Intellectual Property | Desert of My Real Life

{April 14, 2011} Amazon’s Android App Store

I received this open letter from the International Game Developer’s Association. I think it’s a very reasoned, educational letter and points to a dominant theme of our times. Corporations are demanding more and more “rights” in their strive to make higher and higher profits. Amazon’s distribution terms take away all control of developers for their own content. This is just another step in a long trend. I think the IGDA’s focus on educating its members is right on target. Game developers may still choose to distribute their products through Amazon but at least they will know some of the implications of what they are agreeing to.

To all members of the game development community:

Two weeks ago, Amazon launched its own Android Appstore. We know that many developers have been eagerly looking forward to that launch in hopes that it would represent a great new revenue opportunity and a fresh take on downloadable game merchandising. The IGDA applauds Amazon’s efforts to build a more dynamic app marketplace. However, the IGDA has significant concerns about Amazon’s current Appstore distribution terms and the negative impact they may have on the game development community, and we urge developers to educate themselves on the pros and cons of submitting content to Amazon.

Many journalists have noted the unusual nature of Amazon’s current store terms, but little has been said about the potential implications of those terms. In brief: Amazon reserves the right to control the price of your games, as well as the right to pay you “the greater of 70% of the purchase price or 20% of the List Price.” While many other retailers, both physical and digital, also exert control over the price of products in their markets, we are not aware of any other retailer having a formal policy of paying a supplier just 20% of the supplier’s minimum list price without the supplier’s permission.

Furthermore, Amazon dictates that developers cannot set their list price above the lowest list price “available or previously available on any Similar Service.” In other words, if you want to sell your content anywhere else, you cannot prevent Amazon from slashing the price of your game by setting a high list price. And if you ever conduct even a temporary price promotion in another market, you must permanently lower your list price in Amazon’s market.

These Amazon policies could have far reaching effects on game developers. The IGDA has identified five potentially problematic scenarios in particular:

1) Amazon steeply discounts a large chunk of its Appstore catalog (imagine: “our top 100-rated games are all 75% off!”). Some developers will probably win in this scenario, but some developers — most likely, those near the bottom of the list — will lose, not gaining enough sales to offset the loss in revenue per sale. Amazon benefits the most, because it captures all the customer goodwill generated by such a promotion.

2) By requiring all developers to guarantee Amazon a minimum list price that matches the lowest price on any other market, Amazon has presented developers with a stark choice: abandon Amazon’s market or agree never to give another distributor an exclusive promotional window.

3) Other digital markets that compete with Amazon (both existing markets and markets yet-to-be-created) may feel compelled to duplicate Amazon’s terms, and perhaps even adopt more severe terms in an effort to compete effectively with Amazon. In essence, we’re looking at a slippery slope in which a developer’s “minimum list price” ceases to be a meaningful thing.

4) Amazon steeply discounts (or makes entirely free) a game that has a well-defined, well-connected niche audience. The members of that niche audience snap up the game during the promotional period, robbing the game’s developer of a significant percentage of its total potential revenue from its core audience.

5) Amazon steeply discounts (or makes entirely free) a hit game at a time when the game is already selling extremely well. This sort of promotional activity may attract consumers away from competing markets and into Amazon’s arms. But it might actually represent a net loss for the developer, which was already doing quite well and didn’t need to firesale its game at that moment in time.

The IGDA’s bottom line is simple: under Amazon’s current terms, Amazon has little incentive not to use a developer’s content as a weapon with which to capture marketshare from competing app stores.

The IGDA does not have the power or inclination to dictate how others conduct their business. However, the IGDA is permitted to express its views on business practices that affect the developer community, and it is the firm opinion of the IGDA that:

1) A developer’s permission should be required by any retailer seeking to pay less than the standard percentage of a developer’s minimum list price. This could be automated and even “opt-out” with a reasonable period of notice, but ultimately, a developer’s permission should still be required.

2) Developers should have the freedom to set a minimum list price of whatever amount they see fit, without regard to pricing in other app stores.

The IGDA has formally communicated its views to Amazon, and while Amazon has been very willing to engage with the IGDA, it has thus far expressed zero willingness to adjust its distribution terms. We believe that the people currently running Amazon’s Appstore may have the best of intentions and a desire to make their development partners successful, in general. The problem, as history has repeatedly demonstrated, is that things tend to change when a marketplace achieves any degree of dominance. The terms of Amazon’s distribution agreement give it significant flexibility to behave in a manner that may harmful to individual developers in the long run. Any goodwill that Amazon shows developers today may evaporate the minute Amazon’s Appstore becomes so big that Android developers have no choice but to distribute their content via the store. It would be foolish to assume that because Amazon’s Appstore is small today, it will not become the Walmart of the Android ecosystem tomorrow.

