Letter From the Staff

[Geoffrey42]

You guys actively support letting companies have full ownership & control of user-mods provided they give fair warning? Man, with all the talk about owning intellectual property and letting people use games to explore a wide array of topics...that seems a little bit counter-intuitive.

In their current form they're mostly derivative and I don't think any of them remotely deserve contesting ownership. But as people are able to dump more of their own art, sound, and design into the mods I think at some point that line is going to get crossed.

I feel that I agree with the Escapist's position on the grounds that they do provide fair warning. But, the point that seems debatable is what constitutes fair warning? Clickthrough/wrapper agreements are insufficient. Corporations take away every conceivable consumer right in the text of the EULA, and depend on courts to hem them in where it comes to actual legality (Doctrine of First Sale and its tenuous relationship with IP licenses, etc.). For me, whether or not the company is going to ride in and squash all of your pretty custom content always seems to hinge on a trust built between consumer and company, ignoring the EULA. We as a community have come to rely on some companies exercising the EULA to the fullest extent possible, while others have been found to not care. The greatest outcry tends to be when these same (un-caring) companies occasionally turn around and begin exercising their EULA, violating the trust, and angering people, but claiming "We told you so. See? You clicked 'OK' right here." Full disclosure of the intended level of censorship, methods for handling said censorhip, methods for complaining when said censorship goes awry, potential for user-generated content to be resold, etc., PRIOR to purchase would be ideal. In the end, maybe what would be best is if the industry settled on some sort of standard, and then gave full disclosure about how they intended to deviate? As it is, if we were to take EULAs for their word and consider them fair warning, who would even bother installing software on their computers? I like my soul just fine, thankyouverymuch.

We believe that piracy of games is stealing, and cannot be justified on any grounds.

Fair enough. We see "stealing", understand generally societally negative connotations, and come up with the idea that you mean "bad". Great. Well, "piracy", despite our modern affection for the letter 'R', parrots, and crude prosthetics, still tends to have the same sort of connotations. Thus, "Piracy (which is bad) is Stealing (which is bad)." Fantastic. I'm glad we have that settled.

By refraining from placing some sort of definition to the term "piracy", you by default include such nuances as abandonware, and executable cracking. In so doing, you do nothing to distance yourself from the crackpots that equate "executable cracking" with "funding terrorism". I agree with Cheeze_Pavilion in saying that Archon's application of adverse possession to the subject of abandonware is a great argument to make, and that we need more like it, instead of useless tautologies like "Piracy is bad". Fair enough that you didn't want to go in depth here, but failing to acknowledge the nuance of the issue, even in a brief statement... it just gets everyone nowhere. At least now we know you don't support ThePirateBay in the case of brand-new, AAA games? Glad we've cleared that up...

 

[L.B. Jeffries]

Hey--don't kill the messenger: that's my point. But that's a practical counter-argument, not the uncovering of a contradiction.

The contradiction comes later when you start asking 'so why can't I sell you a car that blows up if you don't get me to make a specific garuntee in the contract of sale that it won't blow up?' I'm just explaining the logic here.

It's a contradiction because you can't say you support intellectual property if you then say only under certain conditions. The entire reason copyright, patent, and licensing laws were created was to encourage people to spread ideas into the public. To then say that a person can legally create a binding control over all artistic works made with their tools is to go against the entire purpose of encouraging creativity.

What is the point of saying you support art if you also say you support people having no right to their art?

*edit*

ARGH, look, I get touchy about this subject. I don't think it's right to just blankly say companies get to have all the right to a mod because of some contract they got someone to click on before they dumped their heart and soul into a mod.

You don't have to agree to that. There's no reason to not fight against it. Look at how many mods have made games better. Have made the developers money. When you have a bunch of people improving the value of a product for no compensation, why on Earth should that be allowed to continue without giving them some kind of rights?

 

[Geoffrey42]

It's a contradiction because you can't say you support intellectual property if you then say only under certain conditions. The entire reason copyright, patent, and licensing laws were created was to encourage people to spread ideas into the public. To then say that a person can legally create a binding control over all artistic works made with their tools is to go against the entire purpose of encouraging creativity.

What is the point of saying you support art if you also say you support people having no right to their art?

