Boy Dave, I couldn't agree with you more.....
Having been recently engaged in a very similar situation with the Havas
Legal Department (representing Sierra/Papyrus "property rights and EULA" for
NASCAR 3)....I could literally write volumes on this subject....I have an
"intimate" experience with it....lol. Since I'm already known for writing
r.a.s. posts that are way too long....I'll not go into all the ramifications
and issues I am aware of on this topic....through my personal experience.
Suffice it to say, everything I've read under this thread (so far) barely
scratches the surface....with regard to the "issues" and complexity of these
issues. I'm speaking not only of the "legal issues," which are immense, but
also of the "marketing, distribution and related business issues" which are
even more immense in scope and complexity.
I do have a few "comments" I would like to make.....actually they are more
like "topics" to suggest and open discussion for. Several of these, I
believe....will not be very popular among the readers of this newsgroup.
That's fine.....actually, that's why I'm going to present them for
discussion!
But, before I do that, let me say that the recent "experience" I had
(through my company, Pabst-Racing.com) with the Havas Legal Department, was
not a bad experience, nor was it totally adversarial. I believe Papyrus
(through Sierra/Havas) acted appropriately in sending us a "cease and
desist" letter. Everyone I talked to at all of the principal companies were
courteous and professional. I'm not mad at Papyrus nor has this experience
left me with any bad feelings towards them in any way. In fact, if the
situation had been reversed, I would have sent me a "cease and desist"
letter too! The issue was resolved amicably....and quite easily on the part
of both parties, I believe. This is the first public statement, of any
kind, anywhere....that I've made about this "event" we went through with
Papyrus ....many, many months ago. I felt compelled to make it
now.....because I don't want anyone (in the sim community or at
Papyrus/Sierra/Havas) to mistakenly assume any comments I may make below are
written with the idea of taking "shots" directly or indirectly, at Papyrus
or any of its employees. They are not written for that purpose in any
way.....and I don't even feel a need to take shots at Papyrus for any
reason. (Note: I will not go into any details of this issue with
Papyrus/Sierra/Havas....so don't waste your time and space on this newsgroup
server making posts in this string asking me questions about it.)
That being said, here are a few things I discovered.....through my research,
through discussions with our attorney (who specializes in Internet Law I
might add), through research done by him....and through discussions I've had
with "gaming industry" professionals on this topic for the last 18 months or
so. These are not so much "opinion"....but more like "questions" yet
unanswered.....for members of this sim racing community to consider:
1. The Internet is a powerful tool for not only information distribution,
but "product" distribution as well. Yet, it is mostly unregulated and the
business landscape for the most part, appears more like that of a group of
"street vendors" rather than an organized marketplace. Like the "street
vendors" market....it is wide open and vulnerable to unscrupulous people,
fencing activities (both organized and unorganized) and various other
fraudulent business activities. How does a pc-based software developer
(gaming or otherwise) protect its intellectual property and product software
adequately, when all they have as a tool to do so is a "contract" with their
users/customers. These End-User-Licensing-Agreements, as they are often
called, are not very powerful tools to combat fraudulent activities. They
are governed legally, by "contract" law.....not by "criminal" law...for the
most part. Contract law, unlike criminal law, isn't even a "written law"
for the most part. Contract law is primarily written by the judgments
handed down in the civil courts of this country. Since the Internet is so
new, there's not much "case law" written (not many cases involving the
Internet civil contract disputes have actually gone to trial). What is
left, is the legal community (lawyers) simply "speculating" on what would be
upheld, could be upheld, might be upheld......if and when some "issue"
actually went to trial. Every "restrictive use statement" in a software
developer's EULA....is potentially an "issue" that could be litigated....but
probably has not yet been litigated. Software companies, have tended to
pack their EULA's with every possible weapon conceivable.....because they
just don't really know what will or will not hold up in court. Of course,
the "scare factor" is an important element of their attempt to force user
compliance.....and combat fraudulent use of their property. This is a very
difficult issue, and its final resolve is many, many years away.
