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Tuesday, September 12, 2006

Halo RTS Shut Down .... Fair Use Lecture #1,325

Halogen, a RTS based on Halo, has been shut down. This has caused the usual response from people watching the mod ... which is "if I'm not making any money off of it why should you care?"

A Bungie employee with the forum handle of "Shishka" responds thusly:

I would recommend, for your sake and the sake of your friends and family, that you do not offer legal advice on a professional level.

There are two common misconceptions about intellectual property rights that you see amongst fans almost any given game:

1. I'm not using the assets directly from the game, so I'm not stealing intellectual property.

2. I'm not trying to make a profit, so I'm not stealing intellectual property.

The first is a misconception, in that it only takes the second half of the term "intellectual property" into consideration. The word "intellectual" implies that the ownership extends beyond merely the literal assets themselves, but to the idea (for lack of a better word) tied to the assets. If I say "The Master Chief is copyright for Microsoft and Bungie," I'm not referring to just the model and textures. I mean the Master Chief, the character written to be the protagonist of the video game series Halo, and everything that makes him who he is."

So, before the usual "omg, so, if I make a guy with green armor Microsoft can sue me" complaints arise, let me point out that "a guy in green armor" is not "Master Chief from Halo." There's a difference.

The second item I mentioned is the issue of profit. Generally, people believe that, so long as they're not trying make money by selling their work, they fall within the bounds of fair use. This is, in fact, not true. Ultimately, regardless of whether you are selling your work or not, you're still distributing someone else's intellectual property. Whether or not it is in their best interests to stop you is entirely up to the owner of said property.
-- Re: So...what's actually stopping you?

And for the record, Shishka is 100% on target. This myth that you can use any intellectual property you wish as long as you don't expect to charge for it really needs to be squashed. I have gotten into countless forum debates on this subject and at one point even served as an intermediary between a mod group and an IP holder. There is no grey zone here.

If you plan on releasing work based on someone else's IP without a license - you are breaking the law. It's illegal. Is that plain enough to understand?

The real sad thing is that so many mod groups feel the need to steal intellectual property in the first place. And yes, it's stealing - so sit down and hush. Thinking of it in terms of fan fiction or tribute is what got you in trouble in the first place. Mods have gotten into this trouble because of the Valve effect. People aren't interesting in modding gameplay anymore - they just want to make games. Preferably as close to boxed versions as possible (which, imo, is rather antithetical to the original idea of modding). Considering how many games are franchise driven, why should it be a surprise that so many mod teams try and make mods based on movies, shows and existing games?

As someone else pointed out - if someone had tried to take the Halo engine and make it an RTS ... they'd be within their license. Plus, it would add an enormous amount of code to the Halo mod community. Course, that assumes the team would share their code ... which was another thing becoming more rare when I stopped modding.

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TodPunk said...

I have to say, I disagree. I believe that creating a mod based on IP controlled by another entity would indeed stand within fair use so long as the mod did not cut off rights and priveleges due to the original author. For instance, if they are going to make an RTS Halo, that would limit not only the profitability of a future venture with the franchise into canonical RTS gameplay, but would also limit the creative rights due to the authors, who have now lost a medium for expression.

Fanfiction for characters in books, comics, games, etc, is rarely an attempt to continue an established story, and is usually an excercise in something that doesn't limit/harm the original copyright owner. I hardly think a Harry Potter/Halo crossover fanfiction would even be given a second thought by Microsoft or Bungie. I would say that a 28 chapter continuation of the story distributed in book form, or a comic to continue the story, would indeed be asking for trouble.

The pivot is in the limitation on the viewpoint you're using with regards to the subject of IP. IP is not "Master Cheif in Halo." IP is "Master Cheif in Halo as far as can be seen as plausibly existing in his current definition." If I created a mod, RTS or not, about Master Cheif delivering pizza, I don't think MS would have a case in that regard. Devaluing the IP maybe, but that would depend on circumstances I'm not going to discuss. j

Josh said...

This is going to sound rude and harsh and for that I'll just apologize up front.

You can disagree all you want - you'll still be wrong. It's not really a debate of opinion - this is legal fact. If you don't believe me, go ask an IP lawyer. He'll tell you the same thing, I'm just telling you for free.

There is no question that Microsoft has the legal right here. None. Zip. Zero. It was the responsibility of the mod team to secure an agreement before starting work. The recent announcement of Halo Wars may embolden Microsoft's case, but releasing a Halo RTS in no way was a requirement for them to shut a mod like this down.

It's simple - if you want to build a game based on someone else's IP ... get permission first.

cliffjeff said...

You can't claim to know more about fair use than the entire US legal system. Cases like this are debated in courts every year, and so every year new things can be or can no longer be considered fair use. It is not so cut-and-dried or cases similar to this would never make it to trial.

