sparhawk on 2/11/2007 at 21:10
So here we are in a new thread to not clutter up the original OpenDarkEngine discussion. :)
Quote Posted by nident
- Circumventing copyright protection in the EU is only illegal if that protection can be considered "strong".
Yes, But there are exceptions.
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- It would be a cold day in hell before EIDOS/EA put that to the test because they would have nothing to gain. Warezers can already play it with the crack (and owners of legitimate copies can use it with less hazzle too using it) and EIDOS/EA haven't done much to stop it. Arguably it's harder to track down whoever cracked it but what would the point be in shutting down an open source project that lets people that have legitimate copies of the game play it on newer systems when there's a crack around already?
It's easy to track down the owner of an official open source project, so I could easily imagine that they shut down something like this, then wasting money on finding a cracker from ten years ago. If ever.
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- Even if EIDOS/EA did, Volca wouldn't need to be too worried - EU courts have a "losing plaintiff pays the legal costs of the defendant system" so Volca would have long line of lawyers queueing up to defend him and make some easy money on EIDOS/EA's stupidity. The fact that the project is not deliberately intended to circumvent copyright and that he doesn't benefit monetarily from it makes it very, very unlikely that he'd lose.
It seems to be a common missconcpetion that "making no money from it" has any gain for the defendant. This is not the case. It doesn't matter if you kill somebody for money or for honour. It doesn't matter if you violate copyright for money or for honour. If you brake the law, you broke it. If you made it for money it can influence the amount of the sentence, but not the fact itself.
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- In the hypothetical situation that Volca lost, it's unlikely that he'd face any serious consequences since he hasn't made any money on it and EIDOS/EA cannot claim to have lost any due to OPDE.
That is irrelevant. The costs are from calculated losses, not from how much the defendant earned. If the company can prove that they didn't sell so many copies, because of a copyright violation, this will be their claim. Not wether or not anybody earned something from it.
But this is only in the hypothetical assumption that OPDE would loose, which it most likely wouldn't for various reasons.
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- And just to remind people: Even though it's legal to circumvent weak copyright protection, copyright infringement is just as illegal as before. So even though the license allows you to distribute OPDE freely, you cannot distribute the game data.
That's correct. :)
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And Volca: Once again I must say that you're doing a fantastic job, I wish I had the time to help out.
That as well. ;)
As for the reasons why Volca wouldn't loose (at least in Europe):
1. It is legal to break copyprotection for compatibillity reasons, if there are no other options available.
2. What Volca does is NOT a copyprotection circumvention. It is prefectly legal to write a program that reads and operates on data. Where this data comes from is irrelevant to the case. The primary purpose of OPDE is NOT to break a copyprotection so it doesn't qualify as a crack. In the EU the law says that a crack is illegal if it is the primary intent of the program to violate a copyprotection. This is the reason why you can copy Music CDs with linux, using standard system tools, but you are not allowed to use a copy program to do the same. Linux primary intent is not to circumvent copy protections and usually are not even aware of them. If a copy protection doesn't work under Linux, it's the providers fault, not Linux's. It's quite different with a copy program. It's primary purpose is to create copies and therefore are considered to be illegal in the EU now. Of course only, if they offer options to circumvent copy protection schemes. Not if they are only able to do regular backups.
As already has been posted, if the act of writing a full application that happens to be compatible with some other app would be a case, then MS would already have shut down OpenOffice for sure, because Office is MS major income source.
nident on 3/11/2007 at 02:24
Putting this in a separate thread was a good idea even though I was hoping that my post put an end to the rather pointless discussion in an otherwise interesting thread. Anyway, it seems to me that we both agree on all that's relevant but I guess I should still summarize my main points and correct a mistake I made (first point):
- Volca cannot even in the most remote, hypothetical, fictional, imaginary, blah, blah, blah situation become guilty of copyright infringement so I actually made a mistake in bringing up the entire issue of whether he makes money on it since that's simply not a crime he can become guilty of by writing OPDE.
