Licensing

[johnwhelan]

John
I'm still confused by your premise on using your content in a payware route. Let's assume that I create a payware route that DOES NOT include any of your content because of your non-payware desire. A member purchases and downloads my route that does not include a reference to your kuid and after downloading, he replaces a piece of content that I have in the route with one of your non-payware pieces of content into the route or adds some of your content. Does this violate your desire. The content is now being used in a payware route. I didn't gain financially in the process, but it's still a payware route. Nothing has changed in the route in the process except the addtion of a reference.

Mike

I don't have any problems with this.

Unfortunately when a payware route is dropped onto the download tab in CMP and the content is automatically downloaded to the casual user it appears as if the asset installed is part of the payware route. It's difficult for them to distinguish between what is included in the .cdp and what isn't and its that that makes it difficult to justify asking permission to use textures for free saying there is no question of some one gaining financial advantage from the textures other than the photographer.

A major portion of my work has been using textures in this way. I certainly don't feel I can give any future undertakings on the use of textures if items are to be uploaded to the DLS. I can continue to create assets for my own use but distribution in the future becomes a problem.

Cheerio John

 

[johnwhelan]

That maybe true but your asset with the texture is NOT the item being sold. The route is the item being sold(unless the asset is packaged into a CDP along with the route) However if it is sold in a copy of trainz itself then I can possibly understand your argument.

Unfortunately it does have the appearance to the owner of the texture that some one is making a financial gain from their work and that is an issue.

If they had understood the position when I requested permission to use the texture that would be different. In fact if it had been clear at the time they would not have been uploaded. I've been around Trainz quite a while and this is the first time I've seen this.

Remember in the past a thread in the payware section was removed on my request when I pointed out the texture issue. Players and interpretations have changed.

Cheerio John

 

[sniper297]

"Let's assume that I create a payware route that DOES NOT include any of your content because of your non-payware desire. A member purchases and downloads my route that does not include a reference to your kuid and after downloading, he replaces a piece of content that I have in the route with one of your non-payware pieces of content into the route or adds some of your content. Does this violate your desire. The content is now being used in a payware route. I didn't gain financially in the process, but it's still a payware route. Nothing has changed in the route in the process except the addtion of a reference."

If I was a civil court judge presiding over a lawsuit involving this issue, that's the standard I would be obligated to apply. Long time ago someone made a payware route that included one of my early freeware MSTS track textures (honest mistake, the guy had it for so long and used it on all his routes that he forgot where it came from). Did the man financially gain from using my track texture? No, the route had a whole bunch of custom objects, textures, and even trainsets included with it, and most judges and juries would conclude that using my track texture didn't add anything that would significantly increase the value and saleability. (He sent me a free copy anyway after he discovered the omission, altho I never griped about it or did anything silly like threaten a lawsuit.)

However. The route I'm currently creating is a city route, makes extensive use of DMDrake's city building splines. If I were to release it as payware instead of freeware, it's true that there's no legal copyright violation since I wouldn't be redistributing DMDrake's assets. But for a civil lawsuit (assuming I did this without offering DMDrake a piece of the action and he decided to sue me), any lawyer could easily make the case that DKDrake's buildings SUBSTANTIALLY contributed to the value of the route - and therefore constitutes a DERIVATIVE WORK, and most judges and juries would agree.

That's the biggest problem with this argument, trying to make it black/white is/isn't legal/illegal won't work because each case would need to be decided individually, since what exactly constitutes derivative work is a variable rather than a fixed rule.

 

[Gandalf0444]

However. The route I'm currently creating is a city route, makes extensive use of DMDrake's city building splines. If I were to release it as payware instead of freeware, it's true that there's no legal copyright violation since I wouldn't be redistributing DMDrake's assets. But for a civil lawsuit (assuming I did this without offering DMDrake a piece of the action and he decided to sue me), any lawyer could easily make the case that DKDrake's buildings SUBSTANTIALLY contributed to the value of the route - and therefore constitutes a DERIVATIVE WORK, and most judges and juries would agree.

That's the biggest problem with this argument, trying to make it black/white is/isn't legal/illegal won't work because each case would need to be decided individually, since what exactly constitutes derivative work is a variable rather than a fixed rule.

But don't forget any lawyer worth his weight in gold(literally) could also refute all of that and make the case swing the other way.. The only winners in the end would be the lawyers.

