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Infringement of remakes and their component parts (engine, plugins, data)


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#1 Martin Brentnall   Members   -  Reputation: 105

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Posted 25 February 2013 - 06:03 AM

Hello!

 

I am a hobbyist game developer currently involved in the development of a free and open source game engine.  As the engine and it's first game are nearing completion, I'm planning to reuse this engine to remake a classic 1980's computer game.  Of course, I will not be copying any assets or code from the original game.


The first half of this project will require the development of some additional C++ engine plugin modules to represent the elements of the game - simple objects such as moving platforms, enemies, terrain, etc. as well as modules to generate simple assets such as textures, sprites, etc.  All assets of the game are sufficiently simple that I don't need to load them from external files.

 

I believe that these C++ modules can be designed and constructed in a generic reusable way that does not imply any relationship to the remake that I will be using them in.  For this reason, I strongly believe that the C++ code on its own cannot lead to any risks of infringement.

The second half of this project will require that I use my engine tools to load the C++ modules and instantiate objects from them into a configuration that mimics the mechanics, layout, rules, assets, etc. of the game that I want to remake.  The resulting deliverable of this work will be an XML file that can be read by my game engine in order to generate and run the final game.

This is where things become murky.  It's hard for me to see how either half - the C++ code and the XML project file - can be infringing on its own.  As stated already, I'm certain that the C++ modules will be too generic to be infringing.

The XML file may be a little more questionable.  Technically, it will represent a description of the game, but will be written in a custom format that is only understood by my engine and the required plugin modules.  The XML file is therefore meaningless outside the context of my engine and the modules that interpret its contents into a playable game.

As such, it seems to me that only a combination package of both the engine containing the necessary C++ modules and the game XML file together can possibly be deemed to be infringing.

So here are my questions:


At what point exactly does infringement occur?
 

Assuming that neither half can infringe on its own, can I distribute the engine and the game XML as two separate non-infringing packages?

Assuming this isn't possible, can I distribute the XML without explicitly stating it's intention to be used in conjunction with the game engine and let users figure it out for themselves?

In the case scenario above, can I give the XML file a custom file extension that also happens by co-incidence to be associated with the engine executable, making it easy for players to run simply by double clicking the game XML file?  Would this change the situation?

In case this would still considered an infringement, then where is the line drawn?

If I create an XML file that mimics the game mechanics, but using different sprites, textures, sounds and map layout, is the project still an infringement?  How about just using a different map layout?

It may be worth mentioning that the engine is distributed with the same editing tools that I use to build the game XML file and is designed to facilitate and encourage user generated content.

As a consequence, this means that players can build their own map layouts based on existing project mechanics or even create games themselves from scratch.

Assuming I can safely include a project with matching mechanics of the game but not with the same map layout, then it will be fairly trivial for any user to rebuild the original map layout of the game in question using my project as a basis.  Would the inclusion of this capability make the infringement problem any more difficult to deal with?

I haven't found much information pertaining to remakes composed of multiple dependent parts, so any advice on this would be much appreciated. :)



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#2 Ashaman73   Crossbones+   -  Reputation: 7793

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Posted 25 February 2013 - 06:10 AM

The resulting deliverable of this work will be an XML file that can be read by my game engine in order to generate and run the final game.

You 'cleary' want to bend the legal boundaries to do something 'illegal'. A xml-file could be seen as derivation, or maybe not...

 

At what point exactly does infringement occur?
Either ask a laywer yet, or wait until someone send a laywer your way. The whole topic will most likely involve a laywer at some time in the future, so why not visiting one upfront.
 
PS: some EULA contains the limitation to  re-engineere their game. In this case it is questionable, if someone could write a xml file for a certain game without re-engineering it, though only a laywer could answer, if this is really illegal or not....

Edited by Ashaman73, 25 February 2013 - 06:14 AM.


#3 Hodgman   Moderators   -  Reputation: 30926

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Posted 25 February 2013 - 06:15 AM

As such, it seems to me that only a combination package of both the engine containing the necessary C++ modules and the game XML file together can possibly be deemed to be infringing.

By that logic, pirating movies isn't infringement unless VLC/media-player/etc are bundled into the torrent along with the MPEG... which isn't the case.

The copyright enforcement barons push the line far enough that, in their eyes, even if you encode some copyrighted information into a number and then share that number with someone (even if you don't tell this person what it represents, or how the number can be used in an infringing way), you are infringing the rights of the copyright holder.
 

