Legal Considerations and Challenges

[ROBOKiTTY]

The drive is to replicate a lot more than that. I don't know how anyone thinks that it would be legal to create such a straightforward knockoff commercially.

I don't know about the legality per se, but the industry has always been fraught with unauthorized spiritual successors and blatant knockoffs. I'm not sure CoX has such distinctive styles (which it took from comic books in the first place) that there'd be a case comparable to Apple v. Samsung, which concerns fairly distinctive styles in relatively uncharted territory.

Some modern examples in the industry: From Infiniminer came Minecraft and about six dozen lesser-known clones. The casual/browser scene is highly commercialized and filled with flagrant copies. And I'm not big on FPSs, but it seems to me all the modern (in terms of setting) shooters look and feel identical.

Granted, it doesn't seem like anyone in the video game industry's actually gone to court over this precise issue.

[Olantern]

The drive is to replicate a lot more than that. I don't know how anyone thinks that it would be legal to create such a straightforward knockoff commercially.

I agree with Mantic on this point.  From everything I've seen in the SEGS thread, what the coding folks are trying to do blatantly violates NCSoft's IP rights.

This is different from what might be done in a Plan Z scenario, though.  Most of what I've seen on Plan Z deals with issues of gameplay and story, and I think it's arguable that most of those things are not covered by NCSoft's rights in CoH.  For instance, NCSoft can't realistically claim the sole right to feature superheroes with capes, or alien invasions, or characters who shoot fire out of their hands.  I don't believe they can even assert a right to prevent others from making a game featuring a set of fire-shooting powers player characters can take.  But when someone creates a leveling structure where one can take a power called Flares or Fiery Blast at level 1, up to Inferno at level 32 ... that's treading on NCSoft's toes, no matter what route you take to get there in your programming and code.

[dwturducken]

<raises hand>
Have ya looked closely at Champions Online?  The tutorial is playing through an abbreviated version of the original CoH trailer. While the point could be argued that both were done by the same people, there still is the distinct ownership of IP. The similarities continue in game: a city overrun by gangs, including a mob-like group; using a transport to get from major area to major area; a pretty similar "social interface."

I could go through the list on tvtropes.org for CoH and find a place where CO hits the exact same mark. As far as Plan Z goes, the IP challenges are legally refutable. The problem that I see with a legal challenge is that, whatever the actual legality of whatever claim NCSoft might make, what is being discussed here is so financially fragile, all NCSoft has to do is pour the money they aren't paying Paragon Studios for a couple of months to shut this down, and there wouldn't be a thing we could do, sustainably, to stop them.

I'm not trying to sound defeatist, but it definitely has to be said.

[eabrace]

the original CoH trailer

Man, does that ever take me back...

[Olantern]

<raises hand>
Have ya looked closely at Champions Online?  The tutorial is playing through an abbreviated version of the original CoH trailer. While the point could be argued that both were done by the same people, there still is the distinct ownership of IP. The similarities continue in game: a city overrun by gangs, including a mob-like group; using a transport to get from major area to major area; a pretty similar "social interface."

I could go through the list on tvtropes.org for CoH and find a place where CO hits the exact same mark. As far as Plan Z goes, the IP challenges are legally refutable. The problem that I see with a legal challenge is that, whatever the actual legality of whatever claim NCSoft might make, what is being discussed here is so financially fragile, all NCSoft has to do is pour the money they aren't paying Paragon Studios for a couple of months to shut this down, and there wouldn't be a thing we could do, sustainably, to stop them.

I'm not trying to sound defeatist, but it definitely has to be said.

What I was trying to do in my last post, perhaps unsuccessfully, was to distinguish between the kinds of things you're describing here, the sorts of things that could be identified as tvtropes, and things like leveling systems, attack systems, etc.  I'm not sure where the line is (nor is anyone else, to my knowledge, since this has never been litigated on these facts), but it's definitely there.  (Side note: The reason Plan Z, CO, or anything can reuse the things being discussed is because of geekdom's favorite part of copyright law, the doctrine of fair use.) 

DW's second point here is the more important one.  Just because a legal claim, like, "Plan Z is infringing our IP rights," can be alleged doesn't mean it will succeed.  However, the cost of defending against that claim can be so high that its ultimate merits are only one aspect of the discussion.  This is why I'm so consistently cautious on these types of issues.  The more litigation can be avoided, the better.

