@therain93,

Just one question, do you also support the prosecution of those who make fan art or machinima based on MMO game assets?

You're leaving out a large number of people who use game assets for projects that are outside the original game if you don't include this group as well. Furthermore, should they also have to pay a monthly fee to use the game assets they have already purchased? Or does this unauthorized use of game assets constitute fair use or artistic impression?

Copyrights and trademarks have to be aggressively and equally pursued across the board.

Originally posted by khorvik

Ok, my question is simply this.. how is using the art/game assets in a private, open source game server/engine any different from creating Machinima? Either way, you're using the software devs' game assets for a fan-created project that was not intended.

So is Machinima a copyright violation as well?

If the private server charges a fee, then yes, it's a copyright breach. Just like it would be for someone to create a video using game assets and then charge for it. Likewise, if someone downloads a retail version of a game without paying for it and uses it to play a private server, that would be a copyright violation as well.

But if someone pays for a retail copy of a game, or uses a freely released (by the original production company) trial version of a game to play on a private server, that simply would fall under fair use, no? The person paid for a copy of the game assets or acquired a legal and freely distributed copy of those assets, and they're simply using it for their own enjoyment.

I have no qualms with software developers charging money for their IPs--I do it as well, but if you're going to go to extremes to prosecute those using your IPs fairly then you really need to make sure you prosecute all instances of copyright violation--which would include fan-made videos and screenshots and desktop backgrounds, etc...

Using a private server is simply fair use of previously purchased copyrighted material--unless you've stolen the actual company's server code or executables.

First, it depends if the company has a stance on machinama -- for example, City of Heroes pretty much encourages it.

Second, as I stated in the prior post, a company is not going to chase after individuals.  It's folly to believe that all violations need to be prosecuted -- it's simply not financially worthwhile -- and, frankly, it's their prerogative to pursue the biggest threats to their service.

Third, Machinima, like pictures and fan sites, is a tool that ultimately fuels their sales.  There is no direct competition between machinama and the game service. On the other hand, a private server is direct competition.

Fourth, and this is where I'm up in the air a bit because I don't have facts, but I don't think you have to prove that the illegal party is making a profit (i.e. charging) in order to violate copyright.  I think the proof really would be losses to the company.  The fact that people are playing an illegal server suggests that their is a market for the product and considering there is only one legitimate source for the product....you would think they would not play it at all or pay for it legally.

Originally posted by therain93

 

Originally posted by khorvik

Ok, my question is simply this.. how is using the art/game assets in a private, open source game server/engine any different from creating Machinima? Either way, you're using the software devs' game assets for a fan-created project that was not intended.

So is Machinima a copyright violation as well?

If the private server charges a fee, then yes, it's a copyright breach. Just like it would be for someone to create a video using game assets and then charge for it. Likewise, if someone downloads a retail version of a game without paying for it and uses it to play a private server, that would be a copyright violation as well.

But if someone pays for a retail copy of a game, or uses a freely released (by the original production company) trial version of a game to play on a private server, that simply would fall under fair use, no? The person paid for a copy of the game assets or acquired a legal and freely distributed copy of those assets, and they're simply using it for their own enjoyment.

I have no qualms with software developers charging money for their IPs--I do it as well, but if you're going to go to extremes to prosecute those using your IPs fairly then you really need to make sure you prosecute all instances of copyright violation--which would include fan-made videos and screenshots and desktop backgrounds, etc...

Using a private server is simply fair use of previously purchased copyrighted material--unless you've stolen the actual company's server code or executables.

 

First, it depends if the company has a stance on machinama -- for example, City of Heroes pretty much encourages it.

Second, as I stated in the prior post, a company is not going to chase after individuals.  It's folly to believe that all violations need to be prosecuted -- it's simply not financially worthwhile -- and, frankly, it's their prerogative to pursue the biggest threats to their service.

Third, Machinima, like pictures and fan sites, is a tool that ultimately fuels their sales.  There is no direct competition between machinama and the game service. On the other hand, a private server is direct competition.

