That's correct. The world is too complicated a place and our information is way too incomplete (nearly completely incomplete *g*) to make an informed judgement on the value an action or series of actions has on the overall value of a particular IP.

---matt

This is a deviation of topic, but the_logos seems to have contradicted himself. He claimed he wouldn't associate with IP thieves, yet here he is on a public fora doing exactly that, with someone he claims is an IP thief, and his site is still listed here.

If he were sticking to his previous statement, I believe he would already have pulled his site, and would not resubmit it until after he'd accomplished his objective.

So, for those who are indeed wondering if he'd pull his site from here, I believe based on the evidence at hand that answer would be no.

Edit:
Cleaned up a bit, as it could have come off insulting and that isn't what I intended.

oh! methinks i hit a nerve.

then again, it is not unexpected - considering other examples of points discarded not by facing them but by declaration.

here, however, it is very revelant. because there is a touch of hypocrisy when one holds such a draconian position and yet has a suspect moniker themselves. one might begin to think it's only important when it has to do with somebody else.

Pendantic arguments don't deserve a decent response. Do you seriously think I meant I wouldn't stand in a crowd or live in a city or be in a community with IP thieves?

--matt

I was going to post quite a sarcastic reply to you but then it occured to me that you may legitimately not know what you're talking about or may legitimately be confused about IP law.

The word 'Logos' is a noun stemming from neo-Platonic and classical Greek philosophy meaning the cosmic reason giving order, purpose, and intelligibility to the world. The reason I use it here, incidentally, is because in Achaea my character's name is Sarapis, usually suffixed and used as: Sarapis, the Logos.

This word is now a common noun in the English language. It is not a word like Expedia, which is made up and thus trademarked. You cannot copyright a word, or even two words. You can, however, trademark that word or two words providing you made it up or providing you're trademarking it in relation to a particular type of product. For instance, Oracle owns the word Oracle as applied to software. However, a car parts chain could also name itself Oracle. The test of trademark violation is, if I recall, generally abbreviated as whether the existing trademark holder's property would be confused with the newer one's. So, if I started a company called Oracle that made operating systems instead of database and enterprise software and called it Oracle, I'd be in trouble, since a customer is clearly going to be confused about which is the 'real' Oracle.

In a forum such as this, -any- common word can be used without either copyright infringement (since a word cannot be copyrighted to my knowledge, unless perhaps it's a made-up word) or trademark infringement, because these forums and any company named The Logos or Logos is not involved in the "market" of these forums no reasonable person is going to be confused by my using those words here.

If I wanted to call myself Expedia here, I could probably be stopped legally (though I can't imagine Microsoft would care unless I was representing myself as a Microsoft employee or spokesperson). If I wanted to call myself Apple, there's nothing Apple Computer could do about it.

Is that clear?

--matt

I'm not really getting involved in this thread, but seriously, take a philosophy course or something.

There is quite a difference between 'being around' and 'associating with.' To be around means to be in the vicinity of. To associate with means to willingly socialize with or participate in.

You said you wouldn't associate with 'IP thieves,' as you view it. You are indeed doing exactly that by listing your site here. You have made an effort to put your site here, you are continuing to make an effort by sending people here to vote for your site.

That leads me to believe that your statement was a way to demonstrate your perceived moral superiority over the rest of us poor schmoes. Your lack of follow-through, adds to this assumption. Now, in my opinion, you need to either follow through with your previous statement or admit that it was just a statement made with no real point.

Re: Orion's recent post:

the_logos is acting in accordance with what he posted. He does not wish to be associated with someone he considers an IP thief, and is lobbying to have the alleged IP thieves removed from this site.

He believes that he is in the right, and why should he suffer (in terms of publicity for his MUD) because of the actions of someone else who he believes to be breaking the law?

Simply put? He has made a public statement of distaste for the actions of someone else. He has made no effort, or at least no mention of it, of going to to Synozeer about this. Since he has mentioned the other things he was planning to do, I can only assume that this was indeed an attempt at touting his perceived moral superiority.

The first post in this thread was directed at a specific MUD, in a public forum, about legalities. The subject makes it clear his focus. He claims it's IP theft, however the entire focus of his argument has been the Shadows of Isildur. He implies that he wants them removed from this site, but the subject makes no effort to draw Synozeer in.

I find it likely that if someone here told Synozeer, he would not know of this threads existence. Though, I could be wrong.

So, why should he suffer because he's doing what's right, as far as he is concerned? Simple. If he REALLY believes in what he's spouting, he should be willing to go the distance. That includes removing his site from TMS, and the link to TMS from his page.

