The Silver Lining - Cease and Desist

[splat44]

Regarding those petitions, I hope the admin or someone that might have contact with KQ original creators (Roberta and Ken Williams), can ask for their support

Additionally, Roberta and Ken might all places to contact and sending those petitions!

From what I've heard, Ken Williams has already signed the online petition

Seriously? That's good news!

Perhaps, you can locate few contacts especially those having contact with the "William" so you can ask them to get involved with the project's art work and ect... The Williams will know as they're the original creators.

At least the William care!

[Erpy]

You might want to re-examine that Chrono project there Erpy.  Square stamped that project out because the team was hexxing the original Chrono Trigger ROM and hacking together their own story using pre-existing tilesets.

There was a leaked proof-of-concept from them a while back ago that ran on SNES9X and ZSNES and it was literally Chrono Trigger with a different arrangement of tiles.

Sorry, I didn't know that. That still doesn't invalidate the point that the project was using characters, locations and elements from a work owned by Square...which is all they needed. The hexxing-stuff is a detail, but unnecessary for Square to win a court case had it come to that.

As for your implementation argument, that would only apply if Alexander was portrayed exactly as he was in KQ6... which he isn't.  He's older and taken on the mantle of rulership, which has changed him.  Even his outfit is different.  Copyright requires 10 changes, be they minor or major, in order to be considered a different implementation.

For a lot of your points, I think I'd best link to this article, particularly myth 2, 4, 6, 7 and 9. I could copy-paste that stuff in there, but I'd be wasting space. TSL is an obvious derivative work and minor changes like age or outfit don't change that.

And you can't say TSL is competing with Activision.  In order for it to compete, TSL would have to be called King's Quest IX (which it no longer is).  That and it'd be a kind of one-sided competition since Activision isn't working on a project of their own (there's articles a plenty floating around about Activisions stance on old properties and their refusal to make new games based on old properties).

The name change was simply to avoid trademark infringement. It's still for all intents and purposes a sequel to the preceeding KQ-games and if Activision were to make plans for a KQ-sequel themselves, canon issues would still arise for the target audience.

Your argument about fiction versus interactive fiction is also moot.  Dungeons and Dragons has a lot of similarities to Lord of the Rings (halflings anyone???) but I've never seen the Tolkein Estate file a copyright lawsuit against TSR.  The difference?  Lord of the rings is fiction.  Dungeons and Dragons is interactive fiction.

If Dungeons and Dragons would have taken place in Middle Earth and made references to events depicted in Lord of the Rings, TSR definitely would have gotten in legal trouble, despite the fact it was interactive. But that wasn't the case.

And 30% copyright infringement does not equal guilty in a court of law.  One of the members on the Facebook Group mentioned that Fair Use might apply to the situation.  And the member is correct.  Fair Use might actually apply here.  Unless your going to tell me Activision has the right to say that because TSL takes place on The Land of the Green Isles (which is different from what was in KQ6 I might add) and you play as a much older and slightly different looking Graham, Activision has the right to claim copyright infringement. Enough changes were made to differentiate TSL from it's licensed counterparts.  Copyright law would not empower Activision here.

Yes, I think I'm going to tell you that they would be able to claim that because the Land of the Green Isles was specifically made for KQ6 and plenty of things that identify it as the Land of the Green Isles were replicated here. Doesn't matter if it is in 3D now. The "essence" is still the same. The fair use clause is limited to parody, reviews and educational means. Since the use of the Land of the Green Isles (or King Graham of Daventry) is not required to make a fantasy adventure game, it's not fair use.

And TSL was not cancelled.  Negotiations on a new non-commercial fan license (ala Vivendi) fell through and Activision responded with a C&D.

Still, it wasn't really copyright infringement. A few years back, VU simply said: "You have 2 choices. Choice A is shutting down or facing litigation if you refuse. Choice B is working out a fan license with us that allows you to continue for now, but everything you make will automatically be our legal property and the moment we terminate the agreement, you are obliged to cease and desist development/distribution". If Activision sent a C&D, that was overkill because terminating the license automatically involved stopping development.

