I noticed after my last blog post that the argument I am trying to make and the argument that is being perceived are vastly different things. For that reason, I am making this post to clarify and correct my previous post.
1) Anime IP holders have the right to send takedown notices to games that feature their intellectual property. This is inescapably true. In a theoretical situation you could argue to the bitter end that a BYOND game that makes no money is just a harmless fan project on a site that encourages learning programming. And the nature of these games would likely never ever attract the IP holder of that anime to bother issuing a takedown notice. We have seen it happen though, and it can happen again to any project and nobody in their right mind would value a BYOND game enough to take it to court.
2) This isnt a correction, its a clarification of my original point: Nobody has a right to take your source code or graphics because they are based on a show or existing video game. The components of a game are individually intellectual property that the person who makes them owns, its not relevant that you have copyright over your source code because you can take somebody to court, its relevant because BYOND the community will absolutely NOT tolerate it being stolen. There have been great strides by the byond administration to stop ripping, and it’s done for a valuable reason: It makes the experience on BYOND worse. If you think having a rip is something you are entitled to, and that as long as people play on your game and have fun then it is harmless, think again. Its disparaging to all developers when you see source codes in the wild, it’s horrible for new developers who are tempted to take an easier route by stealing and learn bad practices or never create something new and interesting, and its bad for the fractured game communities in which the allure of cheap tactics such as administrative positions will draw players across hundreds of low quality games instead of keeping people playing on a single, consistent, high quality server.
The issues with ripping aren’t unobserved, some people naively believe that there are no negative repercussions, but those of us who have been here for several years know that it stagnates creativity and makes BYOND a more hostile and unappealing environment. Whether or not ripping my game or anybody's game will result in you sitting in front of a judge is irrelevant and absurd, however if you host a game that you don’t have the rights to, if you make a hub for a game that are rips, if you distribute graphics or programming that you don’t own the rights to, the BYOND administration will IP ban you, ban your key (regardless of if you paid for a membership) and rightly so. BYOND's direct intervention in rampant theft is something that most of us know is necessary and would be a step in the right direction, there is no question about that.
Heated arguments are not necessary, I responded to the leak of my game with a great deal of intensity not because I was emotionally upset, but because swift action needs to be taken to set a precedent. I wont allow it because it hurts the community. The truth is I knew about the leak back in early february, and I have not been bothered by it, now that people are trying to make arguments that these servers should stay active and that ripping is okay I will act strongly and immediately to ensure that there is no doubt that this is unacceptable.
In the big picture, there will be no large fallout from this leak. The anime guild is not the unregulated place it used to be and GOA is not nearly as unpolished as Dragonball Zeta was when it was leaked. Projects like Zeta were easy victims of theft because they weren’t done and the original owner left the scene entirely and BYOND wasn’t ready to deal with moderating the sudden influx of rips. Today is a different day, I've never been concerned that BYOND couldn’t handle the leak, and I don't hold it against Kobata that the leak happened (It wasn't his fault at all, somebody went to great lengths to actually spoof my e-mail address to Kobata using an illicit method, it is likely a certain already banned individual who has previously gone to great lengths to be obnoxious on BYOND.). The leak is irrelevant to GOA, what is relevant is the discussion about whether its okay to steal fan-game source code, whether its worth the effort to moderate ripped game hubs, and whether strict enough punishment is issued for those who brazenly distribute source code on the BYOND website.
I was inarticulate in my previous post, I can see the controversy in how it was written in hindsight. Could I make an argument that my game is fair use- Yes, would I go to court to make that argument? No, obviously.
