An idea, fighting fire with fire.

[ratfink]

I thought I would bounce an idea off of you guys.  It's pretty clear that the payware guys have very little respect for copyright and it goes beyond just EA's copyright.  After looking over the some payware sites I have noticed a lot of images in the form of paintings appear to be either photos of still in copyright real paintings and photography.  Basically what I was thinking is, putting together a group of people to essentially scrutinize payware works and attempt to find the artists and licensing agencies of any work in the payware and tipping them off to the copyright violation that in all likelihood they were unaware of.

It seems that a lot of these payware artists live in some sort of fantasy world where they can take whatever the hell they want from anyone yet they will cry when others do far less to their work.  Time for your medicine.

[HawkGirl]

I thought I would bounce an idea off of you guys.  It's pretty clear that the payware guys have very little respect for copyright and it goes beyond just EA's copyright.  After looking over the some payware sites I have noticed a lot of images in the form of paintings appear to be either photos of still in copyright real paintings and photography.  Basically what I was thinking is, putting together a group of people to essentially scrutinize payware works and attempt to find the artists and licensing agencies of any work in the payware and tipping them off to the copyright violation that in all likelihood they were unaware of.

It seems that a lot of these payware artists live in some sort of fantasy world where they can take whatever the hell they want from anyone yet they will cry when others do far less to their work.  Time for your medicine.

It depends a lot on the size of the picture, plus how much of the actual picture was used. There is a fair use/ parody and several other  clauses in copyright. Plus as long as the artist copyright is on the image, most won't say anything. Then too you have a lot of images even though they seem pretty recent that are part of public domain. It would be really hard to separate them all. That plus they would have to actually be part of a donation pack, etc....You'd be better off going with clothing designers. They have to use their entire design, or at least 50 percent of it which is not allowed for resale. Going through and seeing which ones are using cad objects and selling them. Downloaded Poser hair, clothing, objects,etc...and is reselling it, but there again you'd have some problems. Some allow for commercial use as long as it's not just the hair or object, some don't care, and some don't allow any commercial use. So it would take a lot of research. If you really want to hit them I think it would be through taxes. Most probably are not claiming the money they make or paying any taxes in their country. Anyway, I already posted about this once I don't want Hec beaming me over the head with her axe. So I'll shut up.

[ratfink]

It depends a lot on the size of the picture, plus how much of the actual picture was used. There is a fair use/ parody and several other  clauses in copyright.

Parody applies only to works that carry commentary and by definition is an imitation (ie a derived work), not a copy of the work.

Fair use however has some very specific tenants to it:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright...

The commercial selling of objects derived or containing artwork satisfies none of those tenants.  In reality it's the equivalent of printing posters of the works and selling them to be bundled with a furniture set.   Being digital does not change that.

Plus as long as the artist copyright is on the image, most won't say anything.

I have actually worked awhile in this field while, this may be true for armature artists but it's not the case with professional ones and certainly not ones under distribution contracts.  Their income is typically derived from the sale and use of the artwork and having the image infringed will dilute the value of the work.  Secondly a professional artists are under contract for exclusive distribution of their work to a media company, "letting it go" would breach that contract.

Then too you have a lot of images even though they seem pretty recent that are part of public domain.

In the US at least only works earlier then 1923 are guaranteed to be free of copyright and anything created after 1977 is automatically copyrighted for life of the artist plus 70 years.  Of course copyright doesn't apply to works done by the federal government but I doubt you would see much of those.

It would be really hard to separate them all. That plus they would have to actually be part of a donation pack, etc....You'd be better off going with clothing designers.

Actually it's really not all that hard when you know your art.  You can date a photograph or painting by style and medium and 1923 is a long time ago a lot has happened in the art world since then.  What I plan on doing certainly doesn't prevent doing the same thing over clothing designs, it's just painting and photography is what I know.  If you know clothing and design and would like to help that is cool too.

