Modding Discussion A bit of ranting from an old programmer (and some copyright law discussion)

Discussion in 'Starbound Modding' started by cpeosphoros, Jul 20, 2017.

  1. katana

    katana Scruffy Nerf-Herder

    It is. It's a unique creation that, upon its creation, is immediately copyrighted (depending on country of origin; in the US, copyright does not have to be claimed, works are copyrighted on birth).

    Now, depending on complexity, you'd be likely to run into issues trying to enforce copyright for a sub-kebibyte patch just because of fair use, prior art arguments and the like. It can still *technically* be copyrighted and thus licensed...but often it's not even practical. It's not even worth it...so it really doesn't happen. Best thing you can do is just public domain the tiny things so that nobody runs into any licensing questions, issues, etc.
     
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  2. cpeosphoros

    cpeosphoros Orbital Explorer

    First, mostly what defines what "software" means in the US and many other countries is not the law, but the licensing scheme. If a license fails to define what "software" means, or if it is too vague about that, copyright law will default that definition to the "uses and costumes of the industry", i.e. what the majority of the licenses in the field define as "software", i.e., the whole body of code plus any accompanying material. "Accompanying material" is usually defined as all "literary or artistic works" (see below for a simplified exemplification of those) accompanying a software, i.e. manuals, graphic and sound assets, etc.

    Even in countries that define "software" in law, like Brazil, where I live, the license's definition will supersede the law's definition. The difference is that the default will be the law's definition instead of the "uses and costumes of the industry".

    Same applies to other terms' definitions, like "modify", "convey", etc. See GPLv3's definitions section for example definitions of those terms and others.

    Second, a patch, besides always being a software (see below the reason a patch is always a software), may also be a derivative work.

    The definition of "derivative work" is not specific for the software industry, but comes from general copyright law, which takes it from the Berne Convention for the Protection of Literary and Artistic Works, which is an international agreement and defines derivative works as "Translations, adaptations, arrangements of music and other alterations of a literary or artistic work".

    Mind you "software" is considered a type of "literary or artistic work" (just for comparison, other types are "music", "cinematographic works", "speeches", "literary works", etc.) under copyright law in the vast majority of countries, if not all of them. A specific literary or artistic work is always considered the same, independently of media, so e.g. a lecture, the recording of said lecture, its textual transcription, etc, are all the same work under Berne's definition.


    Now, if I understand your question correctly, i think it would be best phrased as "Is it safe to call a mod that consists of a single patch file 'derivative work'?" and the answer would depend on what that single patch file consists of.

    If it is just a couple of Ops to correct some values, it would not be a derivative work, but would fall under the right of a licensee to use the original work. However, the original work's license would still have to grant you rights of distribution if you would want to publish it.

    Compare it with music - it's legal to modify (like changing pitch levels, etc) a song you bought on iTunes for your personal use, but it's not legal to publish the modified version, since iTunes' license permits you to use the song, but not to distribute it.

    Mind you that the modified version would still be music - unless you changed it to a completely different kind of work, which is not possible with a software patch. That's the reason why a patch is always a software.

    On the other hand, if that single patch completely overhauls the original target file (e.g. FU's /celestial/names.config.patch, if it were a single patch mod), then it would be a "derivative work".

    Nevertheless, the same restrictions on publishing applies to a derivative patch as with a non derivative one. The original work's license still have to grant you distribution rights if you want to publish it.

    The difference, actually, is how your work will be protected, not the original. If it falls under the derivative work definition, than you will hold authorial rights (which includes but is ampler than copyright) over the new work.

    Basically, that means if your work is a derivative and the original's license grants you the right of distribution, then you will be able to license the new work under your own terms, as long as you comply with the original's license terms.
     
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  3. cpeosphoros

    cpeosphoros Orbital Explorer

    Although you are right about it depending on country, works are copyrighted on birth in any country signatary to the Berne Convention, which in practice means virtually any country that matters.

    *Edit: Just for curiosity's sake, you can get the list of Berne's signataries in this wikipedia link. And, just to muddle things further, some non-signatary countries may still have a statute saying something in the sense of "Berne Convention's provisions apply in this country".

    Those exceptions to copyright law usually apply only in most of the US or other common-law jurisdictions. Civil law jurisdictions, which mean Louisiana and the vast majority of non British heritage countries, usually don't have those exceptions.