Fourth, and this is where I'm up in the air a bit because I don't have facts, but I don't think you have to prove that the illegal party is making a profit (i.e. charging) in order to violate copyright.  I think the proof really would be losses to the company.  The fact that people are playing an illegal server suggests that their is a market for the product and considering there is only one legitimate source for the product....you would think they would not play it at all or pay for it legally.

Unfortunately or fortunately, depending on your interpretation of it, there is also a thing called fair use. It's the same thing that allows you to buy one copy of a book and read it to your kids at night. In this case, would the original retail purchase of the software's graphical assets not apply to both producing fan-created art or viewing/using the assets in a private server (given that the server code or executables were not stolen from the company)?

But copyright and trademark still has to be prosecuted constantly and consistently across the board in order for it to remain valid. So if the company can't selectively choose which violations to prosecute and which to ignore--or they can lose the copyright or trademark.

Originally posted by khorvik

@therain93,

Copyrights and trademarks have to be aggressively and equally pursued across the board.

I think they have free will and the prerogative to protect their assets as they wish, as much as they wish. I think it's a matter of finances  which drives it. 

Originally posted by khorvik

 

Originally posted by therain93

 

Originally posted by khorvik

Ok, my question is simply this.. how is using the art/game assets in a private, open source game server/engine any different from creating Machinima? Either way, you're using the software devs' game assets for a fan-created project that was not intended.

So is Machinima a copyright violation as well?

If the private server charges a fee, then yes, it's a copyright breach. Just like it would be for someone to create a video using game assets and then charge for it. Likewise, if someone downloads a retail version of a game without paying for it and uses it to play a private server, that would be a copyright violation as well.

But if someone pays for a retail copy of a game, or uses a freely released (by the original production company) trial version of a game to play on a private server, that simply would fall under fair use, no? The person paid for a copy of the game assets or acquired a legal and freely distributed copy of those assets, and they're simply using it for their own enjoyment.

I have no qualms with software developers charging money for their IPs--I do it as well, but if you're going to go to extremes to prosecute those using your IPs fairly then you really need to make sure you prosecute all instances of copyright violation--which would include fan-made videos and screenshots and desktop backgrounds, etc...

Using a private server is simply fair use of previously purchased copyrighted material--unless you've stolen the actual company's server code or executables.

 

First, it depends if the company has a stance on machinama -- for example, City of Heroes pretty much encourages it.

Second, as I stated in the prior post, a company is not going to chase after individuals.  It's folly to believe that all violations need to be prosecuted -- it's simply not financially worthwhile -- and, frankly, it's their prerogative to pursue the biggest threats to their service.

Third, Machinima, like pictures and fan sites, is a tool that ultimately fuels their sales.  There is no direct competition between machinama and the game service. On the other hand, a private server is direct competition.

Fourth, and this is where I'm up in the air a bit because I don't have facts, but I don't think you have to prove that the illegal party is making a profit (i.e. charging) in order to violate copyright.  I think the proof really would be losses to the company.  The fact that people are playing an illegal server suggests that their is a market for the product and considering there is only one legitimate source for the product....you would think they would not play it at all or pay for it legally.

True, copyright is not dependent on making a profit--it is dependent only on impacting the profit of the copyright holder...

 

Unfortunately or fortunately, depending on your interpretation of it, there is also a thing called fair use. It's the same thing that allows you to buy one copy of a book and read it to your kids at night. In this case, would the original retail purchase of the software's graphical assets not apply to both producing fan-created art or viewing/using the assets in a private server (given that the server code or executables were not stolen from the company)?

But copyright and trademark still has to be prosecuted constantly and consistently across the board in order for it to remain valid. So if the company can't selectively choose which violations to prosecute and which to ignore--or they can lose the copyright or trademark.

