A trend I suggest avoiding...

[Ferryt]

ziitch, there are two types of monetary "rewards" you can get for winning a court case. Restitution for the value of an item is only one of them, and that doesn't come into play with things which were free. The other is called "punitive damages" and that's what the author would receive in this case. Since this isn't tied to the value of the product, in this case a mod that cost nothing to produce and distribute, that money would not count as "profit" from the mod, but is more of a "fine" that is leveled against the transgressor and awarded to the author. I seriously doubt that Bethesda would attempt to make an issue of this and get a court precedent set, assuming this hasn't already happened at one time with some similar situation.

[Zaldir]

snip

 

Yeah, I didn't mean that your point was invalid, I just wanted to point it out. :)

And yes, one never knows when someone would go to court because someone "pirated" their mod - there is always a chance, though highly unlikely.

But I think more of it as a moral issue, as people should respect others wishes. This, however, is dreaming; I doubt we'll ever see the day everyone thinks it's morally wrong to steal. :/

[Arthmoor]

Unless your mod is nothing but original resources (meshes, textures, audio, etc) the EULA for the game is crystal clear. All content generated by the CS inherently belongs to Bethesda. You have no right to claim anything under that agreement, and the EULA would hold up in court.

 

You can also get a glimpse of Bethesda's policy on selling original resources as well when they banned all discussion of that one vampire mod when the guy decided to sell the voice files that went with it. Definitely arguable that his voice acting work is his own original material, but Bethesda made it clear they considered it a EULA violation anyway. That[ may not hold up in court, but who has the money to go up against a huge game publisher's legal team to test it?

 

The guy was forced underground to continue work, and it appeared at one point that he did indeed make the leap into selling the entire mod, which was what Bethesda had been worried he was doing all along. No idea if they took him down for it but they could and it wouldn't matter how long they waited.

 

On the issue of modders taking their stuff down, it's been my observation that this only happens in a few high profile cases with certain people who react badly to the nature of the internet. We all get trolls, but the trolls win if you respond by removing your mod from distribution. All these doomsday scenarios about your mod showing up in the torrent underground won't happen though. Nobody there cares one way or the other what happens to free stuff. Work that gets yanked from the known mod hosting sites usually ends up forgotten in a few months time.

 

Me personally, I'll leave them up when I finally get bored with it all (or when Skyrim comes out) because it's just silly to yank the stuff. Don't want comments? Disable them. Or just don't respond anymore. Simple enough. Might be somewhat solveable if total deletion weren't so ridiculously easy to do around here.

[Ferryt]

Arthmoor makes a very good point regarding any mod which uses any Bethesda-created content. Bethesda has the rights to their own intellectual property. If your intellectual property is bundled with it in a mod then you do not, technically, have the right to distribute that mod without Bethesda's permission. The EULA does, specifically, state that mods made for this game may not be sold. That much is clear, although it's debatable whether or not the legality of the EULA would hold up in court if it were to be actually challenged. Just because you agree to something, contractually, doesn't mean the people who forced the contract upon you are going to win the case.

 

In the case of Bethesda claiming that anything created with the CS is their property, I'd have to question that. As much as I criticize the company for shoddy workmanship on Oblivion, their legal department isn't stupid. This would be equivalent to Microsoft claiming they own all rights to the novel you wrote on Word, or Hotpoint claiming they own all the rights to the bread you sold at the bake sale because you baked it in their oven. The simple fact is that the laws, at least in the U.S., do not permit a company which owns a tool to claim ownership of a product created with that tool. EULA not withstanding, this would most certainly not only not hold up in court, but the courts wouldn't even consider the case. The judge would simply tell the plaintiff to seek better legal advice and get a life.

 

The only exception to that would be if a mod actually contained Bethesda-created content, or some modification of it. Were I to create a magic ring, even referencing Bethesda's content and introducing nothing of my own creation, save for the mental toil of piecing it all together, that mod would be totally my own intellectual property, subject to the no-sell clause in the EULA. Why? All such a mod does is to to create references to Bethesda-created content. The actual .esp file contains no content at all created by Bethesda.

 

Now, does the EULA actually state that anything created by the CS is the property of Bethesda? I don't know because I don't have access to the EULA. For those who never bothered to read it (I did, but I've forgotten most of what was in it), you're presented with it during game installation. There is no hard copy (not even in the users manual), and no EULA.txt or any such file is to be found on the install disk! So, where is it? It's buried, somewhere, in one of the many .cab files. I'm on Win7, which no longer supports browsing them and have no access at the moment to my Vista machine, which can. I have been unable to find a copy of the Oblivion EULA on the Internet. In other words, Bethesda has, apparently intentionally, obfuscated their EULA in an attempt to prevent people from easily accessing it. You would think that it would be included as part of the install by default, but it isn't. Am I being overly suspicious, here? Perhaps, but just how much trouble would it have been to include the EULA as a readable .txt file?

