A weird loophole?

[ggambett]

A while ago when discussing the release of the Quake3 engine as GPL, someone said "if you release your source code as GPL then someone can grab your code, recompile it, and offer a download that includes his binary and your freely distributable demo (or a link to it) which contains the assets, and sell it legally".

That got me thinking. You don't need the code to be GPLd to do that! For example, games by PopCap have their resources in a folder. So what stops people from just reimplementing the game from scratch, using all the assets from, say, Bejewelled? You have all the content (which is the hard part in a Match3 game, right?), you even have the gameplay, it's like having a dream design document - you can actually play it!

No, I'm not planning to do this. It's just a theoretical question. What do you think? Is this the definitive argument against leaving your assets unprotected?

[Raptisoft]

Lol... my time is worth more than that.

Hm... spend $19.99 or spend a month and a half redeveloping the game?

That's like Chinese sweatshop prices... six cents an hour!

[soniCron]

No, I'm not planning to do this. It's just a theoretical question. What do you think? Is this the definitive argument against leaving your assets unprotected? I think the difference is that you'd have to know how the resources are stored. With a GPL'd game, you've got the code to load the files already written. I don't have any PopCap games installed at the moment, but if the assets are just sitting freely on the drive, I can't see anything stopping someone from doing that. On the other hand, I've been known to open Reflexive's data file and rip out the music so I could listen to it in Windows Media Player whenever I want. (James, is that ok? I'm not sharing it with anyone else! :o)

My wife showed me a site the other day, and while it was nothing more than one of the billion spammy ugly free Flash game sites, I really got a good look how widespread this blatant asset theft has spread. And I'm not really sure if this is a Good Thing or a Bad Thing. None of the games were of any real quality (they looked like doo), but, as an artist, I'm sure it's nice to have a 14 year old like your background music enough to put it in their little game, albeit illegal.

Tough call, but it's certainly happening already. (Though, not legally.)

[Kai Backman]

IANAL. But no. It would be clearly illegal. This is how I have it set up, and I assume id has something similar. You are mixing two different and incompatible licenses.

1. Quake3 the game that includes all the content. Licensed under a standard EULA that prohibits reverse engineering, redistribution and a host of other things.

2. Quake3 engine source code. Licensed under GPL.

The demo for all downlaodable games I know is freely distributable as long as nothing is changed. Adding your own binary on top of that is clearly changing. Yeah, yeah, you are just "adding" stuff. But it's still changing and is thus illegal.

If what you said was true then you could rip anyones assets for anything, which clearly isn't true. A bit of common sense is always good. If something sounds really improbable, it usually is .. ;)

[soniCron]

The demo for all downlaodable games I know is freely distributable as long as nothing is changed. Adding your own binary on top of that is clearly changing. Yeah, yeah, you are just "adding" stuff. But it's still changing and is thus illegal. That's the thing: you don't have to change anything. Just distribute another binary next to the original install. You won't be changing the install, modifying any data, or anything of the sort. But you can subsequently ask the user to install another file (perhaps a free "upgrade?") that is the new binary, which uses the assets now already existing on the hard drive. Nothing illegal going on here, and you get a "free" version.

However, I think the thought is in err here, in that you'd be spending quite a bit of time reprogramming the game to use someone else's assets. With GPL'd code, you wouldn't even have to reprogram it, so the barrier of entry is almost nil. Strip out the copy-protection code, and you've got the full version. It's not that simple if you're actually programming the whole game from scratch. So, it's possible, but far less likely to happen.

[ggambett]

To clarify. When the user buys Bejewelled (from me) he gets an email with a download link to download the Bejewelled demo, and a second download link to download my binary. If the Bejewelled demo's EULA allows redistribution, this would be legal, right?

I specifically mentioned PopCap's games because the files are stored in a perfectly accessible folder. So there's absolutely no reverse engineering, not even of an archive file format.

[ggambett]

However, I think the thought is in err here, in that you'd be spending quite a bit of time reprogramming the game to use someone else's assets.
I'm not considering whether it does business sense or whether it's morally OK - just if it's legally OK. Just a thought experiment :)

[Kai Backman]

That's the thing: you don't have to change anything. Just distribute another binary next to the original install. You won't be changing the install, modifying any data, or anything of the sort. But you can subsequently ask the user to install another file (perhaps a free "upgrade?") that is the new binary, which uses the assets now already existing on the hard drive. Nothing illegal going on here, and you get a "free" version.


Again IANAL, but this is plain wrong and both of you are being stubborn witn this nuts idea.. :) You are confusing technical feasibility with legality (and incidentally owning and licensing). When you receive or purchase a game you don't own those assets, you only license them. The license you have been granted does not let your executable use those assets. Even if the bytes physically reside on a HD you own, you don't own the IP those bytes represent. Just loading them into your second exe is illegal. Source code or not.

If the original argument was true you could grab some demo from say Blizzard and do the same thing. This is plain silly. Sit down and think it through, it must be silly. If you two still don't believe me, do this trick with a product from Blizzard. Then write an email letting them know what you done and wait for them to send some nice people to really explain it to you .. ;)

[ggambett]

Even if the bytes physically reside on a HD you own, you don't own the IP those bytes represent. Just loading them into your second exe is illegal.
So it's also illegal to open an Explorer window and look at the graphics files using the thumbnail view? Explorer is also an EXE which loads these same bits.

I know this must be wrong or illegal. I just can't figure out where!

[milieu]

So it's also illegal to open an Explorer window and look at the graphics files using the thumbnail view? Explorer is also an EXE which loads these same bits.

I know this must be wrong or illegal. I just can't figure out where!
The difference is distribution. Once you have a license for a product (whether through purchase or freely available), you can do just about anything to it in the privacy of your own home. Light it on fire. Reverse-compile it. Play it backwards and listen for Satanic messages.

But this changes if you attempt to distribute those bits, by posting them online or selling them on a CD. You don't have a license to distribute the copyrighted materials, so you're now committing copyright violations.