All people have the right to their Intellectual Property, as is especially seen when they give those rights away. Modders are not forced to use proprietary toolsets; there is no monopoly on "canvas" that prevents the "artist" from working at all if they refuse to buy in. Modders get a free toolset, a high-powered one that some corporate entity poured bucketloads of money into, and in return, they give up some set of rights to the work which they produce using said toolset.

Additionally, "create a binding control" seems to imply that the modder was not complicit. See above where I rail against the quality of the dialogue between corporation and user, but recognize that insofar as clickthrough agreements are legally binding, the modder IS complicit.

And if you really want to argue that all is fair so long as they fairly warn the modders, don't be shocked if no one wants to make a mod they have no rights to.

As Cheeze said, this is a valid statement, and for the proponents of giving the developer the right to set the terms, the idea might be that this is not the likely outcome of a functional system built around these premises, because it makes so little sense. In the end, the goal is for the desires of the users to have rights to their creations to work against the desire of the tool-maker to wield absolute control by pulling on the desire of the tool-maker to have people flock to their product. The Escapist (from my reading) is not encouraging developers to be a**hats, but instead buying into the notion that a functioning market will reach a desirable outcome for all parties.

P.S. I need to be faster. I already scrapped an entire post, because by the time I got around to hitting Post, Cheeze and Jeffries had already gone another round. I fear what happens as I click now...

 

[L.B. Jeffries]

It's a contradiction because you can't say you support intellectual property if you then say only under certain conditions. The entire reason copyright, patent, and licensing laws were created was to encourage people to spread ideas into the public. To then say that a person can legally create a binding control over all artistic works made with their tools is to go against the entire purpose of encouraging creativity.

What is the point of saying you support art if you also say you support people having no right to their art?

All people have the right to their Intellectual Property, as is especially seen when they give those rights away. Modders are not forced to use proprietary toolsets; there is no monopoly on "canvas" that prevents the "artist" from working at all if they refuse to buy in. Modders get a free toolset, a high-powered one that some corporate entity poured bucketloads of money into, and in return, they give up some set of rights to the work which they produce using said toolset.

What about Little Big Planet where it's actively encouraged? Or Half-life where Counterstrike made the game's multiplayer popular?

I'm not saying the company should lose all their rights. I just don't think it's right that you have Sony and other companies declare they own the things and can do whatever they want in their contracts. Hell, Federal Courts already ruled once that the developer did not own the mods in the case on Duke Nukem mods (Microstar v. Formgen, Inc. 942 F. Supp. 1312 (U.S. Dist. 1996)).

You don't see the people who sell video cameras declaring they have rights to the movies made with them. If a person were to change enough of the art and sound in a game, along with adding their own code, how have they not significantly contributed?

 

[Virgil]

I'm not totally following this. You don't find the contradiction in a person saying they support free enterprise and an intrinsic right to intellectual property BUT supports a developer's right to have absolute ownership of anything made with a tool set they're distributing?

There's really no contradiction here - their right to place restrictions on the content created with their tools is the very soul of free enterprise.

For example, the current darling is LittleBigPlanet. That medium for creation is relatively fixed, and it's fairly clear to those using the tools provided that they're providing free content for that game. It could be more obvious, but I think most people making levels know that they're not going to get any compensation for their creations. They might not know that their work could be used to feature the game though.

Modders get more power using Source - they have a lot of freedom and flexibility to either tweak an existing game or nearly create a new one. The development and distribution is completely open, but they can't sell any of their work without a commercial license.

Second Life, on the other hand, explicitly assigns IP ownership to their users, and their users can (and are encouraged to) profit financially if they can. Lindon Labs does reserve the right to moderation though, and can even block or remove content completely if they want to.

Microsoft, with XNA, is the most open - you can use their tools to create whatever you want, and give it away or sell it if you choose. They're just providing programming tools. Unless you want to push your game out onto the Xbox, in which case you have more hoops to jump through, but even then they're relatively hands-off.

All of these (and more) can co-exist, and they each support the community in different ways at different levels. But when it comes down to it, our position is almost always the one that supports the original creator, and we believe that their rights in determining how their work gets used is absolute.

And if you really want to argue that all is fair so long as they fairly warn the modders, don't be shocked if no one wants to make a mod they have no rights to.

