Ethical discussion on private servers

[Mid]

@juulz

My examples are arguments that person A purchases or otherwise obtains the entertainment, copies it, keeps a copy and passes it along to person B &/or C &/or D &/or E, etc…without compensating the author(s). This is IP theft.

There is also the case where someone hacks into a business’ server and steals digital work product such as software in development or decompiles software and uses pieces and parts of it in their own product. This is IP theft.

Both of these are correct. The operative word is ‘copy.’ In the situation where a library (I’m a retired librarian) owns (i.e., purchased) a book, a music CD or audiobook, or a movie and then lends it out to their members, the act of lending is covered under the First Sale Doctrine. This is where the owner of the IP, the creator, or their representative receives compensation for the sale. If you buy your fav book at your fav bookstore and lend it to a friend, it’s covered by the First Sale Doctrine. So is buying/selling an item from/to a used bookstore, a garage sale, etc. Copyright is not violated, no thievery occurred. If you copy the item and give it to a friend to borrow or keep, or you keep the copy, you are creating another version without the owner’s permission, they are not being compensated, and it’s considered theft.

Here is a pretty decent, quick read article on it : Why Copyright Law Allows You to Borrow a Book, But Not Share a Digital Song | Brookings.

And from what I remember about Blizzard shutting down private servers, I would have to go back and read about it, but wasn’t there a sense of understanding by Blizzard towards the people that ran the servers, but they had the servers shut down to protect their IP, but also the interest of their shareholders and employees? And didn’t Blizzard talk to the guys that ran the servers to see if there could be a meeting of the minds, hence Classic WoW? I don’t remember Blizzard taking a moral high ground against the private servers, but a protective, legal stance.

Still, when you take something that doesn’t belong to you without the owner’s permission, it’s theft.

Edit: Copyright laws also allow users to copy a certain percentage of the work for education purposes, without their permission. You just have to give them credit for the work and not pass it off as your own.

[Splutty]

@Mid

If you copy the item … , or you keep the copy … and it’s considered theft.

I’m going to assume you meant that you’re giving away the original and keeping the copy. But even keeping the original and making a copy for your own use has been contentious in the US.

Just as a for the record, this is rather unique to the US. Since almost all other western countries have some sort of law describing that making a copy for your own use when you still own the original is perfectly legal.

In certain countries it’s also perfectly legal to download a digital copy of something you already own (physical or otherwise), so the laws differ quite a bit across the world.

As for “IP” as it’s been used throughout this thread, there’s one thing you have to keep in mind. IP and copyright are not the same thing at all. Most of the discussions are actually about something else entirely, which is IP and trademarks. If you don’t defend your trademarks you can lose the rights to those trademarks, which would then ‘free’ the underlying IP. Copyright in that instance plays no role at all.

Conflating and confusing these two is fairly common, but under the law they are very different animals.

[Mid]

@Splutty

As for “IP” as it’s been used throughout this thread, there’s one thing you have to keep in mind. IP and copyright are not the same thing at all. Most of the discussions are actually about something else entirely, which is IP and trademarks. If you don’t defend your trademarks you can lose the rights to those trademarks, which would then ‘free’ the underlying IP. Copyright in that instance plays no role at all.

I agree. Copyright and IP are not the same thing. Copyright can be and is used to protect IP, depending on how the IP is presented. Software, a form of IP, is copyright protected since it has authorship. The game, World of Warcraft, is copyright protected. As is the server software.

I was speaking to two specific parts of the thread. The first part being the reason a library can lend out copyright protected materials to its members without consequence. The second part was if Blizzard shut down private servers because they were on a moral high ground or if it was because they felt they were ethically and morally responsible to protect their IP, their company, their employees, and their subs through copyright law since it violated their Terms of Use. I sided with the latter.

I guess I misinterpreted the IP and Trademark part of the discussion. I hope I didn’t confuse the issue.

Addendum: last thing I’ll say on this thread (promises, promises), but thanks to everyone for participating in such a heady discussion. I’ve really enjoyed it and love the different viewpoints.

[Alphea]

As a side note Libraries in the UK anyway do pay a royalty fee to authors whose books are lent out

[Snydelee]

I finally got around to watching the video Greyed linked. I got to the 27 minute mark, then skipped around, and have some stuff in case you do not have time.

First the legal case roundup by Delicieuxz with appropriate context. If you want to read what Accursed Farms was mainly basing his view on, that is your start.

Next, you can go to the 1:10:43 mark to the 1:11:00 mark in the video, and there are a series of summary slides which sum up his argument in words. That is worth doing.

After looking at the video, here are my thoughts.

WoW is a service because it is a monthly fee, and is sold as perpetual service, and Blizzard has full legal recourse against these startup servers. It falls out of the pattern here.

The rest of the games fall in the ‘goods’ category rather than ‘services’. If you buy a bike, you do not own the IP for that specific bike. You can not manufacture or make more of those bikes or profit from their IP. But you own that good, and you can do what you want with that good.

