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Old 10-12-2003, 05:40 PM   #1
the_logos
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Despite the fact that I tried to organize a lawsuit against Medievia on behalf of the DIKU license holders I had, foolishly, never actually read the license, instead relying on the interpretations of the license bandied about by Kavir and others with an interest in this area.

I've got a fair bit of experience with licensing, both in terms of being the licensee (technology, the rights to Feist's work) and in terms of being the licensor (Rapture, Achaea codebase, our java client) and have spent countless hours pouring over the contracts for those various licenses and dealing with the lawyers on both sides. I'm not a lawyer and I'm especially not a lawyer who specializes in IP work but I have enough practical experience to have a couple comments:

1. Whoever wrote this license had no business writing licenses. Total amateur hour.

2. The relevant bit of the license reads as follows:
"You may under no circumstances make profit on *ANY* part of DikuMud in any possible way. You may under no circumstances charge money for distributing any part of dikumud - this includes the usual $5 charge for 'sending the disk' or 'just for the disk' etc."

We can ignore the distribution clause as selling people things in-game, or charging subscriptions for access has nothing to do with distribution of the DIKU code. So, we're left with the prohibition against profit. However, the license completely fails to define its terms and that clause, at least, has no inherent meaning. Everything I write below is applicable in the US and isn't intended for application in other countries as I'm not familiar with the legal codes of other countries or the tax implications of actions in other countries.

If you're an individual and you're running a mud that takes money for any reason, you may be violating the license. I say may be because that entire clause would likely just be thrown out by a court since it's impossibly vague. The law does not recognize the concept of a virtual business (ie where cost can offset revenue in order to turn all or a portion of that revenue) except where there is a stated intention to one day generate a profit.

For example, without incorporating as a company or declaring a sole proprietorship, you could decide that you are going to become a video game consultant. In that case, you could likely get away with deducting the cost of video games purchased (research) but only for a limited time. If you show no genuine effort at trying to become profitable, the IRS will quickly disallow those deductions.

Since hobbyist muds are, by definition, not trying to make a profit, the IRS would not recognize revenue coming in from players of the mud as being offset in any way by costs for running the mud. The mud isn't a business and thus expenses to support it do not offset revenue gained from it. In other words, you are actually legally obligated to report any money you get from your playerbase (in the case of a hobbyist mud taking money to pay for upkeep costs) as income because it IS profit/income.

On the other hand, since profit is so ill-defined it is easy to simply not make a profit if you treat your mud as a genuine commercial enterprise. Form a company, partnership, or LLC, and then just pay yourself a salary high enough that there's never a dime in profit. Or, form a hosting company whose sole job it is to host the DIKU being run by your other company, and make sure you charge the DIKU-running company an amount that ensures there is no profit to the DIKU-running company. There are a thousand ways to not show a profit for the enterprise while ensuring the individuals who work for the enterprise get money.

These are easy, essentially rock-solid ways to avoid violating the license. There's very little room to quibble here too since wiping out profit in this manner is both completely legal and quite common. The movie industry does it all the time, for instance. (Which is a good reason why one should never accept a percent of the front end. Always insist on the back end as it's MUCH MUCH harder to manipulate the back end figures.)

Anyway, the fact is, the DIKU license doesn't prevent people making money from DIKU. Ironically, it just prevents hobbyists from taking money from the playerbase to support the mud (as, again, that money is all profit regardless of whether you use it to support the mud or not).

I'm sure the inevitable argument is going to be that my solutions violate the spirit of the license and in fact that's probably true, though that's purely speculation on my part. I'm not a mindreader. Either way though, it's irrelevant. Contracts stand on their own and have to say -everything- because anything they don't say isn't relevant or applicable. It is, in fact, unfair to a licensee to assume that the intentions of the licensor matter. A licensee only gets the contract and cannot be expected to do anything but follow the letter of the contract. If the licensor doesn't consider it worthwhile to write a decent contract, that's the licensor's problem. It's why lawyers get paid so much and use legalese: Detail and un-ambiguity are expensive.

--matt
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Old 10-12-2003, 06:13 PM   #2
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Firstly, yes, the Diku license is poorly written. It was, after all, written by a group of computing students who weren't even native English speakers - all they wanted to do was share their work while keeping it free for the players.

