Importing models from F3 to FNV

[LadyMilla]

True, the burden of fair use itself is in the defendant, but fair use is on a rough sliding scale dependen on a bunch of things, the most important being transformativeness, then issues of profit (not for profit stuff like this has a much easier time of it) and then at the bottom is market substitution and harm. Proving harm is on the plaintiff, though the standard of proof is less than for a prosecutor in a criminal case. As I said too, sampling is largely protected under fair use though there is still some resistance in the industry.

 

Having read te basics of the Betamax case, this kind of PC modding is more or less time shift for a person owning both games. Console modding is different due to the ubiquitous encryptions, thus why I refuse to play anything on consoles as a rule, but any injuction Bethesda would try to enforce would be on shaky ground. a port of meshes within a game franchise like fallout by all logic could not be construed as derivative work because it's the same damn story. In that case fair use wouldn't apply because fair use is a justified breach of copyright, and at least in terms of Fallout 3 objects to New Vegas, Vegas being the sussessor of FO3, it's appropriate use of licensed materials. This is very new legal territory, because in non interactive media these questions had never needed to be raised, but the logic of any sort of copyright violation hinges upon derivative work.

 

As to the costs of litigation, you are correct, but it's not that I didn't know, it's that I don't give a rat's ass. Even if such policies were legal, and given everything I have read on fair use statues, it's not, it is highly unethical. Moreover, the Constitutional mandate for intelectual property is quite clear that the rights to profit are preserved to the individual only for the benefit of the common good. In other words, copyright has never been about control an author or right holder has over the work, but infringement on profit. If a law explicitly protects copyright beyond that, it's flat out unconstituional. Courts however are more likely to rule the laws cited by the plaintiff do not apply. As such, these stipulations are unjust and they need to be dismantled. It's a free speech issue in one of the few ways that applies to private citizens as well as the government. First amendment does not regulate private contracts, but intellectual property articles do.

 

A few things:

a) Betamax case does not apply here as we are talking about extracting certain parts of a copyrighted work, and using it in your own creation that you intend to distribute. So, unless the OP does not intend to distribute his mod, the "noncommercial home use" is not applicable (distribution of the mod would remove the 'home' part of the phrase). (Remember, illegal music downloaders are sued because they obtained the music from an unlicensed source, nobody will sue you for recording a song from a radio broadcast; however, as soon as you start distributing your recording you will become an unlicensed source and you are liable to lawsuit).

b) The first criterion that is used to judge fair use: '(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;' this case would meet the nonprofit criteria but fail the educational purpose;

c) The use of meshes and textures: it should be noted that the EULA of GECK only applies to content created by using the GECK application. This also means that plugins, scripts, terrains, etc are covered by the license agreement of GECK, meshes and textures are not. While Bethesda may tolerate the use of its own modified meshes and textures for modding, this might not be the case when certain assets are licensed to Bethesda, and tolerating such activities may expose Bethesda to a potential lawsuit. The extracted assets from Fallout 3 may be a minor part of the entire product, but they may be a substantial part of third-party product licensed to Bethesda. In that case, the third-party developer would have a solid case against the creator of such derivative work, and they may even succeed in proving that they suffered irreparable damages (e.g. somebody extracts models created by the third-party developer exclusively for Fallout 3 and releases a New Vegas - Fallout crossover mod. That would mean that due to the nature of content distributed through the internet, such an infringing product cannot be recalled, and it would permanently diminish the third-party developer's ability to license the same models to Bethesda for a similar/identical commercial crossover product as Bethesda may consider it commercially unprofitable to release a commercial product that would face competition from a freely distributed work).

d) Claiming that your work is fan art and as such it is fair use may not be sufficient. (See: Rowling vs Steven Vander Ark, also Fox shutting down the Alien fan game project). The best way to strengthen the fan art argument is not to use anything directly from the game assets, but to reproduce them from scratch.

e) It would be extremely difficult to prove that the modder's use of such licensed materials serve 'to promote the progress of science and useful arts'. Also, 'Copyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed.' (See 239 F.3d 372, 345 U.S.App.D.C. 89).

f) If you are a well-to-do person, you may be in a position to "give a rat's ass". However, even if you succeed in defending your case on grounds of fair use, it does not mean that at the end of the proceedings you will be able to recover your legal costs.

 

Addition (after reading bben46's response):

As bben46 said: as long as you or the OP does it at home, there is little reason to worry about a lawsuit. As soon as you start distributing things, even if you are deemed an 'unprofitable' target Nexus may be seen otherwise (they might still hit you with a $5000 cease or desist letter: either pay $5000 for damages or face a lawsuit that, even if you win, will costs you a lot more and even make you homeless if you cannot drum up support for your cause and gather donations while their legal department drags out the process).

 

But, as bben46 said 'If you don't upload the mod with these copyrighted assets - no problem, you can do whatever you want on your own computer.". I just wanted to point out that any arguments supporting the assumption of fair use can be countered with an argument that refutes it, and for this reason, I would not recommend claiming fair use as a fail-proof defense for anyone as fair use is determined on a case by case basis.

[charwo]

To BBen:

 

I understand Nexus' position. I am not saying you guys must change policies. I am saying I would to provoke legal action to challenge these kinds of binds. They are wrong and they need to be challenged and defeated.

