SoylentNews is people
SoylentNews
from the I-see^w-hear-what-you-[almost]-did-there dept.
Voice-acting rights halt effort to put Fallout 3 inside Fallout 4
An ambitious modding project that sought to recreate Fallout 3 inside Fallout 4 is shutting down over unforeseen legal issues surrounding the original game's voice acting.
"The Capital Wasteland: A Road To Liberty" project was a five-person effort to implement the base content of Fallout 3 as a mod for Fallout 4, complete with the latter game's graphical and engine improvements. In a message to supporters, though, project lead NafNaf_95 writes that the mod has been shut down after a conversation with Bethesda, in which it "became clear our planned approach would raise some serious red flags that we had unfortunately not foreseen."
That planned approach involved an audio extraction tool that would have taken the voice acting from legitimate Fallout 3 files and converted them to a form that could be used in a Fallout 4 mod. Bethesda and an outside lawyer advised the Capital Wasteland team that extracting this licensed content, which wasn't fully owned by Bethesda, would be legally questionable under copyright law and could make the modders legally liable for damages.
Apparently, having installed copies of the two games and running a utility is not good enough for Bethesda's lawyers.
(Score: 3, Informative) by All Your Lawn Are Belong To Us on Friday March 16 2018, @12:59PM (21 children)
Performing rights [wikipedia.org], not duplication rights, which is still a part of copyright. The original voice actors would have been hired under a contract saying their voices could be used for Project A (Fallout 3). Project B (Fallout 4) comes along. To use Project A's performances of the voice actors in Project B would most likely violate the contracts with the actors recording voices... More properly, the actors would rightfully feel like the extended and different uses of their performances means they are entitled to more money for the extended usage of their "product" - their voices.
It is true in all forms of media - music (which is why sometimes on rebroadcast of TV shows you'll hear different background music playing because the production company only secured rights for the initial broadcast and not duplication to CD/DVD/Online because that was cheaper), and imagery like movies (which is why there's a bunch of original MST3K that can't be duplicated - they didn't secure the rights to the films they were riffing beyond the original broadcast).
This sig for rent.
(Score: 2) by The Mighty Buzzard on Friday March 16 2018, @01:16PM (5 children)
That would be a problem if Bethesda or the modders were doing the extraction and distribution, yes. The ground gets much, much shakier for the copyright holder if it's an end user simply transcoding formats for use in a different method of playback.
My rights don't end where your fear begins.
(Score: 3, Interesting) by All Your Lawn Are Belong To Us on Friday March 16 2018, @02:42PM (4 children)
I'd agree it gets stickier. Were I arguing it my claim would be that since Fallout 4 is obviously a different work, and since the audio is being incorporated into it by whatever technical methods, that still falls under being a derivative usage of the original audio. It is not the transcoding that it at hand, which strikes me as being a reproductive right issue, it is that the audio recorded for the original product is now being used in a different product that it was not contracted for which is a performance issue.
I'm not saying such an argument is winnable. It may well not be and it wouldn't surprise me if any such suit would become case law. But any actor so affected wouldn't just sue the modder - they would include Bethesda in the suit as a named party. (First I'd imagine they'd notify Bethesda that such-and-such mod of Bethesda's product is doing thus-and-such and Bethesda owes the actor to intervene.) Whatever, Bethesda ends up paying legal costs for response in what the modders did even if they can back out of it easily. They therefore must advise caution. I think it is interesting that the original article seems to imply that they didn't just hand the modder a cease-and-desist, but seems to have entered into a conversation with them about where Bethesda's interests lie. And the modder responded to it. Rather civil, actually, even if it is bad news for the mod. Quite refreshing, that.
This sig for rent.
(Score: 2) by Geotti on Friday March 16 2018, @03:58PM (3 children)
And would end up paying the costs themselves. Bethesda is not involved in this.
(Score: 2) by All Your Lawn Are Belong To Us on Friday March 16 2018, @07:10PM (2 children)
Bethesda would, by being named, have to start paying lawyers to make filings on their behalf. Even if it was a single demand letter for removal from the suit. More likely, following what little we know of Bethesda's theory, it would begin with a demand letter of the voice actors to enforce action against Modder F. Bethesda would then have to respond to the actors, and either take action or not (and then face being named as a codefendant - which at that point seems a little sketchy that they'd just get away with a demand to remove).
Obviously Bethesda feels it is better to take proactive action now to request the project be stopped, then pay more money later. (With a possible ulterior motive that they don't want the Fallout 3 content being used with the Fallout 4 engine because it will soften demand for current/new offerings).
This sig for rent.
