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The Age of Steam brouhaha

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jwarrend
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Anyone who isn't already aware of the very public spat between Martin Wallace and John Bohrer can give a cursory glance to the front page threads at BGG and likely find plenty of information to bring himself up to date. The latest chapter in the saga appears to be this: that FRED distribution is publishing Age of Steam, which Wallace designed, without Wallace's consent. Now there are a lot of facts in the story, some of which are known, and some of which are unknown, but I don't believe this one is in dispute, and for the purposes of this discussion, it's the only one that matters. Up front, let me be clear that this is a thread about ethics, NOT about copyright law. This thread is NOT to be used to dissect the legalities of FRED's actions NOR is it to be used cast aspersions on Wallace or Bohrer's behavior. I would like to narrowly confine the discussion to one about ethics.

As designers, we say over and over, "don't worry about theft; no one will ever steal your game, there's no financial incentive for them to do it". Additionally, we (or I, at least), generally believe that anything that smacks of theft will be roundly denounced by the online gaming community and will be shunned. Yet, the current example appears to put this in question. Here we have one of the most successful and well-known designers, having his most well-known and celebrated game being published without his permission. As a designer, I find that troubling. I don't see how it's ever ethically permissible for a publisher to do that. Yes, it may very well be *legally* permissible. But to me, that simply reflects an underlying weakness in intellectual property law, that it doesn't currently apply to games in any useful or robust way. It doesn't follow, for me, that simply because something was legal that therefore FRED is in the clear.

What is more troubling to me is that my belief that the gaming community would not tolerate this kind of thing is not turning out to be true at all. There are just as many posts at BGG on FRED's side of the debate as on Wallace's, and some of them are designers no less! And a thread at BGG announces that the game has sold through its print run. It seems that FRED will take no financial hit for their unethical action. This could just embolden them, and other publishers, to do the same thing. I wasn't planning to buy Age of Steam, but I don't plan to do business with FRED in the future nor will I submit any games that I have designed to them for publication.

I open this thread up for people to talk about the ethics (again, the ETHICS, not the intricate points of copyright law) of this situation.

Katherine
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You have raised a sticky

You have raised a sticky issue with this one! I think "gaming community" needs to be defined when discussing the community's ethics.

In my opinion; any game that is published without the designers permission means that it has broken through the hobby market cocoon, into the mass market arena. Once a game makes that transition there is no control over who chooses to publish or distribute it. The mass market industry is governed by a different set of ethics; protection is very much part of the business plan, and it is pretty well guarenteed that ideas will be stolen, ethics be damned, if a product is selling well.

In the case of FRED distribution & Age of steam there are too many unanswered questions to comment. The site claims to be distributing a line of Eagle Games.

Does the designers of "through the ages" and "brass" feel that their games were stolen?

Is Fred distribution actually publishing Age of Steam?

Did the designer have an agreement with Eagle that allows third party distribution?

Will all of the other designers and publishers listed on the Fred distribution web site withdraw their products because of assumed unethical behaviour?

Is FRED distributions taking advantage of a set of ethics that can not guarentee protection against game theft?

To take protection is a personal desicion, to take advantage of unprotected products is a business decision.

apeloverage
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important question:

jwarrend wrote:
FRED distribution is publishing Age of Steam, which Wallace designed, without Wallace's consent.

How? I can think of two ways this could happen:

i) they've made a 'clone' of Wallace's design, using the rules but not any copyrightable elements like the name.

ii) Wallace sold the rights to someone, who sold it to FRED.

Darkehorse
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Unfortunately

Jeff,

I don't see how you can speak to this issue without talking about the copyright issues. Does FRED not have the legal right to publish Age of Steam? I.E. do they own its Intellectual Property rights?

-Darke

jwarrend
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With games, there is really

With games, there is really no IP to own. I would say that it is almost certainly legal for FRED, or anyone else, to publish whatever game they want, as long as they are intelligent enough to change the terminology, graphics, etc.

My question is an entirely ethical one. Publisher X wants to publish a game that you designed. You don't want them to publish it. Ethically, should they respect your wishes or just go ahead and publish anyway?

gameprinter
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Hmmmm.....