We completely agree with this - this is how it should work. The community should be well-informed as to what the legal limits of the tools they use have so they can make informed decisions before they devote their lives to a project. Either they'll accept the limitations, or they'll find (or create) better tools instead. That's the free market at work.

If you think about it, it really makes a lot of sense in context. The sanctity of the creators rights is the basis of the similar stances we take in our virtual property and piracy positions.

 

[Geoffrey42]

What about Little Big Planet where it's actively encouraged? Or Half-life where Counterstrike made the game's multiplayer popular?

I'm not saying the company should lose all their rights. I just don't think it's right that you have Sony and other companies declare they own the things and can do whatever they want in their contracts. Hell, Federal Courts already ruled once that the developer did not own the mods in the case on Duke Nukem mods (Microstar v. Formgen, Inc. 942 F. Supp. 1312 (U.S. Dist. 1996)).

You don't see the people who sell video cameras declaring they have rights to the movies made with them. If a person were to change enough of the art and sound in a game, along with adding their own code, how have they not significantly contributed?

I see now that I should not have ditched as much of my original second post as I did, wherein I specifically complimented Valve as an example of being nice about their EULA, EA/Maxis as an example of being up-front about what was going to happen to your Spore creatures, and MediaMolecule for doing a bad job of being clear with their users about how moderation was going to work. I have not read these people's EULAs, because I am not a modder, but I'm assuming that they are all similarly brutal.

Note that in an earlier post in this same thread, I talked about the overly broad nature of EULAs and my distaste for the way the companies rely on courts to reduce their scope, rather than being reasonable to start with. With regard to video cameras, you don't see the seller doing so because no one would buy their cameras. As far as I can tell, Duke Nukem is a legal example in your favor, and the video cameras are an example in the Escapist's favor, i.e. when balanced against consumer desires not all companies are so covetous of their tools. Cameras are a bad analogy though; Sony did not invest in and design the camera they sold you from the ground up for the purpose of filming the movie it came with. The camera is a tool in and of itself, sold at a profit for the purpose of allowing others to create their own content. See Garry's Mod, which I believe has no such clause regarding Garry's right to your junk, because Garry is in essence selling you a camera, not content/IP+content creation tool.

In the end, I'm not saying that I'm against the type of regulation you're advocating, and mandating a certain level of user rights with respect to user-created content, but instead that the view espoused by the Escapist is not inherently invalid, just coming from a different angle, specifically a market-driven one.

To your last question, I don't think the question is anything to do with whether or not they have significantly contributed (I think they have, but I think it is beside the point). They entered into an agreement with the corporation of their own free will. If that agreement is unlawful, fine, it is null and void. If it is lawful, then the agreement stands, and the modder/artist loses whatever rights they chose to lose by entering into the agreement. If you want to change the law, then let's talk about what better legislation protecting Intellectual Property rights would look like.

In responding to that question, I end up with a slightly different one. I was originally going to answer with an analogy derived from the design of a car, where I do everything but design the engine, and borrow said engine design from GM. If I produce that car, GM has every right to sue me over the design of the engine, despite the engine being a minority of the effort put into the car by me. On the other hand, if I design a kit that is made to be compatible with the GM engine, and sell it with instructions as to where to obtain a compatible engine, should I be in the clear? I think so. If I apply those two scenarios to videogames, I come up with different results. Spore and LittleBigPlanet seem an awful lot like cars built around a borrowed engine. Mods like CounterStrike seem to be a lot more like kit-cars. Is this a valid difference? Did that make any sense?

 

[Virgil]

By refraining from placing some sort of definition to the term "piracy", you by default include such nuances as abandonware, and executable cracking. In so doing, you do nothing to distance yourself from the crackpots that equate "executable cracking" with "funding terrorism".

I disagree. I think that everyone in the gaming community knows what the definition of piracy is, and doesn't need it spelled out. The only people who need to quibble over the definition are those in need of some self-justification. Trying to nail down a definition of piracy versus abandonware versus whatever else is being lumped in is like trying to distinctly define the difference between pornography and art.

Here's a quick example. Seiken Densetsu 3 (or Secret of Mana 2) was only ever released in Japan, in Japanese. There's pretty much no way to get a copy these days. If you want to play the game, especially in English, the only real way is to download a hacked version of the game ROM that includes a fan translation and play it on an emulator. It's pretty easy for anyone to justify this - not only is it "abandonware" but its also never even been released in this language.