(Score: 2) by Geotti on Tuesday March 20 2018, @10:43PM (1 child)
They have lawyers on staff that could make their filings for removal from the suit. Bethesda can go and fuck themselves for even thinking about asking those people to stop creating their mod, period.
(Score: 2) by All Your Lawn Are Belong To Us on Wednesday March 21 2018, @02:53PM
You'll pay their bills when the actors sue, then. Nice to see somebody stand up.
This sig for rent.
(Score: 2) by Immerman on Friday March 16 2018, @01:51PM (2 children)
Seems inapplicable. Performing rights apply to live performances:
>Public performance means that a musician or group who is not the copyright holder is performing a piece of music live
(Score: 2) by All Your Lawn Are Belong To Us on Friday March 16 2018, @02:58PM (1 child)
Sorry, you are right. (Brain obviously not in gear). But there can be a mechanical royalty right identical to what I incorrectly described as a performance right. (Brain was thinking the rights of a performer and didn't read the links.)
This sig for rent.
(Score: 2) by Immerman on Friday March 16 2018, @03:42PM
True *if* you are performing in public - I believe performance rights were expanded to include mechanical performances as well. But there's no public performance involved here. If you have a legitimate copy of a recording, you are allowed to play it in a private setting without restriction. And if there are no DMCA-relevant "technological restrictions" in place then you are also allowed to format-shift it as you see fit. The ONLY things you're not allowed to do is give a copy to someone else, and perform it in public.
(Score: 0) by Anonymous Coward on Friday March 16 2018, @02:10PM (9 children)
Which is why it is important to correctly position the purpose of a software product. They positioned the product as "Project B with the contents of Project A, imported through a utility". If they had instead used the position of "Project A that looks nicer if you happen to have Project B and a utility" then it might have been OK. Exact same software, exact same end result.
This is why guns are still legal - you don't go to the store and buy a Murdertron 9000, you buy a Defence-O-Mat 50 that happens to be the same thing.
Unfortunately thanks to how overgrown the legal maze is, there is no way for normal people to know this sort of minute detail in advance.
(Score: 2) by All Your Lawn Are Belong To Us on Friday March 16 2018, @03:35PM (8 children)
I could be completely wrong, but my take on it (above) is that it has to do with contracted rights of voice actors. The lawsuit would still come and be framed as, "Project B was modified to use the audio of Project A by a conduit. Project A had a contract with actors C, D, and E to use their voices for Project A. Project B did not have a contract with actors C, D, and E to use the voice of actors C, D, and E in their product. Defendant Modder F and Software Company G therefore owe money for the uncontracted and unauthorized use of our plaintiff's voices. Modder F will state that this is merely the use of Project A, however, we will show that it is clearly a derivative modification of Project B and therefore the contract with Project A does not apply."
This sig for rent.
(Score: 2) by Immerman on Friday March 16 2018, @03:56PM (7 children)
But how exactly does that matter?
No signatories to the contract are involved, so the contract is irrelevant. My signature on a contract cannot impose any requirements on you, only your signature can do that.
Modder F is not distributing copyrighted works, so copyright law is inapplicable directly.
I only see three routes this could be argued, in descending order of legal validity
- Project A might have "protected" the audio resources in a manner that allows the DMCA to be invoked
- Modder F's software is explicitly designed to create a derivative work for people who already own the original (I don't think there's any actual law against this though - generally speaking you can do whatever you want with works you own)
- We have the lawyers and the money, so either role over or prepare to have us destroy you with an abuse of the legal system.
(Score: 2) by All Your Lawn Are Belong To Us on Friday March 16 2018, @07:19PM (6 children)
Actors C, D, and E were signatories to a contract which specified how their voices could be used in what project. (Is my theory.) Modder F has no right to utilize their voices in a "new" project by trying to use the Fallout 4 engine to run Fallout 3 - and having to make modifications to do so. Actors C, D, and E might have standing that their voices are being used outside of what they were contracted to be used for.
That's completely independent of what the EULA of the Fallout series says. Is it a "you own" or "we have licensed you to..." EULA - that Bethesda could theoretically revoke / prohibit mods if the want like EA?
This sig for rent.
(Score: 2) by Immerman on Friday March 16 2018, @07:35PM (5 children)
Doesn't matter - I can sign a contract that says I get all your stuff, but I don't actually get your stuff unless you sign too.
Meanwhile, once that recording is given to a third party, copyright is the ONLY thing that limits what they can do with it, unless they themselves already signed a contract that further limits their rights. Which I suppose might actually be possible, if there's something in the EULA specifically restricting your ability to extract the audio for personal use in other contexts. What with EULAs not yet being thrown out as unenforceable post-hoc agreements.