    Only if the original work's license grants you those rights.

    You can't, in any country signatary to the Berne Convention, public domain a work - be it software or anything else - based on other people's work. Best thing, actually, for "sub-kebibyte" works (I loved this term), if you would even distribute them, would be just applying the same license of the original.
     
    Last edited: Jul 22, 2017
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  4. Errors4l

    Errors4l Spaceman Spiff

    I'm not sure this is completely correct.

    You compare the patches to modified music, where you would be distributing the edited sources.
    In the case of patch files, you're not distributing any of the original content. It would be like telling users how they can modify the music themselves.
    Users need the original content (the game or another mod, which may or may not have it's own license), and can apply the patch (by installing the mod). I don't see how the patch itself could be considered a derivative work, and why you would have to license the patch under the same license.
    Would referencing a JSON key from the sources in the patch (let's say to change some "radius" from 5 to 10) be enough to require you to abide by the license? That seems gross.

    Do note that there are licenses/user agreements that state you may not decompile sources. It would all be different if you had to do that to create the patch.
    (Actually, I think the EULA of Starbound states this too, but since ChuckleFish includes their own resource to unpack the assets, I guess that unpacking the assets doesn't count as violating these terms.)
     
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  5. cpeosphoros

    cpeosphoros Orbital Explorer

    Yes, simply changing a json key, or even a small bunch of them, would not make the patch a derivative work, for sure, but would still possibly be subject to the licensing restrictions of the original work.

    Actually, this is quite a gray area. Some of those small patches would sure fall under the tutorial example you gave - telling someone how to modify a value, by giving them a small patch as an example of how to do that. Others wouldn't. In the end, this would only matter if some part sued the other over copyright infringement, and then it would be the court's job to sort it out. So, in a better safe than sorry policy, I would abide with the original's license and use the same one with my work, even for very small patches.

    What qualifies as derivative, with certainty, on the other hand, is overhaul patches, even one-file ones.

    And, as I said, the definition of a work as a derivative has nothing to do with the original author, but with the derivative's.
     
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  6. jje64

    jje64 Phantasmal Quasar

    Okay, I've had to sit through an absurd amount of training on this, both in college and in the workplace, so here's my take. That being said, I'm not an attorney, and the only place these things can be definitively settled is at the point of a gavel.

    I see a couple of issues here. For starters, there is a lot of confusion between what constitutes a copyright, and what constitutes a usage agreement, which are two totally different things. A EULA is a usage agreement, not a copyright declaration. Copyright itself is silent on the notion of ownership, the sum total of copyright law is designed to protect an artist or inventors rights of distribution. You can paint a copy of a painting and keep it in your dining room and it's totally legal. You cannot try to sell that copy as an original work. This is why you can write a song, and I can perform it, and you can't do a thing about it - it's all fair use. I can't sell your musical score as my own, and I can't record your performance of it and sell that, but I can perform it all day long and I'm perfectly legal to do so with or without your permission.

    A EULA, and software agreements in general, speak to the fact that you aren't buying the software, you're buying a license to hold and use the software, which constitutes a usage contract under law. The licenses used here are copyright statements by the authors dictating under what terms a work may be propagated. That being said, no license has the authority to cancel the doctrines of fair use, regardless of how intricate the wording. Fair use is judged on four factors:

    1. Character of use, and how transformative the new work is
    2. nature and relationship of the works
    3. substantialness of the material copied and
    4. effect upon the potential market.

    The courts, in the past, have viewed the fourth point as the most critical... if you can prove a new work based on your work has caused your work to be supplanted and you lost income because of it, the court will usually weight that heavily. In the case of the patch file, it would absolutely be protected as a new work. If you copied the other person's code outright and made changes to it, and claimed it as your own, that would not be a derivative work, it would be clear plagiarism and claiming a person's work as your own, regardless of the nature of the change you made. It fails on all four points. A patch makes no changes to the original in a substantive sense. It makes virtual changes to it during runtime, but at the end of the day, the original is actually untouched. The patch, therefore is a dependent and supplemental work to the original, and contains none of the original author's work, even if it benefits from it. Actually, you could argue under point four that your work enhances the original author because your work isn't functional without theirs, and therefore in order to use your work, theirs must be acquired first, which is supported by point 2. The relationship between the works isn't competitive, and your work can't supplant the original, so there's no claim to infringement. It's as though you wrote a supplement guide for a movie or a novel - as long as your work isn't an outright copy of the original, it actually promoted the original, and so the copyright claim fails because the new author has caused no damages for the first. In real practice, generally the courts test point 4 first, and then assess the degree of infringement based on the other points. If point 4 fails out of the gate, the whole suit does. People tend to get hung up on point 1 and the transformative nature of derivatives, but really it doesn't matter if there's no distribution rights to infringe.