But then, next week, the game suddenly appears in English as a downloadable title on the Wii. Now is it outright piracy, or is it OK because you downloaded it before it was available? What if they're charging $30 for it - is it OK because they're charging a ridiculous price for it? What if the translation is worse?

When it comes down to it, we - the consumer - don't get to make that decision. Someone else, somewhere, owns the rights and our position is that it's their decision to make. Even if we aren't quite sure who the "they" is. As a consumer, our only real decision-making power is to not buy something - if someone doesn't want to sell us something, it's not really our right to take it anyway.

Alex mentioned the grey areas above, where abandonware falls in relation to common law. They really need clarification, to help answer questions exactly like this, but our society's intellectual property laws are well and truly fucked at the moment (so to speak).

 

[Virgil]

You don't see them as much anymore, I guess because this place seems to have really taken off as a business--good for them, they deserve it--and because they write less and less of the articles (again, good for them for being able to get the content rolling in).

I think we jump in just as much (maybe even more, in some cases) but we're just the same-sized splash in a bigger pond these days

 

[Virgil]

For instance, back in the day, hip-hop would sample from all over the place, in an eclectic mix that involved creativity and rewarded the artists for having a large knowledge of music. Now that's basically impossible with what you have to go through to get clearance and the money involved, so instead you get P.Diddy droning his mumbles over a single Police song because it's cheaper.

That's not an argument against developer-specified control on community tools, that's an argument for increasing fair use rights (and decreasing the power and renewability of copyright). I don't think you'll find a similar parallel in tools development - since it's more technological progress than a creative one, they're pretty much always improving.

 

[Geoffrey42]

I disagree. I think that everyone in the gaming community knows what the definition of piracy is, and doesn't need it spelled out. The only people who need to quibble over the definition are those in need of some self-justification. Trying to nail down a definition of piracy versus abandonware versus whatever else is being lumped in is like trying to distinctly define the difference between pornography and art.

Here's a quick example. Seiken Densetsu 3 (or Secret of Mana 2) was only ever released in Japan, in Japanese. There's pretty much no way to get a copy these days. If you want to play the game, especially in English, the only real way is to download a hacked version of the game ROM that includes a fan translation and play it on an emulator. It's pretty easy for anyone to justify this - not only is it "abandonware" but its also never even been released in this language.

But then, next week, the game suddenly appears in English as a downloadable title on the Wii. Now is it outright piracy, or is it OK because you downloaded it before it was available? What if they're charging $30 for it - is it OK because they're charging a ridiculous price for it? What if the translation is worse?

When it comes down to it, we - the consumer - don't get to make that decision. Someone else, somewhere, owns the rights and our position is that it's their decision to make. Even if we aren't quite sure who the "they" is. As a consumer, our only real decision-making power is to not buy something - if someone doesn't want to sell us something, it's not really our right to take it anyway.

Alex mentioned the grey areas above, where abandonware falls in relation to common law. They really need clarification, to help answer questions exactly like this, but our society's intellectual property laws are well and truly fucked at the moment (so to speak).

I disagree. I think that the cacophony of voices on the internet, even within the gaming community, makes many terms full of all sorts of connotations that the speaker does not intend. On these subjects, providing definitions provides clarity, and gives both sides a better view of what the other is saying. I am not quibbling for the sake of self-justification. If I apply a NoCD crack to a legitimate copy of Game X, am I violating the EULA? Most likely yes. Am I breaking the DMCA? Most likely yes. Be me a pirate? Maybe, depending on the definition (dictionary.com's would lean toward yes). Is it really beneficial to lump widespread lost revenue with violation of end-user terms? I say no.

You say yourself that the abandonware issue needs clarification, and the example of Secret of Mana 2 would benefit from such. If there were some law that specified a set amount of time after which software could be considered in the public domain, then we would KNOW where the solid legal line lay between piracy and abandonware. Instead, most of us have this sneaking suspicion that it is good and just that truly abandoned software be made available to those who are interested, but for some reason, the law fails to reflect it. We are left instead with a big swath of legal black and white, which feels awfully grey. For those of us that fail to recognize the Law as all that is Good and Just and Right, we end up with the urge to agitate toward something which better accommodates our instincts on the issue.