ID:96024
 May 27 2010, 7:25 am (Edited on May 27 2010, 7:51 am)
|
|
|
May 27 2010, 7:32 am
|
|
Bootyboy
 |
Well said, Dan. Thank you for the observations and clarifications.
|
Agreed, Appreciate the clarifications.
| |
but you never clarified whether or not u mad
| |
Zaole wrote:
but you never clarified whether or not u mad 5th Paragraph. | |
What upsets some of us is the idea you seem to be promulgating that it is okay to use intellectual property which you do not own so long as you stop when you are told to (or are never caught). I remain unconvinced that your use of the Naruto brand falls under fair use, especially after reading the articles you linked to. I don't see how your game can constitute fair use so long as the term "Naruto" is in its title, and the fact that it is a "Naruto game" remains its main selling point.
I should hope that communities outside BYOND would respect my intellectual property rights, and contact me before undertaking any venture based on my work, instead of stealing my work and continuing with their project because they know that it "would likely never ever attract" my attention. | |
Mastertaco FTW
| |
IainPeregrine wrote:
What upsets some of us is the idea you seem to be promulgating that it is okay to use intellectual property which you do not own so long as you stop when you are told to (or are never caught). I remain unconvinced that your use of the Naruto brand falls under fair use, especially after reading the articles you linked to. I don't see how your game can constitute fair use so long as the term "Naruto" is in its title, and the fact that it is a "Naruto game" remains its main selling point. The issue, selling point to what? Its a 0 profit game. Its a small community. It doesn't compete with any of the Naruto IP holder's ventures. Its a hobby game, made for fun with no serious business intent behind it at all. (you would expect me to contact the author of Naruto to tell him that I have made a BYOND fan game of his manga?) I mean, I dont know what upsets you, really if I was profiting off of GOA I would understand your righteous attitude, but given that its purely a hobby thats non-profit I dont see why you are making me out to be taking anything from the IP holders of Naruto. | |
Masterdan wrote:
righteous attitude Before I say anything else, I'd like to say that at no point did I believe I was acting in any sort of "holier than thou" manner. I can understand why you would read it that way, what with the attention you normally receive from trolls. My intention is only to give voice to a concern I think many in this community are feeling, that the mentality of this community has shifted from what is good to do, to what we can get away with. --- selling point to what? Forgive me for the poor choice of words. I don't mean anything about money. To me, money has nothing to do with it. I was using "Selling point" as an expression meaning "the main reason a user would play a game". For instance, the "selling point" of Plunder Gnome is that you can play short quick games. Its a 0 profit game. The only place I've ever found where asking for money meant anything is BYOND. The idea that "if you're not making money off of it, it's all good" is a BYOND invention. It has arisen out of DanTom's moderation policies, and has taken root in this community. That is troubling to me because, again, it forms a morality based on "what can be done without ticking off the wrong people" instead of "what is write and proper". you would expect me to contact the author of Naruto to tell him that I have made a BYOND fan game of his manga? If you want to use their intellectual property, then yes, I do. You do not have to use their IP; you are not being forced to do so. At a certain point in my musical career I made the choice to no longer play music that I didn't have the right to play. Since that day I have contacted music labels and individual artists to ask permission to play their music. I have received blanket permission in some cases, had to pay for the right to do so in other cases, and have been denied or ignored in others. In the cases where I was given permission freely, the artist was always glad to hear from me, and to know of how I was interpreting his artistic work. I have also stopped developing games with graphic art or music that does not belong to me. At a certain point I expect adults to do what is right, despite how unpleasant it may be. I dont see why you are making me out to be taking anything from the IP holders of Naruto. Though the "Naruto" franchise is a commercial venture, it is also the artistic work of a group of people. These