No One Can Hold The Wind: Control Over Art Released Into The Public Domain

(The author of this post is a licensed and experienced intellectual property attorney, but nothing in this post should be construed as specific legal advice. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.)

“Public domain” is a very slippery term, legally speaking. What it usually refers to is an artistic creation that either predates modern copyright law, or for which the copyright has expired – in other words, there is no applicable legal copyright in the work. Once something is in the public domain, anyone may use it in their own artistic creations. (Though this may create a new, copyrighted work, to the extent that the new creation comprises an original artistic creation beyond the artistic elements of the integrated public domain work.)

There’s no way, under US copyright law, to “release” a copyright before it expires. (This is a conversation I’ve had with other copyright lawyers.) Since neither registration nor notice are now required to create a valid copyright, it’s literally impossible to create a new work and have it NOT be copyrighted. However, one can release an artwork and offer the public an unlimited license to use it. Technically, such an artwork is still under copyright and is not “in the public domain,” in the way lawyers use the phrase, but for practical purposes, it may be thought of as being in the public domain.

That is just a little background for the actual topic of discussion for today, which is a game developed by indie developer Jason Rohrer called “One Hour One Life.” Mr. Rorher has an unusual business model: He “releases” all of his games into the public domain, and makes money from his creations in various ways that don’t involve strict control of the copyright. You can read about his philosophy here: Free Distribution.

Mr. Rohrer makes very good games, and between selling copies of “his” version of the games, donations, and other methods, he makes his living. But of course, you wouldn’t be reading about him on a legal blog if there wasn’t a legal issue.

*ominous music*

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I’m Part of (Space Quest) History!

The Space Quest Historian, a gaming commentator and streamer with a particular interest in the famous “Space Quest” game franchise, asked me for some comments related to Activision’s ownership and activities in relation to it. I sent him an email discussing the matter generally and he was nice enough to use it in a video. It’s at the bottom of this post.

A few comments:

  1. This is a great video and he got almost everything right. The parts he was a little iffy on we’ll blame on the lawyer who made them too complicated. ūüôā
  2. I want to make one thing absolutely clear. I am not affiliated with Activision, Sierra On-Line, Codemasters, or Assemble Entertainment. I do not and have never represented any of them or any of the other parties involved in the Leisure Suit Larry franchise. (I have represented parties in dealings with one or more of those entities, and I have nothing bad to say about any of them in that context.) I do NOT know what the licensing/ownership status of the Leisure Suit Larry franchise or any particular part of it is. My hypotheticals were just that – hypothetical. I don’t think SQH said otherwise, but it might not be absolutely clear that this was just me speculating
  3. His opinion on Activision’s moral and ethical considerations in how they handle the various Sierra On-Line properties is just that – his opinion. I am neither agreeing nor disagreeing with it in any particular way, although obviously as an attorney for content creators and rightsholders I have a different perspective.

Anyway, he’s a funny guy and this is an¬†incredibly well-edited video, including projecting relevant bits of my email at the right times. If you’re interested in that sort of thing, this is the sort of thing that will interest you.

(Note: A little NSFW language.)

 

Video Game Preservation: Not a DIY Project, But Now A Lawful One

(This post was originally written for Ron Coleman’s Likelihood of Confusion¬†blog. Please note that while the author is a licensed and experienced attorney, nothing in this post constitutes specific legal advice. It is provided for general educational purposes only. The author has made an offer of pro bono consultation related to the subject matter of this post. This may be considered ATTORNEY ADVERTISING in some jurisdictions.)

If you are into vintage video games, you probably know about “ROM Sites.” ROM sites are websites where you can download the ROM (Read Only Memory) code for classic cartridge or board-level games, such as Nintendo Entertainment System cartridges or arcade cabinet games like “Spy Hunter.” They’re not really different in kind from websites or torrents where you can download more modern software which was available on disk or CD-ROM. They’re just a little more arcane because you have to not only download the ROM code (which has been “ripped,” or copied from the ROM chips to a computer hard drive) but download and run “emulator” software, which allows your modern PC to run code written for much, much older hardware. It’s entirely doable, but requires a little effort and tech know-how.

