Forum:Fair Use and the RSMV.

Forums: Yew Grove > Fair Use and the RSMV.

So yes... another topic on the RSMV. This time, I would like to focus not on whether using the RSMV is in bad taste, but on three topics of fair use of legal nature. Please keep the discussion in this realm:

(Note: all the legal considerations below are based on copyright and fair use laws in the United States, because that is the law that applies for wikia sites which are based in the US, not under the law of Great Britain or anywhere else.)

1) The legality of figuring out, by whatever means, Jagex's 3D model loading code, and then creating a program to load the images and display them. Note 1: I put forth as fact that this "reverse-engineering" is not the same thing as using Jagex's copyrighted code, because who amongst you can claim that the RSMV uses the same code as Jagex's Java applet model loading code?

2) The legality of using the RSMV for the purpose of aiding critical commentary and review by downloading it, using it, and uploading the renders of 3D models to the RS wiki. Note 1: I put forth as fact that the display of parts of copyrighted content for the purposes of critical commentary and review falls under fair use in the United States. You may find such examples given by the US Copyright Office's website.

3) Whether or not we must involve a judge to solve this discussion or not.

4) Whether we really need 100% consensus, or whether we need broad consensus or something else, in order to institute an RS wiki policy regarding the RSMV.

My arguments are as follows:

1) The creator of the RSMV figured out how load the model. A simple model loading method does not qualify for copyright (or, more appropriately, does not qualify for patent), without having yet even considered fair use. It has been proven at least once in a court of law that reverse-engineering is not necessarily illegal. I can't find the news for this, but I remember a then-famous case of a "hacker" writing the code for circumventing a major company's very complex DRM on the back of his hand. It was ruled not in violation of copyright laws when the company brought the case of the hacker publishing the code to court, I believe.

2) Remember here that everyone, even non-members, have free access to the Runecape cache. Even if they did not, check the US copyright office: the level of use and presentation of a copyrighted piece of work matters. There's a difference between a website that occasionally shows renders (again, renders, not the models themselves) for the purpose of critical commentary and review of the render or the subject related to the render, and a website that uses the 3d model cache in a MMORPG that would compete with Runescape.

3) The idea of fair use is not based on precise numbers but on common sense. We don't need a judge to issue a ruling for the exact usage of the RSMV that we would employ. It is based on a qualitative analysis of all the reasons for fair use which are spelled out in the US copyright office website. If we did go to the extreme and said "we can't use copyrighted item X because that very specific item has not been defined as fair use by a judge in a US court of law", then we should take the entire website down, because nearly nothing that the RS wiki hosts is entirely the content of RS wiki members. There is a gray area, and the use of the RSMV is no different than the use of any other copyrighted content on the RS wiki.

4) Consensus cannot be made when all the parties in question refuse to follow logic. (or when at least one follows logic, and the rest do not) We should not aim for consensus on this issue, because someone will always say "but it's a gray area, therefore we shouldn't use it!" Despite the fact that almost the entire wiki is a gray area, that person can always find yet another way to rephrase what they are saying in an endless, meaningless loop.

Therefore, I believe these other three questions should be resolved via a broad consensus, not a total consensus.

--Agamemnus 03:36, April 23, 2010 (UTC)

Discussion

NOTE: Since this discussion is getting way too long, I have archived the first part of it at /Archive. --Liquid^Talk 20:22, May 11, 2010 (UTC)

Comment - Legal Precedence

Per Burcham v. Expedia, "It is standard contract doctrine that when a benefit is offered subject to stated conditions, and the offeree makes a decision to take the benefit with knowledge of the terms of the offer, the taking constitutes an acceptance of the terms, which accordingly become binding on the offeree." Furthermore, "Even assuming somehow that Burcham never knew he created a user account or that an account was created for him, Burcham is still bound by the user agreement. A link to the full text of the user agreement is found at the bottom of the very web page that shows the listing for the hotel room Burcham booked..."

Per Stanford, "Contracts and encryption today exist entirely outside of copyright; they are substitutes for, not supplements to, copyright."

Per Altera Corp v. Clear Logic Inc., "Most courts have held that the Copyright Act does not preempt the enforcement of contractual rights."

Per Davidson & Associates v. Jung, "Both sides motioned for summary judgment. The district court granted summary judgment in favor of Blizzard and Vivendi and determined that: (1) Blizzard's software end-user license and terms of usage agreements were enforceable contracts; (2) Appellants waived any "fair use" defense; (3) the agreements did not constitute misuse of copyright; and (4) Appellants violated the DMCA's anti-circumvention and anti-trafficking provisions of the DMCA."

Leftiness 02:19, May 6, 2010 (UTC)

Comment - Afterthought - To be clear, Burcham shows that the terms of service are enforceable; Stanford, Altera, and Davidson speak for themselves. Leftiness 02:22, May 6, 2010 (UTC)

Wow... I applaud your determination, but you are cherrypicking. You should be a talking head on TV! "Per Stanford"... What do you think a DISENCRYPTION KEY is? Show me one for the RSMV.

What does "Davidson & Associates v. Jung," have to do with the RSMV? Where is there a mechanical copyright enforcement system in RS? (ie: a KEY) How in the world does copying an entire program correlate with fair use?

