611 réponses à ce sujet

[In Exile]

First, disclaimer: Note of this is to be constittued as legal advice, this is purely speculation on my part, if you have any questions about the scope and extent of your rights in regards to the use and modification of software, please discuss with a lawyer. 

Conduit0 wrote...
I'll go ahead and chime in here, modding is not illegal nor a breach of contract. Modding falls squarely under fair use laws in the US and most other countries.

I've taken a look at fair use laws, at least in the US. The relevant provision is 17 USC s. 107, which sets out a non-exhaustive list of uses, including "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". 

The formal test in the statute requires a consideration of the circumstaces, which are: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

Modding might fall under fair use, but it seems tenuous based on how the statute was written. I would imagine that any mod that isn't being sold commerially, that almost does nothing to alter the work (e.g. cosmetic changes) would presumably be fine. The issue might be under (iv), if your mod costs the developer money in comparison to their system of microtransactions.

But again, this is all speculation on my part. I have not looked at US case law, which dictates how the provision would be applied. 

Looking at how fair use works, you might be right. 

You can pour over every EULA in every game you own and you will not find a clause in any of them that attempts to ban modding, because the publisher couldn't legally do so even if they wanted to.

From the DA:O EULA, we have the provision:

"Further Restrictions Your right to use the Software is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, create works from, or use the Software or any component of it, except as expressly authorized by EA"

This seems to be the kind of language that would catch modding quite squarely. [Edit: With the caveat that if the software license allows modding, obviously it wouldn't be caught by this provision, but then that's back to where we were to start with - does the EULA allow for modding?]

The only place where the developer/publisher has any control over modding is in the case of online features, where they can potentially ban modding as part of their ToS, but even then, violating the ToS simply means you lose access to online features, such as multiplayer.

I'm actually not sure if the TOS would constiute contract which would give a dev/pub legally enforceable rights at common law.

Xewaka wrote...

First Sales right. Once money exchanges hands, the game is your property to use as see fit. This includes modding.

I took a look at First Sales, too. My understanding is that this applies only to distribution - that is, it's not a breach of the original developer's right to exclusively distribute a good, but it's distinct from the right to modify the work. At least in principle. Basically, it makes goods alienable (which is an important part of a good being property, and why you see developers argue that software is a license). 

Modifié par In Exile, 26 janvier 2013 - 04:48 .

[upsettingshorts]

Re: First sale rights:

Yeah, in Europe.

I'm not a lawyer, so I'm going to refrain from going into any sort of legal discussion. Suffice to say the law surrounding digital products is... inconsistent.

Modifié par Upsettingshorts, 26 janvier 2013 - 04:46 .

[Sakanade]

Ninja Stan wrote...

If you don't like microtransactions, it is generally a good idea to not purchase them. They should not be required to enjoy or finish a game, but are available for those who want that sort of content. Seems like a simple enough deal.

I feel absolutely the same way. 
And as soon as Stan made this post, this thread should have been resolved.

if it's optional, I don't care, Stan just confirmed this so I'm a happy panda.

[MerinTB]

EntropicAngel wrote...

Xewaka wrote...
First Sales right. Once money exchanges hands, the game is your property to use as see fit. This includes modding.

Read an EULA lately?

EULA's aren't binding.  They are as court-enforceable as "swim at your own risk" signs and anytime a parent signs a slip that waives all liability to a business that is responsible for their children.

EULAs are used because they HOPE you follow them.  Not because they can make you follow them.

[In Exile]

MerinTB wrote...
EULA's aren't binding.  They are as court-enforceable as "swim at your own risk" signs and anytime a parent signs a slip that waives all liability to a business that is responsible for their children.

They're contracts. And the scope of rights you have under a contract are ambiguous, and depending on what a future court would construe them as in litigation. 

The extent to which a given EULA provision applies is something you should get legal advice on, based on the jurisdiction you are in/the jurisdiction where the case might be litigated. 

Waivers are a good example of this. Lots of times, they are enforceable. 

