Licensing tracks and replays

[Cas]

Hi, guys. I kept thinking on this since GTAMan15 expressed his concern about uploading tracks and the copyright laws in the EU. I decided I'd write a topic on this to reach a clear conclusion on how we'll handle the software we handle here. In part, the programs we share, but mainly, the tracks and replays, which we continuously produce.

As I understand it, the following we know. Please do let me know if I'm mistaking on any of these points:
1 - Stunts itself is abandonware. Somebody from the original makers or distributors expressed at some point the will of allowing us to use it freely and nobody ever had complained, yet we don't have any official permission to distribute it as freeware. If one day, there is a problem (which is unlikely), we will be told and will have to stop distributing it. There isn't any chance of anybody being fined for the current use until we get a confirmation that we can or cannot distribute it this way.
2 - We can assume Track Blaster and other tools are freeware, because they were made for the community. Yet, for most of them, there has never been any confirmation either.
3 - Some tools are clearly free software or open source. I can confirm here that Bliss is one of them and because Stressed, for example, is posted in GitHub, if I remember correctly, it must be FOSS too. So zero problem to distribute these.
4 - The tracks and replays we have been posting here and in the tournament page are, by default, proprietary. Yet, the fact that the people who made them later posted them to these sites themselves, shows that they cannot expect the community to be punished in any way for downloading and using these files in the way they are normally used. However, should the producer of a track or replay wish to request this used to be stopped, they have the right to do so, although it would cost them money to enforce that. Who would do that?  Nobody. Anyway, it'd be better if there were a not somewhere saying that, by publishing your track or replay here, you release it to the public domain or something.
5 - In any case, posting something that you made yourself can never cause you any copyright problem, since it is your product. As far, of course, as you made it from scratch and not from other tracks and replays. But saving a replay from a track that's not yours shouldn't be a problem either since that is the normal, expected use of Stunts.

While the general rule is that nothing that we're doing is probably going to cause us any problem here, count on me for anything we can do to make it even more sure that things remain that way.

[JTK]

1. That seems legit. Stunts is not truly freeware as the distributors never stated officially. In 1998 KHR tried to phone call all the producers and I know, he had a talk with some guy from Broderbund, who said, that BB will not put Stunts for free download anywhere but that we were free to use it. He used the word "freeware". Not reliable though, I know... (Whoever that someone was, please report and confirm!)
2. I agree. Track Blaster was made by Markus Nagelholz aka Marc Nailwood, who was a former pipsqueak at Stunts contests as well.
4. I hereby declare all tracks ever designed by me free for download, copying, usage (especially racing), copying, modification and distribution.

[Cas]

I know Mark Nailwood made his software for the community so assuming we can use that software freely is very reasonable, but if we're strict, I'm not sure that Track Blaster says anywhere that it's freeware. I'll check that.

[Duplode]

3. Stressed is GPLv2-licensed; Cartography is MIT-licensed -- both are FOSS.

4. Adapting JTK's phrasing: I hereby declare all tracks, cars and mods ever designed by me free for download, copying, usage (especially racing), copying, modification and distribution, unless explicitly specified otherwise ^*.

*: Worry not -- other than the programs I have released under GPL or MIT you won't find anything specifying otherwise in the things I have published up to this day.

(The readmes of my cars include phrasing like "by the community, for the community" that, however imprecisely, already expressed that intent. I usually license stuff I create which isn't code as CC-BY-SA; around here, however, the only license I feel like reaching for is the WTFPL  )

[Overdrijf]

4. Adapting JTK's phrasing: I hereby declare all tracks, cars and mods ever designed by me free for download, copying, usage (especially racing), copying, modification and distribution, unless explicitly specified otherwise ^*.

Okay, I'll just explicitly say this one goes for me as well, although in my case the fine print is:

^*: Per the terms of the readme file in the DTM pack, you can race, share and modify these vehicles if you include that readme file, or another note stating that Overdrijf is awesome. No other Stunts related creations of mine to date have any such conditions attached, and I'll include a specific note with any future ones that do.

