If you let a trademark become generic, you can lose its protection.
The last is, perhaps, the biggest danger to a serious trademark holder. Technically, to be protected, a trademark has to be used to modify a generic noun or else as a proper noun--never as a generic noun and never, never as a verb. Adobe Photoshop or Band-Aid Adhesive Bandages? Protected. Bandaiding a wound or xeroxing a document? In danger of becoming generic.
If people are using your trademarks in these ways, you can lose them, and the most litigative companies often send letters to writers either threatening them about or cajoling against the use of trademarks as generic words.
Me, I'd be offended if I ever received such a letter, and as a result I plan to continue photoshopping my pictures, bandaiding my cuts, googling when I'm looking for search results, and otherwise using the English language as I see fit.
Copyleft, Trademark, and Online Games
So, what does this all mean for online games?
Copyleft is a very popular method for organizing creative content for volunteer-led programming projects, and online games often fit into that category. If you're working on such a project, you should fairly quickly come up with a copyright or copyleft agreement, so that if you ever end up with a disgruntled former member you're not forced to retrofit all your work, just because you didn't figure out IP rights.
Trademark is something that you only need to worry about if you're a reall big company, with one exception: you should make sure that you're not violating someone else's trademark, else it will become a problem down the road if your game does well. Before you ever release, research your game and company names through the TESS link I provided.
And with that, I'll see you in two weeks. I have one last article on IP rights that's going to cover patents, trade secrets, and licenses. And, to give you a preview, I think just as little of the current state of patents as I do the current state of trademarks; it's another rich-get-richer scheme where he who has the most money for lawyers wins.
But, we'll chat about that next time, and then it'll be back to some more gamecentric topics for a bit.