Modifié par In Exile, 26 janvier 2013 - 06:06 .

[MerinTB]

I think people need to read a bit about contracts of adhesion, shrink wrap contracts, and that just because you bought something that comes packaged with a preset list of "since you bought this you have now agreed to this list of conditions" it doesn't mean you legally assented.

And as for "swim at your own risk" -

https://www.lawpivot...-swim-at-your-/
http://www.robertree...-accidents.html

It is in your interest to post such a sign at a beach or pool, yes, as it helps LIMIT your liability... but if you allow people to swim on your property, you're only true safety measure is a competent lifeguard.

Modifié par MerinTB, 26 janvier 2013 - 06:24 .

[In Exile]

MerinTB wrote...

I think people need to read a bit about contracts of adhesion, shrink wrap contracts, and that just because you bought something that comes packaged with a preset list of "since you bought this you have now agreed to this list of conditions" it doesn't mean you legally assented.

That's one case. I don't know the jurisdiction, or whether or not it fits with previous case law. But I implore people not to pick at cases as if they are represenative of judicial trends. 

In the US, cursory research indicates that there are two lines of cases: ProCD v. Zeidenberg, under which the Ks are enforceable, and Klocek v. Gateway, Inc., which held that they are not. 

At least in Canada, these contracts are binding, but can be void for unconscionability. 

[Wulfram]

My attitude would be that EA probably has a lot more money to argue about how binding the EULA is than you do.

Modifié par Wulfram, 26 janvier 2013 - 06:38 .

[sympathy4sarenreturns]

EntropicAngel wrote...

Xewaka wrote...

First Sales right. Once money exchanges hands, the game is your property to use as see fit. This includes modding.

Read an EULA lately?

EULA's need to meet the U.C.C., federal statutes dispelling contracts, and the Supreme Court.

[jillabender]

sympathy4sarenreturns wrote...

EntropicAngel wrote...

Xewaka wrote...

First Sales right. Once money exchanges hands, the game is your property to use as see fit. This includes modding.

Read an EULA lately?

EULA's need to meet the U.C.C., federal statutes dispelling contracts, and the Supreme Court.

I'm interested in this issue, because it came up in my course on Contract Law in the Paralegal program I'm taking at a community college. Now I'm curious to learn more about it by looking up some case law!

In Exile wrote...

At least in Canada, these contracts are binding, but can be void for unconscionability.

That's the impression I have as well. A given E.U.L.A., if it's unreasonable, could potentially be found void on the grounds that the user has no real power to negotiate or reject the contract (there's no valid acceptance). Of course, that's just my understanding from what I've learned in my program, so don't take what I say as legal advice!

As In Exile says, one shouldn't simply assume that a given E.U.L.A. is unenforceable, and it's always best to get advice from a lawyer if you have questions about your legal rights.

Modifié par jillabender, 26 janvier 2013 - 07:41 .

[jds1bio]

It seems this topic stopped becoming about microtransations and more about legal modding.

As far as micro-transactions go, I used to play games and pay micro-transactions...over 30 years ago. The games of the time were more like carnival-style offerings, where you get three tries or "lives". Once you've exhausted those, you'd have to "Insert Coin" to continue.

The difference between microtransactions then and now, is that you didn't pay the up-front cost. Someone else did by buying the arcade machine. They made their money back by collecting your micro-transactions. But now it seems you have to pay the up-front cost in addition to the micro-transactions, except you don't get to collect the micro transactions the way the arcade owner does.

[Fast Jimmy]

^

You could if you made a mod and then collected proceeds from Bioware selling it.

But that might be just preaching my own agenda slightly too much.

[bEVEsthda]

Sakanade wrote...

Ninja Stan wrote...

If you don't like microtransactions, it is generally a good idea to not purchase them. They should not be required to enjoy or finish a game, but are available for those who want that sort of content. Seems like a simple enough deal.

I feel absolutely the same way. 
And as soon as Stan made this post, this thread should have been resolved.

if it's optional, I don't care, Stan just confirmed this so I'm a happy panda.