The problem with most of these GAAS (Games As A Service) is they sell you a perpetual license to the game, and at some point it will not be profitable and they will end the game (or ‘brick’ it). We know from the start that almost all games will not last forever, but they will not operate when the servers shut down.

Now you, the consumer bought a perpetual licence to a game that was bricked. And we know that unplanned obsolescence is legal in the US, but programmed obsolecense is not. HP lost a lawsuit in the SC regarding that. When they intend to break it, they end your usage of it, and this is where the fraud comes in.

So in the bike example, it would be like the bike company came in and slashed your bike tires so you could not use that bike. When you sell a good, you give to the user in exchange for the fee you collect perpetual usage, but the very design of GAAS means that they have built in programmed obsolescence.

The case he gave was in the 122 games that have ended, only 5 either gave the code to the community or offered a refund to the community for failure to deliver on their perpetual usage licence.

The gaming users then have bricked games they can not use, even though they were sold goods that they should have perpetual use of. Worse, they do not spend the time to transfer the knowledge to community to host their own emulator to continue to play their own game, and even worse than that, they go after those who are actively trying to fix the failure the gaming company left the consumer.

The EU, Australia, and Canada all recognize games as goods. The case in the US is muddied. Briefly my notes on this from the video

US. Washington State federal judge says yes you own software. 2010 appealed to 9th circuit, you do not own the software, you have to follow the license rules. Amicus brief filed saying this can be abused, is a dangerous precedent, asked Congress to do something about this. Ruling only applies to the 9th circuit. 2013 SC says people can resell copyrighted goods, including software licenses, and seller retains no decision making authority over a good once they have sold it to someone else.

WoW has maintained its servers and its perpetual license service, so these private WoW servers are piracy and we should have no part in it. Personally I would have concern over losing my existing account over this, and I have put a lot of time and effort into it.

What seems to be going on in bricked COH is that a developer started working on transferring the original code to the community, and several members in the community have worked to establish servers so players can play again. All of your account info though is still in his hands and he is not going to release that for privacy concerns or until the point in which the community has established a viable online community that can handle that properly. This looks like one of those few cases (the 5 out of 122) in which there seems to be an effort to transfer to the community the tools they need to play the game they bought as a good emulator functionality. NCSoft still has the EULA, the US courts still have not decided on this at the SC level, and strictly you are open to lawsuit by the EULA for playing this game.

But the interesting angle is this…in nations where gaming software (not monthly fee) for the GAAS category is considered a good, there will likely be a legal remedy of some kind in the future in which the basic problem of gaming companies sell you a perpetual license then brick the game and your ability to play it by taking down the servers. I think there will be something there. I think the developers know this, which is why they are moving to streaming games in which you never own the software instance, an there is always the impression that you are paying for a service as long as you own the service.

Many of the original online games started off with single player mode, with some degrees of online functionality. For example Heroes of Might and Magic strategy game had a single player game with game company maps, and they would release more maps with time, but you could always play that game offline. Over time players uploaded maps. When that game died, players could still play that game. The fee that you bought the game for meant you have something that lasted.

Now here is something to consider…should not a monthly fee game just have a monthly fee and no cost for the expansion? This double dip is problematic. You buy the expansion, so you own a good, and with that perpetual control of the good, but if access to the use of the good is covered by the game company they violate the basic property that once sold the seller retains no control over the usage of the good. Strictly I think for Blizzard to remain on the strongest legal grounds, they should not charge for expansions and only charge for monthly fees.

Consider GW2. You buy that game. You can go back and play that at any time. They have managed to keep that game going for years. What happens if they die? Will they transfer to the GW2 community the knowledge necessary to emulate the server and keep playing the good they purchased? I think they should. That is what a good gaming company should do. I really hope they would be the kind of company to do that. But this is the crux of the matter, when the company bricks the game, they render the goods the players bought useless. They spike the bike tire. This is a very legally gray area, particularly in nations where they consider software a good. This is the fraud practice, and I have hope that maybe we will see legal change in this area with guys like Accursed Farms and Delicieuxz pushing hard and making strong legal cases for this.

This entire post is meant as my take on the present legal situation. I am no lawyer. I do not advocate playing these private servers. I did try to make a stab at the underlying ethics here, and point to an ethical direction for gaming companies to take. My bet is they will transition to streaming games, and we will fully transition to services with no expectation of ownership, and this might be a legacy issue.

I did like Accursed Farms point on how these games are a form of art, and it gets lost. I find that sad. It would be like if a publisher went out of business, and your ability to read the books those authors wrote ended. Think of the loss. Or if when a painter died, all of the works of art they made vanished. When I look to old videos of COH, I have very fond memories of those games, which are fading, and I think this is sad. Culturally this art should likely be preserved for future access. The existing enormous number of years for it to go off copyright fail in games because the community that will of their own free time work hard to make an emulator is long dead by then. The lengthy copyright years does not work well from an art preservation standpoint for games.

[tomelectric]

I usually only play on private servers of friends and it is more of a way to get away from the things you are talking about.