Yeah, but courts are allowed to exercise common sense -- Disney isn't going to lose the copyright to Mickey Mouse because fans draw a picture of him and it's not going to fall into public domain because a bunch of pictures are on the web.  When a large audience begins consuming that product from a select few though, and the mouse is drawn doing questionable things, Disney has the right to act and protect its asset.

We've dealt with this issue frequently where I work, and that has always been the stance from our counsel. Now, I'm not a legal expert, but I have never seen any information to contradict this. My experience and information available points to requiring them to be pursued--but I'll provide for the option that I don't have all available information at this point. :)

There's a fair amount of information on US Copyrights @ copyright.gov. I still think there's a fair amount of play as far as private servers are concerned based on the information presented there... I can think of at least 3-4 ways to use the law to actually protect them given the current wording of the law.

Originally posted by khorvik

We've dealt with this issue frequently where I work, and that has always been the stance from our counsel. Now, I'm not a legal expert, but I have never seen any information to contradict this. My experience and information available points to requiring them to be pursued--but I'll provide for the option that I don't have all available information at this point. :)

There's a fair amount of information on US Copyrights @ copyright.gov. I still think there's a fair amount of play as far as private servers are concerned based on the information presented there... I can think of at least 3-4 ways to use the law to actually protect them given the current wording of the law.

I happen to think that servers not hosted by NCsSoft (to avoid passing judgement using the term "illegal"  ; ' ) would fail at least parts 1, 2 and 4.  It's certainly not non education nonprofit (1), the nature of it replicates the service (2) and it deprives the owner of potential customers (4).  The only wiggle room I see is in part 3 since you argue that the non-NCSoft servers use their own databases and algorithms but I don't think that would outweigh 1,2 and 4 but that's just my opinion.

http://www.copyright.gov/fls/fl102.html

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

"Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. " - http://www.copyright.gov/fls/fl102.html

So,  to use the hamburger analogy from earlier, copyright protects the way the restaurant markets and presents its burger, but it doesn't prevent others from making identical burgers and calling them something different.

All of what you said before is true, therain93. Unfortunately, it's somewhat hard to debate further since I don't know for sure that fair use would not cover this and would not want to lead people into breaking the law if that's the case. Suffice it to say though, that copyright would not apply to the private server given the direct quote above if the server sufficiently changed game play or was a parody of the original work. The question then becomes how much customization turns something into a sufficiently changed work or parody. So access to the game assets becomes the copyright violation issue, not the server emulating the retail server. But since most game companies give access to the game assets away for free (through limited trial software), or players can get access to the game assets by paying fair market value for them (retail box), the monthly subscription cost can no longer to be said to be the cost of the assets--it becomes the cost of playing on and using the hosted service instead.

In short, the free provision of the game assets by the copyright holder or the purchase of the game assets by the customer means the market impact of running a private server is next to null. Access to assets does not equate to a subscription-based service contract unless the consumer so chooses. Unless you want to argue that you should be required by law to have your vehicle serviced at the same dealer where you buy it.

And also, thanks for such a civil and thoroughly engaging discussion thread.

@therain93

i actually work in marketing so i do have some idea of the legal enviroment altho it might be different somewhat in my country then in us...and please read my post carefuly at least i neversaid myself as a server owner i said myself as a gamer.

As i said before they can't handle it by they dont wanna sell the licence to some one else that could either. Just being a "forum terrorist" :)) (see swg case) doen't help and just points how much a company cares about its customers. In this case stealing seems to do more damage to the company so fien stealing it is. About getting sued admiting i stole it will end up shortly and no one wi ever hear about the case. Making the process longer by say i didn't know which will take a hell lot to prove otherwise might cause more publicity and even more damage to the company. Though this is unreal since it's pointless for a company to go after the players and not the server owners

Originally posted by khorvik

"Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. " - http://www.copyright.gov/fls/fl102.html

So,  to use the hamburger analogy from earlier, copyright protects the way the restaurant markets and presents its burger, but it doesn't prevent others from making identical burgers and calling them something different.