Absolutely! Definitely agree. (But this thread now seem to be about something else). But I, for instance, bought all dlc for DA:O, and none at all for DA2. Proof of concept.

Nevertheless, I can't help feeling a bit sadness about that microtransactions were initally conceived to be lots of 50 cent payments for 50 cent items, which seemed like a great idea, while "micro"transactions, as redefined by industry, is now more like a few $4.99 to $8.99 payments for 15 cent to $3. items.

[AlanC9]

In Exile wrote...

MerinTB wrote...

I think people need to read a bit about contracts of adhesion, shrink wrap contracts, and that just because you bought something that comes packaged with a preset list of "since you bought this you have now agreed to this list of conditions" it doesn't mean you legally assented.

That's one case. I don't know the jurisdiction, or whether or not it fits with previous case law. But I implore people not to pick at cases as if they are represenative of judicial trends. 

In the US, cursory research indicates that there are two lines of cases: ProCD v. Zeidenberg, under which the Ks are enforceable, and Klocek v. Gateway, Inc., which held that they are not. 

My understanding is that Klocek is considered something of an outlier. There hasn't been too much litigation on the topic lately, and I doubt there will be.

[Sylvius the Mad]

In Exile wrote...

It's breach of contract. It's not the
same type of harm, and it might not be the same magnitude, but it's a
legal wrong all the same.

I don't see why something's legal status, in and of itself, would be relevant to anyone's decision-making.

AlanC9 wrote...

If we're evaluating the total cost of the gaming systems, why are we counting the TV's cost? A TV-watching gamer doesn't get the cost of his TV back if he plays games on PC. He just ends up using his TV less.

You're presupposing the existence of the television.

As it happens, my PC monitor is bigger than my television.  And, until 6 weeks ago, my television was a cathode-ray tube.

I always wondered about that. I did the math a couple years ago and found out that the effective size of my PC screen was about what I'd get if I played games in my living room on a 97 inch TV. I could get that down to 60 inches if I reconfigured all the furniture.

I'm not confident those equivalencies work.  Focus distance matters.

Modifié par Sylvius the Mad, 27 janvier 2013 - 04:43 .

[AlanC9]

Sylvius the Mad wrote...
I don't see why something's legal status, in and of itself, would be relevant to anyone's decision-making.

Some folks think there's a general obligation to obey laws, even if they're silly. Others just feel bad about breaking laws, so they take a utility hit even if they do break them.

AlanC9 wrote...

You're presupposing the existence of the television.

As it happens, my PC monitor is bigger than my television.  And, until 6 weeks ago, my television was a cathode-ray tube.

Right. The problem is figuring out how much of the TV's cost to count, which would be different for every gamer. In my case it would be zero -- there's no conceivable TV upgrade I'd get if I picked up a console, so the TV really would be free.

I always wondered about that. I did the math a couple years ago and found out that the effective size of my PC screen was about what I'd get if I played games in my living room on a 97 inch TV. I could get that down to 60 inches if I reconfigured all the furniture.

I'm not conident those equivalencies work.  Focus distance matters.

You mean people just like to be further away? I wouldn't know -- I haven't played enough on consoles to notice anything except how much I hate controllers. But whenever I'm playing an un-optimized console port on PC all the interface elements are enormous so console players can use them

[Selene Moonsong]

I think the conversation has strayed way off topic and is delving too much into legal realms, which is a topic few, if any, have any authoritative knowledge and expertise in.

Get back on topic and leave the legal wrangling to professionals.

[Conduit0]

jds1bio wrote...

It seems this topic stopped becoming about microtransations and more about legal modding.

As
far as micro-transactions go, I used to play games and pay
micro-transactions...over 30 years ago. The games of the time were more
like carnival-style offerings, where you get three tries or "lives".
Once you've exhausted those, you'd have to "Insert Coin" to continue.

