[the_logos]

Originally Posted by (Jazuela @ June 05 2003,07:42) In quote of Treithe's post, where he includes the licensing info from the Tolkein Estate...it says people are "requested" to "submit" a proposal. Nowhere in what I read did it mention that people are "required" to "obtain" permission. You are requested to submit a proposal. Treithe submitted a proposal. He did as requested, end of story.

Heh, it'd be funny to see someone use that defence in court. I wonder how long it would take for the judge to stop laughing.

I'll just assume you're joking.

--matt

[the_logos]

Originally Posted by (KaVir @ June 05 2003,07:53) Having said that, however, I could see Traithe putting forward a reasonable argument based upon the last sentence of the first paragraph, which states "Generally, the custom and practice of the community are used to determine the scope of the implied license", and then making reference to the following three points:

I got fed up with all the lay-person opinions (including mine) being thrown about on the murky subject of implied licenses this morning, so I asked our lawyer (who specializes in IP for games) what she thought of the way you're using the concept of implied license.

In short, she said you're stretching the idea of implied license way beyond what any court would accept. Nuff said.

--matt

[the_logos]

Originally Posted by (Molly O'Hara @ June 05 2003,11:33) Since the word hypocrisy was brought up... I find it slightley strange that someone, who has been using such tacky - (not to say ethically and morally questionable) - methods for promoting his own mud as the_logos is known to have done, now poses on this board as some paragon of virtue. At least to me, a past like that seriously damages the credibility of this person, especially concerning those subjects. It also makes me wonder about his motives for this 'crusade'.

Ahh, nothing like trying to discredit an argument by trying to discredit the arguer. Totally invalid logic, of course, but amusing nonetheless.

--matt

[the_logos]

Originally Posted by (Brody @ June 05 2003,13:02) I'm not saying it's legally right if challenged in court, but I am saying it's not morally reprehensible if the MUD community in general seems to have tolerated these "violations" for more than 20 years.

What does it matter if people who play MUDS tolerated them? It's not up to the MUD players or operators to decide it's ok to steal IP just like it's not up to the users of Napster to decide it's ok to steal music.

What you're saying is akin to saying that if I arrive in a port town and encounter a gang of thieves who regularly hijack ships coming into port and have been doing so for 20 years, the fact that the hijacking is ok with the very people doing the highjacking makes the highjacking ok.

I don't see that it matters one whit what the "mud community" tolerates or doesn't tolerate. It doesn't operate in a vacuum and special laws don't apply to it.

--matt

Originally Posted by KaVir wrote: The Diku license allows you to use the Diku team's copyrighted work, the Merc license allows you to use the Merc team's copyrighted work, and so on - but the copyrights for most of the stock areas belong to other people.

Unfortunately there is no easy way to know.  The license certainly goes beyond saying that in that it just doesn't merely refer to source, it refers to source and documents.  I agree it's quite reasonable to assume the builders have licensed their work to the Diku team and have authorized the distribution as a collective work.  

Still this issue was one that was beat around usenet for quite awhile.  We agree that these assumptions are reasonable.  We may not agree with how you get there, technically.  I think we both agree there's no fraud on the part Diku, Merc and Rom groups.

What I'm not getting is why you brought it up?   It doesn't seem to have a bearing on the issue of taking works and appropriating them into muds.  Especially when there isn't any assumptions to make about the Tolkein works.  The only assumption one can reasonably make in regard to current law is, "No I can't do it".

Now should for some reason say if someone named Redferne comes out and says, Hey I never wanted my area distributed with Diku, I think we're all obliged to delete the Diku distributions we carry on our sites (or removed the offending pieces) and remove the area from our muds.  *shiver*

Still I'm not sure where you were trying to lead me with this.  ;-)

[Stilton]

Originally Posted by If you're going to respond to one of my points, please respond to the entire point. If you had done so, the rest of your "argument" would not apply. What I said, was that it's worth noting that they know what is going on, yet haven't done nor even complained about muds - we do not know what their opinion about muds is

I did address your entire point: Like I said, "words are cheap." They didn't actually DO anything, even when people (led by logos, incidentally) offered to chip in for lawyer fees.

As I understand it, the pledged amount was LOTS more than you would need to file a DMCA notice with Vryces' ISP and get the mud yanked off of the internet.

In the lack of knowledge, you prefer to assume consent. I prefer to regard lack of permission sitting in my hand as not having it. We'll have to disagree here, it seems.

