The Unethics of Copyright
Before I dive into this subject, know that I am not a lawyer and this article is not legal advice. This article is about critiquing the reasoning behind copyright. I decided to write about this topic because I have seen news of let's plays and fan projects being targeted for copyright takedowns and there are always people in comments sections defending such takedowns as right because developers should be allowed to do what they want with their intellectual property. When deciding if something is right or wrong, you must identify the actual harm being inflicted compared to the good produced and you have to consider alternative solutions to the inherent problem.
Purpose of copyright
According to the United States Constitution, the purpose of copyright is to promote the creation of artistic works by giving creators exclusive rights on the use and distribution of their work. The theory is that without copyright, people looking to make easy money can just copy and sell other people's work while undercutting official channels' prices to steal market share and push creators out of business because it is much harder and more expensive to create than it is to copy. By giving creators a monopoly over their work, it will ensure that everyone who buys the work supports the creator enough to recoup development costs to make original creation financially viable. Since creators can create with peace of mind, it leads to more stuff being created, which makes society better off.
However, giving creators too much control can prevent uses that expand public knowledge, which goes against the goal of maximizing social welfare. Creators are not automatically humble people and can overreach their authority to the detriment of society. Fair use was established to give people leeway for using original works in limited ways that don't supersede the original. Some concepts could be used in a completely different context and satisfy different demographics, providing more variety. Criticism exists to inform people of the quality of a work to avoid disappointment and rewarding mediocrity. Some works effectively demonstrate a real-life concept and are useful for educating people so they have the inspiration to become new creators.
Corruption of purpose
The problem with current copyright law is that it is detached from its original intent because it treats knowledge like physical property to be owned. With copyright durations extending well past a creator's life and rightsholders having exclusive rights to produce derivative works, copyright is less about promoting creative innovation and more about promoting complacency. Disney is at the centre of copyright lobbying in the US, but despite having made billions, they demanded more protection for reasons. Walt Disney was able to be betrayed by his publisher because of the concept of exclusive rights signed away by contract, so increasing copyright power only exacerbates the very thing that made Disney so obsessed with copyright in the first place.
Vague value judgments
The problem with copyright as a concept is that you cannot have clear-cut boundaries that doesn't also shut down useful uses of works. This is because ideas can be replicated, divided, reshaped, and repurposed in any number of ways. Copyright may seem simple when talking about straight-up copying and pasting, but it becomes complex when you apply copyright to individual parts, consider the context of usage, and account for externalities of infringing actions. Also, the distinction between concepts and specific expressions creates a double standard where certain "products of your mind" are protected, but not others. For example, people can copy a new game genre you invented, but not your iconic characters. Is an iconic character somehow more important or harder to make than original gameplay mechanics? Or what about telling the same story with different names and setting? What value is in the specific combination of words used that makes it worth protecting and not the path of logic or the themes being communicated? Even then, specific expressions can be utilized as a concept in itself. In the Mickey Mouse article I linked to above, the Air Pirates produced comics satirizing Mickey Mouse, but they were successfully shut down by Disney because they did it too much, which neuters the idea of transformative use and allows copyright holders to basically monopolize concepts involving their specific expressions.
The cynical nature of copyright means people will use it for cynical reasons. Copyright allows rightsholders to start lengthy legal processes that incur expensive fees on innocent people or use the threat of lawsuits to extort settlements out of people. There is case after case of takedown abuse, which shows just how misunderstood copyright is. The hysteria over piracy has also led to counter-productive business practices. YouTube implemented its draconian Content ID system that enabled false claims. Developers implemented restrictive DRM schemes that punished legitimate customers even though they get cracked time and time again. You can also make a game with an always-online requirement, then shut down the servers with no obligation to reimburse the players while preventing anyone else from resurrecting the servers, resulting in games being lost forever and the value destroyed. Copyright is built on the assumption that creators are strictly motivated by profit and that the business of creative works is so fragile and beyond their control that it needs to be uniquely protected over other businesses.
The term, "intellectual property", is a misnomer. Property is simply a way to allocate limited, mutually exclusive resources. There isn't enough resources for everyone by nature, so property guarantees that someone who receives something is able to use it instead of it being suddenly taken away and used by someone else. However, copying does not "take" a work in the same way you take a physical object. You reading this article is not taking the ideas out of my mind and putting it into yours. When someone else uses your ideas, you are not denied usage of them for yourself in the way theft does for physical goods. Copying is quite literally creating something from nothing; the creator doesn't lose inventory when it happens. There is no scarcity of copies, so there is no reason to apply property rights to them.