artists are no doubt proud of their work - their 'intellectual property'. As an artist, I respect their right to their work, and to determine the future legacy of that work. I expect this respect from artists - graphical artist, composers, game designers, whatever. My choice of the word "upset" was similarly poor; I should have said "concerned". I am not upset but concerned that this community, which I have a stake in, is moving in the wrong direction. A healthy community of artists will be impossible to realize so long as our ethics are so low. Lack of respect for artists will drive artistic activity from our community. If the goal of Naruto:GOA is to effect a positive change in this community, then the most effective way to do so would be to remove all references to Naruto. --- Sadly, I know this is going to go back to the issue of "fair use", an issue I feel is moot. Our focus shouldn't be "what we can get away with"; we should be building our own dreams, as the dev-forum goers point out so often. However, seeing as how I brought it up earlier, and you have touched on it again, I guess it's only fair to explain why I feel that way. Please note that I feel the whole "fair use" issue is a non-point, and I will not respond to it in the future. Were I a judge, I would rule against your claim of fair use based on "the purpose and character of the use", in that the use is not as a criticism or parody of the original work. Broadly, it is not a "reply" to the original work, but something which has been "piggy-backed" on top of it. Note this line from the Wikipedia article you linked: "A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative." Your work does not add to the value of the original by putting it into any sort of societal context; rather, it takes original artistic elements from the original work so as to give value to the derivative work. This is a clear cut example of a derivative work, not a transformative work. I would also rule against your work based on "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", here referring to the copying of substantially important parts of the literary structure of the original work, including setting, plot, theme, and characters. You may feel that you do not make use of the characters, but you certainly do: all of your advertising material, including the name of your game, includes the actual name of the original work, along with pictures of the titular character. Again, these uses are not criticism or parody, but simply advertisement. Its a small community. Indeed. This is your only chance at a viable defense. Given my experience with copyright law and music, however, I wouldn't buy it as a judge. BYOND's "community size" is an arbitrary notion; it may seem small to you, but say "10,000 users, 4000 of them active at any given time" and someone else may say that it's huge. I regularly have to buy the rights to copies of sheet music, and the right to perform that music for a small crowd, as part of my side job as a musician. You can't just pull out any old song and play it in a church, that's a clear-cut copyright violation; it doesn't matter how many people are actually in he pews. Besides, as an artist, do you really want your art to be presented as "something so worthless and small that people shouldn't pay attention to it"? That's not what BYOND should be about. We should have pride in our work, pride enough to say that we are making something worthwhile, something with an artistic statement worth hearing. | |
This is a rather funny discussion.
My father is an author, and I know various others who produce either books, music, art or similar. I don't see how its even remotely possible to defend creating a derivative work without seeking permission first. Sure, its done all the time - But is it fair? No. Is it polite? No. Is it even legal? This is more of a grey area. The general problem is that for some reason people on BYOND seem to think that 'everyone else' is some foreign set of things that they can freely take from. Whereas 'ripping' on BYOND is cracked down on strongly. The two are the same. Any Naruto game that hasn't mailed and sought permission from the proper company is ripping the Naruto brand. Period. If you can defend using material from Naruto without permission, then I can defend using any graphics you've produced without permission. I'm just a guy making a game in a small community after all. | |
The difference is, stealing from a small game to make a small game in the same community is not even comparable to building a game from scratch with the premise based around the general story of a TV show.
