Gah, at this point I can either launch into a philosophical argument about what exactly a mod tool is or just start jabbering about a research paper I posted a few months ago on copyright law and mods.

There is no legal foundation to presume they have some intrinsic right to a product someone has created by changing their original game. There is nothing outside of a contract the user signed confining their rights. Copyright law literally does not have an answer to this question. I don't see why anyone would be in favor of allowing a large group of people to be disenfranchised just because they chose it when they made the mod.

There are countless examples of awful things happening to people yet they "chose it" because they did not know the full consequences. That doesn't make it fair or right. Even with the case of LBP, Sony is actively encouraging people to make levels, then treating them like they own them.

I'm out of this argument because at this point it's not gonna end anytime soon. But I do think the s*** storm is just getting started for videogames as a whole on this topic.

Virgil:
That's not an argument against developer-specified control on community tools, that's an argument for increasing fair use rights (and decreasing the power and renewability of copyright).

Isn't fair-use locked in a zero-sum game with developer-specified control? Isn't that exactly what fair-use is, the inability of a developer to specify what can and can't be done with their work, an exception carved out of the developer's control of their work?

I don't think you'll find a similar parallel in tools development - since it's more technological progress than a creative one, they're pretty much always improving.

Why do you think that improved tool will necessarily have less in the way of limitations?

L.B. Jeffries:

I'm out of this argument because at this point it's not gonna end anytime soon. But I do think the s*** storm is just getting started for videogames as a whole on this topic.

What people fail to realize is that feudalism ended (if it even existed) not just because we got rid of the idea that the serf owes labor to the lord, but because we made is such that the serf no longer needed the lord's mill.

I mean, it's kinda strange to talk about property rights and keeping government out of the market when you live in a country like America, when almost a quarter of your continental land mass (not to mention your largest state) was purchased by your government and your military developed the internet.

Archon:
Painting the question as of one "piracy of 10+ years old games" makes it overly simplistic, don't you think?

So do we believe that there should be something similar for games, so that there is a moral and legal point at which a game is abandoned and should be considered to have entered the public domain? Yes.

Does our legal system currently have such a provision for copyright? No. Maybe not. Not sure. Copyright law is a jumbled mess.

Did we want to jumble up our position paper with legal analogies to adverse possession and intricate copyright arguments? No. It would take a full paper in itself. Maybe we will draft that, if there's enough interest. We weren't even sure anyone would read THIS paper!

Painting all piracy as wrong is a bit simplistic, don't you think?

Clearly, (the editorial)you recognize that there is nuance to the issue of illegal copying and distribution in this post, but staking an absolutist position in your paper removes any recognition of that nuance, and establishes an equivalency among all cases of copyright infringement.

I appreciate your desire for brevity, but allow me to suggest this:

While we consider the illegal copying and distribution of games, especially those in the current market, to be wrong in the main, we recognize that there may be some instances where such copyright infringement may not be morally objectionable.

I think that an upfront acknowledgment of such nuance, as opposed to an absolute statement of disapproval, makes for a stronger, and certainly more accurate, statement of position.

Archon:

Steal means "to take the property of another wrongfully and especially as a habitual or regular practice" and "to take from another without right and without detection." That is the word for what is going on, no?

Other words, such as robbery, larceny, embezzlement, and infringement, are all defined specific legal terms. Stealing is not. Its a synonym for pilfer, filch, and purloin, but it has the virtue of being easily understood in common parlance. "Piracy is pilfering!" lacks bite, no?

Trespass is also easily understood in common parlance, and is a more accurate translation of the legally correct copyright infringement to the common.

The problem with using stealing, is that everybody recognizes that when somebody has something stolen, they've been deprived of it, but when somebody copies something, there's not necessarily a 1:1 valuation of illegal copying:Imaginary Pirate Revenue.

Trespass, on the other hand, is a violation of property rights, which is exactly what copyright infringement is, and people recognize that there are varying degrees of trespass which differ in their damage to property owners.

Does it lack bite? Sure, but then I prefer accuracy to advertising.

Cheeze_Pavilion:

L.B. Jeffries:

I'm out of this argument because at this point it's not gonna end anytime soon. But I do think the s*** storm is just getting started for videogames as a whole on this topic.

What people fail to realize is that feudalism ended (if it even existed) not just because we got rid of the idea that the serf owes labor to the lord, but because we made is such that the serf no longer needed the lord's mill.

Didn't the idea of feudalism get started when a bunch of people were left up the creek when their lords could no longer support them?

L.B. Jeffries:
Didn't the idea of feudalism get started when a bunch of people were left up the creek when their lords could no longer support them?

No, look here:
http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid=ac35
"The feudal system comes into focus during the 8th century, when the Carolingian dynasty is expanding its territory. Charles Martel grants his nobles rights over tracts of land, to yield the income with which they can provide fighting men for his army. This act of generosity, ultimately for his own benefit, requires an oath of loyalty in return. "

If you consider modding tools to be the mill , then things start to look uncomfortably like feudalism.
Also the Carolingian dinasty is the game industry; the nobles are the game publishers; the armies are the games, the tract of land are game engines.
Finally the oath of loyalty... nothing more than the "we own your creativity (soul)" disclaimers we get so much, really.

