Question to developers and contributors

[KZ9999]

Well my last post wasn't a legal opinion as such. I was drawing my views from the reading I've done on the general application of copyright in mass media.

As a general rule, when a work is created it can not be copied or imitated, in any form or part there of, without the creators permission. (Excluding the 5% of work for reference in another work.) paraphrased from New Zealand's own Copyright Laws

Unless the imitation is clearly in the form of parody, as highlighted in the 'Time Comics vs EC Publishing Super-Duper-Man' case, any reproduction is illegal. Even making use of a iconic image in a work of art can cause trouble. (Visit the museum of banned art on the internet to see the number of works featuring Disney characters that the company tried to have removed and in some cases destroyed. And I'm not counting the Ed Wood Disney Porn Toons)

The key matter is that is that Oolite does contain the same information as Elite, planet data, ships, equipment, etc. It is also important that the source data strings used to produce all game data is taken from the original game system (That's why we start at Lave for instance.)

The real real question regarding planet data and so forth is whether the string “ABOUSEITILETSTONLONUTHNOALLEXEGEZACEBISOUSESARMAINDIREA’ERATENBERALAVETIEDORQUANTEISRION” constitutes a work or a significant portion of a work. (That’s where the planet names come from. Everything else is generated algorithmically, and the discussion above about clean-room vs. derivative applies.)

The fact that the planets have the same name, are located in the same points on the maps and are reached in the same ships carrying the same equipment, not the code it's self, that's the copyright. To draw an analogy from the real world, painting a copy of the Mona Lisa in modern paints doesn't change the fact that is a copy of the Mona Lisa. As far as the courts seem to be concerned, this is the crux of the issue. It is not the tools used, but how they are applied.

On the whole most of the legal battles about software is not about the code itself but the look and feel. Anyone who's been around computer for a while will remember the famous GUI battles between Microsoft and Apple, for instance.

As I posted before, Oolite features designs, terminology, and in-game data which replicated the original Elite. This makes the game at least a partial copy of the original, and as such is an infringement of the originals copyright. The fact that the game is distributed under both a GPL and Creative Commons makes no difference. Unless the copyright holders relinquish the rights in to public domain, any imitation of a work is an infringement and can be punished by the courts.

The fact that the original is no longer commercially published and being distributed for free means nothing, the copyright remains. If I wrote a book and gave away copies, I still own the copyright and can stop anyone else from distributing my work without permission. It doesn't matter if someone else retypes the book and even edits it a bit and adds extra text, my original copyright remains.

What it boils down too in the end is how much does the copy match the original. The closer it is, the greater the infringement. In the case of Oolite, which is inspired by and reproduces the feel of Elite, that very close.

I would take someone far more versed in such legal matters to be able to produce a definitive answer. From my study in to the generality, this is how I read the situation.

Given how prissy and inconsistent Apple tends to be about copyright, developing a free port of Oolite for the i-Phone would more than likely get killed from the outset. (Please note I'm not bagging Apple, it's just that they let their lawyers get the better of them.) Googles Android phone on the other hand would be a better bet. (Android phones, open source friendly, open policy in the store, and it comes with a inbuilt keyboard.)

Oh I was totally wrong about the ETNK, quote. It was removed by request to the author, no courts were involved. Blame that fact on a faulty protein data-bank.

[MKG]

Oh, the number of times I've seen copyright arguments (sorry, discussions). And the funny thing is that virtually everything that virtually anyone says is virtually true. Ah, but virtual truth and real truth are somewhat different. Whilst it is the easiest thing in the world to show that copyright has been breached (whether that is on grounds of code reproduction, unique names - a difficult one, that - or "look and feel") the legal reaction is more likely to be an order to desist rather than anything more punitive. Most courts would look for some form of damage to the earning capacity of the copyright holder before awarding monetary damages. As Elite is no longer commercially available, there is no detriment to the copyright holders. As Elite IV has not yet seen the light of day, claims of future detriment fall flat - no-one could be expected to be clairvoyant. As Oolite is free, there can be no claim of profiteering from someone else's work. So, what would a copyright breach claim assert? Nothing which could not be easily and quickly changed. The text string from which planet names are derived would need only one alteration to fall outside copyright. The algorithm which produces those names (and there must be a million ways to do that) could quickly be altered. I sincerely doubt that the placement of blobs of a certain colour within a rectangular dark field would get anywhere near a copyright suit.