" Altera Corp v. Clear Logic Inc., " is about the commercial reverse-engineering, from a product, of a blueprint, which takes away most of the profit from the target company. How, again, is this parallel with RSMV reverse-engineering a simple loading mechanism?

"Burcham v. Expedia": "For the foregoing reasons, Expedia's motion to dismiss for improper venue under Fed. R. Civ. P. 12(b)(3) will be granted. Although Expedia has moved that Burcham's case be dismissed with prejudice, a dismissal for improper venue does not represent an adjudication on the merits and is properly granted without prejudice. See Fed. R. Civ. P. 41(b). Thus, Burcham's case will be dismissed without prejudice for improper venue." How does "improper venue" in any way parallel to the RSMV discussion?--Agamemnus 02:40, May 6, 2010 (UTC)

Regarding Burcham and Altera, they have to do whether you are still bound to your contract. I have never said you aren't. Robert and I and others were maintaining that peoples' obligation to Jagex have nothing to do with our obligations since we are not an extension of Jagex. You don't need to have agreed to anything with Jagex to use or edit this Wiki. Stanford supports my point; it's trying to say that contracts (think NDA) and encryption are different mechanisms for protecting your IP. They don't override copyright law. Davidson I'll have to take a closer look at, but just because the appellants (the people defending themselves) waived that defense does not mean that a fair use defense isn't valid in our case. It could just be in whatever that case was, fair use obviously didn't apply because they weren't abiding by the conditions of fair use. We would be. I don't see any of those precedents as relevant as cited. Endasil (Talk) @ 02:57, May 6, 2010 (UTC)

These are certainly good legal precedence cases here, and it has certainly been good reading to at least go down memory lane on some of these cases when they were first brought up. I corresponded with some of the developers of the bnetd developers, and the lawsuit by Blizzard certainly applies so far as it is an analogous situation to what the private server community is doing in regards to Runescape. There were a couple fatal flaws with the bnetd approach... mentioned in the lawsuit and legal opinion that was rendered... including the fact that the bnetd essentially encouraged the illegal duplication of Blizzard software on a widespread basis and directly rendered an anti-piracy tool and major feature of the Blizzard software to prevent duplication to be useless. Circumventing the anti-piracy tool was a major point to the case, and a key point to tip the balance of the lawsuit into Blizzard's favor.

One other huge mistake that the developers of bnetd committed was that they didn't do a "clean room" swap between those who did the investigation of the software vs. those who made the software implementation. This is another generally fatal flaw for most of those who are making private servers in the Runescape hacker community (besides the blatant copyright violations). If bnetd was ruled to be illegal, Moparscape certainly would fit into that category too. It would be wise for the hacker community to pay attention to this.

Still, if you got into the meat of Davidson v. Jung, an important clause pops out that is very relevant to this discussion: Appellants waived any "fair use" defense(section I-B -- Procedural Background). In other words, fair use wasn't even considered at all in this case and all parties agreed that fair use wasn't even an issue in this case. There were so many other copyright violations and contract problems that any sort of fair use defense was thrown out the window. On the other hand, the use of images here on this wiki is in fact grounded upon the principles of fair use and is very much relevant to the situation here. More to the point, other than contending that somehow an EULA applies in some cases and can be enforced in court, this case is irrelevant and really doesn't apply to those of us who wish to engage in scholarly commentary about images from the model viewer, displaying those images with that commentary.

In Altera v. Clear Logic, I would argue that this citation actually backfires in terms of its explicit re-affirmation of legal reverse engineering and in fact in a legal defense of the RSMV I would even want to cite this case explicitly by name as to how the judge involved here even suggests what legal reverse engineering might be. The final paragraph in the appellate ruling is particularly interesting, as it strongly sets up that opinion for further appeal to a higher court and in fact is a reprimand over how the case was recorded and reported into the official record. More significantly, fair use again wasn't an issue with Altera v. Clear Logic, but rather the issue of the copyright status of a printed circuit design was a major feature of the opinion and noting there are only so many ways to put together a computer circuit that performs a certain function. That would be akin to copyrighting a single word and then suing everybody who uses that word in a sentence. One of the key issues involved here, again it would apply to the RSMV in a substantial way too, is that Altera lost significant revenue due to Clear Logic's actions and in fact lost core customers too. The same can't be said in terms of the model viewer, that even a single customer or player went somewhere else as a result of the usage of the model viewer. In fact the opposite might even be said of the model viewer at least so far as the volume of discussion on this matter may bring to the issue. Our use of images from the model viewer is perhaps even a form of advertisement for Jagex and their game, bringing customers to their game rather than driving them away.

Burcham v. Expedia is interesting because it does establish that a terms of service agreement on a website does have some force of law, and as such it can't be completely dismissed. Beyond that one very minor legal point, it is completely irrelevant to the situation here as again it doesn't address fair use, nor deal with international copyright questions. The only legal question in that case was a question of what legal venue such a case could be tried at, and the judge simply found a way to dismiss the case in a convenient manner. As a matter of fact, even the very question as to if a terms of service agreement is valid wasn't completely addressed except under the very narrow interpretation of if the jurisdiction of a court could apply to a breech of contract and if a Missouri court could hear a case falling under the jurisdiction of the state of Washington. It is also interesting that the case was dismissed "without prejudice".... something that also makes this particular ruling something that holds a weaker status in terms of legal precedence. In other words, the judge ruled that the case may have merit but that he wouldn't be the one to hear any more issues on the matter. Essentially it is "go back, reform your arguments, and try to take this fight somewhere else". Again, fair use isn't an issue here and beyond the minor issue that using a website might involve a contract in the form of a terms of service agreement, it is completely irrelevant to the discussion about the use of images from the model viewer on this website.