This is BYOND, build your own net dream, I know to you that means fan games are not included, but to the majority of people here the thing they would like to see made is an adaptation of Dragonwarrior to be played online, or final fantasy 2 online, or an online RPG version of Naruto/Dragonball/Bleach. These things are games people have always wanted to play, people come into BYOND because they have explicitly searched "Online Naruto game" and found us that way. You may believe that everything related to intellectual property is black and white, but the majority of people here realize that making a Naruto fan game on BYOND will never even be significant enough that the original content holders will ever even know about it. We arent taking bread out of anybodys mouth, it isnt comparable to music theft because we arent taking direct property, we are inspired by a comic. Fair use is important because big publishers who make millions off of high scale movies/tv shows/manga/video games who arent impacted at all by a small fan-game community on byond, shouldn't just because they can, shut down projects that are hobbyist by nature and completely harmless. I mean the factors that lead to a fair use ruling are pretty clearly related to that isnt it? I understand what Ian is saying, but I think it is an unreasonably black and white way of looking at things. And for Alathon, I think the comparrisons youve made between making a fan game and blatantly stealing graphics from another byond game being equivalent is harmful and a dishonest comparrison of clearly not equivalent things. | |
Masterdan wrote:
This is BYOND, build your own net dream, I know to you that means fan games are not included, but to the majority of people here the thing they would like to see made is an adaptation of Dragonwarrior to be played online, or final fantasy 2 online, or an online RPG version of Naruto/Dragonball/Bleach. Just to clarify, because this comes up a lot lately. The whole 'Lets try and split BYOND into two camps' thing is old and tiresome. I love and watch Anime, I read Manga and for quite a long time I spent a laborious amount of hours helping moderate BYOND Anime. I also *came* to BYOND playing a DBZ game, which I was linked to from *another* DBZ game (A MUD). These things are games people have always wanted to play, people come into BYOND because they have explicitly searched "Online Naruto game" and found us that way. You may believe that everything related to intellectual property is black and white, but the majority of people here realize that making a Naruto fan game on BYOND will never even be significant enough that the original content holders will ever even know about it. This is exactly the point Iain made. Whether something gets you caught or not is not relevant to the moral standards you try and set. I understand what Ian is saying, but I think it is an unreasonably black and white way of looking at things. And for Alathon, I think the comparrisons youve made between making a fan game and blatantly stealing graphics from another byond game being equivalent is harmful and a dishonest comparrison of clearly not equivalent things. You spent a long time drawing those graphics, no? Well, you or other team members on the game in question. You spent time designing them, styling them, rehashing them, etc. What exactly do you think the team of artists that draw Naruto and Bleach do? They spend thousands of hours drawing these things. Which you then take and leverage to gain players to your game. You can call it a homage, you can call it irrelevant - But it is what it is. Stealing. I'm not under the impression that making that statement will change a thing, it is a rampant and respectless occurance on the web. However, once again - What is 'practical', what 'gets done', what you 'can get away with' are completely seperate from what is morally correct and respectful. Claiming that it is in fact morally correct to create a derivative work without even an attempt to contact the original content creators is off. And for the reference, I contacted the authors in charge of a series of books when I began writing a game based off of their worlds. Why? Not because I had to, I could've probably gotten away with it, very few people know The Deathgate Cycle series well enough to instantly recognize references to worlds and specific places. But because I have respect for the enormous work they did in designing and writing the books, and I want to pay homage to that. So yes, I think you should be doing that as well. | |
The issue is twofold (and I understand your sentiments im not ignoring your points but this is what it comes down to):
1) We have announced publically on BYOND not to use our project materials for game sources, I even directly told the owners of the rips to cease using our property immediately. The Naruto IP holders have not and I would honor any claim raised against us. 2) We dont get paid, the Naruto IP holders do, and they get paid a lot. So if somebody steals from us its just a slap in the face, not only are you stealing game graphics and code to make another game on the same engine with the identical graphics and code (while with naruto's ip we arent stealing anything directly, only basing the environment on a shared theme), and honestly if I was being paid a substantial amount of money (in the thousands a month) and the rips were not making any money and had an insignificant amount of players in comparrison, I would not care. | |
Masterdan wrote:
I even directly told the owners of the rips to cease using our property immediately. If somebody ignores a Cease and Denial request, you can and should always defend your case with a lawyer. Masterdan wrote: 1)We dont get paid, the Naruto IP holders do You are forgetting two things here. For once, unlike the 'Naruto IP holders', you have very little expanse on your project (if any). And most important, you, unlike the 'Naruto IP holders', do not seek to make a living out of the project. If they get paid 'in the thousands a month', that is a normal, average middle class salary, which your project cuts down. I assure you, most people working for their monthly pay check react rather upset on finding it cut down, else there would be far less fuss around tax raising. The fact that your players do not pay you, doesn't mean that they would not have paid another, licensed Naruto game instead, had they not found yours. | |
If you want to make the argument that GOA takes a significant amount of people away from competing professional naruto games then I wont argue with it, Its flattering, quite frankly I doubt the Naruto IP holders feel the same way.