They have to use their entire design, or at least 50 percent of it which is not allowed for resale. Going through and seeing which ones are using cad objects and selling them. Downloaded Poser hair, clothing, objects,etc...and is reselling it, but there again you'd have some problems. Some allow for commercial use as long as it's not just the hair or object, some don't care, and some don't allow any commercial use.

No one said this would be easy, but as the saying goes many hands make light work...  Think of the psychological impact of payware artists having to deal with even a few C&D letters, DMCA take down notices and such and being forced to rework their content every time.  I think that is a very powerful tool for the cause.

So it would take a lot of research. If you really want to hit them I think it would be through taxes. Most probably are not claiming the money they make or paying any taxes in their country. Anyway, I already posted about this once I don't want Hec beaming me over the head with her axe. So I'll shut up.

I am not sure if you are talking about sales or income tax but...

Problem with sales taxes in the USA at least is that under currently law (they want to change this but it's not moving very fast) they are only obliged to collect taxes in states they conduct retail business and being a virtual business they can claim they have no retail location in the US.  In these cases it's on the buyer to pay the sales tax when filing income taxes.

As for them filing their earnings on income tax some may many more probably don't but short of getting their tax filings it would be impossible to tell.

[HawkGirl]

I was using most of those as examples. But if you think your going to get some artist who's images are not being sold. or a company is going to pay some attorney the costs to send out a cease order for a thumbnail image? That's going into a game as a picture to hang on a wall...Please be my guest. I have a feeling your going to be banging your head against a brick wall. Take a look at Imagenetion/ or just do a search on scans and see how far your going to get with a thumbnail. Who is going to pay an attorney 2 to 500 dollars to make up a cease order for a thumbnail? Unless they are selling the image. There are always ways around copyright, been there done this already with this issue and a court of law. So you can quote all day what that law says, unless you've been in a courtroom and seen those laws all go out the window...They look awful pretty on paper, doesn't mean there isn't someone going to get them thrown out, overturned or quote better ones that protect their client.

Which is why if you look at game companies and how they are succeeding it is through contract law, not copyright law. People who say the EULA has never been tested, have never done any real research. It has indeed been tested and by game companies in both Europe and the USA and they have won. Much more than they have lost. In fact one case was recently appealed and they still won. Just look up. Not on copyright, the contract the end user agreed too. As their attorney said when he came out of the appeals court, if it's in the EULA and you agree too it, you better follow it or you will loose and you will pay. Even though the contract your agreeing to rewrites several federal and local laws.

Both the circuit court and the appeals court both upheld they violated their contract with Vivendi. Even though what they did was clearly protected under fair use laws, just go and read both decisions.

Or do a search on Warcraft, Diablo II and court cases. These guys were protected under federal law and fair usage and still lost. What do we really think the courts would rule when these paysites are not even protected under fair usage? Not only that but EA offers to take back and pay for the shipping if they don't agree. But, I honestly think it will have to come from EA themselves.

Here you go I looked it up for you:
http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf

This is from the appeals court.

And here you can see they were protected:

3. "Do not reverse-engineer this product."
Some EULA terms harm people who want to customize their technology, as well as inventors who want to create new products that work with the technology they've bought. "Reverse-engineering," which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. This kind of tinkering is explicitly permitted by federal law – it is considered a "fair use" of a copyrighted item. Courts have held that the fair use provisions of the US Copyright Act allow for reverse-engineering of software when the purpose is to create a non-infringing interoperable program.


So like I said those laws you are quoting look awful pretty on paper. Oh and yes that is exactly what I am talking about with taxes. Not sales taxes. Taxes on income earned from that website. If you think you can't report a website as having earnings even right here in the USA and the IRS can't find out what those earnings are? Any government and say I think you should look into this website the people there are earning a lot of money and I don't believe they are paying taxes on that money. That came to me directly from the Copyright office, if I think someone is earning money on a website and not paying taxes on that money? Especially if it is a foreign company doing business in the USA and not paying taxes on that money it is still earned income. I need to contact the IRS not EA.

