D&D 5E Skyrim supplement for D&D 5e

[Ovinomancer]

Most ToS's are not legally enforceable within the United States. Same with most EULAs. That's why they include the part about refusal of service; they can just refuse service to you any further if you repeatedly cause a problem.

However, let's dig into this... grabbing relevant sections.



This just provides a definition of Services for later on. It's relevant so some of the parts coming up make some sense.



The document on the first page does not violate that. Next section.



Well... Under this section, if you read it right, then ZeniMax possibly owns the Skyrim supplement. Interesting. And if you read it another way, ZeniMax cannot take action against this product since it was not actually submitted to them or through one of their distribution methods. And a third way is that both are true, making this potentially ZeniMax property that ZeniMax can't touch. But they certainly are not liable for anything that happens with it.

Basically, the item on the first page needs to change their last page to have a proper copyright notice for Skyrim.

But at no point does the ToS actually come into play if this is not a copyright violation, just due to the fact it hamstrings itself on what it can enforce by limiting itself entirely to content submitted to ZeniMax or distributed through them or something they own. No mod is distributed in that manner, the Minecraft mods are not distributed in that manner, the very document in the first post is not distributed in that manner... In no case can there be a violation of the ToS cited simply because the ToS does not apply to this situation.

Now, whether or not it violates Skyrim's copyright is another matter. There's a good argument there. And a very good reason not to take risks like the OP does in the first place. Because he's risking massive monetary damages and jail time, not having his document taken down from some distribution service ZeniMax runs.

Well, while I disagree with your reading of the TOS, and the statement that it's not enforceable in the US (hint: companies generally don't write legal documents to protect themselves that don't work, you're just assuming the point is to stop stealing; it's not), you are correct that it has little to do with the document in the OP. I don't recall if anyone said it does, though; I certainly haven't made that point. So, when you brought up the TOS, I thought you were making a point about what that document actually covers rather than saying that it doesn't pertain to the OP document. It doesn't, but it's not toothless, either.

If you infringe on the rights set out in the TOS, they can use that to take both your money and the IP created. In fact, creating something using the IP covered under the TOS means that you're granting Zenimax a permanent and no-holds-barred license to use your created IP however they want. To that effect, the TOS has a lot of teeth -- you give up your ownership rights to Zenimax if you engage in using their services to create content. But that has absolutely nothing to do with the OP effort, so, yeah.

The OP is covered under copyright law, not the TOS for a service the OP didn't use to create the document. I am very confused as to why you've brought the TOS into the discussion to begin with.

 

[ArchfiendBobbie]

Well, while I disagree with your reading of the TOS, and the statement that it's not enforceable in the US (hint: companies generally don't write legal documents to protect themselves that don't work, you're just assuming the point is to stop stealing; it's not), you are correct that it has little to do with the document in the OP. I don't recall if anyone said it does, though; I certainly haven't made that point. So, when you brought up the TOS, I thought you were making a point about what that document actually covers rather than saying that it doesn't pertain to the OP document. It doesn't, but it's not toothless, either.

If you infringe on the rights set out in the TOS, they can use that to take both your money and the IP created. In fact, creating something using the IP covered under the TOS means that you're granting Zenimax a permanent and no-holds-barred license to use your created IP however they want. To that effect, the TOS has a lot of teeth -- you give up your ownership rights to Zenimax if you engage in using their services to create content. But that has absolutely nothing to do with the OP effort, so, yeah.

The OP is covered under copyright law, not the TOS for a service the OP didn't use to create the document. I am very confused as to why you've brought the TOS into the discussion to begin with.

I was responding to Sacrosanct bringing up the ToS as though it had some weight or relevance to the discussion in a reply to me. Sacrosanct brought the ToS into the discussion, which I ignored until Sacrosanct tried to use it as though it proved anything in their reply.

Also, their ToS doesn't apply to all content. The only services they have for making content are a fansite kit and the tools they publish for making game mods, and under the ToS section of the game mods they cede ownership of the mods to the mod makers; ZeniMax doesn't own the majority of the content that is created for Skyrim according to their own ToS.

Here's the relevant section:

Content also includes Game Mods. The term “Game Mod” means downloadable, user-generated Content developed or created by You or a third party using an Editor Tool (as defined below). In certain cases, as determined by ZeniMax, Game Mods may be made available to other users of a Service or a Game and in such cases, such other users may download the Game Mods from ZeniMax or third parties and use such Game Mods in connection with playing a Game or receiving a Service from ZeniMax.

If You desire to develop or create one or more Game Mods, then You will be required to download from a ZeniMax website or otherwise gain access to via a ZeniMax website one or more software tools through which You may create or develop Game Mods (each such tool is an “Editor Tool”). To obtain a copy of or get access to any such Editor Tool, You will be required to agree to the terms of a separate EULA (the “Editor EULA”). If there is a conflict between the terms and conditions in any such Editor EULA and the terms and conditions in these Terms of Service, the terms in the Editor EULA will control over the conflicting terms in these Terms of Service but solely for purpose of the specific Editor Tool and not for any other purpose. Please review the terms in the Editor EULA carefully.