[koko_99_2001]

It's not going to be one big envelope. My family and I are going print out the address on all the envelopes, stamp them and send them to the mail office. There are three in town so each post office will see me here with a fist full on letters. I want to build a mountain of paper on Bobby Whats-his-face... and make him open each letter one by one. Is it to much to ask for a paper cut here and there? 

Very cool idea! When I took care of the petitions in 2005, I mailed all of them in one big box...probably 2 inches in depth Yeah, maybe it wasn't completely full, but I think the message got across

[waltzdancing]

I thouhgt about the box idea, it would be cheaper to mail it that way however, i want the incoming mail box full for them. The box would make it more convienient and if this were Vivindi, I would have done the box but this is Activision and they shut it down before it came out. They need to see them all come in.

Besides, I have no life outside of work and my boss said I can mail them from the law office if I wanted to. I just have to hand them to him.

[chucklas]

Even thoygh most people have probably read this thread multiple times, I am amazed at the number of times this thread has been read/viewed (I think it was almost 18,000 times).  That is in 4 days time.  Amazing.

[RollingStone]

I recently sent an email to Ken Williams via his blog at www.kensblog.com, informing him about the C&D and asking for his support. Here's his response! I know that it sounds pessimistic, but keep in mind that at the time, neither of us were aware of the Save TSL Movement that was beginning to form:

"I would love to get involved, but there’s nothing I can do. Neither Roberta nor I own any rights to Kings Quest. I advised the team way back at the start of the project not to use Kings Quest without the company’s permission. Apparently they sought, and received, permission – so, I don’t understand how they are now being stopped.

Feel free to ask the group to contact me, but I’m not sure what I can do.

 -Ken W"
 
So feel free to contact him at ken@kensblog.com. I read that he signed the petition and that's great. It would be nice if we could get his name on a letter as well. Someone as high-profile as he is could have a lot of influence.

[Zazzaro703]

Hey anytime you guys want to pipe in and say "Early April Fools" it would be cool

[oberonqa]

Sorry, I didn't know that. That still doesn't invalidate the point that the project was using characters, locations and elements from a work owned by Square...which is all they needed. The hexxing-stuff is a detail, but unnecessary for Square to win a court case had it come to that.

Actually yes it does... because they were using the same artwork that Square had put into the Chrono Trigger ROM.  That hexxing-stuff detail is what seperates their project from the Final Fantasy VII NES project.  What's worse... the Chrono project was claiming they were hand drawing stuff when they weren't... they were passing off Square's work as their own work.  That's copyright infringement.  The Final Fantasy VII NES guy has always stated the everything is hand drawn and what's more... it's obvious someone other than Square made the art assets for the NES rom.

For a lot of your points, I think I'd best link to this article, particularly myth 2, 4, 6, 7 and 9. I could copy-paste that stuff in there, but I'd be wasting space. TSL is an obvious derivative work and minor changes like age or outfit don't change that.

I'll quote it for you then, since I need to respond to each of them.

2) "If I don't charge for it, it's not a violation."
False. Whether you charge can affect the damages awarded in court, but that's main difference under the law. It's still a violation if you give it away -- and there can still be serious damages if you hurt the commercial value of the property. There is a USA exception for personal copying of music, which is not a violation, though courts seem to have said that doesn't include widescale anonymous personal copying as Napster. If the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action. Fair use determinations (see below) do sometimes depend on the involvement of money.

This is accurate and true... except you seem to have ignored the bottom, which I have bolded.  TSL has no commercial value as it's not a commercial project.  King's Quest has no commercial value since it's a dormant IP.  So it could be argued that the violation is technical in nature.

4) "My posting was just fair use!"

The "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That's vital so that copyright law doesn't block your freedom to express your own works -- only the ability to appropriate other people's. Intent, and damage to the commercial value of the work are important considerations. Are you reproducing an article from the New York Times because you needed to in order to criticise the quality of the New York Times, or because you couldn't find time to write your own story, or didn't want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren't.