And as to whether it would stand up in court - that is debatable for all licenses, and could be argued either way with the Diku license. Until such time as it is, however, I think it is reasonable enough to accept the authors definition and honour their intentions.
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Old 10-12-2003, 06:21 PM   #3
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Quote:
Originally Posted by (KaVir @ Oct. 12 2003,17:13)
Firstly, yes, the Diku license is poorly written.  It was, after all, written by a group of computing students who weren't even native English speakers - all they wanted to do was share their work while keeping it free for the players.

And as to whether it would stand up in court - that is debatable for all licenses, and could be argued either way with the Diku license.  Until such time as it is, however, I think it is reasonable enough to accept the authors definition and honour their intentions.
No, it's not reasonable at all actually. People start projects based on the license, not on the mindreading what a group of different individuals thought 12 years ago. It's completely unreasonable to tell those people that they should have to figure out what the licensors meant rather than what the license everyone is so hot and heavy over -actually- says. Further, what the licensors think can and probably does change over time (which is also irrelevant). Licenses are not living documents. They're set in stone.

--matt
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Old 10-12-2003, 06:24 PM   #4
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I don't think it's reasonable at all actually. People start projects based on the license, not on mindreading what a group of different individuals thought 12 years ago. It's completely unreasonable to tell those people that they should have to figure out what the licensors meant rather than what the license everyone is so hot and heavy over -actually- says. Further, what the licensors think can and probably does change over time (which is also irrelevant). Licenses are not living documents. They're set in stone.

Licenses are legal documents and only have meaning under the law. You're trying to slap extra clauses and definitions in this license when there are none.
--matt
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Old 10-12-2003, 06:25 PM   #5
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The intentions of the license are relatively clear to anyone with a basic amount of common sense. The legalities of those intentions have been debated repeatedly over the years, by people far more qualified than you, and will most likely remain so until such time as they are tested in court.
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Old 10-12-2003, 08:37 PM   #6
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Quote:
Originally Posted by (KaVir @ Oct. 12 2003,17:25)
The intentions of the license are relatively clear to anyone with a basic amount of common sense.  The legalities of those intentions have been debated repeatedly over the years, by people far more qualified than you, and will most likely remain so until such time as they are tested in court.
I have no doubt they've been debated quite a bit but I have yet to see an expert weigh in either here or on TMC. I do know, however, that intentions simply don't really matter in a licensing agreement so I'm not sure why you keep bringing them up. Contracts stand on their own and this one does not prohibit commercial activity, only profit.

Instead of this endless arguing between people like you and I who are not experts, why don't we get an expert opinion? Let's split the cost of a lawyer that specializes in IP and licensing and see what he or she thinks. It's such a simple, broken license that it won't cost more than $1000 or so to get an -actual- expert opinion.

Here's a good firm I've worked with before: http://www.dsglaw.com/meet_firm.html
I suggest either Stanley Doty or Rodney Gilmore. They're both excellent. Mr. Doty in particular spends a large portion of his time dealing with technology and IP licenses and I'm meeting with him tomorrow about a technology license, as it so happens. I could happily bring this matter up with him then too if you're willing.

So, how about it? You seem pretty passionate about this issue (even going so far as to host a web page about it and offering to donate to my ill-fated attempt to help the DIKU authors sue Medievia) so I'm assuming you'd welcome an unbiased, expert opinion on the matter. (read: someone who has no interest in whether people use DIKU commercially or not and is a partner-level lawyer with a specialty in licensing.)

Interested in walking the walk or would you rather not have your illusions shattered?
--matt
P.S. Don't take this post insultingly. I was just shocked to read the DIKU license and discover that there is essentially no legal basis for a lot of the statements about what the DIKU license prohibits. There seems to be a sort of mythology that's grown up around the license, very little of which has a basis in IP and business law, at least as I'm familiar with it.
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Old 10-13-2003, 02:55 AM   #7
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That would be very interesting to read about matt, unfortunately I'm to broke to contribute.
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Old 10-13-2003, 03:00 AM   #8
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Quote:
Originally Posted by (Hephos @ Oct. 13 2003,01:55)
That would be very interesting to read about matt, unfortunately I'm to broke to contribute.
Oh, no problem. No need to apologize for that!

--matt
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Old 10-13-2003, 05:58 AM   #9
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As I have repeatedly explained in the past (remember the Tolkien situation? Or the IMC license?) my primary goal has always been to help protect the interests of the creators, according to both the wording and the intent of the license. I have heard the views of lawyers (and people who have claimed to have spoken to lawyers) regarding the Diku license. I have seen your points argued many times over the years, and have studied many other licenses as well as drafting my own.

