Author Topic: C&D: Director's Response  (Read 24511 times)

cool_boy_mew

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Re: C&D: Directors' Response
« Reply #75 on: May 13, 2009, 01:29:30 am »
What companies fail to understand is that the fans keep the game/series alive through stuff like this. Not only it would have been a good way to keep the fans hyped about the series, now they just angered the fans and made the company looks bad. It's stupid. They alread did themselves a good amount of damage with al lthe bad press about it when they could have just shut up and let it go, they would have lost nothing and gained a more solid fanbase.
« Last Edit: May 13, 2009, 01:31:22 am by cool_boy_mew »

ravenl0rd

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Re: C&D: Directors' Response
« Reply #76 on: May 13, 2009, 01:32:03 am »
That's right, stick it to the man!

Seriously, I wouldn't go to court with these guys.  A compromise is the only hope here.  From what I understand, Glenn27,  they are trying to open up lines of communication.  Chill out a little bit.

RedNeckJiuJitsu

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Re: C&D: Directors' Response
« Reply #77 on: May 13, 2009, 01:33:38 am »
Okay. I'm gonna try to give a full analysis of this situation here, as I see it. I'm not a lawyer, but I just finished up a class on Intellectual Property, the vast majority of which was spent on copyright. I could try to email the professor and see if she'd give me her opinion on it, but I have a feeling it would be about the same as I come up with as I work my way through it here. (Also, I started on this about 4:00 in the afternoon, Central Time in the US, and came back to it about 10:30, and I didn't refresh the page. So, if anyone has said any of what I say in here, I apologize).


Under US law, Section 106 of the Copyright code gives 6 exclusive rights to the creators/owners of IP.

Quote from: www.copyright.gov
106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

CE would fall under the area of "derivative works", since it would be a "mid-quel". Now, obviously, there's a lot of various fan fictions for different series, whether video games, TV, movies, books, etc. Generally, even though these works are derivatives of the originals, although they make not necessarily be embraced by the copyright owner, they're at least tolerated, as the copyright owners 1) don't want to alienate their fans, and 2) don't think that it'll hurt the market for their own derivative works.

Looking at it from SE's perspective, while they allow other fan fiction, there's 2 main issues here. They probably feel that the release of the CE patch would encourage people to illegally download a CT rom, and that the downloading of the rom would likely discourage many fans from purchasing CTDS. Also, although CE is a patch for the SNES rom, it still makes use of and modifies their original CT game. A similar idea is that of sampling pieces of music to use in the creation of new music. Done with permission from the copyright owners, it's okay, but when done without permission, it has been the cause of many lawsuits. Sometimes the bits taken are so small that they constitute fair use, but that's pretty rare. Think of the CE situation like this: CE takes a couple little snippets of music (some from CT, some from CC) and uses it as part of the creation of a whole new song. It doesn't use much, just enough that it's recognizable. Even though this new song gives credit to the creators of the first 2 songs, it's still using those pieces without the permission of the owners.

Now, I mentioned fair use. There are limitations on the Sec 106 exclusive rights of copyright owners, but exactly what constitutes fair use will vary from case to case. Looking at what the law says,

Quote from: www.copyright.gov
107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Now, fair use isn't so much an allowance as it is a defense to a claim of infringement. You may look at the 4-part analysis for fair use and think something (like CE) falls under it. SE may look at it and say "No way in hell does it fall under fair use." The only way to know for sure is if it goes to court. And even then, with appeals, you may get 3 different answers before it's settled (provided it makes it to the Supreme Court).

My personal take on whether or not CE is fair use... Well, let's see:
1) purpose and character of the use - obviously, it's non-profit, and while that doesn't make it a shoe-in, it does make it a lot easier than if the CE team were charging to download the patch, a patched ROM, or even had ads on the site (well, I'm assuming they don't. Somebody else said their no ads on the compendium, and I'm gonna take their word for it, since I have ad-block on my firefox). As we well know, CE wasn't meant to take the place of a possible future SE Chrono title, just give the fans something to keep them into the series, as well as fuel their own creative desires and see how others liked them. To me, that would help push towards fair use.
2) nature of the work - the work in this case is a patch for a rom of used in the emulation of an obsolete gaming system. There may be something in the DMCA about obsolete tech. I dunno, didn't stay on it much in class besides discussions of YouTube, digital transmissions, and such, but even without it, knowing that the Super Nintendo hasn't been available commercially since like 1998 would again get me leaning towards CE being fair use. On the other hand, the game was just re-released for the DS, which is a new system. Granted, there are some additions and changes in the new release, but it's still the same game. Kinda like how 2 people can record the same song. That being said, the patch is intended for backup copies of the old game, and not the new.
3) amount and substantiality of portion used - obviously I can't completely comment on this, since I wasn't a tester or creator, but from what I remember reading about and seeing screenshots of, this would be a weak point in the fair use defense. Even though CE is a completely new game, it uses stuff from the CT game. It obviously uses the main characters, as well as supporting characters, places, items, etc. Obviously the point of CE was to make a new game with the CT engine that tied together CT and CC. While it's a whole new storyline, the fact that it uses the CT rom and so many things from the Chronoverse would definitely lessen the chances of it being seen as fair use.
4) effect of use upon the market - the release of CTDS not so long ago might make CE seem like it would have an effect on the market, as there would be people who would illegally download the SNES CT rom rather than buy CTDS knowing they could patch it and get a second game out of it. Granted, most of those people would probably illegally download rather than buy anyways, but there's still a chance.