 

As to LadyMila:

 

Your arguments are not without merit, in terms of consideration. I would imagine if this were court, the plaintiffs would say the exact same thing. However, they would be wrong, and so are you. In fair use, there is no established pecking order, in fact all facets of fair use doctrine are weighed on a sliding scale. You can have blatant, for profit, market substitution cases. in Campbell v. Acuff-Rose Music, Two Live Crew didn't just sample Pretty Woman, they ripped it off entirely. And they won the case like it was the Super Bowl. See the issue here is derivative work versus transformative work. Let leave aside that I personally believe that no work can be considered derivate unless it is a rote copy of the original, and I have both supporters and a case. The larger issue is that mods are transformative in and of themselves. In this case, I would not want to argue this, but I could that porting those things from FO3 to Vegas and vice versa are transformative. This is because they are criticisms of how the franchise is boxed. Fallout 3 and New Vegas represent one world and in the premise shared one government before the war. As such, any military equipment found in one game dating from the pre war era should be found in the other. To fail to do so is to break with the premise and thus an artistic misstep. I'd want to go further in a mod I was doing, but it's enough. Not all things can count as such. Magic spells from Skrim would not count as criticism, but this would.

[charwo]

Now, an important stipulation: this does not apply to all mods. Requiem for the Capital Wasteland is a rote derivative work, it acts as market substitution, it does harm profits, and thus it should not be distributed. In a similar note, a thing near and dear to my heart, green mods. In all practical cases, they haven’t been a problem because people have made new meshes. But suppose that someone ported the meshes from Oasis and used them to create a Green mod for New Vegas. Derivative work? In and of itself perhaps, but if it is tied to an explicit criticism of Bethesda’s stupid decision to embrace the dead world concept, by saying that these Oasis trees and moss grass were developed in Vault 22 and spread throughout the wasteland because they had no competition or were from GECK seed kits or even samples kept in a survival bunker not unearthed 50s after the war, it would be a deconstruction of a very, very stupid trope. Especially if the dialogue included the line “You think the Wasteland would remain as barren as the Australian Outback for long? The Outback is a desolate POS because Australia is dry, not because of radiation.” This would cut to the heart of the matter: the Road Warrior is the worst thing ever to happen to post-apocalyptic because of all the fan dumb conclusions casual fans came away with in terms of genre aesthetics.

 

 

Porting things from outside the franchise would clearly be piracy. Putting wolves with Oblivion meshes in Fallout 3 is transformative for Fallout 3, but theft from Oblivion. They are not in the same universe. Taking the train engine mesh from New Vegas and putting on the rails of Fallout 3 is transformative at worst and just a logical extension of license at best. So would be taking a Legion Mongrel mesh and using them to make FO3 wolves.

 

 

The ownership of intellectual property is not sacrosanct, and is only permitted to incentivize innovation. It is not the fundamental right of anyone to own their own work, but an indulgence that facilitates the making of more. As such, any argument on fair use is going to center on profit harm. You say that using third party art could bring irrevocable harm. I’m sure a case could be filed, and I on my lonesome would laugh it out of the courtroom, case it into the holding cells and put a dunce cap on it. Third party meshes are not sold to individuals, in fact, were this case, I’d pay for the privilege and avoid the issue. No, these meshes are sold to BETHESDA for pro-profit productions. Any for profit group that uses those meshes without license are guilty of copyright violations, or at least there’s enough of a case to make me take notice. In the case of modders, this is non-profit work, if not within the specific game, then within the specific universe. In all cases, there is no harm possible because there’s no market substitution. They’re not offering modding packs to consumers, Bethesda is going to have to pay them anyway as new Bethesda makes is not going to be transformative, or parody, but a new product . There is no financial harm. Now if those third party mods are ported to the Elder Scrolls, then yes, the potential for harm exists.

 

 

As to pirating music, that’s not the same thing. Not by a long shot. Market substitution and profit from derivative are different matters. The pirate makes no money personally from the piracy, but it’s still market substitution. The pirated Hotel California competes with the for-pay Hotel California. If you distribute a bootleg copy of Hotel California, where all distributes own a legit CD of it, it ain’t piracy. In the case of using meshes, there’s no market substitution. There’s no product to compete with. Distributive rights, as with all areas of intellectual property are to promote the common good by protecting opportunities for profit. It’s not hitting them in the wallet. They can take you to court, they’re not going to win. Distributive rights are subordinate to profit and profit is subordinate to the common good. If you are sitting on intellectual property, you subvert the legal stated reason for the existence of intellectual property. Distributive rights are a means to an end that is not ultimately owner discretion.

 

As I have put it in all of this, transformativeness is the de facto key, not profit, not educational purposes. The Campbell case, Chain Food Barbie and even the poster case of derivative work LHOOQ by Mercel Decamp, a class A douchebag it curdles my stomach to defend would be protected from Leonardo by virtue of being transformative.

 

Take a look and see why:

http://upload.wikimedia.org/wikipedia/en/6/6e/Marcel_Duchamp_Mona_Lisa_LHOOQ.jpg

 

It's a critique of a masterpiece with but one stroke of a brush.

[Quetzlsacatanango]

Take it to congress, I'm sure they will be moved by your eloquence.

[bben46]

Yup, the laws on copyright are thoroughly screwed up. I wish you all the luck in the world in overturning some of the really stupid things relating to copyright I have seen in the last ten years or so. :pinch:

Until you are successful, we will continue to err on the side of caution. :blush:

 

BTW, this is getting far off topic. If you want to continue, I recommend the debate forums. :thumbsup:

[charwo]

Well as I sai earlier, most of those weapons show up in legit mods. Most of the textures are on file too. There's a MacCready outfit in the bowls. I need to make a jeep mod and do a 1800general commercial parody...

 

....Wha?!