Recently, Nintendo sued one of the better known ROM sites, loveroms.com, and won a 12¬†million dollar judgment against them for copyright infringement. Here’s a copy of what was the front page of loveroms.com from the complaint:

Here’s what’s on the loveroms.com front page now:

Apology to Nintendo

Our website, LoveROMS.com/LoveRetro.co, previously offered and performed unauthorized copies of Nintendo games, in violation of Nintendo’s copyrights and trademarks. LoveROMS.com/LoveRetro.co acknowledges that it caused harm to Nintendo, its partners, and customers by offering infringing copies of Nintendo games and has agreed to cease all such activities. To access legitimate Nintendo games online, please visit www.nintendo.com for information about the Nintendo Game Store.

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Anime Central 2018!

I moderated my first Anime Central panel yesterday. It was a variant on a panel I’ve done before, which I call “GeekLaw: Law, Pop Culture and Creativity.” I managed to spend most of the day at the con, so I thought a little recap might be fun. Please note that if you were at the panel and you’re looking for the presentation materials, here they are:

GeekLaw-AnimeCentral2018

I arrived about 11AM and it was touch and go whether I’d even get a parking space. The convention center’s lot was so full it was blocked off already. Fortunately the Hyatt still had a few spaces (the convention is held at the Rosemont Convention Center, which is physically attached to the Hyatt hotel.) Unfortunately, that lot costs a lot more, but you gotta do what you gotta do.

But at least I found a space and was able to make the first panel that had caught my eye, “Scum & Villainy: Why It’s Good to be Bad.” I was under the impression this would be a how-to panel, but it turned out to be how to¬†write about villains. Which was obviously disappointing but it was still a fun panel.

After that I went through Artist’s Alley, which was much better laid out this year than last year – one aisle was still a little tight, but you could get by. I picked up a cute little sketch zine from Lisa Imas (http://hashtag-art.tumblr.com/) called “things i drew when i should have been paying attention, or how i almost failed all my classes.) I got this because it reminded me of the time I almost got thrown out of a class in law school for laughing at the book I was reading when I was¬†supposed to be paying attention. ūüôā I also encountered this retro cosplay:

The next panel I went to was a fan fiction panel. As I sometimes do when fan fiction is discussed, I went to the moderator before the panel and mentioned that I was an intellectual property attorney and that if any questions about legal issues came up, they were welcome to call on me if they didn’t have their own legal expertise.

I’m sure you can tell what happened next.

The question did come up, and the moderator very graciously invited me to stand up and borrow a microphone and talk for a few minutes about the legal issues related to fan fiction. It seemed to be very well received and people commented that it was helpful. I also plugged my own panel, which wasn’t for hours yet but it seemed only fair. So thank you to moderator Pearson Mui (http://www.jurai.net/~pmui/adintro.html) for asking me to speak.

With some time to kill, I headed back to the show floor and scoped out some cheap manga books, as well as running into these two:

In one of the cleverest (and most adorable) mashup cosplays I have seen in a long time, that’s Sailor Ladybug and Tuxedo Noir. (That’s what I call them, anyway.) I had to leave before seeing quite all of the floor because I wanted to attend a panel called “Copyright 101,” put on by Kumate Works. I admit that I went to this to see if the information being presented was reasonable, because while I try not to be obnoxious about it, if I see a presenter giving information that will get somebody sued, I¬†will say something. However, my concerns were completely unnecessary. The presenter knew her stuff and had consulted with an intellectual property attorney to develop her presentation. It was excellent. Once again, I got outed, but once she knew I was an IP attorney I kept my yap shut unless she asked me for confirmation of something. I was very impressed.

Then I had to bolt around the panel room area to get to a paneled identified as “Game Development – The Crash Course.” It was put on by Mark Kakareka of Guilty10Games. Promising to be a “crash course” in the basics of game development, the panel delivered quite well in my opinion. Acknowledging that he couldn’t teach anything of practical substance in 45 minutes, the presenter instead hit the big picture elements – have a plan, write it down, do a design doc, use tools appropriate to your technical skill level – and provided some examples of each. I thought it was about as much as you could ask from a one-hour panel on a topic that you can literally get college degrees in. I got made again when somebody asked a legal question and I volunteered to answer it, but once more I apparently wasn’t too obnoxious and nobody seemed to mind my assistance.