(In other news, I'm writing this post on the uber-powerful machine I bought specifically to play CoH ... three days before the fateful announcement.  Sheesh!  )

[castorcorvus]

DW's second point here is the more important one.  Just because a legal claim, like, "Plan Z is infringing our IP rights," can be alleged doesn't mean it will succeed.  However, the cost of defending against that claim can be so high that its ultimate merits are only one aspect of the discussion.  This is why I'm so consistently cautious on these types of issues.  The more litigation can be avoided, the better.

Yes, but as a flurry of recent info has stated, NCsoft no longer seems interested in COH because it is favored by a Western market. That is to say that unless we have the untimely misfortune of a superhero boom in the Eastern markets shortly after Plan Z is put into effect, then I don't think they will bother with anything short of blatent infringment. That said, I still agree that we should try to avoid provoking them at all costs.

[Minotaur]

One problem that was raised at the EU player meet is EU data protection law. It would not be legal I believe to transfer any real world player info to a new entity (like an email address) without the explicit consent of the player. How it's been handled in the past where a game transitions from one company to another is that the old owner sends the communication out offering to switch the player over to the new company, so this would require some work by NCSoft.

[dwturducken]

One problem that was raised at the EU player meet is EU data protection law. It would not be legal I believe to transfer any real world player info to a new entity (like an email address) without the explicit consent of the player. How it's been handled in the past where a game transitions from one company to another is that the old owner sends the communication out offering to switch the player over to the new company, so this would require some work by NCSoft.

I'm a little fuzzy, but I believe batch emails from a data base are relatively simple. Usually an organization that handles hundreds of emails in and out every day can do a burst like this without being flagged as a spammer by using a mail/web host that can grant those kinds of permissions. Point being, depending on the method required by EU law, sending that kind of communication is not cast prohibitive; even postage would probably be fractions of a percent of what they were gaining monetarily from the sale.

And, yeah, my first point was more a set up for the second point than anything else, like a nostalgia claymore... 

EDIT: After some reflection, here's what I think I was trying to get at.  The people at NCSoft, if they considered us in their decision making, did not figure on us mounting any collective resistance that they would need to worry about.  Now that we're getting attention, people are starting to look here.  We want those people to be media types or more of the glitterati, like the indomitable Miss Lackey, who can catch the ear of the media.  When they look here, they need to see the friendly community that we say we are.  If we're linking to a bunch of news blogs and industry websites, and the bulk of the comments on the pieces at the other end of those links are negative, no amount of denial on our part is going to convince anyone, particularly NCSoft, that it wasn't us, even if it was just people following the links that we gave them and not liking what was at the end of the trail. But, frankly, Hyperstrike said it way more eloquently than I did.

Here's where that relates to this thread. If negativity that kind of negativity, particularly aimed at NCSoft, gets back to them, it undermines the current talks, it undermines any follow up efforts that would originate here, and it would make suing us all back to our Atari 2600s look a whole lot more worth their time, effort, and money, should Plan Z move forward. 

Someone said on one of the other threads that the efforts here seemed fractious.  They really are not.  There is one goal: keep this community together someplace besides what amounts to virtual class reunions, in the sort of interactive environment that has been inspiring us ever since we discovered it.  What looks like divided effort on this board is really just multiple prongs, and each alone is nothing without the others beside it. The ideas being put forth in the myriad threads are all part of the greater whole.  Plan Z, on the Sunset board, is the last ditch contingency, the rainy day plan, the Foundation that will reduce ten thousand years of chaos to a mere thousand.

The media is watching. This was what we wanted. There's a fair chance that it is about to reach mainstream media. As has been said in so many of the other threads: stay on target.

And, can one of the bosses tell me how I'm suddenly a boss? I'm just an ascended lurker.

[ROBOKiTTY]

[eabrace]

Yup.  Post count.

[DamianoV]

On corporate structure:

(All the following assumes initial incorporation within the U.S.  The potential complications of the international reach of the product need to be discussed at some point, as well... I just have little insight to offer in that respect.)

To me, the cooperative concept is the most intriguing.  Very unfamiliar with all of the ins and outs of it, however.

My own familiarity is with the S-corp structure, but I think it has a problem in that it has a limit on the number of shareholders allowed (100, IIRC).  My understanding is that LLCs are more flexible in that regard, with no upper limit.  The pass-through taxation feature of either of these entity types is potentially problematic, although I readily admit worrying about having enough profits to warrant concern about the impact on any shareholder's tax liability seems a bit premature at this stage...

Our Articles of Incorporation are going to be key.  With the number of shareholders we're talking about, spelling out the rights and responsibilities in painstaking detail is the only way anyone is going to remain sane moving forward.  I've been a part of companies with only a half-dozen shareholders that nearly ripped themselves apart over disagreements on direction... 6000 shareholders gives me nightmares just contemplating the potential carnage.

