You were on a roll with your citations until this line...

Bah! It is copyright infringement!

Regarding what may be actually happening, and don't take this as an ethical or legal argument, pro or con...

Tolkien Enterprises is purposefully ignoring the request.  One, they can claim they had no knowledge of the infringement should they ever decide to litigate.  And two, they don't litigate unless there's money in it.

That's the reality.

I flamed (no that's to strong), imformed a youngster the other day regarding their desire to use the Matrix.  As the owners of that property explicitly state on their web pages, no permission for fan fiction.  The same is true for the Forgotten Realms settings as TSR (WotC/Hasbro now) has and had policies forbidding use in online games.  No assumptions required here.

Then as an aside I remember when Sojourn was running a brazenly violated TSR Forgotten Realms IP.

[Stilton]

Aeolus:
Excellent. Thank you!

I don't suppose there are any precedents out yet on server type apps- where the material sent over the wire might not be infringing, but the code used to produce it is. It just occured to me that DMCA might not be broad enough in that regard.

Stilton

[Aeolus]

I don't recall saying it wasn't. I said it wasn't /criminal/, and therefore not 'illegal'. Copyright infringement of the kind we're discussing here is a statutory tort, not a crime.


There is a presumption at law, however, that a letter properly addressed, stamped, and mailed is in due course delieved. So a letter sent to them would put them on notice of the violation.

As far as it not being worth their time to litigate, here you're probably right. I haven't managed to find a single case dealing with a MU* for copyright infringement in either Lexis or Westlaw, so if there's one out there, it's not reported anywhere.

-Aeolus

[Stilton]

Kavir
(generic you's coming)
As long as we're correcting each other, I have been defending the proposition that you shouldn't assume consent from an IP holder until you actually see it, and that it's appropriate for someone else to say "Hmm, are you sure you should be doing that?" if you do.

I don't want to interpret their wishes at all- the copyright notice on the book is pretty clear, and if they haven't said anything to the contrary I shouldn't ignore the stuff on ink and paper simply because the IP holder didn't respond to an email or hasn't broken out the lawsuits.

And that's what I caught in the edit to avoid the extended issue of what happens once the copyright holder's intent is clear. They're not opposites, btw- one is a possible evolution of the other.

Stilton

Umm my bad.  Whether it's a criminal or civil law, it's definately wrong.  I think by stating it's not illegal you lessen or trivialize it.  Hopefully that's not your intent.  In some States and localities outright property theft is handled under civil law rather than criminal law.  Doesn't change the ethical issues just the litigation venue.

[Fharron]

Regarding the legalities of using an authors work as the thematic base for a MUD I think the particularities of Tolkeins work should be commented upon.

As far as I am aware the bloke is still dead and the use of his work is controlled by his son, or at least it was for a substantial amount of time. One previous impact of this was in relation to film rights. While he was alive Tolkein opposed any and all filming of his works. After his death his son quickly sold the rights, leading to the awful feature length cartoon adaption. I cant see how any claims that the use of his works somehow conflicts with the auhtors intentions, in respect to the ethical dimension. In fact the use of his ideas, within a textual medium, might be considered flattering where he still alvice. Certainly more flattering than actively going against his expressed wishes, which has been done by the present copyright guardians.

The power of control and express wishes of an author tend to die with them, unfortunately. I think it is plainly obvious that the current copyright guardians care little about the views of Tolkein, above and beyond the cash value of the works. I dare say they would even go as far as licensing an Andrew Loyd Webber musical version if the price was right.

While legal questions may be raised over the use of Tolkeins IP I dont think an ethical question can be raised over a quality piece of work that strives to flatter his creation, in a medium close tohis own heart. Especially not by people who have already gone to great lengths to set him rolling in his grave.

On a seprate point, various code-bases have the stock Moria zone included, numerous games utilise the various races, and Smaug uses the name of a central character. Are we to see any MUDS with this code-base ,area, or racial references banned from the boards?

Its only a personal opinion but the SOI seems to repsect the integrity of Tolkeins vision, it isnt attempting to profit from the use of the material, it is introducing a new dimension to the textual ideals of tolkein, it isnt debasing the work through every and all cash generating avenues, and the owner is actively trying to approach those parties that may or may not provide permission. The MUD community has plenty more charcters, guilty of higher duplicity, and a few potential new rogues waiting to walk on stage.

Cant we just focus our exploitation efforts on them? Along with similar questions of duplicity, like why we still have P2P muds on the main listings and not a seperate listing. Muds that have been shown to be guilty of vote stimulating by unethical means and constantly posting misleading bullet paragraphs about their actual constituion.