Ethically speaking, if you meet the letter/spirit of the law, how much further do you have to go? I haven't followed the arguement between the two parties closely (LOTS of tempest in teacups over at BGG), but it sounds like FRED has the legal right to print the game, but Wallace does not want them to do so.

While my sympathies are with the designer, the game business is still a business. If FRED has the legal right to publish, then they do not have an ethical obligation higher than the law. While that sucks, it's true. Corporate officers have a fiduciary duty (read: legal obligation) to make the company as profitable as possible. While not publishing Age of Steam probably won't get FRED into legal hot water with shareholders, it points out that there is a legal (and ethical?) obligation on their side to publish a game that they have the rights to if it is profitable to do so.

That said, I'll be Martin Wallace's contracts are worded slightly differently for his next few designs!

MatthewF
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This situation isn't a clear

This situation isn't a clear "FRED is printing the game without the designer's permission" case since defining the designer isn't easy.

If I design the core of a game and bring it to my friend who regularly develops my games to the point of substantially redesigning them, am I the designer? If that same friend who really did a fair bit of the design is also going to publish it and puts my name on it because, in part, my name sells games and his doesn't (with my explicit permission), do I automatically have more claim to it than him?

Don't misunderstand me, I firmly believe that Bohrer acted unethically, but I don't think Martin's case is a clear cut "someone published my game without my permission."

And none of that brings the whole Warfrog + Winsome issue into it, where people were paid for various things, all based upon handshakes.

Because of these complications, I don't think you're seeing the kind one-sided community rallying that you might get in other situations.

Katherine
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Matthew don't you think both

Matthew don't you think both designers have acted unethically? When you start looking at time lines of geek posts it all goes haywire.

2002
Bohrer makes no objection to Wallace being listed as the designer for the first release.

June 2006
Wallace makes no objection to the following statements posted within a download:
Age of Steam is (c) 2002 by John Bohrer.
Age of Steam is a trademark of Winsome Games.

http://boardgamegeek.com/file/info/17499

Nor does Wallace question the Maarten D. de Jong's acknowlegement to "Kevin and John" .

http://www.boardgamegeek.com/thread/81906

October 2006 Bohrer announces a 2008 release date / Wallace retaliates
http://www.boardgamegeek.com/thread/131846

October 2006 - June 2008 both designers use a public forum to sporadically throw insults at each other

July 2008 Wallace files opposition.

2008 - 2009 both designers continue to use a public forum to throw insults at each other.

Is it ethical for either designers to air their dirty washing in public? In my veiw all they have acheived is to publicly announce anyone can make an age of steam game and walk off scott free.

At the moment my version is called "Puffing Billy" and is due for release in 2075 mmm ... I wonder if that name is trademarked.

jwarrend
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MatthewF wrote:This situation

MatthewF wrote:
This situation isn't a clear "FRED is printing the game without the designer's permission" case since defining the designer isn't easy.

But it's this very ambiguity that is so damning to FRED's case. If it isn't clear who "the designer" is, then how can FRED know for certain that they have the permissions that they need to be printing the game?

Quote:
If I design the core of a game and bring it to my friend who regularly develops my games to the point of substantially redesigning them, am I the designer?

Yes. I can't think of any game where a game's developer is considered to retain equal ownership of the game with the original designer.

Nevertheless, your question is a reasonable one. Let's say that you and I jointly design a game. Can one of us make unilateral business decisions about the game without the other's consent? If a company gets one of our permission to publish a game but not the other's, are they in the clear, and can they go ahead with publication?

Quote:

Don't misunderstand me, I firmly believe that Bohrer acted unethically, but I don't think Martin's case is a clear cut "someone published my game without my permission."

I think it's fairly clear that this is exactly what happened; the question is merely whether it was ethical for FRED to have done so. My position above has been that it is always unethical to do that. I should revise that with the following caveat. If there is a signed piece of paper upon which Wallace explicitly relinquishes rights to the game and transfers them to FRED, or to someone else who then transfered the rights to FRED, then FRED publishing without Wallace's consent is rude and inconsiderate but not unethical. Insofar as there doesn't appear to be any such piece of paper in existence, their conduct is unethical.

