Wednesday, August 26, 2015

Paid Mods the Prequel: He's Hip, He's Cool, He's a 9th Circuit Justice

Every now and then I get the pleasure of finding an opinion that makes me truly believe someone out there, if nothing else, wants to understand this brave new technological world. 

Ladies and Gentlemen of the Internet, I present...Judge Alex Kozinski and the case of Micro Star v. FormGen, Inc.

The opinion, which is a formal legal document frequently cited by practicing attorneys and is given all due respect owed as the formalized order of a 9th Circuit Court of Appeals Justice, begins with:

"Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?"

If you are not hyped after reading that, you and I lead very different lives.

The actual meat of the case is a dispute between FormGen, which we all probably know better as 3D Realms, and a software distributor called Micro Star. FormGen released Duke Nukem 3D in 1996 and found huge success with their, as Judge Kozinski calls it, "very cool computer game." Part of what made Duke 3D so exciting to some people was the inclusion of a level editor and encouragement from the developers to share the things created with it via the Internet. The practicality of this encouragement was certainly limited by the state of download speeds in the late 90s, but there were certainly come gamers who had the bandwidth and patience to hunt these new levels down and play them. Hell, there were thousands of these fan-created levels being distributed, so there was definitely a market. 

Enter Micro Star, the villain of our story. Micro Star collected hundreds of fan-made Duke3D levels, put them on a disc, and proceeded to sell it commercially as "Nuke It." By all accounts, "Nuke It" looked like a pretty official product, coming in a proper box that was covered with screenshots of the levels it would be providing. Because they probably knew someone would have a problem with this, Micro Star sued FormGen to get what's called a "declaratory judgment." This means they asked the court to issue an order saying that, under federal law, "Nuke It" did not infringe on the copyright FormGen had on its Duke Nukem 3D property. 

Yes, this is what professional box art looked like in the 90s. Edgy, right? (source)

With the help of nearly 20 years of hindsight (oh god it's really that old...), we probably have an easier way of describing this than Judge Kozinski did at the time. Basically, someone made an unauthorized expansion pack for Duke Nukem 3D that included fan-created work that was previously available for free. The creators of the custom levels were not compensated, nor were the developers of Duke 3D. I like to think that our modern understanding of modding culture and the amount of effort that goes into these fan-created add-ons gives us the ability to see right off the bat that Micro Star's attempt to make a profit off "Nuke It" was pretty slimy. How would we react if someone offered a "Best Of Skyrim" collection that, for a price, curated the supposedly "best" additions to The Elder Scrolls V and made them easily available to you instead of having to dig through the entire Steam Workshop to get them?

I mean how could someone justify tarnishing the purity of Skyrim modding for something as common as money? Some things should be sacred. (source)

Back in the past, FormGen and Micro Star are fighting it out in court to decide if "Nuke It" gets to exist in commercial form. Micro Star looked like it had a winning argument when it cited our old friend the Game Genie case. Micro Star wanted the court to believe that their "Nuke It" collection was more like the Game Genie than a cheap aggregation of levels created with assets that are certainly copyrighted by FormGen. And it worked at first! The District Court that heard the case before appeals took it to the 9th Circuit agreed with Micro Star that "Nuke It" was just changing values on the game rather than presenting a new derivative work based on Duke Nukem 3D. Because what's an art asset? What's a game engine? What's a .MAP file? That's the kind of decision that gets made because the judicial system asks a bunch of career lawyers/politicians who have taken on the role of a judge to suddenly become familiar with the basics of software programming. 

But the Koz isn't like most judges. He's a cool guy who knows computers. He's totally rad and totally reads the facts these parties submitted about how Duke Nukem 3D goes from being a bunch of code on a disc to being an interactive image on your monitor. And even better, he knows that the basic definition of a derivative work is huge and stupid, going back to a case from the 1840s to get official language on that idea.

"Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before." 

Common sense and a sense of humor? What a dreamboat! Bonus trivia: He was on "The Dating Game" in the late 60s and won. It's like the first thing that comes up when you google him.

So we hit the lottery on judges for this case. We got someone who knows that software is different from physical pieces of plastic and we got someone who knows that the derivative works definition is completely unworkable garbage with no place in modern law....maybe I'm projecting a bit at the end there, but he does acknowledge that if we apply that definition too loosely you can find that everything is a derivative work. This is groundbreaking stuff from a legal perspective.

As for actually resolving the issues between FormGen and MicroStar, Judge Kozinski shuts down the faulty logic that the District Court used to give "Nuke It" a pass. Its comparison between the unauthorized expansion pack of Duke Nukem levels to the Game Genie was one of those bad analogies law often finds itself making. The Game Genie was an object whose sole purpose was to get in the way of communications between the Nintendo console and the inserted cartridge, using that interference to tell the system that a relevant number value was different than what it normally would be (ex: NES - "Player has died. 3 lives goes to 2" Genie - "Nope. It's 3." Game - "Player has 3 lives."). "Nuke It," on the other hand, could be described (by a non-programmer) as hundreds of recipes giving specific instructions to Duke Nukem 3D on how to use files from the base game and turn them into new levels. It was taking all the pieces of FormGen's property and remixing them into something that looked new but was clearly derived from those original assets. It was definitely a derivative work, definitely not legal for Micro Star to be selling, and definitely shows the value of judges putting in the time and effort to understand the particulars of how these new technologies work instead of just assuming it's like the old stuff. 

FormGen wins, Micro Star is vanquished, and Duke Nukem goes on to....several more court battles, actually. Yeah, the Duke is probably going to be a recurring character on this site...

As an epilogue, there's more to the case if you go read it. Micro Star threw in a half-assed attempt at a fair use claim, but it doesn't work. The reasons why a claim like theirs wouldn't work will be a story for another piece. I'll take any excuse I can get to use a Kozinski opinion, after all.

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