[ratfink]

I was using most of those as examples. But if you think your going to get some artist who's images are not being sold. or a company is going to pay some attorney the costs to send out a cease order for a thumbnail image?  That's going into a game as a picture to hang on a wall...Please be my guest. I have a feeling your going to be banging your head against a brick wall.

A C&D is a template letter, it takes about a minute to complete for a staff attorney.  When someone is profiting off of their work you will be surprised how bulldoggish artists will turn.   If you approach the right people, something will be done.

Take a look at Imagenetion/ or just do a search on scans and see how far your going to get with a thumbnail. Who is going to pay an attorney 2 to 500 dollars to make up a cease order for a thumbnail?

First of all you don't need to be a lawyer to create a C&D, it's not a legal document, it's a warning.  But licensing agencies have staff attorneys to handle that and often even have sections devoted to infringement.   The difference between a place like Imagenetion and a payware creator is one is doing it for commercial gain and the other as a free service.  That makes all the difference in the world to someone who charges money for their work.

Unless they are selling the image.

They are.

There are always ways around copyright, been there done this already with this issue and a court of law.

This is just plain untrue.  Please cite a case.

So you can quote all day what that law says, unless you've been in a courtroom and seen those laws all go out the window...They look awful pretty on paper, doesn't mean there isn't someone going to get them thrown out, overturned or quote better ones that protect their client.

I have spent about 1/10th of my career in court, apparently you seem unaware that the job of the court is to uphold laws.  But I would love to see the case where a just thew out copyright law.  I don't believe you fully understand the law if that is what you believe is happening.  Again if you have the case in question I would be happy to explain it to you.

Which is why if you look at game companies and how they are succeeding it is through contract law, not copyright law.

There is only so much you can do in a contract and it requires explicit acceptance in order to be enforced.  You cannot just say someone is bound by a contract you need to though action (be it a signature or installing a program on your hard drive).  Secondly you cannot assign putative damages though a contract, which means you are bound to injunctions and actual damages.

People who say the EULA has never been tested, have never done any real research.  It has indeed been tested and by game companies in both Europe and the USA and they have won. Much more than they have lost.

Absolutely they have been tested and largely they are a mixed bag.  Legal in concept, however parts (for example bundling of software) of them have been invalidated as they abridged the users rights under the law (in that case the doctrine of first sale).

In fact one case was recently appealed and they still won. Just look up.

I don't know how you expect me to look anything up with no information on it.

Not on copyright, the contract the end user agreed too.

I believe you are misunderstanding what is going on.  Mis-using software cannot be tried a copyright infringement since they legally own the software (unless .  Had they not owned it they wouldn't have been bound by the EULA.

As their attorney said when he came out of the appeals court, if it's in the EULA and you agree too it, you better follow it or you will loose and you will pay.

The attorney would be wrong:
Novell v. Network Trade Center 25 F. Supp. 2d 1218 (C.D. Utah 1997)

Even though the contract your agreeing to rewrites several federal and local laws.

Contracts exist within the law and not above it.  

Both the circuit court and the appeals court both upheld they violated their contract with Vivendi. Even though what they did was clearly protected under fair use laws, just go and read both decisions.

The contract really was on the sidelines, what the majority of, and the most severe parts of the case arise out of the DMCA anti-circumvention features.

Or do a search on Warcraft, Diablo II and court cases. These guys were protected under federal law and fair usage and still lost.

They didn't even try to argue the case on fair use grounds.  The case didn't even really go into "traditional copyright" per se but rather a lot of the new protection features of the DMCA.  While there are some exceptions unfortunately and for some stupid reason fair use really doesn't carry over quite the same when have access controls.

What do we really think the courts would rule when these paysites are not even protected under fair usage? Not only that but EA offers to take back and pay for the shipping if they don't agree. But, I honestly think it will have to come from EA themselves.

I have no idea what you are trying to say here.  I maintained all along that the paysites using copyrighted work would not fall under fair-use no more then a poster manufacturer would printing posters of copyrighted works.