If I create an XML file that mimics the game mechanics, but using different sprites, textures, sounds and map layout, is the project still an infringement?  How about just using a different map layout?

Don't copy any of their creative works period. You can't use their assets (but, you can be compatible with the original assets, so that someone who owns the original game can import those assets into your game, seeing that user has a license to use said assets), and you can't copy their layouts.
Game rules are an exception. In the US, the rules of a game aren't covered by copyright, but a particular expression of those rules, is.

So yes -- steal the ideas behind the mechanics, but make a new game with those ideas.
 

then it will be fairly trivial for any user to rebuild the original map layout of the game in question using my project as a basis

As long as you don't host user-generated content yourself, then you're clean (however, you're never at 0% risk of being supriously sued!).
Minecraft has done this brilliantly -- there's so many grey-area creations and mods for it, but Mojang don't host any. If anyone does want to go after some infringing bit of user-created content, they have to go after some small community website, instead of Notch the millionaire.

Edited by Hodgman, 25 February 2013 - 06:32 AM.


#4 Kylotan   Moderators   -  Reputation: 3338

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Posted 25 February 2013 - 06:44 AM

The second half of this project will require that I use my engine tools to load the C++ modules and instantiate objects from them into a configuration that mimics the mechanics, layout, rules, assets, etc. of the game that I want to remake. The resulting deliverable of this work will be an XML file that can be read by my game engine in order to generate and run the final game.

 

I'd argue that this is clearly infringing.

 

If I sit at home and record my own version of a pop song, distributing that (without obtaining permission or a valid licence) is copyright infringement. It doesn't matter that I didn't use any of the original recording, or any of the instruments or people that went into making it. What I have done is reproduced the creative work. My final MP3 does not resemble the original recording in terms of bits and bytes, and even when combined with an MP3 playing program does still not exactly resemble the the original work, but the output can be heard to be derived from the original - and that is enough to make it a clear derivative of the original work.

 

So it is with your situation. A C++ program and the XML files are only the media here. The work itself is encoded on them. If it were possible to avoid liability by distributing parts separately and forcing the recipient to wilfully re-assemble them, we'd have seen that defence encoded algorithmically into file-sharing apps by now.

 

If you choose to use different sprites, textures, sounds and map layout, then the project is likely to be non-infringing. Apart from a few ridiculous exceptions (usually granted by the US Patent Office), game rules and general concepts are not protectable intellectual property.



#5 Martin Brentnall   Members   -  Reputation: 105

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Posted 25 February 2013 - 07:19 AM

The pop song recording and VLC/movie distribution examples are interesting.  However, in both of these examples, the infringing nature of the recording and the movie can be immediately revealed by existing software.

In my case, my engine is currently not released, so it may be possible to approach in a different way.  How about this:

Let's say I only distribute the XML file without revealing it's meaning or purpose other than stating that it is later to become a required part of a free game.  Without an engine to interpret the XML, it is not possible to reveal what the XML represents and therefore the XML cannot be shown to be infringing.  As such, the meaningless XML file must surely be legal to distribute and possess at this stage.

Now, let's assume that some people download the XML file in anticipation of later using it to play the promised free game.

Later, once the XML file is sufficiently out in the wild, I then release the engine to read it.  Suddenly the XML file becomes illegal copyright infringement because the engine reveals that the XML represents a remake of an existing game.

What effect does this have on those who already obtained a copy of the XML when it was a non-infringing file?  Do those people suddenly and unknowingly become guilty of possession of copyright infringing content?

Let's say I cease distribution of the XML file immediately before release of the engine and rely on the community to redistribute the game XML via torrents, etc.  Since the XML content was not infringing at the time that I distributed it, can I still be considered guilty of infringement?

I do realise this would be kind of ridiculous in practice and I don't really anticipate legal problems in my endeavour to recreate a long forgotten obscure 1980's computer game.  I'm really more just curious. smile.png


Edited by Martin Brentnall, 25 February 2013 - 07:24 AM.


#6 Stormynature   Crossbones+   -  Reputation: 3388

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Posted 25 February 2013 - 08:06 AM

To be honest - I think you are overthinking the entire situation. A deliberate workaround such as you just suggested is more likely to establish "intent" than simply releasing.