I would suspect that replacing the exe could be considered a derivative work, which is also protected by copyright. If a second exe is stripping away copy-protection, then it probably violates the DMCA (http://en.wikipedia.org/wiki/Digital_rights_management) in the US.

[Hiro_Antagonist]

If you sold, or gave away, the ability for people to play a popcap game indefinitely without buying it, you are violating their copyright and causing them actual damages. You can (and should) be sued under those circumstances, because you are costing them money in a deliberately malicious manner.

Looking at the graphics in explorer isn't at all displacing sales of the game. Making a clone that uses their copyrighted materials very much would.

To be honest, I don't follow your logic at all as to how it would be okay to rip off popcap or any other company in this (or any other) manner...

Of course, I ANAL.

-Hiro_Antagonist

[Pyabo]

This is clearly a case where that "common sense" tool I mentioned in the previous thread comes in handy. :)

Just because a demo game is freely distributed by PopCap (note, by PopCap, not by you), doesn't give you license to use the images in any way.

[soniCron]

If you sold, or gave away, the ability for people to play a popcap game indefinitely without buying it, you are violating their copyright and causing them actual damages. How is this a violation of their copyright? If the user installs PopCap's game onto their own computer, they can do whatever they want with the data, provided they don't redistribute it. Now, consider this:

Bejeweled, FREE!

Download Bejeweled (notalink)
Download Security Update for Bejeweled (notalink)

Instructions: Download and install "Download Bejeweled."
Download and install "Download Security Update for Bejeweled."
Enjoy!


Now, this may be wrong, but in what manner is this illegal?

[cliffski]

this is another reason why lawyers cause so many problems. Anyone with any common sense would say that this is illegal, yet you will always find some slimey-ass lawyer who would argue that its not. This is why we need systems that work with the spirit, rather than the letter of the law. That goes the opposite way too, copyright is clealry not intended to prevent you making personal backups of dvs or games.

[soniCron]

this is another reason why lawyers cause so many problems. Anyone with any common sense would say that this is illegal, yet you will always find some slimey-ass lawyer who would argue that its not. I disagree. I think it's wrong, but hardly illegal. Is it illegal to open a Quake 3 PK3 datafile with WinZIP? Should the makers of WinZIP be fined for such a thing? Should I?

[milieu]

Download Security Update for Bejeweled
[snip]
Now, this may be wrong, but in what manner is this illegal?If this "security update" removes copy protection, then it's illegal in the U.S. under the Digital Millenium Copyright Act (DMCA). It's illegal again to distribute such a program.

The end-user is not the one who will be charged. The person who created and hosted this program could face civil and criminal charges. From my brief reading of the act (available at this link (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ304.105.pdf) ):

Section 1201 of the DMCA covers "Circumvention of copyright protection systems", and also includes distribution:

‘‘(b) ADDITIONAL VIOLATIONS.—(1) No person shall manufacture,
import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,
that—
‘‘(A) is primarily designed or produced for the purpose
of circumventing protection afforded by a technological measure
that effectively protects a right of a copyright owner under
this title in a work or a portion thereof;‘‘(a) IN GENERAL.—Any person who violates section 1201 or
1202 willfully and for purposes of commercial advantage or private
financial gain—
‘‘(1) shall be fined not more than $500,000 or imprisoned
for not more than 5 years, or both, for the first offense; and
‘‘(2) shall be fined not more than $1,000,000 or imprisoned
for not more than 10 years, or both, for any subsequent offense.The act also allows civil lawsuits of up to $2500 per violation. So you serve the ISP and the person posting the patch, you get their server logs, and you sue for that much per download. If you need extra money, go download it a couple more times before filing.

Yes, this is a US law, and someone could host it elsewhere. But more and more countries are adopting similar laws. Most ISPs do not want to mess with DMCA violations because they can be held liable as well if they knowingly allow a violation to continue, i.e., by hosting the person's site.

So now this patch is down to being hosted on some backwoods server in China. How many of your customers will be downloading a mysterious EXE from Shanghai and running it on their computer to save $20?

[Matthew]

I think the original point wasn't about a patch to remove copy protection, but rather creating a new .EXE that mimics the functionality of a game (and uses the assets of a game as originally installed by it).

IANAL, either, but my understanding is that the illegality here stems from copyright infringement. In particular, copyright owners have exclusive rights governing the distribution and performance of their material. This could be construed as a performance.

Additionally, vicarious copyright infringement if you are profiting by doing this.

[Robert Cummings]

Again IANAL, but this is plain wrong and bothno offense but to most people you look like an idiot saying "I ANAL". I know you're aware of this but I suggest you stop saying that.
IANAL, either,

I don't know what it stands for but it isn't something you want to keep saying bacause frankly it's silly no matter how you look at it. Like I said, I'm not out to get you. Thats my impression. You both sound like idiots.

[Robert Cummings]

Now, this may be wrong, but in what manner is this illegal?

You're not purchasing the software, you're purchasing the right to use it. Wake up. It's a license.

So yes, circumventing that without paying for it, is illegal.

[ggambett]

I don't know what it stands for"I Am Not A Lawyer"

In particular, copyright owners have exclusive rights governing the distribution and performance of their material. This could be construed as a performance.Thanks for an actual reply to the argument, at last :) I didn't think about the "performance" issue, but it may be the relevant factor here.

If this "security update" removes copy protection, then it's illegal in the U.S. under the Digital Millenium Copyright Act (DMCA). It's illegal again to distribute such a program.You don't remove copy protection, you don't distribute a modified version of the program, and you don't even distribute the unmodified program. You give the user an EXE you made 100% yourself, and tell him "go download the Bejewelled Demo".