These rules apply to content you pull from the internet as well. If you wanted to criticise the poker strategy advice on pokerlistings.com, you could reproduce sections of that advice in your criticism as fair use. Just copying it to make your own poker site would probably be plain old copyright infringement.

Note that most inclusion of text in followups and replies is for commentary, and it doesn't damage the commercial value of the original posting (if it has any) and as such it is almost surely fair use. Fair use isn't an exact doctrine, though. The court decides if the right to comment overrides the copyright on an individual basis in each case. There have been cases that go beyond the bounds of what I say above, but in general they don't apply to the typical net misclaim of fair use.

The "fair use" concept varies from country to country, and has different names (such as "fair dealing" in Canada) and other limitations outside the USA.

Facts and ideas can't be copyrighted, but their expression and structure can. You can always write the facts in your own wordsthough

See the DMCA alert for recent changes in the law.

As I stated previously, TSL does not damage the commercial value of the King's Quest IP because it's a dormant IP.  In fact, it can be argued that the existence of fan-based derivative works based on the King's Quest IP have actually helped improve the commercial value of the King's Quest IP due to sales trends of KQ Collection after the release of a high profile fan-based derivative works.

6) "If I make up my own stories, but base them on another work, my new work belongs to me."

False. U.S. Copyright law is quite explicit that the making of what are called "derivative works" -- works based or derived from another copyrighted work -- is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else's work, you need that author's permission.

Yes, that means almost all "fan fiction" is arguably a copyright violation. If you want to publish a story about Jim Kirk and Mr. Spock, you need Paramount's permission, plain and simple. Now, as it turns out, many, but not all holders of popular copyrights turn a blind eye to "fan fiction" or even subtly encourage it because it helps them. Make no mistake, however, that it is entirely up to them whether to do that.

There is a major exception -- criticism and parody. The fair use provision says that if you want to make fun of something like Star Trek, you don't need their permission to include Mr. Spock. This is not a loophole; you can't just take a non-parody and claim it is one on a technicality. The way "fair use" works is you get sued for copyright infringement, and you admit you did copy, but that your copying was a fair use. A subjective judgment on, among other things, your goals, is then made.

However, it's also worth noting that a court has never ruled on this issue, because fan fiction cases always get settled quickly when the defendant is a fan of limited means sued by a powerful publishing company. Some argue that completely non-commercial fan fiction might be declared a fair use if courts get to decide..

This section is correct in it's entirety and makes up the bulk of the majority of Activision's grounds for a C&D.  However, note the bolded section.  Perhaps this issue should be settled by a court once and for all so as to finally establish non-commercial fan fiction as being fair use and not damaging to copyright.

7) "They can't get me, defendants in court have powerful rights!"
Copyright law is mostly civil law. If you violate copyright you would usually get sued, not be charged with a crime. "Innocent until proven guilty" is a principle of criminal law, as is "proof beyond a reasonable doubt." Sorry, but in copyright suits, these don't apply the same way or at all. It's mostly which side and set of evidence the judge or jury accepts or believes more, though the rules vary based on the type of infringement. In civil cases you can even be made to testify against your own interests.

See my bolded points and responses in other sections to see what evidence POS can bring to the table to show their case.  Activision can only show the facts that TSL is a derivative work off something they own.  That's all they would WANT to show.  If made to testify, they would have to admit to other elements that would weaken their stance and strengthen POS's position (since you opened the door Erpy, allow me to inform you that if it went to trial, you can be sure POS would mention the impact KQ1VGA and KQ2VGA had on improved sales of KQ Collection... which establishes fan-based derivative work based on the King's Quest brand strengthens and improves the commercial value of the brand... which is the heart and soul of copyright)

9) "It doesn't hurt anybody -- in fact it's free advertising."
It's up to the owner to decide if they want the free ads or not. If they want them, they will be sure to contact you. Don't rationalize whether it hurts the owner or not, ask them. Usually that's not too hard to do. Time past, ClariNet published the very funny Dave Barry column to a large and appreciative Usenet audience for a fee, but some person didn't ask, and forwarded it to a mailing list, got caught, and the newspaper chain that employs Dave Barry pulled the column from the net, pissing off everybody who enjoyed it. Even if you can't think of how the author or owner gets hurt, think about the fact that piracy on the net hurts everybody who wants a chance to use this wonderful new technology to do more than read other people's flamewars.