Nice try here, and certainly this is some relevant case law that may have some relevance to this discussion, but it doesn't address the core issues involved here in this discussion, nor does it demonstrate how secondary users of computer software could be found liable for damages merely for the use of that software or for fair use screen shots of that software posted in a public forum. --Robert Horning 14:02, May 6, 2010 (UTC)

Comment - Just ran into the text of the Family Entertainment and Copyright Act of 2005 and thought it would be relevant to post. What drew me to it was an amendment entitled CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR COMMERCIAL DISTRIBUTION to Title 17, Section 506 of the U.S. Code:

“

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies ... of 1 or more copyrighted works ...

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, ... if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies ... of the work have not been commercially distributed; ...

”

— Title 17 Section 506

There are two key points of analysis here. First, note the beginning: "any person who willfully infringes a copyright." Existing copyright law is still applied first to determine that there was an infringement of copyright (and then it must be shown to be willful as well). Meaning even this is susceptible to copyright law and by inclusion the right to fair use. Second, the images in the cache have been commercially distributed already, they just have not been activated yet. So I don't think it's actually relevant to our discussion, but it is important to note that this issue may (there are other issues, such as whether "a part constitutes the whole") fall under criminal law if we are not careful with how we apply copyright law in using the RSMV images. Endasil (Talk) @ 05:33, May 6, 2010 (UTC)

A few problems here. Defining some of the terms here is a problem as a copyrighted work is certainly something that can have some quirky problems. I'll admit that fair use is a defense against an assertion of copyright infringement, which means any sort of real test for fair use has to happen in court to demonstrate that the defense is properly applied. Nowhere are we suggesting that this wiki ought to be involved with the distribution of any Jagex software, or for that matter even the model viewer.

The previous policy under discussion is merely a sample of that much larger work, and in fact it is taking a 2-dimensional snapshot of a 3-dimensional object and applying fair use principles to that snapshot. Case law and statutory law that would apply would include how fair use applies to other 3-dimensional works like a sculpture or architectural structure. Yes, something like the Empire State Building can be copyrighted, and it has even been asserted in some interesting copyright lawsuits that commercial reproduction of an image of buildings like that can be considered a copyright violation. On the other hand, such case law doesn't prevent fair use discussions of that object or showing an image of that object.

I'll make this assertion here again: any sort of legal consequences to reverse engineering of Jagex software applies to those who are authors or creators of software or tools that apply such reverse engineering. It does not apply to end users of that software and certainly doesn't apply to tertiary users who are also in turn using images from that software under conditions of fair use. I'm all for a very narrow policy that keeps this wiki well within the scope of fair use when it comes to images from what I admit is a dubious source, but I still don't see why a complete prohibition of images from this software applies under law. --Robert Horning 12:48, May 6, 2010 (UTC)

A couple more case laws that I find relevant: Atari vs Nintendo

“	reverse engineering object code to discern the unprotectable ideas in a computer program is a fair use.	”
	— Atari vs Nintendo

This is but a small part of a big analysis, but hints that reverse engineering just comes down to whether the information you're looking for is protectable or not.

Harper & Row vs Nation Enterprises

“	Publication of an author's expression before he has authorized its dissemination seriously infringes the author's right to decide when and whether it will be made public, a factor not present in fair use	”
	— Harper & Row

The key application here would be whether Jagex willfully distributes the cache even of unreleased models constitutes an "authorized dissemination" or not. Endasil (Talk) @ 16:35, May 6, 2010 (UTC)

Comment - Unprotectable ideas, per the next sentence in Atari v. Nintendo, include factual ideas, public domain ideas, etc. Proprietary compression formats are protectable.

Regardless of interoperability, encryption research, and any other reason, including Fair Use, the makers of RSMV agreed to Jagex's terms, per Burcham, so they thereby forfeitted any right to reverse-engineer the Jagex Product for any purpose per Davidson. Therefore, making RSMV was against the terms, so obtaining and using RSMV is logically against the terms; posting images from RSMV is also logically against the terms.

In a different light, someone can commit copyright infringement and/or illegal reverse-engineering per Davidson; therefore, the reverse-engineering involved in making RSMV was illegal despite any copyright infringement and fair use arguments on account of Section 1201 (a) by itself, that nobody shall make a software which circumvents an access control measure. By that, it is illegal to obtain RSMV despite copyright infringement and fair use arguments on account of Section 1201 (a)(2) by itself, that nobody shall traffic in software which circumvents an access control measure. Finally, it is logically illegal to use RSMV because it is illegal to obtain it, and it is logically illegal to post the images to the wiki because it is illegal to use and obtain RSMV.

Again, despite copyright and fair use arguments, I assert that it is illegal and a breach of contract to make, obtain, and use RSMV and to post images from RSMV per Section 1201 and the terms, respectively.

