Well, Derek, it certainly is nice of you to come here and talk about this, but you're dead wrong, and I might just (along with friends) make a mod based on a friend's *copyrighted* work and distribute it, waiting eagerly for your cease and desist letter to challenge it.
As someone else here has already had, you need to get new lawyers if this is your counsel-advised legal opinion. Copyright exists in order to give copyright holders the right to make a reasonable profit from their creations for the duration of the copyright (which is too long right now but that's an entirely different subject). That means that my "friend" has the unalterable right to say to me (and put such in writing), "Sure, Aaron, you are welcome to use Moe, Investigator of the Odd; Robin the Clown; etc. in your role-playing module! Go to town!"
You have no more right to restrict my ability to do this than (as yet another poster pointed out) Microsoft has the right to restrict my ability (having been given permission) to use C++ to create an entirely new video game based on those characters.
I understand that game publishers think (and have apparently been told by their lawyers) that if something is in the EULA, it must be true, but if this type of restriction is pressed I think you are going to find out that you're wrong.
I think you've hit on the best point so far. All Bioware should really need in their EULA is a notation that they, and only they, reserve the right to sell NWN modules for the profit. After all, their position on using copyrighted, obscene, etc. content in modules is clarified in another section, so a more simple (but equally blunt) comment about making a profit on modules is really all they need.
Once they have a comment as above, then they can simply offer mod authors (of whom there will probably be many) a tiny fraction of the profit if and when they do decide to distribute a mod for profit. IIRC, this is what Sierra/Valve did for Counterstrike, and they STILL made a ton of money even though Counterstrike was, and is, still available in its entirety for free on the web.
Once I ready through the complete thread over at Bioware, I understood the part about popular works. I still submit that this is the kind of thing that would get tossed in court if someone chose to fight Bioware on it, much as EULAs in general would.
My bad. When you said two adjacent buildings, I didn't even think of a residential situation. I automatically thought in terms of linking two business-type networks.:)
But regardless of how I feel about their quality, they won't be "distributed." This overbearing clause in their EULA guarantees that the savvy people who don't want their ideas to be stolen and then sold for profit by a company will keep their work to themselves and their friends.
For example, I have a friend who is a writer. If he decided to create and distribute a NWN module based upon a book that he had written, apparently Bioware would, according to their EULA, have the option to simply steal it and gain ownership of all the contents (characters, settings, etc.).
Further, what about modules derived from, or inspired by, popular works? If a module contains characters named Princess Leia, Wolverine or Ripley, does Bioware have the right to claim ownership of those names too?
The more I think about it, the more I realize that Bioware couldn't get away with this if challenged. They can't claim the rights of copyrightable (or copyrightED) stories and trademarkable (or trademarkED) characters by EULA proclamation. I guess it continues to prove that EULAs are a joke.:)
Forgive me for saying the non-geek-friendly thing, but wouldn't it be easier (considering all of the issues you cited) to just run cable and bridge the two networks via Ethernet. Either that, or do VPN over broadband connections to the net?
I can understand wireless for the convenience of wireless notebooks, but with all the caveats that come with 802.11(x) connectivity, if you are looking for a permanent/constant solution (especially between adjacent buildings), physical wiring/bridging would be the way to go.
You're welcome to your narrow views regarding art. I expect that there are a lot of people out there who share them. Perhaps you and the judge in the article can get together and start laying down some rock-solid definitions of what is art and what is not.
"Neither a work of nature nor one of art we get to know when they have been finished; we must surprise them in the process of being created so as to understand them to some degree."
--Johann Wolfgang Von Goethe (1749-1832)
Anyone with the background to evaluate video games ought to know that Doom and Resident Evil are in fact artistic works, at least in the same sense that Jason X and Evil Dead are artistic works. Doom (preaching to the choir) was a pioneer in first-person immersion in a fantasy world (which happened to to involve killing everything you see) and Resident Evil set a standard in terms of the art of the graphics combined with the immersion techniques of the cameras, lighting and storyline.
Really, though, I wouldn't worry too much about this kind of ruling. It's the kind of thing a rogue judge does to get headlines, knowing full well that it will be overturned on appeal. Given that video games involve the production of art, story, music, etc., they easily fall under any reasonable person's definition of speech, and despite their majority conservative bent, the current Supreme Court has proven many times that it is reasonable.
Why not? We were in a relative boom time for a long time there. Besides, if the price went from $1/ticket to $2/ticket (or something similar), of course the gross would double. Believe me, Hollywood would double up on us now ($16-20 per tickeny, anyone?) if they thought they could get away with it.