If Amazon responds to this open letter, it will likely invoke the success of games that have already been promoted in its Appstore; for example, games that have been featured as Amazon’s free app of the day. The company may claim that the success of those games is proof that Amazon’s model works. The IGDA believes that this argument is a red herring. Amazon does not need the terms it has established for itself in order to give away a free app every day. Nor does it need the powers it has granted itself to execute a wide variety of price promotions. Other digital games platforms, such as Xbox LIVE Arcade and Steam, manage to run effective promotions very frequently without employing these terms.

Amazon may further argue that its success depends on the success of its development partners, and therefore, that it would never abuse the terms of its distribution agreement. Given that Amazon can (and currently does) function perfectly well without these terms in other markets, it is unclear why game developers should take a leap of faith on Amazon’s behalf. Such leaps are rarely rewarded once a retailer achieves dominance.

We respect Amazon’s right to stay the course, but as part of our mission to educate developers, we feel that it is imperative to inform the community of the significant potential downside to Amazon’s current Appstore terms. If you feel similarly, we urge you to communicate your feelings on this matter directly with Amazon.

Sincerely,

The IGDA Board of Directors

{October 22, 2010} Original Research–Good or Bad?

I recently rewatched Julia, the 1977 film starring Jane Fonda and Vanessa Redgrave. It is based on a chapter in Lillian Hellman‘s memoir, Pentimento: A Book of Portraits. That chapter tells the (probably fictional) story of Hellman’s longtime friendship with Julia, a girl from a wealthy family who grows up to fight fascism in Europe in the 1930s. I loved this book when I read it in high school and I went on to read nearly all of Hellman’s other work as well as several biographies.

As I watched the movie, several questions occurred to me and so, being a modern media consumer, I immediately searched for answers online. This search led me to Wikipedia, which for me is a fine source of answers to the kinds of questions I had. In fact, I use Wikipedia all the time for this sort of thing. I was surprised then to find the following qualifying statement on the entry for Pentimento:

This section may contain original research. Please improve it by verifying the claims made and adding references. Statements consisting only of original research may be removed.

As I said, I use Wikipedia a lot. And I have never seen this qualifying statement before. I think this statement implies that original research is somehow bad. I don’t think that’s what the folks at Wikipedia mean. At least, I hope it’s not what they mean. So I decided to look into the statement a little more deeply. There are a couple of parts of the statement that are interesting.

First, the words “may contain” are in bold. I think that’s supposed to indicate that the section or may or may not contain original research. It’s clear that articles in Wikipedia should NOT contain original research but it isn’t clear why.

I then checked to see how “original research” is defined by Wikipedia and found this on their policy pages: “The term ‘original research’ refers to material—such as facts, allegations, ideas, and stories—not already published by reliable sources.” How would one determine whether a particular section contained “original research” or not? Probably by looking for references to “reliable sources” in the section. Therefore, if a section doesn’t contain references (or not enough references), it might be difficult to determine whether that’s because the author simply didn’t include references to other available sources, the work is based on “original research” or the work is completely fabricated. Or, I guess, it could be some combination of the three reasons. So I guess that’s why “may contain” is in bold. The lack of references could mean any number of things.

The next part of the qualifying statement is even more interesting to me. “Please improve it by verifying the claims made and adding references.” This statement implies that “original research” is somehow less valid than work that has been taken from another source. Again, I doubt that’s what the Wikipedia folks mean.

So I continued to investigate their policies and found this: “Wikipedia does not publish original thought: all material in Wikipedia must be attributable to a reliable, published source. Articles may not contain any new analysis or synthesis of published material that serves to advance a position not clearly advanced by the sources.” Because of this policy against publishing original thought, to add references to an article or section of an article does indeed “improve” it by making it conform more closely to Wikipedia’s standards for what makes a good article.

This policy against publishing original thought explains the rest of the qualifying statement. My investigations into Wikipedia’s policies found policies about what it means to “verify” statements in an article. This is important because Wikipedia says that included articles must be verifiable (which is not the same as “true”), that is, users of Wikipedia must be able to find all material in Wikipedia elsewhere, in reliable , published sources. And yes, Wikipedia explains what they mean by “reliable.” That discussion is not easily summarized (and isn’t the point of this post) so anyone who is interested can look here.