[GTAManRCR]

We need to wait until Late-May, and Early-June (The final vote about the new copyright directive) to make sure Article 13 is rejected, or enacted.
I hope in the final vote, it'll be rejected

[Cas]

[...]to make sure Article 13 is rejected, or enacted. I hope in the final vote, it'll be rejected

I think you shouldn't worry about that. I am not European, but for what I've read about that article, I think it should have mostly a positive to null effect for most of us if we were affected by something like that in our region. The giants like Facebook and Google have been trying to cause fear in common people to create a resistance, but in reality, only they would be in trouble.

I would say I'm "indirectly in favour" of the infamous article, but I have to explain myself, or it'd sound like I'm an extreme rightist. My case is very particular. I am a person who believes copyright shouldn't exist. Of course, there should be something else, to prevent copyright to eventually spawning... something like what public licenses normally pursue. So, if seen directly, I am against everything that adds strength to copyright. But, in this case, I think it ends up being convenient, because this measure (rarely enough) presses on the giants but leaves common people in peace. Of course, there's youtubers, but it will be YouTube who will have to solve the problem for them. Youtubers won't have to do a thing. Being a musician myself, I wish there were something like that here. See, if I want to make my music free, that's no problem, but if I ever want to charge for it, all the money ends up going to YouTube, recording companies and Spotify. It's not fair. So in the end, I'm forced to make everything free and can't make a living out of my products. Article 13 would help me and many other people.

Anyway, I understand your concern, but if you produce everything you upload, there's nothing to worry about. This is only a problem for people who upload things made by others in any case. Opinions accepted, of course.

[Overdrijf]

I disagree. I respect your viewpoint as a content creator sick of the current system, but I don't see this change doing any good for you or in general.

It is true that the latest version of the directive includes an exception for article 13/17, the upload filter. You are except if you meet all three of the following criteria:
Your service has an annual turnover of less than 10 million dollars, it has fewer than 5 million unique monthly visitors, and it exists for less than 3 years.
That's not any of those criteria, that's all of them. There are a few more explicit exceptions, like non-profit encyclopedia's and educational sites, but under a strict reading of the exact letter of the law, the interpretation most likely to hold up in court, a place like the Stunts Portal is not exempt and should show be able to show their best effort at a content filter for the attachment option. Plus places like Youtube already filter pretty much everything any corporate lawyer requests them to, with a technically functional but cheap and slow appeals system in place. That's not their fault, that's them bending to international copyright law in such a way that it will allow them to keep existing. Add more pressure to that and your life as a content creator is going to get worse, not better. More people will for instance get filtered because something they made themselves and uploaded was later stolen and broadcasted by a television show, making the clip end up in the filter and taking down the original video.

Also interesting to note: politicians have suggested that ones the upload filter is in place we might be able to piggyback on it to also filter child porn and/or extremist material. The interesting thing about this suggestion is that it's clearly an afterthought. We see the technical possibility for far reaching censorship rising on the horizon, and the first thing we do with it, our test case, the least morally questionable example of something we can risk dabbling in censorship and restricting freedom of expression for is copyright? Why don't we start with a child porn filter and see how that pans out? I mean, I know why, obviously, it's because a few large copyright holders have more money and lawyers than child porn victims. But it's not like they'll actually be paying for the filter is it? They're just paying for lobbyists and court cases, and they'll keep doing that anyway, so they're no more money to be made or less to be lost by using copyright as our testcase. So why do it?

But the article I have the biggest beef with personally is article 11/15, the link tax. This one also got an exception in the latest version. Small non-profit and personal use of links will still be allowed. Which means the Stunts Portal will not have to pay money for any links I place here, for instance to a news site. But news sites will still have to pay to link to each other. They can still copy the content of the news for free, they just can't show their sources. An article designed to let more revenue stream towards content creators is instead going to decrease both the revenue and the exposure of said creators. Writing good news articles first is going to become even less rewarding. And then there are scientific articles. A good article often uses several dozen other articles as sources for one thing or another. This makes information traceable, you can track any dubious claims back to their source and the proof for it. Having to pay to reference other material undermines this system.