This is clearly a case where that "common sense" tool I mentioned in the previous thread comes in handy.I know, dammit! I personally think anyone attempting to do what I described is quite stupid and is looking for trouble, to say the least. It's common sense, I agree. But I proposed this as a thought experiment only if you like, the idea soniCron introduced in the Quake3 thread got me thinking. So assume I'm in fact stupid and/or suicidal. What's the specific law that makes this illegal?

Just because a demo game is freely distributed by PopCap (note, by PopCap, not by you), doesn't give you license to use the images in any way.So, as I said above, is it copyright infringement to see these images which the installer leaves in a folder with Windows Explorer? Is it illegal to see these images with an image viewer such as ACDSee? Is it illegal to see these images with a program I made?

[milieu]

You don't remove copy protection, you don't distribute a modified version of the program, and you don't even distribute the unmodified program. You give the user an EXE you made 100% yourself, and tell him "go download the Bejewelled Demo".
OK...what does the EXE do? It allows access to copyrighted materials that would not normally be accessible to the user. If the immediate purpose of the EXE is to allow someone to play Bejewelled beyond the amount allowed by its creators, avoiding the time limits or content restrictions they dictate, then it is a copy-protection circumvention device.

The fact that it is posted on a web site advertising "Free Bejewelled!!" and telling the user to download the demo would be evidence of this to any court. It's obvious the software has only one purpose: to allow people to play the game without paying for it. DMCA violation.
So, as I said above, is it copyright infringement to see these images which the installer leaves in a folder with Windows Explorer? Is it illegal to see these images with an image viewer such as ACDSee? Is it illegal to see these images with a program I made?No. Copyright controls the rights to duplicate or distribute a work. Looking at is not distribution or duplication.

If the image is somehow protected by some tricky technology that requires $20 each time you look at it, and you create a program that gets around their protection, then yes, you are violating the DMCA. However, if you do not distribute that program, it is very unlikely that you could be charged, both from a practical sense (how would anyone know you had this program?) and because the DMCA does not make possession of copy-protection circumvention tools illegal. It is distributing such a tool or method that is illegal.

[ggambett]

OK...what does the EXE do? It allows access to copyrighted materials that would not normally be accessible to the user.Except in this case they ARE normally accessible to the user. They're graphic files in standard formats, sitting on a folder.
No. Copyright controls the rights to duplicate or distribute a work. Looking at is not distribution or duplication.I don't duplicate the files and I don't distribute them. I tell the user "obtain them legally and put them legally in a folder". Then my program lets the user look at them. Sure, they move and there are sounds and high scores, but technically it's still a program that lets you view pictures stored in a folder in a standard format with no reverse engineering whatsoever.
If the image is somehow protected by some tricky technology that requires $20 each time you look at itIt doesn't... I specifically picked an example where the images aren't technologically protected at all. Not even inside a zip file!

[milieu]

There is only one good way to find out. You need to make this program, then report back to us on what they charge you with. ;)

[Anthony Flack]

Is everyone finally clear on what it is that Gabriel has suggested? It's an interesting point; nothing that I'd expect to see cause a problem any time soon, but it's still interesting.

[Hiro_Antagonist]

Is everyone finally clear on what it is that Gabriel has suggested? It's an interesting point; nothing that I'd expect to see cause a problem any time soon, but it's still interesting.
I believe it's been clear from the beginning what he's suggested, and it's still a violation of copyright law...

It's certainly *technically* possible to do what he's saying. And if you did it for personal use only, nobody would ever find out (though it would be an insane waste of time, short of teaching yourself programming.) But if you were to sell or give out the ability to use copyrighted images used outside their terms of use, you could definitely be sued, and the plaintiff would have strong legal footing on several points, at least within the US.

@Robert Cummings: Sorry you don't like it when people say IANAL (I am not a lawyer), but it is common practice, and I believe US law, to clarify whether or not something that could be construed as legal advice is coming from a lawyer. Either way, what exactly are you bringing to the table by berating people who use it? I don't want to be combatative -- I'm only trying to *stop* what seems to be pointlessly combatative behavior on your part. Peace, please. =)

Oh yeah, IANAL. My (rather limited) knowlege comes purely from my journalism/IP law classes back in the day (which I did pay rather close attention to) and generally following copyright law as a concerned maker of IP. As always, check for yourself before believing anyone except a lawyer, who can be sued for malpractice if they give wrong legal advice.

-Hiro_Antagonist

[soniCron]

It's certainly *technically* possible to do what he's saying... But if you were to sell or give out the ability to use copyrighted images used outside their terms of use, you could definitely be sued... Again, how is this different from Windows Explorer displaying the images in the folder? It's certainly giving the ability to the user to circumvent PopCap's terms of use.

[mahlzeit]

To add to the confusion, copyright law usually provides certain exceptions to the terms of use. So it certainly may be that you're allowed to modify these files for your own use or whatever, no matter what the license claims. But this all depends on where you live and what laws you're supposed to obey. (For example: downloading mp3's is legal in my country. Har har.)

[Ricardo C]

Again, how is this different from Windows Explorer displaying the images in the folder? It's certainly giving the ability to the user to circumvent PopCap's terms of use.

Viewing a file is very different from incorporating it into a piece of software ('using').

I'm not exactly fond of reading EULAS, but isn't there usually a bit about "the code, artwork, and music contained herein (collectively known as 'the software')..."? Using any part of 'the software' is a copyright violation.

There's no denying that the scenario in question is possible, but it would be 1.) a lot more work than simply setting up a portal-like page in Russia or Asia and illegally selling the games, 2.) just as easy to prove illegal. There's a reason no one's doing it, you know. If you have to actually develop a game in order to pirate another, it kinda defeats the purpose of the quick and easy bootlegging operation ;)

I'd rather worry about actual forms of piracy and not convoluted 'what if' cases.

[Anthony Flack]

It wasn't suggested that this was a serious problem to worry about though. It was proposed as a thought experiment, a "what's wrong with this picture?" scenario.

