Warlord Fred wrote:

Nobody making a fan game on BYOND has any right to say "this is my game". Fan games are derivative works, and belong to the owners of the works they are based off of. When you make a Pokemon game, that game does not belong to you. You own no rights to it. It is owned by Nintendo. All Pokemon fan games are rips, they rip off the original Pokemon game series.

In my opinion, all fan games should be banned from the search, no questions asked. If they are using copyrighted works they do not own, they are rips, and should not be listed. I don't know why BYOND Volunteers should be wasting their time sorting out the chaotic mess that is the BYOND fan game community. Just hide them and be done with it.

I mean no disrespect in any regard, however this is an ignorant point of view on an intangible "issue." Fan-Games are copyrighted, yes. Most, if not all Fan-Games do not have proper licensing, yes. But they are called "Fan-Games" for a reason. It's not illegal to develop a game for a fan community as long as you aren't making profit off of that game. If anything, Fan-Games are free advertisements and promotion to their respective owners, but should still be handled with care.

Fan-Games on BYOND are not breaking any copyright laws nor should they be banned unquestionably. The problem comes when developers argue and bicker over who is the "Original" owner of those low-quality games. If people would stop making rips as if it gives them some respect, it could be cleaned up. When they can be cleaned up of the garbage games, the ones still standing can be polished into something enjoyable because, let's be honest, it doesn't matter how popular your Naruto game is, take GOA for example. Very popular game, but in my opinion, still a very low-quality, unpolished project that seems barely out of its Alpha infancy.

If people had the drive to make something new and improved with Fan-Games, their reputation can return, however this Order of Precedence that has been set basically says that, "All fan games have to be made this way: Train Spam, Train Spam, Unregulated PvP, ect." When people begin developing Fan-Games with this mindset, nothing is progressed and, if anything, only regressed. I can't wait until the day that a team decides to make a quality Fan-Game on BYOND, and change the way things are done in that corner of the community.

Originality is sacred, but learning from others is the best way to advance yourself as a person.

Solomn Architect wrote:

Warlord Fred wrote:

Nobody making a fan game on BYOND has any right to say "this is my game". Fan games are derivative works, and belong to the owners of the works they are based off of. When you make a Pokemon game, that game does not belong to you. You own no rights to it. It is owned by Nintendo. All Pokemon fan games are rips, they rip off the original Pokemon game series.

In my opinion, all fan games should be banned from the search, no questions asked. If they are using copyrighted works they do not own, they are rips, and should not be listed. I don't know why BYOND Volunteers should be wasting their time sorting out the chaotic mess that is the BYOND fan game community. Just hide them and be done with it.

I mean no disrespect in any regard, however this is an ignorant point of view on an intangible "issue." Fan-Games are copyrighted, yes. Most, if not all Fan-Games do not have proper licensing, yes. But they are called "Fan-Games" for a reason. It's not illegal to develop a game for a fan community as long as you aren't making profit off of that game. If anything, Fan-Games are free advertisements and promotion to their respective owners, but should still be handled with care.

It is illegal for copyright infringement to take place, even without monetary gain.

Let me quote every home video ever published:

Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.

Fan-Games on BYOND are not breaking any copyright laws nor should they be banned unquestionably. The problem comes when developers argue and bicker over who is the "Original" owner of those low-quality games. If people would stop making rips as if it gives them some respect, it could be cleaned up. When they can be cleaned up of the garbage games, the ones still standing can be polished into something enjoyable because, let's be honest, it doesn't matter how popular your Naruto game is, take GOA for example. Very popular game, but in my opinion, still a very low-quality, unpolished project that seems barely out of its Alpha infancy.

Creating a derivative work based off of someone else's artistic work (Naruto, DBZ, Pokemon) is illegal under US copyright law if it is done without permission from the owner of said work.

The rest of your post doesn't matter, works that infringe on copyrights should not be listed as long as they are breaking the law.

Tom wrote:

That may be true by strict letter-of-the-law, but if we're really going by internet precedent, it's hard to justify sites like youtube and justin.tv even existing. Those sites serve strictly to rebroadcast copyrighted works, rather than the BYOND standard where the connection is much looser.