... And an afterthought: Considering that the only way to access the cache images is to make a software by reverse-engineering the Jagex Product in a way that is illegal and a breach of contract, I assert that Jagex did not authorize the dissemination. Leftiness 22:38, May 6, 2010 (UTC)

The proprietary compression format is what is being reverse engineered, not what you are trying to discern. Endasil (Talk) @ 00:02, May 7, 2010 (UTC)

The terms were not necessarily broken - Your argument that anyone attempting to view the cache is breaking terms has one very large flaw. You are assuming that the downloader of the cache is the same as the one trying to view the files. It could very well be that one person loaded that cache and another individual with access to the computer stumbled upon the folder and decided to try to view the files. And proceeded to do so without once logging on to RuneScape and thereby never agreeing to terms. --Degenret01 23:28, May 6, 2010 (UTC)

Comment - Endasil: The proprietary format is used by Jagex in the operation of the game Runescape, so it is thereby a Jagex Product. Reverse-engineering the Jagex Product to decompress an image is still reverse-engineering the Jagex Product.

Degen: The terms give you two options, and you have to take one or the other; you can accept the terms and use the Jagex Product with the restrictions, or you can reject the terms and not use the Jagex Product. If person A, who disagreed with the terms and conditions, found the cache on person B's computer and used RSMV to access the cache, person A would be knowingly violating the contract, in that he agreed not to use the Jagex Product. Person B would be innocent in this occasion. If person A is employed by person C, the child of person C, etc, person C would be held vicariously liable for person A's actions. If person B gave person A permission to use the computer, person B would be vicariously liable for person A's actions because he gave person A permission. There are many exceptions to vicarious liability which protect the innocent person; I'm awfully sure that any instance of person A accessing the cache on person B's computer can be countered. Even in a case of person A accidentally downloading RSMV, installing it, and accidentally using it without person B's permission and without a person C to be held liable, person A would be held liable for his own actions under the cliche "Ignorance of the law is no excuse for breaking it." Of course person A's consequences would be almost nothing but to remove RSMV, etc, in this ridiculously theoretical case. Leftiness 01:49, May 7, 2010 (UTC)

Can you stop replying using this format? It makes it really hard to respond to comments piecewise. Anyway, what I was saying was that it doesn't matter if what you reverse engineer is protectable, it matters whether what you're trying to get out of it is protectable. Otherwise there would be almost no possibility of valid reverse engineering, contrary to that case law decision. Endasil (Talk) @ 03:03, May 7, 2010 (UTC)

Again you miss the point, Leftiness, of what reverse engineering really is and are confusing reverse engineering with copyright. The reverse engineering is trying to identify what the compression format being used by Jagex within the cache and to figure out what format that the objects within that cache may be. It is grabbing Jagex software, de-compiling that software to figure out that format or compression format and then writing some software to duplicate or "reverse" that process in some other software package. Again, it is the person who wrote the software, that created the model viewer software itself, that is performing the reverse engineering. It is not somebody who is merely using that software afterward, as that isn't even engineering, that is merely using an application.

The prohibition against reverse engineering is to stop the highly skilled and presumably intelligent software developer from even decompiling the software in the first place and trying to figure out how everything was put together in the first place. Jagex simply has no authority over what somebody does with any other tools or software that happens to be on that computer. Jagex can try to prevent the distribution of that model viewer software, but for those that somehow got that software and already have that software installed on their computers, they are not liable for any sort of penalty at all, as long as they don't engage in distribution of that software to others. You are asserting that not only are those folks who merely posses this software breaking the law merely by possession of this software, but that publishing images that are fair use snapshots from operating that software is somehow illegal. That isn't even listed in the terms of service agreement in the first place.

Again, this website (the Runescape Wiki) is not engaged in distribution of the model viewer software. Until that happens, there is no legal liability at all. The illegal action, if there was one, is the decompiling of Jagex's software and the creation of the software tool to do something that Jagex didn't authorize. Besides, there is legal reverse engineering, and explicitly the Jagex terms of service agreement even acknowledges that such legal reverse engineering can happen. So far I haven't even seen how this model viewer even may be an illegal form of reverse engineering, much less there is any legal precedence that merely possessing an image that is a screen capture from using software examining files on your own personal computer is illegal either, or that publishing those images under what is otherwise fair use terms is also illegal. --Robert Horning 18:22, May 7, 2010 (UTC)

Comment - Afterthought - Except the case of A being the child of C, I can't think of a case in which A would not be liable for his own actions. Cases in which B and C are liable are cases in which B and C are liable in addition to A - again, with the exception of A being the child of C. Leftiness 01:57, May 7, 2010 (UTC)

Ridiculously theoretical it is not - How many players out there have brothers or others that share the PC but do not also play the game? The player is under no obligation to tell the others not to try to view the cache. Your argument is still out the window on this alone.--Degenret01 03:36, May 7, 2010 (UTC)

Comment - First, how should I respond to multiple comments that address different aspects of the discussion if not by responding in separate sections of my comment? ... Is that what you're asking about, Endasil?

Fair Use is the only way that something you're trying to get out of the protectable item would be unprotectable. Since the breach of contract decision is made before the fair use decision per Altera, the breach of contract decision is used in determining whether it is a fair use to access and post what you're trying to get out of the protectable item.