[Ricardo C]

Nothing's wrong with it, as it's not a real loophole ;)

[Mike Wiering]

I was thinking about something similar: suppose I write a music score printing program, would it be okay to let it use existing fonts installed by (demos of) other music programs if detected? It would have its own font, but hint the user that they could improve print quality by also installing Finale Notepad or the demo of Sibelius for example. Many users would already have tried demos of several other music programs before and have usable fonts on their system (browsing through my fonts, I see that I have at least 9 fonts with musical symbols from programs I've tried out in the past).

[James C. Smith]

It would be a more interesting “thought experiment” if you coded your own game from scratch (as you suggested) but also included your own art and sounds. They could be stick men pencil sketches. But then you add an option to “import” alternate “skins” for into the game and your “skin” format happens to be very similar to the art assets used in PopCap’s game. In other words, you game looks like crap, but has an option to use PopCap’s art if it happens to be installed.

Obviously I think this is immoral and wrong and should be illegal but I am not sure how or if it is illegal. But it sounds like it probably is illegal under the DMCA. It sure seems like you would be “circumventing protection” of PopCap’s game. Even if it doesn’t modify PopCap’s game in any way, and it doesn’t disable their DRM, it does circumvent their DRM. They tried to protect their game with a one hour trial period, and you made a program that make it seem like you are playing their game (and actually are using their assets) beyond the 1 hour limit. The user may not technically be running the game PopCap wrote, but it sure seems like they are. You are circumventing their protection.

Another more interesting thought experiment would be to not clone their game play at all. Make a breakout game or some other game that PopCap never made. But give it an option to “import” some assets from a PopCap demo that make your breakout game look better. Picture a breakout game with “bricks” that looks like the balls in Zuma. But of course you don’t distribute that artwork. You just use it if it is available on the end user’s computer.

[Rainer Deyke]

I think the question of legality comes down to the terms of the license of the demo. If the license of the demo (explicitly or implicitly) says that you can't use the artwork that way, then (legally speaking) you can't, and any third party program that does this is aiding copyright violation.

[princec]

I don't see anything wrong with reverse engineering and grabbing graphics out of someone's demo. So long as you don't ship the actual graphics with your home-built engine you break no laws, moral or legal, afaics.

I mean, come on, seriously - how is it a genuine threat to your businesses?

Cas :)

[Pyabo]

From the Feeding Frenzy EULA:

SOFTWARE LICENSE

The Software is confidential and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.

GRANT OF LICENSE. This EULA grants you a non-exclusive, non-transferable and non-sublicenseable license to install and use a copy of the Software for your personal non-commercial home entertainment use on one personal computer or personal digital assistant.

OTHER RIGHTS AND LIMITATIONS.
* No Commercial Use. You may not use the Software for any commercial purpose, including:
a) distribution (electronically or otherwise);
b) resale;
c) rental;
d) lease;
e) display; or
f) offering on a pay-per-play, coin-op or other for charge basis.


And then



TRIAL VERSIONS. If the Software was provided to you for trial use for a limited period of time or number of uses, you agree not to use the Software following the expiration of the trial period. You acknowledge and agree that the Software may include code designed to prevent you from exceeding these limits, and that such code may remain on your computer after deletion of the Software in order to prevent you from installing another copy and repeating the trial period.



Now then... is the "thought experiment" over? Clearly, the graphic files are PopCap's IP, and part of the software which is limited in use.

If you still think there is any way, shape, or form that this idea would be legal at all... you are just being stubborn.

[luggage]

Actually there's nothing in the quotes there that go against the thought experiment from what I can tell.

The game is installed as per the license and nobody is selling the artwork. And so long as you don't run the game and therefore not run the trial license down I don't see how you break the terms of the license.

Surely it must be illegal but I can't see how.

[mahlzeit]

Just because it's in the license doesn't necessarily mean it's valid. Often local law grants you certain rights that can't be waived. Copyright law grants many exceptions for special uses. I'm not saying that this thought experiment falls under the same exceptions, but it might. Not that we'll ever find out from this discussion, since none of us here are lawyers. :)

[Pyabo]

<sigh>

This is ridiculous.

You're like those people who stubbornly believe that the US federal government doesn't actually have the right to collect income tax.

Maybe it's NOT the lawyers that are the problem with our legal system. :|

[Omega]

As somebody who knows somebody who just started law school, let me add some thoughts. Don't read the law literally. Watch any of the judge shows. They all rule on common sense, not letter of the law. Their goal is to find the best answer. Remember, judges don't make the laws. Legislature does. Do you really think Judges will take every single word literally? No! They just know what they're talking about and they have seen 10,000 previous cases and they have worked as lawyers and so they know the questions to ask and how to rule in most every situation.

Many judges have no understanding of what a computer is. (Judge Judy said she has no idea about computers.) But she simply rules with common sense.

Having said that, I think it is very important to spread FUD about the GPL, whether it is true or not, that says "The GPL allows you to do this, this, and this." That way, it will change people's beliefs about what the GPL is, and the media should also support the definition of the GPL being okay to rip-off. What do you think?

[Pyabo]

luggage, I will spell it out for you: The PopCap license, which must be agreed to before you install the game, includes a clause that the software is LIMITED based on time or number of plays. The art is part of the software being licensed. Hence, if you download someone else's executable and use PopCap's art, you are violating the limited use clause in the license. You might as well just download a crack for Bejeweled, or whatever. It's the same thing, both legally and morally.

And Omega is correct... it's a judge's job to interpret the law. Any sane judge is going to uphold copyright law, despite you thinking there is some sort of loophole here. You are using someone else's copyrighted material in a way it was not intended. Period.

Incidentally, anyone still thinking this "loophole" might be legal should also check out this web site:
http://www.taxfreedomnow.com/

[princec]

Pyabo,
there is something that you have not taken into consideration, which is that an EULA has never been shown or proved to be enforceable, on account of many different discrepancies or illegal clauses in various territories etc. I myself take EULAs with a pinch of salt; if I've not signed a contract, I don't consider myself bound by any agreement.

