You can insist all you like, but I'll say again: in the field of intellectual property, in which I have worked as a professional for many years, infringement of copyright is very frequently not viewed as stealing.
It is viewed as the actual offense it is -- without going for simple-minded name calling. The variety of violations possible with intellectual property is *not* limited to moral equivalents of theft, but much wider.
For example, you don't call your customer a thief -- because of a technicality involving terminal emulation and the counting of licenses. Likewise, you generally don't call your project partner a thief -- even if some confusion remains over code sharing.
Apples and oranges. I'm coming from the world of artistic creation. While the example we're discussing is a video game (thus a piece of software), the property in question is artistic material. What it sounds like you're talking about is inadvertant exceeding of license terms due to coding complexities. I'm talking about illegal use of copyrighted material with full foreknowledge. This kind of infringement is rampant because most people don't respect intagible property as _property_, and they don't view it as...stealing. Which is is.
Oh, do you work in intellectual property, too? Where do you work?
Software design and engineering for labeling, barcode, logistics and mobile data collection. Not an old fish... but I do have approximately 100 projects under my belt.
Most of them required either study of copyright issues... or negotiation of said issues with suppliers, partners and customers. Often to assemble a product/solution belonging to multiple companies and/or including GPL freeware mixed with commercial software.
I was the head of the copyright department for a major music publisher for a dozen years, and have freelanced for the last several years. I have more practical knowledge of intellectual property law than many of the entertainment lawyers with whom I've unfortunately had to deal. Although you obviously know something about the subject, I really don't think that your experience is germane in this situation, or that you have anywhere near the practical experience (and the written law is only a guideline for how the law is applied practically) that I have.
In case of non-commercial freeware, a situation can exist where a potential licensee has no income or funds. In such conditions, a license *fee* cannot exist. This makes it a simple choice: allow or deny.
Correct. And that is the right of the copyright owner: to allow or deny. No one else can make that choice.
And, a license fee can indeed exist. Just because I say "You can use that excerpt of my copyrighted work in your textbook, and it'll cost you $100," if you don't have that fee doesn't negate the validity of my assessing it. It just makes you sh*t out of luck. Heck, I've argued over the difference between fees of $250,000 and $275,000 for the use of a piece of music, and the film studio crys 'poor mouth'...does that mean the fee cannot exist? No, it means that the prospective licensee cannot afford to use the work. Case closed, and they move on to another, less expensive piece of music for their trailer. It happens every day.
Even if business logic would say "allow", legalities (like the necessity of having all options open) often block a business decision and result in "deny".
In such situations, one solution does still exist: never ask. Instead acknowledge your weak legal basis, and promise to stop when requested. Risky -- yes. Illegal -- to be determined, neither by you or me.
No, it is indeed an infringement. It's not like Schroedinger's Cat, with the outcome only to be determined upon the opening of the box. If the use qualified under the Fair Use exemption, it would be a Schroedinger's Cat situation (based on what action the copyright owner decides to take, how a judge might rule, etc.), but since Fair Use categorically and absolutely does NOT apply in this situation, there's nothing questionable about it: it is an infringement. Whether or not it is ever pursued.
On the opposite side of the balance... every person learning about B5... is a potential customer for Warner. Apply a certain factor, and you have a certain amount of real customers. Reckon in the products bought/licensed... and you have real profit.
It's a very pretty theory, but it's simply unproveable. As unproveable as lost income from a legitimate licensed game that doesn't exist.
Illegality is determined by a qualified court, not by you or me. You can forever allege that IFH is theft... and I oppose, calling it commendable and beneficial contribution.
...based on an infringement of copyright. There's no question in this case. The only thing that would make this use
not an infringement is the existence of a license between the game maker and the copyright owner.
Second of all, you'd have to prove that Warner knows about this game and is ignoring it, which is a mighty hard thing to prove.
You are asking me to ascertain what is not within my resources to ascertain. Not having infinite time, I insist that you carry the burden of proof.
Wrong. I wasn't asking
you to prove anything. You'll note that I said
"you'd have to prove". I was speaking theoretically, saying that (in the hypothetical instance of a future lawsuit between the game maker and Warner) any legal team who wanted to make a case for the game maker operating on good faith based on Warner
not sending them a cease and desist letter previously would have to prove Warner's abandonment of the copyright by proving that they had knowledge of the game and didn't act upon it. Which is well near impossible to prove, and probably, in fact, not true (as I said in one of my previous posts).
As the party accusing someone of theft, I would say it remains *your* duty to prove actual wrong-doing -- not my duty to disprove it, by fetching for your examination something rather difficult to obtain.
Again, not a problem. The existence of the game, and the lack of existence of a license, is all the proof _any_ court would need in this case. What I was saying (I'll try this again; I don't know how I can get any clearer) is that in the case of a hypothetical future lawsuit between Warner and the game maker, Warner's case would be readily made ipso facto and prima facie. And that the game maker, if they were trying to defend themselves at all using the excuse _you've_ proposed (that Warner abandoned the property by not sending a cease and desist letter earlier), would have to
prove that they knew about the game. The burden of proof, in that case, would indeed be on the game maker.
IMHO, it is extremely unlikely that Warner has even heard of "I Found Her."
Very big leap of logic, although not absolutely impossible. A company consists of people. To assume that *nobody*, on any relevant position at Warner, has *any* interest in B5... is a big assumption to make. Because provided any interest in things related to B5, one would notice IFH fairly quickly.
Er, first of all: No. I did not assume, say, or otherwise imply that no one at Warner has any interest in B5. What I said was that Warner's staff isn't big enough to know everything that a fan knows. So that unless you have a serious fanboy/fangirl on the staff of the relevant department at Warner, someone like me, which is HIGHLY unlikely given the people who work in the field of intellectual property in the entertainment industry, they are not (and I hate to disappoint you) hanging around in forums and newsgroups reading all of this stuff, and probably do NOT know about most of it. What they know is how well the DVD sales are doing, what the actors are up to now, whether SciFi is still running the series at 9 AM on weekdays, in what countries rebroadcasts are still being shown, etc. They don't know about _most_ specifics in the fan universe, including fan art, fanfic, fan films, and fan-made games. The probably know about something like Babylon Park, mainly because some of the original cast members took part in that (and that stuff would probably be protected as a parody, which has its own rules). But I'd be really surprised to find that anybody in the department who has anything to do with licensing knows _anything_ about this game.
A massive majority of them would *not* consider it theft. Multiple would consider it a venture on very shaky ground, several consider it a copyright violation... but no reasonable person would consider it theft. Because it is not.
Whatever. I'm getting really tired of this pissing contest. I'm certain I've worked with more intellectual property lawyers and professionals than you, including policy shapers who spend a lot of time in Washington advising our nation's lawmakers; I've been involved with industry organizations that are on the cutting edge of copyright reform; and I've simply had a massive amount of practical experience in the field, over many years. In a _relevant_ field. I know that people are very resistant to copyright law, especially when it's going to cost them money, or take away a product (i.e. a fan-made game) that they like. People are very funny about paying for something they can't actually hold or consume; I've spent _years_ having this conversation with people in the public, every day. So I'm obviously not going to change your mind. I'll just close by saying that, no matter _what_ you think, or _what_ you say, the unauthorized use of copyrighted material by the people who made "I Found Her" is an infringement, and if Warner knew about it and chose to pursue, you can bet that game would be yanked out of existence faster than you can say "Zooty, zoot, zoot!"
Aisling