And here you can see they were protected:

3. "Do not reverse-engineer this product."
Some EULA terms harm people who want to customize their technology, as well as inventors who want to create new products that work with the technology they've bought. "Reverse-engineering," which is often forbidden in EULAs, is a term for taking a machine or piece of software apart in order to see how it works. This kind of tinkering is explicitly permitted by federal law – it is considered a "fair use" of a copyrighted item. Courts have held that the fair use provisions of the US Copyright Act allow for reverse-engineering of software when the purpose is to create a non-infringing interoperable program.

What they did was allready illegal under DMCA even if they had not agreed to the EULA.  The EULA is the quick fix, it's the copyright claim in the form of DMCA that has the teeth.

So like I said those laws you are quoting look awful pretty on paper. Oh and yes that is exactly what I am talking about with taxes. Not sales taxes. Taxes on income earned from that website. If you think you can't report a website as having earnings even right here in the USA and the IRS can't find out what those earnings are? Any government and say I think you should look into this website the people there are earning a lot of money and I don't believe they are paying taxes on that money. That came to me directly from the Copyright office, if I think someone is earning money on a website and not paying taxes on that money? Especially if it is a foreign company doing business in the USA and not paying taxes on that money it is still earned income. I need to contact the IRS not EA.

The problem with that is unless you know the person is not paying taxes on the site there is not much you can do much.  It's not as if it's impossible or impractical for them to pay taxes on the earnings.  The IRS and government is going to need some solid proof before they would look into it.

[HawkGirl]

Ok so now your a copyright attorney, why don't you call EA and tell them what they are doing so wrong? I mean your the expert on it, not me. And obviously not their whole team. They have no idea what they are doing. Why they can't just go in like a gang of gangbusters. I wait breathlessly to see all these cease orders your going to get. Our copyright lawyer, he was an actual copyright lawyer told us there always ways around copyright as long as the image is not being sold. So do your thing, I can't wait to see you bring down the paysites with copyright infringement from artists for using thumbnails of their images. You should even volunteer, contact these artists and tell them your going to send out the cease orders for them free of charge because you are a copyright attorney and someone is using their image as a thumbnail. Contact EA and tell them your willing to do it for them as well! We'll all await your outcome. I personally wish you great success. Honestly I do.

But this part cracks me up from you:
The problem with that is unless you know the person is not paying taxes on the site there is not much you can do much. It's not as if it's impossible or impractical for them to pay taxes on the earnings. The IRS and government is going to need some solid proof before they would look into it.

Is that why my brother in law and sister have to pay over 2 million in penalties on 200 thousand owed? And where did this peeon get his solid proof from? All it took was one phone call, I don't think this man is paying taxes on his business. That's some real solid proof they got there.

[Lilyroseisapirate]

i think this thread should be hawk girl and ratfink's thread, since everything after the 2nd post has gone over my head and gives me a headache to try and understand.

[MizzKitty]

I largely got it. And I found it a very interesting and informative debate until HawkGirl's last reply which, I'm sorry to say, just seemed rather sulky and... well, not so interesting. That one was counter-productive, in my opinion.

HawkGirl, if I didn't lose you as a reader of my post yet, I think that ratfink was only alluding to "thumbnails", as you call them, that were being sold on by paysite owners in some way. I do think that the copyright holders would have something against that. We've seen paysites having to pull down copyrighted materials before, because it was being sold, in whatever way. Free stuff on any site they usually could care less about.

Ratfink - I wish you the best of luck with your pet project. I wouldn't know art from Adam, so unfortunately I can't be of any help. I'd love to read your reports if you do succeed in getting them to pull some stuff down, though

[HawkGirl]

I largely got it. And I found it a very interesting and informative debate until HawkGirl's last reply which, I'm sorry to say, just seemed rather sulky and... well, not so interesting. That one was counter-productive, in my opinion.