You mention above trying to distinguish pornography from art, and I'm going to assume that you meant 'obscenity' as Cheeze pointed out. On that very topic, we have court precedent in the form of the Miller Test. The Miller Test doesn't say "Does it have boobs? Oh, then it is obscene." The Miller Test is an established method for a court to balance between free speech and prohibiting obscenity. We don't have any more concrete a method for identifying obscenity than we did before. It is not "nailed down". But at least we have something approaching a compromise, instead of the one-sided argument we're living in right now.

Remember that old idea of getting a computer to generate all the possible haikus in the English language, publishing them, and then no one could ever write a new haiku? Well, GH and LBP might be the beginnings of that...

For whatever reason, that brings to mind an image of Rome salting Carthage's fields. The death of the English Haiku as we know it.

 

[L.B. Jeffries]

Gah, at this point I can either launch into a philosophical argument about what exactly a mod tool is or just start jabbering about a research paper I posted a few months ago on copyright law and mods.

There is no legal foundation to presume they have some intrinsic right to a product someone has created by changing their original game. There is nothing outside of a contract the user signed confining their rights. Copyright law literally does not have an answer to this question. I don't see why anyone would be in favor of allowing a large group of people to be disenfranchised just because they chose it when they made the mod.

There are countless examples of awful things happening to people yet they "chose it" because they did not know the full consequences. That doesn't make it fair or right. Even with the case of LBP, Sony is actively encouraging people to make levels, then treating them like they own them.

I'm out of this argument because at this point it's not gonna end anytime soon. But I do think the s*** storm is just getting started for videogames as a whole on this topic.

 

[bkd69]

Painting the question as of one "piracy of 10+ years old games" makes it overly simplistic, don't you think?

So do we believe that there should be something similar for games, so that there is a moral and legal point at which a game is abandoned and should be considered to have entered the public domain? Yes.

Does our legal system currently have such a provision for copyright? No. Maybe not. Not sure. Copyright law is a jumbled mess.

Did we want to jumble up our position paper with legal analogies to adverse possession and intricate copyright arguments? No. It would take a full paper in itself. Maybe we will draft that, if there's enough interest. We weren't even sure anyone would read THIS paper!

Painting all piracy as wrong is a bit simplistic, don't you think?

Clearly, (the editorial)you recognize that there is nuance to the issue of illegal copying and distribution in this post, but staking an absolutist position in your paper removes any recognition of that nuance, and establishes an equivalency among all cases of copyright infringement.

I appreciate your desire for brevity, but allow me to suggest this:

While we consider the illegal copying and distribution of games, especially those in the current market, to be wrong in the main, we recognize that there may be some instances where such copyright infringement may not be morally objectionable.

I think that an upfront acknowledgment of such nuance, as opposed to an absolute statement of disapproval, makes for a stronger, and certainly more accurate, statement of position.

Steal means "to take the property of another wrongfully and especially as a habitual or regular practice" and "to take from another without right and without detection." That is the word for what is going on, no?

Other words, such as robbery, larceny, embezzlement, and infringement, are all defined specific legal terms. Stealing is not. Its a synonym for pilfer, filch, and purloin, but it has the virtue of being easily understood in common parlance. "Piracy is pilfering!" lacks bite, no?

Trespass is also easily understood in common parlance, and is a more accurate translation of the legally correct copyright infringement to the common.

The problem with using stealing, is that everybody recognizes that when somebody has something stolen, they've been deprived of it, but when somebody copies something, there's not necessarily a 1:1 valuation of illegal copying:Imaginary Pirate Revenue.

Trespass, on the other hand, is a violation of property rights, which is exactly what copyright infringement is, and people recognize that there are varying degrees of trespass which differ in their damage to property owners.

Does it lack bite? Sure, but then I prefer accuracy to advertising.

 

[L.B. Jeffries]

I'm out of this argument because at this point it's not gonna end anytime soon. But I do think the s*** storm is just getting started for videogames as a whole on this topic.

What people fail to realize is that feudalism ended (if it even existed) not just because we got rid of the idea that the serf owes labor to the lord, but because we made is such that the serf no longer needed the lord's mill.

Didn't the idea of feudalism get started when a bunch of people were left up the creek when their lords could no longer support them?