There's four factors taken into account when deciding whether something is infringement or 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." First off, the mod isn't commercial so that DOES help the case for it. You could also argue that the mod is using the IP for 'scholorship' in that they're using it as a means to learn programming/game design. If the mod were a parody, that would also help its case in this department; maybe the mod team should consider making it one =p

2) "the nature of the copyrighted work." This is a foggy one but basically favors copying nonfiction, especially for education, and counts against copying fiction. No real defense in this department, but then again, most fair use cases involve fiction/creative works anyway so Halogen is not exactly alone.

3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." To be honest, I know little about the mod. If it DOES copy and extend the plot of the games, including things like Master Chief, that counts against it. If it just uses the basic look of the units and vehicles and nothing more, that's not as big a deal.

4) "the effect of the use upon the potential market for or value of the copyrighted work." I'm sure Microsoft would try to argue, "If we didn't shut down this mod, people would get it for free instead of buying our game." That would never happen. No one had even HEARD of this mod before the news of MS shutting it down. The official game would have come out and still no one would know about the mod. Also, it's a completely different game, and though it appears to have been high quality, I'm sure it would not have been the slightest competition to Microsoft's real RTS game. If anything, it probably would have whetted people's appetite for a full Halo RTS and encouraged them to buy the real game.

all in all, I think they have a pretty good case for fair use.

Josh said...

No, but I can claim that I've actually talked to a company who have defended their IP in the past. I'm also quite familiar with many similar mod cases and how they end. All four of the points you've brought up have been debated to death online.

It's never mattered. They don't have a case. But again, I'm not a lawyer. Don't believe me - go ask one. I know a mod project that did. Their lawyer told them the exact same thing I'm telling you.

Although you do bring one point I've always wondered about - parodies. AFAIK nobody has tried to create a true parody mod and see if that sticks.

Also - it's terribly easy to create a "like" mod. You just can't make it too similar. Lots of projects have survived this way, though. If that's the strategy though - you gotta do it at the beginning of the project. These guys probably have tons of assets that are essentially scrap now. You can't make a "like" mod with vehicles that look exactly like warthogs, etc.

Which - btw - is another reason to talk to the company first. If they're favorable to the project ... they sometimes share professional assets. Troopers got some amazing stuff from LucasFilm once they had reach and agreement.

Other than that the only choice is to never advertise it, never distribute it. That's practically impossible in this day and age of mod development though - it's essentially requires both just to try and get the job done.

Josh said...

As an aside - I've always thought a VG Cats mod would excellent partially because it would have a built in premise for parody.

Josh said...

Update: According to Yoshiro - PR for Troopers - they never ended up using LucasArts assets. Still, it's a valid reason for talking to the company of onwership.

Sumo Monster said...

I agree with the legality issues with this case...the only thing I don't agree with is how harshly and unprofessional the Bungie employee stated his opinion. In the first couple lines of his post he makes it seem like he's threatening the life (whether it be physical or economical it's still an unprofessional threat) of the modders and it makes the Bungie employee sound more like a 15 year old kid trying to impersonate an employee just for the sake of bragging rights that he shut down a project that was 3 years in the making. Yet again I am stating that I do agree with the decision that the project needed to be shut down because of copyright issues, I just wish the Bungie employee could have stated his opinion a little more professionally so that he wouldn't make the entire company look like they are run by abunch of 15 year olds.

Josh said...

That seems a little harsh to me (I don't think Shishka was actually threatening anyone - just saying that they'd be in the poorhouse as a lawyer) ... but I agree in general. And it's an odd tack for Bungie who, if anything, portrays a very gamer friendly public image.

Still, it's hard for companies not to look like they are kicking puppies when they're just trying to defend their IP. And the amount of misinformation about what mod teams can and should do is absolutely epic in scale. I feel his frustration. Every single time one of these things get Foxed, someone starts spouting off quasi-legal nonsense that could actually land someone in trouble.

Anonymous said...

Host the site in sweden, singapore, china, or another country that doesn't recognize USA copyright laws. Now, in the case of Microsoft it may be more difficult because they have a large world hold due to windows, but for most lower-key games, the USA IP laws only apply if the mod/game is made in USA. They can't touch you if you are out of jurisdiction.

Josh said...

As DeCSS showed - that's not entirely true.

tomb101 said...
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tomb101 said...
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DaneEnerio said...

How many years has it been? 3 years or so?

I waited for that mod. I cried when I learned that it was shut down. But more importantly, I cried because I felt the pain of the 8 modders, who, for years made a mod that would outbeat any of Microsofts bullshit Halo, 360 exclusives.

I just wished, that rather than shutting down the project, MS could have just stayed with it. Knowing that their fanbase is full of talented people.

RIP to the mod that would have changed everything.