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Cebus Capucinis

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Posts posted by Cebus Capucinis

    Interesting article

    in Prototypes

    Posted

    Very true. I think it's such an interesting blend of legal technical theory and then actual technological theory that it becomes such a gigantic, convoluted mess that it's very hard to get anywhere within. But then again, how else would attorneys be able to charge clients millions of dollars?

    Interesting article

    in Prototypes

    Posted

    No no, my feelings have never been hurt! I love a good debate, I just wish we could have a pub and a good beer between us for it! :D I am very thankful that you have been around to point out my inconsistencies, it's a very great learning experience for me! I have the interest in law and want to go to law school but I am very lacking in experience and depth and I know that a lot of what I post is conjecture. I am very happy to see someone is capable of slapping down my theories once in a while!

     

    It is always better to have a good debate and be proven wrong than to never learn anything in the first place! Now if you were to insult my mother instead... ;) But nope! Quite the opposite! Very happy to have someone to bounce ideas off and take different viewpoints!

    Interesting article

    in Prototypes

    Posted

    Ah ha! Found it! I am wondering if I was thinking of the registration thing now, because you are absolutely right in that it is clearly stated in the Copyright Act that a work does not necessarily need to be published to be afforded protection. I might be playing really fast and loose with my definition of 'fixed in a tangible medium', which is pretty pathetic now that I think about it because a PCB and a cart is certainly tangible.....

     

    The Copyright Act does state that publication allows for copyright registration for everything before 1989. Of course, after 1989 as soon as it's 'fixed in a tangible medium' -- which I think I should now use as a more concrete definition of creation -- it is eligible. Everything must "bear the notice or risk loss of copyright protection". It's possible that all these prototypes bear the copyright notice, and I'd actually think that they do, but if they do not, it's not copyright protected in its current form. Of course, all they have to do is skedaddle down to the local copyright office and try to register it and you're out of luck, but still, that's an interesting little ray of sunshine for proto archivists. :thumbsup:

     

    Thanks for that definition Nova! That clarifies it quite a bit!

     

    EDIT: For the record I know these threads sometimes get really heated and for that I apologize, I just wanted to state for all that this is a little thing I'm really interested in (copyright law applying specifically to classic video games) and I just really enjoy talking about it and theorizing about how it would work. I'm not the smartest Legal Beagle about it, so I'm very likely wrong on a whole bunch of it (as RevEng can attest!) but I find the theories fascinating. If I am debating with someone please do not get upset or angry with me, I'm not trying to step on anyone's toes, just like talking about it! "I am not an attorney (yet), but I did stay at a Holiday Inn Express last night!"

     

    Crap! RevEng has been writing for like half an hour now! I have to go to work! Hurry up! I want to read your post before I go to work! You have three minutes! :P :D

    Interesting article

    in Prototypes

    Posted

    Curses! RevEng shows up again to disprove my legal ponderings! Actually I'm glad you showed up, my parner-in-not-crime. I was hoping you'd weigh in on this!

     

    You have a good point on that banner ad, and I never thought of that! That would be considered a revenue source and would probably very easily destroy the argument for 'fair use' in this instance. :thumbsup: That in and of itself would disprove the archivist's intent as there would be profit-generated through the banner ad. But, theoretically, with some fancy accountancy magic, you could claim that the revenue source was simply pumped back into the development of the site and therefore doesn't count as a "profit stream", just a cost-balancing measure....but I don't think it would hold up.

     

    Isn't the scope for unpublished works not technically under the guise of copyright, however? I can understand how the scope for fair use is narrower because it is very fishy in the first place how individual A got hold of individual B's unpublished works legally (and I would think that the rule of thumb in this instance is that you should assume anyone who has an unpublished work didn't obtain it above-the-board), but that seems to be more-or-less due to IP and tarnishing, like what you and Nukey are saying. I can understand how they are protected, but I can't see how they're protected specifically under copyright. Maybe I'm thinking of the 'regsitered' thing NovaXpress posted....

     

    From what I'm reading into NovaXpress's loophole any company that didn't register specifically for copyright would just have to attempt to immediately rectify it. If they really wanted to sue your butt (and like we're all agreeing here, it's not going to happen anyway) they could simply attempt to register for it first along the lines of RevEng's "re-release of collection" business idea and you'd likely be in trouble, right? If that's the case then all protos would be a problem, because you don't necessarily have to claim it's an incomplete piece of code, you can just say it's a really, really, really badly coded game? :D

     

    Yeah, the quantity of code would be a pretty big factor in a proto, I would think. That would be a key for 'material difference' in a courtroom -- less code from something registered used, more material difference.

     

    For the record I still hold on my opinion that a prototype isn't afforded the legal standing of copyright on anywhere near the same level as a public-release game. But once again we've never seen it specifically in a courtroom, but it would be interesting to find out how that would work.

    Interesting article

    in Prototypes

    Posted

    The courts tend to side with big business in copyright/IP cases. If someone who sells a unreleased prototype gets sued by Activision they will almost certainly lose.

     

    Can I get a case law citation for this? When has this been in court? I cannot find a single citation for it, and believe me, I've tried. The reason why I've never found a citation is because it never goes to court. It never goes to court because plaintiffs in this instance do not have a case to start with.

