King's Quest IX shuts down

[NewRisingSUn]

When did VU make a profit off of AGDI/Tierra?

Not yet; the agreement between AGDI and Vivendi however gives Vivendi the "right" to do so. Which is why I am very interested to see what's on those rereleased collections they're putting out.

Please back up your claims...

Well, if it's "confidential", as Tom said, you won't find the text of the agreement on the web, of course. I read about it on spacequest.net, but since Frans in his "wisdom" wiped the forum...

[Marten]

Guys, I understand why you feel hostile over this situation, but personal feelings of "right" and "wrong" don't always map 100% to the way society does things.  (I have a good example in mind of something I feel is wrong, yet that society permits and even encourages, but I'll withold it for now to keep the topic on track.)

There are three types of intellectual property, and the law treats each differently.  I'm going to cover each briefly.

Copyright involves the use and reuse of a specific works.  If you duplicate any type of media and distribute it, whether freely or for profit, and the author or owner of the rights did not specifically grant you permission, then you violate the Copyright.  The Disney Corporation is disliked by many people because Disney has encouraged Congress to extend Copyright to prevent many older works from falling into the Public Domain.  Steamboat Willie, the first animated picture with Mickey Mouse, is still copyrighted, so it may not be distributed without permission of Disney.  In the case of King's Quest, Copyright law governs the distribution of games that VU owns, and that is why downloading a copy of Sierra's version of "Thexder" from an "Abandonware" website is illegal.

Patent involves the use of techniques.   A medical company may patent a specific method for extracting DNA from a cell, or a computer company may patent a method for producing computer chips.  Software patents are currently a big topic in Europe because many companies are lobbying for them, but many European countries do not officially recognize them...  yet.  The problem with software patents is that software is, at its most basic form, just math... and math is widely regarded as non-patentable.  Sierra's method of simulating a "3-D" world with layers, when it was new and nobody had ever done it before, was a patentable idea.

Trademark involves the use of recognizable identities.  As the name implies, a trademark is a mark of one's trade.  "Quest Studios" is a trademark of Tom's, although I don't know if he has ever registered it.  Trademarks are supposed to be well known or recognizeable and, in people's minds, associated with the owner. The only fair use of trademarks is in a context that recognizes the owner or owners, and you cannot use the marks in a way that treats them as your own property.  For example, fan fiction using Disney characters such as Mickey or Donald is a violation of trademark; if you're using the characters without Disney's permission, you might be using them in a way that they didn't intend.  It doesn't matter if you distribute your fiction for profit or for free.  Worse yet, by law if you do not enforce your trademarks, you can lose control over them... and that leads into the problem at hand...

In regards to "Every Cloak has a Silver Lining"... identities like King Graham and Daventry are trademarks which belong to Vivendi Universal.  Whether you like it or not, VU has every right under the US legal system to control the use of their marks of trade.  People associate King's Quest with Sierra.  Producing a King's Quest game is to associate yourself with Sierra, and if Sierra - now VU - doesn't want that, that's their perogative.  VU has to officially recognize any infringement of their trademark and make a choice to specifically permit or deny each.  Like most big companies... they default to deny.  It is an unfortunate situation if VU does not wish to spend a little time to review the KQ9 project and consider its merits.  By my way of figuring things, it probably costs VU less money to pay their lawyers to shut down projects than it does to pay people to review and approve or stop projects on a case by case basis, and so I recommend you lay your blame there.

As for the contract with AGDI... yes, I would not be surprised that VU has something in their contract that permits them to profit off of AGDI... but even if they include AGDI material on a new collection of games, or even just point at the website, they're also not preventing AGDI from continuing to offer the game for free on their website.  And ultimately, only the AGDI developers can decide if their situation is fair or not... it isn't for you or me to be outraged on their behalf.  They developed the KQ1VGA and KQ2VGA games for free... so if VU does find a way to make money off of the games, I really don't see how that harms AGDI in any way.

