The Silver Lining Cease and Desist

[Erpy]

Where does iD enter into the discussion, MI? I think I missed something.

It was in a comment AGD2 made further up.

[Brainiac]

Ah. That explains the confusion; I didn't go back far enough.

[Lambonius]

Brainiac, I do hope you'll keep us posted on your new toaster project. I can't wait to see how you improve on the original!

[crayauchtin]

Woo-hoo! Debate time!

YAY!

Ok, I'm not really debating, I'm just correcting something....

I'll close with this one last thought. You cannot copyright an idea. You can only copyright an implementation. A person can copyright a schematic for a toaster. A person cannot copyright the idea for a toaster. Think on that and then apply that reasoning to indie game development and see where it leads you.

No, but you can trademark it. Using your toaster example, if I make an improved version of a Oster toaster and market it as a "sequel" to that brand's toasters, I AM IN THE WRONG. Legally speaking, no matter how cool my toaster is, no matter how much the public loves my toaster, I'm breaking the law. Now had I made this toaster, gone to Oster, presented it and asked for support, they could have granted it but insisted I not call it an Oster. That's closer to the potential relationship Bobby Kotick claimed to want at DICE. The whole idea of Intellectual Property and Artistic Rights is that the profit from ideas belongs to someone in the realm of fiction. Stories are different beasts than toasters, after all.

You guys have this totally backwards -- Trademarks exist only for logos, titles, product names....and a trademark only lasts for three years after it stops being used (meaning that when it was being called KQ9, the trademark had lapsed -- the reason they wanted POS to change the name was because they were re-registering the trademark to release the new collection in 2006, but there actually was not a violation.) TSL does not use the name King's Quest, except for in its disclaimer which it has to do, and has its own logo, so it is actually not in violation of the trademark. At all.
What you *can* copyright is characters, places, etc.
However, a lot of people (I haven't seen anyone here though) seem to be under the impression that if you don't actively enforce your copyright, you're at risk of losing it. This is not true. The ONLY way that you can lose your copyright is be dead for fifty years. (Or in this case, for the company to go under and the final CEO of it to be dead for 50 years.) (Or is it seventy years? I forget. One of those!)
Anyways, there's fair use laws with copyright which put TSL pretty solidly in a gray area. The four factors used in determining if something is fair use are:
1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Since TSL was not commercial and no one was making any money off of it and it would not provide competition for Activision (Activision does not have a sequel to King's Quest that they're selling after all), it would (likely, depending on the judge) qualify as fair use here.
2) The nature of the copyrighted work
This isn't asking if it's a computer game or what -- what it's talking about here is the world that was created, the characters, the overall plotline. Things like that tend to get protected pretty well because a lot of work goes into creating them... but at the same time, if it was found that TSL followed the nature of the copyrighted work then a judge might let that slide.
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
This is where TSL is the most likely to get called into question since it is so deeply tied into previous KQ works. However, as we've seen from what little we know about the plot of the game, they've definitely added things of their own as well. So...y'know, this one would REALLY depend on the judge and it's hard to say where that decision is likely to fall.
4) The effect of the use upon the potential market for, or value of, the copyrighted work
This basically asks if the release of TSL would harm the sales of any of Activision's products or conflict with Activision's products. If Activision were publicly saying they plan on releasing a sequel to KQ, hands down they're not only in the right with the C&D, they also kind of have to protect the sales of that (in case POS' sequel is better, y'know?) However, Activision is not (or at least hasn't publicly announced one) and Activision is making an effort to sell the KQ Collection and the various KQ games on Steam and GOG so... the effect would most likely be an increase in those sales, and probably any judge would tell Activision that they're being stupid for issuing a C&D on this project (I mean, more professionally than that but that would be the message :P)

Anyways, the main point is, that TSL wasn't violating any trademarks.

(Oh, to be a lawyer's son! All of the random legal stuff I know and will never actually use. :P But don't take my word for it, take Harvard Law School's! )

[Lambonius]

@crayauchtin: I think you're splitting hairs here--perhaps Brainiac misspoke when he used the term trademark, but you said it yourself that TSL is violating copyright law with their use of the characters, names, world, and backstory of the King's Quest universe. I think what Brainiac is trying to say is that it is completely understandable that Activision would step up to protect their IP here, whereas many have been acting as though Activision was horribly out of line in doing so. Since when is it out of line to attempt to protect one's rights and property?

*Of course, just because Activision's actions were understandable, doesn't mean we have to like it.

[Erpy]

It's kinda funny that with all this talk about copyright infringement, copyright infringement isn't even the issue here. I believe the agreement TSL went into with VU stated that once the license was terminated by either party, development and distribution had to stop immediately. And while this is kinda sordid, there isn't a judge in the world who'll question that Activision has the right to halt development on what is legally their own project. (yeah, that includes all the new elements as well)

[crayauchtin]

@crayauchtin: I think you're splitting hairs here--perhaps Brainiac misspoke when he used the term trademark, but you said it yourself that TSL is violating copyright law with their use of the characters, names, world, and backstory of the King's Quest universe. I think what Brainiac is trying to say is that it is completely understandable that Activision would step up to protect their IP here, whereas many have been acting as though Activision was horribly out of line in doing so. Since when is it out of line to attempt to protect one's rights and property?

*Of course, just because Activision's actions were understandable, doesn't mean we have to like it.

For some *true* hair-splitting (:P).... it's technically not a violation because TSL admits (and has a disclaimer) that they don't own anything of King's Quest.
It's also not a violation because they'd work out an agreement with Vivendi who were (and in a parent-to-Activision sort of way still are) the owners of the IP. However, even with both of those facts, Activision does have the legal right to shut it down -- it doesn't have to be a violation for you to issue a C&D.

Anyways, it's not horribly out of line, legally speaking, and I wouldn't say it was, it's just horribly over-protective and kinda stupid. :P If POS had the resources to fight a legal battle with Activision though, there's a solid chance they'd win under fair use.

I'm not sure that Activision had the right to have them remove the forums though, I'm a little fuzzy on public discussion when it comes to the Internet but I'm pretty sure that everything that was discussed counts as a transcript of public record (as the forums would, I believe, be considered public) and therefore even if threads involving TSL had to be locked, their archives should still be accessible to the public.

And, yes, Erpy, that's absolutely right too, but that still doesn't mean that Activision was in the right... y'know, morally or financially speaking.

[Lambonius]

Another thing to point out: Activision didn't actually ask them to shut down all the forums; they just asked all TSL related material be removed. POS chose to shut everything down because filtering out all the TSL related material while leaving everything else would have been a gargantuan and horribly tedious task.

[DrJones]

Sorry to hear those news. I remember something simmilar happening to the Aliens Total Conversion for Quake, that got shut down in 1997 or so by Paramount, and also what happened with the Chrono Trigger remake in 3D or the Cave Story port to DS. Let's hope you get to publish your game some way or another in the future.

[crayauchtin]

Another thing to point out: Activision didn't actually ask them to shut down all the forums; they just asked all TSL related material be removed. POS chose to shut everything down because filtering out all the TSL related material while leaving everything else would have been a gargantuan and horribly tedious task.

Right, I know that, but what I'm saying is because the TSL related material was still a public discussion, I don't think (although I don't know for sure) that Activision can actually make that request.

[Lambonius]

Another thing to point out: Activision didn't actually ask them to shut down all the forums; they just asked all TSL related material be removed. POS chose to shut everything down because filtering out all the TSL related material while leaving everything else would have been a gargantuan and horribly tedious task.

Right, I know that, but what I'm saying is because the TSL related material was still a public discussion, I don't think (although I don't know for sure) that Activision can actually make that request.

I agree. I'm wondering if maybe the TSL group just thought it would be best to make a clean break and that's why they took it all down. Oh well.

[crayauchtin]

Another thing to point out: Activision didn't actually ask them to shut down all the forums; they just asked all TSL related material be removed. POS chose to shut everything down because filtering out all the TSL related material while leaving everything else would have been a gargantuan and horribly tedious task.

Right, I know that, but what I'm saying is because the TSL related material was still a public discussion, I don't think (although I don't know for sure) that Activision can actually make that request.

I agree. I'm wondering if maybe the TSL group just thought it would be best to make a clean break and that's why they took it all down. Oh well.

I don't think so, Neil and Cat are going through the archives (which are just hidden, not gone) to find everything that isn't TSL related. If they were just trying to make a clean break, I don't think they'd bother.

Besides, I have no doubt that Activision doesn't actually care about things like laws. If they did, they wouldn't end up in court half as much for not paying royalties (the case the former heads of Infinity Ward just placed against them is *not* their first and likely won't be their last). I think it's totally believable for Activision to act like they can do something, and because POS is trying to comply with the C&D and not have any (further) drama, they just did it without thinking "wait a sec....", y'know?
I don't blame them for that, but I still think it's iffy ground for Activision to stand on.

EDIT: Just a thought, and again I'm not like well-informed on this area, but if it turned out the demand of the C&D to remove the forums *was* an unconstitutional violation of free speech, because the forums were public, would that mean the entire C&D would have to be lifted? Obviously, Activision would probably file another one without that clause so it wouldn't help, but I'm just curious.

[Brainiac]

Yeah, I noted the trademark thing was more about brand identity then anything. I was just using it as a way to get around the insistence that an idea can't be copyrighted. Your point about being a direct interference on sales I did already note; thanks for reiterating it.

As to the reasoning, I'm just putting forth how Activision is perfectly and even understandably within their rights. I'm avoiding commentary on a personal/ethical level, as that will be far too variant.

[rugged]

I would still like them to make a few subtle changes and release the game. I wonder how this may impact upon sq2 by IA?

[Erpy]

I would still like them to make a few subtle changes and release the game.

I, too, would have preferred that, but I don't think that was ever really a possibility. The presence of KQ elements in TSL was so pervasive that if removed, the thing would fall to pieces. (not to mention the fact that if Activision want to be pricks, they can still demand the project to close if all KQ elements were removed)

[MusicallyInspired]

I would still like them to make a few subtle changes and release the game. I wonder how this may impact upon sq2 by IA?

We're not telling them. They don't even know we exist. We'd like to keep it that way.

[Lambonius]

I would still like them to make a few subtle changes and release the game.

I, too, would have preferred that, but I don't think that was ever really a possibility. The presence of KQ elements in TSL was so pervasive that if removed, the thing would fall to pieces. (not to mention the fact that if Activision want to be pricks, they can still demand the project to close if all KQ elements were removed)

Yeah--the whole nature of the agreement with Vivendi was that ALL elements of TSL, including any original art, music, etc., became Vivendi's property as soon as it was created. Essentially, if the team put out any bit of TSL--immediately recognizable KQ stuff or not--they would be violating the terms of the agreement and thus would be subject to legal reprisal. So it's really a moot point.

[Brainiac]

We're not telling them. They don't even know we exist. We'd like to keep it that way.

And when you think about it, SQ is on weaker legal grounds to begin with, what with the licensing necessary for the name "Space Quest" (and Roger Wilco, to a lesser extent).

[DrJones]

I just read that the developers of Call of Duty have sued Activision-Blizzard for firing them just before the sales of the latest title, so that they don't have to pay them the royalties they deserve.

[Lady Pyro]

I just read that the developers of Call of Duty have sued Activision-Blizzard for firing them just before the sales of the latest title, so that they don't have to pay them the royalties they deserve.

If that's true, that is low.
It's terrible when the ones you're working for screw you like that.

[crayauchtin]

I just read that the developers of Call of Duty have sued Activision-Blizzard for firing them just before the sales of the latest title, so that they don't have to pay them the royalties they deserve.

If that's true, that is low.
It's terrible when the ones you're working for screw you like that.

It's true. It's been a real low week for Activision. (Scroll down to "The Terrible Tales of Infinity Ward".) That doesn't even cover the fact that it was two days after the cease & desist on POS.

[pbpb33]

I feel very bad for the people who spent so much time on the game. I just have to wonder what they could have been thinking, calling the game "King's Quest 9" in the early days, as I believe they had. Taking the series in an original direction and purporting to continue where the previous games had left off almost seemed like inviting the cease and desist letter. Was there ever a backup plan? What were the plans for saving all that hard work, in case something like this happened... since it seemed like there was always this risk of being shut down (didn't even Vivendi say years ago that they still reserved the right to issue a C&D if the game didn't pass the test at some kind of final approval stage?) Also, I do not mean to insult anyone or put down their hard work, so I hope no one takes this personally, but I think the "quality" issue was probably a factor. I did play the TSL demo, and, with all due respect to all the hard work that went into it, the product was very subpar. Is this ok to say? It's hard to write this, and it's probably not the easiest thing to hear (and I don't want anyone to feel like they're being kicked while they're down), but I think it needs to be mentioned. I'm just trying to be honest. I would likely have enjoyed playing the game... but (at least from the looks of the demo) it just wasn't at the level one might have hoped it would be. Many of the backgrounds were way too similar to Sierra's original KQ6 art, some of the dialogue and voice acting was embarrassingly lacking, there were several bugs, few "rooms" were even playable in the demo, and it just seemed hard to believe that a full game even remotely close to anything resembling professional quality could have emerged. I really wanted to like the game demo, but it definitely did not live up to expectations, sadly. Not even comparing it to Sierra's original games, but comparing it only to other well-known "fan" projects, TSL didn't seem to hold up at all (at least if the demo was any indication). Technologically and artistically, the TSL team seemed to be very capable. However, from the looks of the demo, it seemed they lacked strong writers, editors and strong quality assurance to give their product the overall polish and fun factor we're accustomed to seeing in good games. Ugh, and why no real puzzle gameplay showcased in the demo? Made you wonder. Still, the original trailer was well done, at least. I'm sure there was a lot of great work that many of us will now never see. It's a definite shame.

[pbpb33]

That's interesting. Can you elaborate? Josh Mandel was critical of some positions held by members of the TSL team, or something else?

Josh Mandel was a rather vocal critic of some of the team's views, so his reaction may not be what you expect it to be.

[Erpy]

I don't think there was a backup plan. There were apparantly so many KQ elements in there that removing them would leave things in shambles. It's true that fan licenses can be revoked at any time, but I don't think any team who accepts them assumes they'll be revoked before the actual release. The press release on the TSL homepage isn't really clear about the exact reason for the whole shutdown. All it mentions is that "they are not interested in granting a non-commercial license to The Silver Lining".

EDIT: Well, Josh Mandel was involved with the TSL team a long time ago, but there was a falling out between him and the team and he left. (that's why they weren't using his voice for King Graham in that game) Details are unclear. I know the situation between them got nasty at one point on the Adventuregamers forums when the news of TSL being allowed by VU to continue was announced and discussed there. There weren't enough public pieces to put together for a clear picture though.

[pbpb33]

Boy, oh, boy. All I can think is that some people were awfully fortunate when negotiating and releasing their own Sierra-inspired projects (which were of solid, impeccable quality, I must note). Actually, it's not just these design teams that were fortunate, but also all the fans and players who got to enjoy these other remakes. I bet some people are thanking their lucky stars that this C&D nightmare never happened to them.