Also, since someone mentioned the whole Christian thing, from 1 Peter 2:18-20, NIV:

My original intent wasn't to suggest that Traithe had an implied license, but rather to dispute your claim that it is illegal to use copyrighted work without express permission.

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:

1) There are dozens of Tolkien muds, some of which are over a decade old (not to mention other Tolkien-based computer games - such as Mines of Moria, which actually predates the first MUD.  In fact, it predates me...)

2) The Tolkien copyright holders have never taken any legal action against any muds based upon their work, nor even complained about them.

3) The copyright holders HAVE taken legal action against many other people who have infringed on their rights.

You are using an "implied license" to read the TMS forums (as your browser needs to download the posts).  This is considered acceptable, as you are following the custom and practice of the community in doing so.  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.

It's also worth noting that:

1) The Tolkien copyright holders request that permission be asked before using their work, and:

2) Traithe has contacted the copyright holders, ergo:

3) The copyright holders are aware that Traithe is using their work.

Now were they to contact Traithe and tell him to shut his mud down, that would be a different matter.  Were there any precedent for them shutting down other muds, that would be a different matter.  Were the copyright holders were to say they didn't people running muds based on their work, I could see your point.  But they haven't done any of that.

Whenever I see people suggesting turning their Diku-derived muds into "custom" muds, I inform them of the situation - that they will always be a Diku derivative unless they start over from scratch.  Whenever I see people suggesting basing their work on Feist (or any other author who has made it clear they don't want people using their work), I inform them of the situation - that the authors will shut them down.

But I do not make assumptions.  If I see someone using a snippet or codebase that I am not familiar with, I do not simply call them a "thief" - I try find out the wishes of the copyright holder, and then act accordingly, and if I can't find the copyright holder or any statements by them, I do not say anything.

Equally, if I see someone basing their mud on an existing set of novels, I would respond in the same way (although in that case I would contact the authors privately rather than post on mud forums, because as I've said before, it is not a mud issue).

I would suggest you do the same.  Your original post on TMC attacked WoT muds, until it was pointed out to you that they had an express license from Robert Jordan.  You've now moved on to Tolkien muds, but once again you do not know the wishes of the copyright holder - you are making assumptions based on pure speculation, and damaging the reputation of a number of muds in the process.  As this is the legal forum, I think I should also point out that such statements, when untrue, are referred to as "libel", and could open you up to legal action yourself.

And in reference to the Medievia section on my website, that was put together purely because by 2000 I was sick and tired of having to repeat the same massive flamewar every six months, and so I collected together all the evidence I could find and stuck it onto my site.  It worked - there have been no real flamewars since, just the occasional spark, since the only real excuse the pro-Medievia people are able to use any more is "who cares?".

Tolkien drew inspiration from various sources, including the work of Lord Dunsany, who's best-known novel was "The King of Elfland's Daughter" (first published 1924).

I don't post here often because of usability.   That offtopicness aside, I could hardly avoid the spirited discussion without a few comments.

Matt, err the_logos is dead on correct on this issue, both in a general legal sense and moreso IN PRINCIPLE.  

1) There is no difference in principle between charging money for unauthorized use IP and not charging money for unauthorized use of IP.  Unauthorized use of IP is the principle here.  There are really few differences legally either.  

2) There is nothing in the law nor is there any ethical basis in going ahead and using IP because the author failed to respond to a request.  In this particular case there is an explicit license at the beginning of every Tolkein book prohibiting such use.  It's not even required because that IS the implicit license according to copyright law.

Finally... while I don't agree with Matt's charge of hypocrisy, that being it makes one a hypocrite if one fails to accuse.  Rather I think it hypocrisy is a much stronger accusation to make against someone who accuses while violating IP themselves.  A suttle but important difference.  Not complaining or caring is something else.  However I do find that defending it or excusing it rather than silence or ignorance to be particularly disturbing, perilously close to hypocrisy.  

Muds are made up of both literary works and source code.  I don't think anyone would deny that a muds value is not solely predicated upon either but they are more or less equally important.  Both are afforded the same protections under the law, although literary works enjoy some stronger protections in regard to character and setting use.  

I believe the IP rights of builders deserve the same attention in the mud community that the IP rights of programmers.  And there is and has been some selective attention spans in this area.  Coopting Tolkien's IP for unauthorized use is no less offensive than coopting areas from C.A.W. for unauthorized use.   Coopting Diku IP for unauthorized use is no less offensive than coopting GTK or Apache IP for unauthorized use.

Bottom line is I think the mud community (crap I swore I'd never use that phrase seriously) DOES undercut the general principles or ethics involved with ostracising offenders like Mikey Krause, by excusing other violations.  The defense is an US versus THEM mentality.  It is saying in essence...

