The Perils and Possibilities of Going Digital

So What Do the Kids Think?
Before I dive into the main subject matter of this post, I thought I'd share a wonderful pair of recent Two by Two video reviews from actual children who've been playing the game. The first is by Brooke of The BoardGame Family while the second is by Hayden of Games with Hayden. A big thanks to both of them and to their families for sharing their insights and impressions on so many games!

Announcing Two by Two Online

Two by Two went digital a little over a week ago, with an official online implementation by the good folks over at the Yucata gaming site. The entire site, which has officially licensed versions of over 50 popular boardgames, is based around the notion of asynchronous multiplayer, a concept I consider vital to bringing multiplayer gameplay to a more casual market. Massively multiplayer video games such as World of Warcraft achieve this by having players drop in and out of an always-on world but asynchronous multiplayer behaves more like a Facebook game - After joining one or more games, players log into the site whenever they have a few moments to spare, play their current turns, and continue on with their lives. Due to the high level of convenience, players quickly integrate the occasional site visit into their daily routines, leading to high levels of engagement, a friendly atmosphere, and a continual desire to return. Multiplayer services like Xbox Live attract a fundamentally more hardcore and niche audience because they require players to be online at the same time and structure their life around the multiplayer experience rather than vice versa.

So how is it faring? Well the game received over 1,000 plays in its opening week and has already exceeded the total number of plays received by some of the games that were implemented as much as half a decade ago. Two by Two represents over 8% of the total number of games played on the site since the beginning of February, making it Yucata's third most popular game, ahead of some very highly regarded titles like Saint Petersburg, Stone Age, Hey! That's My Fish!, and Finca. Only Just 4 Fun Colours and Roll Through the Ages are currently seeing more play. Anecdotally, I've had a number of site's 4,000 players express that they've really enjoyed being introduced to the game online and will be looking for physical copies at their local retailers, for themselves, their families, and as gifts for friends.

I should also call out that, since its creation a decade ago, the Yucata site has been run purely as a fan and hobby site, funded entirely by its creator and donations from the player base. They charge no membership fees, there are no optional microtransactions, there isn't even any advertising on the site. Games are implemented and added to the site by passionate volunteers who believe in the quality of the games they're implementing. Publishers and designers grant Yucata the necessary rights and permissions (and some do say no) but they don't fund the development. While I'm definitely curious to explore revenue-generating digital versions of my games, I'm very honoured and humbled by this impressive free-to-play implementation. Do yourself a favour - go create an account and join a few games to see what it's all about.

The Dark Underbelly of Digital Boardgames
With the demand and revenue potential created by the various digital app stores out there, however, I've noticed a bit of a wild west mentality emerging as people rush to create and consume digital versions of their favourite boardgames. It appears that not everyone is as honest and forthright as the Yucata team when it comes to obtaining the official permission of the original boardgame's designer and publisher.

Earlier last month, industry news blog Purple Pawn posted a favourable review of a recent iPad game, comparing it to the popular boardgame Battlelore by veteran designer, Richard Borg as follows:
The game play is identical to Richard Borg’s Command and Colors system. You have a left flank, center, and right flank that your units play on. You’ve got 3 classes of units: fast but weak, well balanced, and strong but slow. The only things that Battlelore has that [iPad game] doesn’t is Lore and Lore Masters.
Frustrated and horrified that the iPad developer had even gone so far as to provide Purple Pawn with a free copy to review, I posted a comment expressing my disappointment that unlicensed digital versions were being promoted and endorsed on their otherwise respectable news site. I then went on to create a geeklist over at BGG, exploring the issue and expressing my concerns in greater depth. Needless to say, lots of discussion ensued, there and elsewhere. I was surprised by how divisive the issue proved to be, with the primary arguments against me being as follows:

