Legality and source code usage

[spade88]

I was reading about Legal doctrines, and of course how they are formed and later made.

Wiki definition:
"A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process soon enough it becomes established as the de facto method of deciding like situations."



So I'll switch gears now, and start to talk about video game companies (Stay tuned it's about to get interesting).

Gaming companies who develop online video games in my opinion should be held accountable for taking their video games offline when they decide to shutdown. But this is not to be confused with shutting-down their servers for upgrading or general maintenance of course (that's common). Video game companies should feel some sort of responsibility when they release games online for public use, they are profiting in it in some way or form and should be held accountable for their actions.

These video game companies should release their original source code of the game client, but only after they have decided to drop their online access. This would allow the fan base community to host their own private severs, and to continue their online game play.



If a legal doctrine were to be created to cater to this particular case then their would be some pros & cons which are listed below:

Pros:

- Games no longer collect dust
- Online communities slowly stop in declining
- Fans complaining about the absence of their favorite online games decreases
- Private severs become legal & are recognized by the gaming community and accepted
- Servers will most likely change their gameplay information to permit you to reach higher levels than you would usually be in a position to reach if you were playing on an official server.
- You would realistically be able to increase your levels to a new high
- These servers will probably have their own game items to offer to their players. (These game items could well be completely dissimilar from what is offered on an official server)
- Cash-shop feature in game or on general website


Cons:

- The original story mite get rewritten (lawsuit nightmare)
- New online game releases mite suffer
- private server will often limit the number of connections if it starts to become too populated
- private server can be difficult to join if the owners of the server don't make the game server well implemented
- The amount of people that may connect to the server at one time is usually a load less than what's offered on an official server
- The server operations are often run by players who become bored with the official game servers. (Because of this they have an inclination to disappear when they no longer would like to pay for the cost of hosting)
- The private server is available only when the owner decides to turn it on, instead of being available whenever you would like to play on a server.
- With aprivate game server you may often see more lag Problems

(their are other pros & cons I just wanted to give you a few examples)




This new legal doctrine (X) would allow set games that were once thriving online to have a second chance, and to be run by their fan base communities. From a video game companies stand point their in it for not only the creation of an amazing game but for making profit plan and simple. Where not making video game companies out to sound bad, its just not within the consumers best interests. Video game companies have a general interest in profit over game creation most of the time, and neglect their own gaming communities that they themselves create. Now that's not to say they aren't in it for making the best game ever, but shutting down for example their online games is like telling their consumers we give up or quit. Weather its because of money problems or legal issues that dig deep it still leaves the consumer left with nothing.








If this legal doctrine idea sounds like it will fail, an alternative solution would be if set video game companies would come to a financial agreement. By that I mean in order to release the source code for the video games the video game companies would decided on a reasonable way to sell the source code. What I mean is that a vender could buy the source code and open shop anywhere online and host private servers for it. (hope you follow that)






Let me know what you think, and if you felt this was to unethical or not...

[Sayara]

Video game producers always still have the right to their intellectual properties. Even if its a "dead game" or not. They have the right to do whatever they want with it. Not everyone is as open-minded as say Valve is releasing most of their resources to indie gamers or whatever.

On one hand, Letting developers play with or tinker with older source codes to try and develop games sure thats something cool, but I feel like they should never gain any monatary value using another companies direct coding or whatever.

[spade88]

The Legal doctrines challenges that and puts that idea to rest..

I would recomend reading "code" by lawrence lessig (you made some good points but lawrence lessig covers what i left out)


This a small review I found as an example for Lawrence Lessig works: http://www.kcoyle.net/lessig.html

[Nitro Vordex]

http://www.sega.com/eula/

SEGA made the rules for their game. It's their work, they have the rights and licensing to it, therefore they can do pretty much whatever the hell they want. Releasing the code wouldn't do much good, as it's their code, and they still have the rights to it, unless they actively sell it to someone. Someone else makes money, they could realistically sue them from it. The whole terms of agreement thing legally binds a person to not mess with their program. A certain private server that we know of actually makes money off of it, but Sega really doesn't care. It would probably cost them more money to go after him, rather than let him make money. As it is, he's already making money off a game he merely modded, which in itself is pretty lame. I think the thing is, making money off of "donations" is different than actively subscribing.