 

[aardvark1]

~~~~snip~~~~. N3V have drawn my attention to the fact that assets uploaded to the DLS now have to be available for inclusion in payware layouts, fine and I've drawn to their attention the fact I don't have the appropriate licenses so could they remove some content from the DLS.

Cheerio John

The dilemma.....is a problem offering at least two possibilities, neither of which is practically acceptable.

~~~~N3V says it is OK. Possibly may not remove content.
~~~~John says it is not OK. Remove content.

ROCK<--------<John Whehan>------>HARD PLACE

Hopefully, an amicable solution will be agreed upon.

Regards,

 

[leeferr]

Unfortunately it does have the appearance to the owner of the texture that some one is making a financial gain from their work and that is an issue.

If they had understood the position when I requested permission to use the texture that would be different. In fact if it had been clear at the time they would not have been uploaded. I've been around Trainz quite a while and this is the first time I've seen this.

Remember in the past a thread in the payware section was removed on my request when I pointed out the texture issue. Players and interpretations have changed.

Cheerio John

Appearance is one thing, actuality is quite another.

I've downloaded third-party freeware routes before and they didn't automatically go to the DLS and download content. I guess routes on the DLS do, but I'm not aware of any payware routes on the DLS. Assuming that you are correct and when I install a payware route and then CM automatically goes to the DLS to download dependencies, then in order to solve the 'appearance' problem, I can include some wording in the description of the payware route that "no content is included in the .cdp of the route and therefore, purchase and download of this route does not include necessary content. All dependencies that are not built-in will require downloading from Auran's Download Station or from third party sites".

Will that solve your 'appearance' problem? I'm just wondering as I'm still confused why you think the license on the texture is being violated. The texture isn't included in the route.

Mike

 

[johnwhelan]

Appearance is one thing, actuality is quite another.

I've downloaded third-party freeware routes before and they didn't automatically go to the DLS and download content. I guess routes on the DLS do, but I'm not aware of any payware routes on the DLS. Assuming that you are correct and when I install a payware route and then CM automatically goes to the DLS to download dependencies, then in order to solve the 'appearance' problem, I can include some wording in the description of the payware route that "no content is included in the .cdp of the route and therefore, purchase and download of this route does not include necessary content. All dependencies that are not built-in will require downloading from Auran's Download Station or from third party sites".

Will that solve your 'appearance' problem? I'm just wondering as I'm still confused why you think the license on the texture is being violated. The texture isn't included in the route.

Mike

Money has changed hands and when the route is installed the texture can be seen.

How do you explain this simply to some one who needed reassurance that their license to me was that it would not be used for payware?

Remember this person is not a computer expert but can see their photograph being used on a route that some one has paid money for?

I think on the ethics thread someone said if you need to go to the legalities to justify your action it probably wasn't ethical.

Cheerio John

 

[johnwhelan]

Hopefully, an amicable solution will be agreed upon.

Regards,

and that's what I'm not seeing at the moment.

Cheerio John

 

[Pencil42]

The route I'm currently creating is a city route, makes extensive use of DMDrake's city building splines. If I were to release it as payware instead of freeware, it's true that there's no legal copyright violation since I wouldn't be redistributing DMDrake's assets. But for a civil lawsuit (assuming I did this without offering DMDrake a piece of the action and he decided to sue me), any lawyer could easily make the case that DKDrake's buildings SUBSTANTIALLY contributed to the value of the route - and therefore constitutes a DERIVATIVE WORK, and most judges and juries would agree.

What would the plantiff's claimed loss be in this case? What would be the basis for any damages or injunctive relief? What harm is being done to the plantiff by including these assets on this particular route? Since no law is being broken, what is the standing for a civil suit?

There may be a 3 month delay in getting your popcorn order.
However, the shelf life on your order is good for 6 months from today, May 11, 2011, so it still will be edible upon receipt.

OK, that works - I'll probably be busy trying to get my kangaroo to drink beer until then anyways...

Curtis

 

[magickmaker]

I think the big problem here is a bit of a misunderstanding on the part of John and many content creators. Let me put things into perspective for you in a situation that has nothing to do with trains or digital content.

