Originally Posted by BlackBellamy
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I tried to clarify what he meant a couple of times and it's apparent based on his use of the term that he's not clear on what copyright is. Most people aren't.
A copyright is....wait for it....the right to copy. When I produce a work, only I have the right to make additional copies. So when someone buys the EQ discs from Amazon, they're not violating any copyright. They are legally acquiring an authorized copy. And when they run that software on their system, there is no unauthorized copying going on. So far no copyright violation on the front end, right? Cool.
Now let's examine the back end. The game client sends out signals and receives signals. It needs these in order to function. A typical outbound communication would be a keypress and a typical response would be lets say "you are too far away to attack". When the game was live, the calculations of whether the player had a weapon equipped, whether they had a mob targeted, whether it was in range, those all took place on a server that was running copyrighted software that no one outside Verant/Sony was authorized to have. Because they did not wish to copy the code (and probably didn't even have access to it), the developers of EQEmu used reverse engineering. They observed what the copyrighted software did and they they wrote their own code to approximate the same responses. This kind of process is detailed in Sega Enterprises v. Accolade where Accolade wired a decompiler to the console’s circuitry while loading three different, licensed games. It then compared the disassembled code in order to ascertain the interface specifications for the console. The Ninth Circuit agreed with Accolade that there were no copyright violations. Similarly in Sony Computer Entertainment v. Connectix the courts agreed with Connectix and held that there was value of permitting consumers to play PlayStation games on new platforms.
Because the user is running authorized software and the server is running non-proprietary code, where is the copying of the work?
Aight, so that's done, I know someone will confuse this with trademark, let's do that next. Ok, so a trademark is...as before....a mark used in trade. So for example, I have a business that makes bricks, and I put the Apple logo on each brick. Customers are likely to be confused about the origin of my bricks, and I would essentially be profiting from the goodwill that Apple has generated over many decades. We'll get back to customer confusion in a sec. Now, the only trademarks that appear in the P1999 experience are the many logos and text in the game client (all of which are authorized uses), and the word "Everquest" as it appears on the p1999 site. The site does not use any logos or graphics or any other trademark other than that one word, which is a trademark of Daybreak (formerly etc etc). However, the courts have held that a business can use trademarks in informative or descriptive ways. This is called nominative fair use. Like for example if I run a car repair shop I can have a giant sign outside that says "Bring your Chrysler, Ford, and Toyota here for the best service!" because even though all three are trademarks, I am representing the services that I perform. So now back to customer confusion, which is the main test for trademark violations. Are customers likely to be deceived into thinking the product or service actually originates with the trademark holder? In P1999s case, it's very clear that there is no confusion possible. The welcome text and obvious disclaimers on the site make that clear. The fact that P1999 is a provider of an Everquest experience (or service) is informative and is allowed. I would also point out the courts heavily weigh the sophistication of the purchasers of the products in determining nominative fair use, and I don't need to point out that we are all extremely sophisticated here. I saw the screenshot of Chortles in a smoking jacket (although as usual he was not wearing pants) and I myself have been thinking of taking up Cognac.
Anyway, can we put copyright and trademark to rest please?
Now, I'm not arguing that Daybreak or another entity can't sue for the above. You can always file ruinous legal actions against small players and hope to prevail on the lawfare aspect rather than the facts. This is done all the time and demonstrates the type of values held by those who favor those stratagems (See Nintendo vs. pretty much anybody.)
I am also not arguing that the IP holders could not explore another, more viable way to defend their property, namely 17 U.S.C. 1201, the anti-circumvention provisions of the DMCA we all know and love, which is a tactic Blizzard used (among others) in prevailing in Blizzard v. BnetD. I am not informed enough to know what kinds of authentication needs to be bypassed to make P1999 work, but if those conditions did apply then to me this would be the most persuasive way for the holders to reach an agreement with possible infringers, and while I can only speculate as to the Daybreak/P1999 agreement, I would not be surprised if those advising P1999 saw this avenue as the greatest threat (rather than any copyright or trademark issues).
I just wanted to explain copyright and trademarks because I see these terms bandied about like they are synonymous, or just lumped in with IP. IP has many categories, like trade secrets, patents, etc and while copyright and trademarks are part of IP, each of these categories is very distinct and operates under different written and case law. I would love if someone could correct or clarify anything I wrote because I'm a big fan of studing how intellectual property laws reflect sociological trends and I'm always looking for more.
A final note before someone mentions contract law. If you buy any modern game, you aren't buying shit. You're leasing it. Go ahead, read any EULA. You are granted a license, hereby revocable at any time, to use the software as long as we feel like it, not a minute longer. Go ahead, check it out, similar language is in 100% of modern day EULAs. So if you are a player and run such client software when your license is revoked, you are breaking the law. And if someone runs a service that allows others to break the law, they get Napstered. However, back in 1999, when you bought software, you owned it forever. This is why no one is violating any contracts here.
Man, I am drunk as fuck off this fine Cognac.
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10-23-2019, 03:14 PM
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