Cas :)

[luggage]

So you're saying it's only illegal because of the "limited use" clause in an EULA?

What about these points...

If the Software was provided to you for trial use for a limited period of time or number of uses, you agree not to use the Software following the expiration of the trial period.1) As I said, the trial period doesn't expire. If their exe is never run then the trial period doesn't get affected presuming it's the usual 60 minute effort. Or are you saying you should self regulate it? If so then that opens up a whole can of worms like the following points...

2) If you spend 60 minutes reading the readme (which would also be included under the EULA) then should you never even run the game?

3) Once the trial period is up then uninstalling could be considered 'use' of the software?

4) Most trial periods allow you to run the game once they've expired so you can go through the Buy process or play a little 2 minute snippet - have these broken their own EULA?

5) Am I allowed to view any of the files once the trial period is up using notepad, IE, image viewers, etc?

6) So you'd think this would be legal if the customer paid for their version of bejeweled and used non-trial versions?

[Anthony Flack]

Remember, Pyabo, this is just a game, an intellectual exercise. We know it's wrong; we're asking is it illegal? And why, exactly?

And then there was that real-world example with the music software...

[Pyabo]

EULA has never been shown or proved to be enforceable, on account of many different discrepancies or illegal clauses in various territories etc. I myself take EULAs with a pinch of salt; if I've not signed a contract, I don't consider myself bound by any agreement.


Guys, one thing I would like to avoid doing in this "thought experiment" is ruining the Shareware/demo model. If people actually started doing something like this, what would it do to PopCap and other Indie developers? It would certainly kill everyone's incentive to release demos.

The EULA is not required to enforce copyright; I simply posted that to prove that PopCap's license explicitly prohibits Gabriel's original loophole.


Here's where I think the basic misunderstanding is occuring, for those of you who still don't see that this is definitely illegal: All of your arguments only work under the assumption that ART and EXECUTABLE CODE are somehow protected by different copyright laws. This is absolutely NOT the case. You seem to think that just downloading the art in a demo game gives you the right to its use. This is not the case. Why would it be OK to use the art, but not the executable? This (incorrect) assumption is what leads to the idea that there is a loophole here.

The original suggestion by Gabriel is legally the EXACT SAME THING as simply making a crack available for a game. People have certainly made arguments that game cracks are legal... maybe they were correct until the DMCA came along. But people using the crack to play a game without buying it are definitely doing something illegal, DMCA or not.


OK, let's take things a step further now... Instead of Bejeweled, let's say I downloaded the demo for Exile: Escape from the Pit, Spiderweb Software's classic RPG. Every feature of the game is pulled from data files (maps, character dialog, monster stats, equipment info) that are included in the demo. Now, what if I made my own executable that read all these files and implemented the game mechanics in the same way as the original game... but didn't include the demo lockout. Is this legal? Well, it's the same situation isn't it? But NOW... what if, instead of seperate data files... I packed all the data into a resource bundled in the EXE. Now my new executable has to plunder the copyrighted EXE to get all that data out. Is this any more legal or illegal? But WAIT! If I'm going to plunder the EXE for game data... well hell, why not just go ahead and rip out the game code too? That way all I have to do modify the demo lockout bits and I can use all the original code! Voila! (ie, a game crack)

Can we all agree that that last exmple (using original EXE code) is DEFINITELY illegal? If not, I don't think there's really any more to discuss. So, given that this is illegal, what is the difference between ripping out code and ripping out resources? I propose that there is no difference, and both are a violation of copyright. Now what if the resources are in seperate files? Are they suddenly vulnerable? No, they are still protected by copyright! There are not two different things here... both executable code and game resources are part of the software package and are protected. The fact that a company is allowing you to download a DEMO does not give you license to use their resources however you like.

[luggage]

Instead of Bejeweled, let's say I downloaded the demo for Exile: Escape from the Pit, Spiderweb Software's classic RPG. Every feature of the game is pulled from data files (maps, character dialog, monster stats, equipment info) that are included in the demo. Now, what if I made my own executable that read all these files and implemented the game mechanics in the same way as the original gameYou mean like the perfectly legal ScummVM?

[princec]

A couple of posts ago it was mentioned: what if I were to open any of the files in Notepad? The files are still on my harddrive. My hardrive belongs to me, and in fact, everything on the hardrive belongs to me, whether I paid for it or not. Similarly the contents of my house are all mine. If you want to take something back, you'll have to come round and ask (and I'll say no ;))

The thing is: as a shareware developer you are giving some of your content away - the executable bit may not access all of it all of the time but once it's downloaded, it no longer belongs to the developer, it's data on someon else's system. You rely on good faith, not copyright, to make money. The way I see it is, if someone comes into possession of something, it's theirs, possession being 9/10ths of the law and all that. EULA be damned.

You will be perfectly entitled under copyright laws to prevent someone redistributing this data. That's how copyright works. EULAs are a fiction invented in recent years - if there's nothing signed, there's no contract, and there's no weight in law. Well, here in the UK, at least. Oz might have some problems but they've got some funny ideas about IP down under.

Cas :)

[luggage]

Just out of interest Cas, and it's kinda going off topic, but have you read the stuff about Blizzard and the bdnet business? Blizzard won the case and it was found that the EULA was enforceable.

[ggambett]

But NOW... what if, instead of seperate data files... I packed all the data into a resource bundled in the EXE. Now my new executable has to plunder the copyrighted EXE to get all that data out. Is this any more legal or illegal?That's reverse engineering, which makes for a much stronger case of being illegal. That's why I specifically said "the assets are plain files sitting on a folder".

[Ricardo C]

You mean like the perfectly legal ScummVM?

I doubt ScummVM would be legal if it was promoted as a means of circumventing copyright restrictions. They explicitly state that you need the full versions of the games it supports, and discourage piracy.