I will be interested to see where SAZ comes down on this whole matter. They are usually pretty pro-designer and work to prevent designers from getting shafted. It will be interesting to see if they take a side on this one. It is a pretty live wire so they might not want to pick it up.

apeloverage
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Darkehorse wrote:Jeff, I

Darkehorse wrote:
Jeff,

I don't see how you can speak to this issue without talking about the copyright issues. Does FRED not have the legal right to publish Age of Steam? I.E. do they own its Intellectual Property rights?

-Darke

Without answering this question, or plainly setting out what actually happened, this thread is basically piss and wind in my opinion.

jwarrend
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Your opinion is duly noted.

Your opinion is duly noted. Thanks for providing it.

Katherine
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It is only p&w because there

It is only p&w because there is too much focus on the Wallace v. Bohrer issue.

I think jwarrend raised some valid concerns for designers in general. For example, I have asked permission to use someone else's game concept to work with.

There is no formally written agreement between myself and the original designer, both of us are relying on ethics to see the right thing is done. However it does raise the question ...

If this game were to get published, who owns it? Ethically I would give the designer every acknowlegement - from a business sense I would use something else rather than end up in a legal wrangle.

Business advisers are telling me to just call for submissions when the time comes, and rely on that "clause" to do whatever I want, with or without, the designer's permission. There are no ethics in this practice but it is perfectly legal.

apeloverage
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jwarrend wrote:Your opinion

jwarrend wrote:
Your opinion is duly noted. Thanks for providing it.

And you might think "what an ignorant and uninformed opinion." But if everyone refuses to set out what actually happened, but argues about it as if everyone already knows, then they're effectively inviting exactly that.

InvisibleJon
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But what do *you* feel is right, and what would you do?

shazzaz wrote:
Business advisers are telling me to just call for submissions when the time comes, and rely on that "clause" to do whatever I want, with or without, the designer's permission. There are no ethics in this practice but it is perfectly legal.
This brings up two important questions:

1) What do you want to do in that situation?

2) What do you feel is the right thing to do in that situation?

And some assorted, semi-related thoughts...

Abiding by the letter of the law while ignoring the intent of the law is unethical. Behavior like this leads to breakdowns within the affected industry and ever-more restrictive laws. See also: Enron >>> Sarbanes-Oxley.

Business advisors who recommend using the waiver as a pay-what-you-will, all-you-can-eat idea buffet are not familiar with the game industry. I also believe their recommendation would eventually lead to significant difficulty in getting high-quality submissions in the future, and a significant ethical burden. Using the legal protections provided by the, "I won't sue you if you come out with something similar," waiver to use part, most, or all of a designer's submission without crediting or compensating that designer is dishonest, disingenuous, and wrong. The intent of the waiver is to protect the publisher from lawsuits from designers if the publisher is already working on a similar project. It is not for the publisher to get free work and ideas. To use it for that purpose betrays the social contract between the designers and the publishers. I know that if I strongly felt that one or more of my ideas were "poached" by a publisher, I'd present the facts (in a reasonable, non-hysterical way) to the folks here on the BGDF. If other BGDF members then mirrored and/or corroborated my experience, that publisher would get a less-than-savory reputation among game designers. This would lead to a reduction in submissions, leading to a reduction in publishable material. "Poaching" submitted ideas may lead to short-term benefits, and could even work for a while if done carefully, but ultimately it is likely to lead to problems. On top of that, it's theft - pure and simple - even if it is never caught. Claiming someone else's work as your own and profiting from it is an ethical burden that I wouldn't want to carry, regardless of the money attached to it.

That which is legal is not always right.

Given my very, very limited knowledge of the BGG thread that started this BGDF thread, I think very little (if anything) I wrote above has anything to do with what's going on at BGG. I'm just sad that there's an issue at all, but that's business, right? Sometimes people make decisions that are unethical, but justify them because their actions are legal, or because they were advised to take those actions, or because other people are taking those same actions, and business goes bad. Ultimately, we make our own choices, and we live our own lives. The only people we can truly control are ourselves. We are responsible for our own actions.

Me? I choose to believe the best of people, but I exercise caution. I follow a path that I feel is ethical and fair and do what I can to treat others with equity and respect. When I'm hurt, I withdraw. But what I choose to do isn't nearly as relevant you – the reader. If confronted with a moral dilemma, what do you feel is right, and what would you do?

That's the important question.

