We're back with the big #6 issue of our weekly QJ How-To Series, and this one here is a continuation of the discussion we jumpstarted last week on Copyright Issues and Homebrew. Now, to not cause any further confusion, and lest we be accused of sanctimony yet again, here is our disclaimer, big and bold.
Disclaimer: This segment of the How-To Series does not, in any way, aim to or claim to be a substitute for actual legal advice when the unfortunate scenario of lawyers from developers/ publishers come knocking on your doors, subpoena in hand. This is to inform those who may be interested in developing homebrew of the things that they should watch out for in developing their projects. Things like copyrighted sprites, GNUs, etc - things that any dev should closely look out for to make sure that they are not stepping on anybody's arse.
We therefore strongly advise you to take this How-To Issue as a mere layman's guide and reminder from fellow homebrew enthusiasts, and not as gospel-truth, most especially, not legal truth. And also, do note that Copyright laws
differ from country to country, so be sure to check out what your country's laws are pertaining to this.
There, with that out of the way, let's pick up where we left off last week, shall we? So, basically, we defined certain terms that will be pertinent to the understanding of the topic: Copyright, infringement, Copyright Infringement, derivative works. And then, of course, we also dipped our toes a bit into the whole matter of homebrew being mistakenly made synonymous to piracy.
Now, let's get down to the nitty-gritty of things and discuss actually what you, as a wannabe homebrew dev, could and should watch out for in stirring up your own brew.
Beware your Sprites
There's
been one too many a case where a homebrew project got snagged in major
snafu because of copyrighted sprites. What are they exactly, and what
kind of antics can they pull from under their little sleeves to get you
in trouble?
Simply put, they're clips of moving video game
characters and background scenery and are caught as stills in image
format. Sprites usually come from video games of early years, such as
from Nintendo and Sega consoles.
Now, for the most part, the use of sprites are generally
condoned by the powers-that-be. Fair use may be bannered high when
using a copyrighted sprite for a parody (say for example, the bajillion
Super Mario
parodies circulating out there). However, to be safe, it would be best
to ask for permission from the company concerned. Also, using
copyrighted sprites for fan-enjoyment may be quite fine, but if you
intend to use it in your brew to profit from it, then that will most
likely get you in trouble.
Sometimes, though, good intentions
are never enough (baby sometimes, love just ain't enough). We witnessed
one such case unfold right in our own forums. Remember sony_psp_player's Mooorhuhn brew?
Cluck went the chicken's tongue
It
all started during last year's PSPUpdates Homebrew Summer Contest.
sony_psp_player submitted an entry entitled Moorhuhn (Moorland Chicken)
PSP. The game was a hit among the readers, with you shooting chickens
as they waddle their way across the map.
The graphics did look
clean and immaculate - so much so that it got our attention. See, just
a couple of months before that, QJ received a package from publisher
Mumbo Jumbo, with a copy of the DS game Chicken Hunter. The game was developed by German company phenomedia.
Having
been struck with that strong sense of familiarity that we've had a
run-in with this chick already, Chris C. then went about to investigate
further and found that the sprites used in the Moorhuhn brew game was
indeed the same as the one in Chicken Hunter (Moorhuhn on PC).
sony_psp_player's Moorhuhn entry to last year's contest
vs.
phenomedia and Mumbo Jumbo's Chicken Hunter:
chickens of the same feather are... most probably the same.
Immediately,
Chris raised the red flag and informed sony_psp_player that if he still
wants to submit Moorhuhn as an official entry, he should remove the Chicken Hunter
sprites and replace it with his own (cos really, it was impressive work
for a 15-year old, if not for the sprites). He did comply and was able
to submit the game for the contest in the end.
All's well that ends well, then?
Unfortunately not.
A couple of months later after the contest, sony_psp_player headed to the forums to seek for some advice. According to him, he had just received an email from phenomedia, Chicken Hunter's developer, stating that:
with amazement, we found out that the day after the e-mail you wrote on
12-Sep, a game with our Moorhuhn was offered for download. Please
explain us until 12-Nov-2008, Noon, what this is all about. Legal steps
are reserved (translated from German).