 

However my question is this: Have you checked the IP holder's status on such use as you would seek or checked their website, or sought similar infringement examples being enforced with regard to your particulars?



#7 mdwh   Members   -  Reputation: 889

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Posted 25 February 2013 - 08:25 AM

The pop song recording and VLC/movie distribution examples are interesting.  However, in both of these examples, the infringing nature of the recording and the movie can be immediately revealed by existing software.

So how about someone uses a new codec, that requires new software to decode (indeed this isn't hypothetical really, new codecs do get written).

If something it a derivative work, I don't see why it matters what format it's distributed in. You might as well say, "If I invent a new graphics format, can I use it to distribute someone else's work".

You're probably better off focusing on the question of what aspects of a "remake" would be problematic (e.g., look at Open Source games like FreeCiv) than trying to invent some dubious loophole.
http://erebusrpg.sourceforge.net/ - Erebus, Open Source RPG for Windows/Linux/Android
http://homepage.ntlworld.com/mark.harman/conquests.html - Conquests, Open Source Civ-like Game for Windows/Linux

#8 bschmidt1962   Crossbones+   -  Reputation: 1872

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Posted 25 February 2013 - 02:32 PM

Read up on the recent Tetris vs Xio

Here's a wired article on it: http://www.wired.com/gamelife/2012/06/wireduk-tetris-clone/

 

Here's the actual court case (it's only 37 pages, and isn't very 'legal-eze' sounding):

 

http://www.loeb.com/files/Publication/46f35910-edc0-4749-a7e7-6b5285239339/Presentation/PublicationAttachment/1cc2bbfc-c7d4-4a69-a289-6d03cdcd86ec/testris%20v.%20XIO.pdf

 

At the 20,000 foot level, Xio (who cloned tetris) was found to be in violation of copyright because the game looked so much like the original, it was difficult to tell the two apart.  (Page 26 of the ruling even included screen shots from the two games, side by side)

 

The ruling did state that things like gameplay and mechanics were not copyright-able, but the expression of those creative ideas were.

 

It doesn't matter what the underlying technology is (presuming you haven't copied any code)-- if you create something that looks/feels like another game, chances are you will be found in violation of copyright if you were to be sued.  If you create something that plays like another game but couldn't be confused for another game, you're probably fine.

 

Assuming that neither half can infringe on its own, can I distribute the engine and the game XML as two separate non-infringing packages?

Nope--that wouldn't matter.  

 

If I create an XML file that mimics the game mechanics, but using different sprites, textures, sounds and map layout, is the project still an infringement?  How about just using a different map layout?

Read the Xio case and see what you think.  

I can say that if the sprites/textures/sound, etc were designed to look like the original, you'd probably be in trouble.

 

FYI the music analogy is not a very good one.  That's because a song has 2 very distinct copyrights associated with it: one for the recording itself and another for the "song" (which itself is an abstract entity).  If you make your own version of the song, no matter how much you change the instrumentation  tempo, speed, etc, if it is at all recognizable at all as the original song (even if it's just you badly humming), you are in violation.  

So in that case, even though there is no way someone would confuse you humming the song with the original recording, you're still violating copyright.  As I read the Xio case, it appears that for game copyright infringement to occur, the two games would have to be extremely similar to each other.

 

My comments are for education only.  My only legal advice would be to talk to a qualified attorney on these matters and to tread carefully... There be dragons there ;)


Edited by bschmidt1962, 25 February 2013 - 02:33 PM.

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#9 Kylotan   Moderators   -  Reputation: 3338

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Posted 25 February 2013 - 03:10 PM

The main reason I brought up the music analogy is because it shows that copyright protection applies to more than just the final physical representation of the work. A musical recording having 2 separate types of rights is not really a special case because it's actually 2 separate works: the composition, and the recording of that composition. The same can apply to any creative work that ends up creatively arranged or portrayed. (eg. Writing a book based on the dialogue from a film - the dialogue as it's written is protected even if you're not copying the audio or the video of it being delivered.)

 

The reason why games would have to be extremely similar to count as infringing whereas merely humming someone else's song is covered, is because game mechanics, rules, etc., all fall outside of the scope of copyright. They don't count as creative works for copyright purposes. But when you copy some of the way the game is expressed, by replicating the assets or attempting to match the look-and-feel closely - then you're crossing over into the realm of copyright.



