16 replies to this topic

[av_nefardec]

There's been some question as to the legal legitimacy of The Last Alliance in the past. This disclaimer will point out how TLA is protected by the United States Copyright Law and why, therefore, it has solid legal ground.

Some things to know about TLA:
[list]
Here's the Fair Use clause of the US Copyright Law, Article 1, Section 107.

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Sec. 107. - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Thus the US Copyright Law protects The Last Alliance as such: (refer back to numbered criteria above)

(1) TLA is not in any way commericial, and is indubitably a nonprofit, educational project.

(2) Tolkien's Work is immensely vast and deep; therefore, it requires much research and is deserving of dedicated scholarship and it is necessary to educate willing fans based on this research to allow the works of Tolkien to be better appreciated.

(3) TLA uses all original artwork, music, essays, movies, etc, etc. But in order to research Tolkien's work to its fullest extent, and to then educate about it, it is necessary to use as much of the copyrighted works as possible, logically.

(4) TLA is not part of the commercial market. We have no intention of marketing this game commercially, of publishing this game commercially, or anything of that nature. The project is much more than a game - it is a community of Tolkien fans who are so interested in his works that they have decided to share their interest with other fans through the medium of the real-time strategy computer game. TLA in no way aims to affect the commercial gaming market. In fact, The Last Alliance strongly endorses commercial Tolkien games, which our fans discuss and promote daily in the community forums.

Thus TLA is protected under the fair use clause of the US Copyright Law, simply because of the nature of the project. This excerpt from section 107 above in particular is of note:

...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Because The Last Alliance is primarily a project of criticism, comment, news reporting, teaching, scholarship, and research, it is not an infringement of copyright, and therefore is legally legitimate.

-The TLA Staff

[Kristo Vaher]

As far as legal things go, Middle Earth based mods are being closed down one after another. Since Middle-Earth mod for Morrowind got small coverage in PC Gamers Extra-Life section, they were aproached by Tolkien Estate, and thus have now been closed. This was a good Middle Earth project, and unless you people have more of a legal backup to your words, as stated in the thread topic, I do suggest you think about this more, and get actual legal backup in the future.

But perhaps as long as the Last Alliance project remains without larger publicity and coverage on some mags, then perhaps TE wont lay a finger on it.

The letter can be found on www.memod.co.uk




Dear Players.

Following contact and negotiations, first in letters with the solicitors to the holdings of Tolkien Estate, and today, in international telephone calls to the holders of the electronic media rights to the works of Tolkien, a decision on the Middle-Earth Mod has been made.

As a result of the contacts and discussions, it has been concluded that, barring a near miraculous turnaround in legal stance, MeMod does not have the right to the use of the copyright content of Middle-Earth for any Electronic Media production, profit-making or non-profit.

Nor, it would appear, has it held any such rights over the last two and a half years, despite our belief in such an agreement. This comes as just as much of a shock to the current Dev and Team members as it does to you.

This situation therefore means that Memod is no longer a viable project, irrespective of it’s nature as a non-profit tribute. In light of this breach of copyright law with the holders of the rights, we would be unable to release the MeMod without threat of legal repercussion on all members, and it is therefore our only practical option to call a halt to the project at this stage.We stress however that we have not been threatened with any such legal action, but have decided to take this course of action to avoid such.

[av_nefardec]

Yeah we are aware of this instance -

It of course has something to do with the estate's new preoccupation with the gaming market - it wants to saturate the market in order to get as much money as it can, which is dispicable.

TLA is much more than a "non-profit" tribute, which we learned long ago was not an excuse

I think as a project, we need to do a better job of "education" and "information". For instance, the online encyclopedia of arda, though of course using copywritten material, selling its product, and occupying a niche in the market in which the estate is definitely interested survives, because of how it uses that content.

Artists, too, have no need to worry about this, even though they are using the likeness and ideas of middle-earth, and many of the names in titles, etc. You may recall that TLA had a correspondence with Ted Nasmith, the Tolkien artist who has worked WITH the estate - he provided a very optimistic viewpoint and a positive view of the estate, contrary to popular belief.