In the face of apparent apathy by the IP holders vs known objections by them, you draw a distinction. Morally, I agree that there is a distinction. Legally, I do not.

Originally Posted by the Tolkien copyright holders enjoy the free publicity that muds give them, but don't want to give the official "okay" in case they later decide they'd like to tear the muds down

The other interpretation is that they really don't particularly like it, because of the potential devaluation of their property, but that they also don't want to start hauling their fans into court because of the negative publicity that would result.

People like Traithe put authors in very awkward situations in this regard.

Originally Posted by No, implied licenses exist to take care of cases where the conduct of the parties indicate that some rights are to be extended from the copyright holder to one or more individuals, but the parties themselves did not bother to create a license.

I fail to see how our positions here differ (yours being taken pretty much verbatim from the website you linked to), except that I am quite clear about stating that the "conduct of the parties" has to be actual actions on both their parts, not inactions like failure to respond to an email.


Stilton

[Brody]

the logos said:

Originally Posted by What you're saying is akin to saying that if I arrive in a port town and encounter a gang of thieves who regularly hijack ships coming into port and have been doing so for 20 years, the fact that the hijacking is ok with the very people doing the highjacking makes the highjacking ok.

No. That's not what I'm saying at all, and you're really trying too hard to make these illogical inferences. Hijacking is forcibly seizing control of property with the full knowledge and absence of consent of the property owner. Quit trying to paint all these people as pirates/hijackers/child molesters/axes of evil. They're not.

What I'm saying *is* akin to saying that for 20 years, there have been lots of "unlicensed fan clubs" celebrating the works of Tolkien. For 20 years, the Tolkien estate has either tacitly allowed it or turned a blind eye to it. The Tolkien estate hasn't declared these games anathema. The Tolkien estate hasn't begged, pleaded, cajoled or threatened people to shut down their free Tolkien-inspired games. If they did so *today*, then I'd be right there with you, saying such games need to shut down. But they haven't so far, which makes the argument - in my opinion - rather moot insofar as Tolkien is specifically concerned.

It would be akin to piracy if these games, which the Tolkien estate must surely have heard of by now, had been ordered to shut down but didn't. It would be akin to piracy if, like Mercedes Lackey and Terry Goodkind, specific statements *against* such "homages" had been issued.

I agree it may be discourteous to create a game based on the Wheel of Time without asking Robert Jordan's permission. I disagree that it makes the MUD operator a *criminal* unless he's doing it for profit. There may well be a day I agree that borrowing a theme without express written permission is criminal, but that will be the day the courts - not Matt - specifically rule on the issue of MUDs and their influence on intellectual property rights. Until then, this is just so much chest pounding and navel gazing (interesting though it may sometimes be).

[Aeolus]

Originally Posted by What you're saying is akin to saying that if I arrive in a port town and encounter a gang of thieves who regularly hijack ships coming into port and have been doing so for 20 years, the fact that the hijacking is ok with the very people doing the highjacking makes the highjacking ok.

Unfortunately, Logos, this is simply not true. There are several concepts in the law which could apply to preclude a copyright holder filing a claim. The most obvious is the statute of limitations, which holds that any suit for a violation of copyright must be intiated within three years of the date the violation accrued. (17 U.S.C.A. § 507(b).) There are exceptions to this, and the fact that an earlier violation was not sued on does not wavie the right of suit on subsequent violations. This was held in a case called Merchant v. Levy, 92 F.3d 51 (C.A.2.N.Y.,1996), amongst others.

The second way a copyright claim could be barred would be by laches, which is an equitable doctrine which holds, generally, that if you have in some way "sat on your rights" by not bringing suit, then you are estopped from bringing the suit. The Court of Appeal for the Second Circuit, for example, held in New Era Publications Intern., ApS v. Henry Holt and Co., Inc., 873 F.2d 576, that when the publisher knew of the copyright infringement for two years and did not seek to enjoin it in the United States (they had in other countries) until the books were printed and packed, they were barred by laches from pursuing the claim.

Laches is, to be sure, an uncertain defence, because you are having to rely that the court will find the copyright holder was aware of the violation, and they chose not to act. However, if a court was willing to analogise printing books to putting up a MU*, then in fact sending a letter and recieving no reply might (and I emphasize the might) provide this sort of defence.

I think we have to be clear here that only in certain specific circumstances is infringing on a copyright 'illegal' in the strictest sense. It is not a crime to infringe on someone's copyright, it's a civil wrong, which subjects you to a statutory minimum damages of $5,000 per violation. Under federal law, you would have to be making money by infringing the copyright, and SoI is clearly not. Therefore, it cannot be a criminal offense.