That issue can be cleared up by the presence of the original non-commercial fan license with Vivendi.  They gave their permission... Activision doesn't want to honor it for one reason or another.  

If Dungeons and Dragons would have taken place in Middle Earth and made references to events depicted in Lord of the Rings, TSR definitely would have gotten in legal trouble, despite the fact it was interactive. But that wasn't the case.

Doesn't matter.  Tolkein was the first to put down a description and name for a hobbit, also called a halfling (Hobbits are what they call themselves, halflings are what everyone else in Middle Earth called them).  

However, 20 years later... D&D comes out and lo and behold... here's Halflings!  And look... they even have the same physical attributes as the halflings Tolkein described.  That's copyright infringement because TSR took Tolkein's description and used it (there's no reference to Tolkein in any of the old D&D reference material in the early '70s) and what's more... they were making money off of it.  Also, given D&D's rather controversial media... it could be argued that for a long time, D&D was not only making money off of copyrighted material from Tolkien, but was also damaging the commercial value of Tolkien's work because D&D was highly criticized for many years as being satanic and the presence of halflings in D&D could have damaged the Tolkein IP.

There are other examples btw.  I just chose Halflings because they are the most recognizable element of Lord of the Rings and The Hobbit.

Yes, I think I'm going to tell you that they would be able to claim that because the Land of the Green Isles was specifically made for KQ6 and plenty of things that identify it as the Land of the Green Isles were replicated here. Doesn't matter if it is in 3D now. The "essence" is still the same. The fair use clause is limited to parody, reviews and educational means. Since the use of the Land of the Green Isles (or King Graham of Daventry) is not required to make a fantasy adventure game, it's not fair use.

You forgot "such things as" there.  Fair use is not limited to only parody, reviews, and educational means.  The article you referenced states:

The "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author.

There are other things that can be considered fair use aside from what this article mentions and the presence of the words "such as" implies this.  The devil is in the details my friend.

I admire your passion and share your opinion that Activision was being prickish about this, but factually a lot of your statements are incorrect.

^^  

[waltzdancing]

You know what, I work for a lawyer, I will ask him about copyrite and what the team holds as and ace if they indeed do. He would be the best person to talk too. I think you may be onto something Ober and I will ask my boss, he encourages questions from me and loves to discuss law stuff

[oberonqa]

Thanks Walterz!  It would be nice to get some input into the legality here because... despite how it may appear to the contrary, I'm not a lawyer.  As one poster over at AGDI put it, lawyers would probably laugh at some of my statements.  It'd be nice to get some input from someone like your boss.

[crayauchtin]

You know what, I work for a lawyer, I will ask him about copyrite and what the team holds as and ace if they indeed do. He would be the best person to talk too. I think you may be onto something Ober and I will ask my boss, he encourages questions from me and loves to discuss law stuff

Unfortunately they don't really have an ace. They're firmly planted in a gray area. :\

[oberonqa]

Better a grey area than other areas.  Grey means it's open to interpretation and I am firmly convinced interpretation is on our side, given what I have already illustrated.

[waltzdancing]

I don't know. I am trying to find my boss now. He had a court metting today but he said he should be back early. I am reading some law books of my moms and going to go through his if he lets me.

If this grey area becomes more to our favor we can try and have the team talk to a personal lawyer if there is a chance to win. Look at the harry potter books. That went to court and the Author to Harry Potter won. I don't know the extent of the case but we may have something here. I don't know. I just work here not practice. I don't really like the law because it is so open

[oberonqa]

It's all about interpretation... and it's also about what you can prove and not so much about what you know.

