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Re: Bug#310994: ITP: openttd -- open source clone of the Microprose game "Transport Tycoon Deluxe"

On 5/27/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> On 5/27/05, Matthijs Kooijman <m.kooijman@student.utwente.nl> wrote:
> > > That's correct; and, with or without that dependency, OpenTTD
> > > infringes the copyright on Transport Tycoon Deluxe under a "mise en
> > > scene" theory, as discussed on debian-legal.  (Not to say there's a
> > What do you mean by that exactly?
> A video game with even the skimpiest of original story lines (see Duke
> Nukem 3-D, as described in Micro Star v. FormGen) is a "literary or
> artistic work" at run-time, over and above the expressive content of
> its source code.  Hence an additional form of "copyright infringement"
> is possible -- the creation of an unauthorized "sequel" using the
> original's characters and "mise en scene" (a term borrowed by lawyers
> from the theater; imagine the accent grave).

There's a difference between the kind of thing prohibited in the
Duke Nukem case and the kind of thing permitted in the Nintendo
case (Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.).  In both 
cases, the "scene" changed.

In the Duke Nukem case, the additional scene elements were
"permanent" -- new scene elements were added to the game

In the Nintendo case, the changed scene elements were 
"ephemeral" -- they only existed at execution time.

In my opinion (one M.K.Edwards does not share), OpenTTD is more like
the Nintendo case than the Duke Nukem case.  We're dealing with an
alternate game engine here (which is primarily functional in
character).  If you use the original game engine, at all, the
"changes" introduced by OpenTTD vanish.  In other words, these
changes appear to be ephemeral.

Since the court is treating these cases using concepts from theatre,
an analogy might be relevant:  The Nintendo case was analogous
to presenting the play on a different stage.  The Duke Nukem case
was analogous to presenting the play with a revised script.


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