I thought about going to another panel but the show floor had just closed and there were huge lines to pretty much everything, so I took a little break. When it got close to time, I went to the panel room I was in only to find that the panel going on in it was being run by a person I follow on Twitter, @Homura_Bakura. Her enthusiasm and happiness to be talking about something very dear to her was really amazing and while I did come in toward the end, everybody was obviously super happy to be there, so well done. After saying hi while she was on the way out I got set up for the panel.

I was stunned to see that even though we were doing a law education panel at 10:30 on a Saturday night, there were about thirty people waiting to come in. Thank you so much to everyone who chose to use part of their Con Saturday night to be with us! Thanks also to my fantastic co-panelists Sam Castree (http://www.twitter.com/indiegamelawyer) and Diana Qiao (http://www.twitter.com/dianaqiao.) The panel went great, we had wonderful questions, and everybody put up with my rambling far better than I could have expected. (It was a long day.)

Then I went home and passed out.

So thank you again, everybody, and hopefully I’ll see you again soon!

M

Can Embedding a Tweet Defeat Copyright Protection?

As ever and always: I am a lawyer, but I am (probably) not your lawyer, and this is not legal advice. This is a developing and complex area of the law. Do not, I repeat DO NOT, rely on anything in this post when making legal decisions. If you have a legal question, retain a lawyer licensed in your jurisdiction and familiar with the relevant law to help you.

If someone posts content online, and you want to incorporate it into your own online work, you have three options:

  1. You can link to it, like this: EFF Tweet on Goldman v. Breitbart or like this: https://twitter.com/EFF/status/964336727572779009 .  The link can be active (the first one) or inactive (the second one, which you have to copy and paste or retype into your browser address bar.)
  2. You can copy/paste, retype, screencap, or some other way copy the content and repost it on your own server, such as a blog host server. Like this:
    eff_embed
  3. You can¬†embed the content in your own post, such that when people read your post (like this blog post) there is a line of code that tells their browser, “go to the original creator’s site and get this content, and display it as part of my post.” Like this:

Now obviously when you use someone else’s content, you open yourself to accusations of copyright infringement. And since the basic definitions of what constitutes copyright infringement in US law were set forth in a law passed in 1976, the law doesn’t always reflect modern technology or understanding of that technology. So people of good will can differ on these questions.

But.

Look at the examples in #2 and #3 above. Ask yourself these questions:

  1. Do you see a significant difference? (Other than size.)
  2. More importantly, is there any significant difference in the visual experience they provide or the information you absorb when you look at one versus looking at the other?
  3. If you saw them in a news article or a blog post, would you be able to tell which sort of method was used to include the content without investigating further?
  4. Finally, do you see a significant difference between the examples in #1 and the examples in #2 and #3?

I think most people, answering honestly, would say that the answers are 1) no, 2) no, 3) no, and 4) yes. And therein lies the problem. We have extensive court precedent that says that #1 is not copyright infringement even though it provides information on where to access copyrighted content. This is true even if the person who is hosting the content may be infringing the copyright, and even if the person who posted the link¬†knows the person who is hosting the content may be infringing the copyright. Because a link is not content. You could argue that it’s not fair that the link-poster benefits from the secondhand use of the content, but it’s entirely rational to say that the link is not the work and so there is a discontinuity that separates posting the link from posting the work.

(Edited to Add: Claiming that linking and embedding are the same thing, to paraphrase something I said on Twitter, is like claiming that a book with a picture of the Mona Lisa in it and a piece of paper with a list of written directions on how to go to the location in the library where it is shelved are the same thing. The map is not the territory. But a picture of the map is, for purposes of copyright, the map.)

The question of whether #2 and #3 are copyright infringement has been litigated, but we have only one significant, on-point court of appeals case on the question, in which the Ninth Circuit Court of Appeals found that #2 is, and created the (for once) desciptively-named “Server Test.” Specifically, if the content is hosted on your server, you may be infringing copyright. If it is not, you probably aren’t. This has the benefits of being simple, straightforward, and very easy to determine. (Though obviously as always there are edge cases.)

