Yesterday I learned that Trademark Law Does Not Require Companies To Tirelessly Censor the Internet. I didn’t know that. Bioware does have a choice. And in this case, as far as I remember it, Bioware still hasn’t contacted anybody, so it’s all happening between EN World, the Ennies, and the Don Mappin, the author.
Also, the PDF has a disclaimer at the very beginning:
What This Book Is Not
To be clear, this is not a licensed Mass Effect property. Mass Effect is the property of Bioware, a division of Electronic Arts. This is a work of fiction and done without their permission or involvement. No attempt to challenge their legal authority is intended in the publication of this material. Instead, it is our hope to expand the outreach of the Mass Effect property to another segment of games—role-players—who have long coveted a way to bring the events of Commander Shepard to life at their gaming tables. This product comes with one very important and unconditional stipulation:
UNDER NO CIRCUMSTANCES MAY THIS PRODUCT BE CHARGED FOR OR RENUMERATION EXCHANGE HANDS. IT MUST REMAIN FREE OF CHARGE.
As the sole property of Bioware/Electronic Arts, only they have the rights to benefit from the Mass Effect Universe. As such, this work is the result of countless unpaid hours and volunteer work to make it possible to bring to you. Why? Because we’re gamers too and we love Mass Effect just as much as you do!
I guess I'm mostly interested in outcomes. I really like the US constitution in this respect: “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. I want more useful stuff as fast as possible. Having the Mass Effect RPG out now, fan made, is great. It’s better for the gaming public.
What about the artists? The way I read the artist attribution page in the Mass Effect RPG, all those images were available on the Internet, on blogs of concept artists, on Deviant Art. So, without considering copyright law and just considering outcomes, these artists made things available for free, and now what they made is more available, for free. The author of the Mass Effect RPG doesn’t charge money for it. Presumably he’d share his gains with the artists in some way, if he were to make any money. But he isn’t, so he doesn’t. So, it’s still better for the gaming public, and it’s better for the artists, too. Yes, they had no voice, there was no negotiation, this doesn’t consider copyright. All I’m looking at is outcomes.
As far as I’m concerned, I’m with Don Mappin, here. I wish that copyright law was different. I wish that the fair use exception to copyright were clearer. As it is, it’s incredibly hard to tell whether something falls under the exception or not. That’s not good.
I'm not a lawyer, and I’m looking at the points one ought to consider:
Reading through the Wikipedia page and following along, as a layman might be expected to, I guess:
The use was not really educational – or can a game be educational? Maybe? It teaches you how to run a Mass Effect RPG using Fate rules? Does it help “fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public”? It sure looks like it to me. To me, the process of turning the video game into a set of rules for Fate is transformative, not merely derivative.
Nothing in the nature of the game seems to warrant more or less protection than usual. It doesn’t rightfully belong to the public domain. All the artwork the author used had already been published, even if not intended for use in the game, so we don’t need to consider “the aspect of whether the copied work has been previously published”.
As for the amount, I think that the material taken from the game itself is definitely not major. We’re talking some of the background material, the description of things in the game. But the games are about so much more. Characters, plots, levels, graphics. The material taken from artists is major, however. Basically the entire picture was used. I started making a little survey by searching for the first ten items on the artists credits page of the Mass Effect RPG:
Looking at the numbers. Fan art: 15. BioWare: 3. Others: 1. Continuing the analysis of “amount”, I’d say that the amount of art-work taken from the Mass Effect series out of the copyrighted material by BioWare isn’t so big: 3 pieces out of a huge work. As for fan art: If they are not violating BioWare’s copyright because of the fair use exception, then another piece of fan art reusing them should not be violating BioWare’s copyright, either.
So, what is fan art? FAQ #572 has some information: “Original fan art are those works in which the submitting artist has done 100% of the work but the work itself depicts characters, scenes or other themes which were properly created by another creative person. […] Fan art may be copyright infringement and you may be forced to remove it by the copyright owner who may also choose to initiate other legal action.” I’m not sure that BioWare is interested in going after fan art in this respect. Therefore, my understanding of fair use and fan art leads me to suggest that we’re in the clear, here.
