Saturday, August 28, 2010

yo-yo #81: 8-bit freehand

what are the limits of what you can own?

it's an interesting question to consider, given the current climate of the yo-yo world, which suddenly seems to pulsate with a toxic compound of indignation and confusion over 5a. duncan yo-yo's has stepped forward to exercise control over their 'possession', the freehand style of yo-yoing. while the quotes ARE meant to indicate my bewilderment at the idea that a STYLE of yo-yoing can be owned, steve brown's original patent does account both for the materials AND the technique. so if you're doing 5a (at least anywhere anyone can observe you)... i suppose the implication is that you're playing with duncan's toy, and depending upon their generosity in allowing you to do so.

yes, i think that's preposterous, but in legal terms, they do own and control the style of play. fortunately duncan (via my good friend brandon jackson) has stepped forward to say that they are NOT going to litigate against 'individual players', sponsored or otherwise, who just want to play or compete in freehand. the stickiness begins with their claim that they ARE going to be actively enforcing their patent against being used by rival companies. clearly, anyone who attempts to do the math recognizes the complete lack of clarity that this offers.

i'm an individual player, but i also have access to the spyy website. i have to think that if i tried to post a 5a video on there advertising the new stryker... duncan would not be cool with that, regardless of whether it was done with the 'intent' to advocate spyy for 5a. (this is just an assumption, but they certainly weren't 'cool' with yoyofactory's 5a may videos, which did more to promote and encourage 5a play than any company has in a solid while.) could an 'individual player' like andre boulay put 5a instructional videos on i mean it's an online store that sells duncans, but certainly everyone associates andre with yoyojam (plus they sell every other manufacturer as well). and then you have the issue with guys like miguel correa and tyler severance, both of whom are employees of yoyofactory and on anyone's short list for greatest 5a player of all time. would their continued contest performance or new trick videos constitute an advertisement for yoyofactory? and if prohibited from doing so, is there really a greater disservice that duncan could do to the style?

i have a headache.

i understand duncan's perspective. they HAVE this awesome thing, and nearly every other company has, in some way (purposely or accidentally, directly or implicitly) USED it to sell their yo-yo's. it's good business for duncan to say 'OI! only WE get to use our stuff to sell yo-yo's!' if they don't do that, they effectively sacrifice their ownership of the patent. at the same time, however, to begin to enforce their possession of the style immediately vilifies them in the eyes of many. i think most yo-yo players want to see all of the best players throw 5a without fear. i think we'd like to see all companies be able to celebrate it - to benefit from it AND give to it. but such an idealized view does not feel very realistic right now.

scenarios like this are amusing to watch unfold, if only because they polarize the community so sharply. we dilligently heed drama's clarion call and file into our respective positions:
• 'throw duncan!': "it's not duncan's fault, guys! they own 5a and have the right to protect it!" (this view, while initially valid and interesting, is quickly delegitimized by the guys who use it as one more soapbox in their attempt to denounce "those copycats" yoyofactory the loudest).
• 'duncan = suck!': "whether they want to or not, this is going to kill 5a! DON'T TREAD ON ME, DUNCAN!!!" (again, lots of good points to be heard, but they're muffled by the furious knee-jerk yells of misinformed bandwagon-jumpers.)
• 'who even cares?'

i like duncan, or at least the idea of duncan. i like their plastic yo-yo's, a lot of em. i adore its history, and standing on stage with bob rule, dale oliver, and chris neff at worlds was an absolute honor. i certainly love my friends, brandon and drew and takeshi and hank and jack and nate and dimi and jeff... and look up to guys like senba and kohta to the extent that i could barely introduce myself at worlds through stammers and blushes... but those guys aren't duncan, or at least not all of it. for me, the 'warts & all' has to include the cease & desist letters sent out by a faceless legal dept to anyone who maintained a site using the words 'imperial' and 'butterfly'... or to chris allen, who tried to use an iconic 'yoyoman' image on his then-fledgling yoyoskills. it has to include the tumult and uproar with which my friend steve left the company, and his description of his treatment by the brass. it has to include perplexing, alienating stuff like this, with the result that i like the company... but find it hard not to hate the COMPANY.

personally, i'm not really a 5a player. i mean i enjoy it, but i'm not out there coming out with new stuff (at least not new stuff that isn't stupid). the north carolinian in me certainly objects to being reminded that a style of yoyoing i enjoy is OWNED by a bunch of suits. i highly doubt that any of the flambeau legal a-team will parachute into my yo-yo club or break up my corner-store shows to serve me with papers. that's not really the point. even though duncan's intentions could be seen as in the interest of self-preservation... it still leaves ordinary yo-yoers hurt and confused to be effectively told that '5a doesn't belong to you.' and the pain and confusion may be compounded if, as the smoke clears, our most dominant and creative 5a demi-gods are no longer able to express themselves 'freely'.

that reminds me of a quote i recently reread. it's from the yoyoguy forum way back in 99, when steve brown had only just revealed his new discovery. it was being suggested that he patent 5a, and his response was as follows.