Katherine
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As the reader? I think it

As the reader?

I think it is fairly evident from this thread what I would do - try to get to the bottom of it before passing judgement.

I strongly beleive that ownership (of anything) lies with the person who developes the idea to a usable state.

The example jwarrend gave to start an ethical discussion may not have been the best. As a reader all I am seeing is two grown men sqabbling in public over a favoured toy. Through the public posting of that very grey argument, I now have a greater understanding of why most publishers choose to use in house designers.

MatthewF
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shazzaz wrote:Through the

shazzaz wrote:
Through the public posting of that very grey argument, I now have a greater understanding of why most publishers choose to use in house designers.

This simply isn't true. Most publishers in the hobby game field, which is where all of this takes place, rely on 3rd-party designers. More than 90% of non self-published board games in this market are designed outside the company.

And apeloverage, seriously, your opinion is duly noted. You need not restate it. In fact, please do not. Telling the people that are discussing this issue here that they're full of crap and can't discuss it once is rude, no matter how certain you are of your opinion. Twice is much more than rude.

Darkehorse
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MatthewF wrote: And

MatthewF wrote:

And apeloverage, seriously, your opinion is duly noted. You need not restate it. In fact, please do not. Telling the people that are discussing this issue here that they're full of crap and can't discuss it once is rude, no matter how certain you are of your opinion. Twice is much more than rude.

Matthew,

To his credit, I think he realized the way he stated it the first time was less than ideal, which is why he restated it in a more concise, less colloquial way. I think his point, whether right or not, is valid.

Lucas.Castro
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Also...

Also, I don't think that apeloverage was saying that this discussion is ignorant. I understood him to mean that we should know the facts, rather than to continue to have this discussion as if we know the facts, but when we (most of us) really do not.

I think that, so long as we are talking about this case specifically, he has a point. If we were talking in generic terms (designer A, and publisher B, etc), then this would be a non-issue. But even then, the discussion would improve in significance if someone who knows about property law let us know of relevant facts.

sedjtroll
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Hopefully not missing the point

I believe Jeff's point is that IRRESPECTIVE of the facts in this case (or any relevant facts in any case) - IS IT ETHICAL for a company to publish a game without the designer's permission EVEN IF it is legal to do so?

We tell ourselves and each other that NDA's, patents, copyrights, etc aren't really necessary because noone will publish your idea without permission. Zev from Z-man backs this up in the interviews in his e-zine. We say it's simply not worth it for a preputable publisher to steal an idea and claim it as their own.

2 things...
First, the case in question isn't one of theft - I don't believe FRED distribution is saying they designed Age of Steam. However perhaps publishing without permission is close enough to claiming credit that it's effectively the same thing.

Second, The big, scary issue that Jeff's bringing up is that perhaps we've been deluding ourselves... perhaps it IS worth protecting yourself against someone publishing your game without permission, when we all thought it was safe not to worry about it.

So you see, I don't think it has very much to do with the particulars of Age of Steam, but the generalities of what could happen vs what we thought would never happen.

Lucas.Castro
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What About Publicity?

I certainly agree that if we are talking in general terms, then the facts of this case are irrelevant. However, this case (and its facts) can be studied in order to make a valid argument for similar cases.

For instance, you said, "I don't believe FRED distribution is saying they designed Age of Steam." It would be useful to know the truth behind this sentence, because there are all kinds of other matters linked to it. If FRED distributes the game with art that states in a clear manner that the game was designed by Wallace (e.g., "Martin Wallace's Age of Steam"), then he is at the very least gaining free publicity. Heck, I had only heard of the game in passing until now (although I own Railroad Tycoon).

Also, why would a designer pass up on publication? And if Wallace passed up publication, were there royalties offered? For all I know, he could be getting recognition, publicity, and royalties from FRED, if he had agreed to publication. That is why the facts matter in terms of using this instance as a case study for a broader range of cases and for a state-of-the-industry analysis.

Another complication in this particular case is that the game was already well known before FRED decided to publish it. Wallace has already made a pretty penny from it (I imagine, but once again that is just conjecture at this point), and has already gain recognition from it.