Imagine if you will that a local lumber company offers up their scrap wood for free to whoever can come to pick it up. There are a couple takers, of which one of them creates a design that tells people how to use that scrap wood to build furniture. That person then turns around and sells the design, but includes none of the wood with it, leaving instructions for the people that buy it to go to the lumber yard and pick up the wood themselves for free. Word gets back to the lumber yard about this, and they quickly realize that they could be making a profit the same, but don't wish to stop giving the wood away. So, to prevent this person from selling the plan and making money, the company then decides to come up with this" license" that says "you can have this wood for free, but here is a list of things you can't do with it." Listed on that "can't do" list is use the lumber to make the furniture design that is sold by the second person. In with it, this license says that if the company finds out that the end user has done this (used the wood for the design), then they reserve the right to sue the person who picked up the lumber, for breach of contract and copyright infringement.

Sounds laughable doesn't it? No one in their right mind would think that the company which is giving the wood away could turn around and tell the people that are taking it what they can and can't do with it. The same goes in many ways for the DLS. By placing content up there, the creator is saying in essence "here, go use this." The only agreement that really needs said is "Don't sell this item without my permission." However much like the lumber company, as long as the creator themselves aren't selling the object, realistically there isn't much they can say about it being used in something else that draws a profit. In fact, as has been said, under copyright law the only real concession they legally can make is that the later user does not physically distribute it. Meaning that they do not include the actual object in whatever they sell. Having reference to it, no matter how much the original creator may protest, in the object that is being sold; however is perfectly legal.

Much like the company above, the content creator has to be well versed in what they can, and can not expect of the end user; and must weigh their options. As has been stated, if the content is hosted on an outside site with a controlled method of access (meaning registration and what not.) Then yes, allowances for licensing can be made that prevent certain actions. However to attempt to grandfather things in with a copyright claim which sadly is incorrectly worded and a license that wouldn't stand up in court; isn't going to have the desired effect. Instead of sounding like a creator standing up for their rights, it sounds like something far less. Something almost childish in a way.

In the end, both sides of this story have been told; and while it may not seem fair, unfortunately as things stand; there is not a whole lot that creators on the DLS can do to prevent their content being used in Payware routes. As things stand, without a major change in policies by Auran and N3V, such actions on the part of payware designers are perfectly legal. Granted, you do not have to like it and there are remedies for you in place; but once more you have to weigh your options. Do you request your content removed from the site, and further punish those who have done nothing wrong in your eyes (meaning freeware creators), or bite the bullet and let well enough alone, but quietly voicing your concerns?

I know what option I would choose there, but I'll leave it up to the rest of you to sort out. Suffice it to say there is no correct answer.

 

[sniper297]

"What would the plantiff's claimed loss be in this case? What would be the basis for any damages or injunctive relief? What harm is being done to the plantiff by including these assets on this particular route? Since no law is being broken, what is the standing for a civil suit?"

http://en.wikipedia.org/wiki/Intellectual_property

Up to a judge to decide if a law has been broken, and/or if the victim of the theft has suffered loss of POTENTIAL income. Basically it comes down to this;

I create this hypothetical city route using a number of downloaded freeware assets without contacting the authors for permission or offering compensation. DMDrake's buildings have already been mentioned, most judges and juries would agree that his buildings are an integral part of the scenery. I also used an office building by Someone Else, and a track texture by Another Guy.

DMDrake sues for theft, judge decides his buildings substantially enhance the value of the route, jury decides how much they enhance the route, awards compensation based on percentage of revenue.

Someone Else and Another Guy also sue me - Judge decides that any other track texture and whatever office building could have been substituted without decreasing the value of the route (or substantially increasing the "cost" in terms of work hours), therefore no potential financial gain, so no case.

That's the ethics question tho - If I could create this route without using your artistic creation, it weakens your case against me. If I couldn't do it, or it would be substantially more difficult without it, then you have a pretty strong case. That breaks down to two options;
1. Offer a cut of the profits, a free copy of the route, or whatever compensation the artist desires, reach an agreement on use.
2. If the author doesn't want his art used in any payware route, substitute something else. Obviously if you can't easily substitute something else, option 1 is the better choice.

Ethics wise, it would be better to offer DMDrake money, and change the track texture and office building if Someone Else and Another Guy object - the judge MIGHT decide that since I could have easily made a substitution and didn't do so despite their objections, that constitutes criminal intent.

 

[Vern]