    It's all a moot point anyway, because all of this posturing about licensing amounts to little more than a gentleman's agreement between mod authors, enforced by the publisher. Exactly none of these mods bring any income to anyone except Chucklefish. If someone wrote Super Killer Mod and most the most restrictive license you can get on it, and I changed six words in the documentation and claimed it as my own, a copyright suit against me would probably still fail because the claimant can't show any damage under point 4. Courts in the past have considered these "de minimis" cases, in that the total effect does not diminish any market for the original because there is no market for the original. Super Killer Mod hasn't brought its author one penny of income, and so my Super Duper Killer Mod Redux can't cause harm. Hobbyists stealing from hobbyists generally isn't sufficient for a court to award anything, because there are no damages to rectify. De mininis. The only claim you can make is that you aspire to be a software developer yourself, and so the damage to you is in loss of exposure to your portfolio of work, but that's a pretty thin legal argument.

    So who does this affect? Chucklefish, and commercial developers in general. If you write a mod and strictly license it, and then Chucklefish absorbs your mod into their game, you have a loss potential based on the fact that they profited from your work. In this case, your work enhanced theirs and they profited from it without your license, so you could make the argument that you could have profited from it independently. It probably wouldn't fly as infringement per se, because of the lack of a market, but a judge might agree that you're due royalties on your work since income was eventually derived from it. This benefits Chucklefish (and other developers with a modding community) because having the licenses for work stated up front makes their life easier. If Super Mod adds some functionality to Starbound and it's licensed under an anything goes ticket, then the devs can freely adapt your ideas into their product without fear of copyright challenges or royalty claims - you've already absolved them through your license. If you put restrictive licensing, then they probably won't touch it, or may look at your code for ideas but have to reverse-engineer new processes to achieve the same thing. So effectively, by choosing restrictive licensing, you're just preventing developers from building a free library of content templates, but in a legal sense, it really doesn't stop someone else from copying your work, outside of the dev-enforced realm of this forum. If I copy your mod from here and publish it on Nexus or my own website as my own work, you really don't have a claim to a functional copyright suit, although you're welcome to spend thousands on a copyright attorney to do so in order to recover.. nothing, because no damages can be articulated.

    Copyrights, trademarks, patents and use agreements are funny things and often misunderstood. I had to sit through several semester-long classes in college and grad school that just dealt with copyrights and use contracts and it's complicated to say the least, mostly because people don't understand what a copyright does and doesn't protect, and what is and isn't permissible under fair use.
     
  7. IHart

    IHart Scruffy Nerf-Herder

    When you share your mod on the forums you sign away your claim on your content to Chuckefish. The forum EULA allows them to integrate your content into theirs without so much as a thank you. I'm fairly sure Steam workshop has a similar condition in their EULA.
     
  8. jje64

    jje64 Phantasmal Quasar

    That only protects content distributed through this forum. Many games have third-party mod sites run by fans that have no such implicit agreements. Look at Kerbal Space Program - the VAST majority of their mods are distributed first and foremost through a modiste called Spacedock or Stardock or something along those lines. The devs have no part of (and have refused to entertain involvement in) that site. But probably 75% of the active mods are distributed through there, and are even linked to from posts on the official forums. By convention, all of those mods have license files as suggested by the OP here right in their root directory, since their distribution isn't managed like CF does here.
     
  9. cpeosphoros

    cpeosphoros Orbital Explorer

    Well, you are quite right, from a US law point of view.

    Things get muddled, though, when you cross countries borders. Chucklefish is an UK based company. I don't know the details of UK law, but I do know fair use doctrine in the UK is way stricter than in the US.

    More, I live in Brazil, a civil law country, like most of non British heritage countries in the world, and our copyright law is quite different. Heck, even calling it "copyright" here (and in the vast majority of civil law countries) would be wrong. The correct term under civil law is "authorial rights", but let's continue using "copyright" for simplicity's sake.