My surprise concerning the qualifying statement boils down to wording and I think the wording of the statement needs to be changed. Currently, it implies that original research is bad. But through my investigation, I’ve decided that Wikipedia probably means that articles should not contain unverified, unsourced statements. Such statements could come from author sloppiness, original research or outright fabrication. In any case, they should not be part of Wikipedia’s articles.

Of course, I haven’t discussed whether the policy of not publishing original thought is an appropriate policy or not. I have mixed feelings about this. But that’s a subject for another post.

{December 26, 2009} Whose Property Is It?

When I was in graduate school more than 12 years ago, a new company opened up in Tallahassee that caught the attention of many students (and probably faculty members) at Florida State University. I don’t remember the name of the company but I do remember its business purpose. The company would pay students to take notes in their classes and then would sell those lecture notes to other students in those same classes. This service seems like a waste of money to me since any student already paying tuition for the class could simply create his or her own version of the lecture notes. If they went to class, that is. But I suppose the prime target of this company could be those students who haven’t yet learned to take good notes themselves. In any case, that business all those years ago in Tallahassee appeared to do very well in the face of some concerns expressed by various factions in the academic community.

I hadn’t thought about this company in years. Recently, however, this kind of business is much in the news. In 2008, Michael Moulton, a faculty member at the University of Florida, filed a lawsuit against a company called Einstein’s Notes, which sells what they call “study kits” for classes at UF. Moulton, and the company that publishes the textbook that he has written, claim that the material in Moulton’s lectures is copyrighted and therefore, by publishing student lecture notes without his permission, Einstein’s Notes is violating that copyright. The issue is a difficult one, especially because it is the material created by the student that is being sold by Einstein’s Notes rather than any written material created by the faculty member.

Copyright provides the author of a work the exclusive right to control the publication, distribution, and adaptation of that work. An idea cannot be copyrighted. Instead, copyright extends only to “any expressible form of an idea or information that is substantive and discrete and fixed in a medium.” This is key to these lawsuits, it seems, since the gray area seems to lie in whether the lecture itself is “fixed in a medium.” In Moulton’s case, it just might be. Moulton has published two textbooks based on his lectures and uses them in his classes. In addition, his publisher sells its own version of lecture notes for his classes. So when a student takes notes in a class based on the lecture, although those notes are not a “copy” of the professor’s lecture, they are derivative of the lecture. That is, those notes are a kind of adaptation of the professor’s lecture.

Of course, I’m not a lawyer but this is how I understand the issues in the Moulton case. I think things get murkier when a faculty member has not “published” anything related to his or her lectures, however. Moulton’s lawyer doesn’t seem to think so. He says that if a faculty member were to write out the high points of the lecture on a transparency and display them to the class via overhead projector, that fixes the material in a medium. If a student then bases her lecture notes on that transparency, her notes are a derivative of material that is copyrighted and therefore, is not eligible to be sold without the faculty member’s permission. The lawyer doesn’t say anything about whether material written on the chalkboard is fixed in a medium.

As an academic at a public university, I believe that education should be available as cheaply as possible for as wide an audience as possible. For example, I teach a computer literacy class for free for senior citizens and get enormous pleasure from seeing them learn. I would, however, have a problem if someone took my “lecture notes” from that class and sold them on the Internet without my permission. The material that I teach in that class is basic information, available in a variety of forms from a variety of sources. There’s nothing in the content that could be considered new information. What is original about the class is the way the material is organized and presented. Many of the senior citizens tell me stories about taking beginning computer classes elsewhere and feeling overwhelmed, lost and discouraged. This class, they tell me, is the first time they’ve felt as though they actually could learn to use a computer to send and receive email and to search the Internet. So there is definitely something unique and original about the way I’m presenting the information. Why would I have a problem if this material was made available through a company like Einstein’s Notes? It isn’t because I don’t want the material to be made available. Instead, it’s because I don’t think Einstein’s Notes should make money from my work without getting my permission and without compensating me.

Moulton’s lawyer points out that Einstein’s Notes puts a copyright notice on the lecture notes that they sell. In other words, the company sells the lecture notes but then attempts to prevent those notes from being copied. They are claiming copyright on material that they played no part in creating. In what world does that make sense?

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