Sega.com has forums, and they actively stop any kind of discussion about private servers there. Instant lock there. Sega is protecting themselves, because it wouldn't be terribly difficult for someone to just take their program and mod the hell out of it, and make money. They release the rights, they can't do anything about it.

tl;dr It's their party and they'll cry if they want to.

You're still trying to get private servers on here? >_>

[spade88]

http://www.sega.com/eula/

SEGA made the rules for their game. It's their work, they have the rights and licensing to it, therefore they can do pretty much whatever the hell they want. Releasing the code wouldn't do much good, as it's their code, and they still have the rights to it, unless they actively sell it to someone. Someone else makes money, they could realistically sue them from it. The whole terms of agreement thing legally binds a person to not mess with their program. A certain private server that we know of actually makes money off of it, but Sega really doesn't care. It would probably cost them more money to go after him, rather than let him make money. As it is, he's already making money off a game he merely modded, which in itself is pretty lame. I think the thing is, making money off of "donations" is different than actively subscribing.

Sega.com has forums, and they actively stop any kind of discussion about private servers there. Instant lock there. Sega is protecting themselves, because it wouldn't be terribly difficult for someone to just take their program and mod the hell out of it, and make money. They release the rights, they can't do anything about it.

tl;dr It's their party and they'll cry if they want to.

You're still trying to get private servers on here? >_>



To put this into better words I will use Lawewnce Lessig views:

"For those of you who followed the development of the Digital Millenium Copyright Act (DMCA) from the 1994 Department of Commerce Green Paper on copyright through the World Intellectual Property Organization meeting in 1996 to its passage in Congress in 1998 , Lessig's chapter on intellectual property will not be startlingly new. He takes much of his analysis from Pamela Samuelson and other advocates of public access and argues that the intent of copyright law in the past was not to give total control of their works to authors or publishers. To Lessig the fallibility of copyright law, that is the fact that people could and did make some copies without the permission of the copyright holders, was an inherent element of our copyright protection, not a mistake that must be corrected with new technologies. Although one can argue that the ability to make a few copies for oneself and friends and not get caught was not explicitly written into copyright law, you can also argue that the law could have been made more restrictive if the need had been there. The option of "fair use" shows the intention to allow personal use of copyrighted materials entirely apart from the desires of the copyright holder. Throughout the book, Lessig's message is that we must read the entire context of the law, not just the letter.

The copyright issue allows him to put forth another of his important theses, privatized law. His example uses the work of Mark Stefik of Xerox Parc. Stefik is a well-known proponent and developer of technology for copy protection systems and watermarking of digital intellectual property. To a constitutionalist like Lessig, the creation of such systems is essentially a matter of taking the law into ones own hands. Technology trumps the law in this case because the technological protection is immutable and absolute. The law, on the other hand, contains both checks and balances (as in fair use) and some ambiguities. These ambiguities are what allow the courts to re-interpret the intent of the law over time and in different situations. The copy protection program will be mechanical, not thoughtful. And the worst of all is that it has no constitutional basis for its existence and therefore is entirely a private mechanism of control. There are no code courts that can determine if a system of this type violates the rights of the public."

[Nitro Vordex]

The thing about the free use is that Free use is explicit, saying it's only meant for educational and non-profit use, which the private servers are pretty much neither.

[spade88]

The thing about the free use is that Free use is explicit, saying it's only meant for educational and non-profit use, which the private servers are pretty much neither.


Well thats very arguable because they actually could be educational and non-profit.