Article 11/15 is a bad idea from the ground up, there's no amount of exceptions that will make this a good article, the basic idea is not going to work, in my opinion.

If anyone here is still making up their mind on what to vote in the upcoming European elections, the results of the copyright vote are publicly available, so you can check your own representatives. There are representatives in favor of the proposal across all of the political spectrum, but the Christian Democrats of the EPP group were in favor in particularly large numbers. In my native Netherlands they were the only people voting in favor of the directive, with the conservative socialists abstaining and the rest being against the directive. Funny, the two parties that didn´t vote against the directive are two parties always campaign with the idea that the EU needs to dictate less rules to us and that we need to put a brake on the cooperation. Well if you want less European rules CDA and SP, let´s start with not purposefully adding any bad ones okay?

But yeah, nothing changes either way for creating and uploading tracks for the Stunts competition, that can just continue. Maybe stay away from Mickey Mouse shaped tracks to be on the safe side.

[/rant, back to driving]

[GTAManRCR]

I think, making a Mickey mouse shaped track doesn't count as copyright infringement

[Overdrijf]

I think, making a Mickey mouse shaped track doesn't count as copyright infringement

At the very least it won't be detectable by a filter.

(Making a Mickey Mouse shaped track would go under parody, which is usually legal except maybe if you use Disney's own footage of the character, or maybe a character design too close to the real thing to be told apart, neither applies in this case. I just felt it was a nice lighter line to end on.)

[Cas]

Ha, ha... if you get sued for making a Mickey Mouse shaped track, you should celebrate, for you'll win that trial and make a great amount of money out of it XD  To give you an example, all over the world, people sing "Happy Birthday" (maybe changing the language) on birthday parties. It turns out that "Happy Birthday" is a copyrighted song that takes royalties when commercially used. In theory, they could sue you for singing happy birthday to a friend, but they would never win if they did. It would be seen as an abuse.

Also, did you know that borrowing a music CD from a friend and listening to it constitutes a copyright violation?  This is because the licensing of copyrighted material is, as a general rule, non-transferrable.

[Overdrijf]

Wasn't Happy Birthday actually freed from copyright in a semi-recent court case due to a mix of age, questionable evidence and a questionable link between the authors and the current supposed rightsholder? Zorro became public domain in a similar process a few years back. I also don't think a lot of people are getting rich by disputing false claims against them. Years of lost time and a weak apology is a more likely result.

Most copyright laws have some version of a clause for reasonable private use in them. Listening to your friend's CD is typically covered under those. In some cases these laws go quite far. In the Netherlands the legal status of downloading is still quite fuzzy because if I make a copy of something for private use that's allowed, and apparently it's quite hard to make an exception on that exception for copying stuff I don't actually own.

[Cas]

Oh!  I wasn't aware of it, but yes, reading the Wikipedia article, I can see that Happy Birthday To You was put in the public domain two years ago. About Zorro, I didn't know either.

But yes, in general, we agree that, when things do so little to no harm, it sometimes is much more harmful to actually sue somebody for a probably copyright violation and is seen as clearly abusive, which either legally (because of exceptions found in local laws, for instance) or just logically make it a crazy idea to initiate any kind of legal action against the offender or to expect to win on a trial.

There are lots of grays. For example, some websites host downloads for NES ROMs and, as a form of protection, they state in their web page that the links are only intended for use by people who actually own the cartridges, since it's legal for them to also acquired the content in any form. Of course, somebody not having the cartridge can still physically download the file and the website is unable to tell whether you have the cartridge or not, but they consider they escape the responsibility of copyright infringement, as they have issued that statement, which passes such responsibility to the final user. This strategy usually is not enough and websites are being put down for this, but we must admit the difference between this and so many other "gray" actions is just the "brightness of the shade", nothing more. So it's a matter of human decision (by a judge) to actually determine when it applies and when it doesn't.