TSL - Cease and Desist
Started by Yonkey, February 27, 2010, 08:59:56 PM
Quote from: koko_99_2001 on March 03, 2010, 04:25:03 AMQuote from: splat44 on March 03, 2010, 02:54:53 AMRegarding those petitions, I hope the admin or someone that might have contact with KQ original creators (Roberta and Ken Williams), can ask for their supportAdditionally, 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
Quote from: splat44 on March 03, 2010, 02:54:53 AMRegarding those petitions, I hope the admin or someone that might have contact with KQ original creators (Roberta and Ken Williams), can ask for their supportAdditionally, Roberta and Ken might all places to contact and sending those petitions!
Quote from: oberonqa on March 04, 2010, 02:13:08 AMYou 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.
QuoteAs 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.
QuoteAnd 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).
QuoteYour 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.
QuoteAnd 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.
QuoteAnd TSL was not cancelled. Negotiations on a new non-commercial fan license (ala Vivendi) fell through and Activision responded with a C&D.
Quote from: waltzdancing on March 03, 2010, 09:56:08 PMIt'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?
Quote from: ErpySorry, 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.
Quote from: ErpyFor 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.
Quote2) "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.
Quote4) "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 wordsthoughSee the DMCA alert for recent changes in the law.
Quote6) "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..
Quote7) "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.
Quote9) "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.
Quote from: ErpyIf 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.
Quote from: ErpyYes, 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.
QuoteThe "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.
Quote from: ErpyI admire your passion and share your opinion that Activision was being prickish about this, but factually a lot of your statements are incorrect.
Quote from: waltzdancing on March 04, 2010, 12:43:57 PMYou 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
QuoteIf the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action.
QuoteThis 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.
QuoteThat 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.
QuoteIf made to testify, they would have to admit to other elements that would weaken their stance and strengthen POS's position
QuoteThere 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.
Quote from: Erpy No matter what you argue, legally speaking the TSL team really doesn't have a case.
QuoteHowever, 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?