[dwturducken]

Yup.  Post count.

Well, THAT's not an accurate metric of authority! 

[jacknomind]

It isn't authority.  It's how much XP you're worth when defeated.

[Olantern]

On corporate structure:

(All the following assumes initial incorporation within the U.S.  The potential complications of the international reach of the product need to be discussed at some point, as well... I just have little insight to offer in that respect.)

To me, the cooperative concept is the most intriguing.  Very unfamiliar with all of the ins and outs of it, however.

My own familiarity is with the S-corp structure, but I think it has a problem in that it has a limit on the number of shareholders allowed (100, IIRC).  My understanding is that LLCs are more flexible in that regard, with no upper limit.  The pass-through taxation feature of either of these entity types is potentially problematic, although I readily admit worrying about having enough profits to warrant concern about the impact on any shareholder's tax liability seems a bit premature at this stage...

Our Articles of Incorporation are going to be key.  With the number of shareholders we're talking about, spelling out the rights and responsibilities in painstaking detail is the only way anyone is going to remain sane moving forward.  I've been a part of companies with only a half-dozen shareholders that nearly ripped themselves apart over disagreements on direction... 6000 shareholders gives me nightmares just contemplating the potential carnage.

This is the sort of thing we need to consider.

Assuming we don't use a structure where every subscriber is an owner, and we go with something more along the lines of an LLC or an S-corp, how many shareholders should there be?  (Numbers could be reduced through things like indirect contributions through crowdfunding systems, though that's fraught with other perils.)  Note that if they're shareholders rather than part-owners, as in a co-op, at least we don't have to worry about running the business equivalent of the Athenian Assembly, only much larger, where everyone can affect every single decision.

More importantly, what should the powers of individual shareholders be?  My inclination would be to treat it like most (C) corporations, where shareholders act only indirectly, by electing the board of directors.  That just kicks things over to questions like, "How many, and which, people are on the board?" and then, "Who are the officers, and what are their duties?"

It's probably time to cruise through the SBA website again and take a look at these things.

[Mantic]

The #1 reason I am not enthused about "Plan Z" is: if you only duplicate what it is legal to duplicate, you will not be any closer to City of Heroes than Champions Online. Probably farther away, because Cryptic had the good will of NCSoft in taking the project with them -- likely negotiating to keep some elements that were initially developed as part of the CoH franchise.

If Titan gets to the point where the only legal option remaining is to develop a new game (and that's where things should be before even considering it), then it seems certain NCSoft will be hostile to the effort and looking for any angle to claim IP infringement. The flexible AT class and power system is easily identifiable as a unique design, and that is the core of City of Heroes gameplay. If you've ever been a pen & paper RPG player this should be obvious -- under all the purty graphics and the very minimal twitch skill involved in the control scheme, that is the game. Just about everything else could be done differently and we might still recognize CoH under there somewhere, but not that.

So it bothers me to see so much energy spent right now on plotting and planning for this, which does not (can not) bring City of Heroes back in any recognizable way. The superhero theme is superficial.

If you ever get to the point that no other option remains, and you still have enough people willing to stay aboard knowing that systems inherent to CoH are off-limits, probably the best way to look at it is as a new game from scratch. It is possible to do better than City of Heroes' costume designer (very much so), it is possible to design less walled-in zones or even tech to stream map data for a contiguous map of an entire city (much larger boroughs, anyway), and it isn't even terribly hard to dream up a world more recognizable as the backdrop to superhero adventures. Maybe that would be enough to make it worth the effort...

[castorcorvus]

The #1 reason I am not enthused about "Plan Z" is: if you only duplicate what it is legal to duplicate, you will not be any closer to City of Heroes than Champions Online. Probably farther away, because Cryptic had the good will of NCSoft in taking the project with them -- likely negotiating to keep some elements that were initially developed as part of the CoH franchise.

If Titan gets to the point where the only legal option remaining is to develop a new game (and that's where things should be before even considering it), then it seems certain NCSoft will be hostile to the effort and looking for any angle to claim IP infringement. The flexible AT class and power system is easily identifiable as a unique design, and that is the core of City of Heroes gameplay. If you've ever been a pen & paper RPG player this should be obvious -- under all the purty graphics and the very minimal twitch skill involved in the control scheme, that is the game. Just about everything else could be done differently and we might still recognize CoH under there somewhere, but not that.

So it bothers me to see so much energy spent right now on plotting and planning for this, which does not (can not) bring City of Heroes back in any recognizable way. The superhero theme is superficial.