You're forgetting about the retirement plan. Not only does he take home a healthy paycheck from the government for the rest of his life, but he also gets buckets of free money anytime he attaches his name to anything or shows up and says a few words at an event.
It's too bad that Bob Dole didn't make it to the White House back in the day. Imagine the cachet for the Viagra people, getting an ex-president instead of an ex-senator...Hmmmmmm...Shades of Bill's future?
"Don't misunderstand. I know that Tivo's system has been scrutinized to a ridiculous degree and that their clamis as to keeping data nonspecific in an individual sense have been demonstrated (through examination of logs and code) to be true. I was merely pointing out that the ID number IS there, so they could potentially do the same thing, i.e. if they were ordered to by some numbnuts of a magistrate.:)" (Note that this is the first time I haven't bothered using the "Preview" button; must stay in that habit.)
Don't misunderstand. I know that Tivo's system has been scrutinized to a ridiculous degree and taht their claims as to keeping data nonspecific regarding individuals. I was merely pointing out that the ID number IS there, so they could potentially do the same thing, i.e. if they were ordered to by some numbnuts of a magistrates.:)
I have indeed exchanged videotapes. I've recorded movies and loaned them to friends. I've, yes, made MP3s of CDs and given them to friends. Guess what? None of those things are legal.:)
The usual IANAL applies, but my understanding of the case was that it addressed "timeshifting" (recording something for later viewing) and that was all. In fact, what I recall from reading about it is that even the judges who aligned with Sony in the Betamax case had concerns about the possiblity of even the archiving of shows for the long term, thus potentially taking away from later profits off rebroadcasting or selling/renting of copies of the program.
You can head over here for the EFF take on "fair use," and note that there is no mention of distribution of copies.
As a bonus, here is the relevant portion of the opinion in the infamous Betamax (Sony v. Universal) case:
(c) The record and the District Court's findings show (1) that there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i. e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time); and (2) that there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. Pp. 442-456.
You're talking about two different functions, however. There is the LAN function where two PVRs can stream off each other (very nice feature, BTW) and then there is the Internet sharing function which allows the sending of shows to boxes outside the house; one can be used exclusive of the other.
The simple fact is that every show sent from one Replay box to another *over the Internet* is, most certainly, a violation of copyright unless it is a program (i.e. home video) produced by the sender. The whole HBO example is a more clear-cut example of the point, however, every other network would fall under the same protection. For example, Fox can distribute copies of The X-Files all they want want, in any format they wish, since they hold the copyright. However, if I decide to send someone a VCD with an episode on it I am violating copyright law. This holds true in terms of electronic transmission as well. It doesn't matter one whit that The X-Files is available - being broadcast over the air, cable and satellite - potentially to every person in the country. The minute I distribute a copy of it, I'm in violation.
There's no way for SonicBlue to win on the show-sending issue, and I certainly hope that they cut their losses ASAP.
Ah, but in May 2001 the ReplayTV 4000 series didn't exist yet, and those are the devices that the magistrate wants to collect information from despite the fact that those devices have never had that capability. If this were about the older Replay devices (Replay 2000/3000/Panny Showstopper), then the discovery might be reasonable. As it is, they truly would be invading the privacy of customers who never had that problem before.
I don't think the Commercial Advance will be ruled anything but reasonable. You are correct that it is functionally no different (and in fact the exact same licensed technology) from the same feature in some VCRs. The only difference in functional terms is that with a PVR, unlike a VCR, skips the commercials instantaneously because it is a random access device.
As for the show-sending feature, I would seriously doubt that anybody who is "proved" to have sent a copyrighted show will suffer any penalties. The likely outcome is simply that that functionality will be ordered to be removed in a software revision.
By the way, the distinction between sharing shows recorded from HBO and sharing shows recorded on ANY other network is irrelevant. ALL of the shows you would record off a cable, satellite, or even just a regular antenna, are protected by copyright and it IS technically illegal to distribute them, whether for money or not, and whether to family and close friends or not.
I think, in retrospect, that SonicBlue made a huge mistake in including this feature (cool and handy though it is) in their boxes in the first place. Unfortunately, they could suffer pretty severe penalties for having provided a distribution method that is used 99.999% of the time for redistributing copyrighted material.
It gives them the opportunity to prove that copyrighted material is moving between ReplayTV users. I'm sure that the lawyers for SonicBlue are taking great pains to point out the legal uses (i.e. sharing home videos with distant relatives without sending videotapes) of the show-sending capability, so the lawyers on the other [evil] side will use the collected data to prove that their copyrights are being violated. The "VCR exemption" for timeshifting, unfortunately, does not apply to passing shows around, even on tape, and even with relatives and close friends.
