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Mods apparently not illegal after all

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In a recent Ross chat stream I drew the attention of Ross & others to the case of Bungie vs LL, which appeared to declare that using game mods constituted creating copyright-infringing derivative works for which the publisher was entitled to compensation. In the case, LL created a tool to help him cheat at Destiny 2. He didn't sell this tool, he just used it for personal cheating purposes. It should be pointed out that he was also threatening Bungie employees with violence. While this wasn't a part of the lawsuit against him, it does explain why Bungie was out for blood.


The decision ruled that each time LL patched a copy of Destiny 2 with his cheat mod constituted a copyright infringement for which he was liable for $150,000 per instance. He did this twice, so he was ordered to pay Bungie $300K. See text of decision.


At the time, I thought this was the courts saying that all mods were copyright infringement. From the text of the decision, it's hard to read it any other way. However it turns out I was wrong. There was an earlier case I was unaware of (and which presumably Judge Richard Jones was also unaware of) which examined essentially the same point and ruled the opposite way, and which was subsequently upheld by the 9th Circuit.


In Lewis Galoob Toys vs Nintendo, Nintendo argued that the Game Genie created a derivative work from a game for which they held the copyright. Thus Game Genie users were infringers and Lewis Galoob was a contributory infringer, and Nintendo was entitled to damages from Lewis Galoob. The trial court disagreed. It held that the Game Genie-modified game did not constitute a derivative work insofar as it wasn't separately transferrable from the original work. For example, I couldn't keep playing the original game but sell the Game Genie-modified version to my neighbor.



Such a process is analogous in purpose, if not in technology, to skipping portions of a book, learning to speed read, fast-forwarding a video tape one has purchased in order to skip portions one chooses not to see, or using slow motion for the opposite reasons. None of those practices permanently modifies or alters the original work, none produces a separate work which can then be transferred in any way, none replaces the original work, and none deprives the copyright holder of current or expected revenue.


But even in the unlikely event that the Game Genie modification does constitute a derivative work, the court held that it would still constitute fair use. 



[T]he non-commercial nature of the player's home use of the Game Genie creates a presumption of fair use under Sony...Further, Nintendo has failed, in three respects, to carry its burden to prove injury: It has not shown that any use supplants demand for its works, that any actual or reasonably likely market is injured, or that use of the Game Genie in ways that arguably infringe Nintendo's copyrights would diminish the overall demand for Nintendo games. Lacking proof that either actual or likely markets for the copyrighted works are liable to be affected, Nintendo has failed to satisfy the fourth fair use factor.


I have not yet read the 9th Circuit decision which upheld the finding for Lewis Galoob. However, they did in any case find for Lewis Galoob. Thus, there's pretty clear precedent establishing that mods are not a crime (or a tort or whatever). Any attempt to make serious legal use of Bungie vs LL would quickly come up against Lewis Galoob and fail. I mean, you'd need to have enough money to actually bring the matter to trial, but you'd definitely win.


So rejoice fellow gamers! The US court system isn't insane and destructive ALL of the time!

Edited by polymerize-finale
grammar, typo (see edit history)

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Follow-up: The 9th Circuit ruling basically upholds the reasoning of the trial court in its entirety. There's nothing in it which would suggest anything potentially unpleasant for gamers or modders.


For some reason I've seen a lot of suggestion that the case was something of a double-edged sword for modders, which doesn't really make any sense to me. The only thing I can think is that since neither the trial court nor the 9th Circuit explicitly said categorically that mods were 100% not derivative works, it means that maybe they are, and so maybe modders are at risk. Which again, doesn't make sense. Both decisions were as 100% pro-modder as you could ever expect to see from a court. I may look into some of these articles in future though.

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