The GeeksverseLeaving Proof 120 | Stop Playing with Our Toys! (On Memes, Hasbro, and IP Hoarding)

Leaving Proof 120 | Stop Playing with Our Toys! (On Memes, Hasbro, and IP Hoarding)
Published on Wednesday, May 23, 2012 by

Information that isn’t moving ceases to exist as anything but potential… at least until it is allowed to move again. For this reason, the practice of information hoarding, common in bureaucracies, is an especially wrong-headed artifact of physically-based value systems.

John Perry Barlow

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A little over a week ago, G.I.Joe fan site GeneralsJoes.com posted an audio interview with “Lord Skiff” (a.k.a. “Range Viper”), the G.I.Joe fan-turned-amateur-video-game-developer behind the unlicensed, free, fan project PC game G.I.Joe: Attack on Cobra Island. The interview touches briefly on the C&D (cease-and-desist) letter Lord Skiff received from Hasbro regarding his project, as well as Hasbro’s successful attempts to enjoin video-hosting site Youtube and file-hosting site Mediafire to remove material related to the game from their servers.

Hasbro is well within its rights to take an overtly litigious stance with regards to the unauthorized public use of its intellectual properties, of course, even when the use is for fairly innocuous, non-profit, fan-funded creative endeavours like G.I.Joe: Attack on Cobra Island. Not only that, as we’ve discussed previously in February’s breakdown of Gary Friedrich Enterprises v. Marvel Enterprises, the Lanham Act “places an affirmative duty upon a licensor of a registered trademark to take reasonable measures to detect and prevent misleading uses of his mark by his licensees or suffer cancellation of his federal registration”. Hasbro is practically obligated by law to pursue an aggressive line when it comes to policing the use of its registered marks and intellectual properties.

In treating G.I.Joe: Attack on Cobra Island‘s Lord Skiff pretty much in the same way it would a counterfeit toy manufacturer, Hasbro is doing the right thing, as far as protecting its federal registrations is concerned.

But is it the smart thing to do?

Twenty years ago, Grateful Dead lyricist and Electronic Frontier Foundation co-founder John Perry Barlow noted in his landmark essay The Economy of Ideas: Selling Wine Without Bottles on the Global Net that (emphasis added)

With physical goods, there is a direct correlation between scarcity and value. Gold is more valuable than wheat, even though you can’t eat it. While this is not always the case, the situation with information is usually precisely the reverse. Most soft goods increase in value as they become more common. Familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away.

While this has not always worked with shareware, it could be argued that there is a connection between the extent to which commercial software is pirated and the amount that gets sold. Broadly pirated software, such as Lotus 1-2-3or WordPerfect, becomes a standard and benefits from Law of Increasing Returns based on familiarity.

Barlow’s argument might strike many as overly reductive, but the soundness of his core contention has been born out time and again in recent years. Lord of the Rings Online MMO developer Turbine has found success in “giving away” its IP to an extent, doubling its revenues since the company made the decision in 2010 to switch the game from a paid subscription model to an F2P (“free-to-play”) model that charges players for optional, additional game content. The revenue generated by free, third party ad-supported smartphone games (like the free version of Rovio’s Angry Birds) is estimated at between $1 million to $6 million a month and that number is expected to more than double by 2014.

It has been suggested that the relative ease with which the Playstation’s games could be pirated contributed to its popularity

Consumer familiarity has driven many recent and current market trends, standards, and paradigms not just in commercial software, but in the New Media intersection of software, hardware, and entertainment as well. The low cost and ease with which CD-based games could be copied illegally and distributed have often been cited as important factors in explaining how Sony, a first-time video game console manufacturer when it released the original Playstation console in 1994, was able to displace Nintendo at the top of the industry heading into the new millennium. Nintendo’s insistence on a medium-based anti-piracy security chip and total control over the content of the games (even ones made by third-party developers) for its fifth-generation console led to an unwieldy, expensive, cartridge-based solution whose extended incubation time and heightened production cost contributed significantly to the Nintendo 64’s late entry in 1996 to a hardware market that by then was already dominated by Sony.

Nintendo’s emphasis on content control and media-based authentication/security features may have resulted in a (subjectively) higher level of overall game quality and less illicit trade in counterfeit Nintendo 64 cartridges, but Sony’s Playstation had a two-year headstart at retail and its CD-based games were cheaper (to make, stock, and buy), easier to find (in both legitimate and pirated form), and there were just plain more of them (the Playstation library consists of 2,418 games, compared to the Nintendo 64’s 387)—attributes that helped the original Playstation become the first dedicated “home computer entertainment system” to break the 100 million unit sales barrier and set up its successor’s dominance of the international sixth-generation console landscape (funnily enough, Sony itself would repeat many of Nintendo’s lapses in judgment with the Nintendo 64 in their development of the Playstation 3, allowing Microsoft to score a not insignificant industry coup with the XBox360).

Penny Arcade has an estimated 3.5 million readers.

These events in the world of video games have their parallels in comics as well. Large publishers’ pursuit of a proprietary digital comics format and a business model that would let them recreate the direct market conditions they enjoy in the declining world of physical print has allowed advertising and merchandising revenue-supported free webcomics like Penny Arcade and xkcd to become the dominant sequential art form of the Information Age, even as traditional publishers’ vast library of idle material—things like less-popular characters and out-of-print stories that should be valuable currency in the new Economy of Ideas—depreciate in terms of popular culture and entertainment relevance.