In short, there is nothing, at this moment in time, in Oolite which would be worth the bother of chasing in a court. And as for Elite IV, well, if (big if) it ever is published and Oolite is then seen as damaging, I suspect that the boot could be on the other foot - how much of an Elite IV which was vulnerable to Oolite would have been based on advances made within Oolite itself?

The only "fact" in the whole copyright discussion is that no "cease and desist" requests have been made against Oolite in - how many years? Not only does that make it less and less likely that such a request would be issued in the future, but it would make that request very shaky - why now and not before?

To the best of my knowledge, no-one involved in the development of Oolite has set out to screw, hoodwink, cheat or otherwise damage the copyright holders of Elite. That is by far the most defensible position to be in.

Mike

[ClymAngus]

From work in audio, 3 things tend make a copyright stomping unlikely:

1) Not for profit
2) For educational purposes
3) The work produced are significantly different from the original. Say if its for a different op system, has add ons the original doesn't have etc..

As I see it oolite (arguably) has all 3 of these sown up, as such it's not a big target. If money was being made hand over fist then it might be a problem.

[Gimi]

The only "fact" in the whole copyright discussion is that no "cease and desist" requests have been made against Oolite in - how many years? Not only does that make it less and less likely that such a request would be issued in the future, but it would make that request very shaky - why now and not before?

Unless the situation changes, and if someone starts selling Oolite or using the game for commercial gain, I suspect that would be a significant change. As I have said before, don't think Braben wants to shut down Oolite but will if it goes commercial.

To the best of my knowledge, no-one involved in the development of Oolite has set out to screw, hoodwink, cheat or otherwise damage the copyright holders of Elite. That is by far the most defensible position to be in.
Mike

Exactly, it is basically a fan-based remake, and it does no harm and only good. Let's keep it that way.

[Cmd. Cheyd]

I contribute on another OSS game (Shameless plug for UFO: Alien Invasion). We ran into a situation around a year or so ago where some Ebay iDiot was selling the game despite the license. We approached Ebay, and basically found ourselves trumbles-outta-luck because there was no "Right Holder" for Ebay to quote as saying they owned it and had not licensed it to the seller. The eventual solution was to add a loading screen that says you can download the game for free from Sourceforge.

Just relaying so you know what similar projects have encountered, and how they overcame the situation, should it ever arise...

[Cmdr James]

I quite enjoy UFO:AI, but I dont understand how someone can sell a game that doesnt have the end implemented (unlike oolite which is open endded, UFO is meant to end)

[ZygoUgo]

I liked that game, always reminded me of Laser Squad on the ST.
Haven't looked at it in a while though (are there more than two aircraft to choose from yet?), thanks for reminding me

[Cmd. Cheyd]

@ZygoUgo - Either build from Source, or wait for 2.3... You'll be VERY pleasantly surprised on the progress.

@Cmdr James - Never underestimate the stupidity of the general populace. They thought they were buying a completed (and likely thought commercial) game. If they knew what UFO: AI was, they wouldn't buy it cause they'd know it was free.