The simple facts are TSL is based off of an existing IP, which is certainly the root of the problem.  However, as I have demonstrated, it's about intent and it's about damages. 

Activision would have to show TSL damages their IP and that POS intended to damage the King's Quest IP.  And in these two issues, most judges would probably rule in favor of POS and define TSL as a work of fair use.  Activision would probably not want to admit it, but the King's Quest brand is strengthened by the presence of fan-based derivative work (on a completely unrelated note, I hate typing the word derivative... I keep misspelling it!).  It can be shown that sales of KQ games rises as a result of the presence of fan-based derivative work and that without the presence of said work, it could be argued that there wouldn't be any sales of KQ games period, given the last branded release of KQ was back in 2006, which was just a recompilation of existing work.

Now if Activision wants to come clean and say they are making a sequel to King's Quest, then I would be pretty hard pressed to argue against them.  I think most of us would be pretty hard pressed if that were the case.  But for right now, they remain silent and that silence empowers us and other fan-based derivative work.

[waltzdancing]

I agree and I am going to go talk to him now. Post what I find out from him. Keep your fingers crossed!

[Erpy]

You keep saying the KQ series is dormant IP with no commercial value and yet, it's currently being sold. (example1,example2)

Also, you bolded the following statement:

If the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action.

It says there's less chance of legal action taking place, not a reduced chance of the courts deciding in favor of the IP holder once legal action actually takes place.

You also make several arguments based on "there no commercial harm done" or "the series become more popular because of this". These arguments would all result in a reduced chance of legal action being taken, but again, none of them will change the odds once legal action is actually taking place. If no commercial harm was done, the courts might decide the defendant does not need to pay the IP holder any compensation, but will still demand the defendant to give up his project.

This section is correct in it's entirety and makes up the bulk of the majority of Activision's grounds for a C&D.  However, note the bolded section.  Perhaps this issue should be settled by a court once and for all so as to finally establish non-commercial fan fiction as being fair use and not damaging to copyright.

The writer doesn't suggest that it would be fair use, he does the opposite in fact, he merely states that "some argue" it could be fair use, but do you honestly believe that any court will decide that any person can make a sequel to his favourite game as long as he does not charge for it? That would also mean that if only chapter 1 and 2 of TSL came out, but some other team WOULD like to spend a few more years making another chapter, that other team could basically take the storyline and characters introduced in the first 2 chapters and make their own game about it (as long as it's free), portraying it as a closure to the story started by POS, despite POS having no control over it. I think most courts won't touch that scenario.

That issue can be cleared up by the presence of the original non-commercial fan license with Vivendi.  They gave their permission... Activision doesn't want to honor it for one reason or another.

VU gave their permission, but the agreement didn't contain a single obligation on their part. The agreement could be terminated at any time. Activision's decision to terminate the license may be prickish, but legally there was no barrier bar the moral one. And moral barriers don't hold up well in court.

If made to testify, they would have to admit to other elements that would weaken their stance and strengthen POS's position

Even if you could somehow prove that fangames improved sales, there's still the matter that it happened without the IP holder's permission, so it wouldn't really do anything to weaken Activisions demand to have total control over their own intellectual property...even if that total control resulted in reduced sales. The fact that they own the IP also means they have the right to make bad business decisions with it without interferance.

There are other things that can be considered fair use aside from what this article mentions and the presence of the words "such as" implies this.  The devil is in the details my friend.

Yeah, it is. Fangames aren't mentioned, maybe for a valid reason, and I think highlighting the "such as" to imply fangames SHOULD be in there is really just a case of wishful thinking, but nothing more than that.

Then there's one other thing...the license TSL accepted a couple of years back used the "work for hire"-principle, meaning that all the assets the game used (dialogues, art, musical themes, code) became the IP holder's property upon creation. (unfortunate, but true) The average lawyer or judge only has to look at that particular part of the agreement to state: "It can't be fair use if 100% of the project's content is Activision's property". And seeing that it's their property, they can officially do whatever they want with it, be it shutting it down, letting it continue or continue it with a team of their own.