The show-sharing function likely will have to be disabled (or crippled so that you can't send anything recorded from a cable/broadcast network).
You're quite correct, and in fact there is a disclaimer on the ReplayTV 4000 product that tells the consumer they have the right and ability to remove/change features at any time. I'm sure a marketing person would be mildly deceitful and say that the disclaimer is there so that they can update the software with new functionality, but anyone who knows anything about the current lawsuits knows that the disclaimer is there so that they can point to it when people try to send their boxes back after show-sending and/or Commercial Advance have been disabled on their boxes.
I would note, however, that if they try to jam commercials down our (PVR owners/users; I have Replay 2004 and Panasonic Showstopper [Replay-based]) throats, we just won't buy another one. I have no use for a PVR (or TV for that matter) if the broadcasters are going to take over to that extent. After all, I enjoy books and video games too, and there are plenty I haven't read or played yet.
Unfortunately, I don't think that Replay has a leg to stand on in terms of their "show-sharing" feature since everything recorded from broadcast television (including PBS, it's worth noting) is covered by copyright.
What I would be more afraid of, however, is if part of the data collected included the use of the very cool "Commercial Advance" feature. This is older tech (originally in VCRs) that skips commercials automatically with about 95% accuracy. The beauty in a hard drive-based PVR, of course, is that this skipping happens virtually instantaneously instead of with a VCR-type fast forward, thus allowing you to miss even the fast scan of the commercials.
Why should that scare me? Because judges aren't immune to pressure from corporations and other branches of the government, and a creative lawyer could make an argument that the feature violates the "rights" of the broadcaster to have their commercials viewed. Admittedly, it would take a lot of circumlocution, but we've seen strange stuff in the legal system before ("If the glove doesn't fit...").
Well, even Tivos have unique serial numbers (which is how they know if you paid your bill or not for guide service). Of course, even if there weren't a unique serial number on each device, since 99% of ReplayTV 4000 owners are connected via broadband, their IP addresses (certainly at least the static ones) could be used for tracking as well when they contact the ReplayTV server to get guide data.
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As someone else here has already had, you need to get new lawyers if this is your counsel-advised legal opinion. Copyright exists in order to give copyright holders the right to make a reasonable profit from their creations for the duration of the copyright (which is too long right now but that's an entirely different subject). That means that my "friend" has the unalterable right to say to me (and put such in writing), "Sure, Aaron, you are welcome to use Moe, Investigator of the Odd; Robin the Clown; etc. in your role-playing module! Go to town!"
You have no more right to restrict my ability to do this than (as yet another poster pointed out) Microsoft has the right to restrict my ability (having been given permission) to use C++ to create an entirely new video game based on those characters.
I understand that game publishers think (and have apparently been told by their lawyers) that if something is in the EULA, it must be true, but if this type of restriction is pressed I think you are going to find out that you're wrong.
-Aaron
Once they have a comment as above, then they can simply offer mod authors (of whom there will probably be many) a tiny fraction of the profit if and when they do decide to distribute a mod for profit. IIRC, this is what Sierra/Valve did for Counterstrike, and they STILL made a ton of money even though Counterstrike was, and is, still available in its entirety for free on the web.
-Aaron
-Aaron
-Aaron
Um, you might not have noticed, but USB is standard (usually alongside Firewire) on many, if not most, of Sony's hardware products, including the PS2.
For example, I have a friend who is a writer. If he decided to create and distribute a NWN module based upon a book that he had written, apparently Bioware would, according to their EULA, have the option to simply steal it and gain ownership of all the contents (characters, settings, etc.).
Further, what about modules derived from, or inspired by, popular works? If a module contains characters named Princess Leia, Wolverine or Ripley, does Bioware have the right to claim ownership of those names too?
The more I think about it, the more I realize that Bioware couldn't get away with this if challenged. They can't claim the rights of copyrightable (or copyrightED) stories and trademarkable (or trademarkED) characters by EULA proclamation. I guess it continues to prove that EULAs are a joke. :)
-Aaron
I can understand wireless for the convenience of wireless notebooks, but with all the caveats that come with 802.11(x) connectivity, if you are looking for a permanent/constant solution (especially between adjacent buildings), physical wiring/bridging would be the way to go.
-Aaron
Good d'oh to you all.