Requiring third-party creators to pay royalties to use copyrighted assets is about getting people to pay the original creator for the same work over and over without any additional effort on the original creator's part. If a developer made a game out of their own assets, they should have already recouped the cost of creating those assets from selling their game. If they put their assets up for licensed use or even make a new game using those assets, they are basically selling their work again and consumers ultimately pay for it even if they already paid for and experienced the original game. The fact that the developer maintains property rights on their assets regardless of how many times they sell them means they are counterfeiting their assets and generating revenue from nothing. Since it costs nothing to produce a digital copy, they are selling units at a 100% profit margin and they still have the option to sell the rights to make even more money. Game development is a fixed cost business; each unit sold does not have its own cost to recoup. Once the fixed costs have been recouped, there is nothing stopping you from just giving away copies for free. Therefore, copyright enables double-dipping.
The idea that copyright should last for two lifetimes just reeks of rent-seeking. It's as if creation is some kind of self-sacrificial ritual that leaves you permanently crippled, requiring lifetime compensation for it to be worth it. No, it also contaminates your genes, which causes your children to become crippled for life as well. In this day and age when games can become successful in a matter of weeks, there is no need for copyright durations longer than one or two years at most. A long copyright duration insinuates that creators will only ever produce one work in their entire life, expect that work to carry them to the grave, and have that work be inherited by their children to keep it going, even though their children have nothing to do with anything and could end up sitting on the rights and collecting royalties for nothing. If you want to continue making money as a creator, create more works because when you do, that's a new copyright, so you don't need long durations as long as you stay productive. Thus, copyright promotes laziness, or at the very least, inefficiency.
Pricing and competition
We allow, even enforce free competition in every other industry because it is the simplest way to discourage price gouging and make products accessible to more people. However, copyright enforces monopolistic competition, which limits the effect competition has on regulating prices and results in sub-optimal market conditions for consumers. Consumers have to settle for imperfect substitutes, so there is an opportunity cost incurred for not getting their first choice. Imagine a sushi restaurant opens in a city that didn't have one and then the restaurant gets a lifetime exclusive right to make sushi because competitors would undermine their incentive to provide something the city hasn't seen before. If you don't like it, go eat a hamburger since there is no monopoly on the concept of meat on top of grain. Because this is not socially optimal, it should not be allowed to persist over the long term. Once a work has succeeded, the undercutting theory loses meaning and creative works should be subjected to the same freely competitive markets that every other industry has to deal with.
Since prices would eventually be pushed down to free, you might think everyone would just wait until then. But despite the inevitability of Steam sales, games do not fail to sell on launch day. Still, the success of free-to-play games demonstrates you can make money off of free. Everyone has different budgets, interests, and day-to-day feelings that influence their willingness to buy. There are people who are willing to pay full price because they can't wait to play, people who will only buy cheap because they are cautious about spending, people who are too lazy or scared to play but still derive enjoyment from watching let's plays, and people who don't like a company's business practices but still enjoy their games. Competition is about satisfying the maximum number of people according to what is possible and it is possible to give everyone in the world a digital copy as long as they have a computer to use it. Copyright imposes an artificial scarcity that keeps prices higher than they need to be to the detriment of consumers.
For middlemen, not creators
Copyright enables a contractual "gotcha" against developers. The concept of transferable rights enables a publisher to push a developer into a trade-off between retaining rights and receiving a greater profit share. Without copyright, such trade-off wouldn't exist. While the publisher could take the developer's idea after it is pitched, the publisher doesn't have the ability to implement it and would need to hire the developer anyways to make it happen. The disappointing sales of Metal Gear Survive demonstrated that Konami could not exploit an established game title without Hideo Kojima. If the publisher betrays the developer, the developer can just continue their work elsewhere and leverage their official creator status to beat the publisher, so there is a self-regulation mechanism in the absence of copyright. Ideas are cheap and implementation is where the real work comes in, so skilled developers naturally have a solid negotiating position, but copyright introduces a variable that actually works against them. As an another example, Remedy lamented about not owning the IPs they poured their effort into when they worked with Microsoft, showing how copyright made them worse off.
The only people interested in lifelong monopolies are one-trick ponies or business-types whose only job is to own copyrights. It is the publishers, the lawyers, and the inheritors who are the most incentivized by copyright because their business is quite literally about making money off of creators' work. The biggest executives walk away with compensation packages as big as the development budgets of AAA games, while developers who actually come up with and implement ideas suffer through crunch, get layoffs in the end, and even get sued by their former publisher. Copyright isn't about protecting creators, it's about enriching the non-creators sitting at the top basking in reflected glory.
Games form a part of a gamer's identity and let's play videos are one way to express that identity. Watching such videos lets me see how others think and behave and I can relate to it as a fellow gamer. As an empathetic person, I can compare their actions and reactions with my own and I can learn new perspectives to enhance my own thoughts and feelings about the games. Different players play and interpret things in different ways, and you can't get someone else's reactions or expressions of skill by playing for yourself. However, let's plays would constitute derivative works because they use large amounts of game assets unaltered from their original context. Since the creation of derivative works is protected against under copyright and that the commentary is useless without the game, players would effectively have their freedom of expression suppressed if the developer shuts them down or requires them to abide by the developer's rules.