The only thing that concerns me is the difference in how youtube/justin.tv/etc. and BYOND get their content.


Earlier on when courts hadn't quite figured out how they were going to deal with internet copyright infringement:

-User uploads copyrighted content to Youtube.
-Copyright owner attempts to sue Youtube.
-Youtube claims that it can't realistically filter out all copyrighted content from the get-go because a system for such doesn't reliably exist. It doesn't explicitly accept videos - it publishes most of them automatically - so it's not really 'responsible'.
-Youtube becomes especially compliant with DMCA take-down requests to keep content owners happy(ish).

The difference with BYOND is that it does explicitly accept infringing copyright. I'm not 100% sure (but I've got a strong inkling) that this makes BYOND liable for that infringing content in some instances. Can BYOND really risk a lawsuit? (And on that note, is BYOND a proprietorship or a LLC or...?)

Solomn Architect wrote:

BYOND is not liable for any games posted herein, You're not going to arrest a Store Owner for one of his customers doing drugs.

The store owner's customers doing drugs is not a valid representation of this situation. It doesn't help anyone to make absolute statements like your own when it comes to legal advice over the internet. I am merely concerned for BYOND because I'd hate to see them get in legal trouble, so I am voicing the possibility.

For BYOND to qualify for safe harbor under title 2 of the DMCA, they "must not have actual knowledge that it is hosting infringing material or be aware of facts or circumstances from which infringing activity is apparent."(Ref) Youtube and other online service providers often qualify for this, because they don't actively approve or deny their customers submitting content. BYOND does actively approve or deny content, so when they approve infringing content, they are no longer guaranteed safe harbor under the DMCA for that content. This means that a copyright holder doesn't have to go the whole DMCA takedown notice route, and can skip straight to lawsuit for copyright infringement.

The chances of companies exploring legal routes with BYOND being 'miniscule' (I wouldn't agree with this, seeming as it's happened what - twice already?) isn't really relevant here either; it'd only take one pissy company to make things hard for BYOND.

Tom wrote:

Youtube doesn't have actual knowledge that they are hosting copyrighted material? Isn't that pretty much what Youtube is?

No, and I'd bet that a majority of content on Youtube is original content (i.e. crappy video blogs) or posted by the copyright owners (e.g. VEVO music channels).

Sure there's offending content on Youtube. Google actively tries to avoid this and certainly doesn't promote the content. For example, blocking audio tracks and video that match fingerprints of copyrighted works; ever seen a youtube clip that's flipped horizontally, or heard an audio track that's sped up a few seconds? That's people proactively trying to avoid Youtube's filter.

Compare that to BYOND, which actually had a channel dedicated to copyright infringing works. And according to the tag cloud on the games page, is apparently still the largest game section of the website.

I'm not a lawyer, but Murrawhip may be correct here based on the text of the DMCA. While users are still submitting the content, BYOND and volunteers are actively choosing what and what not to list.

Tom wrote:

Airjoe wrote:

Compare that to BYOND, which actually had a channel dedicated to copyright infringing works.

You mean like this? Or how about this?

Yes, just like those. Except deviantart and justin.tv staff don't pick and choose the videos and pictures.

Just because we have some manual intervention in our listings changes nothing.

(c) INFORMATION STORED ON SERVICE PROVIDERS.—
‘‘(1) IN GENERAL.—A service provider shall not be liable for monetary relief,
or except as provided in subsection (i) for injunctive or other equitable relief,
for infringement for the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
‘‘(A)(i) does not have actual knowledge that the material or activity is infringing,
‘‘(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent, or
‘‘(iii) if upon obtaining such knowledge or awareness, the service provider
acts expeditiously to remove or disable access to, the material;

^{Page 13}

I think it's a lot harder to claim that you do "not have actual knowledge that the material or activity is infringing" when your moderators are literally going through every new hub entry and approving it or denying it. And considering that you do have the knowledge but you don't remove the content, it's not unreasonable to believe that you may not be protected under the safe harbor previsions.