[Alistair]

Copyright law governs the distribution of games that VU owns, and that is why downloading a copy of Sierra's version of "Thexder" from an "Abandonware" website is illegal.

Also apparently why Tom or I taking a MIDI, editing it, mixing it so it sounds the same but vastly different, recording digitally and converting is also 'copyright infringement'. Bollocks to Vivendi.

It is an unfortunate situation if VU does not wish to spend a little time to review the KQ9 project and consider its merits. By my way of figuring things, it probably costs VU less money to pay their lawyers to shut down projects than it does to pay people to review and approve or stop projects on a case by case basis, and so I recommend you lay your blame there.

Man, John, don't be naive. AGDI was different. AGDI was a business entity, not just a 'fangame project'. Like hell Vivendi cares a jot about Sierra, and wants to 'consider on merits'.

It costs VU just the same, it's just much easier to deal with 'infringers' than 'people'.

As for the contract with AGDI... yes, I would not be surprised that VU has something in their contract that permits them to profit off of AGDI... but even if they include AGDI material on a new collection of games, or even just point at the website, they're also not preventing AGDI from continuing to offer the game for free on their website. And ultimately, only the AGDI developers can decide if their situation is fair or not... it isn't for you or me to be outraged on their behalf. They developed the KQ1VGA and KQ2VGA games for free... so if VU does find a way to make money off of the games, I really don't see how that harms AGDI in any way.

There's nothing in the contract that permits it, it's simple copyright law. AGDI presumably forfeits all their rights to Vivendi, thus what's stopping them selling their works?

I'm sure they can prevent them offering for free, however there's not much point doing so.

AGDI knows their situation's not fair. As Tom would undoubtedly tell you, there's no third option.

I don't think it 'harms' AGDI, but don't YOU think it's immoral for VU to make money off them? Or, for example, to sell the KQ2VGA game with soundtrack (whichTom created with no real Sierra references) for a profit? This is what we're dealing with, John, not black and white infringement.


Definitely KQ9 should have been smarter. They were anything but smart, and I confess to having little emotion about the project. The way they acted up until the shutdown was anything but ridiculous. I personally was waiting for something to happen.. Vivendi happened.

- Alistair

[NewRisingSUn]

There are three types of intellectual property, and the law treats each differently. I'm going to cover each briefly. (...)

Well, thank you for that little lecture of yours. I know perfectly well what the law is --- and that it's the law which is the problem. And those who make it, of course...

And ultimately, only the AGDI developers can decide if their situation is fair or not... it isn't for you or me to be outraged on their behalf.

Really... well I think it's up to me to decide when I am outraged or not, thank you very much indeed.

[Tom]

There are three types of intellectual property, and the law treats each differently. I'm going to cover each briefly. (...)

Well, thank you for that little lecture of yours. I know perfectly well what the law is --- and that it's the law which is the problem. And those who make it, of course...

And ultimately, only the AGDI developers can decide if their situation is fair or not... it isn't for you or me to be outraged on their behalf.

Really... well I think it's up to me to decide when I am outraged or not, thank you very much indeed.

As I said before, just release it unofficially out of the blue, and that's that; if you haven't been stupid enough to have your real names be known, there's nothing the corporate sharks can do about it, and everyone can play your fangame.

As Tom pointed out, they don't simply want the team to stop development on the game, rather, Vivendi wants to make a profit of a fangame without paying the developers, like they did with AGDI/Tierra ("confidential" my rear end). By sending them thousands of signatures, you'll only make them giddy.

This is either bitterness doing the writing, or you really don't understand the laws, practically, as Marten explained them.  Many wouldn't agree with you, especially AGDI and Phoenix Online Studios, and wouldn't release copyright protected material "out of the blue" for moral and legal reasons.  My statement about Phoenix Online Studios knowing they were infringing comes from Phoenix Online Studios.

And yes, we are treating several of the clauses in our contract with Vivendi as, cofidential.  Why would that be so difficult to believe?  For those who have never seen our (Vivendi/AGDI) contract, there sure is a lot of knowledge about it.