[JensAyton]

@Cmdr James - Never underestimate the stupidity of the general populace. :P They thought they were buying a completed (and likely thought commercial) game. If they knew what UFO: AI was, they wouldn't buy it cause they'd know it was free. :P

It has been very successfully demonstrated over the last several years that people will pay for things they know they can get for free. The commercial success of Nine Inch Nails’ Ghosts I–IV is one example. It is generally assumed that they expect some of the money will go to the people who made it, though…

[Simon B]

As a general rule, when a work is created it can not be copied or imitated, in any form or part there of, without the creators permission. (Excluding the 5% of work for reference in another work.) paraphrased from New Zealand's own Copyright Laws

NZs Copyrights Amendments act makes special exceptions for software. Particularly source code.

The act came under a lot of scrutiny that I was involved in when Richard Stallman toured last year. The pair of us consulted Alexandra Sims - senior lecturer in intellectual copyright law at the University of Auckland.

Internationally, the situation is much more sticky.

The short answer is that you don't want to get sued - but getting sued in NZ is probably better than most places (for software - for movies - accusation is as good as guilt, something which is being opposed... but OT.)

But wasn't this thread started about porting to the iPhone?

[Simon B]

I contribute on another OSS game (Shameless plug for UFO: Alien Invasion). We ran into a situation around a year or so ago where some Ebay iDiot was selling the game despite the license.

What was it about the UFO license that you felt restricted or prevented sale on ebay?

(I see some aspects may be licensed cc by nc ... perhaps it was those components? Then the copyrights owners for those parts needed to be involved.)

[Cmd. Cheyd]

http://ufoai.ninex.info/forum/index.php?topic=1721.0

That's the thread where it was discovered, and a lot (not sure about all) of the relevant discussion. As one of the contributors (all my stuff is CC-BY-NC) - Yes, I was annoyed / upset by it's sale. Unfortunately, Ebay doesn't really recognize... NM, just read the thread.

[KZ9999]

Again speaking from personal experience from working in a general stationery supplier were we sold blank media and did copying and printing.

@MKG
Totally on the money on everything you say. If the seed strings were altered, that would remove one issue. The ships, and the data/price/tech level of the equipment would have to be altered too, since they are part of the copyright too. If that was all done, then there would be no copyright issue; and it wouldn't be Oolite either. <sigh.>

@ClymAngus
'1) Not for profit ' - yes that is very true.
'2) For educational purposes' - this argument can't be used. If the game was suppled as a disassemble code or as image and sound snippits as part an academic paper, and then only small parts of it. Since the game is supplied as functionally complete produce, even if you can download the source code and compile it yourself, it isn't covered under that clause.
'3) The work produced are significantly different from the original. Say if its for a different op system, has add ons the original doesn't have etc.' - The legal issue is that the game is design to be a recreation of the original Elite, it doesn't matter on what extras it has or what os it runs on.

When ever Elite IV comes out, unless Oolite directly effects the sales potential of it, it's not going to be targeted by the lawyers. I reckon if we promote it right, it could be the 'you love Oolite, now try Elite IV and see the future.' <Big joke I hasten to add.>

Actually, the insane part of me says that maybe we should contact Mr Braben and ask if he would like sponsor the project. We could sell it as the community project designed to keep the interest alive in the Elite Universe while he's developing the Magnum Opus of Elite IV. With a bit of active promotion in the various computer mag's, both paper and electronic, and on gamer forums, it could build a nice ground swell of support (and wallets) that could be harvested when Elite IV is released. As for us, getting the support from Mr B would give us a bit of legal shielding should the lawyers start sniffing around. Perhaps we should look at contacting Mr Bell as well, since he seems to be a bit more open to open source stuff. (Well that's how his website reads to me.)

As for the original question about porting Oolite to the i-phone, here's one way around the issue. If the i-phone version was supplied off the internet to the user's computer, then uploaded to the phone from the computer. It would avoid the whole i-phone store issue in the first place. I don't know if this can be done on standard i-phones, but I know that 'jailbreaked' ones can.