With respect to Game Mods made available for download from a ZeniMax website or made available from a ZeniMax server, ZeniMax may, at any time and in its sole discretion, elect to remove such Game Mods from the ZeniMax website(s) or server(s) without notice to You.

Each Game Mod is owned by the developer of the Game Mod, subject to the licenses granted by the developer to ZeniMax as set forth in the Editor EULA.

ZeniMax may, but is not required under this Agreement to, validate, test, evaluate or pre-screen Game Mods.

ZeniMax does not endorse, sponsor, guaranty or approve any Game Mods, including without limitation Game Mods available for download from a ZeniMax website.

Your experience with any particular Game Mod may vary from other users’ experiences.

IF YOU ELECT TO INSTALL, DOWNLOAD OR USE ANY GAME MODS, YOU DO SO AT YOUR OWN RISK.

EXCEPT AS PROHIBITED BY APPLICABLE LAW AND SUBJECT TO THE STATUTORY OBLIGATIONS (AS DEFINED IN SECTION 1), ZeniMax reserves the right (but has no obligation except as required by law) to OFFER, make available, REVIEW, remove, block, edit, move or disable GAME MODs for any reason, with or without notice, and HAS no liability of any kind WITH RESPECT TO GAME MODs, including WITHOUT LIMITATION when ZeniMax determines that a GAME MOD violates THESE TERMS OF SERVICE, the EDITOR EULA. The decision to remove a GAME MOD at any time is in ZeniMax's sole and final discretion.

To the maximum extent permitted by law, ZeniMax does not assume any responsibility or liability for GAME MODs or for the removal of any GAME MODs FOR any failure to or delay in removing, any GAME MOD.

Note that this section doesn't include the language that ZeniMax may use this content as they wish, and was defined as not being UGC in the rules in the prior section. ZeniMax, according to their own ToS, doesn't own or have rights to mods.

Now, where the teeth fail: Outside of copyright laws, how can ZeniMax or Bethesda enforce anything against the document on the first page? Or the hundreds of other fan creations just like it? That's why I say it's toothless; this isn't a ToS matter and never will be just due to how the ToS is worded. And with both Bethesda and ZeniMax completely uninterested in making the clauses related to removing things from distribution methods they provide enforceable by having those methods actually exist, that's all it ever will be.

 

[Ovinomancer]

I was responding to Sacrosanct bringing up the ToS as though it had some weight or relevance to the discussion in a reply to me. Sacrosanct brought the ToS into the discussion, which I ignored until Sacrosanct tried to use it as though it proved anything in their reply.

It did, as that was a side discussion about mods and how their governed, which the ToS does address.

Also, their ToS doesn't apply to all content. The only services they have for making content are a fansite kit and the tools they publish for making game mods, and under the ToS section of the game mods they cede ownership of the mods to the mod makers; ZeniMax doesn't own the majority of the content that is created for Skyrim according to their own ToS.

Here's the relevant section:



Note that this section doesn't include the language that ZeniMax may use this content as they wish, and was defined as not being UGC in the rules in the prior section. ZeniMax, according to their own ToS, doesn't own or have rights to mods.

Relevant statement from the middle of that block quote:

Each Game Mod is owned by the developer of the Game Mod, subject to the licenses granted by the developer to ZeniMax as set forth in the Editor EULA.

You own it, so if it violates any other IP or laws, it's yours. But Zenimax gets a permanent, non-revocable, complete license to use it however they want.

Now, where the teeth fail: Outside of copyright laws, how can ZeniMax or Bethesda enforce anything against the document on the first page?

Well, all Sacrosanct said was the the usage wasn't permitted by the TOS, not that the TOS will come and get you for it. The question he was answering wasn't if the TOS will prevent you, but rather that the TOS doesn't permit the usage. You can't make the supplement under the protection of anything in the TOS, even though if you made an addition to a covered videogame that was largely similar, you would be covered.

Or the hundreds of other fan creations just like it? That's why I say it's toothless; this isn't a ToS matter and never will be just due to how the ToS is worded. And with both Bethesda and ZeniMax completely uninterested in making the clauses related to removing things from distribution methods they provide enforceable by having those methods actually exist, that's all it ever will be.

Yes, and no one ever claimed that the TOS prevented it -- they claimed it didn't permit it.

 

[Sacrosanct]

I brought up the ToS to address the implication that people could violate copyright because "look at all the mods". I.e., all those mods fall under the ToS, and the ToS is very explicit in how you can use Bethesda IP for your own material, and that just because there are fan made mods, it in no way means that fans have carte blanche to use IP how they want as long as it's "free" or whatever other qualifier has been mentioned.

 

[ArchfiendBobbie]

It did, as that was a side discussion about mods and how their governed, which the ToS does address.


Relevant statement from the middle of that block quote:

Each Game Mod is owned by the developer of the Game Mod, subject to the licenses granted by the developer to ZeniMax as set forth in the Editor EULA.

You own it, so if it violates any other IP or laws, it's yours. But Zenimax gets a permanent, non-revocable, complete license to use it however they want.