While
the email did not exactly threaten to have cops swooping down
sony_psp_player's front lawn to arrest him, it still was nonetheless
frightening for then-15 year old brew dev. For his side of the story,
he did try to get the permission from the developers. But obviously, he
did not gain their blessings. So he went on to create his own material,
albeit making the drawings "look pretty much the same as the original
material."
Said sony_psp_player:
That
e-mail really frightened me because I thought that I was in really big
trouble now. So I answered I was making my own material for the game,
but they stated that the name Moorhuhn is a registered trademark and the pictures I used seem to be the same as in the original game.
In
the next e-mail, which I received the next day, phenomedia told me that
I have got two choices of what to do now. Either removing the files
from the Internet or removing the files from the Internet and agree on
a license, which would allow me to use phenomedia's material.
In
the next e-mail I sent to phenomedia on 31st Nov 2008, I told them that
I have removed the downloads and I declined the offer on a license
because I had no time for that.
Apparently,
that sealed the deal for phenomedia because he had not received
anything else from them after that last correspondence. While
sony_psp_player remains to be a free citizen, and fully enjoying his
teenage years, this story still serves a good and smart lesson to all
you other aspiring devs out there:
ask due permission; if you
don't get a reply, assume that's a "No"; create your own material, and
don't even think about making it look like the one you asked permission
and got denied for in the first place.
Now, am sure you found it
terribly curious, that second choice phenomedia gave sony_psp_player:
Remove the files from the Internet and agree on a license, which would have allowed him to use phenomedia's material.
We're
gonna have to assume that the license he was talking about in his email
(since he did not get into details about it, nor did we see the
specific corresponding documents for it) would be the one for
proprietary software license, where phenomedia will grant him the
permission to use their material for his project, albeit under a
non-disclosure agreement. However, the final product will remain to be
recognized as legally owned by phenomedia, thereby essentially making
it un-homebrew.
But
before we go on speaking of licenses, another factor that you should
familiarize yourselves with would be the sources, namely, Free and Open
Source Software, and Closed Source (or Propriety Software).
Saucy Sources
Essentially,
these are recognized as approaches to the development, control and
commercialization of computer software. What basically differentiates
the free and open source software from the closed one is the
availability of source codes.
In the closed source
model, the binaries of a computer program are indeed distributed, but
the license keeps the source code private. Apart from that, it is
mostly considered to be a trade secret of the company.
Meanwhile, the open source
model is recognized as one where the source code of a computer
software, as well as certain other rights which would have otherwise
been regarded as duly copyrighted, is afforded a software license that
allows it to be considered as being in the public domain.
Included in the permitted scope of the open source model are the following:
- use
- change
- improve software
- redistribute software in modified or unmodified forms
The open source model is also the one that is used by the Free and Open Source Software (FOSS) Movement.
Read more on the Debian Social Contract for more info on whether or not a software license can indeed be considered open source.
Proprietary Software License
Here,
the software publisher grants the license one or more copies of
software, but with the limitation that these copies shall remain to be
in their ownership, same as what sony_psp_player was offered. The thing
with the PSL is that despite the granted permission to make use of the
copyrighted material by another party, all rights pertaining to the
software are still held by the original publisher, thus leaving a very
limited set of well-defined rights to the end-user.
Another binding condition of the PSL is that for the end-user to be able to enjoy the software, he is required
to accept the software license and its corresponding conditions. It's a
black or white deal. Either you take it or you leave it.
Free Software License
This
type of software license is one that grants its recipients the right to
modify and redistribute the software, without which it would be a
violation of the copyright law. It is through this concept of Free
Software License that the concept of the Copyleft first surfaced.
An obvious derivation from Copyright, Copyleft
is a form of licensing that can be used to modify copyrights for:
computer software, documents, music and art. Thanks to the Copyleft
licensing scheme, every person who gets handed a copy of a work
necessarily gets the permission to reproduce, adapt, or distribute the
work as long as any copies of or adaptation remain bound by the same copyleft licensing scheme.
And now we head to them licenses.
GNU General Public License (GNU GPL)
The
GNU General Public License was originally written by Richard Stallman
for the GNU project, and is recognized to be one of the most widely
used free software license. This model is considered to be a more
permissive, modified version of the GPL that was originally created for
some software libraries.