Obviously, I'd like to say that CE falls under fair use, and going through the analysis leads me to lean that way, but really, I dunno about how a pro would see it. There's a chance it would be and a chance it wouldn't be. Even if it wasn't, there's the chance that SE wouldn't actually file suit. Generally if the send a C&D, though, they will.


As far as other ROM hacks that are available for various games (Mario, Zelda, Metroid, etc), the fact that they are out there doesn't mean that it's legal. It may be that the copyright owners either don't know or just don't view it as a threat to their business. As I first stated, the fact that CE was to come out now, when there may be people still considering buying CTDS may be what set SE off, compared to if it came out, say, 3 years ago.

Oh, and just to settle it for anyone who's wondering, making or obtaining backup copies of computer programs is legal, so long as you own and still own the original and destroy the backup if you get rid of the original. That is under this section of the Copyright Code: http://www.copyright.gov/title17/92chap1.html#1-53


In regards to SE waiting until now to send out a C&D, as stated elsewhere, so much stuff dies on the vine that they may not have been worried about it. Or it just got caught in a drag net with the increased publicity. Who knows. However, just because they send out a C&D doesn't mean that something isn't fair use. In IP class the one day we were discussing YouTube and how many videos get deleted and what not because of all the DMCA (Digital Millennial Copyright Act) provisions when they are in fact fair use or not even in a position where it should have been a problem, but these big corporations just drag a net through and send out notices. Because many people don't know copyright law, they just cave to the C&D when, in fact, what they have isn't an infringement or is fair use.


Sorry that got so long. TL/DR version is that CE may be fair use, but the only way to find out would be to call SE's bluff, get taken to court, and see how they interpret CE in view of copyright law and the DMCA.

I hope that all makes sense and ties together well. I'd go back and proofread it more, but I just finished my first beer and since I had my last final this afternoon, I think I'm gonna have a couple more.
« Last Edit: May 13, 2009, 01:36:53 am by RedNeckJiuJitsu »

ravenl0rd

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Re: C&D: Directors' Response
« Reply #78 on: May 13, 2009, 01:48:15 am »
A very intelligent response for a redneck!   :shock:

Seriously, though, great post.

joemomma

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Re: C&D: Directors' Response
« Reply #79 on: May 13, 2009, 01:49:52 am »
I second that

TheGary

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Re: C&D: Directors' Response
« Reply #80 on: May 13, 2009, 01:53:32 am »
Basically what some of of were already saying, but more detailed and well put together. I still say you should email your professor as you said. The more opinions that people get and the more that people know about this the better.

utunnels

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Re: C&D: Directors' Response
« Reply #81 on: May 13, 2009, 01:56:23 am »
Quote
TL/DR version is that CE may be fair use, but the only way to find out would be to call SE's bluff, get taken to court, and see how they interpret CE in view of copyright law and the DMCA.
Perhaps the complicated  process is much worse than the result it might cause?

TheGary

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Re: C&D: Directors' Response
« Reply #82 on: May 13, 2009, 01:58:18 am »
Quote
TL/DR version is that CE may be fair use, but the only way to find out would be to call SE's bluff, get taken to court, and see how they interpret CE in view of copyright law and the DMCA.
Perhaps the complicated  process is much worse than the result it might cause?

Not really as winning the case would set a precedent for hackers/modders for years to come. It would basically cement this hobby as completely legitimate. We need to look at the big picture. It's not all just about CE being released and getting to play it.

KebreI

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Re: C&D: Directors' Response
« Reply #83 on: May 13, 2009, 02:12:44 am »
Even then "the big" picture isn't that big and is costly, I would never force this responsibility on to any one.

peepin_toms_berry

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Re: C&D: Directors' Response
« Reply #84 on: May 13, 2009, 03:11:04 am »
Wow.  Just wow.  I am ashamed to call myself a geek.  Most of the people responding to this news are retarded.

Do you really think that Square spent 5 years monitoring Crimson Echoes?  Really?  Do you know anyone who has been at the same job for five years?  Let alone who would bother to calender and follow a fan project for that long?  Anyone who thinks Square held off till the end because they're evil is just a moron. 

