Legal issues with source ports

Note: this was split from the Online Doom thread, as it digressed too much into the legal and less into the technical.

Anyways, after reading a certain lawyer's letter to the Mozilla Corporation, IMO it leaves it quite open to interpretation what precisely the pointy-haireds meant by this:

DOOM is a registered trademark and the game assets are copyrighted material. Use of the mark DOOM and copyrighted assets without our authorization and consent, directly violates our trademark and copyright rights in and to such intellectual property.

OK, "assets" probably means "shareware IWAD" in that incident's context: the shareware IWAD was distributed along with said port of Doom, outside of the official Shareware DOS and Windows95 packages. Not the first time this has happened (there also was a very similar Flash/Flex port of Doom which did the same thing, no idea how that ended up), but it's the first instance I remember action being taken against it.

But the "mark DOOM" (sic)? Does it mean that almost every source port out there is potentially open to legal attack, simply by mentioning DOOM? Or is only the combination of the mark AND the assets that's the problem?

"BUT MEAS(sic), L0L, THE SOURCE CODE IS OUT THERE WITH THE BLESSINGS OF CARMACK & CO.!". Yeah, that's true, but strictly speaking, only the source code is covered by the Doom (and then GPL) license, not the right to make any derivative products "using the mark DOOM" (again, pretty open to opposing legal interpetations).

Yeah, it's true that there's some old letter by John Carmack that casually says that "playing with the source code for non-profit uses" is OK as long as the game's assets aren't distributed along with them, but would that hold any water against the pointy-haireds' arguments regarding the "mark DOOM"?

Especially if said pointy-haireds then write this:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

"Good faith belief"? Therefore not a certainty? Is this guy even aware of the existence of source ports, their meaning, and their licensing status? AND he is (well, was in 2011 at least) acting in the current copyright holder's interests? Oh boy.

IANAL, but this could potentially lead to some very interesting developments, to say the least, if someone decides to make it a point in his resume that he "ended any and all infringements of the mark DOOM".

Are we sure Doom source ports (ALL source ports) don't require some stronger legal backing, perhaps with Carmack re-iterating his "laissez faire" approach in a more formal and less legally ambiguous way?

Are ports with "Doom" in their name vulnerable to this? ZDoom, GZDoom, Chocolate Doom, Mocha Doom, Crispy Doom, Doom Retro...

Maes said:

But the "mark DOOM" (sic)?

I think this was about the Doom logo, not the Doom name. No port I know of uses the logo for advertisement purposes. And no port is distributing the shareware assets, i.e. a playable game.

I think if any project may be affected here, it'd be Freedoom.

Maes said:

"Good faith belief"? Therefore not a certainty? Is this guy even aware of the existence of source ports, their meaning, and their licensing status? AND he is (well, was in 2011 at least) acting in the current copyright holder's interests? Oh boy.

Best read how the DMCA procedure is supposed to work - it needs to adhere to some specific formalism to be valid, and this phrase is part of it. Besides, lawyers want to have their ass covered, in case it turns out that the complaint is thrown out in a court later.

Graf Zahl said:

I think this was about the Doom logo, not the Doom name. No port I know of uses the logo for advertisement purposes.

Even so, I'm certain a sufficiently motivated lawyer could find something to work with the following ones, citing some bullcrap about logo similarity/plagiarism/attempt of association etc.:

Obvious similarity of the "D" letter with the one used in the logo, including the color scheme:

https://avatars2.githubusercontent.com/u/6140118?v=3&s=400

Obvious reference to the Cacodemon's sprite shape, and use of the "Doom font":

http://vignette2.wikia.nocookie.net/doom/images/e/e7/DOOMBUILDER2.jpg/revision/latest?cb=20100822104904

If we include the use of the "Doom font" in the broadest definition of "copyrighted assets", then there would be many, many more logos to include:




etc.

Minor aspects might be even the use of the visual spelling "DooM", obviously reminiscent of the logo.

Again, IANAL, but I suppose it depends on how motivated a prosecutor would be.

Graf Zahl said:

And no port is distributing the shareware assets, i.e. a playable game.

Other than that JavaScript port, there was that Flash/ActionScript port which did so. And not only Doom's, either, but also Heretic's and Hexen's! Actually, that one is still up. Ofc, it's one thing getting a single link down...and another getting something that spread like wildfire in the heyday of Flash animations & games. Or it simply flew sufficiently "under the radar?"

Maes said:

Obvious reference to the Cacodemon's sprite shape, and use of the "Doom font":

Offtopic but the cacodemon plagiarism claim would not hold ground, because id already took it from that D&D art.

Maes said:

https://staticdelivery.nexusmods.com/mods/1372/images/9-0-1464710527.png

This is not the official GZDoom logo because there is no official GZDoom logo.

printz said:

Offtopic but the cacodemon plagiarism claim would not hold ground, because id already took it from that D&D art.

