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Regarding the Mass Effect ENnies Nomination
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<blockquote data-quote="Steve Conan Trustrum" data-source="post: 7675036" data-attributes="member: 1620"><p>It is a myth that no copyright infringement occurs so long as you don't earn money from it. There are other thresholds for Fair Use protection (which is what covers this sort of thing -- using someone else's IP without permission), and profit is just one of them. You can see them in Section 107 of the Copyright Law. Here are the other three thresholds (each of which is largely open to interpretation):</p><p></p><p><em><p style="text-align: center">(2) the nature of the copyrighted work;</p></em></p><p style="text-align: center"><em></p></em></p><p style="text-align: center"><em>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and</p></em></p><p style="text-align: center"><em></p></em></p><p style="text-align: center"><em>(4) the effect of the use upon the potential market for or value of the copyrighted work.</p><p></em></p><p>The work tripped up on #2 because it was meant to be a direct reworking of the original work in a new medium. It wasn't a parody, it wasn't for educational purposes, etc. It was meant to be an instance of "hey, do you like the Mass Effect video game? Well now you can play it as a pen and paper RPG using my work!" On it's own, not likely a big deal, but when you add ...</p><p></p><p>The work tripped up on #3 because it used a lot of the original copyrights, including art. How this benchmark usually applies in Fair Use is, for example, a review posting a small quote or a few accompanying pictures. Once you start using enough of the IP that the new work no longer requires referencing the original (in other words, you can play the pen and paper RPG without referencing the video game) you are likely going to be considered to be using a "substantial" portion of the original IP.</p><p></p><p>As for #3, well ... if someone, as a fan, is using a game company's IP without permission in such a way that it gets through the voting process to be nominated for gaming awards, that is a VERY easy argument to make that the work's existence dilutes the value of a Mass Effect official RPG license being able to enter the market at its full potential. The existence of Don's unlicensed and unapproved work leaves people saying "well, now I don't need to buy an official one if that ever comes out because I'm satisfied with Don's. It got into the ENnies, after all, so it must be top quality!" Don's product is using the IP owner's own IP without permission to potentially take money out of their pockets. This is, in my opinion, the biggest aspect of Fair Use that Don would get hit by if Bioware went after him, and submitting it to the ENnies and other awards only made the situation worse for him.</p><p></p><p>I don't know if it was you who did it, but someone also put it up on Lulu and charged for it. Regardless of whether or not any net profit was obtained by doing so, the fact that people were able to obtain it in print by providing money to a third party without a proper license being in place is outright, unarguably, infringement. Also, distribution of infringing materials is actionable by the IP owners as well. So, giving ANYONE the files, but especially so that people could put them up on Lulu, most certainly constitutes as infringing distribution. As a matter of precedent, because the files are digital each instance of distribution isn't tallied by how many people receive the files. If they wanted to, the IP owners could count each time the files changed media (including one person taking them off their laptop and putting them on to a USB, for instance, or even loading them into RAM to look at them) as an instance of infringing distribution.</p><p></p><p>A lot of people do this. You just described most every small press publisher putting out good looking stuf.</p><p></p><p>Sure, if not for that pesky problem about IP infringement. "It needs to be legal" should not be a difficult threshold to meet for entering an awards process.</p><p></p><p>Unfortunately, the use of the IP and his ongoing stance of "I didn't do anything wrong or infringing" (to paraphrase) also presents him as a liability.</p><p></p><p>Agreed, it was top quality.</p><p></p><p>You mean why shouldn't he keep going until he does come to Bioware's attention, except at that point even more people have downloaded and distributed it, meaning he'd be even deeper trouble -- including financially if a damages ruling was successful against him and a fee levied per instance of proven distribution?</p><p></p><p>Look, no one's going to deny that fans create material based on IPs and just about never bother getting permission. However, most also just host it on their website and let people get it as they will without submitting it to industry awards processes. This is why most IP owners don't care about it. But when the fan who created it a) is actually also a professional who makes similar products for profit, b) the creator registers (and thus is technically squatting on) a domain using the IP owner's trademark, and c) signs the work up for several awards where professionals also participate, the context of it "just" being a fan creation shifts away from the standard of fan creation that IP owners don't bother with and is pushed into a context that could very easily be worrisome to the IP owners.</p></blockquote><p></p>