I'm not saying that BYOND's manual intervention does or does not make a difference, because I'm not qualified to make that point- but I'm not sure you are either. At the least it's probably something you should be aware of.

Airjoe wrote:

I think it's a lot harder to claim that you do "not have actual knowledge that the material or activity is infringing" when your moderators are literally going through every new hub entry and approving it or denying it. And considering that you do have the knowledge but you don't remove the content, it's not unreasonable to believe that you may not be protected under the safe harbor previsions.

I am going by a practical definition of "actual knowledge" here. Youtube and justin.tv both devote a huge part of their operation to hosting copyrighted content (which is actual more egregious than what we do since we don't really host any of the violating materials, unless you just go by names or the occassional screenshot). To claim they have no "actual knowledge" that such things exist is absurdity, considering it took me, a mere user not even familiar with their operations, 10 seconds to find 100x the amount of allegedly infringing content on their sites than ours.

The fact is that they operate passively, just like we do. They allow anyone to upload copyrighted content and only pull it when requested, just like we do. Because we filter out some content if anything only makes us more vigilant (since, for example, we can delist items that have been demmed invalid by the DMCA, as opposed to youtube which will continue to host known infringing material and only block individual listings on request).

What you are suggesting is that BYOND would be "legally" safer if we simply indexed everything and pulled copyrighted material only when requested via DMCA. We could agree to only promote original works (which is basically what we do right now, although I guess we could eliminate the "fangame" tag altogether). This would actually make it easier to find fangames on BYOND. To me, that makes it a bit ridiculous, but it's something I'd be willing to do if it improved the site experience.

Forum_account wrote:

What confuses me is why these games are tolerated. It clearly takes up a lot of time to deal with the issues created by these games. There is a super easy way to avoid all of that. Whether it makes you legally safer or not, it just seems like a good idea.

Yes, to me, this is a far bigger issue than the dubious legalities involved in intellectual property discussions.

Namely, does the presence of fangames make BYOND better or worse? I have seen good arguments both ways, and the current site structure was reached as a compromise, by allowing some fangames but not making them quite as visible.

I don't really think it matters what we index. If someone wants to play a Naruto game and the only way to find one is to type "Naruto" in our search engine... well, that doesn't really hurt anyone else. The problems come when this "rip" mentality (which is related, albeit not exclusively so, to the fangame community) begins to pervade our userbase.

Murrawhip wrote:

BYOND doesn't operate by accepting anything, then merely delisting items that it doesn't want - it very specifically approves listing requests as well, which is where the legal problem arises.

Ehhh... that's a pretty ambiguous line. BYOND technically accepts everything (the hub IS the database, and anyone is free to make a hub) while at the same time, accepting nothing (since the contents don't reside with us at all). The only place moderators currently intervene is in setting up the index. Where that falls in the legal scheme of things is unclear. I think there's hardly a case to be made, DMCA regulation or not, which is why whenever there is an issue over this kind of stuff, the solution is simply to for the IP holder to request compliance.

If the listing model changed so that you listed everything you received, then delisted things you don't want, you would be conforming to that requirement of the safe harbor provision, but I'm not really sure that that's something that'd benefit BYOND, as it's pretty well a step back to what BYOND had before.

I think you are correct on both counts, but I just wanted to point out how ridiculous it is. The fact is that by listing everything, all we're doing is becoming more open to violations of IP re-use, and yet somehow safer under these rules. That tells me that either the rules are bad or that we're missing something here. It is, however, something I'm willing to consider with the upcoming site updates since, if anything, it does make the listing policy a lot easier to follow. Rips are inevitably fangames (but not vice-versa) and determining these things is the hardest part of the admin decision-- so by simply not classifying fangames/rips we'll avoid a lot of work. The downside, of course, is that all rips once again get put back into the index for search.

Tom wrote:

I think you are correct on both counts, but I just wanted to point out how ridiculous it is. The fact is that by listing everything, all we're doing is becoming more open to violations of IP re-use, and yet somehow safer under these rules. That tells me that either the rules are bad or that we're missing something here.

It is ridiculous, sure, but that's American copyright law for you.