According to the contract, which is agreed to per Burcham, reverse-engineering is not allowed. Since reverse-engineering is not allowed, I've asserted that using RSMV, the product of reverse-engineering, is logically not allowed by the contract. In disputing that assertion, remember that fair use cannot be considered until there is a breach of contract decision. Again, I assert that it is a breach of contract to use the product of a breach in that contract.

Robert, you've said that it is not allowed to distribute the model viewer software; I asserted that it is thereby not allowed to obtain the software from a distributor. It works both ways, and I do believe that it would work even stronger against someone who obtained the software knowing it to be a breach of contract to make the software. Again, breach of contract comes before fair use; breach of contract can determine whether it is a fair use, and any reason for reverse-engineering being legal, including interoperability, encryption research, etc, is countered by the contract per Altera and per Davidson.

Finally, the "ridiculously theoretical" remark was addressed to my last example, where A didn't have B's permission or a person C to be held liable, in which case A would be liable for his own actions under "Ignorance of the law is no excuse for breaking it." I understand that siblings can share a PC; in the case of siblings, the parents would be held vicariously liable for the actions of their children. If you didn't agree to the terms, even if you didn't know the terms existed, you have no right to use the Jagex Product. Of course, in the case of honestly not knowing, the consequences would be minor. Leftiness 20:34, May 7, 2010 (UTC)

Since WHEN does breach of contract come before fair use? If that was true, then every company in the world would say "You cannot copy our stuff because our ToS does not allow it." and fair use would be pointless. ⁓ Hello 71 21:27, May 7, 2010 (UTC)

Comment - Per Altera v. Clear Logic, "Most courts have held that the Copyright Act does not preempt the enforcement of contractual rights." Also, per Davidson v. Jung, "Private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the Copyright Act." Leftiness 00:01, May 8, 2010 (UTC)

You have still not answered my point. If every ToS in the world said "you cant copy our stuff because we said so", and it HAD to be obeyed, even in cases OF FAIR USE, then fair use would be pointless. You do get the idiocy of that statement, do you? ⁓ Hello 71 01:19, May 8, 2010 (UTC)

Comment - Idiocy is in the eyes of the court, and they said on at least two occassions that it is legal for a company to require you to sign away reverse-engineering rights in order to use the product, and that the contract comes before fair use. Breach of contract can determine if the use is fair on account of Nature. Leftiness 01:42, May 8, 2010 (UTC)

You still have not answered my point. ⁓ Hello 71 01:50, May 12, 2010 (UTC)

Leftiness: You should direct each individual comment to the comment you're responding to. The start of the comment I'm replying to, "First, how should I...asking about, Endasil?" has nothing to do with the rest of the comment and could be indented and independently signed directly below the comment of mine that provoked a response. Once again, you're using that format which makes it difficult to show you that I'm responding particularly to your first paragraph. Endasil (Talk) @ 21:36, May 7, 2010 (UTC)

Comment - Personally, I feel as though that can be accomplished with phrases such as "According to," "As you said," and so on; I like the simplicity of scrolling to the bottom of the page to find the latest comments, but I'll start posting as you described. Leftiness 00:01, May 8, 2010 (UTC)

Actually, while you may suggest that there is a criminal act with both the distributor and the person obtaining a product, the law doesn't look at the two classes equally. This is true with even other illegal distribution issues like the selling of illicit drugs or even ticket scalpers. In the case of copyright law, the role of fair use is much, much more strongly implied on a personal level and there is the general presumption of innocence on the part of somebody who has obtained a copyrighted product. If a person has obtained some copyrighted content through what has become illegal channels, they are generally held harmless as long as they don't in turn re-distribute that content. Yes, there are some exceptions, but those are astonishingly few that they deserve a sort of distinction because they are exceptions rather than as a general rule.

So no, it doesn't work both ways. The person who is a publisher, somebody who has taken explicit actions where they have knowingly violated copyright and plagiarized content asserting that they are in fact the original author or acted with the presumption they have authority to distribute is the violation of the law... something implied by the distribution of a copyrighted work. Every case you've mentioned here, every copyright violation case that I've ever heard, involves those who are in the distribution of the copyrighted product.

And I should note, I never did say that the RSMV was illegal to distribute. That is not an established legal fact but my point was that we aren't even distributing that software so the issue is a completely moot point. At this point you and I are talking past each other and I really can't correct what I think is a massive mis-interpretation of the law here. Statutory law does indeed preempt contract law, and constitutional law even preempts statutory law. If you don't get that, I'm at a loss here, and there are indeed fundamental constitutional issues involved that can certainly be argued in regards to the role of fair use in the form that we are doing here with the images from the model viewer on this wiki... a constitutional role that is backed up by formal statute on the topic as having been recognized by both the legislative and judicial branches of the U.S. government. A contract simply can not require something that is contrary to statutory law. --Robert Horning 13:37, May 10, 2010 (UTC)

Comment - Certainly the distributor or maker of the illegal product bears the brunt of the consequences, but the person obtaining the illegal product isn't completely off the hook. I liken this to the illegality of production, distribution, and possession of drugs. Since they are illegal to make, they are illegal to distribute, and illegal to possess; since RSMV is a breach of contract to make, it is a breach of contract to distribute, and a breach of contract to possess. Again, certainly the distributor or maker bears the brunt of the consequences, but that doesn't take back that the product is a breach of contract.

