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

On 5/30/05, Raul Miller <moth.debian@gmail.com> wrote:
> The one case to make a significant point involving mise-en-scene
> had a massive amount of new game data which was meant to
> be integrated with the existing game data, thus creating a "sequel".
> There was more going on than that, of course, but it was literally
> a new game put together using art and resources provided by
> Formgen, but being marketed and sold by Microstar.  (Without
> a license from Formgen.)  Mise-en-scene was used to explain
> why the work was a protected work even though all Microstar
> was selling was the changes.

I'm sorry, but Raul is misreading this.  Micro Star was marketing a CD
full of user-created levels, no more and no less.  They didn't copy or
distribute a single byte created by FormGen, and their product was not
usable without a copy of Duke Nukem.  They also got nailed for putting
screenshots on the box, but the judge very explicitly said that the
contents were infringing either way.

The "Game Genie" case (Galoob) was a generic "cheat code" widget that
substituted the odd byte in order to add lives and power-ups and all
that, and was in no sense a substitutable good for the console, the
game cartridge, or a sequel to any particular game.  The "game system
emulator" makers who won -- Sony v. Connectix, Sony v. Bleem -- won
because they copied the minimum needed for interoperability with a
content-neutral machine.  You cheat -- as in Atari v. Nintendo -- you

The bottom line is, whichever piece you're distributing -- a cloned
game engine, a replacement set of data, a set of new levels for the
existing game engine, a complete clone with no literally copied code
or images -- if you're piggy-backing on a specific extant game, you're
infringing its copyright.  (Not if it's so simple as to be
uncopyrightable; but that doesn't fit the likes of TTD or Civ III.) 
The OpenTTD engine is so far from being content-neutral it's not even
funny.  The only thing that it can be used for is playing a tweaked
version of TTD.  Tweaked or not, it infringes the TTD copyright.  It
doesn't belong in Debian -- and neither does freeciv or any other game

And yes, Debian and its assets can be gotten at by the law,
corporation or no corporation.  Every bank account mentioned in the
DPL's report, every owner of a machine in the debian.org DNS, every
individual in the chain of custody of those packages (which means
maintainers, ftpmasters, mirror operators) is a potential Roe or Doe.

Let Debian mutate into a grab bag of abandonware (and clones of
abandonware), and sooner or later somebody's going to track down and
buy up a few of those copyrights and file suit.  They will (IANAL) get
money from Debian, maybe a lot of money.  And Debian will get some
very bad press.  Is this an operating system or a game graveyard?

With respect to the mirror network, they will probably only get
injunctive relief; depending on how lax Debian's policies can be
demonstrated to be, that could be as severe as blocking whole sections
of the archive until they are audited for other people's code.  That
depends on what cards the plaintiff is holding.  If all they have is
some game copyrights, they can probably only block games, but if they
are holding, say, copyright on WASTE plus a couple of exclusive patent
licenses, and if they can make a case that some people within Debian
are running a conspiracy to subvert software IP generally, it could
get nasty.

Don't get me wrong.  I am not interested in making that case myself
with regard to Debian.  On the contrary; I don't want to see Debian
get Napstered.  Putting obviously infringing stuff onto the mirror
network is just begging for trouble.  It's not like it's that hard for
people to set up their own repositories; let them gamble with their
own assets.

- Michael

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