Sunday, 15 April 2012

The Game of Theseus – The Quest for Control of Objective Identity


As strange as it may sound to some of you, I was recently on a forum arguing, yet again, that there is no such thing as objective identity.  That, essentially, identity is subjective, and that, in some cases (such as to make language work), we agree to standardize identity under special circumstances.  This standardization is agreed upon by a wide range of people, but certainly not by all (or the meanings of words in language would not drift over time).

How does this relate to gaming?

Well, the discussion was on Dragonsfoot, and it related to the question of whether or not some particular edition was “D&D”.  Mind you, no one was arguing that any particular edition was not sold under the trademark name of Dungeons & Dragons, but rather whether or not purchase and ownership of the trademark somehow changed the nature of identity from a subjective value into an objective one.


Now, I don't care what is, or is not, "D&D".  Is 4e D&D?  Sure.  Is 5e?  Why not.  Is Labyrinth Lord?  As far as I am concerned, it is.  My concern isn't what is, or is not, "D&D", but rather ensuring that it is individual human beings -- not corporate entities -- that get to decide.

I am not a lawyer, and the following should not be constituted as legal advice (and I despise the fact that we require such disclaimers to discuss far too many topics these days, lest the lawyers pounce).  Here is a link that might help:  http://en.wikipedia.org/wiki/Trademark

It should be noted here that, while a trademark grants protection in some cases against identifying another product with that of the trademark holder, it grants no protection at all against others refusing to accept the trademark identifier.  I.e., if I purchase the rights to “D&D” and decide to sell a soft drink as “The D&D game” where the rules consist of “Drink as much of this stuff as you can”, my purchase and my actions in no way – legally or otherwise – force anyone to accept that as “D&D”.

Moreover, while my purchase would allow me to act against another company who put out a game and called it “D&D”, it would in no way give me power over the user base of the product calling it “D&D”.  Paizo doesn’t call Pathfinder “D&D” or encourage people to do so.  If the vase majority of gamers decided that Pathfinder was “D&D”, and WotC’s latest was not, trademark does not offer legal recourse.

Part of the problem is caused by conflation of definitions of the words “identity” and “identify”.   


Consider how the definitions here, http://www.thefreedictionary.com/identify, actually apply to trademark.  What trademark is intended to do is ensure that people looking for Product X are not confused by a similar Product Y.  Also (and related to this) to ensure that the money spend to advertise Product X is not effectively spent to sell Product Y.  It is notable that it is Product Y, its trade dress, its packaging, its advertising, etc., that must give rise to the confusion for a lawsuit to succeed.  If the public believes that Product Y (despite understanding that it is not Product X) is closer to what the trademark of Product X identifies itself as than Product X actually is, and the public uses the trademark term to identify Product Y rather than Product X, the end result is not that the public is wrong, but that the makers or Product X are likely to lose the trademark.

Again, identity is not determined by trademark.  Not even in a legal sense.  Use of trademark is determined by trademark, and if the public disagrees about identity, the trademark holder can lose that trademark.

If WotC took a deck of playing cards, painted a bunch of cartoon dragons on the backs, and said, "Okay, here's Dungeons and Dragons, 6th edition," then, technically and legally, that stupid deck of cards IS Dungeons and Dragons. It's not 1st edition D&D, it's not Gary Gygax's D&D, or TSR's D&D, but it would still be D&D (unfortunately). – Turko (http://www.dragonsfoot.org/forums/viewtopic.php?f=11&t=55537&start=120)

One can see, then, why this sort of statement is just plain wrong.  Trademark doesn’t grant some form of objective identity, but rather the exclusive right to use a term, phrase, trade dress, etc., in order to differentiate a product on the market from its competitors.  This is a form of identity – self-identity – but it isn’t objective.

(To make this easier to understand, I could self-identify as “The Handsomest Bloke in Toronto”, and I could even conceivably trademark myself as such, but it wouldn’t make it true.)

Technically and legally, WotC’s hypothetical deck of playing cards would be a deck of cards sold under the Dungeons and Dragons trademark. Nothing less, but also nothing more. When you conflate the trademark identity (which the company owns, within certain legal limits) with the actual identity by which the public (or individual members thereof) views the product (which the company does not, and cannot, own), you make an error of reason.

