Legal Opinion: Can free mods get away with copyright infringement ...

In a sure sign that the world needs more lawyers, Valve just removed at least 1,400 copycat items from the Steam Workshop. These items had no original creativity, and were simply ripped from other games.

Valve?s mod-purge started after finding that a particular mace from the MMO Aion was copied and sold as an item to buy in DOTA 2. The plagiarist won?t be seeing any money from the sales, but what is more interesting is the money-centric line some drew afterwards. Apparently, charging money for rip-offs = bad, making them for free = open season.

I can?t agree with this. Modder plagiarism is bad for reasons more than financial rewards, as we?ll discuss today.

Why copyright exists

Copyright rewards creative expression. It takes a lot of work to make creative assets from scratch?art, sounds, and general game design. It takes much less work to simply copy. Copyright is meant to stop others from making these easy copies.

As such, the basic justification for copyright is that without protection from piracy, creators won?t have incentive to make new works. Our law lets creators sue pirates for economic damage caused by copyright infringement.

However, copyright protects more than just financial profits. Reputation is a big part of copyright, and Australian copyright law guarantees that creators are identified as part of their moral rights. As such, copyright also ensures that you?ll be able to build a track record based on your original work.

Arguments against copyright

Against these justifications, two main arguments are used to justify copycat mods. First, that the mods aren?t hurting the creators. If a mod is distributed for free, then it?s arguably not taking any money away from the creator of the original game. As such, the economic justification doesn?t apply.

Second, that the mods are paying homage. The view goes that the mods are just an expression of fandom, and imitation is the sincerest flattery. As such, original creators should welcome, nay feel privileged that their works have inspired such copying. Therefore, the moral rights justification is sidestepped.

However, I can?t agree with either.

Copycat mods hurt a creator

One thing mods do is put a liked feature of a one game into another game. This is fine, when the feature is fairly generic, like when I put redheads into Skyrim. However, if a game has a really specific feature, like particular art or models, then a mod that copies these removes the need to actually play that game to experience that feature.

A great example is mods that place Forza car graphics into Grand Theft Auto . If you want to drive those cars, you don?t need to play Forza anymore. You can just play Grand Theft Auto, a game made by a completely different?and competitor?developer. This type of modding erodes the differences that people play different games to experience, and so hurts the uniqueness of the original game.

Copycat mods give undeserved recognition

Modding is big business these days. No longer dependent on simple community sites, mods enjoy large distribution channels like the Steam Workshop, and the attention of large gaming sites. We?ve personally covered mods like DayZ and Tekkit.

For many people, this kind of internet fame is sweeter than money. Saying that ?I didn?t receive any money, therefore I didn?t profit from my thievery? is disingenuous. Of course the modder profited from the attention, and if their mod contains work ripped straight from another person, the profit was unjust.

A true homage has original effort

Of course, there are homage mods that no one has a problem with. GoldenEye: Source comes to mind. While almost a direct copy of GoldenEye 64, it is far more original than most of the mods on the Steam Workshop.

While GoldenEye: Source shares many aspects of the original, all the code was created from scratch. All-new music was written. This makes GoldenEye: Source much more than just a slapped-together collection of someone else?s art. As such, the publishers of GoldenEye 64 presumably haven?t had a problem with it, which brings us to?

A true homage allows the creators to object

Many times an original creator will actually allow copyright infringement to pass. Gaming fan-art is a good example?Bioware has a very liberal approach to it. When a fan draws an erotic picture of Kelly and Leliana, together, the benefits of further emotional investment into the Mass Effect and Dragon Age franchises are seen as outweighing the costs of the infringement.

However, the sheer number of mods for a popular game like Skyrim will often make this difficult for a publisher to monitor, unless they have an army of lawyers scrutinising the internet. In contrast, a high-profile homage, like GoldenEye: Source, is easy for the original creators to monitor, approve, or deny as they wish.

For a mod to be ethical, it needs to either respect the right of the original creator to object, by informing them of any copying, or be original and not copy. Just because the Grand Theft Auto Forza-cars mod hasn?t drawn the attention of Microsoft doesn?t make it OK. It?s just a copycat that tries to sneak under the radar, and the modders should feel bad.

Disclaimer: As always, this is general opinion rather than advice on specific circumstances. Talk to a lawyer if you need legal advice.?

Source: http://games.on.net/2012/08/legal-opinion-can-free-mods-get-away-with-copyright-infringement/

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