Can you find a court case where someone was charged with possession of an illegal product and let off? I assert that you can't - that nobody can; the reason court cases involve distributors is because it is the distributors who try to prove it's legal; they're the companies making the money. After the product is proven illegal in a court case, those in possession of the illegal product are arrested for possession, the illegality of the product is cited, and they receive their consequences. There's no reason to go to court when you've been caught red-handed with an illegal product.

Similarly, once the product is proven a breach of contract to make, it is automatically a breach of contract to distribute and therefore to obtain. While Jagex isn't able to press reverse-engineering charges against the end users of RSMV, RSMV was a breach of contract to make, so they can press breach of contract charges against the end users. It is for this reason that the distributors receive the brunt of the consequences; the distributors were in possession and they were distributing, while the end users were only in possession.

Finally, it was ruled by court that companies can require you to sign away your reverse-engineering rights in order to use their product and that the contract pre-empts the copyright law per Davidson and per Altera; which constitutional or statutory law allows the breach of that contract? Leftiness 21:17, May 10, 2010 (UTC)

If you are talking about somebody who is in possession of an illegal drug (cannabis or others)? Yes, I can cite several court cases and even statutory law that actually permits small amounts to be in the possession of a person to be either discounted or to be a very low class misdemeanor that is essentially a small fine. There is possession with the intent to distribute which is also defined frequently in law as well. Possession of counterfeit money is certainly perfectly legal, although distribution of that money certainly is very much illegal. If you want me to dig up explicit court case, I can, but this is such an established legal principle that I think you would have to go back to ancient English common law to find some actual precedent setting case.

At no point have you possibly proven your point here either in terms of how possession or use of illegal software is going to result in any sort of legal penalty of any kind. It isn't in the law, and it isn't even in the terms of service agreement that Jagex has given to its users. It simply doesn't exist. There is a derivative copyright issue where Jagex owns the copyright to models being displayed in the model viewer, and I acknowledge that even a screen capture from the model viewer would still be enforceable in terms of copyright protection. That is why the use of those images would by necessity have to conform to fair-use provisions unless you have explicit license from Jagex.

I gave my rebuttal to the Altera v. Clear Logic above. There were numerous mistakes that were made there, and in that particular case it was the distribution of the software that was a major factor in the case and noting that there was economic harm also being done to Altera that was a significant part of the case. It was a complicated case and I don't think the narrow use that is being made here to rationalize away the legal rights to reverse engineering. There are legal forms of reverse engineering, and that is what you are also trying to wish away and pretend those don't exist. Again, if you actually read my rebuttal, I pointed out that this particular case would even be useful to cite as it even re-affirms the right to reverse engineer electronic parts and software, but it does put in some restrictions to what that legal reverse engineering may be. It is also a patent infringement case, which is a bit different than a copyright infringement case too. Again, nowhere is Jagex asserting a patent on anything related to Runescape. --Robert Horning 16:35, May 12, 2010 (UTC)

Comment - So, what are the pros and cons? Oil4 ^Talk 20:18, May 11, 2010 (UTC)

Comment - If I'm correct, I believe you're trying to focus this discussion into weighing the benefit of using the images against the fact that it's a breach of contract as to justify the use as a fair use. Notice, again, that breach of contract pre-empts copyright law, including fair use, per Altera and per Davidson. Since breach of contract pre-empts fair use, you cannot assert fair use on an issue that is a breach of contract. Breach of contract is not another factor to be considered in a fair use dispute; breach of contract is a deciding factor in whether the use can even be disputed as fair. Leftiness 23:20, May 11, 2010 (UTC)

Whoa - You just changed Altera's case from saying that copyright doesn't necessarily preempt the enforcement of contractual rights to saying that contracts pre-empts fair use! That is a huge logical jump that you haven't justified. Besides, even if copyright doesn't preempt the enforcement of contractual rights, it makes no difference to the legality of posting the images here. Jagex might just have the right to pursue civil action against those who posted them, if the poster broke contract to do it. Endasil (Talk) @ 15:35, May 12, 2010 (UTC)

You have mis-read Altera v. Clear Logic and I would suggest that you re-read that case again, and the Jagex terms-of-service agreement too. That case certainly doesn't prohibit fair use at all. You are really reaching here Leftiness and reading legal rights that don't exist. --Robert Horning 16:35, May 12, 2010 (UTC)

continued...............

ok, but what if my sis, who doesnt play runescape, views the cache? she never agreed with the terms and conditions. then what if she tells my bro about the images, and what if he tells his friend at school about them, and his friend at school's bro plays rs, and decides to look at the images, and copys them and posts them on his site, without having been the 1 to view the cache. which of these people, if any, are breaking laws? 3rd age farcaster 01:26, May 12, 2010 (UTC)

Comment- wow that was a mouth full anyways no one would be Lucid Savior ^Talk 01:52, May 12, 2010 (UTC)