Also I talked to Ryszard Derdzinski, a well-known Tolkien linguist who runs Gwaith-i-Phethdain (http://www.elvish.org/gwaith/)
He deals with copywritten material every day - names, languages, likenesses, ideas, etc. And he works with two linguists who did the LotR movies - including David Salo. He even sells Tolkien-related things on his site, yet when I asked him, he said that he never needed permission.


I've attached a summary of our research from a year and a half ago on this topic, with the aforementioned conversations.

What we found, and I think what you will find if you research this area enough, is that the Tolkien Estate generally has less legal rock on which to stand than is popularly thought. Essentially the estate likes to throw its weight around and make threats, especially to modifications with small fan bases, etc because they often are skittish when it comes to legal issues, having little experience or knowledge of the system. The more one knows, the more one sees that things are not that simple.

I see no legal basis for shutting down a game modification of Tolkien's works.

Most mods consist of images from the books and then names that title them. This is precisely the same usage as that of an artist who illustrates the books. But there is no way that the estate can touch the artists. Why can the estate touch modmakers?

They really can't do much, except find some technicality. But the estate is a conglomerate of greedy capitalists and as a result, they'll threaten the mods and not the artists, because they want this future game market to be devoid of prior projects, so that they can saturate it and fill the world with their mass commercialized garbage.

This is the sad state of things, and the sad state of the world.


TLA is not a game that mimics Arda for the glee of its players.

TLA is so much more than that. Within the team we've had lengthy discussions on our purpose, where we are in the grand scheme of things. TLA is the last alliance in every meaning of the phrase. We will be the last group to yield. There's too much at stake here. I realize, I suppose, that we can do a better job of fan education and discussion on the works of J.R.R. Tolkien. I think sometimes we get carried away with the actual game development. In reality, the project is much larger than this game. It's in essence a total conversion of popular ideology concerning the books.

Tolkien's work is no longer on safe ground. The tide of mass-consumerism that the estate has stirred up threatens their integrity with every passing day. Even if this project's body, the game itself, is in danger, its spirit is insuperable. If the last alliance must leave the internet (and only the internet) in physical body, you can be sure that its spirit will always fight on.

Things are never lost forever. Aurë entuluva.

[Kristo Vaher]

I do know what Last Alliance really wants to be, and I respect that. Id certainly try to participate in such a project, if Id have the time, but this is not about what Last Alliance is.

The Lord of the Rings is a hot name at the moment, and Im sure those greedy Tolkien Estate folk have decided to have more saying in the world now that the movies were such a success. Its silly though, TOlkien has really become what it is thanks to its great communities. But money is money. Shutting down a modification to a game seems almost outrageous. Im more than sure that MEMOD would have survived if it hadnt been covered in PCGamer magazine. THere are many other, and many more hopeful programs out there.

But mainly it isnt just the TE people to be worried about. Im more than sure that other companies using licensed material could also have their eyes wide and open. darnit how much I hate this crappy capitalism policies, everything about money money money.

Still, unless you happen to get a wide coverage on some magazine, anything doesnt seem to be a problem really. I mean, PC Gamer covered actually unlicensed yet no-mod gameproject Babylon 5 Ive Found Her, and Warner Brothers didnt say a word. Its more of an issue of respect of the authors works, WB and JMS perhaps do respect the community, while TE just tries to pinch everybody. Morrowind was a great game, and MEMOD could have become something really good.

If the mod issue had gone to court, Im sure the mod would have won. I doubt TE would bother themselves enough about just one mod.

Im not so sure about the legal foundation of this project though, at least according to EU laws (well a law student consulted this with me), the basis youve laid down here arent really waterproof. Copyrighted material are handled quite tough, and its usually owners right. Nevertheless, The Last Alliance isnt important enough to actually cut money from profit-making people, to make any appearance in their report desks.

Which is good, project may develop. ITs design is rather good already, now cant wait for technical stuff... Project is rather old already without any proper screenshot, please have mercy on us lol...

Still, MEMOD was one of the few ME based mods I kept my eye on. Visited the site after reading the small article only to find the website and project closed.

These people did good work on the project, sad that they had to move on.

[av_nefardec]

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Nevertheless, The Last Alliance isnt important enough to actually cut money from profit-making people, to make any appearance in their report desks.

At least that's the plan; we wish to keep it small. Also, we are using the same engine as 0AD, so for now the same screenshots apply to both.