If I made a game and someone agree to publish it, offered me no royalties but agreed to give me all due recognition (in the most obvious way possible, such as on the box art and in all marketing material), I would be quite happy. This would be the second best option behind getting these benefits plus royalties. So long as this was not my pet project ("my baby") I would actually be quite happy. Would you guys not be happy as well?

Depending on the specifics of this case, I feel that it would not threaten the communities feeling that IP protection is superfluous at all, because recognition and publicity can be almost as good for an unpublished game author as money (possibly better).

jwarrend
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But Lucas, here's the problem

But Lucas, here's the problem with that line of reasoning. Let's say you are a publisher and I have designed a game. Let's say you decide to publish the game without asking my permission first. But, you put my name on the box, you give me credit for designing the game, and you offer to pay me royalties. Would I object to that? Yes, absolutely -- because *it wasn't your call to make*. A company can't unilateraly decide to use someone else's work even if they make a good faith attempt to compensate the person after the fact. To me, that's the equivalent of saying "I took your car to joyride for a few hours but I filled the gas tank, so everything is cool, right?" It's the same reason why it's not ok to make a bootleg recording of your favorite band's concert and then sell it on the internet, even if you offer the band a cut of the money after the fact. If the band grants permission for this, then it's fine, but you need their permission for it to be ok to use their work. Games are the same way.

Again, I am speaking ethically, not necessarily legally. Seth has basically summarized my position correctly. The two safeguards we tell ourselves are in place are "no publisher would ever steal my design" and "even if a publisher did steal my design, the community would rally around me and make it unprofitable for them to do so." I am worried that this situation turns both of those on their head.

I don't think this necessarily means we need to go the hyper secretive route, refuse to talk to anyone about our games without an NDA, etc. I do think it is a good cautionary tale about doing business on a handshake. I also think the question I posed to Matthew is genuinely interesting -- if two people co-design a game, who gets to make decisions about publication? Is both of their consent required for a decision?

Lucas.Castro
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Two Sides to this Story (and I Know Neither of Them)

I have to agree, Jwarrend, that in the situation you mentioned the publisher would be acting unethically.

This is why I think having some more facts and details about this case would be helpful. It would probably be difficult/impossible for any designer to side with FRED in this case. However, there may be a grey zone where the actions of neither side were very sensible.

Suppose, for instance, that FRED approached Wallace with a sound business case. For some reason or another (maybe the release of a video game with a similar theme) there will be a significant market for this game in the near future, more so than usual and more so than the current publisher(s) can manage. They say they want to publish the game, credit the designer, and give him fair royalties. But Wallace says that he has always worked with only that one publisher and would rather be loyal to him.

Thus, even though FRED could publish the game anyhow, and even though there is no sensible reason why Wallace should object, he does anyhow. From a designer's point of view publishing the game with permission is still unethical, but FRED is a business, and to stay in business publishers must make sound business decisions. There was nothing unethical about the proposal (in this example).

In fact, in this example I would argue that it could be considered unethical for Wallace to refuse the deal; he designed the game presumably for publication; FRED is a publisher who is making a very fair offer; Wallace refuses to do business with FRED anyhow. It virtually amounts to discrimination.
_______________

Now, obviously I am playing devil's advocate here, and making a number of assumptions that are quite possibly false. But the point I am trying to make is that I think there could be circumstances under which this case should neither be damning for FRED, nor be alarming to the designer community. I would actually really like to know whether these circumstances are true in this case, or not.

This situation just feels incredibly messed up for me right now. As a designer, I would love to get published; Wallace, a fellow designer, may have refused a perfectly fair offer from a publisher; the publisher then publishes the game anyhow. It just feels wrong all around to me.

apeloverage
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what apeloverage means is...

Lucas.Castro wrote:
Also, I don't think that apeloverage was saying that this discussion is ignorant. I understood him to mean that we should know the facts, rather than to continue to have this discussion as if we know the facts, but when we (most of us) really do not.

I don't know what happened. Therefore I can't have an opinion about it.

The only way I'm going to know what happened, and be able to have an informed opinion, is if someone tells me.

Anything else - any argument, any discussion on ethics, any discussion on what this means for designers and publishers or the implications for copyright or patent law, is going to have zero effect on the fact that I don't know what happened and therefore can't have an informed opinion on it.