[KaVir]

Actually, it's myself that I'm defending. The_logos claimed that myself and others were being inconsistent by defending mud licenses, while ignoring muds based on copyrighted themes (which is a slight variation on one of the more common Medievia sock-puppet arguments). Traithe's use of IP is still a copyright infringement, but it is a thoroughly different scenario to that of muds which rip out the credits and/or charge money.

Then why have you not emailed me asking for my permission before quoting my posts? And did you request permission from everyone else before your browser downloaded the forum pages? And - if you run (or have ever run) a Diku mud - did you contact the author of each stock area before using their work? If you've not, then what do you feel about those who do? Do you think that everyone should specifically request permission from the author of each stock area before using it?

No, they are complete opposites.

The Diku team have repeatedly spoken out against those violating their copyright, but have not been able to take any actual legal action. The Tolkien people have turned a blind eye to those violating their copyright (with muds), but have taken plenty of legal action (against others). The Diku team have made their wishes clear, but cannot enforce them - thus myself and others do our best to protect their interests. The Tolkien people have not revealed their wishes to anyone, but are perfectly capable of enforcing those wishes - thus I believe that it is best to leave it to them to deal with.

[Stilton]

KaVir:
I already gave this as a specific example of where I thought an implied license was justified.

When posting to a discussion board, one would expect that participants would be aware that people might, well, DISCUSS? Including quoting, downloading what the other parties are saying, etc.? We're obviously supposed to read and discuss.

This also indicates a fundamental misunderstanding of how the web works: My client requests a document. The server gets to decide whether I should have it based on the policies of the person who puts material on it (or lets others, like we posters, submit our own material). The fact that the server let me have it is a clear statement of intent by the person who put it there*. If you don't agree with who the server gives copies to, either talk to Synozeer and tell him to fix the bug or stop posting.

And yes, if the login page had a notice saying that you had to ask for permission to download further material from the server, I would.

No. A violates B's IP. If B finds out, he either objects or he doesn't. Medievia is in the second part of that. SoI is still at the first part. One state is a possible evolution of the other.

The fact that SoI hasn't gotten nasty letters yet doesn't mean that the conduct is a legal use of the IP.

Stilton


*Yes, people make mistakes and sometimes put the wrong permissions on stuff. That's a side issue, just like getting a fax, email, or letter not meant for you.

[Aeolus]

I hate to be the one to break this to you, but you might want to .

It's a cryin' shame, I tell ya.

-Aeolus

[KaVir]

Apparently I missed it the first time, but I've been back through your posts - are you referring to the post where you said "To answer the point about the message boards, a poster (who holds copyright on his message) REQUESTS (a positive action) that their post be distributed by posting it in a public place. So far as I know, Tolkien never posted the text of LOTR or other works to USENET"?

Publishing your book is pretty "public" as well. Posting something to usenet doesn't mean you give up any rights to it - just that it is implied your post can be copied in the way one might expect within usenet. That seems to go against your earlier statement of "I have been defending the proposition that you shouldn't assume consent from an IP holder until you actually see it".

You also haven't answered the question about stock areas.

Right - but obviously that involves "assum[ing] consent from an IP holder".

In the eyes of the law, it is you - not your client - that requests the document. Only humans can make copies, as far as the law is concerned. Furthermore, it is incorrect to say that just because you can download it, you are permitted to do so. Is it reasonable to assume that? In my opinion, yes - but once again that goes against your original statement that "...you shouldn't assume consent from an IP holder until you actually see it".

No, not necessarily. It might have been uploaded by accident. It might have supposed to have been password protected. It might even have been placed there against the wishes/knowledge of the copyright holder. Once again you are assuming consent.

Oh, I do agree - as I've said before. It's you who said that people "...shouldn't assume consent from an IP holder...", not me.

They are both at the "second part", unless you are calling both Traithe and The_logos liars.

[Stilton]

Kavir posts a whole lot of:
Yes, ok, but I think it's quite clear that you're being deliberately difficult at this point.

My inferences have been derived from the POSITIVE ACTIONS of others, yourself included (for example, your repeatedly hitting that post button makes me think that you intend me to see the results)

This is considerably different from the actual topic of discussion, which is attempting to draw inferences from INACTION.

Yes, ok, you're right, but it's a quibble/flame, not a relevant point. _I_ cause my browser to request a document, and the owner of the server has set up a policy on whether or not I get it.

I'm not calling anyone a liar. It's quite reasonable that the controller of the relevant IP has never even heard of this yet.

Two people sending an email is not proof that anyone, much less the holder of the rights to Tolkien material in video games, saw it. The guy might be on vacation, or might have an email problem. Or maybe he did reply and it's actually the reply that got eaten or bounced. email+1 week wait does not mean much when your request was about a matter they might well have to refer to the guy over in the legal department.