 

Given that (and a request for anyone who might know of a location to actually download a copy of the Oblivion Eula), I do know that it states that any "customized" content created by the CS is Bethesda property. What, exactly does this mean? Here's what it says (found on the Fallout3 forum, but this is from the Oblivion EULA):

 

• (a)All Customized Game Materials created by you are exclusively owned by LICENSOR and/or its licensors (as the case may be) and you hereby transfer, assign and convey to LICENSOR all right, title and interest in and to the Customized Game Materials and LICENSOR and its permitted licensors may use any Customized Game Materials made publicly available to you for any purpose whatsoever, including but not limited to for purposes of advertising and promoting the Software;
  

 

I interpret "customized game materials" to refer to modified content already present in the vanilla game and not to original content "custom-designed" by a modder. In view of this, Bethesda certainly is not claiming ownership of your mod even if you are including a customized version of their content within your mod. What they're claiming is ownership of the customized content, only. This would have to be a texture, model, voice, animation, or some such other file -- not just a reference to something which exists in one of their .esm, .bsa, or .esp files. Those are pointers, only. I might copyright my webpage which contains a hyperlink to material copyrighted by someone else. That someone else has no claim on my webpage because of that link. The same principle applies, here.

[Arthmoor]

Just so I could get the proper wording, this is quoted directly from the Oblivion CS EULA: (yes, I reinstalled it JUST to get this text)

 

If You distribute or otherwise make available New Materials, You automatically grant to Bethesda Softworks the irrevocable, perpetual, royalty free, sublicensable right and license under all applicable copyrights and intellectual property rights laws to use, reproduce, modify, adapt, perform, display, distribute and otherwise exploit and/or dispose of the New Materials (or any part of the New Materials) in any way Bethesda Softworks, or its respective designee(s), sees fit.

 

It doesn't strictly say they own you, just that they're allowed to use anything you create with it, without having to pay you royalties etc. Depending on the country I suppose that could be viewed as "we own it" but the legal hair splitting is there.

 

Of course, how often do we all pay attention to this one:

All uses of the Editor and any materials created using the Editor (the “New Materials”) are for Your own personal, non-commercial use solely in connection with the applicable Product(s), subject to the terms and conditions of this Agreement.

 

Yes, even legal agreements from the best legal teams have contradictory clauses in them :P

Edited February 18, 2011 by Arthmoor

[Ferryt]

Well, we all know that Bethesda isn't going to quibble over the second point, and they were stupid to even put that in there. Were they to attempt to enforce it they would totally alienate the entire modding community, which is single-handedly responsible for keeping Bethesda in business. Without it, Morrowind and Oblivion would both have died an early death and I rather doubt that Bethesda could have survived that fiasco.

 

As for the first part, it's not enforceable. Similar EULAs have been challenged in courts and the courts will invariably find the EULA to be out-of-line and throw the case out, opening up the plaintiff to a counter suit which will likely be lost. Basically, they need only one situation where they attempt to redistribute something like Nehrim for their own gain to become a laughing stock of the entire gaming industry. It would only take a determined modder with a "bring-it-on" attitude and an attorney willing to take such a sure-win case on without pay until restitution is received to make Bethesda re-think such an absurd idea.

 

Worse, the Oblivion EULA would be declared illegal, itself, which would leave Bethesda without any legal protection for the game at all, save that given them by U.S. Copyright Law, and they cannot institute a second EULA, unilaterally, and expect any claims that users of the game are automatically bound to it to be upheld in U.S. courts. It would be a very nasty can of worms. Maybe I was wrong. Maybe their legal department is working on a single, shared brain cell, and that one is suffering from malnutrition and atrophy due to lack of use.

 

Indeed, EULAs in general are viewed suspiciously by the legal community in the U.S. because so many of them attempt to covertly gain right over intellectual property that ethically belongs to people who use a tool created by a company to create their own original product.

[Arthmoor]

Given that the lawyers who draw these things up know what they're doing, I'm disinclined to take the opinion of random forum goers as useful legal advice. You more or less asked for the text I quoted, so I provided it. Advising people that it won't hold up can (and has) hold YOU up to legal repercussions about giving unlicensed legal advice.

 

I've been through this subject enough in the past to know that you get nowhere until someone cites court references. So I think if you wish to continue this discussion, citations of legal rulings on the subject would be your only valid course of action. Anything short of that is pure speculation. Also the first time I've ever seen anyone say that EULA's are viewed suspiciously in the legal community when they're the ones drawing them up for their clients.