Comment - Edit Conflict First, understand that I may have misinterpreted your scenario. Jagex gives licenses, the right to use their product, to those who agree to the contract, so those who have not agreed have no right to use the product; that includes your sister. I'm unsure if it breaks any law to simply be told that the cache images exist or if it breaks any law to pass the information on that the cache images exist; that includes your brother and his friend. Anybody who has used any Jagex Product has either agreed or disagreed with the contract, so you can't access the cache without breaching the contract; that includes the friend's brother. Posting the images on a website is not a fair use because breach of contract pre-empts fair use, per Davidson and per Altera; that includes the friend's brother. I'm unsure how the friend's brother could have accessed the cache and posted the images without being the one to view the cache; explanation would be appreciated. Finally, anybody who knows about the contract has either agreed or disagreed with the contract, so benefiting from a breach in the contract is a breach of that contract; that includes all of us. Leftiness 02:25, May 12,

2010 (UTC)

first off, how is she agreeing to the terms and conditions by simply opening a file on her comp? she hasnt even read them. as for how would the friends brother access the cache, idk, came 2 our house or something 2 look at it.

3rd age farcaster

15:38, May 12, 2010 (UTC)

The terms of service agreement is a combination of a legal liability waiver (if you computer blows up, burns down your house, or causes a robot connected to the computer using the software to start killing you kid sister, they claim no responsibility for those actions) and a "license" to use their servers, hence what the "terms of service" are for accessing the information on the computer equipment owned by Jagex. Other than that, they have asserted "all rights reserved" and that you as an end-user have no legal rights to redistribution of the software. That is the end of the "license" and there is no other part here that is involved. Again, you have not established that fair use can be waived by 3rd parties or how a terms of service agreement can possibly remove any sort of fair use. --Robert Horning 16:51, May 12, 2010 (UTC)

Comment - The following is a quotation from the DMCA.

"Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second.

This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited.

Section 1201 proscribes devices or services that fall within any one of the following three categories

they are primarily designed or produced to circumvent;
they have only limited commercially significant purpose or use other than to circumvent;
or they are marketed for use in circumventing."

RSMV circumvents a technological measure in order to gain access and is therefore prohibited. Leftiness 20:47, May 12, 2010 (UTC)

You're going around in circles and are once again being very selective (almost maliciously so) about what you cite. This was the very first excerpt that was posted on this entire thread, and when I did so, I was at least sure to include the part that clearly said that no part of the DMCA shall affect on the right to fair use. Endasil (Talk) @ 22:34, May 12, 2010 (UTC)

Comment - I suppose I should have elaborated on what I meant when I posted the above quote. Actually, our quotes are not the same; yours came from the copyright law found here, and mine came from the DMCA bill found here. Section 1201 by iteself led me to believe that the RSMV was fair use. Contrary to that, the DMCA makes a differentiation in the bill, specifically, that there is a difference between technical measures that prevent access and those that prevent copying. Quoted above, those that prevent copying may be circumvented as a fair use. However, those that prevent access may not be circumvented and they are not fair use. That said, the Jagex Product was reverse-engineered to make RSMV so that the cache could be accessed; that's prohibited. Leftiness 01:08, May 13, 2010 (UTC)

Ah, sorry, I see where your argument was now. But anyway, the section 1201 that it refers to doesn't actually distinguish between the two, regardless of what the act says. I'm not sure where they are coming from. If you can actually find something in Section 1201 that seems to agree with what they are suggesting, I might believe it. Until then, I believe the current text of 1201 itself which says "nothing in this section shall affect...fair use" (with no reservations). Endasil (Talk) @ 01:39, May 13, 2010 (UTC)

Comment - Section 1201 says that circumventing any technological measure which prevents access is prohibited, and Section 1201 says that Section 1201 does not apply to Fair Use. The DMCA bill makes a distinction between circumventing measures that prevent access and those that prevent copying, and it states that Fair Use is only asserted when circumventing measures which prevent copying. Section 1201 was implemented by the DMCA, per the linked bill. To be honest, I think they didn't include in the law that you're allowed to circumvent measures that prevent copying if it's a fair use because laws tell you what you can't do, not what you can do; they don't want to list all the things that you're allowed to do, so they just list what you aren't allowed to do; to them, meaning judges and legislators, it's obvious. Leftiness 02:01, May 13, 2010 (UTC)

1) Section 1201 isn't saying that it doesn't apply to fair use, it's saying it doesn't affect fair use; i.e. it doesn't affect the legitimacy of fair use as a defense against copyright infringement. And the part of the DMCA isn't law in itself, it's commentary (that might be used in an examination of legislative history, but I do not believe has the affect of the law in itself). It comments on section 1201, but I don't see in section 1201 what it's talking about. The distinction does not seem to be made as the text of the DMCA suggests. Please point to the part in 1201 that does distinguish, and particularly the part which says that fair use does not provide any possible exception to circumvention prohibitions (it might, for example, have been amended again AFTER the DMCA was passed). The DMCA in itself doesn't matter, the current text of the statues that it created or amended does. Endasil (Talk) @ 02:27, May 13, 2010 (UTC)

NEVERMIND I just took a good look at what you posted and it isn't even the DMCA. I thought something didn't sit right, it didn't look like legislation. You posted a summary of the DMCA from the copyright office, which doesn't have any force of law, and while it might provide insight toward how courts would examine the DMCA, provides no other use to us. Please start double-checking your sources. Endasil (Talk) @ 02:31, May 13, 2010 (UTC)