All of what you said before is true, therain93. Unfortunately, it's somewhat hard to debate further since I don't know for sure that fair use would not cover this and would not want to lead people into breaking the law if that's the case. Suffice it to say though, that copyright would not apply to the private server given the direct quote above if the server sufficiently changed game play or was a parody of the original work. The question then becomes how much customization turns something into a sufficiently changed work or parody. So access to the game assets becomes the copyright violation issue, not the server emulating the retail server. But since most game companies give access to the game assets away for free (through limited trial software), or players can get access to the game assets by paying fair market value for them (retail box), the monthly subscription cost can no longer to be said to be the cost of the assets--it becomes the cost of playing on and using the hosted service instead.

In short, the free provision of the game assets by the copyright holder or the purchase of the game assets by the customer means the market impact of running a private server is next to null. Access to assets does not equate to a subscription-based service contract unless the consumer so chooses. Unless you want to argue that you should be required by law to have your vehicle serviced at the same dealer where you buy it.

And also, thanks for such a civil and thoroughly engaging discussion thread.

 I question a defense based on parody or altering the server side "so radically" because the scope is both broad and the fact is you still have " the look and feel" of their software which is a front end to all of those changes on the backside.  If you're not altering the software client (because that would be a real legal no-no), I think NCsoft could argue that yes, the...private server host is compromising the integrity of their game. Also, I'm not sure if the car analogy applies since you're buying a product outright as opposed to service with a specifically-designed front end access point to it. 

In the end, I think we are at an impasse because "fair use" is definitely ambiguous in this case.  It has been a good discussion though, cheers! ( ' :

Originally posted by bubu_3k

@therain93

i actually work in marketing so i do have some idea of the legal enviroment altho it might be different somewhat in my country then in us...and please read my post carefuly at least i neversaid myself as a server owner i said myself as a gamer.

As i said before they can't handle it by they dont wanna sell the licence to some one else that could either. Just being a "forum terrorist" :)) (see swg case) doen't help and just points how much a company cares about its customers. In this case stealing seems to do more damage to the company so fien stealing it is. About getting sued admiting i stole it will end up shortly and no one wi ever hear about the case. Making the process longer by say i didn't know which will take a hell lot to prove otherwise might cause more publicity and even more damage to the company. Though this is unreal since it's pointless for a company to go after the players and not the server owners

 

Perhaps you need to read more carefully....

So you aren't a programmer -- perhaps you create some other intellectual property but that's neither here nor there.  It underscores my point that  in this instance you don't seem to have the same...interest in protecting software property because you're not a stakeholder.  At no point did I suggest NCsoft was going to chase down individual players -- I was merely playing out your defense. I interpreted your post with you as a gamer and then proceeded to counter your argument.  I opted to poke through your shoddy defense and then turn the results of it against the server operators ("the big fish") which are the target of NCsoft. 

The entire point of originally stating that purchasing stolen goods is also illegal is because it encourages the thieves to continue to do it.  One would think that if this weren't common sense, knowing the law might make an impression but some simply don't look beyond their own desires.  It's egocentrism to rationalize stealing that way  -- "I don't care if this could hurt others, I'm getting a great deal".

Originally posted by therain93

 

 

 I question a defense based on parody or altering the server side "so radically" because the scope is both broad and the fact is you still have " the look and feel" of their software which is a front end to all of those changes on the backside.  If you're not altering the software client (because that would be a real legal no-no), I think NCsoft could argue that yes, the...private server host is compromising the integrity of their game. Also, I'm not sure if the car analogy applies since you're buying a product outright as opposed to service with a specifically-designed front end access point to it. 

In the end, I think we are at an impasse because "fair use" is definitely ambiguous in this case.  It has been a good discussion though, cheers! ( ' :

 

First of all, let me apologize for the wall of text... it's a doozy.

Parody is pretty much an ultimate defense against copyright lawsuits... For example, look at Weird Al. Everything the guy does is parody, and he even lifts entire musical expressions to use in his parodies. The extent of changes that it requires to meet the status of parody is where the problem lies there.