 

Your Nehrim example is flawed btw, because Nehrim contains known original assets like meshes and textures which this EULA clearly does not cover.

Edited February 18, 2011 by Arthmoor

[Ferryt]

I don't happen to have access to original sources of the claims which I made. That doesn't make them invalid and anyone with a little Google savvy could, I'm sure, find plenty of information regarding this issue which will support what I've said. Regarding your comment that I would be open to legal action for giving out legal advice without a license, that's clearly not so because I've given no legal advice. Nobody asked me for an opinion, and I certainly did not charge for any services. Anyone is free, at least in the country in which I live, to voice their opinions over any legal issue such as this. It comes under Constitutional protection. Consider it an opinion, although what I said about EULAs having been challenged is a fact which can be verified (again by any determined Internet search). Now, had someone specifically asked whether or not to take Bethesda to court with regard to the EULA and had I said what I said in response to that, yes, I could be prosecuted. That's not what happened.

 

And my Nehrim example very specifically addresses the EULA as you quoted it, so that's not a flawed example. It is, indeed, a salient test of the EULA. The quote you made quite clearly states that Bethesda is claiming ownership over ANY and ALL original content which is made for Oblivion. That's what "New Materials" means. Technically, Bethesda thinks they own Nehrim and everything in it, even though everything in that game is original content. That's the only way to interpret the wording, assuming you're reasonably fluent in legalese. Whether or not they'd backtrack on this stance were the developers to actually sell Nehrim is anyone's guess, I suppose, but it would make for some interesting fireworks on the legal scene since the game, Nehrim, can be considered separate (and distributed separately) from the game engine or any of Bethesda's intellectual property connected with the out-of-the-box game called "Oblivion".

 

Finally, just because the legal department of Bethesda is made up of trained attorneys doesn't mean they're doing things correctly, or even legally. They have an agenda to push the envelope as far as they possibly, can and you, yourself, pointed out the discrepancy between the two quoted clauses. If they were so smart that discrepancy wouldn't exist, now would it? Bethesda's legal department is charged with protecting Bethesda's assets in any way it can, and true to most such situations, they are trying to give Bethesda more than it's fair share of control over "spin-off" products, such as user-created mods. This is standard industry practice. It will quit the first time someone actually challenges it because the legal code in this country frowns upon anyone attempting to steal someone elses intellectual property -- especially when the creator of that property is coerced into accepting a unilaterally-determined agreement with draconic and sweeping terms such as the Oblivion EULA.

 

As Ripley said, "Believe it ... or not". I think I've made my case and you've made yours, and neither of us are going to budge from our stances, save for someone with actual legal credentials and no tie to the gaming industry getting involved in this discussion.

[Arthmoor]

I'd settle for actual court citations rather than having to spend an eternity digging for them on Google, because I've been down that road already and never found anything of relevance to the supposed "fact" that the EULA is invalid. BTW, that's precisely what I'm talking about about giving what could be construed as legal advice. You're stating something in a legal argument as factual, when the EULA is the only citable source we have, and what you're claiming is directly opposite of that.

 

I don't know what country you're referring to, but here in the US, there are laws against giving out legal advice in this manner. Quoting the EULA is one thing. Making an unsubstantiated claim that it won't hold up is quite another and can be damaging to anyone who follows that advice. The excuse of "your honor, X on forum Y said I was ok!" just isn't going to fly in court.

 

So yes, you could simply conclude that "neither of us are going to budge" but right now I'm not seeing a reason to as you've failed to cite precedent in the legal arena for your side of the argument.

 

Also, nobody with legitimate legal credentials, gaming industry or not, would show up here and offer anything resembling a legal opinion on it. About the closest any of us has for that kind of quicky free advice is contacting the FSF.

[Ferryt]

I'll just be brief, since pursing this issue isn't going to get us anywhere.

 

Firstly, at no point did I give anything that can be construed as "advice" and no attorney would be fool enough to try to interpret what I wrote as "advice". Two parties, minimum, must be involved in "advice" -- someone giving it and someone receiving it, and the "advice" must be directed toward a specific legal entity. What I wrote would be construed in court as an "opinion stated as fact". Since nobody asked for my opinion, and I was giving it to nobody in particular, and specifically told nobody to actually act upon that opinion, it is not "advice" in the legal sense.

 

Secondly, both of us have failed to offer substantial, objective evidence to support our claims. That's why I'm not budging from my interpretation, of this issue, either. We will, therefore, have to agree to disagree.