Whether he's heard of it or not, no permission has been granted as far as we know. Therefore, permission does not exist (yet).

Stilton

[Burr]

Actually, quoting reasonable amounts of a person's work for the purpose of critique - as well as education, and other, less relevant things - would fall under the Fair Use (so long as credit is explicitely given or reasonably implied, I believe).  

We are obviously critiquing each others' opinions and/or informing each other of our and others' opinions.  That is why it is okay to quote each other.

The existing themed muds, on the other hand, are obviously not for education or critique.  They are for entertainment.  And even if someone did publish a themed mud for the intended purpose of education or critique, they would likely fail by way of quoting more than would be considered a reasonable amount in the eyes of the law.

Lest someone point out the vast grey area that the Fair Use clause creates, it is important to note that there is plenty of or court precendent showing generally what types of things will count as Fair Use and what won't. Quoting people in discussions as we have been counts as Fair Use, plain and simple. Themed muds as the type we are discussing do not, and probably themed muds intentionally trying to comply with Fair Use will fail.

[the_logos]

[the_logos]

Brody wrote:
Well, since the law says that stealing IP worth more than $2500 (I think that's the rule) is, in fact, a criminal act, it does make him a criminal. Possibly I'm wrong about the law but that's what the FBI told me (even though they won't bother with cases under about $50,000 value).

And the courts have already ruled. That's why Traithe himself admitted what he's doing is illegal. There's nothing special or different about muds that would require case law any different from every other type of game out there.
--matt

[the_logos]

You are incorrect in some details. A criminal act occurs when you steal IP worth more than X amount or more than X copies of something. (I'm unsure on the exact numbers). Tolkien's IP goes WAY over those boundaries. For instance, were you to steal 10 chapters from Lord of the Rings, printed it up and started giving it away on street corners, you could be prosecuted under criminal law.

Furthermore, and I willingly admit I can't quote you a court case on this, I'm nearly certain that inactivity can no longer cause a copyright holder to lose the copyright. You're quoting an outdated case, even though it's from 1989. And further, the core of New Era vs. Henry Holt case you quote (and, in fact, the core defence) was that the defendant was publishing a 'scholarly' biography of L. Ron Hubbard, and most legitimate academic use falls under fair use.

--matt

Whoa.. that's not what I'm "assuming".  I'm not assuming precedent.  I'm "assuming" the the builders granted permission under the Diku license, not that there is an implied license to areas.  There's a difference.  Nor is it an assumed or traditional mud community practice that content shipped with a codebase comes under the same license.  It happens to occur in only one branch of the mud tree.  You realise that LP mudlibs, MOO cores and Mush libs more often than not fall under different licenses.  Sometimes they are distributed separately but sometimes together under one or more licenses.  Then we have the Aber zone wars of old, some recent.

I agree with the argument with usenet posts and email, because quoting is reasonable, expected use. and common practice.   When author's publish a novel they expect review, comment and criticism, that is "fair use" that has been codified into law.   The email and usenet assumptions of "fair use" haven't been codified into law yet, however they probably will be at some time or be ipso facto supported via legal precedent anyway.

No I disagree, and I think Matt made a good point in a prior post where he stated you take community practices much further.  One can infer those practices from how literary works are treated across other media.  There is no assumption by movie makers they can use a an authors work in a movie, the assumption isn't made by cartoon makers, nor by television and radio producers.   If community practices are the guide, the SOURCE of the material is usually the guideline for practices.

[KaVir]

The minute Tolkein up and died and his son aquired the rights they became his rights.  It's the copyright holder's intentions that are at issue, both ethically and legally.  The rest is a complete and total emotional argument based on painting his son as a real bad guy.  It's also about guessing the authors possible state  of mind and what Tolkein may or may not have decided if he were alive.  Not that I'm unsympathetic. I am a big fan too.  

Neither the Moria area nor Smaug would be copyright violations.  Why would you think they would be?

Understand that you are, with the above, in fact making the case for blatant copyright infringement.

It is because the Moria area (the Shire area too BTW) and Smaug make so little and trivial use or reference to Tolkein that they more than likely DONT infringe on Tolkein's copyright.

What does profit ... excuse me... legitimate exploitation of ones OWN IP like Achaea, TEC, Gemstone, MUD, MUD-II, Valhalla, DAOC, Ultima Online and the hundreds of other LEGIMIMATE businesses do have anything at all to do with IP theft!?!?!  

BTW, How much are they charging for a Diku-II license these days?

The moral equivocation of minor annoying issues and IP theft lessens the respect for IP.  IMO.