That leads us to the last point in the fair use examination, the effect upon the work’s value. Does BioWare and it’s Mass Effect based revenue suffer? Not at all, because they’re not selling a role-playing game. Now, if they were, perhaps they’d be justified under the law to go after the existing game. Now you have to argue that a company wanting to make money making a licensed game is being deterred from entering the market because the existing free fan-made game is so good, taking it down will produce a lot of bad blood. But from a customer’s perspective, that’s OK. We have copyright in order to promote the useful arts. If the useful arts are being promoted without copyright, then that’s even better. This is not an outcome to dislike, at all.
I’m still with Don Mappin.
I think we need to be careful, here. The copyright lobby is so strong, it keeps extending the copyright protection time window, it keeps bombarding us with annoying messages as we play a DVD or go to the movies. This is a war being waged about our hearts and minds. And they have all the money to run their campaigns and we have nothing except our will to share everything because we’re nice and willing to help our neighbors. That is why I don’t like people saying: “I hope that Don rebuilds and reposts the files, this time only including his work.” If we have a fair use exception to copyright, then this exception is our right. It’s a mess to figure out and and it’s hard to be sure, but if we assume that everything Don made falls under fair use, then he should not have to repost the files, and he should be free to include the works of others. That’s how we build on each others’ work. That’s how progress is made. We don’t create ex nihilo. Fair use is our right.
What about the ENies? I understand their decision. The entire thing was a hot potato. They had to make a decision, fast. And I’m guessing they don’t have legal defense funds and lawyers at their disposition. That’s how the scare tactic works. We’re afraid to exercise our right, the associations we build are afraid to exercise our right. How will we learn to claim what is ours except by pushing the boundaries and arguing for our rights?
Comments here or on Google+.
I guess it’s fairly obvious where I stand. Free Culture! Maybe Cory Doctorow’s piece can serve as an introduction, Firefox’s adoption of closed-source DRM breaks my heart.
(I also fixed some typos in this copy.)
From: Alex Schroeder <email@example.com>
Dear Mr. Gal
I recently learned of Mozilla’s decision to include DRM in their product. In the past, people have been switching from IE to Firefox. It was the obvious choice. These days people seem to be switching to Chrome. Apparently it is faster or whatever. I didn’t care very much, because I felt that Firefox was the obvious choice for users that valued their privacy and their freedom. None of my peers made the switch to Chrome because they wanted DRM. Those of us who stayed with Firefox, those of us who keep recommending Firefox to younger users, those of us who care about privacy and freedom, however—we might end up leaving. I’m not quite sure what I’ll choose instead. Perhaps it will simply be Iceweasel.
By choosing to cave in to the demands for DRM, Mozilla has become one of them instead of remaining one of us. It hurts! From what I’ve read online, Mozilla has tried to soften the blow, and I appreciate that. Nevertheless, DRM is a symbol of oppression instead of freedom. DRM is a symbol for disenfranchisement instead of empowerment. DRM is a symbol for big business streaming their content down to silent users instead of Remix Culture. Is this the future we want for ourselves? Even if a lot of people wanted this future, is this the future Mozilla wants? Instead, Mozilla could be the future it wanted to be. DRM takes away the rights we have as users and forces us to place our trust in companies that only think of our money. We must necessarily hope that in their mercy they will allow us to exercise our rights (Fair Use and similar regulations in other countries).
To illustrate this absurdity, I’d like to illustrate the situation here in Switzerland where I live. I have the explicit right to make copies of copyrighted works for myself and my close circle of friends and family. DRM prevents me from exercising this right. In order to exercise my right, I need to use software that removes DRM, and this is legal in Switzerland. Advertising for such software, however, is illegal. What were they thinking? I don’t know. All I know is that DRM is degrading. It tramples my rights and requires me to dabble with the Dark Side. That’s not the future I want to be!
All of the above doesn’t even touch the issues around Free Software and proprietary DRM blobs. Yuck!