HawkGirl, if I didn't lose you as a reader of my post yet, I think that ratfink was only alluding to "thumbnails", as you call them, that were being sold on by paysite owners in some way. I do think that the copyright holders would have something against that. We've seen paysites having to pull down copyrighted materials before, because it was being sold, in whatever way. Free stuff on any site they usually could care less about.

Ratfink - I wish you the best of luck with your pet project. I wouldn't know art from Adam, so unfortunately I can't be of any help. I'd love to read your reports if you do succeed in getting them to pull some stuff down, though

Yes, I did get very sulky. I'll admit it. When I'm tired, I just go oh well. pfft. It's one of my many character flaws. I also lack severely in patience. I cope very well in serious situations, when other's usually fall apart, I'm usually the calm one that says we can fix this, then get to organizing. However, I don't function well when things are not in order/chaos in my immediate surroundings/my comfort zone. So see I have many. I think Ratfink is very knowledgable. If I had a link I could probably provide the artist name, if I recognize the work. I know a lot of artists, mostly fantasy artists. But, I also will recognize a lot of folk art, comic art like Raglin, etc... since those are the types of artists I learned from. I could help with that part. So apologies and I'll jut go an lurk some more because I'm still in that sulky mood. Three days and no sleep, I could come off very easily as something demonic possessed with my head spinning around. Making no sense. If you send me the link Rat, I'll go and see if I recognize the work.

[ratfink]

Sorry from the delay in posting I had a lovely 16 hour work week.

Ok so now your a copyright attorney, why don't you call EA and tell them what they are doing so wrong? I mean your the expert on it, not me.  And obviously not their whole team. They have no idea what they are doing. Why they can't just go in like a gang of gangbusters. I wait breathlessly to see all these cease orders your going to get.

I am not nor have ever claimed to be an attorney, I am however a paralegal (though working to be able to take the bar exam), but even if it does it would be unethical for me to give unsolicited legal advice lacking full knowledge of the situation.

I really don't know why you are going down that track, this specifically has nothing to do with EA.  What it is about is finding other copyright holders that will do what EA won't and demand take down of their work.  EA really has nothing to do with this.

Our copyright lawyer, he was an actual copyright lawyer told us there always ways around copyright as long as the image is not being sold.

Your copyright lawyer would have reckless, I can only assume you misunderstood the lawyer.  The problem is he isn't here and you are so it's quite hard to ask questions as to see what he truly means.   You got to remember there were some VERY smart and talented lawyers defending both Napster and Kazaa on their copyright claims on far shakier leagal ground (contributory infringement) then direct infringment we are discussing now and they failed.  Regardless images in this case are being sold in these collections.

So do your thing, I can't wait to see you bring down the paysites with copyright infringement from artists for using thumbnails of their images.

I don't expect you to stop what you are doing, if you feel that what you are doing now will stop them, by all means go ahead but it sure as hell won't make their lives easier having to deal with artists demanding their work removed.

You should even volunteer, contact these artists and tell them your going to send out the cease orders for them free of charge because you are a copyright attorney and someone is using their image as a thumbnail.

This is really starting to sound like a pout.  I will let them know of the infringement and point to the offender.  They do the rest.

Contact EA and tell them your willing to do it for them as well! We'll all await your outcome. I personally wish you great success. Honestly I do.

This has nothing to do with EA.

Is that why my brother in law and sister have to pay over 2 million in penalties on 200 thousand owed? And where did this peeon get his solid proof from? All it took was one phone call, I don't think this man is paying taxes on his business. That's some real solid proof they got there.

Seriously if your bother and sister owed $200,000, which is a heck of a lot of in back taxes then I am certain that more then one person knew about it and likely the IRS itself already knew.

[ratfink]

HawkGirl, if I didn't lose you as a reader of my post yet, I think that ratfink was only alluding to "thumbnails", as you call them, that were being sold on by paysite owners in some way. I do think that the copyright holders would have something against that. We've seen paysites having to pull down copyrighted materials before, because it was being sold, in whatever way. Free stuff on any site they usually could care less about

Yes you hit the nail on the head.