AGDI is creating Sierra remakes because of their love for the adventure game genre, as I assume, is POS.  Not to make money.  There was never any intent to make money from it, and always the understanding that Vivendi quite possibly, could make money from it.  The core players of AGDI have now learned the ropes of adventure game making quite well through their programming experience with KQ1 and KQ2 -- and have created their own company and commercial product, because of experience gained through AGDI involvement.  This was one of, if not the primary reason, for Tierra's developement to begin with.

[NewRisingSUn]

This is either bitterness doing the writing, or you really don't understand the laws, practically, as Marten explained them.

I think you just don't understand what this topic is all about. Martens pointed out that personal feelings of right and wrong are different from what is the law. People in this thread are presenting their personal opinions, their personal feelings of what is right and wrong --- many feel that what Vivendi is doing is morally wrong, while recognizing that Vivendi might be legally "right".

As a result of recognizing that, long lectures about law are completely missing the point. If pointing out the discrepency between the law and morality comes across as bitterness, well, maybe there is some.

[Tom]

People in this thread are presenting their personal opinions, their personal feelings of what is right and wrong --- many feel that what Vivendi is doing is morally wrong, while recognizing that Vivendi might be legally "right".

I see.  In terms of how I personally feel about Vivendi's tight control over fan projects...I think it sucks.  Especially, since nobody's making any money from this.  But I don't fault the attorney who's sending out C&D letters, since he's doing what he's being paid to do.  And, I knew what I was getting into when Tierra first got going, and that my work in the games would not be my property...but I, like the AGD's, did it for the fans; a gift, as it were...and to learn the trade.

My wife was contacted last year by an attorney who threatened her to change the name of her online ezine, based on trademark law.  (Her ezine was called, "Embroider Now!", and their's, "Crafts Now", or something like that.)  Can you trademark the word "now" when used in conjuction with another word?  Of course not.  People are funny ...and touchy... about this stuff.  Whether it hurts their business, or not.

[Marten]

It costs VU just the same, it's just much easier to deal with 'infringers' than 'people'.

I'm afraid that is wishful thinking.  In reality, permitting fan projects does require more effort than denying them.  The reasons behind this are complex, but I'll try to touch on a few of them.

(1) Each fan project will require some overhead to monitor for quality.  If you don't do that, you'll eventually find your characters and places being used in ways that you don't like.  See (3) below.

(2) Once other fans learn that you are approving fan projects, the number of fan projects is likely to multiply.  This is not a good thing when you aren't making any cash off of the fan projects and you suddenly find yourself having to monitor a bunch of them.

(3) Eventually you will encounter a fan project that is determined to do something you don't like.  If you think shutting down all fan projects causes a negative reaction, wait until cries of favoritism start to fly because you approved projects x, y, and z, but you didn't approve project w.

... many feel that what Vivendi is doing is morally wrong, while recognizing that Vivendi might be legally "right".

If you feel that the law is wrong, and you are a citizen of the US, then  research the issues, put fact to your feelings, and write to your Congressman.  If you live outside of the US (as I know Alistair does), then I hope that your discussion here will light a spark in others who can write.

PS - I accidentally wiped NewRisingSUn's original post, and had to restore it.  Darn "Edit" button is right next to the "Quote" button for replies!

[NewRisingSUn]

Each fan project will require some overhead to monitor for quality. If you don't do that, you'll eventually find your characters and places being used in ways that you don't like.

"Not liking" should not be enough of a valid reason to dictate others what they can do or not do. Trademark ought to serve to protect the trademark owner and his customers from counterfeiting, not shut down people you don't like.
If a fan project, or any derivative work for that matter, clearly bears the note that it's not an official product, no one will mistake the fan game for an official product, and therefore, no real damage is done to the trademark owner, no matter how bad the fan game is. Ths is what I believe should be the sensible limit of trademark legislation.

Each fan project will require some overhead to monitor for quality.

