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A lot of fuss is being generated in the community lately over the EULA License
Activision has written, a great deal of this fuss stemming from a general
misconception that copyright law is on their side. Unfortunately for the level
authors, fortunately for Activision, it is not.
The Activision license states:
All title, ownership rights and intellectual property rights in and to the Level
Utilities and the New Game Materials created by you using the Construction Kit
are owned by Activision or its licensors and are protected by the copyright
laws of the United States, international copyright treaties and conventions
and other laws. In the event that you should, by operation of law, be deemed
to retain any rights in any New Game Materials created by you, you, by using
the Level Utilities, hereby irrevocably assign, without any further consideration
and regardless of any use by Activision of such New Game Materials, all
of your rights and interest, if any, in and to such New Game Materials to Activision.
Under United
States Copyright Law, an original work belongs to its author from moment of creation.
The important line in that is "original." When a level is created using characters,
textures, names, etc. from something else, it is known, in Copyright Law, as a
"derivative work." Copyright, in derivative works, does not belong to the author
of the work. The copyright traditionally then belongs to the owner of the original
work. Essentially, what Activision is doing is spelling out what rights
they had to begin with.
....You
also hereby grant Activision an irrevocable, perpetual, exclusive, fully
paid and royalty-free license to exercise any rights, including moral rights,
to any and all aspects of the New Game Materials. You agree that Activision
shall have the full and complete right to package, publish, print, copy, promote,
market, distribute, transfer and display the New Game Materials created by you
and prepare derivative works based upon such New Game Materials, and any derivative
works thereof, anywhere throughout the world.
Now, you ask,
why would Activision add this to the license? Call it protection. As unfair
as it may seem to a lot of people, they are protecting their rights to fully market
their material to the best of their abilities. As a publisher, if they came up
with an idea that was similar to yours and wanted to market it themselves, they
are saving themselves the hassle of court battles against you to do it. Yes, they
can grab what you're writing and make money off of it if they so choose. But you
could not make any money off of it yourself anyway, unless you wanted to lose
it all on attorney's fees.
An important thing to note. The paragraph above merely restates, in a different
fashion, what was said in the first line of the paragraph. Why restate it then?
Because copyright and "rights," are two entirely different things. An example.
I work for a publishing company. We have Joe Author, writing a software program
for us. He writes it, and under his contract, transfers all rights to us. But
he has a good agent, or he's persistent, whatever, so he retains copyright. All
this means (that pertains to the issue at hand, anyway), is that that little Copyright
© will have his name after it. The rights, resale rights, etc. all belong us.
So putting a copyright notice on your level won't change a thing. Copyright, regardless
of what the notice says (as copyright notices are not mandatory under current
copyright law), belongs to the creator of an original work, or whoever copyright
was transferred to under agreement.
Only in one case, one case I know of anyway, have levels been sold successfully,
with the owner of the original work not making anything off of the deal, and you
all know the case. In that circumstance, copyright law was successfully circumvented
to allow for the sale of collected levels. Don't expect it to happen again. Courts
are becoming more and more rigid with respect to what is to be considered derivative,
and what is original. They're narrowing the definition of copyright law, and allowing
things to be copyrighted, and legally bound to an owner, that they never had before.
Did you know you can now register a website with the Copyright Office? Yes, if
you take my graphic or my code off my site, change it, and call it your own, I
could sue you. This is all being done, in the long run, for the protection of
the authors.
Later in the license, Activision lists the reasons for license termination.
Failure to comply, use of pornography, use of copyrighted materials all fall under
the reasons. As you read above, there was a grant of rights in the license. If,
the license terminates, rights fall back to creator. You. If you make, say, a
level devoted to Starship Troopers, and get sued by I think, it's Sony, they're
not going to be able to sue Activision. They'll sue you. Without this license,
Activision could be named in the suit, and held liable.
As horrible as all of this may seem, it really is for the greater good. Now, why?
Because what Activision is doing, is publicly stating "look, this is ours,
enjoy it, but remember it's ours." Yes, they are the first to do this. But all
law is set by precedent. And this means the next time some person who develops
some little utility to turn all your system colors polka-dotted releases it, he
can do the same. So he can make money off of what he created, and not have good
old Joe Author play with his utility and sell it as their own. People are breaking
apart software daily and selling it as their own. I've had developers call me
at work and ask me if they could do this, would we let them. And each time, they're
surprised when the answer is no. It's for the protection of the property rights
holder, in the long run.
Copyright isn't like a trademark, where if you don't enforce it it'll lose it's
effectiveness. But if you don't continue to expand the definition of copyright
law, technology will find ways around it, to the detriment of anybody trying to
create original material.
There have been a few arguments made against this license I've read, most misinformed.
Yes, this is, in the technical sense, a shrink-wrap license. And shrink-wrap licenses
have been upheld by the Supreme Court as legal.
Someone was arguing to me the other day about state law and federal law effecting
this license. There is a current trend in copyright for states to consider enacting
their own laws to protect intellectual property on the Internet, because federal
law does not. Yes, federal law overrides state law. But there is no federal law
covering copyright on software or the Internet.
So, what it boils down to, is yes, you're placing your trust in Activision not
to sell your work, and claim it as their own. If they do, and you have the time
and money, by all means, challenge this license in court, I for one would be fascinated
to see what the court would decide. But the important thing to remember is that
they could be doing this anyway, and are just spelling it out for you.
You don't like the license? Use a different utility and take your chances with
a different license. But either way, sell your levels, end up in court. Unfortunate,
yes, but when you're the software developer, you'll be thankful.
An important note. I am not a lawyer, nor can I claim to be entirely objective.
I am just a person who works in intellectual property law, on the side of the
publishers. So I probably see the side of the publishing company a lot faster
than most others would. But if you disagree with me, feel free to let me know.
I'm just as curious as everyone else to see where this ends up.
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