You agree that hobby muds are violating the license by accepting money, which only leaves us disputing those which are run as companies - and the only one of those that I am aware of is Medievia, which also violates the other parts of the license (such as the credits). So in short, no, I have no interest in giving you several hundred dollars to get an outside opinion on a hypothetical situation, particularly not at this time in my life.
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Old 10-13-2003, 02:54 PM   #10
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Quote:
Originally Posted by (KaVir @ Oct. 13 2003,04:58)
As I have repeatedly explained in the past (remember the Tolkien situation?  Or the IMC license?) my primary goal has always been to help protect the interests of the creators, according to both the wording and the intent of the license.  I have heard the views of lawyers (and people who have claimed to have spoken to lawyers) regarding the Diku license.  I have seen your points argued many times over the years, and have studied many other licenses as well as drafting my own.

You agree that hobby muds are violating the license by accepting money, which only leaves us disputing those which are run as companies - and the only one of those that I am aware of is Medievia, which also violates the other parts of the license (such as the credits).  So in short, no, I have no interest in giving you several hundred dollars to get an outside opinion on a hypothetical situation, particularly not at this time in my life.
Fair enough. I think I might pay to get an expert opinion anyway, which I'll happily post here and on TMC. If anyone else is interested enough to want to contribute, please let me know in the next week or so.

Incidentally though, hobbyist muds don't have to be violating the license. The solution is very simple and no different from a commercially-oriented solution: Form an LLC or a corporation and just never make a profit. It only costs about $250 to form an LLC somewhere like http://www.incorporate.com.

I'll be happy to help any mud that wants it do this (not that there's much to help with. It's easy, albeit possibly intimidating for a first-timer). Letting muds accept money = better quality, more stable muds and that's good for all of us.

--matt
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Old 10-13-2003, 08:09 PM   #11
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lgoos:
Quote:
Originally Posted by
Incidentally though, hobbyist muds don't have to be violating the license.
Until there's an actual legal opinion presented, I disagree with logos' assertion that a hobbyist mud which has ANY revenue (with no incorporation, LLC, etc.) is necessarily violating the license.

In the US, the IRS is a de facto legal yardstick for profit.

For IRS purposes, an individual can deduct hobbyist expenses from hobby income (but deducted expenses can't be greater than  hobby income).  The distinction between that and a business is that a hobby isn't intended to generate a profit. ($500 in server expenses/bandwidth and $500 in donations = no profit, so no income tax)

page 203, IRS publication 17

Just like a business, you're allowed to put a hobby "off to the side" from your other personal financial activity and compute whether or not you made a profit on it.

not a lawyer, and even if I were I wouldn't be YOUR lawyer, so here's hoping for Matt's inquiry :)

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Old 10-13-2003, 08:51 PM   #12
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Quote:
Originally Posted by (Stilton @ Oct. 13 2003,19:09)
lgoos:
Quote:
Originally Posted by
Incidentally though, hobbyist muds don't have to be violating the license.
Until there's an actual legal opinion presented, I disagree with logos' assertion that a hobbyist mud which has ANY revenue (with no incorporation, LLC, etc.) is necessarily violating the license.

In the US, the IRS is a de facto legal yardstick for profit.

For IRS purposes, an individual can deduct hobbyist expenses from hobby income (but deducted expenses can't be greater than  hobby income).  The distinction between that and a business is that a hobby isn't intended to generate a profit.  ($500 in server expenses/bandwidth and $500 in donations = no profit, so no income tax)

page 203, IRS publication 17

Just like a business, you're allowed to put a hobby "off to the side" from your other personal financial activity and compute whether or not you made a profit on it.

not a lawyer, and even if I were I wouldn't be YOUR lawyer, so here's hoping for Matt's inquiry

Stilton
Yeah, actually, you're right. I don't know what I was thinking. I've used that provision before years ago when I was starting a movie review website as a hobby.

Thanks!

--matt
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Old 10-13-2003, 10:46 PM   #13
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Quote:
Originally Posted by
Fair enough. I think I might pay to get an expert opinion anyway, which I'll happily post here and on TMC. If anyone else is interested enough to want to contribute, please let me know in the next week or so.
Hmm, IIRC there was a copyright lawyer at one of the Meet & Greet's of Ntanel's... if anyone has a log of that maybe his email addy was in it, or maybe someone (KaVir?) has kept it around, maybe he could review this little debate for free.