It may sound a bit like I'm arguing against TSL here, so I feel I should stress that I'm not. I think Activision's choice was decidedly uncool. At the same time, I feel there's no reason not to call a rose a rose, despite it having another name. No matter what you argue, legally speaking the TSL team really doesn't have a case.

[oberonqa]

No matter what you argue, legally speaking the TSL team really doesn't have a case.

Then it would seem only thing we can agree upon is that we disagree.  The matter with TSL is a grey area, but yet you seem convinced (and I will say you are 100% correct in this) that since it's Activisions IP they can do what they want.  Again, let me repeat that... you are 100% correct here.

However, that doesn't make it right and it doesn't make it a clear cut case in a courtroom.  That's why laws are open to interpretation and not just black and white. 

Yes the IP is theirs and they can do what they want.  Yes that includes shutting down TSL.  However, correct me if I'm wrong here, but would you just sit down on your hands and do nothing if Activision next went after AGDI for distributing KQ1VGA, KQ2VGA, and QFG2VGA?  After all... they own KQ and QFG... they can do as they please yes? 

If the shoe were on the other foot, wouldn't you be making the same arguments I am making in response to you?  I know there is a great deal of concern over at AGDI about this falling out and spilling over to them.  And they should be concerned.  I meant what I said when I have no intention of bringing AGDI into the petition... but I will say that if this goes to court, you better believe I'll be getting sales data on the KQ Collection from outlet sources for periods around the time AGDI released their games.  I will help prove that it's the presence of fan-based derivative work that fuels sales of KQ... not discount prices on GoG or Steam.

[waltzdancing]

Okay, Basically he said was "You are jumping the gun".
Now, he said that taking down the forum was not right, we had a right to talk about the content we wanted. He is also surprised by the silence from the team as well as Activision, and he thinks there might be continuing negotiations going on and maybe Activision wants a part of the game and we may have to pay for it. Cool by me.

IP cases in court are hard to do and most of the time it will come down to money. However there are several factors a judge must look at but I don't have the time to go into it as I have to get back to work. The judge will defiantly look at how much content was used from the previous games but Activision holds all the aces.

He said to continue with what we are doing, petition and send it to the PR, which we are doing. If we get alot of support then the Public Relations may have to do some heavy discussions with the higher ups.

I think there is negotiations continuing if not nobody is bound to keep quite, they can tell us.

[Erpy]

Is there any reason why you even paint the scenario of going to court? If Activision changes its mind on this matter, it'll be done through negotion of the team members or some other inside factor, but not through a court decision...their moral basis may be shaky, but their legal position is frighteningly solid. I mean no offense, you're doing a great job organizing the petition, but the whole court-thing isn't and won't be your decision to make. (and besides, I'm not even sure what the goal would be...force Activision to let the project resume? Or define the fair use clause in US copyright law?)

As for your question what I would do if the shoe were on the other foot...probably the same as the team members here...stay out of the discussion and leave the debating to the fans. 8 years ago, I might have made the same arguments as you are making now, but you won't find me arguing that AGDI's games are covered by the fair use clause...even if Activision were to crack down on our projects. And I don't think you'll find any of the TSL members suggesting that...it's been years since they took the fair use statement off their website.

However, correct me if I'm wrong here, but would you just sit down on your hands and do nothing if Activision next went after AGDI for distributing KQ1VGA, KQ2VGA, and QFG2VGA?  After all... they own KQ and QFG... they can do as they please yes?

If Activision would shut AGDI down (which I sincerely hope won't happen), I don't think we'd sit on our hands and do nothing. We'd probably try and use the spike in attention to try and get people interested in supporting a commercial (and original) project by the same team. Instead of paying a lawyer to fight a hopeless battle, that money would be better spent financing an original project.

[waltzdancing]

I am just relaying what my boss told me and he took it from a court perspective.