I am appalled at the rancor and venom I've seen bandied about here and in other forums.  You think a company is evil, malicious, soulless dicks, just because they sent a cease and desist on this one fan game?  Now I really respect the creativity and dedication that went into Crimson Echoes, but come on!  99.99999% of companies protect their IP.  Sure, you could point to a few exceptions like Valve, Nintendo and Capcom--BUT THEY'RE THE EXCEPTIONS.  And I promise you they still send cease and desists too on outrageous acts of infringement.

And I hate to say, but Crimson Echoes was an outrageous act of infringement.  No way in hell it's fair use.  Red Neck, that was a decent analysis from someone who attended a class, but you're insane to think this is even debatable.  Fair use is a pipe dream.

Your best argument would be the Game Genie case, but go ahead and read it for yourself.  The reason that wasn't infringement is only because the Game Genie itself didn't have any infringing content on it.  You guys have a patch that contains a whole new game (unless my reading of the forums is totaly off).  Whole new plot, dialogue, etc.  Even going by Game Genie, you're up sh*% creek.

All of you are talking about how unprofessional the cease and desist was.  How so?  Point to a sentence that was cruel.  They set it out and threatened to sue.  They didn't sue yet.  They didn't go after all the other stuff on the Compendium.  They didn't go after al the scripts and other stuff you havelisted in the left column.  So far as I can tell, they were pretty narrowly focused.  It would've been downright inane for them to demand taking down Crimson Echoes but letting the other mods stay up.

A few people compared this cease and desist to the old one.  The new one is by the inhouse lawyers.  You guys have probably never worked int he real world, but inhouse lawyers are much more business-like than law firms.  Law firms get paid by the hour.  They use stupid legalese.  Inhouse guys go straight to the point.  I don't see anything bad about the letter, except maybe they didn't fully understand Temporal Flux, which is totally beside the point.

So why all this hatred?  And especially calling them immoral dicks?  I get it, you guys think you're chaotic good, doing what you know is right in the face of unfair rules.  But you're showing yourselves to be so much more hateful and ignorant than the thing you're attacking.  Ths lynch mob mentality and ignorant self-righteousness is disgusting.

FalconHit

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Re: C&D: Directors' Response
« Reply #85 on: May 13, 2009, 03:53:40 am »
What did Chrono and his friends do when they saw the horrible future?  Did they simply accept it as too impossible a task to try and change?  No, the fought to change it- and they accomplished their goals.  It was tough, it was dangerous but by golly, they did it.

You are clearly not someone functioning in reality. Again, comparing real life situations to a video game... pretty laughable. I think you fail to realize while it's all well and good to say "reach for your dreams", the teams "dream" right now is most likely to get out of the situation they're in... Being in a lawsuit with a major corporation, especially involving one of said companies IP's, is not good, it's the kind of thing that changes your life in a horrible way, forever. Maybe Square-Enix's dream is to have it's property not tampered with. And you keep suggesting to call a bluff? How is SE bluffing? They said we will sue you, and it will suck, bluffing would imply that they don't actually have the resources to do so. On the contrary, it would probably take up 10 minutes of their time, and not the tiniest of fractions of their resource pool.

Honestly, if I was in SE position I could see myself doing the same thing.

And to say that Square's "corporate bullying" is getting to them, but to then say;
"If that is your mentality then your mentality is like that of a kid in high school who gets bullied all the time but is afraid to stand up for himself out of fear of being hurt, or like that of a slave who fears the master's whip should he attempt rebellion."

and;
"Mark my words- years later, when you've turned your back on all your work, which has been reduced to ashes while SE goes back to releasing certain games (FX 10-3) only in Japan and acting like dicks all-around, you're not going to be happy about this. You can try to trick yourself into talking about how your 5 years of destroyed work was briefly a "symbol" on some gaming sites and praise yourselves for avoiding the wrath of Kahn/SE and keeping a site safe (whose information could all easily be copied and transferred elsewhere), but deep down inside you'll never be able to forgive yourselves if you allow SE to steal so much of your lives and your dreams and yourselves away from you."

Is infuriating. You yourself are trying to push someone into doing something they don't want to do. You're trying to come off as some idealist shining light in the darkness of corporate whatever, but you're just being a straight up classic hypocrite jerk.

The CE team has gone through enough recently, they certainly don't need to put up with your insults.

RySenkari

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Re: C&D: Director's Response
« Reply #86 on: May 13, 2009, 04:42:54 am »
Quote
So why all this hatred?  And especially calling them immoral dicks?  I get it, you guys think you're chaotic good, doing what you know is right in the face of unfair rules.  But you're showing yourselves to be so much more hateful and ignorant than the thing you're attacking.  Ths lynch mob mentality and ignorant self-righteousness is disgusting.