     

    People argue about "fair use" every day but the bottom line is that the principles are so vague that an expensive corporate legal team is almost certain to win.

     

    The "principles" of the definition of fair use are clearly defined by court of law and are, in fact, the impinging basis from every single copyright case that has ever been to court since the inception. You will hardly find a clearer definition in law than 'acceptable use'.

     

    Characteristics of 'Fair Use'

     

    You can't conjecture whether they "will win" or not with absolutely no legal basis whatsoever to make that judgment call (not you personally, just anyone in general due to lack of precedent). You can, however, cite the laws as they exist in themselves and stake out a general idea of how a case will pan out. The definitions of fair use are clear and if you were to actually sell a prototype of an unreleased game there's three separate layers in which your defense is solid. This is why it has never been to court as referenced above. Corporations aren't suing people simply because it's a waste of money. Corporations aren't suing people because they don't have a case.

     

    However, big business is all about the bottom line. Even the creation of C&D letters is a huge expense. To actually take a cart seller to court could cost six figures. There simply isn't enough money at stake in the proto business to make such lawsuits worthwhile.

     

    Especially when you consider the fact that they have absolutely no legal basis to stand from in the very beginning because of the clear-cut definition of what 'fair use' entails.

     

    Secondary note: Any corporation large enough to do business in the 6 figures is going to have a legal team on retainer. They're not spending a dime on C & D letters more than they already would be doing if they had their legal team actually drive to your house and hand-deliver them. To claim that this expense is something that a company just doesn't do the bean-counting for is inaccurate. They're paying those attorneys whether they send a letter or not, so they might as well get a few C & Ds or some court-awarded funds to help pay for those attorneys on retainer.

    Interesting article

    in Prototypes

    Posted

    Actually Garfield is a really interesting situation. You have a prototype of a game, which on its face is not copyright protected, that was released in limited numbers, which therefore makes it eligible for copyright protection....in itself very strange! But you also have the licensee issue there as well. Even excluding the prototype status of the game, the game has unique features (characters, settings, activities) that are from Jim Davis' cartoon strip, which is a published work and is therefore eligible for copyright protections. Depending on the nature of the license obtained to get the rights for our little pixelated version of Garfield, a company may act as a proxy in the interests of the original copyright holder and sue the pants off anyone who wants to use Garfield in a video game. This doesn't answer the video game question but it certainly answers the copyright protection question in that instance!

     

    That would depend on the document provided upon licensure release. It would have to be clearly stated that the licensee has the right to act in the interests of the original material holder -- this doesn't appear to be something that is implied. If the licensee does not have that right, then they're out on bupkus because they simply cannot sue third parties in the interest of the first party. Of course, at that point in time Jim Davis himself would likely step in and initiate separate suit in interest of the first party....

     

    I have never seen any case law or any citation that shows that video game prototypes or 'works-in-progress' are given copyright status. It goes back to the 'written on a napkin in a bar' scenario -- just because I produce a napkin that I supposedly wrote down things in a bar supposedly three weeks before someone published the next Great American novel does not mean that napkin is given legitimate status as a 'work-in-progress'. Copyright is meant to define clearly and concisely when a product is 'created' for legal purposes.

     

    It's mostly conjecture because we've never seen a case actually go to court to provide a basis for understanding, but honestly I don't think we ever will. It's too fishy for a company to attempt to force a copyright suit on something that was never released, because the only methodology they have to prove creation dates/times are internal documents and those aren't guaranteed any sort of status as hard evidence, as they can be easily forged or created on the spot. Copyright avoids all of these situations by giving a concrete date of creation, but the qualifier is public release as then you have a large number of witness statements and whatnot as hard evidence to prove the creation.

     

    C & Ds may fly their way across the country and take up reams of papers, but until there's actually a solid, courtroom documented case that proves one way or another, nobody can essentially be 'right' 100% on it.

     

    Of course, this does not mean a company can't sue you anyway. They can easily use the 'deep pockets' strategy to force a settlement on any little guy's part -- just bury you in legal fees to the point that you relent or go bankrupt. It's not an ethical strategy in a court of law but it's a working business strategy. He with the deepest pockets can often win, but he won't actually 'win' in court because a settlement without prejudice doesn't really hold a lot of water.

    Interesting article

    in Prototypes

    Posted

    Um, copyright doesn't protect them, if you'd like to go to Stanford's Fair Use Center and look it up it's right there in front of you.

     

    And no, it's not a "grey area". Something is either copyright protected or it is not. There is no "kinda-sorta-protected".

     

    They can certainly TRY to go after someone, but they have absolutely no grounds whatsoever to do so. The most you'll likely get is a C & D letter in the mail, and we all know how amazingly useful those are for actually proving you have a case.

     

    Now, they can claim Intellectual Property rights, and there you might get nailed, but Copyright in and of itself does not guarantee anything.

    Interesting article

    in Prototypes

    Posted

    Yeah, since the Garfield proto was given a limited public release, it is afforded copyright protection. It doesn't have to be advertised to hell and back and available to millions, but the qualifier is that it has to be -available- to the public. Even if it's just 5 copies sold to close friends and family, it was made available to the public through that venue and is therefore eligible for copyright protections.

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