I’m not sure if there’s a good way out of this situation. In Mitchell Baker’s blog post she said that each user “will be able to decide whether to activate the DRM implementation or to leave it off and not watch DRM-controlled content.” Perhaps a good first step would be simply distribute two versions of Firefox: Firefox and Firefox+DRM. The unfortunate symbol would still stand. The separation would have benefits, however: The separation would make sure that the separation remains a simple one on the source level. It would make life easier for people repackaging Firefox as totally free software. I’m thinking of Iceweasel, obviously. It would make it easier to ditch DRM later. It would assure us that the sandbox wasn’t even there if we didn’t want it. Less code to maintain, less code to review, less bugs to fix, for those of us that don’t care about DRM. It would also allow you to discover whether 30% of the traffic also corresponds to 30% of the users. Who knows whether that is true?
Anyway, I’m hoping to see Mozilla leave at least a foot and hopefully all of its feet in the free software camp. I’d love to see Mozilla take steps to make a change in course at a later date easy to implement. Pack the flexibility to change the stance on DRM into the source code, don’t just make it a setting.
Almost every country has some exceptions to copyright law. You need those in order for a modern society to work. In the US, it is called Fair Use. In Switzerland, the exceptions are listed in the copyright act itself. My favorite of these is for personal use. In other words, you are allowed to make copies of protected works for personal use. You are not allowed to distribute copies to strangers on the Internet, but amongst friends and family, copying is OK. In fact, you pay a tax on all consumer goods on which copies can be stored in order to remunerate authors. Empty tapes (remember those?), blank CDs, iPods and other MP3 players, hard disks… all of these are more expensive because of this tax. In return, you are allowed to copy things from friends and family. This is great.
Yesterday I was talking to a friend about a PDF for a game one of us might possibly have and he said he wouldn’t mind sharing with us since we were only going to play it once or twice. I was confused and explained that it was perfectly legal for him to share it with us. He laughed and said “but, you know, on moral grounds…” I was even more confused. Apparently the constant propaganda of the recording associations, of the movie associations, of the various collecting societies had already convinced him that he was doing something wrong even though it was perfectly legal and even though he had paid for the right to do it.
Remember how the Swiss government said in 2011 that there was no need to change copyright. Most significantly: there was no need to criminalize downloads for personal use. This was around the time of SOPA and NDAA. Sad panda times. And they just won’t stop. In 2012 the government decided to create a commission to investigate the need for reform and in 2013 they delivered a report. On Twitter, @olknz sent me a link to a discussion of the AGUR12 results (the German “Abschlussbericht”). It has some recommendations which look mostly helpless (IP and DNS blocks, best effort to not overblock, make sure there’s legal recourse), the need to inform the public about its rights (my point when I started writing this post), a general inability to adapt to the future of e-books (failing to see how and why the future is being dominated by Google, Amazon, Apple and Barnes & Noble, all of them US companies).
It’s a good read, if you read German. Thanks, Oliver Kunz.
Recently John Payne talked about distributing RSS feeds in eBook form on Google+. Interesting idea, and the resulting discussion of copyright and feed aggregation soon touched upon the Old School RPG Planet. Ian Borchardt correctly said “Just because the authors post their work to the web doesn’t mean they forfeit their copyright. If you collect this work into another form, you are violating their copyright.” Andy Standfield replied “This has all already been covered by many courts and legal experts. This is all considered fair use.”
I started to wonder. Many courts? I decided to google for some more information and found What’s the law around aggregating news online? A Harvard Law report on the risks and the best practices. This 2010 article said that all the parties settled before a finding was made. In the US, that would mean we don’t really know. The article also has a longer section about the Fair Use test and how to apply it. In addition to that, the situation would be different outside the US – possibly more restrictive here in Switzerland, for example.
Drinking my coffee I thought about it some more and finally decided to take the Old School RPG Planet offline. I wasn’t really using it anymore and I really dislike the idea of further discussions with annoyed blog authors. I also didn’t feel like contacting a hundred bloggers, most of whom don’t have their email address on the front page of their blog. The site should now redirect to the Legacy D&D section of the RPG Bloggers Network. It supposedly does more or less the same thing, except that the authors have to register their own sites. Too bad the RPG Blog Alliance doesn’t have categories.
November 25, 2013. Creative Commons released 4.0 versions of their licenses. Yeah! More info on their blog.