Comment - I did double-check my source. It's a government document providing insight into how courts examine the DMCA; that's the purpose. Having read it, I've brought to attention that there is a difference between circumventing measures which prevent copying and circumventing measures which prevent access. Section 1201 and this document agree that circumventing measures which prevent access is prohibited. Section 1201 and this document agree that circumventing measures which prevent copying is not prohibited so long as it is a fair use. Section 1201 is a law, so it tells us what we can't do; this document is a summary providing insight, so it clears up a misconception that all reverse-engineering is the same. Per Section1201, Section 1201 specifically involves circumvention of measures which prevent access, not measures which prevent copying, so Section 1201 does not affect Fair Use, as Fair Use involves circumvention of measures which prevent copying. These two fit perfectly together; how can you assume that the summary is not the intent? You do realize that the summary's is hosted on a government site, right? (http://www.copyright.gov/legislation/dmca.pdf). P.S. It's too late for me to continue on tonight; I'll be looking at Universal City Studios, Inc. v. Reimerdes tomorrow... Run a Google Scholar search; I can't get the link to work. Leftiness 03:04, May 13, 2010 (UTC)

Twice you referred to it as "the DMCA" or the "DMCA bill". If you knew it wasn't, why did you call it that? Further, yes it may be relevant (but certainly no more relevant than any other legal argument made here) but it is not law! They're not the people that MADE the law, either. But your analysis of what it means for 1201 not to affect fair use is wrong. If it wasn't relevant, they wouldn't have mentioned it. What they are saying in 1201 c) is that the prohibitions don't create any special cases for fair use. If it did, it would affect fair use. So the standard criteria for fair use still apply, and that has always been the debate. Endasil (Talk) @ 03:15, May 13, 2010 (UTC)

Comment - This is why I hate RSMV threads. We never get anywhere. The same arguments that are being made now were made at the very start of the thread. People are too unwilling to compromise on this issue. Can't we close this sometime soon? --Liquid^Talk 02:29, May 13, 2010 (UTC)

u act like there something wrong with going round and round. even though i am too dense to understand this legal stuff and to lazy to try to learn understand it, its intresting. besides, if u close it, itll re-open within several minutes- several months.

3rd age farcaster

02:35, May 13, 2010 (UTC)

It's decision time

Comment - If we close this without reaching a consensus, then nothing productive will have been done the past three weeks. We need to reform this (sound familiar lately?), enact a policy, and do something before more threads like these are opened, there are basically no more arguments to be made regarding this issue, just enticing semantics construing multiple viewpoints. If we all remain bipartisan on this, I fear we have only reached the tip of the iceberg, so to speak. It's time to make a decision. Where will you stand, in favor of the RSMV, or opposing its use? No more arguing, this is quickly becoming catch 22, we can turn this from a no-win situation into a situation that proves to be fruitful whatever the outcome. Fruit.Smoothie 02:49, May 13, 2010 (UTC)

Support using the RSMV, under the following conditions:

The image cannot be reproduced using a screenshot.
The image describes the item/creature that the article is about.

Which means:

1. The image must have the same name, or very similar name to the article.
2. The image must include the item/creature, preferably to the exclusivity of everything else.

This means that things like galleries are prohibited, as they do not apply to the specific article in question. ⁓ Hello 71 03:00, May 13, 2010 (UTC)

Support On one condition (included with those stated by Hello71 above): the image must be implicitly and only used on the respective article, meaning that if we used a RSMV image concerinng a dragon warhammer on one of a hobgoblin, that would not be acceptable. Fruit.Smoothie 03:02, May 13, 2010 (UTC)

Comment - I resent the fact that you even considered making this section. This will not be solved with a vote; it's a legal issue. Leftiness 03:04, May 13, 2010 (UTC)

And arguing over this seems better than actually doing something rather than moping over actions never even taken? I understand the precaution resulting, but what do we have left after all this time? A few KB of text? Besides, no one said anything about vote tallying, to be honest, consensus is basically the same as vote tallying, it's just a minor discrepancy of wording that has given voting its negative connotation, I see nothing wrong with a democratic vote, as the majority usually knows whats best for themselves, and for the Wiki. Furthermore, while legality does take precedence over any matter on this Wiki, clearly some people do not agree that this is a serious/legal issue, as this thread and its many other counterparts has been up for about, how long? If it was an obvious legal issue, it would be removed. Seeing as how it does not violate that conduct, one may assume that its OK to go ahead, thats not the message I wanted to send out here, I was simply tired of all this fuss, we're growing older by the days, it doesn't seem like there'll be any consensus on this issue for a long time, until Jagex has given us the initiative that its OK to do so, which they haven't yet, and we can't entirely trust their ToS either, as it's prone to change. Once, RuneScape was playable ONLY by 13-year-olds, now it's 10 and up (IIRC), most likely due to business entrepreneurship. But we can't just wait until Jagex does something, we aren't their servants, we are a Wiki part of Wikia, our ToS are mutually exclusive so long as any content on here is freely dictated and not infringed upon by international laws or copyright. I see nothing of that short being done, just good Samaritans with good intentions, why bother? Fruit.Smoothie 03:52, May 13, 2010 (UTC)