Like I said though, they havnt even bothered to ask that I stop hosting the game, so we cant pretend that I'm damaging their welfare. | |
Just curious: does it follow that, to act legally, someone who wants to say, draw a character from a series and show it, needs to send mails to the powers that be asking for permission? Poor author...
| |
Masterdan wrote:
Like I said though, they havnt even bothered to ask that I stop hosting the game, so we cant pretend that I'm damaging their welfare. As you point out, the Naruto IP holders are a large corporation, and they have to deal with tons of people stealing their work. I am certain that they send out a lot of cease and desist letters. The problem is that they have to hire a legal team to do so, and that legal team can only send out so many per day, and they also have to spend time every day hunting for illegal uses, and deciding which illegal use is most damaging. The fact that you haven't received such a letter only means that they have bigger fish to fry, not that they don't mind your existence. In fact, expecting them to send you a letter is a clear example of a situation in which your game would end up costing them money (to pay the legal team). The fact of the matter is that you have already been told not to use their IP. You were informed of their intent the day you learned about "copyright". Copyright is something artists (such as myself) rely on when making any work. We are entitled to all the rights to our work without ever having to say so. Those rights are protected under the law. If you want to make a Naruto game, then you must take the initiative to contact the holder of said rights. It is unfair and immoral to expect them to take the initiative to contact you to stop a work already in progress. There is a way out of this mess for you, though. All you have to do is remove all references to the Naruto Shippuden IP from your game. This would mean reworking the art, title screen, advertisement material, jutsu names... it's a lot of work, but it's worth it to be legit. Last I checked, Gakumerasara started this process with his long running game Final Fantasy Online. I have a great deal of respect for him for that. Alathon wrote: The whole 'Lets try and split BYOND into two camps' thing is old and tiresome. I love and watch Anime... Just to throw my weight behind this very true statement, I have watched animations, including Japanimation, all my life. I watched "Akira" back when it first appeared in the US. I loved the hobbit movie, and I used to rent "Wizards" almost once a year (what a demented animation that was). I was watching "Warriors of the Wind" back before anyone in the US was familiar with the name Hayao Miyazaki. My favorite animation is probably "Last Exile", but would you ever find me mentioning that on BYOND? We often get the attitude that if we don't watch whatever shonen series is being played by Cartoon Network, then we don't have the right to make judgment calls about the BYOND anime community. | |
IainPeregrine wrote:
We often get the attitude that if we don't watch whatever shonen series is being played by Cartoon Network, then we don't have the right to make judgment calls about the BYOND anime community. Wait what? From who? I'm pretty sure we have RAW to introduce new anime to the community. I don't know who gave you that information. We love discussing new anime. | |
Since Akira Toriyama only uses his computer for artwork, for the hell of it I'll pose a hypothetical situation about a fan game to FUNimation and see what they're stance is on it.
I had gone through their conduct on Fan sites, and it was rather interesting to say the least. http://www.funimation.com/f_index.cfm?page=guidelines | |
The problem seems to be your interpretation of the Golden Rule. In the common interpretation 'a key element of the golden rule is that a person attempting to live by this rule treats all people, not just members of his or her in-group, with consideration.'
You are basically arguing for special groups to be excluded, which is where your issues on the need to set rules and explain/justify these rules starts. I really doubt that any of the people you encounter is glad that this happened to you, but rather takes it on a 'harm set, harm get' - shrug it off - sort of base. It's the old 'thief getting stolen from'-film theme. Edit: Btw. according to your own argumentation, you shouldn't be worried/bothered about this whole incident. You do not lose money and the educational purpose of the game persists through a carbon copy. Even more so for somebody just posting the source code, since that is not even going to compete with your player base at all. | |