From my dim and distant recollection of payware work for MSTS, generally speaking the route author/assembler got the biggest cut followed by the rolling stock guy - if there was custom rolling stock. The 3D asset creators then followed - generally that meant if there were 7 or 8 people collaborating on a route, the route author and rolling stock probably got around 20% of the net revenue each with the remaing 60% being split between the artists, obviously some abstraction towards costs and to offset possible returns, which did catch a few teams out in the latter days of MSTS payware production, or so I seem to remember reading.

Of course the actual money never amounted to much and even less after paying tax on it. In fact the greatest argument for sticking with freeware is that a little bit of pocket money for all the hassle you get doing payware in most cases simply isn't worth it.

Stand by what I said in the locked thread. If this sort of thing was attempted in MSTS, Railworks or just about any other sim there would be howls of protest - imagine the outcry if a FS developer released a payware aircraft but stated that in order for it to fly you needed to download a freeware cockpit from FS.com. The closest the flight sim world has got to this is probably FSUIPC which is a free app but referenced by many payware aircraft. However I would imagine there is a gentleman's agreement in place that a free copy of any commercial product finds its way to the utility author, which let's be honest is probably what most people would be grateful for in exchange for a route or anything else referencing one of their freeware items. Well, that and a mention in the credits.

 

[Pencil42]

Up to a judge to decide if a law has been broken, and/or if the victim of the theft has suffered loss of POTENTIAL income. Basically it comes down to this;

I create this hypothetical city route using a number of downloaded freeware assets without contacting the authors for permission or offering compensation. DMDrake's buildings have already been mentioned, most judges and juries would agree that his buildings are an integral part of the scenery. I also used an office building by Someone Else, and a track texture by Another Guy.

DMDrake sues for theft, judge decides his buildings substantially enhance the value of the route, jury decides how much they enhance the route, awards compensation based on percentage of revenue.

Note that by freely making these buildings available on the DLS, the author has already established the value at $0. There's no lost real or potential revenue to recover. Furthermore, those same assets may enhance a freeware route even more - so how can there be a non-zero value be attributed to them?

There's no theft (until the RIAA and MPAA succeed in redefining the word...)

There's no copyright infringement - the distributor (the DLS / N3V) has a legitimate license to distribute; given by the author in question.

There may be a licensing issue (this thread), but I would posit no because:
1: The DLS license supersedes any previous license, as it was specifically agreed to by both parties in the transaction, and occurred at a later time than the writing of the license in the content itself.
2: The license in the content itself is probably invalid, as there is no requirement for the end user to read or agree with the said license before using it. You can say there is in the text itself, but there is no mechanism where the user is forced to read your license before they use the content.
Its only use is communicating to interested parties how the author would like their asset to be used.

That's the ethics question tho

No, we had that discussion already - and someone may have a hard time suing over perceived ethical violations.

 

[leeferr]

Money has changed hands and when the route is installed the texture can be seen.

How do you explain this simply to some one who needed reassurance that their license to me was that it would not be used for payware?

Remember this person is not a computer expert but can see their photograph being used on a route that some one has paid money for?

I think on the ethics thread someone said if you need to go to the legalities to justify your action it probably wasn't ethical.

Cheerio John

Yes, money has changed hands for the route, not your content. When a payware route creator gets paid, the funds transfer and download takes place without regard to whether the purchaser has the dependencies or not.

I think most purchasers of payware understand that when they purchase a route, they are not getting the content with it unless the description for the route specifically says so, otherwise, it's their responsibility to find the dependencies. If this were not the case, we wouldn't have so many 'missing dependencies' threads.

Whoever licensed you a texture based on the fact that it would never be used for payware is being unrealistic. How can you make that guarantee to them when you're allowing the content to be hosted somewhere that you don't control. If you hosted the content yourself and had an agree/disagree box for the license before it was downloaded, then I'd be in perfect agreement with you.

It's obvious that we just keep going around this circle and you're never going to agree that the route does not include content. So, as I said in the 'ethics' thread. I'm just going to agree to disagree. I'm at a loss on how else to explain it. No hard feelings I hope.

Mike

 

[NSWGR_46Class]

John what is the real issue for you here.
John what are you hoping to achive
John What are you expecting from N3V
John What are you expecting from fellow trainz users

Thanks
Dave
bearcat

 

[ShadyCadence]

My problem is purely textures, I obtained permission to use certain textures on the premise that they would only be used for freeware. One photographer was very clear and very emphatic on the point, if there was any question of payware then I didn't have a license to use the textures.

