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.
