What did Dan mean when he said rules can be copyrighted - not mechanics? Dan meant someone cannot copy the rulebook of a game verbatim, but if they can get someone to perform the same set of action (aka mechanic) using a different set of words, it does not violate copyright.
The challenge to this older approach in copyright law is a series of court rulings that appear to provide some sort of copyright protection to game mechanics as well. I argue that strengthening board game copyright law is bad for board game innovation, designers, publishers, and players.
Discourages Innovation
Innovation itself is the thing most at risk from strong copyright laws. Innovation takes place when board game designers modify pre-existing ideas. Take Ticket to Ride, a remarkable commercial success with a mechanic that tweaked and rethemed rummy.
Most innovation is the process of tweaking older mechanics. Having an innovative idea to compete over a set of actions does not mean it has been honed into an intuitive or fun package for board game players. Many different board game designers work hard coming up with tweaks or iterations based on the same mechanic looking to hit the sweet spot for players.
Stronger copyright laws severely limits what mechanics are available for board game designers to tweak. That by itself reduce the variability of board games. Even worse, if mechanics were to become protected, a designer with any idea, good or bad, has to constantly worry if their idea infringes on someone else's copyright.
Why such a worry? Because with stronger copyright laws it becomes harder and more time consuming to identify when a designers has or has not violated someone else’s mechanic. Under the older copyright approach described by Dan, I can read someone’s rules and make sure I am not copying what they are doing. Under a system that protects mechanics I have to spend hours and hours of time researching or money on a board game copyright expert to make sure my game is unique.
The problem is the financial reward for making a board game design does not justify paying these costs. Only a handful of board game designers earn enough money to cover the expense of attending conventions to promote their game designs, yet alone make a living. Adding additional cost to the game design hobby only pushes more innovative people away from game design and off to doing something else.
Drives out Small Innovative Publishers
Another byproduct is that the cost of making sure a game does not infringe on copyrights drives out innovative small board game publishers. Board game publishing is a low margin business. A slight increase in cost across the industry has large implications for the financial viability of many small companies.
The threat of being sued is a big expense. Keeping a lawyer on retainer, having to drop an additional X amount of dollars for an expert to review the copyright, having to worry about lost man hours dealing with copyright issues in a one/two man company dramatically increases the amount of capital it takes to publish a game.
To Hasbro, stronger copyright protection is a minimal expense. For a variety of reasons they already have a fleet of lawyers on retainer. But for a small one/two man operation -Tasty Minstrel Games, Stonemaier Games, Dice Hate Me Games, Stronghold Games - it's very unlikely they have a legal team on hand for production runs of a few thousand a game. Even worse, when there is a legal issue it will take up a huge amount of the owner's time to address it because they do not have the budget to push the problem onto a staffer of the company.
Innovation Fallacy
There are some people out there who would respond by saying, but this is all worth it because we will have more “innovative” games. That, in an effort to avoid licensing fees, board game designers and publishers have to focus on making things that are truly “innovative.”
But this thinking misses the entire point of innovation. The point of innovation is not to come up with an idea and only use it once. The point of innovation is to come up with a great idea that is so useful for so many things that we use it over and over again.
Imagine you are the person who invents the wheel. As a society we are excited someone invented the wheel, not because we necessarily want someone to invent something better than the wheel, but because the wheel is such a great idea we want to use it over and over again for a variety of applications.
We might, as a society, try to do something to award people to come up with the idea for the wheel to encourage the creation of it. Be it cash prizes, prestige, or even a time period of exclusive use of the idea. However, at some point we want the idea to be free for all of society to use so we can benefit from the idea and so others can modify it to become an even greater idea.
Current Copyright protection in the United States lasts either 70 years after the death of the creator, 120 years after first creation, or 95 years after publication. That means the game Trains, which tweaks the deck building mechanics created by Donald X. Vaccarion for his game Dominion, would have to wait 70 years till after Vaccarion’s death to publish if it failed to secure his permission to use the deck building mechanic. Odds are good Hisashi Hayashi would be dead by then and Trains would be one of the many innovative board game casualties from burdensome copyright protection of board game mechanics.