The
difference between microtransactions then and now, is that you didn't
pay the up-front cost. Someone else did by buying the arcade machine.
They made their money back by collecting your micro-transactions. But
now it seems you have to pay the up-front cost in addition to the
micro-transactions, except you don't get to collect the micro
transactions the way the arcade owner does.

Your
anology doesn't really hold up, shoving money into an arcade machine is
mandatory to playing the game, instead of paying the full cost of the
game upfront, you're making small payments over the course of an
extended period of time. While modern micro-transactions are an optional
part of the game.
A proper anology for modern micro-transactions
would be a Pacman game that you can play for free, but have the option
to pay for a power pellet that can be used at any time.

Modifié par Conduit0, 26 janvier 2013 - 10:41 .

[AmstradHero]

Alright, have gone through the entire thread so far, I'd like to weigh in a few points.

Sylvius the Mad wrote...
They already have made the base game cheaper.  Games are less than half the price the were 20 years ago.  That fixed $60 is a steadily diminishing price over time as the value of individual dollars falls.  Measured in 2011 dollars, I paid $160 for just one new game in 1986.

Except you, and everyone else who brings up this argument is failing to acknowledge that the market of people buying these games has expanded significantly since that time. The concept of a game selling many millions of copies 20 years ago was utterly laughable. The cost of one unit is not the only thing at play here.

nicethugbert wrote...

Cimeas wrote...
Hey, you know what $1 for 6 hours of entertainment is pretty great.  Better value than we'll probably get off DA3 unless you do multiple playthroughs. 

Actually, it's crap.  If I had to pay $1/6 an hour for the years of fun I had playing Neverwinter Nights persistant worlds I would have 8 or 9 times what I payed.  I would have paid hundreds of dollars.  Companies can make plenty of money without charging nearly that much.

This argument is specious, because in terms of hours of entertainment per dollar, I think you'll find games offer better returns than most (if not all) other forms of entertainment.  $1 for 6 hours of entertainment is ridiculously good value for money, and would still offer better returns than you purchasing a new game in most cases. Regardless, it's a an individual's choice to decide at what price point they stop buying. If they don't, then they're not behaving like a discerning consumer.

Addai67 wrote...
I said I'd kick in for a modkit, and if a mod creator I really liked asked for Paypal donations I'd kick in, too.

That's great in theory, but in practice, it doesn't happen. I don't know what percentage of modders actually receive any sort of donation for their work, but I imagine it's incredibly small. Personally, I've never received a single cent. Now, I'm not complaining about this; I mod because I enjoy it. Of course, I would love it if someone decided they'd donate because of my work, but I don't expect anything. I do hear people say "I'd pay for mods", but I've not seen anyone do it, simply because
(a) they don't have to, and;
( typically it's not a straightforward process for them to do so.

That brings us to Fast Jimmy's suggestion of a mechanism by which modders could/would sell mods through a developer enabled mechanism. There are a bucketload of legal and distribution issues, and the idea that BioWare would potentially wear some criticism for mods that don't necessarily completely fit in tone or quality compared to the bae game, but I think those are things that can potentially be managed.

What we're then venturing into is providing a situation where modders can decide that they want to charge a nominal fee for their efforts, and gamers can decide if they want to pay for them. If this was something that could be extended to all platforms, then the potential audience would be huge, and it would not only offer modders an avenue to get something for the hundreds if not thousands of hours they put into modding, but also offer some financial incentive to game developers to provide toolkits to their users. It would be a gamble to attempt, but I think it's one that could potentially pay off.

Modifié par AmstradHero, 27 janvier 2013 - 12:50 .

[AlanC9]

AmstradHero wrote...

Except you, and everyone else who brings up this argument is failing to acknowledge that the market of people buying these games has expanded significantly size that time. The concept of game selling many millions of copies 20 years ago was utterly laughable. The cost of one unit is not the only thing at play here.

Yep. The size of the market is up, and so are the costs necessary to make an AAA-level game, which is the space Bio wants to play in. I'm not quite sure where this is going to get us.