But, we know we are gambling here. We've known this when we went stand-alone. (At the time I was ignorant of the violations mods created)

We all realize that this project, in fact, stands upon the edge of a blade. We realize that tomorrow I could get a "cease and desist" email or letter from the Estate. Every day this thought crosses my mind. In fact, it's probably inevitable - with the direction in which we are currently heading.

But we also realize that this project is so much bigger than us. You see, the game is only secondary to what the project as a whole stands up against. And the game stands against this sort of rampant, capitalist tide that is flooding the community. Nothing is left untouched. We have so much love and respect for the man and his books that we wish to take steps to protect their integrity and purity.

So in this regard, it's important that TLA exists and is completed to sort bring light to the dark situation that the community is in.

But this is even deeper - it's an ideological conflict between the oppressor and the oppressed. David v. Goliath. Florence v. Milan. Greeks v. Persia. Frodo v. Sauron. I realize that I am over-romanticizing this - it's intentional. The point is that eventually a group is going to have to take a stand on this if any sort of purity should be left in the franchise. And I'm willing to be a part of this group.

I should also say here for the first time that I have been considering "founding" a sort of more or less underground league or union on the Internet that would consist of projects like TLA and MEMOD. We would not have a public front, but we'd be a network of projects and people, and we would bounce ideas off of eachother and support each other legally or whatever.

Join the TLA Resistance! lol

We have this ideal here, at TLA, and we will not let its beauty fade into this sort of oblivion of greed without resistance.

[rohirwine]

Very well said Adam. I join the league!

Resist, resist, resist!

At the turn of the tide, we can still be here...

[Curufinwe]

(

Just a question then ... feel free to delete this post later ...
Does this mean that your brother's mod for AoK is also illegal???? or may be asked to close if advertised in major media?

[av_nefardec]

Well I thought I had explained why they AREN'T illegal, under the fair use clause.

Perhaps this will help:

http://www.utsystem.edu/OGC/IntellectualPr...pypol2.htm#test


We feel that we are perfectly legal, but the power of the estate is great and if they don't like something even it is legal I'm sure they'll have their lawyers all over it just to scare the person away. This is probably their most effective tactic. No one can just drop their life and go to court with the estate lawyers. Even though TLA would probably have the upper hand in the case, it'd be finanically and temporally a loss. For the estate the loss would be negligible, and they'd be one step closer to monopoly. So this is why we stay away from the mainstream media.

The other reason is that clause four of section 107, chapter one, the fair use clause stipulates that the effect on a market or potential market for a copyrighted work is reviewed to determine fair use. Thus we must avoid belonging to the same market as the official Tolkien games, and one way to do this is to avoid being compared directly on a site like IGN or something, where TLA would have the same sort of "level" as, say, the War of the Ring. So we are avoiding things like this.

[Curufinwe]

I see ... thanks for the comprehensive explanation ...
It's just that MEMod didn't seem very much spread and known within the gamijng community, and I thought it covered the same amount of people, or so, as TLA ... maybe I was mistaken, and it is a lot more important than I thought

[av_nefardec]

MEMOD closed under its own will - they were not threatened or anything of the sort. I don't think their development team understood the copyright law exactly. I sent an email to their leader explaining some of our research into this, but he has not emailed be back :/


The other thing to remember is that TLA is in absolutely no danger until the game is actually released.

The only things we have currently are EXTREMELY facts-based research and facts-based artwork, both of which are of course legal and have even been supported by the estate. When we talked to Ted Nasmith he told us that the Estate is quite eager to have artists depict its innumerable forms in their works.

And by the time the project is released, we hope that the research and discussion of Tolkien's works, the scholarly aspects of the project, will be more apparent and valuable than the game itself.

[Sukkit]

We're doing it for the kids.

[Kristo Vaher]

Adam, youre one of the smartest persons Ive ever met online. Honestly, respect. I agree with your ideas and beliefs so strong.

But there are two issues. YOu said the project is so big, nothing left untouched and such. Dont you think this would become a one bite too big to take? Design yes, loads of design, all ages everything. But do you know how much artwork all this detail really needs? Its massive. Getting LOTR into a game is already an epic with too great a proportion (and EA are doing, let me say, a fine job at it. Honestly, check the about-videos if you havent yet. I doubt this game would fail, or even be mediocre). Getting the entire Iluvatar thing in one game, is a massive undertaking.