Just an idea.
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Old 10-14-2003, 05:39 AM   #14
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His name is Matthew Becker, a Copyright/License Law Attorney, and he gave his email address as "matt@beckerlawfirm.com":

http://artofbuilding.net/docs/legal.txt

He has given me free legal advice on a different Diku issue in the past - but also stated that it was for personal use only.
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Old 10-14-2003, 10:11 PM   #15
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Since DIKU was written in Denmark, does that mean US licence law doesn't affect it? I'm not a lawyer, and have no idea what danish licence law is like.

But since it was written in Denmark, wouldn't a US lawyer's opinion not legal? Of course, I have no idea how to contact danish licence lawyers, so this is moot.
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Old 10-15-2003, 01:18 AM   #16
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Quote:
Originally Posted by (Azhon @ Oct. 14 2003,21:11)
But since it was written in Denmark, wouldn't a US lawyer's opinion not legal?
There are U.S. lawyers that specialize in international copyright law. It's my understanding that most countries respect each other's copyrights (member countries are in something called the Berne Convention and the Universal Copyright Convention, both of which protect copyrights internationally). I'm sure Denmark is a member of both conventions.

Of course, that's not to say that all countries are members. Read an interesting little article about Saddam Hussein and the great fantasy artist Jonathon Earl Bowser:
Zabibah and the King
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Old 10-15-2003, 02:08 AM   #17
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Quote:
Originally Posted by (Estarra @ Oct. 15 2003,00:18)
Of course, that's not to say that all countries are members. Read an interesting little article about Saddam Hussein and the great fantasy artist Jonathon Earl Bowser:
Zabibah and the King
Surely, good sir, you do not suggest that the honourable Mr. Hussein would STEAL something! *horrified gasp* He has his critics, of course, but all they can do is point to little affairs like gassing the Kurds and invading Kuwait. While these lapses in judgement were clearly inappropriate, I think any man who sports such a fetching mustache must be given the benefit of the doubt.

--matt
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Old 10-15-2003, 02:34 AM   #18
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Quote:
Originally Posted by (the_logos @ Oct. 15 2003,01:08)
I think any man who sports such a fetching mustache must be given the benefit of the doubt.
I heard he stole that mustache from that wiley Marxist, Joseph Stalin? (Or was it the wiley Marxist, Groucho?)
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Old 10-15-2003, 05:21 AM   #19
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The Diku team are indeed based in Denmark (despite registering their work with the US Copyright Office), and the specifics of copyright law do vary from country to country (as well as from case to case, and - within the US - depending on the laws in the federal circuit). Furthermore, until such time as a license is tested in court, there is no way to know for sure if it will hold up. The best way I can think of is probably to examine other similar cases and see what the outcome was.

However I believe the_logos is more interested in getting a professional outside opinion on how the license is most likely to be interpretted in a court of law. Hopefully he will provide a list of the exact questions asked, so that we can see the context in which they are answered. Unfortunately I still don't believe it will prove a great deal either way - the only way to really know how legally binding the license is is to test it in a court of law.
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Old 10-15-2003, 05:40 AM   #20
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Quote:
Originally Posted by (KaVir @ Oct. 15 2003,04:21)
Unfortunately I still don't believe it will prove a great deal either way - the only way to really know how legally binding the license is is to test it in a court of law.
While that's true in a sense that's like saying "If I murder someone, I won't know if it's illegal under it's tried in a court of law." You don't, but if I walk up to someone on the street and shoot 'em I can be pretty sure it's illegal. Certain, no, as certainty is rarely theoretically possible but I can be darn close to certain. I'm not suggesting this license case is QUITE that clear-cut, but it's close.

The contract is pretty clear. It explicitly prohibits profit and says nothing about commercial activity. I understand that you're trying to protect what you believe were the intentions of the licensors at the time but while those may be relevant in certain forums they're not relevant in a legal forum provided the signing parties were in their right minds, not being deceived, not signing away inalienable rights, etc etc. I also have to say that given that you just said you don't think the issue is settled you're pretty strident that commercial activity in a DIKU is illegal.

And beyond all that, it's never going to get to court as the license holders suffer no damage from third parties generating revenue from DIKU. I mean, the DIKU guys clearly had no expectation of value from DIKU. As you say, they intended it to be used for free, etc etc.

--matt
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