[luggage]

You only need a version you're licensed to use - even the demos will play with it.

Besides, isn't that still the point. You're not circumventing any copy protection by generating your own exe. Maybe the new exe is an altogether different game to Bejeweled? It just uses the same resources from a legally available version.

[Ricardo C]

I didn't say copy protection, I said copyright.

[Pyabo]

You only need a version you're licensed to use - even the demos will play with it.

Besides, isn't that still the point. You're not circumventing any copy protection by generating your own exe. Maybe the new exe is an altogether different game to Bejeweled? It just uses the same resources from a legally available version.

No luggage, that totally IS the point. ScummVM does not allow you to play LucasArts games without buying them. Doing so is a violation of copyright. This ENTIRE discussion is all about circumventing COPYRIGHT, not copy protection.

My hardrive belongs to me, and in fact, everything on the hardrive belongs to me, whether I paid for it or not.

I don't agree with this at all... By this logic, if I downloaded the latest Coldplay album, and it's now on my harddrive... it belongs to me!?! This makes no sense.

Let's look at this... What does EULA really mean? It's an END USER LICENSE AGREEMENT. It's an agreement between you and the maker of the software. Boiled down to it's very basics, it says this: "If you agree to these terms, we'll let you try out our copyrighted material free!" You're right Cas, there's absolutely nothing binding you to that agreement... but if you don't agree to it, then you have NO RIGHT to install their demo in the first place! These companies are NOT giving things away free, and this is spelled out in explicit detail in the license!

As for the reverse engineering argument. Let's say I don't use standard image files... I encrypt them somehow. Or maybe I just XOR them with my favorite number. Are they now protected?

[princec]

Yes indeed... I think that they could probably easily appeal that with a competent lawyer but when it's just for fun, who wants to bother?

Cas :)

[Omega]

If I put this inside my html file

<img src='http://www.bigfishgames.com/images/top10downloads.gif'>

then it is legal because I am not actually hosting that file. Right? :rolleyes:

[Anthony Flack]

Guys, one thing I would like to avoid doing in this "thought experiment" is ruining the Shareware/demo model. If people actually started doing something like this, what would it do to PopCap and other Indie developers? It would certainly kill everyone's incentive to release demos.


Nah, it wouldn't. It's a pretty silly idea really, and even if this discussion "proves it legal", I can't see it catching on in a big way. Or even at all.

Besides, releasing demos is a great way to make money. If everybody stopped releasing demos, then that's just more money for the rest of us, because I'm certainly not going to.

And I'm afraid I don't see the distinction as far as ScummVM goes. It's legal, but if it was potentially harmful (like, say, a GBA emulator?) it wouldn't be?

[luggage]

No luggage, that totally IS the point. ScummVM does not allow you to play LucasArts games without buying them. Doing so is a violation of copyright. This ENTIRE discussion is all about circumventing COPYRIGHT, not copy protection.As I said - you can play demos with it so you don't have to buy anything to play. You just need a legally (or illegally) licensed set of data. And you can do this by using the demos. I personally don't see the difference.


Maybe we should just agree that we don't know if it's legal or not? Nobody has yet to quote a law which would definately rule it illegal (even though there's enough posts saying "it's illegal obviously" and all we have is a snippet of a specific EULA.

I played the Age Of Empires III demo yesterday - nowhere in the EULA for that does it say you're restricted in using the trial for a fixed time or amount of uses. Does that mean it's ok? I'd have a license to use that software so surely it's up to me how I choose to use it so long as I don't break that license?

[luggage]

Wasn't there a game a while back that used assets from your hard drive to generate levels? Something about a virus or something?

I presume that was legal yet it didn't seperate what data it 'used' - just whatever was on your drive.

[Ricardo C]

But it wasn't a program designed to circumvent the restrictions set by a demo of another program, which is what the original argument proposed.

[luggage]

"circumventing restrictions" or "writing a different game".

If I add a few different game modes and pickups to the Bejewelled forumla would that be ok? What if it was an entirely different type of match-3 game? Where's the line?

[Ricardo C]

Define ''an entirely different type of match-3 game''.

I believe any game that allowed users to import the demo's media content and allowed unlimited play would be guilty of copyright violation, since the demo's content was released with the intent of it being limited until the full game was purchased.

[luggage]

You could write a Snood style game with Bejewelled's jewels. Would that be ok?

I believe any game that allowed users to import the demo's media content and allowed unlimited play would be guilty of copyright violation, since the demo's content was released with the intent of it being limited until the full game was purchased.This is where it gets into a grey area. The EULA for Age Of Empires 3 doesn't place any restrictions of a time period or limited use. Does that mean, according to your belief, using their data would be legal? After all you have been granted a license to use that data and it's entirely up to you how you use it. Even Popcap's license isn't clear...
If the Software was provided to you for trial use for a limited period of time or number of uses, you agree not to use the Software following the expiration of the trial period.The question is when does the trial period expire?

If the game has a 60 minute trial period does that mean 60 minutes on your drive while not being run? Obviously not. So you could argue the trial doesn't count down unless the exe is run. If you're not running the exe then the trial doesn't expire therefore you don't break the terms of the license.

[James C. Smith]

... But NOW... what if, instead of seperate data files... I packed all the data into a resource bundled in the EXE. Now my new executable has to plunder the copyrighted EXE to get all that data out. Is this any more legal or illegal? But WAIT! If I'm ....

I think you make a very good argument. That make the situation much more clear to me.

[James C. Smith]

The question is when does the trial period expire?


I think a better question is what parts of the game can you “creatively” use in another game during the trial period. You seem to think it may be legal to use some of the art in another game during the trial period. But do you also think it may be legal to use some of the code in another game during the trial period.

If I made a game of my own that imported art from other demos, could I also make my game import EXE code from other demos? I doubt it. Why is the art protected by a different law than the code? It probably isn't.

[luggage]

It would all depend what's in the license surely?