At present, there are three existing
versions of this License type, the first of which was released in
January 1989, which then prevented the restriction on distributors
publishing only binary files (although these are executable, these
cannot be read or modified by humans). To answer to this problem, GPL
v1 stated that any vendor distributing binaries must be required to
have the human readable source code also available under the same
licensing terms.
Another issue confronted by v1 would be that concerning the potential additional restrictions on the distributors.
Meanwhile,
version 2 dealt mainly with the "Liberty or Death" clause in Section 7.
According to this section, "if somebody uses a patent or
something else to effectively make a program non-free then it cannot
be distributed at all." (cited from FSFE).
The
latest version, version 3, officially came out in 2007, dealing mainly
with changes on software patents, free software license compatibility,
"source code" definition, and hardware restrictions on software
modification.
This version also touched on other allowances for
the authors to add some more specific conditions/ requirements to their
contributions. One such allowance would be the Affero Clause, meant to
fulfill a request pertaining to software as a service.
To read more on the GNU GPL, click here.
To read more on the Affero Clause, click here.
GNU Lesser General Public License (GNU LGPL)
This
one's another type of free software license. However, what makes this
unique from the GNU GPL model discussed above is that it was originally
intended to serve as a compromise between the strongly-copyleft-leaning
GPL and those permissive licenses like the BSD and the MIT.
In
a nutshell, the LGPL does apply copyleft restrictions on the program,
but DOES NOT apply the same to software that only links with the
program. Also, this is mostly used for software libraries.
What
would delineate it clearly from the GPL type is that LGPL can be linked
to a non-(L)GPLed program (either free or proprietary software), and
then distributed under any chosen terms for as long as it is NOT a derivative work.
If, however, the nature of the work is derivative, then it must allow
"modification for the customer's own use and reverse engineering for
debugging such modifications."
Creative Commons License
The
Creative Commons Licenses are primordial because this is the medium of
the creators to express and communicate what kind of rights they
reserve, as well as which ones do they waive for the benefit of
recipients or other creators.
It would be useful for you to be
familiar with this as it holds the content directory wiki of
organizations and projects making use of the CCL.
Another familiar term used to describe the CC project for copyright licenses would be Share-Alike, which also include certain copyright provisions.
Simply
put, this is defined as "If you alter, transform, or build upon this
work, you may distribute the resulting work only under the same,
similar or a compatible license." There are several generic variations
of share-alike licenses that define free software and open content.
More information on the Creative Commons can be found here.
Share-Alike is discussed further in this link.
How to get a CCL is outlined here.
As
you can see, I chose to veer away from the whole question of whether or
not homebrew can indeed be considered as piracy, because that will be
an obvious exercise in futility. Neither did I give out tips and tricks
on how to bypass laws and regulations, particularly those that can abet
the furtherance of works that toe the thin line between what's
acceptably legal and what's not.
Instead, I chose to delve on
basic facts that young developers out there might want to know - and
should - before treading the very murky waters of homebrew. Because
inasmuch as it is your creativity that you want to fulfill, truth of
the matter is that there will always be rules and regulations policing
you at every turn. Freedom of expression is indeed a right, but even
that is never considered to be absolute.
So here's hoping that
we at least helped you get a bit more grounded on things that you
would otherwise not have considered looking into when working on your
homebrew projects. These facts will definitely help you stay out of
trouble from the wide, intrusive arm of the law.
Again, I did
not want to get too much in the whole jargon of copyright law, because
there is no such universal law for it. The conditions, concessions,
requirements and whatnot vary and are context-specific from
jurisdiction to jurisdiction. So to those of you who live outside of
the U.S., I suggest you check online what are the policies of your
government pertaining to this issue.
For those of you within the
North American territory, you can brush up further on your Copyright
law knowledge by checking out the US Copyright laws. And once more, do
not attempt to interpret and apply that interpretation by your
lonesome, when push comes to shove. Do not be afraid to go ask for some
honest-to-goodness legal advice. Remember, when brewing, you are always
in the line of fire.
Until next week, then, on QJ's How-To series! Keep jumpin' and brewin'!