Two wrongs don't make a right; or in other words; "you stole it too" is not a valid legal defence.

That may be true but you can still say "I didn't take it from YOU so you have no grounds to prevent me from using it."

Graf Zahl said:

That may be true but you can still say "I didn't take it from YOU so you have no grounds to prevent me from using it."

Only if you actually didn't take it from them.

I can't believe we're wasting our time on this stupid conversation. I'm sorry for prolonging it.

Let's google for kittens instead.

Yeah you'd have a hard time arguing that the logo is actually a reference to the astral dreadnaught's head, not the cacodemon.


Here are the required kittens.

Short answer: yes, Zenimax could try to sue people for using the word "DOOM" in order to protect their trademark.

There is, however, a thing called "nominative use" which would protect people to some degree. To steal from Wikipedia, it basically means that using a trademarked word, like oh say "Doom", is okay so long as

1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute).
   
2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol).
   
3. The user does nothing to suggest sponsorship or endorsement by the trademark holder.
   

Using "Doom" in the way the community uses it would pass this test - especially #1, since how the hell else would we be expected to refer to it?

Of course, in the adversarial legal system, this would still mean that you would need to go to court in order to prove that you didn't belong in court, with all the costs that entails.

Linguica said:

Using
Usinm" in the way the community uses it would pass this test - especially #1, since how the hell else would we be expected to refer to it?

SPISPOPD? Or, if worse comes to worst, all those "how did you call Doom/the monsters/Doomguy" threads will finally have found a purpose.

"Kill all the lawyers!" - Hamlet (from Shakespeare's play of the same name)

I'd go with the kittens.

Seriously, why would anyone try to attack all the source ports which has kept Doom as a constant source of revenue for the last 17 years - even if that implies some minor compromising of the trademarks? Other games of the same era are mostly long forgotten and/or have faded into obscurity because nobody can play them anymore.

This DMCA'd Javascript port was an entirely different thing that cannot be compared at all. If there's any kind of revenue in the game, it's clearly making a profit off someone else's property and that's plain and simply illegal - and be it as it may, just by hosting the game on the web someone (not necessarily the uploader, though) WILL make some money from it.

Graf Zahl said:

I'd go with the kittens.

Seriously, why would anyone try to attack all the source ports which has kept Doom as a constant source of revenue for the last 17 years - even if that implies some minor compromising of the trademarks? Other games of the same era are mostly long forgotten and/or have faded into obscurity because nobody can play them anymore.

Well, as the old joke with Paganini who's soothing a hungry pride of lions in the veldt with his violin's music goes, all it takes is one dumb/deaf lion to spoil the fun/crap on the party ;-)

This contribution of source ports may be obvious to you and me, but is it equally obvious to a non-gamer/non-Doomer? Will it be obvious to some up-and-coming lawyer who's seeking to aggressively enrich his portfolio with an easy legal "victory" upon an apparently easy, fat, juicy target? IMO, it's only a matter of time until someone like that plays the role of the deaf lion who was oblivious to the music that kept the rest of his pride pacified, and kept them from attacking the lone man standing in the middle of the veldt.

Graf Zahl said:

This DMCA'd Javascript port was an entirely different thing that cannot be compared at all. If there's any kind of revenue in the game, it's clearly making a profit off someone else's property and that's plain and simply illegal - and be it as it may, just by hosting the game on the web someone (not necessarily the uploader, though) WILL make some money from it.

That's an interesting legal argument. You're not allowed to make money from a game-related webpage? Do Youtubers know about this?

Apparently not. I guess the producers let it pass because it's good advertisement but this definitely is an area where people could run into trouble.

But videos of one's own attempts to play a game are still different than using the game directly.

Maes said:

Will it be obvious to some up-and-coming lawyer who's seeking to aggressively enrich his portfolio with an easy legal "victory" upon an apparently easy, fat, juicy target? IMO, it's only a matter of time until someone like that plays the role of the deaf lion who was oblivious to the music that kept the rest of his pride pacified, and kept them from attacking the lone man standing in the middle of the veldt.

I don't know how the law is in other countries, but here in Germany such a lawyer can't do much because he has to act on behalf of the copyright holder.

There have been cases where some sneaky lawyers tried that but the end result always was that they ended up in more trouble than the people they went after.

I was referring to lawyers/watchdogs specifically hired and authorized by the copyright holders to do this kind of lawsuit flinging (can't be, there MUST be some people paid to keep a vigilant eye on these things....). The guy who sent the cease & desist letter to the Mozilla Corp. is one example. If he wanted to really keep busy, oh boy, he would have plenty of material to work with, though, admittedly, not much "juice" to look after. After all, no Doom source port or Doom mod author has ever gotten rich or anything.

Do any of the shareware releases even include any kind of license statement? I've always assumed we have some kind of right to distribute the shareware version but that might not even be true.

fraggle said:

I've always assumed we have some kind of right to distribute the shareware version but that might not even be true.