    We simply don't have a fair use doctrine. Most of things which would fall under fair use in the US would be considered a copyright infringement in civil law countries. The example you gave about the street artist? Here, if the author sued, he or she would be awarded fines to be paid by the artist, for unauthorized public performance of a protected work, independent of any proof of damage to the author. The only proof needed is for the unauthorized public performance. Of course only a fricking jerk-a** would sue a street artist over that, but there have been cases and the artists have been fined (most of the time with a ridiculously low fine, bust still.)

    There is also the matter of the Berne Convention, to which the US is signatary, as is Brazil and most countries in the world. Let's say some US citizen, in US soil, infringes the copyright of one of my works originally published in Brazil. Under the Berne Convention, I'm allowed to sue them either in Brazil or the US, but using Brazilian law standards of protection in either case, and if I choose to sue here, the US would be obliged to enforce the Brazilian court's decision upon said citizen, even if it would fall under fair use for US standards.

    But that is only for exemplification of why US law should not be generalized as if it were the same thing all around the world.

    That said, you are quite right on most your other points also. Sticking a permissive license on a work will mostly benefit the developer (in our case, Chucklefish, but I'm discussing things here on a broader perspective). However, that will also benefit, as you pointed, other developers downstream and, more important in my opinion, the community in general, as it would allow for abandoned works to be legally picked up by someone willing to update them.

    Now, though you are right when saying EULAs are not copyright declarations, EULAs (which stands for End User License Agreements) are a kind of license. Usually a very strict license of use only, but still a license. Thus, all the reasoning about licenses in general still applies to EULAs.

    As for "copyright declarations" they are almost redundant in any country where the Berne Convention applies. As stated somewhere else in this thread, any work is copyrighted "on birth" in those countries, even anonymous or pseudonymous works. A copyright declaration just makes it easier to find out who the author is and when was the work published.

    Note: I'm also not a lawyer, but this has been revised by one.
     
  10. cpeosphoros

    cpeosphoros Orbital Explorer

    I guess this is correct, but only to a certain extent... ;)

    Why do you think forum moderators are so tight-a**ed about we using other people's non-licensed mod assets, even if they are abandoned? I'm quite certain it has something to do with their UK copyright lawyers' advice on the matter...
     
  11. katana

    katana Scruffy Nerf-Herder

    Funny, because a certain very prolific, very large mod has been doing that for some time now.
     
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  12. Exilyth

    Exilyth Scruffy Nerf-Herder

    ... and then you add international law and suddenly you're sitting in a giant mess, surrounded by towers made out of books on business and copyright law, chanting prayers to long forgotten ancient gods in a strange and mystical tongue known as 'legalese'. :nurutease::nuruwink:

    Using the MIT license for code is a good suggestion, it takes all the nasty stuff and greatly simplyfies it for all parties involved.

    Another good licensing framework, but rather for art assets than code, are the creative commons licenses:
    https://creativecommons.org/choose/

    Notable mentions are the public domain or CC0 license, which gives away all rights, enabling everyone to freely use and modify the licensed object:
    https://creativecommons.org/share-your-work/public-domain/

    and the cc-by license, which enables everyone to freely use and modify the licensed object, but requires them to name the original author:
    https://creativecommons.org/licenses/by/4.0/

    It is important to note that different parts of a mod can be put under different licenses, e.g. you could release art under CC0 and code under MIT.
    (There need to be copies of the used licenses and a file explaining what part is under what license included in the mod)

    Of course I am not a lawyer, your mileage may vary, warranty void if seal is broken, best enjoyed with a grain of salt, yadda, yadda, ...
     
  13. cpeosphoros

    cpeosphoros Orbital Explorer

    ROFL... ;)

    Very good advice on the art vs. code licensing stuff.
     
  14. IHart

    IHart Scruffy Nerf-Herder

    are there cases of explicit license violations?
     
  15. cpeosphoros

    cpeosphoros Orbital Explorer

    I'll not name names, but if a previous work has no license information then the default is "All rights reserved", so, technically, anybody using that work's assets would be infringing their copyright.
     
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  16. katana

    katana Scruffy Nerf-Herder

    And it's doubly true when it's stated as

    But, yeah, not going to name names. :)

    Did some legwork though and reported it. We'll see if the moderators are actually so uptight about enforcement of licensing.
     
    Last edited: Jul 26, 2017

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