Depends on if that's in the EULA or not. It's not in the ToS, which is what we were discussing.

Well, all Sacrosanct said was the the usage wasn't permitted by the TOS, not that the TOS will come and get you for it. The question he was answering wasn't if the TOS will prevent you, but rather that the TOS doesn't permit the usage. You can't make the supplement under the protection of anything in the TOS, even though if you made an addition to a covered videogame that was largely similar, you would be covered.

Yes, and no one ever claimed that the TOS prevented it -- they claimed it didn't permit it.

Which doesn't counter my argument that the TOS has no teeth. If there is no way under the TOS they can do anything about it, then it doesn't matter that it violates the TOS. Both violating it and not will, under the TOS, have the same outcome as far as consequences.

That was my point in saying that Bethesda ignores the little copyright infringements, such as the document this thread is about. In saying the ToS has been loophole abused by Bethesda to the point it's laughable. Because there is not one single enforceable consequence within it for violating it; all of the consequences are part of other documents people have to agree to or covered by copyright laws.

There isn't any point in caring what the ToS has to say about mods or even bringing it up as an argument point because the ToS itself establishes that it is not the primary document that covers game mod rules. The entire argument about if the ToS allows it or not is irrelevant because the argument references the wrong document. It's like trying to convict someone for murder by trying them under the tax laws.

 

[Iry]

Also, their ToS doesn't apply to all content. The only services they have for making content are a fansite kit and the tools they publish for making game mods, and under the ToS section of the game mods they cede ownership of the mods to the mod makers; ZeniMax doesn't own the majority of the content that is created for Skyrim according to their own ToS.

That's where national copyright law steps in. Derivative works are owned by the creator of the original work, which means things like fan fiction are owned by the license holder of the IP in question. But...

Now, where the teeth fail: Outside of copyright laws, how can ZeniMax or Bethesda enforce anything against the document on the first page? Or the hundreds of other fan creations just like it? That's why I say it's toothless; this isn't a ToS matter and never will be just due to how the ToS is worded. And with both Bethesda and ZeniMax completely uninterested in making the clauses related to removing things from distribution methods they provide enforceable by having those methods actually exist, that's all it ever will be.

It's not toothless in the sense that they could C&D or sue for recovery against any derivative work based upon their IPs. But it IS toothless in the sense that they won't do that. Not for something like this. Maybe if it got really popular and the OP tried to monetize it, but otherwise they wouldn't care.

 

[ArchfiendBobbie]

That's where national copyright law steps in. Derivative works are owned by the creator of the original work, which means things like fan fiction are owned by the license holder of the IP in question. But...
It's not toothless in the sense that they could C&D or sue for recovery against any derivative work based upon their IPs. But it IS toothless in the sense that they won't do that. Not for something like this. Maybe if it got really popular and the OP tried to monetize it, but otherwise they wouldn't care.

The C&D circles back to them using copyright law and not the ToS to enforce.

Otherwise, we're in agreement.

 

[Ovinomancer]

Depends on if that's in the EULA or not. It's not in the ToS, which is what we were discussing.



Which doesn't counter my argument that the TOS has no teeth. If there is no way under the TOS they can do anything about it, then it doesn't matter that it violates the TOS. Both violating it and not will, under the TOS, have the same outcome as far as consequences.

That was my point in saying that Bethesda ignores the little copyright infringements, such as the document this thread is about. In saying the ToS has been loophole abused by Bethesda to the point it's laughable. Because there is not one single enforceable consequence within it for violating it; all of the consequences are part of other documents people have to agree to or covered by copyright laws.

There isn't any point in caring what the ToS has to say about mods or even bringing it up as an argument point because the ToS itself establishes that it is not the primary document that covers game mod rules. The entire argument about if the ToS allows it or not is irrelevant because the argument references the wrong document. It's like trying to convict someone for murder by trying them under the tax laws.

And libel law has very little teeth when prosecuting for murder. Glad we have that understanding?

 

[neobolts]

Wow. The derail is strong with this thread.

Neobolts' Rule of Copyright Discussion: Talk not about the workings of copyright law, TOS agreements, fair use, fan projects, Creative Commons, and the d20 OGL/SRD, for there is no wisdom to be found.

That said, it is possible that the OP can seize the rights to Skyrim via what is known as "squatter's rights". While in a squatting position (or simply seated on a toilet in some states), the claimant simply needs to demonstrate that he has a superior intellect to the rights' holder, which is why they call it "Intellectual Property." Note that IP law is very different when engaging in a battle of intellect in Sicily, which gives rise to the saying "'Never go in against a Sicilian when death is on the line." In such cases, OP could try to rely on TOS to make his case, but I personally would make the case for TNG over TOS as the cast is superior and the storylines are more compelling. I can say this with confidence, for I am a what is known as a "double lawyer", which is twice as important and well-informed as a regular lawyer, only without the need to actually be able to practice law.

On topic...Has anyone tried out the Skyrim 5e fan content in actual play? If so, how was it?

 

[CapnZapp]

Wow. The derail is strong with this thread.

Yep

Amounts to wilful sabotage if you ask me.



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