You don't need them to approve them, just not shutting them down would just be enough. If you want to show the world that you are defending your trademark, don't shut them down, but force them to display a note saying something like "King's Quest is a trademark of Sierra On-Line, Inc. This product is not endorsed or produced by Sierra On-Line".

If you feel that the law is wrong, and you are a citizen of the US, then research the issues, put fact to your feelings, and write to your Congressman.

You really do like lecturing people, don't you? If you really want to affect change, donate money or efforts to organizations like the Electronic Frontier Foundation; organizations have a far greater lobbying power than individuals.

[Marten]

NewRisingSUn,

If the world worked the way you describe above, then I could legally produce pornography with someone else's characters, and as long as I indicated that the work was not produced nor endorsed by the creator.  Do you honestly believe that a creator should not have the right to stop that sort of use?  If that is truly how you feel, then you and I are not going to resolve our differences of opinion.

I do agree with you that donating to the EFF is a good idea.

[NewRisingSUn]

If the world worked the way you describe above, then I could legally produce pornography with someone else's characters, and as long as I indicated that the work was not produced nor endorsed by the creator. Do you honestly believe that a creator should not have the right to stop that sort of use?

Maybe it's because I'm European that I'm not immediately freaked out when the subject of pornography comes up, even if it is written in italics. I think pornography, as long as it does not involve children or violence, is no different than any other sort of media product, and as such, I think trademark legislation should be confined as I stated above in all cases, even with pornography. If you want to write erotic Star Trek fan fiction (silly example on purpose...) and put it on your web site, I think you should be able to do it.
If that means we have to agree to disagree, so be it.

Connecting the issues trademark and pornography however leads to the interesting observation of how all these porn peddlers get away with those  titles such as "Schindler's Lust" or "Ghostlusters".

[Fancia]

Connecting the issues trademark and pornography however leads to the interesting observation of how all these porn peddlers get away with those  titles such as "Schindler's Lust" or "Ghostlusters".

Parody, considered a form of commentary, is protected as fair use in US copyright laws, whereas simply creating a derivative work with trademarked characters, based on a copyrighted work, is not.

[NewRisingSUn]

So if your fangame is not a serious one, but a parody, you're off the hook?

[Marten]

So if your fangame is not a serious one, but a parody, you're off the hook?

Correct.  At least, theoretically.

Unfortunately, though parody is well protected under the law, ambitious lawyers often still try to sue.

And that is something upon which I'm sure we can all agree:  It sucks.

And for the record... I'm pretty open minded about "pr0n" myself; it doesn't shock me, italics or not.  But it was an easy example because it does shock and upset a lot of people in the US.  

Anyway, I think that being a "fan" and taking someone else's characters and using them in a way that the creator didn't intend is a sign of disrespect, not one of respect.  So yeah, I disagree with you.

It doesn't really apply in this particular case, of course...  VU is not truly the creator of King's Quest, just the legal owner of the original creator's rights.  I don't really respect that.  That is one area of trademark and copyright law where I think the system is perverted and needs change.

[Tom]

You don't need them to approve them, just not shutting them down would just be enough.

Just wanted to respond to this before I read through everything else that follows...

QFG2VGA will be submitted to Vivendi for review before it can be released. All AGDI remakes are.  There are staff in Vivendi Universal Games division who will review the content, check for bugs, and so forth.  They don't simply give us their approval to release the game; they're also making sure it's up to their standards for a software product -- of which they approve.

And that's because we're pleased and WANT to have Vivendi's approval and blessing.  After all, it's 'their property we're playing on.'  Personally, it means a lot to me to know Vivendi has allowed me to produce soundtracks for KQ2 and QFG2, as well as continuing to allow this website...legally.  But as far as continuing to do Vivendi-based freebie stuff, I don't see much more of that in my future.  