[Nitro Vordex]

They could, but they're not going to be. There was private server issues for PSO because one of the people decided he didn't want to work on the software anymore, because people at the private servers were being dicks. Now if anybody has questions, they don't help because they want to keep their grip on the private servers. If someone else were to make another private server, that could put them in jeopardy of losing money. Don't be fooled into thinking that private servers are free and everyone is happy and keeps everything faithful. It's not. The reality is, people can and will make money off these servers, and SEGA isn't stupid enough to willingly let them do that. Private servers alter a lot of things, for better or worse, and trying to make it legal would be, quite frankly, a nightmare.

[spade88]

They could, but they're not going to be. There was private server issues for PSO because one of the people decided he didn't want to work on the software anymore, because people at the private servers were being dicks. Now if anybody has questions, they don't help because they want to keep their grip on the private servers. If someone else were to make another private server, that could put them in jeopardy of losing money. Don't be fooled into thinking that private servers are free and everyone is happy and keeps everything faithful. It's not. The reality is, people can and will make money off these servers, and SEGA isn't stupid enough to willingly let them do that. Private servers alter a lot of things, for better or worse, and trying to make it legal would be, quite frankly, a nightmare.


A nightmare possibly for them, the patents for some games legitimacy are now coming under fire and some companies have lost already.

Thanks to DOCTRINE OF LACHES its been possible that copyright laws really would not hold up in court in some cases...(IN SOME CASES)



Best definition:

Laches is the legal doctrine that an unreasonable delay in seeking a remedy for a legal right or claim will prevent it from being enforced or allowed if the delay has prejudiced the opposing party. The doctrine is an equitable defense that seeks to prevent "legal ambush" from a party who is negligent in failing to timely make a claim. It recognizes that the opposing party's ability to obtain witnesses and other evidence diminishes over time, due to unavailability, fading memory, or loss. Disallowing the negligent party's action on the ground of laches is a form of estoppel.

"Laches is an equitable form of estoppel based on delay. The theory behind allowing the defense is that the law shouldn't aid those who "sleep on their rights". For a defense of laches to succeed, it must be proven that the party invoking the doctrine has changed its position as a result of the delay, resulting in being in a worse position now than at the time the claim should have been brought. For example, the delay in bringing the claim may have caused much larger potential damages to be awarded; the ability to pay the claim is lacking due to assets being otherwise used in the meantime; the property sought to be recovered has already been sold; or evidence or testimony may no longer be available to defend against the claim."

[amtalx]

Source code is protected for a reason. Releasing it can easily destroy an entire company.

[spade88]

Source code is protected for a reason. Releasing it can easily destroy an entire company.


Best example I can give you is the one written by Julie Machal-Fulks (its not about the source code but its still treated the same legally):


The Doctrine of Laches Can Make Trademark Enforcement a Tricky Business


A recent opinion from the U.S. District Court for the Northern District of California consists of a discussion of the doctrine of laches – a sort of equitable statute of limitations – and how it can make trademark policing and enforcement a tricky business, in some cases. In Saul Zaentz Co. v. Wozniak Travel, Inc., 2008 WL 2949423, the plaintiff who was the owner of the rights in various trademarks and copyrights related to J.R.R. Tolkien’s Middle Earth literature, filed a trademark infringement lawsuit against the defendant, who operates a travel agency based and operating largely within Minnesota called Hobbit Travel, which began operations in 1976. The defendant subsequently filed a motion for summary judgment arguing that the plaintiff’s suit should be barred as a matter of law due to the plaintiff’s unreasonable delay in bringing suit. The court agreed.

The plaintiff argued that its outside trademark counsel first became aware of the unauthorized use of the plaintiff’s “Hobbit” mark in November 2003 and that its delay in filing suit in September 2006 was not unreasonable. However, the court noted that the plaintiff should have known of the existence of Hobbit Travel at least as early as 1988, when it received the results of a trademark use report from its attorneys what included mention of Hobbit Travel. Subsequent reports in 1992 and 2000 also disclosed Hobbit Travel’s use of the plaintiff’s mark and its steadily increasing, and significant, market presence. However, the plaintiff did not act on these reports. The court characterized this delay as unreasonable and granted the defendant’s motion for summary judgment, dismissing all of the plaintiff’s claims.