"Neither a work of nature nor one of art we get to know when they have been finished; we must surprise them in the process of being created so as to understand them to some degree." --Johann Wolfgang Von Goethe (1749-1832)
Really, though, I wouldn't worry too much about this kind of ruling. It's the kind of thing a rogue judge does to get headlines, knowing full well that it will be overturned on appeal. Given that video games involve the production of art, story, music, etc., they easily fall under any reasonable person's definition of speech, and despite their majority conservative bent, the current Supreme Court has proven many times that it is reasonable.
-Aaron
-Aaron
It's too bad that Bob Dole didn't make it to the White House back in the day. Imagine the cachet for the Viagra people, getting an ex-president instead of an ex-senator...Hmmmmmm...Shades of Bill's future?
-Aaron
America works harder so you don't have to. :)
"Don't misunderstand. I know that Tivo's system has been scrutinized to a ridiculous degree and that their clamis as to keeping data nonspecific in an individual sense have been demonstrated (through examination of logs and code) to be true. I was merely pointing out that the ID number IS there, so they could potentially do the same thing, i.e. if they were ordered to by some numbnuts of a magistrate. :)" (Note that this is the first time I haven't bothered using the "Preview" button; must stay in that habit.)
-Aaron
-Aaron
I have indeed exchanged videotapes. I've recorded movies and loaned them to friends. I've, yes, made MP3s of CDs and given them to friends. Guess what? None of those things are legal. :)
You can head over here for the EFF take on "fair use," and note that there is no mention of distribution of copies.
As a bonus, here is the relevant portion of the opinion in the infamous Betamax (Sony v. Universal) case:
(c) The record and the District Court's findings show (1) that there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i. e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time); and (2) that there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. Pp. 442-456.
-Aaron
The simple fact is that every show sent from one Replay box to another *over the Internet* is, most certainly, a violation of copyright unless it is a program (i.e. home video) produced by the sender. The whole HBO example is a more clear-cut example of the point, however, every other network would fall under the same protection. For example, Fox can distribute copies of The X-Files all they want want, in any format they wish, since they hold the copyright. However, if I decide to send someone a VCD with an episode on it I am violating copyright law. This holds true in terms of electronic transmission as well. It doesn't matter one whit that The X-Files is available - being broadcast over the air, cable and satellite - potentially to every person in the country. The minute I distribute a copy of it, I'm in violation.
There's no way for SonicBlue to win on the show-sending issue, and I certainly hope that they cut their losses ASAP.
-Aaron
-Aaron
As for the show-sending feature, I would seriously doubt that anybody who is "proved" to have sent a copyrighted show will suffer any penalties. The likely outcome is simply that that functionality will be ordered to be removed in a software revision.
By the way, the distinction between sharing shows recorded from HBO and sharing shows recorded on ANY other network is irrelevant. ALL of the shows you would record off a cable, satellite, or even just a regular antenna, are protected by copyright and it IS technically illegal to distribute them, whether for money or not, and whether to family and close friends or not.
I think, in retrospect, that SonicBlue made a huge mistake in including this feature (cool and handy though it is) in their boxes in the first place. Unfortunately, they could suffer pretty severe penalties for having provided a distribution method that is used 99.999% of the time for redistributing copyrighted material.
-Aaron
The show-sharing function likely will have to be disabled (or crippled so that you can't send anything recorded from a cable/broadcast network).
-Aaron
I would note, however, that if they try to jam commercials down our (PVR owners/users; I have Replay 2004 and Panasonic Showstopper [Replay-based]) throats, we just won't buy another one. I have no use for a PVR (or TV for that matter) if the broadcasters are going to take over to that extent. After all, I enjoy books and video games too, and there are plenty I haven't read or played yet.
-Aaron
What I would be more afraid of, however, is if part of the data collected included the use of the very cool "Commercial Advance" feature. This is older tech (originally in VCRs) that skips commercials automatically with about 95% accuracy. The beauty in a hard drive-based PVR, of course, is that this skipping happens virtually instantaneously instead of with a VCR-type fast forward, thus allowing you to miss even the fast scan of the commercials.
Why should that scare me? Because judges aren't immune to pressure from corporations and other branches of the government, and a creative lawyer could make an argument that the feature violates the "rights" of the broadcaster to have their commercials viewed. Admittedly, it would take a lot of circumlocution, but we've seen strange stuff in the legal system before ("If the glove doesn't fit...").
-Aaron
-Aaron
"I've got 10,000 Dwarven ale futures at 2-1/3! Who's buying?!"
-Aaron