  1. That, because of certain loopholes in copyright law, games aren't as protected as other forms of media. Because the act isn't illegal, it is therefore acceptable.
    • I won't comment on the accuracy of that legal opinion but I find the moral justification reprehensible. Law is not a static thing - there was a time when women weren't allowed to vote, and people were allowed to own other human beings as chattel and slaves. Laws evolve and adapt in response to the ever-changing norms and values of their time and place.
  2. That all games borrow from each other to one extant or another and that stifling this sort of piracy is to stifle innovation.
  3. That I'm entitled to a digital version of my favourite boardgame. If the designer and publisher don't make one or don't make one that I like, they don't deserve my money.
    • The trouble with this is fairly obvious. I want to win the lottery but that doesn't mean I'm entitled to it. Also, what this argument overlooks is the very real harm that this can cause to that same person's favourite designer and publisher. If you like a game, don't go out there and undermine it.
  4. That the publishers and designers shouldn't get so upset. The unauthorized versions are providing them with free marketing and introducing more people to their wonderful game.
    • This might even be true if these unlicensed digital versions released under the same name as the boardgame, used the same art, kept to the same theme, and publicly acknowledged and promoted the original designer, publisher, and game... It's just that they don't. In all the digital ripoffs I've seen, not a single one has done any of these things. If it's obfuscated, it's not advertising.
Anyhow, the end result of this whole tempest in a teapot is that Purple Pawn, to their credit, updated their review with the following caveat a few days later:
UPDATE: A fellow Pawn, Richard Bliss, just got off the phone with Richard Borg. Apparently Richard hadn’t even heard of [iPad Developer] or [iPad Game], and was quite shocked to see his game so blatantly ripped off. Richard is going to look into how to pursue legal action. Purple Pawn in no way condones the actions of [iPad Developer].
So, rather than just whining about all that's wrong with the world, here's my constructive advice on how to deal with these sorts of issues as (or even before) they arise. Note that I am not a lawyer and this does not constitute legal advice - if you're looking for sound legal advice, do us all a favour and don't look for it on the internet...

  • If you're a game designer or publisher who's discovered an unauthorized digital version of your game, the first step is to establish contact. Inform the developer that they are making unauthorized use of your original design and that you will be taking steps to address the matter. Be stern but leave the door open for discussion - in all honesty, they're probably doing this because they're a fan of your game. Maybe you can find a more constructive solution than simply shutting them down. That said, don't wait for a response. Immediately look for whoever controls the distribution channel. If it's an iPhone or iPad app, report your concerns to Apple. The same goes for similar app stores on other platforms. If it's a Flash game that's being distributed through some sort of aggregator or games portal, report your concerns to them. If it's a privately operated website, get in touch with their ISP. In short, the Digital Millennium Copyright Act is written in such a way that these sorts of gateway organizations, once informed of the problem, are generally going to be on your side.
  • If you're a fan and customer thinking about purchasing an unlicensed version of your favourite boardgame, please don't. Like many designers, I dream of someday being able to design boardgames for you on a full-time basis. A lot of publishers do what they do as a labour of love, making just enough money to go from game to game and gamble to gamble. Digital revenues have an important role to play in bringing new people into our hobby and making more and better games possible. Put that money into the hands of people who actually want to build up the hobby rather than tear it down.
  • If you're a digital developer looking for boardgames to implement, don't be afraid to ask publishers and designers for permission. Most publishers and designers are actively looking for people like you to help bring their games into the digital space and will welcome you with open arms. They may ask for a cut of the royalties but that will be more than offset by the name recognition and marketing you get from being an officially licensed version. Think about it - if you're releasing the game under a different name and actively hiding the source of its inspiration, how do you think fans of that game are going to find you? What's more, a successful implementation of an officially licensed game will lead to further and more lucrative contracts to the point where publishers will actually be paying you up front to implement their games. Release a ripoff version, however, and you're throwing that all away (and running the risk of Apple red-flagging you as a developer). Publishers and designers are looking for developers they can trust so betray them at your peril.
  • If you're a member of the press & media, discuss the issue with your editors and colleagues. Give it some serious thought. Establish a clear editorial policy about what place unlicensed games have within your reporting. I'm not saying you shouldn't be reporting on these titles and the issues surrounding them but I encourage you to provide your readers, viewers, and listeners with the necessary editorial context. I also recommend that seek out some legal advice on whether or not it's appropriate to allow these developers to advertise on your site, provide your reviewers with complimentary copies, and so forth, as there could be potential issues there as well.