I actually buy payware from time to time and I think there is a place for it, but the issue at the moment is how to resolve the texture issue. N3V have drawn my attention to the fact that assets uploaded to the DLS now have to be available for inclusion in payware layouts, fine and I've drawn to their attention the fact I don't have the appropriate licenses so could they remove some content from the DLS.

Cheerio John

You're completely clear here, John. YOU have sold nothing, YOU have not included the texture in payware, and YOU do not have the ability to control the behavior of others. As an example, let's say a photographer sells a picture to a magazine, and said magazine publishes said photo in an issue. Someone else takes said magazine, includes it in a piece of art he's calling his own, and offering for sale (this is technically inaccurate, since .cdp's do not actually contain assets unless deliberately made that way).

Can the photographer hold the magazine publisher culpable for this?

If this piece of art (let's say it's a table and some chairs) instead of including this magazine on the table, it has a white piece of paper on which is written: "Issue # xx of magazine ______ goes here."

Does anyone, even for a moment, see a copyright violation there?

 

[sniper297]

Well, I disagree with the assumption that freeware has a value of zero, but that depends on the artist. :hehe: You can't legally download freeware and then sell it for a profit, you can't legally profit from derivative work without permission from the creator of the work that your work is based on. Where the tough part comes in (and why shysters get the big bucks) is determining to what extent the item offered for sale is derivative of somebody else's work. Obviously any route is derivative of work previously done by Auran/NV3/what ever their name is this week since it was created using their tools, I assume they already have some type of EULA for that. As Vern said, primary reason I never went payware is because i didn't think there would ever be enough money in it for the aggravation involved.

"You oughtta know by now when it comes to the law, NUTHIN is understood!" -
"Dragline", George Kennedy, COOL HAND LUKE

 

[pommie]

OK, its time for a curve ball,
Lets say I buy a route, and coincidently have all the content already installed, all of a sudden I must go through all the content referenced in the route, delete (and substitute) all content that states it must not be used in payware, ok I am ethically bound to do this (according to the locked thread), now my own route is missing a heap of content, meaning I am now being prevented from using DLS content for the very reason it was put on there for, which in turn means that those with a non-payware clause are going against the terms of uploading content to the DLS, is this ethical, I think not.

Ethics is a two way street.

In Australia, any agreement on the use of an item must have those terms and conditions displayed so as to be able to be read before opening the package, the days of "By opening this package you are bound to the terms and conditions contained within" are thankfully gone.

Any terms and conditions which require you to open the package to read are null and void, and being free makes no difference.

Now considering the above, if legally you can enforce the non-payware clause, it would be required by law for the non-payware clause to be able to be read before downloading (regarded in this case as opening), this is able to be done in the description of the content, at the top, so why hasn't it ??

The above is not directed at any individual, but hey, I have my asbestos pants on, and its cold, so flame away if you need to.

Cheers David

Cheers David

 

[sparky15]

Brad,
I'm an amateur photographer looking to start my own business.

As far as the image, the photographer holds all rights. That goes for a portrait of you to an image of great grandparents made years ago. There was a major flap of people scanning old photographs to have reprinted. You actually have to contact the estate of the photographer, even if he has passed on, to obtain the rights to reprint.

The courts here in The States ruled in favor of the original copywrite holder, the original photographer. If he is passed, the estate holds those rights.

I know international laws are different. Here, though, the dollar people from the music business, movie business and even photographers lobbied big bucks to maintain copywrites. The system is skewed in their favor. Even if you host an image on Flickr, say, any unauthorized use faults toward the original uploader. They caught some companies taking those images and using them without permission. A cruise line took a hit not to long ago for doing it and had to pay big bucks after the fact from an image they took from a free hosting site. For your info, companies are trawling those sites looking to steal your images to avoid paying royalties. Just a heads up and it's only illegal if you get caught. A few hosting sites were held guilty.

If I take your portrait, I own the image. If you take that portrait to a third party printer, both you, and the printer, are liable if I find out and subject to pay restitution. Take a portrait of you with a photographer's watermark on it to Costco and see how far you get.

Dave.........

 

[NSWGR_46Class]

The above is not directed at any individual, but hey, I have my asbestos pants on, and its cold, so flame away if you need to.

Cheers David

Cheers David

Oh man I wish I had said that one

its cold here it was snowing again this morning - to wet for it to settle