The point about the exe being bundled with the data would be covered by the license stating you can't reverse engineer said exe. The license is the protection here not copyright law.

If you're not breaking the license and you're not breaking copyright law then what law are you breaking by doing this?

Somehow I've found myself arguing the case that it is legal even though I'm not sure whether it is or not. I just don't buy the "it's illegal because it's obvious" argument.

[ERoberts]

ScummVM is not legal. It just seems that none of the IP owners seems to mind.

Remember FreeCraft? Open source, could play WarCraft and StarCraft maps, as long as the user aldready had the art/maps. Was shut down by Blizzard for infringing on IP, as well as for having a too similar name.

[Ricardo C]

Remember FreeCraft? Open source, could play WarCraft and StarCraft maps, as long as the user aldready had the art/maps. Was shut down by Blizzard for infringing on IP, as well as for having a too similar name.

Hopefully this can lay the issue to rest already.

[ggambett]

If I put this inside my html file
<img src='http://www.bigfishgames.com/images/top10downloads.gif'>
then it is legal because I am not actually hosting that file. Right? :rolleyes:I think it is, absolutely. That's how the web is supposed to work. Image leeching maybe immoral and wrong and all that but I don't think it's illegal.

[luggage]

ScummVM is not legal. It just seems that none of the IP owners seems to mind.I'm pretty sure that Lucasarts would get Scumm VM removed if it wasn't legal. It's certainly an easy way to play illegal versions of their games. Is that just an opinion that you think it's not legal or is there some evidence of that?

Remember FreeCraft? Open source, could play WarCraft and StarCraft maps, as long as the user aldready had the art/maps. Was shut down by Blizzard for infringing on IP, as well as for having a too similar name.Firstly the product voluntarily folded after a cease and desist letter - that doesn't make it law. Not sure that's completely correct - you didn't need Warcraft\Starcraft data to use it - it was just able to make use of them. The primary reason given was for a similar name - it would cause product confusion. It then tacks on "also some of the ideas within the engine were too similar to WarCraft 2" which doesn't neccessarily mean it's anything to do with the usage of data.

In fact the project is still going under a different name - Stratagus. It also has a game available for it called Wargus (http://wargus.sourceforge.net/). Which is exactly what we're talking about. I guess you could argue that either it's a) legal or b) under Blizzards radar but you'd think Blizzard would keep an eye on the situation seeing as they've shut them down once.

[Pyabo]

It would all depend what's in the license surely?


No! You are still misapplying copyright law. Creative works are inheritly copyrighted by their authors. You don't need to sign a contract when you buy a book at a bookstore... But it's still illegal to reproduce an author's work. You don't need to agree to the EULA in order to be bound by copyright law.

In your example of just not running the executable, you are still using the software if you're using the image files. In fact, installing the software at all requires agreement to the license. If you don't agree to the license, you have no rights to the software. Your argument is stills seperating the images and the executable as if they are protected in different ways, and this is not the case.

[luggage]

You don't need to sign a contract when you buy a book at a bookstore... But it's still illegal to reproduce an author's workAnd in this case you're not reproducing anything. Copyright law doesn't protect you from this - I just can't see how it does. What part of installing another exe to a legal and licensed version of software is covered by copyright law? You're not copying anything. You have to make copies to break copyright law.

Copyright doesn't protect you from having modifications made to the exe. You can happily apply cracks to games and not be breaking copyright law. You can reverse engineer to your hearts content and not break copyright law. You can rip every page out of your book and paste them all over your house and not be breaking copyright law. You can read your book from back to front and not be breaking copyright law.

If you haven't broken copyright law and you haven't broken the license then how is it illegal?

[princec]

There is still the issue of whether any such license is legal in the first place. It is fair to say that if the supplier offered you their data with no strings attached from their site (Download Now!) the moment it's on your harddrive it's yours to do as you please with, within the bounds of copyright law.

Cas :)

[Ricardo C]

And in this case you're not reproducing anything.

You're creating a derivative work using the original developer's IP.

[princec]

You are free to create any derivative works you like in the privacy of your own home and harddrive. Copyright protects the authors from you distributing the derivatives.

Cas :)

[Ricardo C]

Then the case is moot, and poses no risk to our business ;)

[Anthony Flack]

But you are allowed to distribute your original part of the derivative work, allowing people to recreate the derivative work for themselves.

(I don't think it poses any risk either way)

[ERoberts]

But you are allowed to distribute your original part of the derivative work

No, you're not.

[luggage]

What? Of course you are! How can anyone stop you from distributing your own piece of legal original work?

[ERoberts]

If it is derived, you can't distribute it. Violation of copyright, see.

[luggage]

You're missing the point - the exe isn't derived. It's carefully hand crafted with original code.

This thread is becoming too much like hard work. Too many misunderstandings. I think it's fair to say nobody is sure why it's illegal or if indeed it is.

[Pyabo]

You're right, this thread is becoming too much hard work.

The bottom line is this: the original idea hinged on a misunderstanding of copyright law, namely the assumption that a demo version of a game is theirs to do with as they please. This is not true, and it's the crux of the matter. That's all there is to it.

[princec]

The Law is fully aware that an unenforceable law is no law at all. So stop me from doing what I want with my demo versions if you can.

Cas :)

[luggage]

You're right, this thread is becoming too much hard work.

The bottom line is this: the original idea hinged on a misunderstanding of copyright law, namely the assumption that a demo version of a game is theirs to do with as they please. This is not true, and it's the crux of the matter. That's all there is to it.Dear God. If you don't make copies of a product then you cannot be breaking copyright law.

Copyright law has nothing to do with this situation.

I can reverse engineer an exe, I can apply cracks to an exe and I'm not breaking copyright law. How on earth can viewing legal data be breaking copyright law? It is not copying anything!.

So long as I don't make copies and distribute them then copyright law has nothing to do with this.

Please Pyabo, explain to me how loading a legally aquired image in an image viewer is breaking copyright law.