Cory Doctorow says the following on BoingBoing, which is where I learned about the new versions:
I must say, I was always a bit annoyed when I saw the local versions of Creative Commons licenses. What does it mean for me, when I live in Switzerland, host stuff in the US, and said stuff is based on the Canadian port of the license? The FAQ now says: “Unless you have a specific reason to use a ported license, we suggest you consider using one of the international licenses.” :ok:
I also often wondered about additional rights we have here in Europe. For example, I might allow you to make copies of my face, but I can still control the use of said copies here in Switzerland using my “personality” rights. The blog post announcing the 4.0 versions of the licenses now says: “Where the licensor has publicity, personality, or privacy rights that may affect your ability to use the material as the license intends, the licensor agrees to waive or not assert those rights.” :ok:
Today I was asked via email whether the author of a One Page Dungeon released under the Creative Commons Attribution Share Alike license could revisit the adventure and release a different (longer?) version using a different license. Here’s what I replied, slightly edited.
You can release everything you ever wrote under as many licenses as you want. Thus, you can work on your previous One Page Dungeon Contest entry, with the same map or a different map, the same or a different text and release it under a proprietary license, a Creative Commons license, or whatever other license you like. The situation is different if you’re building on somebody else’s work: somebody else’s map, somebody else’s monsters, etc. This is true for any other of your One Page Dungeons. You wrote it, you get to change it and release it anyway you want. The only thing you cannot do is prevent other people from building on those old One Page Dungeons that you released under a CC license. But that covers only that particular map, that particular text and doesn’t affect anything else you care to publish.
You’re good to go!
Feel free to send me any other licensing questions. I’m not a lawyer but I’ve been thinking about licensing issues for a long time.
I liked the Boing Boing article about the recent DRM problem: A woman living in Norway had her Kindle wiped by Amazon and was not given an explanation. What I loved was this logo:
Nice set, by the way: Librarians Against DRM. :ok:
Note to self: Today I replaced my AirPort Express with a new one. The old one was simply unreachable and resetting it made no difference. I bought it back in 2005. It lasted for seven years. That’s pretty good.
I’m once again dreaming of an OpenWlan, specially in the light of recent decisions:
I’m not happy with the Open Gaming License (OGL). What frustrates me the most are greedy publishers who declare everything important to be Product Identity.
I wanted to set up a wiki for fan generated content based on Necromancer Games’ book Bard’s Gate. To my surprise, I found the exact wording of the license precluded the reuse of anything important. That’s when I realized that the OGL can be cool, but it often isn’t. Unfortunately, the D&D 3.5 SRD came with the OGL and that’s why we are stuck with it.
No wonder the Bard’s Gate fan site promised in the book never materialized. The lock down certainly worked. The book has basically disappeared from our memory. I still have an archive of the wiki I started back then. Maybe I’ll get to use it in ninety years. Right.
Another example of how things are needlessly complicated by the OGL: The wiki Campaign:Monsters collects monsters for old school games. Making sure that the right OGL is linked is a major pain compared my fantasy alternative where the license says: “chapters bla bla and bla as well as all the magic items and feats are are in the public domain”.
When I wanted to import the Tome of Horrors with Swords & Wizardry stats into the Monsters wiki, I realized that I would basically have to rewrite all the monster descriptions because nothing but the name and the stat block were Open Content. Disappointing, again.
Unfortunately, the Creative Commons Attribution Share-Alike (CC BY SA) alternative could be used to the same effect: requiring the listing of all the previous authors. The only thing that we would save is a page of legalese.
What I want is a viral license that “infects” the other parts of the works. No derivatives where all the new stuff is proprietary. I guess if you argued that importing monsters from a CC BY SA source into your book constitutes an adaptation and not a collection, then the CC BY SA does in fact “infect” your entire derived work.
This is a different trade-off. Perhaps no company would have jumped on the band-wagon back in the days of D&D 3.0. These days, however, as a consumer that is active online, that acts as an independent publisher like most of us do and wants to distribute derivative works in campaign wikis, blog posts, PDF documents, etc. – these days I find the CC BY SA license or the public domain to be much preferable to the OGL.
For a different perspective, check out Stuart Robertson’s Why I'm Not Using the OGL.