  1. Wait - you didn't expect the notion that intellectual property rights should exist to be controversial? What planet have you been living on?

  2. I know, I know. =o) But while you've been off getting your law degree, I've been designing my own little game designer's utopia.

    What it boils down to is that I believe board games warrant similar treatment as paintings, songs, and works of fiction. The atomized components (colours, notes, words, mechanics) should be free for all to use but the specific ways in which they combine to make an individual work of art should be protected.

    From what I understand of the law, derivative works of art, music, and literature are permissable but require a certain degree of novelty above and beyond the work from which they are derived. It's my assertion that the bulk of these digital clones wouldn't pass such a test of novelty.

  3. "Derivative work" is an American concept, but basically exists under Canadian law (without being specifically named). The novelty requirement is for a copyright to exist in the derivative work; however, it doesn't deprive the holder of the initial work of any rights. That is, I can hold copyright in my Harry Potter fan fiction, but J.K Rowling's permission is still needed for me to publish it, because my work incorporates copyrighted elements of her work. Whereas if I just rewrite Prisoner of Azkaban, I have no copyright at all, because the copyright belongs, in its entirety, to Rowling.

    I think what you're talking about isn't "derivative work" (as it's meant in American copyright law) but the idea/expression dichotomy: you can rip off other people's ideas, but not their expression of those ideas. The view is apparently that board games are all "idea" and no "expression" (other than the art, etc.) and so are not copyrightable (I assume this was established in a case of some kind at some point, but I'm not familiar with it). But the idea/expression dichotomy is pretty murky and probably largely arbitrary: to borrow from a case I vaguely remember, I can steal George Lucas's idea of small furry humanoids who live in a primitive society on another planet, but if I express that idea somehow (such as, say, by filling my movie with small furry humanoids who live in a primitive society on another planet) there's an excellent chance that I've violated copyright. If you're confused about the material distinction between idea and expression, you're in excellent company.*

    None of the above is legal advice, and I am not a lawyer. As you know.


  4. "None of the above is legal advice, and I am not a lawyer... yet. Mwahaha"

    There. Fixed that for you. =o)

    As far as existing case law, I know Trivial Pursuit was sued by a publisher of trivia books for copying their trivia (including intentional mistakes left in as watermarks). The ultimate court ruling was that trivia, as an expression of historical fact, could not be copyrighted. But that's really a separate issue.

    I believe there was also a case where Parker Brothers attempted to protect the Monopoly brand from its various -opoly clones but that may have been more of a trademark case than one involving the underlying mechanics of the game.

    Beyond that, I'm unsure. I suspect the bulk of the game-related case law has built up in the digital space.

    It sounds like you and Jake have some material for your final dissertations. =o)

  5. If you convince my prof that this is a question of procedural justice, count me in.

    The Monopoly case would almost certainly have been a trade-mark* case. I would have thought that that would have been a pretty clearcut win for Parker Brothers, but I'm not all that strong on trade-mark.

    I'm a little surprised by the Trivial Pursuit ruling (though I do remember hearing about it), since I would have thought that the actual wording of the questions was copyrightable expression of uncopyrightable ideas. I guess if the wording was something like "What is the capital of Kentucky?" rather than something more Jeopardy-esque ("This capital of Kentucky, despite having a similar name to a major German city, was probably named after a settler killed in a Native attack."), then it might not have met the required creativity threshold. Anyway, this really just furthers my argument that the line between ideas and expression is murky (know me long enough, and you'll learn that, in my mind, almost everything furthers my arguments).

    Okay, I'll go back to learning the law that I need to graduate, rather than lecturing pompously on the law that I don't need.

    *In Canada, we hyphenate it, as I only learned last semester. As usual, this situates us between the American ("trademark") and British ("trade mark") approaches.