In Hasbro’s case, the inability to separate intellectual property from their expression in physical goods is even more pronounced, although this is perhaps to be expected given that they are first and foremost a toy company. Still, the fact that they are primarily in the “widget-and-gewgaw” business and not in the “ideas” business should not excuse the myopia that characterizes how they’ve handled fans’ unlicensed appropriation of their G.I. Joe IPs on the Internet now and in the past.

Before Hasbro relaunched the G.I. Joe brand with their 25th Anniversary toyline in 2007, the company’s “movable fighting man” was languishing in the fringes of popular toy culture and entertainment and had been for several years. Hasbro had tried different attempts at reinventing the line with varying degrees of success, but none came close to achieving the kind of international popularity that G.I. Joe had in the 1980s. In 2003, filmmaker Eric Fensler started making what are now popularly known as the “Pork Chop Sandwiches” G.I. Joe parodies, taking the PSA (public service announcement) segments from the 1980s G.I. Joe cartoon and dubbing all manner of humourous, non-sensical dialogue over them.

All 25 of Fensler’s Quicktime format video segments were posted on Ebaumsworld and quickly spread in popularity, racking up millions of hits over several months. In 2004, Hasbro sent C&D letters to Fensler and Ebaumsworld alleging trademark infringement and the videos were quickly taken down but by then, copies of the videos were already being shared on other sites. The original Pork Chop Sandwiches PSA parody was one of the first videos to gain “meme” status on Youtube (a user uploaded the video within weeks of Youtube’s public launch in late 2005) and has spawned various derivations and imitations. All in all, the Fensler G.I. Joe parodies and their derivatives, on Ebaumsworld, Youtube, and various other sites, have garnered tens of millions of views, and have been as successful (if not more successful) in keeping the G.I. Joe IP in the public cyberspace consciousness and in exposing new audiences to the G.I. Joe brand than anything Hasbro has done with its recent forays in Hasbro-branded media (the success of which can be charitably described as “mixed”).

The lesson Hasbro should have taken from the Fensler parodies is that when an IP is in limited public circulation, it isn’t selling anything, it isn’t building familiarity, and it has no value except as potential. But when that IP is let loose in the wild and it finds traction, when it is allowed to evolve in response to the pressures of the the public ecosystem of ideas, then that IP can start fulfilling its potential, sometimes in ways that it wasn’t originally intended to, and the foundation for a new model for monetization can be laid down.

This isn’t just New Age business nonsense. Canonical, Ltd., the private company that sponsors the free, open-source Ubuntu Linux distribution, was on the verge of profitability in 2009 with an estimated revenue of $30 million and if projections held true, should be profitable now. Heck, it took him a few years, but even Chuck Norris has finally figured out that he can cash in on all the jokes made at his personal brand’s expense these past several years.

Hasbro threatening litigation against creative fans like Lord Skiff and Eric Fensler while the company itself struggles with generating timely interest in its properties in the public sphere is, to paraphrase Barlow, the equivalent of the captain of a sinking ship warning passengers that if the ship goes down, they’ll face criminal charges. The only real defense against trademark infringement is for the trademark owner and its licensees to do things faster, better, smarter, and cheaper than the guys doing the infringing, not the ridiculous and ultimately self-defeating act of IP hoarding.

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3 Responses
    • Barlow’s idea is reductive but I don’t find that problematic. While I understand why a company needs to protect its property, the Web 2.0+ model seems to want to jam together properties without regard to ownership. That is problematic for the owners, yet it also helps advertise freely.  Barlow’s stance seems built on the adage, “there is no bad press.” In this case, “there is no bad exposure.” However, from a property rights stand point deluding a brand is problematic. At least that is my take from your excerpt. I haven’t read the entire piece, but I’ll take your word for it.

      “Fan Projects” are becoming an interesting new frontier for brand exploration or exploitation depending on how you view it. The toy company’s crack down on non-licensed bots at a recent convention plans also seems to discriminate against fan project customs as well as boot legs.

      • Barlow’s stance goes beyond “there is no such thing as bad exposure” when it comes to ideas and IPs… to him, it isn’t enough that somebody invent or create and something. If the originator doesn’t do anything with it (if they don’t “act on their ideas”) or if they let the idea or invention stagnate or they mishandle it, they can’t really cry foul if someone else builds on their ideas and finds success with it for themselves.

        It is a problematic perspective from an IP/mark ownership standpoint, but to Barlow, this is how the evolution of ideas and progress have always worked in the past, and the IP/idea ownership era (that he contends started soon after the invention of movable type) is the historical exception. The bottom line to his argument is that fencing in ideas behind the construct of IP ownership and zealous persecution of copyright infringers retards cultural and technological progress (although he isn’t against protecting the ownership of expressions of ideas, i.e., products and services). It’s a philosophy that’s been described as everything from “anarcho-capitalist” to “DotCommunism”. 

        •  One phrase: Angry Birds!

          Angry Birds started as a free download that now has t-shirts, toys, and other merchandise that should be making real money for the producers that once gave it away.

          Was Duke Nukem shareware originally? I can’t recall. He was on my computer as a youngster, a computer loaded with a plethora of shareware.

          Barlow’s idea of IP/ownership era beginning after movable type is probably historically accurate. Copyright laws began in England contemporary to Wordsworth being poet laureate. Those laws had no teeth. American law makers tried the concept in earnest.  Other countries have been following suit since.

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