Also, respect for that. I have my big doubts that this project would ever finish, but I dont doubt that you will get us someplace and at least let us play the Battle of the Last Alliance someday

Nevertheless, the project isnt perfectly legal. You say that it is legal because it is devoted to Tolkien, and presented as a bow to his work, or as a research. This would make it legal, BUT there is an issue here. This is actually retelling of JRR Tolkien and Christopher Tolkien works, not a research, making it actually not what you think. Retelling is a breaking of copyright and does require a legal permission for copyrighted materials. This comment comes from a law student to whom I sent this and the paste from the Copyright Law. He studies European and Estonian law systems, but copyright material seems actually to be even more tough in America than it is here somewhat.

Nevertheless, its good if you guys dont let the project be covered in PC Gamer. Apparently Tolkien Estate reads that mag. MEMOD was shut down less than a week after UK PCG October Issue 140 was published (darn Im paying my @#$% off thanks to the magazine, but its darn good)

Is there anyone else who reads the writings of Ross, Kieron, Mark Donald and Rossignol that are published on the shiny pages of the magazine?

[av_nefardec]

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Dont you think this would become a one bite too big to take?

Yes, often times it feels this way However, this has never stopped me, personally, before, and as the leader of this project I do not intend for it to stop us this time. There is a need for a project of this nature.

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Is there anyone else who reads the writings of Ross, Kieron, Mark Donald and Rossignol that are published on the shiny pages of the magazine?

I remember this issue, and the first thing I thought of was "Wow, those projects are screwed"

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This is actually retelling of JRR Tolkien and Christopher Tolkien works, not a research, making it actually not what you think. Retelling is a breaking of copyright and does require a legal permission for copyrighted materials.

Yes, that is quite true.

But one thing I would contend is that this is only the case if we create scenarios based on ME and release them as part of the project, no? Or do you think this extends to random maps as well, because it is fictional?

In my readings one thing I have found is that accurate retelling of a story based on research and facts is actually more likely to be protected than that which uses some facts and makes up others. So perhaps the weak link is the random maps?

I should consult some law students here at University, since there is a decent law school.

I think you're right though - ultimately the project will never be completely legal. We do our best to try and make it as legal as possible, but there is always some danger to the project.

I guess for most of the development of the project we will be safe, until we begin releasing demos and things of that nature. As a project, though the game is important to us, we are going to have to sincerely elevate the status of the scholarship and education around the project to a nearly equal degree, like Gwaith-i-Phethdain, Ardalambion, etc. It's not enough to merely claim that we are for scholarship - we honestly would like to move the project in this direction, and we have already sub-projects that we have begun that will help us take steps in this direction.

[Kristo Vaher]

Yeah, but in any case, most of the mods and even separate projects break legal boundries anyway. The only thing stirring up the problem is the Tolkien Estate. I actually believed that now that the movies have passed, these guys lay down a little, but darn how greedy everybody is.

I do have high hopes in the project of yours. You have quite a decent talent in your team, programming, art and design wise. The legacy of Josef Bugman lives, and it makes me feel good

[Caedus]

My heart bleeds while I'm reading this. Bleeds because of what happens to (or can happen to) projects like TLA. This is not a project about a game, it's a project about art and literature! About exploring the world, and not just Middle-Earth! I honestly wonder if the gentlemen from the Tolkien Estate have even read the works they 'protect'. I can't believe that, because when I read those tales I was in awe of their greatness and I believe that any way to explore them should be reviewed and encouraged if necessary.

What does the richness of the material world matter if you can enrich the world of your mind?! If you have 1000 dollars and share it equally with someone, you both only have 500. If you have a wonderful tale and share it equally with someone, you both will have the full tale and be richer.

I would cry if TLA would have to shut down because of those reasons.

[rohirwine]

Those men at TE protect profits, not litterary works...

[Enarwaen]

one minor thing ... it's not really the Tolkien Estate but much more Tolkien Enterprises (owned by Saul Zaentz) who hold the licensing rights to all things LotR and Hobbit. It was them who sold the rights to make the movies to New Line and to Vivendi Universal to make games (based on the books) and to Electronic Arts to make games (based on the movies). Tolkien Enterprises are IMO the 'real' Nazgûl