On Software and Game Copyright and Second Hand sales.

stockvault-video-game-controller106338

This morning I got into a little twitter spat with a local game developer Matt Johnston. Basically he is arguing against companies like GameStop because they do not provide any revenue back to the original developers of the game. As he is a game developer, he is very obviously on the side of the games companies.

Matt made a blog article and very nicely quoted me in the article – one of the tweets during the to-and-fro conversation. Well as much as 140 characters allows.

Matt makes several points, one of which is that if we allow* a second hand market, then DRM will happen; and we don’t want DRM, so we shouldn’t have a second hand market.

(* note that it is not the right of the games companies to allow or ban it in the first place).

DRM is a red herring and not at the heart of the issue. DRM may be the games companies answer to the problem it perceives – but at the end of the day, DRM only hurts those people who actually pay for the game.

I could go onto many underground sites and find the latest games “for free”. Who wins there?

I don’t as I do believe the game should be paid for. I have a large collection of both Wii originals, and a large Steam archive.

Having said that, morally, I have a real objection to the games companies thinking they can ride roughshod over consumer rights and long established principles and doctrine of first sale.

The second hand market is both legal in the physical works *and* in the digital world. And thankfully we now have case law to back this up.

Last month, in the EU, Oracle lost a case (Oracle vs UsedSoft) trying to prevent resale of licenses to its software.

The court wrote:
“A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy.”

Further, Oracle, and Matt here, opposes further distribution based on licensing terms. The court also rejected this view, thus:
‘The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website. Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy.
‘Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.’

http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html
http://www.bit-tech.net/news/gaming/2012/07/04/curia-digital-distribution/1

In summary, as a gaming company, you would love to make income on the second hand sales of your games, who wouldn’t.  However, morally it is wrong.

Would you like the government to charge VAT on second hand goods? No? – they already got their cut, as have you in your first sale.

Thankfully, the law agrees with me.

 

Image: http://www.stockvault.net/photo/106338/video-game-controller

Experts Exchange, Google, AllFAQ.org and misappropriation of copyright.

Opinion Piece

I was googling (as a verb) and came across a rather peculiar message at the bottom of Google’s search results:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.


Interesting – never saw that before!

Following the link to Chilling Effects shows a copy of the complaint which has some interesting text in it.

Experts-Exchange makes a detailed itemisation of their registered Copyrights, none of which I find objectionable, however, the complaint then goes on to list several issues against the Defendant, the first and most egregious of which is:

a direct “copy and paste job” lifting the content of Plaintiff’s question and answer forums and inserting them onto AllFAQ’s website. AllFAQ’s question and “Solutions” are verbatim to Experts-Exchange’s questions and “Accepted Solutions;”

From this Experts Exchange is accusing allfaq.org of Copyright infringement against Experts Exchange owned Copyright.

At first glance, this might seem fully justified – but look at what they are claiming copyright on.  Experts Exchange are assuming copyright ownership of content that you, and I, and all their users create by asking and answering questions on their web site.

I looked at Experts Exchange’s Terms of Use and could not find any agreement that users were assigning their rights and copyrights to Experts Exchange. The relevant paragraph is:

“5. Content License

EXPERTS EXCHANGE enables Members to post problems or questions,
proposed solutions or answers, information, comments and other content
(“Your Content”) to its Site. When you post Your Content to the Site,
you understand and agree that Your Content can be viewed and used by
other Members who visit the Site with or without attribution.

You represent and warrant that you own or otherwise control all of the
rights to Your Content and that use of Your Content by EXPERTS
EXCHANGE and its affiliates will not infringe upon or violate the
rights of any third party. Before you use EXPERTS EXCHANGE Services to
post any information or content that is protected by intellectual
property laws, you shall have acquired the legal right to do so from
the owner or authorized licensee of such information or content.

By registering with EXPERTS EXCHANGE and posting Your Content on the
Site, you hereby: (i) grant EXPERTS EXCHANGE a non-exclusive,
perpetual, irrevocable, unrestricted, transferable, fully
sub-licensable, worldwide, royalty-free license to use, distribute,
display, reproduce, perform, modify, adapt, publish, translate and
create derivative works from Your Content in any form, media or
technology, whether now-known or hereafter developed; (ii) grant
EXPERTS EXCHANGE and its affiliates and sub-licensees the right to use
the Member Name that you submit with Your Content for purposes of
attribution; (iii) authorize EXPERTS EXCHANGE to assert and prosecute
claims against any third-party making any unauthorized use of Your
Content, including any use that violates this User Agreement
(“Third-Party Claims”); and (iv) appoint EXPERTS EXCHANGE as your
attorney-in-fact for the purpose of asserting and prosecuting
Third-Party Claims. If you do not wish to have Your Content attributed
to you, then you must notify EXPERTS EXCHANGE at

customer_service@experts-exchange.com
.

Experts Exchange acknowledges that the copyright belongs to the author as “Your Content” and that by posting you are granting them extensive licenses to use that content. You are not assigning your copyright to Experts Exchange.

Now I am glad that their ToU does not attempt to wrest copyright ownership from its rightful owner, that is right and proper.

allfaq.org is demonstrably guilty of screen-scraping the Experts
Exchange web site and I do not condone those actions at all. However, looking at what
they copied – it was the Title, Question and Accepted Solution text –
the copyright of 100% of that is with the original authors, and not
Experts Exchange.

Thus, in my opinion, this complaint against allfaq.org is without merit and should be dismissed.

It would also appear that Experts Exchange has also abused the provisions of the DMCA in forcing Google to remove the content. Google should restore the links.

And finally, Experts Exchange should implement some technical measures to prevent automated scraping. Find better ways to improve your search ranking, and if your competition beats you don’t ask your own members how to do better SEO; be told by them that you have no Copyright Claims on the content; and then proceed to file DMCA take down notices when you know you have no (copy)right.