- the only question is thus if he becomes guilty of circumventing strong copyright protection but as already noted, it's hard to claim that the protection is strong.
- if you think about it, does OPDE really even circumvent copyright protection? Only when the original executable is run, is there a form of copy protection present - not when the data itself is being copied to a harddrive - and since OPDE doesn't use that executable but only the game data, it is debatable whether it even circumvents copyright protection. Arguably, the protection is in practice intended to protect the data from being used to play the game without a legit copy but since it would be fair use if someone that owns a copy of the came e.g. extracted the textures from the data and used them as desktop wallpaper (on his/her computer), it's hard to draw a precise line. If one were to draw it precisely where the protection is present, it would be "playing Thief with the original executable" - there's no protection for any other kinds of use and consequently nothing being circumvented.
If you're familiar with ScummVM and FreeSCI you know that they've dealt with these issues before. Once Lucas Arts realized that ScummVM aren't distributing "abandonware" they got a silent nod of approval but FreeSCI are more cautious - not because of copyright but because they fear that they might infringe patents or have "tainted" implementations - they e.g. implemented their own, different pathfinding algorithms and made sure that they were different. ScummVM does, however, have some not-so-clean-room implementations (the developers acknowledge that). Whilst we cannot be sure that EIDOS/EA would act as reasonably as Lucas Arts, there's plenty of stuff going on here that they would be more able to take legal action against but have chosen not to - e.g. resources from Thief Gold being distributed with T2 fan missions.
So Volca and everybody else that participates in the project certainly don't have anything to worry about due to copyright legislation. However, if this project at some point reaches the state where the old missions not only are playable but textures etc. can be replaced with better ones, then there might be some concerns (i.e., if some undertake the task of creating a package with new, higher res and colour depth replacements derived from the original textures).
OrbWeaver on 3/11/2007 at 11:22
Quote Posted by nident
if you think about it, does OPDE really even circumvent copyright protection? Only when the original executable is run, is there a form of copy protection present - not when the data itself is being copied to a harddrive - and since OPDE doesn't use that executable but only the game data, it is debatable whether it even circumvents copyright protection.
there is no way that reading unencrypted ZIP files off a standard CD-ROM and loading them into an originally-written application could be
considered breaking copy-protection, since there is no copy-protection applied to the ZIP files in the first place (if they were encrypted then this would be another matter). As you point out, the copy protection is part of the Thief executable, and OPDE is not interacting with this in any way.
Legally speaking, this would be for a court to decide, and they have been known to make some particularly retarded decisions regarding technology. This would set quite a bad precedent, as it would be equivalent to making it illegal to access
any data without using the "intended" application,
even if that data was not itself protected -- playing CD's on Windows with autorun disabled could even qualify, since this would fail to load the Sony Rootkit or other forms of underhanded "protection". Bye-bye Sound Drone, OpenOffice, Shadowspawn's TIM converter, any HEX editor on the planet, etc.
There is one possibility that has not been considered however. I haven't looked at the Thief EULA recently, but many of these EULAs have clauses forbidding reverse engineering of the application or its files, which if held enforceable would most likely cover the activities of OPDE. Depending on the jurisdiction these kinds of clauses may or may not be considered enforceable; in general reverse engineering is not a violation of copyright but the BNetD project was shut down by a court who found that the developers had waived their right to reverse-engineer the Battle.net protocol by agreeing to the EULA.
sparhawk on 3/11/2007 at 11:45
Quote Posted by nident
- the only question is thus if he becomes guilty of circumventing strong copyright protection but as already noted, it's hard to claim that the protection is strong.
In case of OPDE this is totally irrelevant to the case. :)
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- if you think about it, does OPDE really even circumvent copyright protection?