-Aeolus

[Stilton]

To shortcircuit a misunderstanding from poor wording in my last post:
I do agree that there is A distinction, just not THE distinction under discussion (ie, that it's OK to go ahead and use the IP)

It's certainly worse to be a violator ignoring the repeated requests of the IP holder.

BTW: Thanks, Aeolus, though isn't the case you cite a better example of what happens when the judge notices that the plaintiff is deliberately causing more trouble than necessary (by attempting to harm the defendant by deliberately not giving notice so they'll spend money, and THEN hitting them with the legal process) than a mainstream copyright infringement defence?

And I'm a bit vague on how the statute of limitations applies to an arguably continuing violation (still running a mud vs photocopying LOTR once, 10 years ago).  Do you have any pointers?

Stilton

Edit: changed a synonym for donkey to "causing more trouble..."

Originally Posted by Stilton: As I understand it, the pledged amount was LOTS more than you would need to file a DMCA notice with Vryces' ISP and get the mud yanked off of the internet.

It doesn't cost a dime to file a DMCA request (well maybe a postage stamp).  The problem is all it requires is for Krause to perjure himself to avoid an upstream provider from disconnecting himself.  And as KaVir knows being the recipient of a similar request from Krause, he (Vryce) has no compunctions regarding perjury.

Originally Posted by Stilton said KaVir said or implied: In the lack of knowledge, you prefer to assume consent.  I prefer to regard lack of permission sitting in my hand as not having it.  We'll have to disagree here, it seems. the Tolkien copyright holders enjoy the free publicity that muds give them, but don't want to give the official "okay" in case they later decide they'd like to tear the muds down

I'm suprised KaVir.  We're are usually in agreement. You and I both know such things are covered well and clearly on the various copyright myth sites.  That is they are the myths.  And we've both quoted them back to people using mud code. That is it's not okay to assume any rights to use, redistribute, etc. and it's not a valid excuse to claim you are a fan or promoting and otherwise benefit the author.

Is Stilton misunderstanding or misstating your position?

[KaVir]

Originally Posted by Tyche wrote: The license certainly goes beyond saying that in that it just doesn't merely refer to source, it refers to source and documents.

Although it doesn't mention areas, which are arguably very distinct from the documents.

Originally Posted by I agree it's quite reasonable to assume the builders have licensed their work to the Diku team and have authorized the distribution as a collective work. Still this issue was one that was beat around usenet for quite awhile. We agree that these assumptions are reasonable. We may not agree with how you get there, technically. I think we both agree there's no fraud on the part Diku, Merc and Rom groups. What I'm not getting is why you brought it up? It doesn't seem to have a bearing on the issue of taking works and appropriating them into muds. Especially when there isn't any assumptions to make about the Tolkein works.

The point I am making is that it is sometimes reasonable to "assume" permission is granted if there is sufficient precedent - unless you find out otherwise. It is not something I would recommend, but it's a far cry from what Vryce has done.

Originally Posted by Now should for some reason say if someone named Redferne comes out and says, Hey I never wanted my area distributed with Diku, I think we're all obliged to delete the Diku distributions we carry on our sites (or removed the offending pieces) and remove the area from our muds.

Right - but are we obliged to track him down? I'd say no - based on the evidence available, my personal view is that it's reasonable to assume we can use his area until such time as he informs us otherwise. I think it's fair to make this assumption based on the fact that the area is distributed with many Diku derivatives, and is in use by a lot of muds.

The point is that the same argument could be made about the Tolkien work. Like the areas, we do not know whether the copyright holders have given permission, but there is plenty of evidence to show that they do know many muds using their work. There is also sufficient precedent to show that they will not hesitate to take legal action against derivative work they object to - none of which have been muds.

[KaVir]

Originally Posted by Stilton wrote: I did address your entire point: Like I said, "words are cheap." They didn't actually DO anything, even when people (led by logos, incidentally) offered to chip in for lawyer fees. As I understand it, the pledged amount was LOTS more than you would need to file a DMCA notice with Vryces' ISP and get the mud yanked off of the internet.

The DMCA costs nothing, but would not be sufficient to deal with someone like Vryce. Actually following up with legal action would be both expensive and time-consuming.

Originally Posted by In the lack of knowledge, you prefer to assume consent.