It is OK to steal from those not involved in the mud community, but not OK to steal from those involved in the mud community.

That's all,

J. Lambert

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'.

And so do I. But tell me - as someone who has (I believe) worked with Diku muds in the past - before you opened your first Diku derived mud did you:

1) Immediately delete all of the stock areas which came with the distribution,

2) Track down the author of each and every stock area and ask express permission to use their work, or:

3) Simply assume that you were permitted to use the areas which came with the distribution, unless you heard differently.

In all fairness I brought it up here.  It was used over on the TMC forums.

Your use is far more offensive however.  At least to me. :-P It's in the sense that jaywalkers shouldn't comment about murder.   Achaea does not violate IP, therefore the_logos is just as qualified or credible to speak on this topic as I am or KaVir.  Vryce would be a hypocrite to be defending the sanctity of authors IP rights.   That's the gist of my definition.  No reason to expand on what amounts to be a gnit I picked with the_logos[/quote]

The first mud I publicly opened was a ROM in '95 (EaMud) and yes I did, but not at all for that reason.  The server was an extension of an ongoing RPG campaign, not a mud game, so it made no sense.

I've worked on several Diku based games since then, not as the owner.  And yes I kept them honest IP wise.

No need to.  My interpretation of the Diku license, Merc and related was and is that all of the works distributed were under that license unless stated otherwise.   If those works were not then the Diku, Merc, and Rom people have possibily violated the authors' IP by distributing them.

If Tolkein had placed source code in Appendix G of The Return of the King, I would certainly be quite correct in assuming the license on the cover page applied unless he stated otherwise. Authors of programming books usually do provide a different license regarding the source.

A few things:
1) I absolutely respect and applaud Matt's willingness to take a stand on this issue, even if I don't care for the fact that he picked on a *specific MUD* for the purpose of opening this crusade. Singling out Shadows of Isildur was, in my opinion, a tactical mistake that got quite a few of us distracted from the important and valid points Matt was trying to make. The problem with isolating SoI and Traithe is that Matt is effectively attacking Traithe for *trying* to do right by the Tolkien estate, which is far more than many other Tolkien MUD operators have probably ever done.
2) If someone planned to start their own OtherSpace MU*, I'd certainly want the courtesy of a request of permission. But unless the developer sought to profit from the MUD, I think I'd stop short of calling him/her a thief. And if I learned they were using the OtherSpace theme in a way I deemed inappropriate, I would expect them to respect my request to quit using the theme. If they didn't, then, certainly, I'd have some serious issues with them and might even call them a thief.
3) Traithe doesn't deserve to be compared to Vryce, which is the other tactical error Matt made, in my opinion. The Tolkien estate hasn't been trying in vain to get Traithe to shut down his MUD. Traithe hasn't been claiming Tolkien intellectual property as his own creation. Traithe hasn't been thumbing his nose at the Tolkien estate or anyone who dares to criticize him - he's even gone so far as to say, publicly, that if the Tolkien estate takes issue with the existence of his MUD, he would take it offline. Show me anywhere that Vryce ever said anything like that. Buried under the personal attacks against Traithe, however, are some valid arguments worth considering.
4) In many ways, I agree with the basic principles Matt has been putting forth. If an author has made it clear they don't want their work used in MUDs, those wishes should be respected unless you secure specific permission. But if a new MUD developer finds loads of unlicensed Tolkien or Wheel of Time games at The MUD Connector or Top MUD Sites, who can really blame him for thinking he can make his own free game in middle earth? Most people who set up MUDs aren't much more than kids and they certainly don't know a great deal about copyright law. Some development documents, such as Javelin's PennMUSH Guide for Gods, actually encourage developing games with established themes because they come with a built-in audience. But the guide also offers this bit of wisdom:That said: If I find two dozen Tolkien MUDs on the Internet, and the Tolkien estate hasn't moved to shut any of them down, it strikes me as relatively reasonable for a MUD-maker to assume he can do his own without fear of repercussions. The same with Star Wars, Star Trek, Wheel of Time, Buffy the Vampire Slayer and the X-Files. 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. I'm saying don't call someone a thief if they aren't really stealing and aren't acting in bad faith. If Traithe uses text from Tolkien's books in room descriptions and news files without permission, that's theft - and certainly the sort of thing that would and should draw the ire of Tolkien's estate. But the mere existence of Shadows of Isildur isn't a blight on the MUD landscape, in my opinion, unless the Tolkien estate announces that it wants SoI and every other Tolkien-inspired free-to-the-public game yanked off the Internet. If that happens, and Traithe and all the other Tolkien MUD operators keep their games going in defiance of the wishes of the IP holders, then I'll stand on the wall next to Matt and call them all thieves. Until then, unless Traithe and the rest claim to have created Gandalf or misuse direct text from the books without permission, I'll accept their games as homages and celebrations of the material.

