Myths & Lies

Before we go down the rabbit hole of issues related to IP lets cover some myths. Some of these have been going around for nearly 20 years.  And my 18 years as part of this community I still hear most of them at least once a month.

• BI own all content made with their tools – MYTH – Possibly the oldest myth starting from the OFP era. The confusion comes from the O2 (Now called Object Builder) software licence which states “any related documentation, and addons incorporated into the Program) are owned by Bohemia Interactive” of course some took this to mean user made addons when it actually means addons with the O2 program. The Myth was de-bunked by Placebo the then community manager in 2005 - https://forums.bohemia.net/forums/topic/44191-addonmod-ownership-qa/ 

• You can’t sue me if it’s not commercial – MYTH – Interesting fact. EU and UK Law does not really recognise a distinction between commercial and non-commercial use.  It really only factors in the scale of penalties the court may levy. In the US there are some restrictions about the value of the work.  But if the case is about Ownership, Moral rights legislation comes back into play and the issue of compensation comes in at the penalties stage.  Loss of Earnings, damage to reputation, place in the market. At the very least its going to cost you your own legal expenses and a nominal figure if they judgement goes against you.  Or it may cost you both yours and the IP owners expenses AND a larger inconvenience/compensation payment if the Court decides you are being belligerent or less than truthful.  I’ve seen it happen in the EU and US 😉

• I can re-upload anyway I like – NOT REALLY TRUE – A number of hosting and distribution services demand that you give them rights to commercial exploit the content you upload.  And if you dont own it you are potentionally commiting fraud, ip theft and perjury.  But lot does depend on the Author’s EULA regarding re-distribution of addons. And the terms of service of the hosting provider. For instance, Steam requires that you give them irrevocable commercial rights to the content. Something you can’t legally do if you do not own the content.  Its one of the reasons so much content gets DMCA’d,

• You have to register your copyright for it to be legal. – MYTH – Not true, the moment you create a 100% new creation its yours. You own all the rights to that creation.  Obviously if you use someone else’s content they share the rights.  If you didn’t ask them and get permission you just stole it.

• It doesn’t have a license so it’s free to do with as I like. – MYTH – Big nope on this.  In the absence of a EULA that strictest interpretation of the Law applies.  No permission, you can’t edit or distribute it.

• If I can’t get a reply from the Author, I can do what I like until he/she objects – LIE – Big no-no.  Sorry no permission means you have zero rights to do anything.  And if the Author does eventually reply and denies your permission you’ve just wasted your time.  Ask first. Edit after.

• All ArmA addons must use a BI license from here: https://www.bohemia.net/community/licenses  – MYTH – You can choose any licence you like. Or even have none. BIS suggested a framework.  And it’s a good start to understand some of the licences and issues around using BI content.

• I was told Scripts can’t be copyrighted. – LIE – This has been doing the rounds for years. Scripts like any piece of software are subject to copyright law.

• I modified the original addon/script/texture so much it’s now mine – NOT REALLY TRUE – This is another common myth, but it is actually based in some truth.  Fair use does allow you to base your work on someone else’s.  But for you to claim it you need to substantially change and add value to it.  Some people claim its as little as 30% others its actually 90%.  The truth is that that value varies on the opinion of the court.  And each case is weighed on its own merits.  So don’t think just tweaking someone’s textures means you can claim their addon.  If it performs the same function and has the same unique features you can’t claim it as your own.  You need to radically alter it. So much so that its a fundementally different product..

• Fair use allows me to make Private mods for my team using your content without permission. – LIE – Fair Use or ‘Fair dealing’ (in the UK) is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. It is not a legal right. There is no statutory definition of fair dealing under EU, UK or US law - it will always be a matter of fact, degree and impression in each case. The common questions asked are (but not limited to):

• How would a fair-minded and honest person have dealt with the work?
• What is the intent of the disputed piece of work?
• Is there any Intention to hide, deceive or otherwise deprive the original Author his moral rights?

And there is another factor that the un-initiated don’t seem to realise. The type of material also affects how and what sort of questions are asked.  If it’s a research paper or book then some pieces of the legislation are applicable.  If its Artwork (which 2D and 3D work is regarded as) a lot of the same questions and legislation simply do not apply.  As I said it’s a very complicated clause to use.  And its something that rarely succeeds in Art related cases.

Fair use, when applied correctly allows you to take small parts of someone else’s work for the purposes of either:

• Commentary and Criticism.
• Parody
• Teaching
• Non-Commercial Research and Private Study – Now this is the common claim. And it’s the part people most often get completely wrong. The research part is largely inspired by Academic research for published works like history or text books for education and business. But it can apply in the case of addons. It’s considered “Fair” by most creators that people can ‘peek’ inside addons to see how things are done. But if you take anything from that addon and re-package it then your “Fair use” defence collapses. And it becomes ‘theft’.

• Its free = I can do whatever I want with it and release it as my own without credit regardless what any license says. – LIE –  Just because you do not pay for something does not mean it is yours.  In our use case the addons/mods belong to their creators.  You are granted a non-exclusive right to use them.  The owner also has the right to deny you use of them too.