Yes, OPDE DOES indeed circumvent copyprotection. But this is irrelevant for this case. The primary objective of OPDE is NOT to circumvent copy protection. It would be a huge waste of time, because you could do a simple crack for this, and this already exists. The primary objective of OPDE is to ensure compatibillity with current systems. So even though OPDE would circumvent the copyprotection in the strictest sense, it couldn't be plausbily argued for. The reason why OPDE is circumventing the copy protection is because he is writing the program on his own, without reverse engineering the original code, which makes an even better case for NOT violating any copyrights.
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Only when the original executable is run, is there a form of copy protection present - not when the data itself is being copied to a harddrive - and since OPDE doesn't use that executable but only the game data, it is debatable whether it even circumvents copyright protection.
It's not debatable, it doesn't even exist. :)
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ScummVM does, however, have some not-so-clean-room implementations (the developers acknowledge that).
If that is so, it is a totally different case. This would only apply if Volca would use reverse engineering, or some sources from the original project. I doubt that he would have access to those. Reverseinegineering data strcutures is not yet illegal.
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Whilst we cannot be sure that EIDOS/EA would act as reasonably as Lucas Arts, there's plenty of stuff going on here that they would be more able to take legal action against but have chosen not to - e.g. resources from Thief Gold being distributed with T2 fan missions.
I think that Eidos would have a more than tough case to argue a copyright violation here. Depending on how Volca gains his information though.
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So Volca and everybody else that participates in the project certainly don't have anything to worry about due to copyright legislation.
Either he has to worry or not. It doesn't really matter which course the project takes afterwards, as long as he does not start distributing original assets. As long as he only provides the code, and the player has to use his own copy to make it actually work, there is no reason that a copyright infringment can be claimed.
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However, if this project at some point reaches the state where the old missions not only are playable but textures etc. can be replaced with better ones, then there might be some concerns (i.e., if some undertake the task of creating a package with new, higher res and colour depth replacements derived from the original textures).
And why exactly would this suddenly become a problem? This would mean that the project even surpasses the original code and is more and more new.
Volca on 6/11/2007 at 10:49
Sparhawk, thanks for separating the copyright discussion!
I'm not a lawyer, so this is just my personal view on the subject:
There are two things:
1. Violating copyright. This applies if some original content or a derived work would be distributed together withe the executable. This is not planned. I hope that people will, after release, learn how to modify the engine and content themselves. If there will be for example higher resolution terrain replacement, it can always be created as a binary diff file to the original, although it does not make much sense, it makes it unusable for people not owning the original games.
2. Violation of EULA: Reverse engineering (only covers the executable code if I'm not mistaken). Clean room approach seems to work. For my work, I discover the small unknown pieces of data by trial and error, using my own files created through the editor, doing a blind reading. There is unfinished PHYS_SYSTEM chunk reader in cvs to illustrate this. I consider this approach to be legal.
Executable files - another story - lot's already known, small pieces missing. Reverse engineering without profit making is considered legal in Czech Republic. This can change soon as we're getting closer and closer to EU legislative. This is not of much use for me, as I suck at reading assembly anyway.
Sorry for not directly responding to other's opinions. Too much text to crawl through and also a bit too lawyer(ish) for my particulary bad english :rolleyes:
sparhawk on 6/11/2007 at 11:15
Quote Posted by Volca
2. Violation of EULA: Reverse engineering (only covers the executable code if I'm not mistaken). Clean room approach seems to work. For my work, I discover the small unknown pieces of data by trial and error, using my own files created through the editor, doing a blind reading. There is unfinished PHYS_SYSTEM chunk reader in cvs to illustrate this. I consider this approach to be legal.
It is. However of course it would be a matter ofr proofing the case. :)
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This is not of much use for me, as I suck at reading assembly anyway.
That's definitely your best defense. Also reverse engineering by reading the assembly is quite tough and slow, and I usually don't consider this the best method, unless you really really need to be 100% sure to be 100% compatible. Usually there are other ways which are faster and for most cases just as reliable, like trial and error.