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.

However, as those areas come with the Diku/Merc/etc distributions, don't have any licenses of their own, and are used by a lot of other muds, it is - IMO - reasonable to assume that the builders don't mind people using their areas within the codebases they were distributed with, unless they say otherwise.

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, only that they very definitely have the capability to stamp on infrigements when they want to (because they've done it in the past), yet have left muds (and various other works of fan fiction) completely alone. If you are concerned that such muds may go against the wishes of the Tolkien copyright holders, then email them - I can assure you that they will be able to do far more than any of us can.

The Diku team (and Merc team for the matter), on the other hand, are in the opposite situation. They have made very clear their displeasure about license violations - and Medievia in particular - on many occasions, yet have never legally stomped on anyone. They simply do not have the resources to do so, and therefore it is up the rest of the mud community to encourage people to follow the wishes of the various mud authors.

My personal opinion is that, as was suggested by someone else earlier in the thread, 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. If this were not the case, it would be a very simple matter for them to just respond to an email, or make some public statement - but they have not, despite the fact that Tolkien-based games have been around for almost 30 years (unless there is something earlier than Mines of Moria?). If I am correct, then you'd actually be going against their real wishes by trying to shut down muds based on their work.

In the case of authors who have stated they don't their work used for muds, I could agree with the idea of treating them the same way as other license violators. But trying to second-guess what the copyright holder "really wants" is an exercise in futility.

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.

You can have an express license without paper, and you certainly don't need a signature for one.

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

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

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

--matt

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

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.  ;-)

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.

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.

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

the logos said: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).

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

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..."

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.

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?

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

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.

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.

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.

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.

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?

Aeolus's post already covers the legal aspects.

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.

KaVir responding to Tyche:
Straw man eh?

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

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

RE: Stilton regarding the 14 day shutdown.

I'm not sure on that point as Vryce may well be the service provider.  There's also no requirement for an ISP to even accept a DMCA request.  Most responsible ones will as they realize the thrust of the law is aimed at protecting them from liability.

I agree even a 14-day shutdown would be most enjoyable and FUN, even if a pyrrhic victory.  :-)

Not really, Stilton. Laches requires that 1) the copyright holder knew or reasonably should have known of the violation; 2) he took no action; and 3) this prejudiced the defendant/alleged infringer. The delay in question must be 'unreasonable'. In the case I cited, the harm to the defendant was that he would have lost the money from printing the books because of the unreasonable 2 year delay. The question in issue was not whether the plaintiff had abused the process, but whether the delay was reasonable in light of the fact that litigation was being persued elsewhere in the world.

Regarding ongoing infringement, Judge Posner says in Taylor v. Meirick, 712 F.2d 1112 (7th Cir.1983) that a plaintiff may recover for all copyright damages as long as the last act occurred within the statute of limitations period. In that case, there was a copyright infringer who sold maps. He allegedly stopped selling, but made no effort to retrieve his maps from retailers. The three year statute of limitations was held not to have tolled. As regards laches, however, Posner makes it clear that the burden is simply shifted to the defendent to show why laches should apply.

Hope that's clear.

-Aeolus

Tyche:
I assume that you could also hit his upstream if he's just a one box T1 buying from someone else? (This is pure speculation)

He'd have to be a pretty valuable client for them to accept liability for continuing distribution of allegedly copyrighted material, wouldn't he?

Can't say I like the law, but it's here.

Stilton

But in order to make this analogy accurate, let's also say that dozens of other developers over the last three decades had included exactly the same chunks of code.

Yes, it would certainly raise some concerns, but because that same code had been used by dozens of other people in the same way over the last three decades, and because there was plenty of evidence that the copyright holders knew about it and had done nothing while clamping down on those using other parts of their work, I would not automatically assume that you were using the code without permission.

Fiest and McCaffrey have said that their work cannot be used for muds, therefore I fully agree with clamping down on people that do so. The Tolkien people have said nothing despite being aware for decades, and have ignored muds based on their work while laying the proverbial slap down on various other infringers. That, in my eyes, is the difference.

The copyright holder is aware of the muds, and has been for decades, yet has obviously chosen to turn a blind eye to it. I have always argued for defending the wishes of the copyright holder. You, however, appear to want to defend your interpretation of their wishes, and that is what I disagree with (for the same reason I disagreed with various people during the IMC debate).

Wrong. As I have pointed out already, the two situations are complete opposites.

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.

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

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

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.

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.

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.

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.

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

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.