Also, I think the car analogy can be made appropriate. If you purchase a car, and drop a completely different engine in the chassis, does the automobile manufacturer have the right to sue you if you don't remove the model logo from the chassis? Do they have the right to sue you if you do a major overhaul even if you do remove the model information? Have you violated the integrity of the car's design?

In both cases with the car, you've change the original expression of the "artists" as much as a private server changes the original expression of the software company. But remember that the way the law is written right now, copyright doesn't cover thoughts and concepts--it only covers distinct expressions of the concept. In other words, you can copyright the story / gameplay / source code / artistic elements, but you can't copyright the integrity of your game or what you intend it to be.

Furthermore, since we've already determined that most software companies give the artistic elements of the software away for free through trial clients, the economic impact of someone using specifically those graphical or artistic elements in a machinima or private server can be estimated to be to zero. Since the client is given away for free in trial software, the same applies to using the client software as well. So using the client in unexpected ways can not violate copyright--as long as the user isn't trying to pass their unintended use off as the original product. The same would apply to graphical resources.

Furthermore, if you consider that the make it or break it criteria for copyright breach and fair use right now is economic impact on the copyright holder,  you have to first prove that their is an economic loss coming from the operation of these private servers. I think the companies are overstating their cases here considerably. Has any research been done that proves that these users would actually pay for the service otherwise? Given the fact that most of these companies offer free trials, it would be difficult to prove in a court of law that these private server players/operators would not be the same user base who would just play or replay the trial software--if they would even touch the software at all. In either case, if these users were using only the trial clients or not playing the software at all, could the company claim that they were losing potential revenue on the software due to users refusing to pay for it or subscribe to it in a court of law, and could the company get the courts to force these users to pay them? Of course not--consumer choice is an essential part of our market-driven economy.

To put it in a bit better analogy, the way the law is written now... if I were to code an OS from scratch, call it "N0-D0Ze", and reuse many MS Windows graphical resources while changing the wording on or naming of those resources in order to create a parody of the Windows OS, Microsoft could do very little legally to prevent me from distributing it--unless I distributed code or resources that they themselves charged for without offering freely to the public. 1) It's protected speech--parody. 2) It's fair use under the current copyright laws. 3) It's the same situation for software that music and poetry and other forms of artistic expression have been experiencing for decades or even centuries.

Please understand that I'm not pushing for people to break the law here, but what I am trying to do is point out the flaws in this type of behavior by the software companies. Software developers in general have to realize that fair use is their friend... It gives them a market for luxury items that individuals can buy if they so choose. Open source software is available that in many cases is better and easier to use than commercial products. Also, there is not one resource that is copyrightable that is an essential good or service for human survival... Allowing for fair use gives consumers a reason to support the artists / developers, and it guarantees that they earn some revenue on the luxury items that they produce. These types of strong-arm tactics simply don't influence customers to support your products.

Will any law ever truly guarantee that there is no theft or loss of revenue to a company? Even more to the point, do any of us want to live in a society where our needs and wants are dictated to us to a point where we have no decision over what or when we buy things? If fair use gets taken away, and this behavior by the copyright holders is legitimized, we'll surely head down that path.

Originally posted by Nostromo21

 

Originally posted by ZeroKORE

<snip>

The problem is at the source, the heart, the core. Not the ones who branch out looking for a good quality experience of "fun". God forbid if the games stop becoming enjoyable, so we go out and produce our own answers because the companies can't supply the demands of the players. Supply and demand my friends,  supply and demand.

 

Well said Zero. There are other reasons a person might want to play on or even install a personal server, so his game is available for years to come. Will I be able to play GW1 or CoH or LOTRO or WoW in 10 years time, as I know I will D2 on a LAN, for example...?

What have companies like Blizzard  given us/you for the billions of dollars of profit? More servers (aka online slot machines lol!) & one piddly expansion in 4 years? I mean, hullo, McFly???