2. Most sim racing "game" EULA's prohibit "hacking" of their code and
files. User created "patches and upgrades" and so forth, no matter how good
they are, no matter how much they improve the realism, enjoyment and
value....of a racing simulation for all the users....is still "hacking" the
code and files....or modifying them in some way. Even, if you only "add"
your files to that of the "developers game files".....its still results in
an "end product" not created by the developer....that's prohibited.....and
should be prohibited! Please note, the prohibition to "hacking" game files
doesn't say, "If you don't sell it.....you can go ahead and hack our game!"
It has nothing to do with whether you make money, sell it...or give it away.
Legally, what you do with your "hack" isn't the issue....its the "hack"
that's prohibited. Of course, what you do with these patches and
upgrades.....then gets into other areas of prohibited activity in most
gaming software EULA's. I actually think where we are going to have to go
with all this is something along the lines of the "shareware or freeware"
activities that have been very popular and very lucrative to many
independent code writers and creative talents within the computer industry!
Some of this "shareware" programming....is very close to "hacking" in the
legal sense! There is a very fine line for many of these "privately
produced" utilities and tools.....between a hack, and an independent code.
A very fine line, indeed. Frankly, I believe the sim racing community
specifically, would be much better served if all these user-created patches
and upgrades could be done within the framework of some kind of a
"shareware" marketplace, where the original developer can also participate
in some of the financial rewards of the patches and updates, by granting a
"shareware license" to the creator, so he/she can sell his creation and pay
a portion of his/her income to the original racing sim developer! Let the
"marketplace" determine if the "hack" is valuable or not....just like every
other product in a free marketplace, people won't buy it if its not a good
and desired patch. Of course, then you get into "licensing"
problems....since most of them have restrictive use clauses which
dramatically narrow the field of what use....the license is granted for. So
for example, Papyrus couldn't grant me a "shareware license" to produce a
2001 Winston Cup car set for N4.....because that would be in fact,
sub-licensing out...all the licenses they obtained to use the icons, names
and logos, images and so forth....that are in N4 (like NASCARS's name and
logo.....an obvious example). In order for any type of "shareware" program
to work....this issue would have to be resolved first.
3. The "product license" game that all sim racing developers have to
play.......is one of the stupidest business activities I have ever
encountered in my entire life. As I've read many times here on r.a.s., its
tantamount to NBC paying NABISCO (for example), to advertise NABISCO's
products during NBC key programming....because NABISCO's products will
increase TV viewers for NBC TV shows! Huh? Whose fault is this anyway?
Well, here's the "rub" as I see it. Its not anybodies fault. At least, its
not anybody currently in the sim racing game development industry right
now...who is responsible. Everyone in the industry at this moment....is
doing what has "always been done"....i.e., paying a fee to track owners
(this is only once example of sim racing license fees paid) for the name,
logo, image and likeness...of their track. And, as long as there is one
game developer willing and eager to do this.....they all must do it (and
probably end up having to sometimes competitively bid against each other for
the license). I don't know who actually started doing this in the gaming
industry.....what his or her name is.....but I do know...whomever they are
(were) they had no clue about running a business. Because, since that
day.....everyone has had to repeat the same dumb mistake.....as long as one
developer was willing to "pay up!" It was probably some "hack
programmer"....who mistakenly was given marketing management
responsibilities....to go get permission from some stubborn track owner to
use his track. Instead of doing his/her homework, making a good business
presentation about "promotion of the track's ticket sales...promoting racing
in general" and so forth, they just took the easy way out and wrote the
track owner a check....for his permission to use the track in their game!
Now, everybody has to do it! Since this nation's anti-trust laws prevent
all the racing sim game developers from having a meeting and jointly
agreeing to stop this stupid business practice.....together and all at the
same time....we are going to have to put up with this major problem for a
long more time I'm afraid. I doubt very seriously whether anybody in the
current sim racing game development industry at this
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