That's all I'm saying. Tell me what happened. Or really, tell *us* what happened, since many or most people seem to be in the same position as me.

clearclaw
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You may also note that Martin

You may also note that Martin Wallace was listed as the designer of Pampas Railroads for many years, a game which John Bohrer, not Martin, designed. Why? Per John's statement he listed Martin as the designer in order to help Martin out in his new fledged career as a designer. Their relationship was clearly both unusually supportive and friendly.

clearclaw
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jwarrend wrote:Up front, let

jwarrend wrote:
Up front, let me be clear that this is a thread about ethics, NOT about copyright law. This thread is NOT to be used to dissect the legalities of FRED's actions NOR is it to be used cast aspersions on Wallace or Bohrer's behavior. I would like to narrowly confine the discussion to one about ethics.

Unfortunately the conversation can't be that narrow. I'll give an example from my life.

Way back when I wrote an article about certain seedy aspects of London. I sold that article to a small agency for publication. Because I was young, naive and more than a little stupid, I didn't read the contract carefully. I sold all rights to the article to the agency for which I received the grand sum of well under 100 pounds. Subsequently that agency sold the article to several magazines in England as well as a few more in Europe and even the USA. I was of course never asked about all this as I had no more rights to the article; they owned it lock stock and barrel so they merrily sold it to various venues and had a great time of it. I guess I could have objected if I'd wanted to, some of the journals they sold it too were rather questionable, but I had no real grounds to complain: they controlled all the rights to the article and I was out of the picture. What could I really say? "Uhh, you know that article I sold you which not belongs entirely to you? Uhh, I don't want you to publish it in that magazine...!" How could I honestly try and tell them how to use or not use something they now owned and which wasn't mine any more?

Was this unethical on their part? Not really. It was a standard contract that transferred the copyright to them. They gave me plenty of time read and review the contract. I didn't do due diligence. So they got the article, I was out of the picture, they published in a variety of places I really didn't like and I had no grounds for complaint. If you give something to somebody, it is now their's. You have no basis to tell them what they can or can't now do with what is now their own property.

The point of this parable is that the rightness and wrongness of requiring designer permission or publishing a product against the designers wishes isn't quite so simple as you are suggesting. There's more to it. If I successfully made a stink about them selling my article to a particular magazine and they backed down, wouldn't I really be trying to retroactively rewrite the contract I'd signed with them that gave them full ownership of my article? How is that right? They bought full ownership to my article and paid good money for it -- why should I just be able to say, "No, sorry, didn't mean to do that! I'm taking it back now!"? Wouldn't that be deceptive and even double-dealing on my part?

A lot of ethics comes down to the understandings which exist between people. Sometimes those understandings are codified into written contracts, sometimes they're just assumed and generously arm-waved at, but they're always questions of how people understand the agreements and obligations they have with other people. You can't validly enquire into the ethics of a question if you also insist that nobody look into the actual agreements which govern the question.

Now, backing up a bit, I am in no way suggesting that Martin transferred full ownership of Age of Steam to John, that Age of Steam was a work-for-hire (a technical copyright term), or any of those broad assumptions. What I am suggesting is that the situation and the ownership of a game design is considerably more complex and far more nuanced than the simple "He designed it! He controls everything!" I don't know where the line sits between Martin and John. There don't seem to be any written contracts. Both feel they have some rights of ownership and copyright.

jwarrend
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Lucas.Castro wrote: In fact,

Lucas.Castro wrote:

In fact, in this example I would argue that it could be considered unethical for Wallace to refuse the deal; he designed the game presumably for publication; FRED is a publisher who is making a very fair offer; Wallace refuses to do business with FRED anyhow. It virtually amounts to discrimination.

I don't think that it does. The question revolves around who gets to make the decision. A designer is not obliged to accept an offer just because it is reasonable, any more than a writer is obliged to let Publisher A publish his book just because they dangle a juicy offer in front of them. The author may have perfectly good reasons for declining such an offer. Or, he may have no reason whatsoever, he may just lack the business savvy to recognize a great offer that has just come his way. It doesn't matter. It's still his creation, and he can do what he wants with it. There's no rule that says he has to publish it with anyone, if he doesn't wish to.