How about this seeing as you seem fond of the book analogy. If I buy a book then it's covered under copyright law yes? Now if I take that book home and tear every single page out and stick them to my walls am I breaking copyright law?

[luggage]

I guess emulators are quite close to what we're talking about eh? They use somebody else's data AND code. And they're legal - http://www.gameboy-advance.net/site/sony_connectix.htm.

[Pyabo]

Please Pyabo, explain to me how loading a legally aquired image in an image viewer is breaking copyright law.


In the original scenario, it's NOT a legally acquired image. This is the flawed basic assumption which I mentioned.

Cas, I find your attitude somewhat surprising, coming from a game developer. You seem to agree that it's a violation of law or the user agreement, but you're going to do it anyway because no one can stop you? That's pretty much what drives software piracy... it's easy to do, and the repurcusions are non-existent for individuals. Obviously, choosing to BUY software is a personal choice these days.

OK, I think I'm done with this thread... we seem to be going around in circles now.

I hope I've been able to convince at least ONE person. :)

[Anthony Flack]

You still seem to think that some of us are actually going to do this. Nobody is going to do this. Cas has a great artist partner, why would he bother?

[princec]

Indeed, why would I bother, when I prefer writing my own weirdy games in the first place :)?

What I'm saying is, basically, I have become increasingly worried by the entire concept of "digital rights". I believe that once something's on my harddrive, it's mine to do as I please with, and at no point did I formally agree otherwise and I believe it should even be illegal to attempt to waive what I believe to be one of my statutory rights. Which means if I download a demo of a game and feel like writing a bit of code that patches the executable or even a reverse-engineered game from scratch so I can play the full game and even distribute that patch I do not believe that I break any copyright laws. However I do believe that whether I agreed to a license or not there are almost certainly some laws that frown upon redistribution of such an executable (in other words there is probably already a precedent set in law, and the law tends to take a dim view of things which are done to rip someone off one way or the other). But whether that is the truth or not I still actually believe in my right to write my own code from scratch and distribute it, whatever it does (except malware - for which there are definitely laws concerning its distribution).

I don't think the thread's going in circles, it just seems that you disagree. But that's my standpoint and I don't think anyone's going to argue me out of it. Patch Ultratron to your hearts' content - I believe it is your right to do so. Hell I've even given the source away to make it easier.

Cas :)

[luggage]

In the original scenario, it's NOT a legally acquired image. This is the flawed basic assumption which I mentioned.Downloading the official version of the game from the official website isn't legally aquired now?

Which means if I download a demo of a game and feel like writing a bit of code that patches the executable or even a reverse-engineered game from scratch so I can play the full game and even distribute that patch I do not believe that I break any copyright laws.You're right - this doesn't break any copyright law at all.

[princec]

Downloading the official version of the game from the official website isn't legally aquired now?

You're right - this doesn't break any copyright law at all.
However redistribution of that patch can be seen by the courts to be specifically damaging to someone else's business and this has been ruled on several times in the past in several different territories, and I don't think the perpetrator of said patches/reverse engineered executables etc. have ever actually won. Usually I suspect because they don't have the money to defend themselves properly.

Consider the mod chip makers for Xbox or PS2. What they're doing is entirely benign in my eyes (and let's face it, a very, very limited market) and I believe that Microsoft and Sony going after these guys probably hurt Microsoft and Sony more than helped them. However as the hardware is specifically sold at a loss and the business model is designed around selling games to run on that hardware the courts have, perhaps unbelievably unfairly, slapped 'em in irons.

Cas :)

[Ricardo C]

However redistribution of that patch can be seen by the courts to be specifically damaging to someone else's business and this has been ruled on several times in the past in several different territories, and I don't think the perpetrator of said patches/reverse engineered executables etc. have ever actually won. Usually I suspect because they don't have the money to defend themselves properly.


...Or because they are indeed violating copyright law. A crack eliminates the restrictions put in place by the copyright holder, effectively nullifying the original developer/publisher's rights to control distribution of their IP.

[princec]

No, that is not the case. A photocopier eliminates a publisher's ability to restrict the use of the IP that is a book. Or even a scanner & computer combo. Or even... a dedicated monk with a pen and paper. You will not see the manufacturers of photocopiers or abbeys full of inky monks served with a cease and desist order for breaking copyright laws.

Cas :)

[Ricardo C]

No, that is not the case. A photocopier eliminates a publisher's ability to restrict the use of the IP that is a book. Or even a scanner & computer combo. Or even... a dedicated monk with a pen and paper. You will not see the manufacturers of photocopiers or abbeys full of inky monks served with a cease and desist order for breaking copyright laws.

Cas :)

Because the copy machines and ink pots were not explicitly designed to break copyright, just as knives are not manufactured with the explicit intent of harming people.

A crack's sole function is to circumvent a restriction put in place by the developer/publisher, which does make it illegal.

[luggage]

A crack is illegal - it breaks the DMCA. It does not break standard copyright law.

[princec]

We don't have the DCMA in Europe btw... cracks are not illegal over here, either, until someone takes it to court and makes the distribution of the crack illegal.

Cas :)

[Pyabo]

Downloading the official version of the game from the official website isn't legally aquired now?


You just refuse to understand this... You DO NOT OWN assets you download in a demo versionm, despite what Cas likes to believe, and despite the fact that it's free. How many more times can I say it?

And no, Anthony, I'm not under the impression that anyone is actually going to do this, least of all Cas.

The legality of cracks is a moot point... it's the end user that's violating copyright law if they don't legally own the game. Likewise, in Gabriel's original loophole scenario, it's the person using PopCap assets without paying for them that is violation copyright law... not the person who wrote the new executable.

[luggage]

--Edit--

Scratch that lengthy post, I think it's best to just agree to disagree. I think me viewing Popcap's assets in another program, like Photoshop, does NOT break copyright law. You clearly do.