[Boogeyman]

Sign this petition please:
http://www.kqix.com/forum/index.php?topic=3003.msg122641#msg122641

[NewRisingSUn]

I think that being a "fan" and taking someone else's characters and using them in a way that the creator didn't intend is a sign of disrespect, not one of respect.

I don't deny that. My point is that the government shouldn't be in the business of punishing "disrespectfulness", it should punish people inflicting demonstrable damage upon others.

VU is not truly the creator of King's Quest, just the legal owner of the original creator's rights.  I don't really respect that. That is one area of trademark and copyright law where I think the system is perverted and needs change.

I agree. I found it interesting that in German, the word used for "copyright "is "Urheberrecht", which translates to "author's right". I definitely think government should protect author's rights instead of "intellectual property".

Where's the difference? "Author's rights" are rights granted by the government based on an immutable fact of reality --- that someone has created something. "Intellectual property" is a monopoly granted by the government on arbitrary grounds. While "intellectual property" can be transfered at will, "author's rights" can not, because unless you have a time machine, you can't change the fact that person X created something. And since only people can create something, not "corporations" or other abstract entities, only people can have author's rights, not corporations.
Of course, that doesn't mean that an author should have to do all the work by himself exploiting the product; of course he can delegate that work by virtue of a contract to some sort of collection agency acting on his behalf. The difference to the current system however is that the author would still own his work and not the company doing the exploitation.

And that's because we're pleased and WANT to have Vivendi's approval and blessing. After all, it's 'their property we're playing on.' Personally, it means a lot to me to know Vivendi has allowed me to produce soundtracks for KQ2 and QFG2, as well as continuing to allow this website...legally.

Well, if you're pleased, then I'm pleased.

I personally however couldn't care less about whether some corporation, which didn't actually create the original games but just put some dough on the table to get the exploitation rights, likes my fan game or not. Now if Corey Cole or Jane Jensen said he/she liked or didn't like it, it would mean something to me, but some corporate executive? What does he know?

But maybe that's just me. I agree though that getting them to bug-test your game is a good thing, so I'm glad you're at least getting something out of it.

[Tom]

But maybe that's just me. I agree though that getting them to bug-test your game is a good thing, so I'm glad you're at least getting something out of it.

Nah, I doubt it's just you.    

Perhaps it's because I have a different set of values or standards than you?  Don't know.  If I can have their blessings instead of their anger, it makes me feel good.  It's their property.  I guess it's the same feeling I have being a citizen of a small community in Wisconsin where, I may disagree (or even despise) a given law or ordinance, but still wish to obey them.  (That is, I don't speed just because there's no police around, even if I think the speed limit should be much higher.)

[Alistair]

Well, that's a poor example, Tom. Hopefully you obey the speed limit because it's dangerous not to, not because it's a law!

So much I want to reply to in this thread, but I can't. Hmm.

I definitely agree with NRS's sentiments about author's rights. 'Intellectual property' is a weapon, author's rights is a safeguard. Vivendi apparently makes 48% of earnings or something from simply enforcing intellectual property. It won't be long before we ask what Vivendi actually DOES.

.. In regards to Sierra, their behaviour is fairly immoral. But legal. THat's what happens when you get left or right-centre governments who have their hands in big business and industry lobby group pockets.

Amusingly enough, our own copyright laws in Australia are very antiquated. I think it's still technically 'illegal' to format-shift music, so if I was to take the track 'Ob-La-Di, Ob-La-Da' from one of my Beatles CD's, rip it and convert it, I think it's illegal still.
On the bright side because the laws are so basic it's very easy to get around them.

However, since I work with "Vivendi's" work with my website, I fall under the same boat. I have various opinions on why working with Sierra's music does not infringe VIvendi copyright. But as Tom would say, we can't afford to test it in court. But when I can..

- Alistair

[DrJ]

Anyway, I think that being a "fan" and taking someone else's characters and using them in a way that the creator didn't intend is a sign of disrespect, not one of respect.  So yeah, I disagree with you.

In regards to that, I wish Al Lowe had owned the rights to Leisure Suit Larry......