Quote:
Now, obviously I am playing devil's advocate here, and making a number of assumptions that are quite possibly false. But the point I am trying to make is that I think there could be circumstances under which this case should neither be damning for FRED, nor be alarming to the designer community. I would actually really like to know whether these circumstances are true in this case, or not.

In my opinion, the only such circumstance is if Wallace explicitly transferred ownership of the rights to publish the game to FRED, or to someone else.

I appreciate your continuing the discussion.

jwarrend
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clearclaw wrote: Now, backing

clearclaw wrote:

Now, backing up a bit, I am in no way suggesting that Martin transferred full ownership of Age of Steam to John, that Age of Steam was a work-for-hire (a technical copyright term), or any of those broad assumptions. What I am suggesting is that the situation and the ownership of a game design is considerably more complex and far more nuanced than the simple "He designed it! He controls everything!" I don't know where the line sits between Martin and John. There don't seem to be any written contracts. Both feel they have some rights of ownership and copyright.

I think your analysis is spot on and the example you gave is a good one. I fully agree; if Wallace had transferred the rights to the game to someone else, then he relinquishes the right to make controlling decisions about the game. But I don't think anyone is alleging that this actually happened in this case, at least not that I'm aware. And absent that, I think he retains the right to make controlling decisions about the game.

Lucas.Castro
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Legality and Morality

I agree with you Jwarrend, in that the choice rests with the designer, so long as the rights rest with the designer. But that is why it is so hard to say "let us keep the legal side out of this." You cannot; they are intertwined.

To me, I cannot see how FRED could be publishing the game if it does not have the rights to publish it (which does not have to mean that it has the full IP rights to the game), because that would be illegal. If FRED is doing something that is easily seen to be illegal, then this should be public knowledge by now, and their reputation should be ruined.

Since Wallace seems to be making no legal objection to FRED publishing the game, then I imagine that FRED does have those rights. If this is the case, then there is nothing unethical about FRED publishing a game for which they have acquired publication rights, regardless of what the original designer might like.

The only threat I think there might be to the designer community is that we may be too trusting in some relationships. We should read any contracts fully before signing. We should have written agreements when co-designing a game with other designers. We should not take everything on faith.

But I still hold that we need not be paranoid from now on; only business-savvy.

MatthewF
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Lucas.Castro wrote:If FRED is

Lucas.Castro wrote:
If FRED is doing something that is easily seen to be illegal, then this should be public knowledge by now, and their reputation should be ruined.

Since Wallace seems to be making no legal objection to FRED publishing the game, then I imagine that FRED does have those rights. If this is the case, then there is nothing unethical about FRED publishing a game for which they have acquired publication rights, regardless of what the original designer might like.


Wallace is indeed suing FRED over the only thing he can easily win: copyright of a portion of the cover image (the nameplate). A broader lawsuit is untenable for at least one reason, that the other side has copious free/cheap legal support. A similar situation, it might be worth noting, would be true if someone like Hasbro stole your game, as they have a small army of staff lawyers.

Lucas.Castro
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Legally Abusing Financial Stability

And here we see why facts are helpful ;-)

I certainly have no idea what the realities of being able or unable to afford legal service are. But I would consider theft by virtue of having superior legal service (or a budget for it) to be nothing short of sleazy.

If this is the type of situation we are dealing with, then indeed I see serious cause for concern, and would love to hear the advice of someone who knows IP law on how we can protect ourselves.

To say that it is unethical to steal from a designer because he/she cannot afford legal service is a massive understatement, in my opinion.

Call me naive, but it seems to me that if you know that you have a lock on the copyright, you should be able to get any and all costs for legal counsel reimbursed by the defendant (when you win). Should a judge not see it as a company blatantly trying to screw over the little-guy (because said company has absolutely no claim on the IP or publishing rights, and only tried to steal the design because it thought that the designer could not afford legal counsel)?

clearclaw
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jwarrend wrote:In my opinion,

jwarrend wrote:
In my opinion, the only such circumstance is if Wallace explicitly transferred ownership of the rights to publish the game to FRED, or to someone else.

This is one of the cores of the problem. Winsome says that they have the rights to publish Age of Steam and to license others to publish Age of Steam. Martin says they don't. There's almost nothing in writing. What little there is in writing are not legal documents and are often contradictory. It just isn't clear.

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