(Score: 2) by All Your Lawn Are Belong To Us on Monday March 19 2018, @12:49PM (4 children)
No, but I can sign a contract with you that says you get my stuff for a specific purpose and use. You use it that way, then give it away. Someone else starts using it differently. I can say that you had an obligation to protect the usage of my stuff per our contract, you failed to do so. You therefore owe me. I'm the actor. You're Bethesda. It's in your interest to go after that third party pre-emptively, and hopefully via EULA's or whatever you properly entailed the usage to match your contract with me. Typically that would be a "no derivatives or modifications are permitted" clause in the software that let's you approach a modder and say, "nope, you can't use it that way and if you do we'll sue." Most software you purchase is offered under the terms of a "license to use" and not "license to own."
I don't especially like that. But thinking that contracts and EULAs can't modify property rights is incorrect.
This sig for rent.
(Score: 2) by Immerman on Monday March 19 2018, @01:50PM (3 children)
Like I said, IF there is something in the EULA that specifically bans audio extraction for other personal use, then yeah Bethesda would at least have a leg to stand on to go after the end-users. Even then though they could probably only go after the modders themselves for "aiding and abetting", and I don't think there's any legal basis for charging someone with aiding and abetting a contract violation.
(Score: 2) by All Your Lawn Are Belong To Us on Monday March 19 2018, @03:07PM (2 children)
It wouldn't take specifically banning, "audio extraction for personal use." It would take a dirt-simple general restriction on use [termsfeed.com] clause in the EULA to say that you cannot modify their software. For dessert, look down under the "third party infringement" clause. That particular clause goes past copyright into general allegation of property rights violation.
And putting the modders on notice that they are acting in contravention of the EULA should be enough to establish they were warned and therefore are willfully disregarding which makes a general negligence tort easier to establish - they have been made aware of their responsibilities regarding the license.
Separately, there are cases where if you are a third party and interfere with my contractual relationships to my detriment you may be held liable for your interference. Especially tortious business interference. I don't think any of them apply here.
This sig for rent.
(Score: 2) by Immerman on Tuesday March 20 2018, @02:36AM (1 child)
I wonder - would data be covered by restrictions that apply to "the application" - such terms certainly seem to be targeting the software, not the data assets it uses. But certainly enough ambiguity there to make for a case.
(Score: 2) by All Your Lawn Are Belong To Us on Tuesday March 20 2018, @09:18PM
I'm not really sure. That's where I think you do have a leg to stand on. And I really do think (as you might) that it would take a case, legislation, or best option case-law validated legislation, to settle what is actually law.
This sig for rent.
(Score: 5, Insightful) by mobydisk on Friday March 16 2018, @03:35PM (1 child)
People seem to be confusing the terms "Fallout 4" and the "Creation Engine." "Fallout 4" runs on the "Creation Engine" and "Fallout 3" runs on the "Gamebryo Engine." The modders want to run "Fallout 3" on the "Creation Engine." They do not want to put the voice lines from "Fallout 3" into "Fallout 4." The actors are not having their voices used in a different game, they are being played on a different engine.
This is more like changing the record player used to play the record. Let's think through that concept:
Suppose the actors licensed their voices for a musical called "Fallout 3: The Musical." The "Fallout 3: The Musical" record was distributed along with the "Recordbryo record player." Years later, actors licensed their voices for a musical called "Fallout 4: The Musical" which was bundled with a much better quality record and record player, called the "Creation record player." Now, a group wanted to convert the "Fallout 3: The Musical" record to work on the "Creation record player." No actor would argue that their voice was being performed as part of "Fallout 4: The Musical." This is typical format-shifting.
(Score: 4, Interesting) by All Your Lawn Are Belong To Us on Friday March 16 2018, @07:26PM
It's been a long long time since I used any modding, let alone tried to make one. (And that was more on "create your own level map" - not really modding as it is known today.)
Aside from questioning whether the engines are truly a format shift which I think I could by noting that engines are not record players, I'd rather just note that I believe format shifting is far less legally sound that you might believe it is. I rechecked my answer against the Fair Use FAQ of EFF ( https://w2.eff.org/IP/eff_fair_use_faq.php [eff.org] ). Format shifting is still something that is believed to be legal by lawyers, not a matter proven in law for software. It relies on decades old case law that, given the right case, could be overturned in light of new technology or upheld as still applicable. But more importantly it relies on being a Fair Use exception to Copyright. Fair Use is still a defense dependent on tests, not a prescriptive exception. (Fair use is invoked upon being accused of copyright infringement, not codified as an exception you cannot be sued for. It becomes matters of fact to be applied at a trial. And who wants to roll those dice?)
This sig for rent.