Because we wanted to play this game. We wanted to play it bad and we're pissed off. I can bash Square if I want to. I won't do it here, because I know this place is trying to keep a good image, but you can bet I'm going to vent everywhere else. I don't care if Square is in the right legally. We need to change the laws, and if that means content creators take their balls and go back home to Galt's Gulch, then fine. We don't need their stinky balls, we'll make our own balls.

ravenl0rd

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Re: C&D: Director's Response
« Reply #87 on: May 13, 2009, 04:48:33 am »
Quote
So why all this hatred?  And especially calling them immoral dicks?  I get it, you guys think you're chaotic good, doing what you know is right in the face of unfair rules.  But you're showing yourselves to be so much more hateful and ignorant than the thing you're attacking.  Ths lynch mob mentality and ignorant self-righteousness is disgusting.

Because we wanted to play this game. We wanted to play it bad and we're pissed off. I can bash Square if I want to. I won't do it here, because I know this place is trying to keep a good image, but you can bet I'm going to vent everywhere else. I don't care if Square is in the right legally. We need to change the laws, and if that means content creators take their balls and go back home to Galt's Gulch, then fine. We don't need their stinky balls, we'll make our own balls.

You're going to make your own mod (or balls?)
Good luck, man.  Good luck.

RySenkari

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Re: C&D: Director's Response
« Reply #88 on: May 13, 2009, 04:50:10 am »
Not talking about a new mod, I'm talking about all the greedy content creators who will flee the industry when we reform copyright law the way it should be. I'm talking about making movies, TV shows, music, and games, in place of all the people who were just in it for the money who are gonna leave.

IAmSerge

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Re: C&D: Directors' Response
« Reply #89 on: May 13, 2009, 05:04:22 am »
Wow.  Just wow.  I am ashamed to call myself a geek.  Most of the people responding to this news are retarded.
yep

Quote
Do you really think that Square spent 5 years monitoring Crimson Echoes?  Really?  Do you know anyone who has been at the same job for five years?  Let alone who would bother to calender and follow a fan project for that long?  Anyone who thinks Square held off till the end because they're evil is just a moron. 

I am appalled at the rancor and venom I've seen bandied about here and in other forums.  You think a company is evil, malicious, soulless dicks, just because they sent a cease and desist on this one fan game?  Now I really respect the creativity and dedication that went into Crimson Echoes, but come on!  99.99999% of companies protect their IP.  Sure, you could point to a few exceptions like Valve, Nintendo and Capcom--BUT THEY'RE THE EXCEPTIONS.  And I promise you they still send cease and desists too on outrageous acts of infringement.


And I hate to say, but Crimson Echoes was an outrageous act of infringement.  No way in hell it's fair use.  Red Neck, that was a decent analysis from someone who attended a class, but you're insane to think this is even debatable.  Fair use is a pipe dream.

Your best argument would be the Game Genie case, but go ahead and read it for yourself.  The reason that wasn't infringement is only because the Game Genie itself didn't have any infringing content on it.  You guys have a patch that contains a whole new game (unless my reading of the forums is totaly off).  Whole new plot, dialogue, etc.  Even going by Game Genie, you're up sh*% creek.

All of you are talking about how unprofessional the cease and desist was.  How so?  Point to a sentence that was cruel.  They set it out and threatened to sue.  They didn't sue yet.  They didn't go after all the other stuff on the Compendium.  They didn't go after al the scripts and other stuff you havelisted in the left column.  So far as I can tell, they were pretty narrowly focused.  It would've been downright inane for them to demand taking down Crimson Echoes but letting the other mods stay up.

A few people compared this cease and desist to the old one.  The new one is by the inhouse lawyers.  You guys have probably never worked int he real world, but inhouse lawyers are much more business-like than law firms.  Law firms get paid by the hour.  They use stupid legalese.  Inhouse guys go straight to the point.  I don't see anything bad about the letter, except maybe they didn't fully understand Temporal Flux, which is totally beside the point.

So why all this hatred?  And especially calling them immoral dicks?  I get it, you guys think you're chaotic good, doing what you know is right in the face of unfair rules.  But you're showing yourselves to be so much more hateful and ignorant than the thing you're attacking.  Ths lynch mob mentality and ignorant self-righteousness is disgusting.

Hey, any intelligent poster is welcome in my books.  Not all of us here have that "lynch mob mentality and ignorant self-rightousness", though.  Alot of us just wish to be compliant, no matter how disappointing the end result of it would be.

Not talking about a new mod, I'm talking about all the greedy content creators who will flee the industry when we reform copyright law the way it should be. I'm talking about making movies, TV shows, music, and games, in place of all the people who were just in it for the money who are gonna leave.

Hey, if you want to spend money, time, and your life trying to change copyright laws, go ahead.  But I do not think that the creators of CE would appreciate it if you used their current situation as the main basis of your stance...