Let's plays expose games to millions of viewers, making them powerful word-of-mouth marketing that developers do not need to pay for. Personalities attract loyal followers who regularly check for new content, which creates a solid platform for showing off games to people, especially games no one knows about. The problem with purchasing games is that you want to only buy what you like, but you won't know if you like it until you bought and experienced it. Official trailers are biased to make the game as appealing as possible, reviews don't capture the experience of playing, but let's plays show a game exactly how it is. Let's plays provide both exposure and context since a good player frames the game in a way that makes it look fun.
The exposure effect is evidenced by a study finding that piracy does not affect game sales because there are enough pirates who turn into paying customers after enjoying the game. However, if experiencing a game for free convinces even a fraction of pirates to buy, that is still a net gain for developers. Reaching a larger market means you can actually pull in more total sales than if you were to restrict your market to a smaller, non-pirating population. For example, 100 consumers at 0% piracy pulls in half the sales of 1000 consumers at 80% piracy. Everyone wins in the latter case even though the creator doesn't win as much as if those 800 pirates were tracked down and forced to pay. However, that is an issue of entitlement, not protection because it didn't cost the creator anything to produce those 800 copies. The creator could just let it go, pretend they were never customers in the first place, and welcome them in the off chance they change their minds or actually have the money to buy. It's a win-win situation that copyright cynically discourages.
Making ideas publically usable is about making society better off by letting people discover new ways to express those ideas without having to reinvent the wheel. What a free community can create will be more diverse than what any one creator can come up with and the internet has allowed easy communication between people around the world. Different people have different ways to contribute and somebody is bound to have ideas to improve upon a work in ways that the creator hasn't thought of or is unwilling to do. Old games that are no longer supported could be picked up and revamped by someone else instead of locked away indefinitely under the assumption that the publisher who owns the game might get around to it someday. Anyone looking at an existing work can just add their specific ideas to it without having to recreate everything from scratch. People also understand the concept of canon, so the original creator is never pushed out of the picture and the creator can learn from the community as well. In this sense, copyright actually obstructs creative innovation by making it harder for the community to unleash the potential of existing works.
While fair use recognizes the value in building off of original creations, it presumes that transformation is the only valuable use. There is significant value in third-party derivative works and the popularity of let's plays demonstrates that. But why should people be allowed to succeed off of someone else's work? They're not. They're succeeding off of what they add or do differently. Vast differences in popularity between let's players indicates that it is the personalities that are attractive, not just the games. It still takes time, effort, and unique talent to do this stuff, which is why developers don't do it themselves and why it is unrealistic to grant them exclusive rights expecting them to exhaust all of their works' potential by themselves. Derivative creators only succeed because they add enough valuable expression to attract and retain an audience. Shutting them down destroys that value while demanding a cut from them is demanding a cut from someone else's labour. Ultimately, it should be the consumers who decide what is valuable and how to reward creators, not creators nor the government.
Leadership over control
The internet makes it easy to find official channels and the success of crowdfunding platforms demonstrates that people are willing to voluntarily support creators who prove themselves worthy. Consumers have an incentive to help you succeed because you are the only one who can provide more of your style of content, so funding should not be an issue as long as you produce good work and communicate your intentions clearly. No one knows your work better than you, so you can engage with your audience in a way no one else can and that is your competitive advantage.
Creation is an expression of your beliefs and passion. If people like your work, they like you, so creation should be a rewarding experience by itself. If you are not satisfied until you make all of the money, that you expect a single creation to carry you for life, that you are threatened by people who use your work, you're not a creator, you're a narcissist. What copyright tries to protect is market share. However, focusing on market share is misguided because it can actually lower your overall profit due to the human tendency to focus on relative rather than absolute profit. Participating in a free market isn't about destroying your opponents and controlling the game, but about learning from others while letting others learn from you so everyone can be the best they can be.
Creation should not be a game of profit maximization, but a service of fulfilling people's psychological needs. Art gives context to our lives, which influences how we think so we can become better people. We share our works with others so they can become inspired by them and then apply the ideas in their own way, which has ripple effects that make everyone better off. People are inspired by strong leadership, which is why let's players are so popular even though their works are not entirely original content. Be the choice people make and there will be no need for copyright.
I practice what I preach. If you haven't seen my policies already, you may use my work without paying me as long as you aren't copying whole articles and pretending that you wrote them. Plagiarism is the only case where it is right to apply a type of ownership to a work. However, plagiarism is closer to fraud than copyright infringement because it is more about lying than just using without permission. Lastly, as of this writing, I have zero audience. I don't write from a high horse with hindsight, but as a nobody with the resolve to demonstrate that my philosophy works. If you like my work, donate, spread the word, and you will help prove my point.