Ratfink - I wish you the best of luck with your pet project. I wouldn't know art from Adam, so unfortunately I can't be of any help. I'd love to read your reports if you do succeed in getting them to pull some stuff down, though

Thanks I will sure to try to keep everyone up to date.

[leilatigress]

Ratfink, you are a paralegal not a lawyer.  For you to defame a lawyer you have no idea who it is or what they said is not wise.  If you are going to play with the big dogs it's best to not piss on your friends.  Both you and HawkGirl have a point, and it would be very hard to track down all of the images and the artists but I do wish you luck on that.  In the meantime I'll give you an example. Nene Thomas, is a decent and pretty well known fantasy artist.  Tsr has several of her paintings up for download.  Some are free some are not, if you go to her site however www.nenethomas.com she expressly forbids the use of her work for commercial gain without express written consent.  That is copyright infringement in true form.

[Paden]

Here I come to the site, expecting to have a fine time, posting and debating, and find legal discussions. Blarg!

[HawkGirl]

http://www.charmedsims.org/design_paintings.html
I know who's artwork this is and the contact information.

http://www.simultaneousdesign.com/TS2/FrontPage.htm
Selling artwork from several different artists.
I also know who all these artists are and how to contact them. She has a mix of artists here. Some found in public domain, some from Dover which means she can use a certain amount of the images. Some are folk artists. Some fantasy artists.

I didn't check out TSR because I don't go to TSR. Someone else will have to check out that site for you.

Below is a list of the sites I checked all their donation packs. I know which are using stock and have altered the images. Which are using various sources like Dover. I also know which have used a certain website to get limited licensing agreements to make their images into paintings.

There you go I helped you out.

The list of sites I checked:

http://www.2-f0r-u.de/startsims2.htm
11 Dots
37 Sims
4eversimfantasy
A bit Modern
Artistic Habitats
Asamo
A sim Catwalk
Birgit 43
Blue Sims
Camilla Nimue
Caravan Shop
Carla Niven
Charmed Sims
DMA Sims
Eclectic Sims
Exnem Sims
Glamorous Lounge
Glamour Sim
Glam Sim
Helga Sims
Holy Simoly
Komo Sims
Liana Sims
Lliella
Loving Touch Designs
Mdlein Design
Open House for Sims
Pandora Sims
Peggy Sims
Pure Sims
Raon Sims
Reflex Sims
Retail Sims
Savage Sims
Sim Ages
Sim Placement
Sim Chic
Sim Credible Designs
Sim Freaks
Sim Gedoehns
Sims HZ
Simplan X
The Sims Republic
Sims 2 Fashion
Sims 2 Luxe
Sims2 Orient
Sims 2 Studio
Sims 4 Life
Sims Connection
Sim Secrets
Sim Slice
Sim Snobs
Sim Squirts
Simultaneous Design
Spicy Sims
Stylist Sims
Sublisims
Tribecca Sims2
Vita Sims2
Wall Sims
Well Dressed Sim
XXX Sims2
Distant Eyes Sims
Sims 2 Heaven
Around the Sims 2

[decaffinatedmeowmix]

While I didn't understand the legal information going back and forth I still enjoyed reading it.

I think you have a great idea here, and I hope you do pursue this, because there are so many of them out there who just take what they see without thinking about who really owns the material. It's really sad.

Not only that but they never mention anything about the original artists or where they got the inspiration from.

Now maybe I'm not remembering right here, but if my memory is good didn't Sim Freaks and Sim Skins (back in Sims1) have to change they're whole website around after it was found out that they were selling things (poser etc.) that they shouldn't have been? And I know I personally lost a lot of respect for them as artists after that... Know that they're great creations were frauds.

Anyway thought I'd just give a random post since I mostly lurk here. But I think you have great ideas.

*Steals some Rum*

(edit to fix one typo.. but not the rest, they can stay )