#10 MrDaaark   Members   -  Reputation: 3555

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Posted 25 February 2013 - 03:19 PM

I don't know why you think adding layers of abstraction will stop you being held responsible for committing an act. There is no difference between kicking someone, and building a rube-goldberg device to do it for you. It's still an act of assault.

You can't say 'at which point does the assault occur?'. It doesn't matter. There is only the originator of an action, and the result. Regardless of the abstractions or complications, you're still responsible.

That being said, it's a shame when people waste so much time, talent, and work trying to copy someone else's work. Especially when they do a good job, and could have had an awesome project of their own.

#11 Hodgman   Moderators   -  Reputation: 30926

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Posted 25 February 2013 - 05:51 PM

Also note that copyright infringement is not a criminal offence -- you don't commit a crime at some point and then get arrested for it. It's a civil offense -- other citizenry take you to court to try and prove that you've done harm to them.

Your obfuscated-with-delay distribution hypothesis just moves the point in time where you get caught. Maybe the copyright holder doesn't find out for years anyway, at which point they try and prove that you've harmed them with your game...

#12 bschmidt1962   Crossbones+   -  Reputation: 1872

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Posted 25 February 2013 - 07:43 PM

The same can apply to any creative work that ends up creatively arranged or portrayed.

Of course you are correct.  Apologies for my clumsy writing! :)..

 

The distinction I was trying to make was that for music, even a bad, awful rendition that could in no way be mistaken for the original recording would be copyright infringement   So if I were to record Lady Gaga's "Poker Face" with a kazoo band, it would be open and shut copyright infringement of her song, even though no one could possibly mistake my version for the original.  But if I were to make a game, with the gameplay mechanics of Tetris, but the art was all kazoos, the sound was kazoos and the playfield was kazoo-shaped, based on Xio, it looks like the makers of Tetris would have a much harder time winning a copyright infringement claim over "Kazoo-tris", since although the gameplay was copied, the "expression of gameplay" was very different.


Brian Schmidt

Executive Director, GameSoundCon:

GameSoundCon 2014:October 7-8, Los Angeles, CA

 

Founder, EarGames

Founder, Brian Schmidt Studios, LLC

Music Composition & Sound Design

Audio Technology Consultant


#13 Tom Sloper   Moderators   -  Reputation: 10062

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Posted 25 February 2013 - 11:51 PM

it looks like the makers of Tetris would have a much harder time winning a copyright infringement claim over "Kazoo-tris", since although the gameplay was copied, the "expression of gameplay" was very different.

 

But they could make a case for trademark infringement since the cloner kept the "tris" in the title "Kazoo-tris," with a clear intent since the gameplay was clearly Tetris-based.


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#14 Martin Brentnall   Members   -  Reputation: 105

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Posted 26 February 2013 - 12:19 AM

Thanks for all the informative responses; that's a lot of good reading. :)

 

 

That being said, it's a shame when people waste so much time, talent, and work trying to copy someone else's work. Especially when they do a good job, and could have had an awesome project of their own.


To be honest, the engine and its editing tools are my project, which is where my real interests lie.  The game is just a "case study", if you will, to stress and test the sanity and flexibility of the engine.

#15 tboxx   Members   -  Reputation: 159

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Posted 26 February 2013 - 08:59 AM

Also note that copyright infringement is not a criminal offence -- you don't commit a crime at some point and then get arrested for it. It's a civil offense -- other citizenry take you to court to try and prove that you've done harm to them.

Your obfuscated-with-delay distribution hypothesis just moves the point in time where you get caught. Maybe the copyright holder doesn't find out for years anyway, at which point they try and prove that you've harmed them with your game...

 

Copyright infringement is a federal criminal offense in certain circumstances. 



#16 Stormynature   Crossbones+   -  Reputation: 3388

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Posted 26 February 2013 - 09:15 AM

Copyright infringement is a federal criminal offense in certain circumstances.

 

Best to define the country you are referring to when you mention a specific.



#17 TheChubu   Crossbones+   -  Reputation: 4551

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Posted 26 February 2013 - 09:15 AM

it looks like the makers of Tetris would have a much harder time winning a copyright infringement claim over "Kazoo-tris", since although the gameplay was copied, the "expression of gameplay" was very different.

 

But they could make a case for trademark infringement since the cloner kept the "tris" in the title "Kazoo-tris," with a clear intent since the gameplay was clearly Tetris-based.

Name a name Scrolltris. What could possibly go wrong?


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