If you ever get to the point that no other option remains, and you still have enough people willing to stay aboard knowing that systems inherent to CoH are off-limits, probably the best way to look at it is as a new game from scratch. It is possible to do better than City of Heroes' costume designer (very much so), it is possible to design less walled-in zones or even tech to stream map data for a contiguous map of an entire city (much larger boroughs, anyway), and it isn't even terribly hard to dream up a world more recognizable as the backdrop to superhero adventures. Maybe that would be enough to make it worth the effort...

Friend, there are 3 good reasons to entertain plan z:

1: By getting a rough draft started, we will be able to get a serious effort underway should the axe finally fall - goodness forbid.
2: By keeping the thought of COH surviving in any form, it keeps hope alive in this forum and in the gaming community.
3: We are already doing all we can short of harrassing potenetial investors, which to me sounds like a good way not to find one, by fooling around with plan Z we can stay connected on the speculative basis that was stripped from us when the game canceled the next issue.

Though I agree that it would be difficult, we can toe the legal line and come up with thousands of ideas for plan z. At any rate, why would NCsoft worry about trying to shakedown a community of gamers, over a franchise they decided to kill? Legal costs go two ways, and there is a good chance that they'de be wasting thier time and money in a fight they would gain next to nothing from.

[Mantic]

Though I agree that it would be difficult, we can toe the legal line and...

I don't even think it's worth mentioning how difficult the task is. My point was: you can not toe the legal line and still recreate City of Heroes. Nor would any game developer really want to. Nope, probably not even Matt Miller, who's been there and done that. When you are looking at working for many months or years to realize a game, you want to put your fingerprint on it and do something that hasn't been done. Worse, unless you have a Peter Molyneux, Sid Meier, Will Wright or similar authoritarian design lead, that applies to just about every contributor -- leading to a product that doesn't look much like anything anyone imagined going in (been there).

It's cool if this situation lights your fire and you're inspired to jump into game development as an outlet for the creative energy you were putting into your CoH life. But City of Heroes players should not assume that you can or will recreate this experience, or throw their money at your project based on such an unrealistic expectation.

[dwturducken]

It isn't authority.  It's how much XP you're worth when defeated.

This is the first post on these boards, since "the hammer dropped," that has made me laugh out loud!  Thank you.

I would add to castor's points that it gives some of us something to do.  For many of us, sitting and waiting does not come easily.  The letters are written, the media contacts are being explored, and the social media is being stroked.  Aside from the letter, that takes a few minutes. Then what?  We know that there are people who can do things, and they are doing them and keeping us as up to date as they can.  For some of us, it's put focus into something like Plan Z or troll dissenting bloggers and news articles.

The usefulness of Plan Z, whatever the ultimate outcome from negotiations with NCSoft, is still there.  If the game is saved, then there is a wealth of stuff for people to start building in Architect. If the game is saved but not the studio, there's the potential for at least some of the ideas in Plan Z to make it to whatever studio ends up taking over. I had to have this explained to me, too, but it's not a wasted effort, as long as it doesn't detract from the main effort.

Yes, something will be lost if Plan Z has to be fully developed.  It's a spiritual successor, and one of the biggest aspects, for me, of CoH was that is was a game by fans for fans.

That's Plan Z.

[DamianoV]

I actually think a (C) corp would be cleanest, all around, but...

On the prospect of selling shares: anyone familiar with SEC rules and regs?  Assuming we went the corporate route, how much issue is there with selling shares on a nationwide basis to people who are not licensed investors?  I'm not sure of all the rules and restrictions, but I've watched people get orange jumpsuits for seemingly similar efforts... not an item high up on my to do list. 

My vague recollection is that a private company selling shares is limited to employees and family.  Going public means getting the SEC, FINRA, and so on involved... none of which is free.

And the above is a big part of why a cooperative sounds so intriguing...

[dwturducken]

OK, one thing that isn't yet clear, and likely won't be until we hear some actually actionable (settle down, lawyers!) news from NC or Paragon or someone else actually at the negotiating table, is what our precise intent is going forward. Right now, we're a mob.  There are some clear leaders and organizers, and more than a few vocally active participants, but it's still not any kind of body that fits any other label.

Let's say, just for the sake of argument, that I had a cousin who was high up in the legal department of a major corporation in Detroit. How would I intelligently phrase a question to this hypothetical relative as to what our best options would be, completely throwing out the option of me saying, "Hey, Cousin, can you read this forum thread and give me your opinion?"

Based on this thread and a couple of posts over in Sunset, I know what it is that we're trying to figure out, but how would I phrase an intelligent question to a lawyer who is, you can well imagine, very busy?