Maybe it's time to take out the guillotine again...

bkd69:
Trespass is also easily understood in common parlance, and is a more accurate translation of the legally correct copyright infringement to the common.

The problem with using stealing, is that everybody recognizes that when somebody has something stolen, they've been deprived of it, but when somebody copies something, there's not necessarily a 1:1 valuation of illegal copying:Imaginary Pirate Revenue.

Trespass, on the other hand, is a violation of property rights, which is exactly what copyright infringement is, and people recognize that there are varying degrees of trespass which differ in their damage to property owners.

Does it lack bite? Sure, but then I prefer accuracy to advertising.

I actually love your recommendation of the word "trespass". That's a great analogy and a great insight. I'll make a note of it for use in later drafts, with language along the lines of "piracy is a trespass against the copyright holder's property right" or something like that.

Thanks very much!

Trespass has never worked for me in these terms, either. It's as rhetorically soft as stealing supposedly is hard. Trespassing is what crotchety neighbors charge kids with when they chase a baseball over the fence.

Stealing isn't a perfect term, I admit. There isn't a 1:1 value ratio when a file is illicitly copied, I admit. But the fact that duplication is involved doesn't diminish loss enough to move us all the way to mere nuisance of trespass, I think.

That copy you made? At the instant it was made, it belonged to the artist who made the original. The fact that you took it, in the very same instant, is remarkable, but it's not absolution.

Why should shifting the time and place of duplication make such a difference? If I run off additional copies of the publisher's book on the press floor in the middle of the night, the company doesn't end up with fewer copies - but it doesn't change the fact that it wasn't mine to copy and I have ended up with something material that wasn't mine to take. The fact that the duplication doesn't involve paper or presses doesn't make such a difference to me.

I don't concede that material loss is essential to the definition of stealing. Passing another's ideas off as your own is a definition of stealing in the OAD. Getting something that belongs to someone else - like credit or renown - is stealing.

Stealing has a connotation of intent, but it doesn't assign it.

I wrote an essay back whenever trying to present forgery as an alternative term, but that doesn't seem to be catching on. Still, for whatever analogies have here, I like it. The fact that your pirated game is a perfect forgery - a true duplicate! - diminishes the value of the original work by undermining its attraction to the public as a unique work.

But of course that doesn't describe it all either, does it?

We don't have a perfect analogy for what's happening when someone illicitly copies another's product, but chasing analogies isn't going to help us. We needed a new word to express the notion of copyright. We need a new word to name the act of violating ownership rights. Let the public debate load up that new word, rather than battling over which baggage we can throw overboard from stealing or trespass.

Forgery, and its cousin counterfeiting, are even less appropriate than trespass. Those are both crimes of attribution.

Trespass encompasses a broad spectrum of violations, ranging from cutting across the corner of a gravel filled lot as a shortcut to the bus stop, to squatting, to breaking and entering.

As to why differences in time and space should matter, that's because there's varying degrees of damage that illegal copying causes, and some of that is a function of time and space. For example, the Custer's Revenge ROM I mentioned upthread was released in 1982, but it's still under copyright, even though the authoring company no longer exists, and none of the devs are exactly jumping up to claim credit for it. There's absolutely no harm to be found anywhere in downloading an illegal copy of it, as opposed to say, Endwar, for example. And, that would be the only way to obtain a copy of that game, if, perhaps, a contributor to this weeks issue on diversity in games wanted to give it a playthrough as research.

As far as shifting in space goes, if an Australian purchaser of Fallout 3 wants to play the junkie edition of Fallout 3 from North America, where lies the moral objection? Or if an American purchaser of the Witcher wanted to play the hypothetical European extra boobie edition, again, where lies the moral objection to the illegal downloading of an extra-regional edition game, if the regional edition has already been purchased?

The question of mods is a tricky one. Content developers have an inherent right to their own content; if I took a game, made 50 new models, but then put them into the original levels from the game, then obviously it should be up to the original developers of the game what I'm allowed to do with the result. It does *not*, however (and cannot) give the original developers the right to then do whatever they wanted with the models that I created.

If I made a total conversion mod (using the engine but none of the content), and I did not actually *distribute* the engine (only my content), then the original developers of the engine have no rights whatsoever to say anything at all about my mod. (Since none of their content is being used, and anyone who wanted to use my content would need to purchase the game anyway.)

If I used a game development kit to build a game that can run by itself, that in turn will contain an engine that I *am* distributing with my content, and so the developers of that engine *do* have rights to say what I can and can't do with the composite (but again, that doesn't give them rights over my bits alone).

With something like the Spore creature editor, it's not possible to build a creature without using parts made by Maxis, and so Maxis have the right to say what I can do with the composite. They don't, however, have the right to say that I can't draw my own picture of the creature outside of the game (since that's not using any Maxis content), or that I can't use the name I gave to the creature for something else.

That position paper is a thing of beauty, well crafted and well thought out. I agree with every statement, which happily makes me feel better about humanity and the prospects of civilization continuing.