The mahjor problem is the international distribution. I think the author of DeCSS was arrested by the FBI, when he entered US terrority, even though his actions were perfectly legal in his home country. And of course, courts could prevent distribution in those countries as well, by ordering teh sites to shut down, as long as they are in their own legislative area. And most companies obey such orders even if they don't have to, because they don't care that much for small customers like us.
nident on 6/11/2007 at 11:45
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However, if this project at some point reaches the state where the old missions not only are playable but textures etc. can be replaced with better ones, then there might be some concerns (i.e., if some undertake the task of creating a package with new, higher res and colour depth replacements derived from the original textures).
And why exactly would this suddenly become a problem? This would mean that the project even surpasses the original code and is more and more new.
I presume that you mean that textures that surpass the originals. Now, if they are to work as replacements they must obviously otherwise look like the originals but be of better quality. Consequently they will be derivatives of copyrighted content and distributing them is thus copyright infringement. I have taken a course in "multimedia production" and one lecture was given by a copyright law expert and he said that it is irrelevant whether a copy is of worse - or better - quality than the original, it is still a copy so people that e.g. record themselves playing old game tunes on a piano are guilty of copyright infringement if they distribute the recording even though it sounds different and better than the original beeping...
Thus, to quote Volca:
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it can always be created as a binary diff file to the original, although it does not make much sense, it makes it unusable for people not owning the original games.
That is indeed the way to work around the problem. Now, in practice I doubt that Eidos would care because they don't care about people distributing derivatives of original with their FMs but just to be on the safe side, such a texture improvement project should IMHO be separate from OPDE. That is, so that all such downloads are kept separate from OPDE.
Now, as far as EULAs are concerned - they are completely invalid in the EU. The Finnish consumer rights authorities stated that explicitly in a FAQ on their website (I can try to find the link, if you insist). The reasons given were that it is illegal to set conditions after a sale has been made (the fact that EULAs claim that you are entitled to a refund if you disagree, doesn't matter since the sale has occured the moment you paid for it in a store). Furthermore, only a signature makes an agreement binding and finally, only agreements which grant you more rights than you already have as a consumer, are legal. Businesses, which licence software are, however, in a different situation but that is obviously irrelevant in this case.
OrbWeaver on 6/11/2007 at 14:34
Quote Posted by sparhawk
Yes, OPDE DOES indeed circumvent copyprotection.
Well no, it doesn't, because as I said above the CRF files which contain the Thief game data are
not copy protected -- they are just ZIP files sitting on a CD.
For a court to determine that this was breaking copy-protection, they would have to hold the following legal principle:
If there is a program P which contains copy-protection, and P accesses unprotected data D, then any third-party tool T which can read D independently of P is a violation of copy protection.
This would be a truly dreadful judgement, and would basically shut down the entire software industry in the court's jurisdiction because most tools are capable of loading data which might have been written by a copy-protected program. Hell, even opening the CRFs manually in WinZip would be a violation, so WinZip would presumably be illegal as well.
Of course it's all academic until actually tested in court, and given how they couldn't even shut down DeCSS even though that is primarily and solely a tool for breaking copy-protection, it seems exceptionally unlikely that Eidos would attempt such an idiotic lawsuit against OPDE.
sparhawk on 6/11/2007 at 14:47
Quote Posted by OrbWeaver
This would be a truly dreadful judgement, and would basically shut down the entire software industry in the court's jurisdiction because most tools are capable of loading data which might have been written by a copy-protected program. Hell, even opening the CRFs manually in WinZip would be a violation, so WinZip would presumably be illegal as well.
Yeah, I didn't mean that it strictly circumvents copyprotection in the legal sense, more that this line of argument can be used to claim that a copyprotectioncircumvention (nice word :) ) takes place. A laywer
could argue, that the copyprotectioncircumvention takes place, because the original program contained copyprotection and the new code does not adhere to this.
Depending on the actual court, for a non-technician, this can be seen as being quite plausible. And considering that I (and many others as well) expected the P2P case in the US would be turned down, and instead the music industry won (to "make a statement"), I wouldn't be surprised if you could use this line of argument in court as well and actually win. :grr:
