Musings on intellectual property
I updated my public post at https://www.patreon.com/posts/68740592 with a brief explanation and the link to a petition started by a VR fan, which I believe you might want to sign.
This week there has been much talk on the Web about the matter, and it quickly escalated to discussions about freedom of modding and balance of power. I followed the debate with great interest of course, and like others I do think, especially after a couple of days of studying Take-Two’s behavior, that this reflects a much bigger issue than just my Patreon, or just VR conversions, or just subsidized mods.
The larger question is: as modders, gamers, consumers in general, do we want to keep tolerating that corporations should have a money-given right to instantly kill any original work (be it a simple fix to one of their mistakes, an allegedly competing full-blown creation, or anything in between) just by exploiting the lie/loophole that everything that interacts with their IP is a “derivative work”?
These days I have seen many people use an analogy that is right on the mark: pretending that any external program or library/dll destined to be used in conjunction with a game and not explicitly authorized by the publisher is automatically a “derivative work” of the game is tantamount to (i.e., equally absurd as) stating that every application running on Windows and not explicitly authorized by Microsoft is automatically a derivative work of Microsoft’s IP, and that Microsoft has the right to arbitrarily terminate the app’s existence by issuing a DMCA takedown notice, all the more so if the app is created with commercial intent.
Even more surreal: Microsoft should be able to unilaterally dictate whatever terms it deems fit, like “the app shall be made available for free after no more than thirty (30) days from its first release” or “all rights to the app and the assets contained therein shall be the property of Microsoft, Inc.”.
Every aspect matches with perfect parallelism:
the app tightly interacts with the Windows operating system (OS) routines and data structures;
much of the app functionality is written specifically to conform with the Windows OS and after careful study of what data and protocols the OS functions require;
most importantly, the app would not be able to run on its own without the OS, and could not be sold as a standalone product because it needs the OS in order to work,
and so on and so forth. That unequivocally makes the app a “derivative work” of the Windows OS, doesn’t it?
No, of course not. Unless the app internally uses stolen/unlicensed portions of the OS source code, or resells under false pretenses Microsoft’s original assets and IP (which is something that Microsoft would need to prove, not simply allude to in vague accusations, in order to have the app instantly removed from the market), nothing in the law or common sense makes the app a “derivative work” based on Microsoft IP.
Yet game publishers pretend that the “derivative work” fiction makes sense, and in absence of specific legislation we allow ourselves to be fed the fantasy and surrender our consumer rights, allowing the publishers to vastly profit from mods while at the same time dictating conditions for their use (or terminating them with impunity) as though they were their own intellectual property.
Update 1:
To clarify, I am not contesting the validity of the derivative work concept in itself: it is well established doctrine in copyright law. I am saying that game developers, and particularly game publishers (and some more blatantly than others) are misappropriating it and twisting it into a universal tool to abuse their dominant position in order to squelch potential competition, while at the same time raking in millions/billions of dollars in revenue that is actually generated from, or with the help of, the work of modders.
Since this distortion is so well planted that it may be difficult at first to reason upon it without prejudice, let us make an example from a different economic sector where the same brainwashing did not take place.
Example a. Let's say that I am building and selling a clone of a Tesla car, mostly identical in all aspects, except for the fact that I put different tires on it. Perhaps they perform better than the original ones, or are more elegant and sleek, or perhaps they're just slightly different. I might also be using Tesla's name and promotional materials to sell my clone, inducing people to believe that they're buying an original Tesla car, only with better/different tires, while in fact Tesla is seeing no revenue from this operation.
It this "derivative work"? Of course it is. Should Tesla be allowed to stop me from selling counterfeit cars using their brand to illegally profit upon their IP? Yes, that makes total sense, both from the standpoint of copyright law and basic common reasoning.
Now, let's instead analyze a situation that more closely reflects what modders are doing:
Example b. Let's say that I am an expert on tires, and I see Tesla manufacturing cars that come with tires that I deem inadequate, perhaps because they put their users in danger, or are not as energy-efficient as they could be, or I simply have an idea for a different kind of tire that could go well with a Tesla car. I measure the original rims and do whatever it is that a tire maker needs to do to ensure compatibility, and then I start building and selling (or donating!) replacement tires for one or more Tesla models. Of course, in order to make my customers understand what they are getting (for money or for free), I need to specify the exact manufacturer and model each of my tires works with, and I might even put up a sign on my shopfront that says "Replacement tires for Tesla® cars!". Perhaps I have more than one sign, because I also invented and built new tires which work pretty well with Honda and BMW cars and which customers love, so they want to know where they can get them. Let's also assume that I didn't just copy the original tires or leverage stolen IP in order to build them. And obviously (but VERY importantly) let's remember that my customers need to own the car from the original manufacturer in order to put on my tires, as I'm NOT selling or gifting cars.
Does that fall under the "derivative work" doctrine? No, obviously it does not. Should Tesla be allowed to stop my enterprise (no matter whether I started it for profit or not) at any moment, arbitrarily, just by waving a DMCA flag? No sane person would ever think that. Should I be silenced from advertising that my tires are intended to be mounted on specific Tesla, Honda and BMW models? No, that plainly goes under the "fair use" concept. The same would apply to mufflers, windshields, any other replacement part. The aftermarket legislation is very much cut and dry, and it's plain for everybody to see that if Tesla went after me and my tires, that would just be abuse of dominant position and an illegal attempt to stifle competition.
Is there something inherently different with computer programs, that automatically makes a mod "derivative work" while a replacement tire is "aftermarket"?
No, and the browser wars that everybody remembers are abundant evidence of that.
Microsoft used to insist that the browser was a fundamental part of their operating system, and it needed to be integrated at such a deep level that it was acceptable to make other, competing browsers a second-tier choice with possibly limited functionality (NOTE: to put this in perspective, even they never went as far as insanely pretending that the alternative browsers were "derivative work" just because they were designed to operate on/with Windows).
We all know how well that attitude was received. Microsoft lost, repeatedly, and was forced to allow other browsers the same level of prominence, functionality and access as their own Internet Explorer creation.
My conclusion: game developers, and even more so game publishers, and some more than others, are distorting and taking unlawful advantage from copyright-related legislation to make mods (which work like example b. above, aftermarket) erroneously fit under the umbrella of derivative work (example a. above, clones). For years they have been abusing their dominant position with the obvious intent of keeping even potential competition at bay, while at the same time raking in enormous sums in revenue that is actually being generated from the work of modders. At the same time, they constantly dictate conditions for how mods should operate in conjunction with their games, and for how modders should be allowed to distribute and possibly profit from the modders' own original work, similarly (albeit in a much more blatant and brazenly illegal way) to how Microsoft used to behave in the browser wars.
If you're a modder, or a gamer who would love to freely use the products you bought and paid for without arbitrary restrictions, please make your voice heard: on social networks, but even better by signing our petition or contacting your congressional representative.
I would also love to hear expert opinions about my take on the issue, so if you are a journalist, a lawyer, or in any other way well versed in copyright doctrine, please feel free to either contact me or comment publicly about the matter. I think it's high time we put together a coordinate effort to stop this abuse, and certainly not just for my sake, my Patreon's, or that of VR mods only. I firmly believe that this has far-reaching implications.
Comments (44)
Has no one guessed it?
Genshin Impact?
That game has anti-cheat, so almost imposible
I have to laugh a bit at these comments. fake site, $13 bucks for not polished mods? really? sorry if ppl think like that they are simply not worthy of playing these games in VR.
i subbed to and have to agree, the setup here is not super intuitive. ya you can find everything after reading and looking a bit , but could be setup better IMHO. and 13 bucks is ludicrous for mods that aren't polished yet. i got it working and all but it has a long way to go. cancelled but wish you the best in getting this looking as good as it can be.
fake site i pay the patreon but no mods anywere to donwload i want refund
When something says, "Start Here", it is usually best to start there :) The mod download is right there at the top bud. Including instructions for install as well as the games that are currently supported. REAL_mod_by_LukeRoss_v5_1_0.zip is the mod file.
I joined patreon just to get rdr2 vr mod, but now I see on the page it is not available. What to do?
@Sire News . The Infos / reason you search for are explained here: https://www.patreon.com/posts/dmca-takedown-v-68740592
It's harsh what has happened to you Luke and VR needs all the help it can get (especially from AAA studios) for it to take off in a big way - their actions seems to be counter productive to the industry, so yeah, not cool. Anyways, here for Cyberpunk2077, it's a blast anyway so can't wait to jump in VR, keep up the good work and good luck with it all!
What are you waiting then for CP77VR ? I already did everything, I waiting to see if CDPR release a nive expansion
So i'm 10Dollars per month patreom now, how to get the RDR2 VR mod? j
There has been a DMCA takedown for all take two stuff, it is very well documented on the "start here" thread
I just realised I can't fullfill my promise of making a second playthrough of RDR2 in VR when my nextgen GPU arrives ... I'm gonna sue Take2 for damaging my Mental Health ... if I do it "Woke" style, their lawyers will have to accept everything when SJW start cancelling T2 XD
#endgame mood, happy sunday! https://imgur.com/a/xPksPoi
That's beautiful, zer0int! Is it your own artwork?
Your comment section appears to be closed on the “pancake” post. How does one go back to VR? Just drag and drop your pack as if I were starting fresh?
Thanks for the heads-up, Dave! I updated the "Start here" pinned post with information on how to deactivate and reactivate the mods. And yes, just follow the Quick Setup steps again as though you were installing the mod for the first time
I also bought the game specifically for the VR mod. Will share with our local VR community
Guess what? I ONLY bought the orginal games because of the VR MOD.... I wonder how many other patreons did the same?
I guess most of us ... still peanuts for R*
Come on guys! Only 612 people have signed the petition. The least you can do is sign it to show some support for Luke. We are several thousand Patreons! Its not hard to do.
Ok, 1500 hundred signed, thats discord and patreon users combined. Come on, lets get the number higher still!
BTW Luke, a little offtopic seeing the new banner ... did you play Contract Jack ? I didn't, it had so bad reviews so I decided to Keep a good souvenir of Monolith with Cate Archer ...
I did! It was a completely different kind of game from NOLF2, despite being a sort of prequel/spinoff to it. It was shorter, fast-paced and all based on shooting, whereas the original was more about stealth. That's probably why the fans didn't like it. But I loved it, and the Tuscany levels are so beautiful, as though the original Oculus demo was a playable game <3
You can look up videos that show you how to roll back steam games to previous versions, or wait for the guys to update scripthook for the latest version of GTA V.
So I tried to get GTA running in vr tonight and now it's not booting at all after an update ( I have auto update on and it never updated until I booted the game) I had to agree to agree to updated T&C's before game tried to boot at that point failed to load and went back to stream. Anyone else able to get the game loaded ? I really hope they haven't hard blocked his mod? It's so strange
Did you replace "Script Hook V" with the latest version ? The GTA5 mod is not up to date like the one here in patreon.
Your Update 1/Examples a and b are a bit polarizing for myself. I agree with your take on 'example a'. 'Example b' is tougher for myself to resolve, mainly due my lack of understanding regarding aftermarket items. On one hand, I understand the T2 position IF it could reasonably be proven your product was somehow detrimental to T2 making a profit from the purchase of the core game (which I cannot see how that could be the case, as the core game must be purchased, and there is no collective documentation that insinuates your product somehow lessens the core game experience). On the other hand (specifically citing GTA V as an example), your product enables me to enjoy the single -player game, but is not recommended for on-line use (which may be T2s primary source of income once you move beyond purchase of the initial game). I'm wondering if the on-line 'adoption rate' is so powerful (e.g., like for every Nintendo Switch bought, a copy of game X was also purchased), that the VR mod affects T2s financial plan regarding on-line participation. Is T2 pulling a 'Nintendo', that regardless of the good-natured intent of a mod, 'this is our property and you can't touch it'? This is mainly because I seem to recall numerous instances to where a fan mod was gaining traction, but quickly disappeared after becoming somewhat public knowledge. I don't agree with what T2 is doing to you, and will continue to support your other current ongoing efforts.
They have san andreas vr coming for the quest 2 and probably see lukes mods as competetion. They took down mods before the gta trilogy release as well.
Your arguement even works in the Intellectual property space, where let's say you design funny glasses to view printed Marvel Comics then start selling these celephane covered glasses, can Marvel sue you for that? Can they sue you for specifically selling it to customers that have bought their comics that want to use these glasses, which they don't own any rights to?
I believe that perhaps if you are advertising a product, and in your "claim" you mention the name of another product, there may be some legal grounds for them to prosecute? Like because of the fact that you mention the word "Marvel" when advertising your glasses, whereas if you said "for viewing superhero comic books" that's another matter. So perhaps if a mod is sold as a generic mod for "VR use", even though specifically designed to work singularly with a certain app, the problem might lie in you using the words "Red Dead Redemption 2". Legally speaking that seems feasable, however often they just file a DMCA knowing that the small party doesn't have the power to oppose them. Very vile tactics.
The only reason that I bought a few of these games, was because I knew that I could mod them for VR using Luke’s software.
True!
Now I was in the RED ever since your announcement, and bloody hell it was MAD. That is unprecedented immersion, I have to give it that. Like a damn centipede on a conveyor belt, kickin' minimum duty time in the real life - THEN: PLAY PLAY PLAY, fully in the RED indeed, all-nighters, 30 hours awake, crash, sleep, wake up in a night terror after 6 hours despite being awake basically for two days, the terror of FOMO, DREAD, and LOSS being just too big - shove food in face, anxious checking: Will I live for another day? HOORAY - VR is on. Racing for the Endgame vs. the Game to be Ended by a Patch in Real Life, what a f*cking nightmare man, literally! Seriously, "I MUST PLAY I WILL DIE IF I DON'T PLAY" - that's teenage behavior for me, and now I'm normally like, "ah, just as much fun when you continue later". Now I was thrown back into this ancient time, "I MUST PLAY OR THE GAME WILL BE KILLED VIA A PATCH BY AN EVIL ENTITY". A battlefield of unwashed dishes around me. But I made it! I made it to the ENDGAME before the GAME WAS ENDED (oh, I wouldn't damn f*cking finish that in pancake, no way, so it was all or nothing). Bloody hell, just... INSANE. The all-nighters taking toll and making it even more immersive - I look into the mirror, I see a ghost, I get back into VR (after adding to my sleep depth), and I can see: YES, that is ME! Seriously. That NEVER EVER happened before... a damn fine game with an awesome storyline punched me in the face in the game as in "well well well, towards the endgame you go now, suffer", with devestating news for my character... And THEN it was like, sh*t just got real, here's the mega-immersive new feature: THE GAME ITSELF will die on you. No more like "ah, well, I can play that when it's like, NOT summer"... The actual GAME, the GAME you PAID for, is unexpectedly gonna die from some frenzied disease called a PATCH, and the game IS DEAD after that point, and you cannot just "start a new game" anymore (starting a new game without VR pretty much can be summarized as "game dieded -> real-life sh*tshow induced endgame of the game itself. Man, it was amazing. Thank you so much for this. At this point, you the credit you deserve for "immersion" within the RED exceed that of the original devs. Like this damn hybrid digital/analog "manhunt" thing when people have an app and just go about their commute etc. in real life in their cities, meanwhile trying to tag / "kill" others... And you feel stalked in the streets, because you know the manhunt is on, even though physically harmless... Yeah, this kind of FOMO/anxiety thing I had of waking up to my game having been assassinated via patch. F*ck man, thanks so much for this. It was truly, really unprecedented, and so amazing. Now I am so glad I made it to the finish-off in the game instead of having somebody finish off the game before I do. Yet now that'd double-grief. The Endgame has been summoned; and maybe that is it. Because when the game dies, so dies my opportunity (or more like, motivation) to play it again "differently', which I definitely had planned for this open-world game. Now I need to wash the dishes and stuff, darn it. But THEN, then I shall design WeepVR, basically an overhaul of the facepiece that makes weeping around in VR compatible with electronics, just in case something like this unprecedented mad drama of grief and loss swalloing up real life from within a game happens again, bloody hell man. That was seriously quite something. And I have no sense if that makes sense, I feel like I am zoning out while typing this. Gotta add some +14 hours of sleep now to function in "teh real life" again tomorrow. But to YOU, LUKE: Thanks so much again, unexpected multidimensional immersion included as a "positive reframing" of the issue - this was amazing. Probably - and hopefully - a once in a lifetime experience. May YOU stand UNSHAKEN, admist a crushing [corpo-]world...! Fingers crossed 4u and FTFW !!1 \m/
Holy mission
Luke, some words of advice (from somebody who has been part of legal stuff related to corporate): If you are not planning to hire a lawyer and take them on (which is probably not smart) then this kind of philosophical posts are not useful and can even be used by them in the court in case a lawsuit is brought onto you. So you should stop the ramblings. It may feel better to speak out but they are not productive at all. What you should do: 1) Focus on bringing in games from a diverse set of publishers. 2) Stop using their videos and art in your Patreon page to promote them. I feel like that ticked Take Two off is that you are presenting this as a new game experience rather than a mod. I would stay away from such materials or references. 3) Be high profile without being high profile: let your mods speak. You don’t need to speak yourself or promote with their name and art explicitly called out.
Is there any ground for a counter suit? A company should not be able to attack someone's lively hood when they did nothing wrong. Their action is an abuse of copyright law and has no ground to actually close Luke's shop. They'll never answer otherwise because they simply don't care, at all. The whole situation is maddening.
I am no legal scholar, but as an regular reader of Techdirt, this does not surprise me at all. Many of their articles have outlined the ignorant, intellectually lazy, arrogant, unreasonable and sometimes even sleazy nature of some Copyright Lawyers and the companies that employ them. Sometimes the lawyers in these articles acted on their own and their employers were never informed, so were completely unaware of the lawyer's actions (or so they claimed). I am wondering if your situation might not be one that Techdirt would be interested in writing about. They seem to do a lot of that sort of stuff and folks go there to read about it so it might widen the number of folks that are aware of this. Just a thought.
Thank you Rodney! Guys, please feel free to submit this DMCA story as a tip to any news outlet that might be interested. It's still early to tell, but it's starting to look like an expert panel might finally be formed to discuss openly those issues that have been unsolved in the modding world for about ~30 years now (https://en.wikipedia.org/wiki/Video_game_modding#Official_status_of_mods). The more people talk about this, the higher the chance that we can finally see some legislative move to stop the steady erosion of rights for the weaker parties. Also, Rockstar has all but officially canceled every plan they had for GTA4, RDR, and RDR2 to focus exclusively on GTA6, which should make it clear to everybody that there can be no official VR ports on the way.
Your argument might even win in court. The problem here is the massive imbalance of resources between you and the publishers. For the publishers, court would be a minor inconvenience. For you, court would likely result in crippling debt. I wonder if that could also be the reason they're going after you and not VorpX: VorpX makes enough money to fight back.
Every game is a derivative work from Windows ... Microsoft should apply DMCA ... It's only logical XD And if Microsoft does it, I hope they'll do it in the same impolite way game publishers do it !!!!!
I dont like the way theyv not told you why either. Maybe because they have plans for vr gta 6 or other games they make or have made. Thats maybe the reason for not comunicating they want things hush hush. But if thats not the reson for the takedown they should at least tell you why.
Exactly! With their absurd point of view, the future of ALL mods is under attack! I'm sharing that petition wherever I can 👊