[QUOTE="Steve Conan Trustrum, post: 7675036, member: 1620"] It is a myth that no copyright infringement occurs so long as you don't earn money from it. There are other thresholds for Fair Use protection (which is what covers this sort of thing -- using someone else's IP without permission), and profit is just one of them. You can see them in Section 107 of the Copyright Law. Here are the other three thresholds (each of which is largely open to interpretation): [I][CENTER](2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[/CENTER][/I] The work tripped up on #2 because it was meant to be a direct reworking of the original work in a new medium. It wasn't a parody, it wasn't for educational purposes, etc. It was meant to be an instance of "hey, do you like the Mass Effect video game? Well now you can play it as a pen and paper RPG using my work!" On it's own, not likely a big deal, but when you add ... The work tripped up on #3 because it used a lot of the original copyrights, including art. How this benchmark usually applies in Fair Use is, for example, a review posting a small quote or a few accompanying pictures. Once you start using enough of the IP that the new work no longer requires referencing the original (in other words, you can play the pen and paper RPG without referencing the video game) you are likely going to be considered to be using a "substantial" portion of the original IP. As for #3, well ... if someone, as a fan, is using a game company's IP without permission in such a way that it gets through the voting process to be nominated for gaming awards, that is a VERY easy argument to make that the work's existence dilutes the value of a Mass Effect official RPG license being able to enter the market at its full potential. The existence of Don's unlicensed and unapproved work leaves people saying "well, now I don't need to buy an official one if that ever comes out because I'm satisfied with Don's. It got into the ENnies, after all, so it must be top quality!" Don's product is using the IP owner's own IP without permission to potentially take money out of their pockets. This is, in my opinion, the biggest aspect of Fair Use that Don would get hit by if Bioware went after him, and submitting it to the ENnies and other awards only made the situation worse for him. I don't know if it was you who did it, but someone also put it up on Lulu and charged for it. Regardless of whether or not any net profit was obtained by doing so, the fact that people were able to obtain it in print by providing money to a third party without a proper license being in place is outright, unarguably, infringement. Also, distribution of infringing materials is actionable by the IP owners as well. So, giving ANYONE the files, but especially so that people could put them up on Lulu, most certainly constitutes as infringing distribution. As a matter of precedent, because the files are digital each instance of distribution isn't tallied by how many people receive the files. If they wanted to, the IP owners could count each time the files changed media (including one person taking them off their laptop and putting them on to a USB, for instance, or even loading them into RAM to look at them) as an instance of infringing distribution. A lot of people do this. You just described most every small press publisher putting out good looking stuf. Sure, if not for that pesky problem about IP infringement. "It needs to be legal" should not be a difficult threshold to meet for entering an awards process. Unfortunately, the use of the IP and his ongoing stance of "I didn't do anything wrong or infringing" (to paraphrase) also presents him as a liability. Agreed, it was top quality. You mean why shouldn't he keep going until he does come to Bioware's attention, except at that point even more people have downloaded and distributed it, meaning he'd be even deeper trouble -- including financially if a damages ruling was successful against him and a fee levied per instance of proven distribution? Look, no one's going to deny that fans create material based on IPs and just about never bother getting permission. However, most also just host it on their website and let people get it as they will without submitting it to industry awards processes. This is why most IP owners don't care about it. But when the fan who created it a) is actually also a professional who makes similar products for profit, b) the creator registers (and thus is technically squatting on) a domain using the IP owner's trademark, and c) signs the work up for several awards where professionals also participate, the context of it "just" being a fan creation shifts away from the standard of fan creation that IP owners don't bother with and is pushed into a context that could very easily be worrisome to the IP owners. [/QUOTE]
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