However.

The Copyright Act gives copyright holders five fundamental rights:

  1. The Right of Reproduction – the right to make copies of the work.
  2. The Right of Adaptation – the right to adapt the work to other uses (i.e. to make “derivative works.”)
  3. The Right of Publication – the right to distribute copies of the work to the public.
  4. The Right of Performance – the right to perform the work in public, in a fashion which does not create or distribute copies.
  5. The Right of Display – the right to make a copy of the work available to the public without distributing it, copying, or performing it.

As the Ninth Circuit is very influential in technology jurisprudence (it’s the circuit that includes California/Silicon Valley) and copyright litigation is SUPER expensive, up until now many people had sort of gone along with the idea that the Server Test was cool because hey, if you didn’t put it on your server, you didn’t create a copy, and it says “copy” right there in the name of the right, right? (I am not as ashamed as I should be of that sentence.) And as displaying a web page causes the user’s web browser to download and create a local copy of the content of the page, obviously it wouldn’t make sense to claim that such a transient “copy” was offensive in the eyes of the law. And it was good. Or, at least, most people had better things to worry about.

Then this case came down: Goldman v. Breitbart.

The judge in this case, whose court is not in the Ninth Circuit and therefore is not bound to follow the Ninth Circuit Court of Appeals’ decisions as a matter of law, found the reasoning behind the Server Test unpersuasive when it came to embedding (the #3 example of reposting types from way up at the top there) because of the fifth right – the right to display.

Her logic – and you should read the case for yourself, it is in my opinion technically accurate and logically and legally sound – is that while we may have to let the local user create a temporary copy to view a web page, that doesn’t give the creators of web pages an automatic out. In other words, “because Twitter” is not a defense to a claim of copyright infringement recognized by the Copyright Act.

The Copyright Act – and I’m not going to¬†go into detail on this because the opinion does a great job – in its plain language, history and purpose, was designed to anticipate that new technologies would become available and that ultimately, absent a Fair Use defense, the purpose of copyright is to protect the rights of the creators of content. If there is no practical difference, regarding the rights of the user and the ultimate effect of #2 versus #3, then there is no¬†legal difference. If #2 is copyright infringement, the judge’s logic goes, so is #3.

So according to the judge in¬†Goldman, the answer to our headline question is “No.” (Trick question: if a headline asks a question, the answer is usually no.) Does that mean you can’t embed tweets without fear of the Copyright Police knocking down your door in the dead of night and carrying you off to work in the Associated Press’s content mines forever? Also no. First of all, there are no Copyright Police. (Though that might be interesting.) Secondly, all this decision does is make clear, as I said, that “because Twitter” is not a legal defense to copyright infringement. All of the other defenses to copyright infringement, including Fair Use *shudder* and factors which make a use non-infringing in the first place, remain viable and in full force and effect.

Given that, what is the¬†impact¬†of this decision on media creators, up to and including your humble blogger? (Assuming that this travesty of a case isn’t immediately overturned on appeal as many in the industry righteously assure me it will be, that is?)

Simple. Don’t try to use “because Twitter” as a rationalization for reposting content you wouldn’t have reposted if it weren’t on Twitter. Or Instagram, or Tumblr, or whatever. If you want to cite a tweet or other analgous post, but are’t sure you should repost the associated media, copy/paste and attribute the text. If somebody posts a picture on Twitter, et cetera,¬† and you want to repost it, ask for permission. Same for any other content you could embed in such a way that a reasonable person couldn’t tell if it were embedded or directly included in your own content. In other words, stop thinking the Internet is different. It isn’t.

Note: that doesn’t go for retweeting or quote-tweeting on Twitter itself, as Twitter’s terms of service require users to allow other users to retweet and quote-tweet original tweets. This is, by and large, true of other analogous services like Instagram and Tumblr, but your mileage may vary.

As always, thank you for reading. Questions are welcome in the comments or on my Twitter feed.

-M

 

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