And I'm sick & tired of the IP debates. IP laws are fundamentally flawed, dated & run by pure greed. The Internet is seeing a diametric shift in how musos & other independents self-publish. Adapt or die, like any other business. You can't own an idea. Your founding fathers would probably turn over in their graves if they saw what patent laws & copyrights have amounted to. Most movies only make money for the producers in the first 6 weeks at the box office. Everything else is middle-men & cartels spreading their greedy fingers around, with licenses for anything & everything they didn't create, nor should they own or profit from. Whatever happened to making movies/music/games/art for the love of it? I guess it went the same place as quality, originality & innovative design *sigh*.

As far as games go, online delivery mechanisms such as Steam is finally seeing half-price games instead of the US$40-50 price tag (up to $100 in Aus for some games!) we've seen for far too many years. I buy my fair share of games, but I always try b4 I buy. I'm not giving a dev/publisher $70-90 for something I may only fiddle with for a couple hours b4 I realise it's pants. And demos don't cut it - they're pre-alpha usually & never a good indication of release gameplay. Most of my purchases these days are indy or online titles for this reason.

And then God said: "Let there be file sharing!".

</rant>

 

  I have three posts in 4 years and I will use my 4th to say :

Very well put.  Needed to be said.

Originally posted by mlambert890

 

...INTERNET CAFES put up FREE servers and then CHARGE people to use the cafe...

Woot ! That's a reason. In fact there are black hole in demand/supply between big game publishers and small business like icafes. Becouse publishers want to charge endusers, but icafes want to attract more players.

 What about small franchises? Example, icafe bought franchise and host game server legaly.

Players get ability play game for free or small payment, icafes get players/clients and game publisher get money. All happy :)

Originally posted by Cabe2323

It doesn't make a difference if you use emulated code or steal the code.  In either case you are commiting copyright infringement.  It doesn't matter if you charge money or not.  It still is copyright infringement. 

Under copyright, it is perfectly legal to reverse-engineer software and create your own product provided you don't use any of the copyrighted code.  Thanks to the horrible DMCA (if there was ever a law that need to be repealed, that's it), this is not always the case though.

If the software is a registered trademark, you can run into issues there.  If the software is patented (which shouldn't be possible), you can run into issues there.

Before anyone jumps up and down and says that I hate copyright, let me be clear.  I am a software programmer and think copyright is great but the DMCA is a very poorly thought-out law (even one of the sponsors regrets putting it forward) and software patents are absurd (I've never seen or heard of a single one that isn't obvious to any programmer with related knowledge).

Originally posted by Kyleran

 

 

And to those folks who say its OK if they code it from the ground up, wrong again.  Software "Look and Feel" has been protected for a long time now (Lotus Corp fought that battle back in the 80's) and Intellectual property (like lore, character design, graphics) are all protected by copyright laws the world over.

I'm not an NCSoft shill, but I do develop software for a living and fully appreciate their need to protect their intellectual property.

And to the two or three posters who claim this is all about "greed".  Of course it is. As Gorden Gecko once  said, "Greed is good".  Its all how a capitalistic society is run, we all work hard creating something of value and expect fair market value for it.

I also write software for a living but I don't think NCSoft has much of a leg to stand on in this case (though it is far more murky than Blizzard attempting to sue the Glider author).

Greed is fine to a point.  Far too many corporations now only look at the balance sheet and how it will look to stock investors.  This leads to many very bad decisions and usually ignoring things that would possibly hurt the company a little in the short term but help immensely in the long-term.  However, this is getting way off topic.

The people running the freeservers are 100x more ethical AND technically talented than the idiot admin corporate stooges running the game (into the ground).  

phuk NCSoft.

Personally some of these illegal servers offer a far better experience than you would get with the normal ones.  As an example, I would not touch UO these days, yet there are some awesome free servers out there with the old rules that resurrect the fun aspect in the game.