The Age of Steam brouhaha

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.

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

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!

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.

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

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.

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.

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.

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.

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).

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.

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.

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.

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)?