Rogers Cable can buy the Skydome and rebrand it the Rogers Centre (in fact, that did occur), but they cannot make anyone else identify it as such. Nor is anyone who refers to the building as the Skydome dishonest or wrong.  Despite the religious fervour which some folks are displaying to the contrary.

I only wish I had written as well as jasonzavoda about halfway down the page (http://www.dragonsfoot.org/forums/viewtopic.php?f=11&t=55537&start=120).

And in answer to Mock26, no number of people “approving” the rebranding makes it objective.   There is no “correct” version of D&D.  If you find yourself  needing to determine which version of D&D is the "correct" one, you need only decide which is correct for you.  Attempting to then claim that your decision is somehow objective, though, is an error of reason.

Writing D&D on a Candyland box does not make Candyland D&D, even if you own the trademark.  All it makes is a Candyland game that you are calling D&D, using the D&D trademark, and that you hope others will accept as D&D.

Just as some call Pathfinder “D&D”, and extend the D&D identity to games like Mutant Future, so too some will not agree that a new edition has the same identity as “D&D”.  Trademark law prevents Paizo from calling Pathfinder “D&D”; it doesn't prevent you or I, or the unwashed masses, from doing so.

Identity is not an objective property of an object. Identity is not a “fact”.


In particular, two questions arise which are relevant to this discussion:

What does it mean for an object to be the same, if it changes over time? (Is applet the same as applet+1?)
If an object's parts are entirely replaced over time, as in the Ship of Theseus example, in what way is it the same?

The Ship of Theseus example is, actually, extremely relevant to this discussion, and a link to that can be found here: http://en.wikipedia.org/wiki/Ship_of_Theseus

Summary form, in the event that you don't feel like reading all of that: (1) There is no clear rational basis known upon which all of the questions of identity can be answered, especially as relates to things that change over time and/or have their parts replaced; (2) Identity occurs in the space between your ears, not in the objective universe, and ultimately (3) Identity is not real in the way that an object is real.

The 4e PHB is real.  That the 4e PHB is objectively identifiable as “D&D” is not real.  The same is true of the 1e PHB, and the little brown books.  No matter how you slice it, identity is subjective.  It comes up peanuts.

So there is no number of people who accept the rebranding that makes it objective.  However, there is a number of people who do not accept the rebranding, and instead apply the trademark to other products, which can cause the trademark holder to lose that trademark.  How many people?  The courts decide that.  And it should be noted that the courts are not deciding that X isn’t “D&D” if the trademark is lost, or that Y is “D&D” if it gets to use that trademark – all the courts are deciding is whether or not the trademark (which is different than identity) has been lost.

Trademark dilution protection (http://en.wikipedia.org/wiki/Trademark_dilution) in fact exists to protect trademark holders from this to some extent…it is certainly arguable that “D&D” is in danger of becoming, a genericized trademark (http://en.wikipedia.org/wiki/Genericized_trademark), and, like aspirin, may lose substantial protection in the decades to come.

I am ready and willing to argue that a corporation cannot change cultural identities merely because it has the cash to purchase trademarks related to them.  Indeed, I am ready and willing to argue that allowing a corporation to do so is inimical to the health of any culture so affected.

And I am ready and willing to argue that an individual has a right to not give way to corporate rebranding as actually changing the identity of a product. Indeed, I am willing to argue that this is a fundamental right.  A corporation may attempt to expand the meaning of “The Beatles” to include music by Rush, but I have a fundamental right to say that Rush is not the Beatles, even if Rush is rebranded as such by a trademark owner of both bands.

Corporate “citizens” have power enough in this world without also granting them that level of power over language and identity, which, pushed far enough, is ultimately power over how we think.

No.

When the question arises whether Kleenex is also kleenex, Foster Grants can mean any sunglasses, it is the public that has the power.  The courts follow common usage, not what the trademark holder prefers.  The trademark holder is required to defend against changes in public usage, but (in North America at least), fundamental principles of law allow you to refer to coke instead of Coke. 

Pretending otherwise is either intellectual dishonesty or ignorance.  Or both.

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