[Simon B]

http://ufoai.ninex.info/forum/index.php?topic=1721.0

That's the thread where it was discovered, and a lot (not sure about all) of the relevant discussion. As one of the contributors (all my stuff is CC-BY-NC) - Yes, I was annoyed / upset by it's sale. Unfortunately, Ebay doesn't really recognize... NM, just read the thread. :)

The details are OT for here - but the thread does bring up good points about the licences, misunderstandings, and how not to handle things.

Initially it looked like the non-commercial licenses were being violated by the apparent sale of the game on ebay. In fact, the vendor was not selling the game - he was selling knowledge of a link to a download site for the game. (This - selling directions/instructions - is a common commercial practice not restricted to software or eBay.)

His offense, then, was one of misleading his customers on two counts - 1. that he claimed to be selling a game and 2. that the games license was lgpl. (Though there was some suggestion that he claimed, in private, that he was supplying a slightly different version to justify the price. There was no confirmation because nobody who bought the game posted.)

This is pretty benign in the software world - everyone claims to be selling their (commercial) software (eg MS Windows) but if you read the license you discover that you are actually leasing it.

Most software is covered by multiple licenses - but it is unusual for these to be discussed outside foss.

It's pretty slimy, but no more than anyone else - welcome to the gutter sewer that is marketing.

And the proper way to approach a suspected breach of copyright? The rights-holder must contact the (alleged) offender. If anyone tried that, it wasn't mentioned in the thread.

You explain the offence and your relation to it, and ask that the offending material be removed from the product.

I have never had any problem with this approach. In this case the vendor could have satisfied most issues by linking to the wiki copyright page, and explaining that the packages obtained though him include "non-commercial" components - not included in the price. (Better that he distributes a "commercial" version, which does not include the nc components. The devs should consider providing one.)

The game licensing is interesting in comparison with Oolite - the devs are much stricter about what licenses are acceptable and how the licenses are to be presented. This actually makes the issues clearer, but I also think it would not have created quite the stink if it had happened to us.

Lessons for Oolite:

The biggest problem UFO:AI had involved unambiguously identifying the rights holders - they must exist, GPL requires this. In their case, the people who originated the code had reportedly left the project.

Who are the rights-holders of Oolite?
(I know these things keep getting discussed - I have suggested a copyrights sticky before.)

There were strong feelings about how the game was presented and used - we need to examine, for example, how we feel about our work being used for someone-elses financial gain.

What are the exact concerns - for eg. here we have a music package with explicit permission to redistribute (but without charge). Is the objection that the package was included in a for-sale bundle or that end users parted with money for it? Or that money changed hands involving this package, without royalties for the rights holder?

(I do not intend to hash out the issues of that case here - it is an example of a way of handling things.)

IFAIK: there are no non-commercial components in the (0olite) trunk ... is this correct? Are there any non-commercial plugins?


.
..
...
These things can take a lot of thought when we'd rather be enjoying ourselves ... but once done, the rest is quite easy. Besides, the exercize in sorting out your own intentions is useful in other ways.

Digression:

Observations on licenses
- caveat: not legal advice and deliberately glib. Enjoy.

Almost everyone ignores them.

Consider the proprietary licenses - the intent is always that you have no rights. They have to be clickwrapped because they actually remove many rights that you'd otherwise have... so they are usually covered by contract law. What fun!

For the user this makes things simple - you can't do it. Whatever it is - you can't.

If it is not explicitly forbidden - then the holders lawyers forgot to put that in - this is a useful loophole only if your lawyers are tougher than theirs, and your willingness to defend is stronger than their willingness to sue.

So, the corrollory is, try to look like you are not worth suing and do what you like. Which is what most people do, in fact, so you can also hide in the crowd. RIAA notwithstanding, it seems to work... mostly.

For the rights holder, this is also simple - you choose which offences to pursue. You may not mind that unnofficial copies of your music are raising money for orphans in uganda. It's a breach of copyright - but you want this use, so you ignore it. See, easy. It also means that if you want to do something like punish a scammer, you have some weight there (you just need things like time and funds.)

This system disproportionally benifits holders with lots of money - OK - but name a system which doesn't.