For me to patent a style of yo-yo play would be silly. First off, that would assume that I had the money for the patent in the first place. Second, that would assume I was making enough money off the patent to be able to defend it. And third, I am not really big on all that lawsuit crap. It's what killed Duncan in the 60's, I see no reason to be part of THAT tradition. It's FreeHand, and it's free. If you want it, take it. Just let it be known that I found it, that's all I ask. (Please note that I take no credit for CREATING already existed, I just found it. Yo-Yo tricks cannot be created or destroyed....much like matter.)

how ironic that, given these sentiments, all of this has come to pass. it WAS patented, and the patent was sold to duncan for royalties (duncan, which surely DOES have the money to be able to defend it)... and now until the big d steps forward to offer some concrete standards for what will and will not be tolerated, the perception that said patent is being held over the heads of companies (and by proxy, yo-yo players) is likely to hold. ... 'FreeHand' indeed... funny old world.

anyways, i don't want to give the impression that i'm too butthurt about it, or that i don't think duncan has a point in trying to protect their property. i think, i (like most every yo-yoer) just want to see how things will shake out. it's a very cloudy business trying to maintain control of a style that has always prided itself on free expression. it's also tough to overcome inertia, and part of me will be surprised if 5a truly sustains any damage over this. of all the play styles, freehand feels the most irrepressible and resilient. the style is like a constantly-evolving organism. the materials may be owned, the 'technique' or 'idea' may be owned, but how do you own something that is as alive as all the players who have breathed fire into it this past decade? it belongs to duncan... but it cannot belong to duncan more than it belongs to yo-yoers.

for my part, i just threw some of my [embarrassingly poor] freehand a minute ago, and think i may do so again momentarily. i must admit that did not use this 8-bit freehand (or any duncan), which is a solid, wonderful player that has never let me down. i did so to remind myself that no matter how the winds of the yo-yo world may howl (and they don't howl so loud when you think about it), and no matter what page 37, paragraph 3, item xiv may say... my yo-yoing always, always belongs to me... yes it does.

... yes it does.

edit: this release was just put out by duncan, and seeing as they did exactly as so many in the community have clamored for (in responding clearly and directly), i wanted to revisit this and share my reaction. click if you like.


Jeremy Levine said...

I'm not okay with this, really. I feel like this is trying to restrict imagination for the benefit of business, which is so not what yoyoing is about.

And about taking down instructional... I'm not okay with that either, at least not until Duncan puts their own stuff out. If they really believe in 5A (which I have reservations about,) then they should not inhibit any player from being able to learn it.

.02. I don't have any say in this, considering I don't play 5A. Just how I feel.

yoyochucker said...

Can i patent the way in which i wipe my ass? i mean seriously you cannot patent how you throw a yoyo. i understanding patenting a yoyo design, but NOT the way a toy is played with. Duncan would loose that battle in court. Some jerk off in the patent office didnt read this one too well.

Throw 5a kids what is duncan going to take from you? your lunch money? HA!

kyo said...

I want to point out that I don't see any legal ground for Duncan to say you can't play 5a however you want.. it all falls under fair use. They only control using 5a for marketing/promotional/sales purposes.

The issue that has arisen is where the line will be drawn as far as what is or isn't promotion of another company. Is it promotion to have your company sign up behind a 5a competition? Is it ok to sponsor contests with 5a divisions? What about your sponsored player or employee making a video wearing your shirt?

Those are the questions to be answered. Duncan doesn't control 5a, they simply own the right to use it for their products.

I have absolutely no doubt that they have been and will continue to be very reasonable about the whole thing. All they did was step in when they saw somebody flying a bit too close to the sun and ask them to change course.


Jeff said...

I don't blame Duncan for trying to make money off of their patent, but it does show their true colors. They care nothing about the yo-yo industry and everything about their own short term profits. I will not support any Duncan products until they change their stance on this. Other yo-yo companies have stupid patents that slow progress in innovation across the industry as well, but I have never heard of them enforcing them in such a ridiculous way.

(-_-) said...

I completely agree with Jeff

kinopah said...

I posted these questions on yoyonation, and I'd veryuch like for Duncan to come forward and confirm that the way in which they enforce their patent will, as they have said, not be changing.

specifically, i'd like to know whether:
• a company like yoyojam is in the clear if it posts a youtube video of takeshi winning worlds' 5a with some message of congratulation (a la 'congrats to yoyojam's takeshi matsuura for winning the 5a division at the world yo-yo contest!'
• a company like yoyoexpert can continue to post 5a instructional videos (with any old yoyo).
• a company like yoyonation can continue to sell non-duncan yo-yo's as advertised as 'suitable for 5a' (or as 'the signature yo-yo of 5a player x')
• a sponsored player and/or employee of a company can compete in a 5a contest wearing their sponsor's clothing and using their yo-yo, given their tacit advocacy of said non-duncan company and the gray nature of yo-yo competition/performance as a means of marketing.
• a company like yoyofactory can continue to sponsor a contest with a 5a division, with its prizes (in whole or in part) going to the winners of said division.

darkshinobimastr said...

This is seriously ridiculous. How can Duncan think that they can patent a yoyo style. That is like putting on a patent for tricks created by 1a.....etc players. The "sport" would have never evolve. it would've been 1930s doing around the world to 80 years later doing the same "around the world.