[game_preservation] Abandonware

[Captain Commando]

Wow, it's $1000 to send a cease-and-desist order? That's nuts. I thought
they could just send those out just because :P I suppose that proves a lot
of C&D orders for fan games really were just rumors.

Though I will say this: two companies that you can ALWAYS count on to send
C&D's are Fox and Disney. Disney once sued a preschool for painting a
picture of Mickey Mouse on the wall (and won o_O). Don't mess with those
guys.

-DM

On Sun, Jun 15, 2008 at 8:17 PM, Greg Boyd <lextalionis at gmail.com> wrote:


> I have been practicing IP law in games for a while and I teach copyright

> infringement in the following way for my video game law class.  Maybe some

> of this is useful here.  It certainly applies for abandonware and for

> preservation generally (more for older games).

>

> What has to happen to lose a trial on copyright infringement?

>

> 1.  You have to be doing something that "may" be infringement.

>

> 2.  The rights holder has to know about it (unlikely in abandonware).

>

> 3.  The rights holder has to be upset about it.  (often they don't care or

> are happy that someone cares enough to archive a game).

>

> PAUSE - you usually get a "cease and desist" letter here which is a chance

> to get out of everything for the problem material.

>

> 4.  The rights holder has to be REALLY upset about it.  How did you answer

> that C&D?  (This is short-hand for the rights holder has to send a guy like

> me $50,000 bucks to get started drafting a complaint for court knowing that

> a case easily runs into six figures - also unlikely for very old software

> without a financial future unless it is a franchise).

>

> 5.  The rights holder then has to take you to court and actually win.

> (always a coin toss with fair use and other defenses - unless you are

> stupidly selling the stuff - which no one in this group would do).

>

> Short analysis - All 5 of those things have to happen.  How unlikely is

> that?

>

> Longer, fun, analysis:

>

> 1-5 are all AND statements in logic/programming speak.  By that, I mean

> something like the probability of a fair coin coming up heads is 0.5.  That

> probability of that happening twice is 0.25.  The probability of it coming

> up heads five times in a row is 0.5^5 or .03125.

>

> That example is for something that is 50/50.  The probability of items 1-5

> above even if you give item 1 a value of 1.0 degenerates a lot faster than a

> fair coin toss.  2 and 3 alone are shockingly improbable more improbable

> with abandonware.

>

> In short, taking on a little risk may be worth it as long you understand

> the risk involved.  If if it is strictly speaking infringement, what are the

> damages, who is going to know, and who is going to care?  If they do care,

> who is going to care enough beyond asking you to delete your archived copy

> and/or stop distributing it.  That C&D letter just cost them $1,000 to

> write.  They don't want to put any more money into this case either.

>

> I am NOT saying this is 100% OK, but I am saying that rational behavior and

> imperfect knowledge makes the risk of this turning into a real legal problem

> for a non-profit legitimate archiver usually pretty low.

>

> Greg

>

> This is NOT legal advice.  Every situation is different, but these are just

> some general thoughts I have about the relatively low risk of

> archiving/preservation generally.

>

> On Sun, Jun 15, 2008 at 6:50 PM, Andrew Armstrong <andrew at aarmstrong.org>

> wrote:

>

>> There's a large body of worthwhile research there which I had forgotten to

>> put in our resources section. It is still very worthwhile, and if not more

>> so due to each articles respective age. While it might have dried up right

>> now, a future project for the SIG certainly will be more articles like those

>> :) so maybe in the future a push can be lead to get a few people

>> contributing there.

>>

>> Problem is it must take a long while to properly research each article in

>> any kind of depth. I presume if anyone wanted to contribute to the features

>> they still could though? (you won't remove it entirely I hope!)

>>

>> And your thoughts on it are noted, a shame such a mission was thwarted

>> even if illegal, although it is interesting to know the past of it, since I

>> had no clue (I wasn't even online in 1997). I'll keep in mind your view it

>> is still worthwhile though, which I do agree with.

>>

>> Andrew

>>

>> Jim Leonard wrote:

>>

>>> Andrew Armstrong wrote:

>>>

>>>> Thanks for the article link in any case Mike, I should really categorise

>>>> the Mobygames features articles into the resource list properly.

>>>>

>>>

>>> While I'm flattered, I don't think you'll be seeing many MobyGames

>>> feature articles in the future.  I think that aspect of Moby has atrophied.

>>>  Still, I did do legitimate research on the subject back then.

>>>

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>>

>

>

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>

>



-- 
The sleep of Reason produces monsters.

"Until next time..."
Captain Commando
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