Free licenses make things more complex. The idea is to grant the user more rights than they would normally be entitled to (by default) under law. Different versions release legal restrictions by different amounts in different directions.

They don't need to be clickwrapped, because you don't have to agree to receive additional rights. If you don't want them, don't use them.

The enforcement options remain - but are more restrictive for the holder. Some things are just not an offense any more - even when they are offensive or done by someone you don't like.

Therefore, reasons for adopting them are usually ideological as well as practical ... it tends to encourage a kind of community development process which has proved useful, by instilling that community with some confidence in the process.

The ideology behind a particular free license usually involves what kind of community you want to encourage/be a part of.

Free licenses seem to have an unexpected advantage in disputes - by and large, judges seem to want to rule in favour of them. Particularly noted in Europe, (I seem to recall a DLINK case in Germany?)

A judge has explained this to me: you job, as a judge, is to sit quietly and listen to people lie to you. You know a lot about what is going on because you used to represent them professionally.

When you get someone who stands for something other than profit-driven self interest (maybe that too, but as well) it is like a breath of fresh air in your courtroom. You are going to be well disposed towards that person. If you didn't believe in justice, even a little bit, you wouldn't be a judge (you'd be a higher paid lawyer in a glass tower someplace) - so when you actually get to mete some out if feels good.

The main problem is that you are restricted to points of law and evidence.
(There was this case in NZ a while back - not software, but illustrates the points about judges.)

I understand the GPL is yet to be tested in court in the USA. <cough>cisco?</cough>

Ho hum.

[JensAyton]

The game licensing is interesting in comparison with Oolite - the devs are much stricter about what licenses are acceptable and how the licenses are to be presented. This actually makes the issues clearer, but I also think it would not have created quite the stink if it had happened to us.

We’re pretty strict on Oolite. However, OXPs are not part of Oolite and we don’t mandate anything about their licenses if they don’t reuse Oolite assets.

Oolite as a whole is GPL 2 or later. All code is therefore GPL 2 or later, or some compatible license. Parts are dual-licensed, including SpiderMonkey (GPL and MPL) and most of the stuff I’ve written from scratch (GPL and MIT/X11).

All art assets distributed with the game are dual-licensed and can also be used under CC-by-nc-sa-3. Specifically, this includes:

• Everything in Resources/AIs
• Everything in Resources/Config
• Everything in Resources/Images
• Everything in Resources/Models
• Everything in Resources/Music
• Everything in Resources/Scripts (These have GPL header comments, which should be amended)
• Everything in Resources/Shaders
• Everything in Resources/Sound
• The Oolite icons
• Everything in Asset Source
• Everything in Converted assets.

However, all of this is subject to one giant caveat: if any part of the source or assets is in fact a derivative work of Elite, any license claim we make about it is invalid. Further, for all our theorizing, what actually is and what is not a derivative work (in a given jurisdiction) can only be determined by a court.

The biggest problem UFO:AI had involved unambiguously identifying the rights holders - they must exist, GPL requires this. In their case, the people who originated the code had reportedly left the project.

Most contributors are listed in contributors.txt, but unfortunately there are at least a few early contributors who have been lost in the mists of time. I don’t think any of them contributed very big portions of what’s in Oolite now, though. There may also be recent contributors who haven’t been listed; anyone who’s submitted a patch is invited to check if they’re there.

For reference, the main contributors are:

• Giles Williams (aegidian)
• Jens Ayton (Ahruman)
• Nikos Barkas (another_commander)
• David Taylor (dajt)
• Dylan Smith (winston)
• Kaks

The top two are definitely the top two in terms of volume; after that it gets fuzzy. (Question: how do you weigh the porting effort of days of yore against diverse recent contributions, young Vetinari? Answer: either with lots of drama, or not at all. The latter is generally preferable.)

Properly documenting the license situation (and everything else) is on my to-do list for MNSR…