The Mozilla emscripten thing included the shareware IWAD and provoked the DMCA request, so nooooope.

I think the explanation people came up with was that distributing the shareware IWAD was not the same as distributing the actual compressed shareware file(s), which *wanking motion*

Maes said:

I was referring to lawyers/watchdogs specifically hired and authorized by the copyright holders to do this kind of lawsuit flinging

I think these guys have very specific instructions what to go after and what not. No copyright holder would risk some legal problems due to an overeager lawyer.

There is the statement from John Carmack, speaking on behalf of id Software in 1999: http://metadata.ftp-master.debian.org/changelogs//non-free/d/doom-wad-shareware/doom-wad-shareware_1.9.fixed-2_copyright

Linguica said:

I think the explanation people came up with was that distributing the shareware IWAD was not the same as distributing the actual compressed shareware file(s), which *wanking motion*

So if I want to distribute Doom on mobile devices (or what have you) and I want people to play it immediately, and I don't want Freedoom, to offer the Doom demo do I have to download the original DEICE demo from the publisher's site, and use an embedded "DOSBox" engine just to be able to run the installer?! No shortcuts such as an already inflated IWAD downloaded from my Dropbox space...

@printz: I guess a slightly more workable solution would be to extract the IWAD from the Doom95 .zip archive, which I believe was also the "official" way in which it was distributed (at the time, single-piece executable installers were still unusual). There also are "preinstalled" versions of the DOS shareware on various shovelware discs, shareware repos etc. but I don't know how "kosher" those are.

Sure, nothing beats the convenience of serving a "ready to play" game through e.g. a browser or mobile app without having the app (or worse, the user) going through hoops, but apparently doing so is a legal honey trap. Of course, there's the infamous "Doom triple pack" which cheerfully packs not only Shareware Doom, but also Shareware Hexen and Heretic, and nothing gross happened.

You can also get the v1.8 IWAD from here:
http://www.ibiblio.org/pub/linux/games/doom/
ftp://ftp.fu-berlin.de/pc/games/idgames/idstuff/doom
and some other places. It's just a gzip'ed wad, no extra junk included. It was meant for use with Linuxdoom, and the other various Unix ports.
I don't think there's any advantage to using v1.9 except that the demos might crash (but they should run ok with prboom and others that have good compatibility).

Only that such repositories fall into the "disembodied IWAD" pitfall, aka an IWAD being distributed outside one of the official distribution packages, even if it's the Shareware one. We know for sure that the "embedded IWAD" scenario has drawn legal gunfire upon it for this very reason.

Assuming that the isolated IWAD is not 'official'. I think this was done because non-DOS users were unable to install the shareware version and needed the file in another form, so it may well be something done by id themselves.

It's also far from the same as offering an embedded IWAD to play the game online.

The same IWAD file is actually in linux-doom-1.8.tar.gz, but that's just something Dave Taylor threw together, and he said it's not officially supported (as in "don't bother us about this").

ddt said:

I did this 'cause Linux gives me a woody. It doesn't generate revenue. Please don't call or write us with bug reports. Theycost us money, and I get sorta ragged on for wasting my time on UNIX ports anyway.

But still it was released by them, so it's not illegal in any way for someone to download it, like via a post-install script or something. Bundling that file with your program and actually distributing the IWAD as part of a package is a different matter altogether.
BTW, that DEICE thing is just a simple binary file "split" (as in /usr/bin/split on Unix). Here's the relevant lines from /usr/ports/games/doomdata/shareware/Makefile from OpenBSD:
cd ${WRKBUILD} && cat DOOMS_19.[12] > DOOMS_19.ZIP
cd ${WRKBUILD} && unzip DOOMS_19.ZIP

hex11 said:

But still it was released by them, so it's not illegal in any way for someone to download it, like via a post-install script or something.

It might have not been illegal at the time where they made the package, but by now the copyrights have changed hands, and it's a third party calling the shots. Presumably, they also have retroactive power to "recall" any such previous "unofficial" distributions.

And wasn't Dave Taylor out of id already from 1996? So he probably has no say in the matter now (assuming that he did back in 1995-1996 when that source + IWAD were released). Even if he did so back then with the blessings of id's head honchos, as I said, things have changed in the last 20 years.

Maes said:

It might have not been illegal at the time where they made the package, but by now the copyrights have changed hands, and it's a third party calling the shots. Presumably, they also have retroactive power to "recall" any such previous "unofficial" distributions.

No, they do not!
If that thing had been released officially by the copyright holder itself, a change of ownership cannot suddenly make it illegal.

And why should they? Distributing the shareware version is not illegal, it's in fact encouraged by the copyright holder.

The thing is, what that Javascript port did was not distribution in the way that's being allowed. With a website that allows to play the game you are not distributing, but running a service, and if you dig deeper into the available documents you'll most likely find that this case has been explicitly ruled out. Unfortunately I cannot get my hands on such a file right now.