Regarding the Mass Effect ENnies Nomination

Thank you to everybody – both publishers and fans, as well as artists – who took the time to reach out to us about the fan-created Mass Effect RPG nominated for three ENnies this year. The judges nominated this product in good faith, and judged it solely on its quality. Below we detail how we intend to change that process to avoid similar errors in future.

This is a brand new situation for the ENnies – we’ve never had to worry about copyright law before, and the issue has never come up. Our initial position was that publishers and creators are responsible for managing their own legal affairs, and that it was not appropriate for us to assume or interfere other than to hold a basic assumption that entrants had covered their own legal bases and were in compliance with anything they needed to be. For 15 years, that has stood us in good stead, but we recognise that this year’s situation has highlighted a weakness in that system. So thank you for your patience while we figured out what we needed to do. We believe that IP issues are important, and while we are not lawyers, we believe that this product is in violation of basic IP law. We do note that the creator of the product in question does not share that opinion for a number of reasons.

We have also reached out to Bioware/EA, the owners of the Mass Effect IP, and have heard from artists whose work was used in the product, and have established since that some artwork was not used with permission. This is not something we are comfortable endorsing, and we wish we had realised it earlier in the process; however we can make changes now to ensure that we do so in future.

For future years, starting in 2016, we will be adding a new eligibility requirement for the ENnies. This will simply ask a publisher or creator to affirm that all contents of a product are their own property, public domain, or used under license or with permission, and will mean that any products not within the boundaries of IP law are subject to disqualification at any time. This rule will not apply to blogs, podcasts, or other specifically fan-creation award categories. We will provide more information about this eligibility requirement later, once the exact details have been hammered out and the potential pitfalls covered.

For this year, we have decided to disqualify the fan-created Mass Effect RPG on the basis of IP violations. The creator of the product, after discussion with him, has already been notified. Don Mappin, the creator of the product, has additionally told us that "Based on this outcome I will be removing the work and its associated files." We appreciate Don's understanding, and his willingness to work with us and provide us with information when asked.

As noted above, we recognize that the creator does not agree with this analysis, and we will work hard to ensure that a robust system will enable us to handle such disagreements in the future before they become an issue. In this particular case, though, we strongly feel that the situation is clear.

In place of the three disqualified nominations, the judges will be nominating alternates. Those nominations are in the categories of Best Electronic Book, Best Free Product, and Product of the Year. These will be announced very shortly, and before voting begins on July 4th.

We apologize for this situation. We believe and hope that we have now done the right thing. And we are glad for the opportunity to improve the ENnies a little, as we try to do every year. This rather blindsided us, although it does seem obvious in hindsight. And, as before, we thank those publishers and fans who reached out and shared their concerns with us, and for their patience while we put together our intentions for this year and coming years.

 

[Steve Conan Trustrum]

there was, in the 90's, a formula for visual media that determined whether or not it counted as derivative... it was blackletter law at the time, but the section has since been revised. Change of medium was a 10% difference, and 15 percent was required to assert separate copyright. (So, a photo of a painting wasn't, at the time, a separate copyright, but changing the color scheme with filters was.)

I'd like to see a link or proof of that. Sounds like something born out of people misunderstanding the 10% prose/15 images copyright reproduction education institution terms. EDIT: Because no matter how many times I've seen someone say "oh, it's been changed, but it used to be like this," I've not yet seen anyone present actual proof of it -- and certainly not back to as recently as the '90s -- so evidence beyond hearsay would be something to see.

 

[aramis erak]

I'd like to see a link or proof of that. Sounds like something born out of people misunderstanding the 10% prose/15 images copyright reproduction education institution terms. EDIT: Because no matter how many times I've seen someone say "oh, it's been changed, but it used to be like this," I've not yet seen anyone present actual proof of it -- and certainly not back to as recently as the '90s -- so evidence beyond hearsay would be something to see.

Note: the 1996 copyright revisions changed the educational rules, too... If you look through the CFR, you'll find a bunch of sections changed in 1996, 2000, and once after that.

 

[Steve Conan Trustrum]

Note: the 1996 copyright revisions changed the educational rules, too... If you look through the CFR, you'll find a bunch of sections changed in 1996, 2000, and once after that.

Yes, I know that the copyright laws change. I can, for example, find plenty of pre-1974 changes case law and references. However, acknowledging copyright changes is not proof it once held to a 10% rule. (EDIT: Although 10% or 15 images for education purposes is the current limits, which is a big part of how this 10% myth continues to perpetuate.)