[Fharron]

The thrust of my post was not directed at the misappropriation of IP per se but how it relates to the artistic rights of an author. Indeed copyrights relating to literature tend to have a dual purpose, to protect the integrity the author’s creative vision and to safeguard its commercial stock. I simply pointed out that the current owners of the LOR IP obviously have little regards for the literary integrity Tolkein’s works, but overwhelming regard for its commercial opportunities. Jokingly I referred to a hypothetical musical, and alas I seem to have been factually correct.

Tra-la-la

Oh where is Gandalf, where can he be?
Over the mountains and over the sea

Come see the hobbits dance and sing
Watch out its Bilbo, and he has a ring!

Enter river-dancing hobbits, stage left.
   
The point I was making was that I would not feel ethically indebted to the current IP owners in respect to artistic license. Indeed, It might be the case that a respectful interpretation of Tolkeins works might give the soul of the man a little glimmer of happiness, in contrast to the disreputable utilisation of his works as sanctioned by the current IP owners. And no I’m not a big fan of his works, as a piece of popular fiction it has a certain degree of merit, however, as a work of literature it is fairly ho hum and uninspiring. I am also aware that his works have themselves been charged with being derivatives of Wagners Ring Cycle.

Examples of Similarity

Hobbit,LOR then beneath it Wagners Ring Cycle

Alberich forges a Ring of Power
Sauron forges a Ring of Power

The Ring gives the bearer world domination
The Ring gives the bearer world domination

The Ring is cursed and betrays its bearer
The Ring is evil and betrays its bearer

Fafner kills brother Fasolt to get the Ring
Smeagol kills friend Deagol for the Ring

Fafner hides in a cave for centuries
Smeagol-Gollum hides in a cave for centuries

Siegfried inherits the shards of his father’s sword
Aragorn inherits the shards his fathers' sword

Brunnhilde gives up immortality for Siegfried
Arwen gives up immortality for Aragorn

Wotan plays "riddles" for the life of Mime
Gollum plays "riddles" for the life of Bilbo

.... and many more

I can’t find any ethical argument against employing his work in a manner in keeping with the developed of a textual world. Especially when those who should be better placed to make such an argument, having blatantly disregarded his wishes, have paved the way for claims of hypocrisy, should they attempt to do so. If someone wishes to take it upon themselves to create a MUD with a Tolkein theme then in my own personal opinion that’s all well and good. If someone wishes to laboriously create a game while constantly being aware that the plug could be pulled at any time then that doesn’t give me cause for concern, providing the work sympathises with Tolkeins books and is respectful towards them and their content.  In this respect I can’t find fault with SOI, they seem to be respecting Tolkeins creative vision in a manner that the man would be proud of.

This is not to say that using the works is permitted. I made a point of not referring to the legal rights of the owners. It goes without saying that possession is nine tenths of the law, and in the world of today whatever Tolkein wished for his works has long since been usurped beneath a tide of legal indemnity and commercial opportunism. Regardless of the authors intentions the law is still the law.
 
Should such MUDS be prohibited from advertising, where would such a move take the site? When all the games backed by fictional output have been removed, star wars, wheel of time, forgotten realms et al, I suspect their wont be a lot left. Except a few claiming to be original in theme while using racial elements like orcs and dwarves that are obviously derived from other sources, such as RP games, literature, or mythological accounts. At the end of the day it all boils down to the use of a few names that link the MUD with a popular text, and thereby an underlying association with a text that currently has main stream visibility.

Is this is crime worthy of a witch hunt, one worthy of directing input and effort away from other acts of nefarious conduct, acts that are more directly linked to the community, in respect to code theft for example. Shouldn’t this all be left to the individual authors and copyright owners? Don’t they have the means, time and finances to fight their own battles without the community having to tear itself apart over something that isn’t a major concern, well not to me at any rate.  As an outlet for an ethical crusade I personally couldn’t give a long-bottom-leaf smoke ring about it. The only final outcome that I can see is the enforced removal of many games from the lists and advertising banners, focussing attention on the few that remain, which would result in a net gain and advantage to original MUDS wishing to increase their player bases.

The bit about P2P list members being economical regarding the P2P element of their games was included because it crops up frequently from time to time and no one ever does anything about it. It was applicable to the thread, not because it deals with IP, but because the heading of the thread also alluded to having a just cause for the banning of MUDS. A tenuous link I will admit, but I had my spade and felt like having a dig.

[Hephos]

Umm as a side note, as i noticed valhalla and diku2 in some posts.

I had the impression DIKUmud had their licence because the university FORCED them to have a non-commercial clause in it (being some kind of student project). Well if so, how come there's a commercial diku engine out there there for sale?

Did i misunderstand the reason for there non-commercial clause in the license?