There is no federal statute of limitations for trademark infringement claims. Instead, defendants frequently raise the equitable laches defense in order to convince the court that the action is time-barred. As the court discusses in the Wozniak opinion, a defendant raising laches as a defense must show (1) that the plaintiff's delay in filing suit was unreasonable, and (2) that the plaintiff would suffer prejudice caused by the delay if the suit were to continue. In determining whether a delay is unreasonable, courts look to a number of factors, which, according to the court, in the Ninth Circuit, include: “(1) strength and value of the trademark rights asserted; (2) plaintiff's diligence in enforcing mark; (3) harm to senior user if relief is denied; (4) good faith ignorance by junior user; (5) competition between senior and junior users; and (6) extent of harm suffered by the junior user because of senior user's delay.” The factors may vary from circuit to circuit, but the inquiry is always a fact-intensive one.

This case is a good reminder that courts expect businesses to behave as though they are serious about policing their marks if those businesses expect to have easy access to remedies against alleged infringement. Diligence begins with regular and reasonably frequent trademark searches. From there, it includes a careful review of existing uses of a mark and consultation with counsel regarding the value of pursuing action against any unauthorized use. It may not make sense to file suit against every alleged infringer who fails to respond to a cease and desist letter, but the trademark owner must be very deliberate about making enforcement decisions where a failure to prosecute could lead to loss of the claim due to laches. Where the lines become blurry, as they frequently do in trademark matters, it is best to consult with a knowledgeable attorney.

[Sp-24]

In determining whether a delay is unreasonable, courts look to a number of factors, which, according to the court, in the Ninth Circuit, include: “(1) strength and value of the trademark rights asserted; (2) plaintiff's diligence in enforcing mark; (3) harm to senior user if relief is denied; (4) good faith ignorance by junior user; (5) competition between senior and junior users; and (6) extent of harm suffered by the junior user because of senior user's delay.” The factors may vary from circuit to circuit, but the inquiry is always a fact-intensive one.

Considering that Sega is actively using the Phantasy Star trademark, private servers for PSOBB and PSU would easily fail #1, #2 (and no, court will not care that you think they aren't advertising Phantasy Star games enough in the US), #3 and #5. Judgement on #4 may vary, and #6 is pretty much the only defense they would have. Besides, in the travel agency case, the defendant used a tiny portion of somebody's intellectual property to promote a completely unrelated business. Private PS servers blatantly take everything Sega has created and make money off it expecting no consequences.

Not even to mention that trying to force an international company to release source code of its product in a US court is just silly.

[spade88]

Considering that Sega is actively using the Phantasy Star trademark, private servers for PSOBB and PSU would easily fail #1, #2 (and no, court will not care that you think they aren't advertising Phantasy Star games enough in the US), #3 and #5. Judgement on #4 may vary, and #6 is pretty much the only defense they would have. Besides, in the travel agency case, the defendant used a tiny portion of somebody's intellectual property to promote a completely unrelated business. Private PS servers blatantly take everything Sega has created and make money off it expecting no consequences.

Not even to mention that trying to force an international company to release source code of its product in a US court is just silly.




I can give you a better example (its more to what you were getting at I think):



Laches is an equitable defense similar to the statute of limitations (SOL). However, unlike the SOLs, it is not a fixed time set by law. Rather, it is a time that is determined by equity.

I real life example would explain this best. Suppose you have the copyright to a building design. Suppose that you learn that another company is infringing on your copyright and building a structure based on your design. Now suppose that instead of suing right away, you wait two years and let them complete the building, and then you decide to sue for infringement.

Here, you are in the SOL because you sued under the 3 year mark. However, your claim may be barred by laches because you chose to wait until after the company spent invested quite a bit of money in the project.

Note: Laches is an equitable defense. Thus, in the above example, it would bar the copyright owner from suing for equitable relief (e.g. the destruction of the building), but not for legal damages (i.e. money).