I've talked to more than a few IP lawyers about the 10% rule, as well as people who work for copyright organizations, and none of them have said it was once a Black Letter Law i.e., something that was simply understood to the point that no one contested its validity. Indeed, they only ever say it's an annoying, commonly cited myth. In EVERY copyright organization, IP law firm, special interest group, etc. FAQ addressing this point, not one has ever said something to the effect of "it used to be 10% but it's since changed and many people mistakenly believe it's STILL true." They all just state 10% is a myth and that changes are subjective and always have to be judged on their own merit. And when I ask a writer or artist who swears by the 10% myth how they know their belief to be true, they always say that they read it somewhere, someone told them, etc. No one is ever able to actually quote or link to something that can stand as evidence that there was an actual 10% threshold in play.

Iif you actually have proof that this used to be how changes to copyright materials were judged -- something that should be easy to present considering you say it was a Black Letter Law -- I'd be very interested in seeing it considering I've yet to see any such thing so much as referenced let alone show up in any of the pre-1996 case law. So, do you have a link to where I can read up on it?

 

[aramis erak]

Black Letter Law i.e., something that was simply understood to the point that no one contested its validity.

Blackletter means actual text of the law, IE, not a decision nor appellate opinion, not an implication. The explicit text of the law. It was in the 1990 version of the United States Code. If you can find one, that's where to look. That's where I found it when writing my 1991 research paper on copyright for my Music theory class. Since I don't have the paper anymore, I can't cite title and section.

Likewise, the explicit permission to make classroom copies of texts went away. It was in the 1990. It's not in the current. (I was a perfomance major taking music composition classes. Copyright was a major issue, as was required difference. There was an explicit 8 bar use allowance that now isn't 8 bars.)

 

[Steve Conan Trustrum]

Blackletter means actual text of the law, IE, not a decision nor appellate opinion, not an implication.

I'm not saying they are. I'm saying that everyone takes for granted Black Letter laws are beyond contesting, as is possible with the "text of the law" on the basis of how that text is interpreted. As that is the case -- as it is the "text of the law beyond dispute" -- it's odd that absolutely nothing comes up for a search for it, including one where actual sections of the copyright law for the years you mentioned are searched through. It doesn't show up in cases, in people analyzing or explaining amendments, etc., all of which can be found online going back pretty much since Title 17 was created.

It was in the 1990 version of the United States Code. If you can find one, that's where to look. That's where I found it when writing my 1991 research paper on copyright for my Music theory class. Since I don't have the paper anymore, I can't cite title and section.

Found it here http://uscode.house.gov/table3/year1990.htm
I've looked through all the sections on copyright that year (a big year considering it was the year for VARA.) I used the government's Title 17 preface http://copyright.gov/title17/92preface.html, which lists all changes to US copyright laws until 2010 to look at all Title 17 sections of the 1990 USC, and got nothing. Are you mistaken and it was an earlier year, perhaps?

Likewise, the explicit permission to make classroom copies of texts went away. It was in the 1990. It's not in the current. (I was a perfomance major taking music composition classes. Copyright was a major issue, as was required difference. There was an explicit 8 bar use allowance that now isn't 8 bars.)

Sorry, I used an incorrect word when I used "terms" -- I should have actually said "guidelines" considering it was more of a recognized agreement between interested parties than explicit permission provided by Title 17. However, the 10% is still current in so far as it was essentially an ad hoc guideline treaty to begin with and one that many of the parties still adhere to via mutual agreement beyond actual legal codification. (EDIT to add a point of interest: although it is actually codified in some other countries.) This is why many universities, including those with significant law schools, continue to adhere to it: http://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/. Which is also, IMHO, a reason why people still think it stretches out beyond educational purposes. I did, however, look up the 8 bar allowance you mention, and the only thing that pops up on that is a bunch of people getting sued for using 8 bars of unlicensed sampling and the fact that the 8 bar allowance is to the music industry what the 10% of word count is to writing or "I used coloured filters" myth is to art. To be honest, I've had profs in my university creative writing courses mention the 10% rule (where I first heard of it), as well as poor man's copyright, but that doesn't mean they weren't similarly victims of the same misunderstanding-born myths.

So, I'm really still not seeing anything I've not seen people claim before without a backing citation, including some rather extensive searches on the US Code of 1990 failing to pop on the existence of a 10% limitation that has supposedly since been removed. And it's incredibly odd that the Copyright Office doesn't make any reference to it previously existing, especially since in their FAQ (http://copyright.gov/help/faq/faq-fairuse.html#howmuch entitled "How much of someone else's work can I use without getting permission?") they still make the educational fair use documentation available ( http://www.copyright.gov/circs/circ21.pdf) and even link to it from this FAQ response and go into detail about every other relevant change made to Title 17 (e.g., how copyright lifespan has changed through the years.) Including just a "it used to be 10% but isn't anymore" statement somewhere on their site would solve a lot of problems for people, and yet it's totally absent despite the FAQ addressing other myths such as poor man's copyright. Again, if you can find the actual citation that is eluding me, I'd be glad to see it because I'm not finding it anywhere on my own -- that way I could post the link as proof it hasn't been around for 25 years to the next person who assures me the 10% rule currently exists.