How not to apply “Fair use” a real-world example

Recently a clan ripped some of my work from an earlier addon. This came to my attention because it was being “Privately” distributed via Steam, Google Drive, One Drive and Dropbox services. In this pack was work ripped and repacked from at least five other addon creators. Attached was this license: 

The The Wrecking Crew UKCW License

This is a real case that I experienced. I'm sharing it as example of why this sort of claim collapses under any sort of legal scrutiny. While it may seem inappropriate to "name and shame" I feel that its important for other people to be able to verify my story if they choose.

So, lets take a proper look at this. Ok it starts with them applying license terms to content with pre-existing licenses which they have ignored. Something you cannot legally do without acknowledging the original authors and even then, you cannot specify terms that contradict the pre-existing license terms without written permission from the original authors. 

1. An admission that they have taken content from other sources. No mention of permission or not. From the context it becomes obvious that they don’t have permission. So, this is a strong implication they know they are doing something shady. 
2. States their intent to understand the “workings of modding ArmA”. Now this may have some merit if there weren’t already other more easily access sources of information. Specifically, unbinarized readily editable sample content. 
3. Implies that they are adapting other people’s content into their own content. This shows intent not just to learn but to create derivatives from copyrighted content under their own licences. 
4. Skipping over the “Do not reverse engineer this content” – we’ll come back to that. This is the pseudo legal bit that they claim justifies their ripping addons. The quoted legislation does exist and does deal with “fair dealing” - http://www.legislation.gov.uk/ukpga/1988/48/section/29 Now I could go into incredible detail and spend pages about why this fails in this case but I’m just going to summarise. 
1. It is obvious from the fact that they produced a licence that these addons were never intended to be a private tool. The existence of the licence proves it was intended for distribution within their group. 
2. Section 29:2 – This says that part one is legal if Acknowledgement is impossible for reasons of practicality or otherwise. IE everything needs to be given attribution/credit which they did not do. 
3. Section 29:3 Outlines the reasons fair-dealing would not apply. In this case 29:3:c is applicable: “in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.” Ie the distribution of this work is intended or likely to result. 
4. Section 29:4: a and b both apply here. “It is not fair dealing—(a)to convert a computer program expressed in a low level language into a version expressed in a higher level language, or (b)incidentally in the course of so converting the program, to copy it,“ The conversion of the models from ODOL/Binarized format to MDOL/Editable format applies here. As does the conversion of the formats to enable copying or adaptation. So any reverse engineering and conversion of formats with the intent to take/copy/adapt the source content immediately means Fair use does not apply. 
5. This is just insulting now. To say that the original source licenses still apply despite that the original authors aren’t mentioned anywhere is the license, the “new” addons or the non-existent documents is lame at best. And without that attribution the Fair Use claim fails again.
6. The removal of the genuine author’s name, documentation and classnames seems to suggest that the intent is to hide the true source of the materials. An indicator that there is some intent to hide the true origin of the content. This would raise concerns. 
7. Again, an acknowledgement of the “concerns” of the source Authors. But no evidence to show that these concerns were actually observed or practically acknowledged by providing attribution or documentation.
8. Then to end with something of a confusing statement given that they went to great pains to remove all identifying marks, documentation and class names that indicate who the Authors actually are. 

And finally, there is the Context of use. “The Wrecking Crew” are a gaming group focused on the Cold War era using the ArmA3 game platform. They are collectively creating a UK Cold War themed mod pack for their own use and intend to publish on Steam eventually. 

So, let’s consider the ripped content. In this case the addons ripped were all “Cold War era” models and textures. In line with their theme of their UK Cold War mod pack and the theme of their Gaming Clan. It seems obvious given the context and content ripped that if their intent was merely to 'learn from' addons why choose only addons that fit their theme. Now also add evidence from 5 of their existing members and screenshots in-game and mentions on their website that the ripped addon as in regular gaming use and openly distributed amongst their player base. 

So here we have eight reasons why this license fails the Fair use/Fair dealing defence. To be perfectly clear, 

• Fair Use is NOT a right. It is simply a possible defence for Copyright Infringement. 
• The moment you reverse engineer an addon to take any content from it, repackage it or remove branding or copyright notices, Fair use does not apply. 
• The moment you share your “Private” version of someone else’s addon with anybody else. Fair use does not apply.
• The moment you redistribute someone else’s addon in a way that is not in accordance with the Genuine Author’s wishes. Fair use does not apply.

Its not hard to conclude that invoking the Section 29, Fair-dealing clause of the Copyright act was a way to justify their actions and they lied about their intentions. Its obvious that all they did is rip RKSL and other content for their own selfish needs. And it seems blatantly obvious that it was their intent to use it to play with all along and that claiming "Fair Dealing" was a thin attempt to justify theft. When I pointed this out, I got: "Well everyone is doing it!"and the guy that said, "we were allowed to do this."

I'll default to the classic line my Mother used on me as a kid:

"Just because you can do something doesnt mean its right."

and the even more classic line of

"Would you jump off a cliff because someone told you, you could!" (Followed by a smack around the back of my head)

BOTTOM LINE: Be honest with yourself.  If you are ripping open someone else's work with the intention of taking something that does not belong to you and re-packaging it for your own ends.  Its not fair use.  Its just stealing.  And if you are OK with that, then you are just a thief. No debate, no justification changes that in this scenario.

Reference Links:

1. Exceptions to Copyright – UK Law - https://www.gov.uk/guidance/exceptions-to-copyright
2. Fair-Dealing - http://www.legislation.gov.uk/ukpga/1988/48/section/29
3. Measuring Fair Use: The Four Factors- Stanford US law - https://fairuse.stanford.edu/overview/fair-use/four-factors/