The key to laches is fairness. For example, laches will also be allowed if someone decides to wait and sue until after a known or planned destruction of evidence.

Read more: What does barred by laches mean in legal terms? | Answerbag http://www.answerbag.com/q_view/1108637#ixzz1wUCxF0lJ

[amtalx]

copy pasta from legal website
Ripping well-written passages from other sites doesn't really make you seem very savvy, particularly when the quoted material has nothing to do with the point I was trying to make. Patent, trademark and copyright law are very different despite their seeming similarities.

[Sp-24]

"Barred by laches" defense in this case should only apply if the plaintiff is as greedy as Nexon, or whatever is Maple Story owner's name is. And even then, even if the company is denied refund on the years of damage they allegedly suffered from the defendant's actions, there is still the action of the initial copyright infringement. Since the defendant illegally provides continuous service to a junior user, a cease and desist order is still very much possible, and it is not covered by laches.

[spade88]

Ripping well-written passages from other sites doesn't really make you seem very savvy, particularly when the quoted material has nothing to do with the point I was trying to make. Patent, trademark and copyright law are very different despite their seeming similarities.



I'm not trying to seem savvy in any way, and remember this is a rant so i'll use whatever I can find. (we are just a little off topic from the rant kinda...lol)


How would I even defend against a claim of some type of Infringement isn't to much beyond what i already know.


There are four distinct defenses that I know of off the top of my head that would be available for a defense against an infringement claim of some sort:
(Patent, trademark and copyright laws are very different but the same defenses can be used for each one)

-Doctrine of Laches
- Estoppel
- Unclean Hands
- Fair Use/ Collateral Use


Doctrine of Laches
Stating that the other party neglected to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to you, operates as bar in court of equity.

Estoppel
"The doctrine of estoppel has three essential elements -- a position of authority assumed by the defendant; submission to and reliance upon that assumption by the plaintiff; and injury suffered by the plaintiff as an immediate consequence of such submission and reliance."

Unclean Hands
Invoked by a court only when a plaintiff otherwise entitled to relief has acted so improperly with respect to the controversy that the public interest in punishing the plaintiff outweighs the need to prevent defendant's illegal conduct.

Fair Use/ Collateral Use

- Fair use allows fair comment that incidentally involves use of the mark for a purpose other than that normally made of a trademark. Most often occurs in advertising cases (so long as there are no untrue claims) and parody cases (but it is not fair use when a claimed parody is used to promote competitive goods or services).

- Collateral use allows the use of goods that bear a preexisting mark. Basically, when a party uses a trademarked item as a component of a more complex product, the doctrine of collateral use allows the party to so identify the component by its trademarked name without fear of being liable for infringement. This is only true to the extent the party does not deceive the public into thinking that the product, as sold, is actually marketed by the trademark owner.



But really I'm not here to argue about this subject, more to what I was getting at was to appeal to the gamers on here.

(if you agree fine and if not their are better rants on here...lol)

[Sp-24]

But really I'm not here to argue about this subject, more to what I was getting at was to appeal to the gamers on here.
You do realise that the laws that you propose initially don't benefit the videogame companies in any way it all, and just outright harms them? If those laws were accepted in the United States, the solution for those companies would have been simple, and just as extreme: pull, or release into public any product that has already been licensed for usage in the United States, and then stop any future interaction with the American videogame market altogether. That is an interesting way to appeal to gamers, to say the least.

[spade88]

You do realise that the laws that you propose initially don't benefit the videogame companies in any way it all, and just outright harms them? If those laws were accepted in the United States, the solution for those companies would have been simple, and just as extreme: pull, or release into public any product that has already been licensed for usage in the United States, and then stop any future interaction with the American videogame market altogether. That is an interesting way to appeal to gamers, to say the least.


Actually the Doctrine I was referring to was the one I was ranting about in my first post, and as a gamer it makes perfect sense.


