Nintendo v Galoob, 1992

[Boaster]

en.wikipedia.org/wiki/Lewis_Galoob_Toys,_Inc._v._Nintendo_of_America,_Inc.

I thought that this was interesting enough when I came upon it that I would post a link and share some thoughts.

When the people of GoG started selling LOMSE with Ascension64's unofficial 302 patch already packaged into the game, I argued with them they need to stop selling LOMSE with the 302 patch or pay me a portion of the sales, because it uses my work in something they are selling.

Ascension's 302 mod, which is distributed as an unofficial patch, contains the work I produced: expanded unit info panels (even if it is an earlier version of what it is today).

People at GoG argued modifications to a game is illegal... it is not at all illegal, unless a modification is employed for financial gain. I have never "sold" the mod, however I do accept donations that people may express appreciation for the work I've done.

Here is an email from an agent of GOG from 5/8/2011:

Hello,

I apologize for the very late reply. As far as I could backtrack this case, a person from our production team found this patch on some forum when looking up a non-crucial problem in LoM:SE. This was some time ago, but as far as I can tell the archive didn't have any indication (readme file etc.) that it was made by a third party. Our production team must have assumed that it was a hotfix and, after testing it, we included it in our installer.

I'm very sorry that we didn't ask either of you for permission to use it, unfortunately at the time we didn't know the patch belonged for someone. Even though it's technically illegal for a third party to modify a game's content (and, to my knowledge, fan-made modifications technically belong of the game's publisher), we always approach authors of third-party modifications for permission if we want to include their work in our releases, if we can identify and contact those authors. A few times we had to refrain from adding some content because its author didn't like the idea.

We can, of course, remove this patch from our release of LoM:SE, if that is your wish.

Regards,
Firek

GOG.com Support

Bold text is merely to point out the words I spoke of.

Under fair use, the following are protected: "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." But then again, I'm not even citing fair use. This is anecdotal, informational, and somewhat superfluous to the matter as a whole.

Me modifying the game is perfectly legal so long as my modification is free to the public (non-commercial). However, for them to sell a modified game not only steals my uncompensated labor but also steals from the producers of the content.

A way around this, for them, would be to sell the full retail version of the game but to include a modified copy.

However, my argument with them was not the content itself but the time I put into the modification, which is inherently mind. If they're selling a game, for profit, while using a modification where I spent my time creating a modification, they then owe me money.

If the game and modification were distributed free for the enjoyment of all, this is a different issue entirely.

In the same vein, it would be like if I were to use Shadowflare's MPQ editor, or Ladik's MPQ vewier, to create MPQ files and then SELL a mod for LOMSE, I would be stealing from the guys who made those two programs.


Other relevant cases include Micro Star v. FormGen Inc., 1998.

Do you have thoughts about this?

[orzie]

The thing is, these people think that if Bethesda is actually brave enough to punch fans and tell them that all Fallout-related belongs to them, it doesn't work in other cases.

All modifications are automatically considered Creative Commons (which doesn't intend commercial use at all) as well as the instruments made by the community.

I also doubt that these people didn't see that the 3.02 patch was made by a third party. It fucking impossible! It comes with a readme file and stuff.

There are some laws, however, which actually restrict some modification types. In fact, you are not allowed to use executable reverse engineering (we don't use it in GS5 mod because it's a scripting/graphical mod).
However, in Heroes 3 which I actually mod, it is used because it allows to achieve a more effective result.

The other issue is the graphics taken from other games. It's illegal by default to take the graphics from other games to use in your modification, even if the games are of the same franchise. However, usually the publisher doesn't care about such minor cases. The only known issues were with Bethesda, the owner of TES franchise and Fallout franchise. It's infamous for its clash with fans. It states clearly that all game mods are automatically made property of Bethesda.

This is what GoG representative meant when he said that all mods are technically illegal. If you do only things that are legal (modifying creature stats, restoring unused content), however, it's not that interesting and is often classified as a fan patch rather than a mod. Adding your own graphics is also legal.

However, GoG also breaks the law using the 3.02 fan patch for selling the game. It is obviously a legal development following the Creative Commons license, which actually means that it is free for distribution.
The GoG authors may have had an opportunity to at least ask Ascension64 about this issue, but most probably they didn't. This has no solution because GoG will never make their own patch because they are too lazy asses.