That couldn't be further from the truth. Lacking knowledge, I prefer to make no judgement at all. That is why I have repeatedly said it is not up to you, Matt, or anyone else to try and enforce the rights of a copyright holder when you don't even know what they want. If the author says "You cannot use my work for muds", then fair enough - ban them. If they say "You can use my work as long as you do X, Y and Z" then great! But until then, you're just second-guessing them.

Originally Posted by I prefer to regard lack of permission sitting in my hand as not having it.

So do I as a general rule, but sometimes there is sufficient precedent to make an assumption. If you disagree with that, why didn't you email me to ask my permission before quoting sections of my post?

Originally Posted by In the face of apparent apathy by the IP holders vs known objections by them, you draw a distinction. Morally, I agree that there is a distinction. Legally, I do not.

Aeolus's post already covers the legal aspects.

[KaVir]

Originally Posted by Tyche wrote: I'm suprised KaVir. We're mostly in agreement. You and I both know such things are covered well and clearly on the various copyright myth sites. Is Stilton misunderstanding your position?

He keeps using straw man arguments - please read my posts, not his interpretation of them.

Here's another hypothetical to throw out just for purposes of discussion on this assumption issue.  

Suppose I release a mud server under my own license, and within that server I have rape-n-pasted the Apache html header parsing routines, and perhaps some well-known GPLed regex code.  

Are you going to assume that the Apache Group and the author of the regex has given me permission to do so, or are you going to raise some concerns or perhaps holy #### about it?  ;-)

I think your assumptions that I don't have permission to do that are warranted and raising a ruckus might be justified.  Don't you?

There lay the difference I think in assuming the Diku area authors are fine with the Diku distribution versus Fiest, McCaffrey or Tolkein.  Direct involvement in the project led to that assumption.

Minor issue:
I still disagree with notion that there is separation of areas from documentation from code.  There just isn't any of that as the game is both inoperable without them and there aren't in fact separated from each other (least not in Diku) as they're in a big tinyworld glob in the distro, a collective work.  Sure the argument may be valid for Merc 2.2 or ROM which does have separation. Still the area authors have that direct involvement.

[Stilton]

KaVir responding to Tyche:

Originally Posted by Is Stilton misunderstanding your position? He keeps using straw man arguments - please read my posts, not his interpretation of them.

Straw man eh?

Indeed, please read his posts, starting with the one from Posted: June 05 2003,07:53:

Originally Posted by (snip discussion of implied license - Stilton) In my opinion, Traithe has sufficient precedent to put forward an argument based on that same assumption, at least until such point as the copyright holders clarify their position.

and then

Originally Posted by Now were they to contact Traithe and tell him to shut his mud down, that would be a different matter.

Are you saying that a reasonable reader should not infer from that post that you were defending the use of IP under the terms you describe in it?

and finally, in his most recent post:

Originally Posted by That couldn't be further from the truth.  Lacking knowledge, I prefer to make no judgement at all.  That is why I have repeatedly said it is not up to you, Matt, or anyone else to try and enforce the rights of a copyright holder when you don't even know what they want.  If the author says "You cannot use my work for muds", then fair enough - ban them.  If they say "You can use my work as long as you do X, Y and Z" then great!  But until then, you're just second-guessing them.

KaVir, in that post and others, attempts extensively to justify the proposition that not knowing whether you have permission (particularly if others have done it before and gotten away with it) gives you some kind of grey area where using the IP isn't really a problem "at least until such point as the copyright holders clarify their position."

As Tyche observes, the people KaVir is arguing with here are using pretty much the same arguments he has been using for years against the pro-Med crowd.

I do happily agree that a violator's position is worse once the IP holder tells you to stop.  I do not accept that they have to clarify their position for you before they have any rights.

Now where's Dulan...

Stilton

Edit: From KaVir's recent posts, it's starting to be unclear to me whether he's defending Traithe's use of IP as permissible or simply listing arguments that COULD be made (devil's advocate if he's now saying he doesn't believe them to be valid?), and then objecting to third parties stepping in before the IP holder has weighed in themselves.

[Stilton]

Oh, and to Tyche and KaVir on DMCA: I know that you can do it yourself. I just expect that it looks a lot better on stationery headed "Law Offices of..." just like any other formal notice you need to give someone.

If the offender denies the charges the mud has still been taken down for two weeks, right?

Wouldn't that be a significant moral victory, and something to point to next time someone asks if it's really infringing, right?

As long as you're sure you're right, it's certainly a good first step, isn't it?

Stilton