How a gamer would perceive this idea:

- Been 5 maybe 7 years your online servers have been shutdown, offline features may or may not exist. (will say in your case their is no offline features, and once the online game goes so does your account and service altogether)

Now I don't know about you but that kind of situation doesn't sound right to me at all. Everyone should have a right to view and play that game, unless their is a real legal problem that emerges such as rating of the content and what have you. But here is the catch the only people that would have the right to view it after its been shutdown are the ones who are able to recreate it, then of course they would setup these games once again for others to use if they saw fit to do so. (trying to make that sound more understandable)

If you have your game copyrighted just to make sure no one clones your unique gaming structure aren't you stopping evolution in some aspects for gaming. Companies that are like that are stopping progression of other possible game titles from possibly being released. (okay the was less like a rant more of whats on my mind...is their really a difference)

I'm not so sure a video game company should have that right to just turn their servers off like that, unless it's for fixing the server, adding content, or for general upgrades. In my opinion who cares if it hurts the sale of future titles they may have, wouldn't that mean they made that game just that more impressive to keep around....(LIKE A LEGACY)

Maybe i'm not siding with the game companies or am not showing I care a lot about their view points, but why should I when I'm on the other end of this endeavor. (ya this is a rant...obvious)


I'm not that deep in the legal system, but I do know that video game companies are not 100% protected, no one ever is and that's a fact...not an opinion (so why not challenge this legal system, we are gamers shouldn't we have some say in whats legal and no - we are both the victim and the consumer in some cases heret)

Look at it from another really different side, these video game companies to a point work for us and cater to our needs (I SAID TO A POINT - NOT A BIG ONE). If you look at it from that way then if our needs are not met by what they are providing shouldn't you have a say in their so called laws that govern them.

Last time I checked copyright laws aren't as up to date as they should be, and some companies are in fact loosing that battle.

[Nitro Vordex]

Maybe if you want to appeal to people on here, you should put things in your own words and make your stance a little more obvious. Not saying that people are dumb or anything, just throwing a bunch of quotes from legal sites won't make it very appealing. Most people will see it as trying to hard.

Anyway, I'm still not entirely sure what you're going for a point or stance here. I'm guessing something to do with allowing private servers to be legal. If so, then, to be blunt, you're wasting your time.

[spade88]

Maybe if you want to appeal to people on here, you should put things in your own words and make your stance a little more obvious. Not saying that people are dumb or anything, just throwing a bunch of quotes from legal sites won't make it very appealing. Most people will see it as trying to hard.

Anyway, I'm still not entirely sure what you're going for a point or stance here. I'm guessing something to do with allowing private servers to be legal. If so, then, to be blunt, you're wasting your time.



Nothing to do with what you brought up on servers..

However I was talking about companies who generaly shutdown an online only game without releasing the source code. (they should be be required to release the code)



I'm done with my rant though, thank you all :)

[Sp-24]

I'm not done with mine, though: releasing the source code is a business killer. Giving private servers legal status is, too.

Besides, do you really think that everything is so simple in the industry where millions of dollars are spent to make a new game? What if, for example, the company doesn't own part of their own game? The game is built on Unreal Engine, for example, and the company is allowed to use it, but is explicitly prohibited from releasing it?

Nobody is crazy enough to support such laws, not even most of the gamers, since they know that it will severely hurt the videogame market and, in the end, them. Not to mention that it will never happen in the first place.

[Nitro Vordex]

However I was talking about companies who generaly shutdown an online only game without releasing the source code. (they should be be required to release the code)



I'm done with my rant though, thank you all :)
I don't really think they should be REQUIRED to give people their hard work up. I don't really see that as necessary.

[NoiseHERO]

...

This is about your XBOX PSO Private server again isn't it?

GAMECUBE IS BETTER ANYWAY!

[Sp-24]

...Wow. Story time, please?

[blace]

Once upon a time, there was this fan of PSO Xbox. In refusal of starting over, he started with asking about scenarios where Xbox PSO was revived. The end.

Honestly, if you looked at his topic in the PSO section, that was what lead him to this mindset.