A thought about the various mods popping up...

[mikoroshi]

Meaning, the mods that let you access the character creator, the demorecord files, and adjust the camera...

Since the legality of these programs is questionable at best, I'd recommend decentralizing.  To the makers of these programs: Get your files on some P2P system ASAP once they've been polished.  No host = less issues if NCSoft decides to bring the hammer down.

[Aggelakis]

Demorecord and camera stuff aren't even close to being in the legal gray area. Demo playback was a feature of the game client, which we are not required to remove. The community staff were actively encouraging people to demorecord to enjoy your characters and the various maps after closure.

The costume creator is closer to gray area, but likely still OK. IANAL but the old-school Asian costume creator is still out there, and not being actively penalized (the same host has been hosting it for almost three years now at the same URL). Don't see how they'd go after Codewalker's but not that one.

[emu265]

Some caution might be warranted, but even Codewalker's "Icon" is simply letting us look at the character creator basically.  He's not selling it and we're not playing a game.  Everything there is data we have on our machines anyway (please correct me if I'm wrong) so long as the beta client is installed.

[Adrenalin]

Too late now! Someone made a Youtube video.

http://www.youtube.com/watch?v=BgXYt0kYeNg

[The Fifth Horseman]

Interesting.

If they sent a C&D, I'm fairly sure the only thing NCSoft would gain is some first-hand experience of the Streissand Effect. 

[Kistulot]

While everyone has already expanded on the reasons that this seems unobjectionable in any legal sense (common sense has stopped applying in this scenario since a certain Friday so we can just ignore that for the time being) I still think a good thumbs up remains to be given for reminding us to be ever cautious so... three cheers and a thumbs up to that!

This program has been thoroughly fun and amazing, and it gave us all a little something that I don't think we expected to get. Playing around with the options we never had (Sybil Robes! YES!) has for me made it feel like this isn't a "Best we can get of what we had" and instead a "Well, if this is all we've got, LET'S MAKE IT ROCK!"

Thanks for being awesome Codewalker, and thanks mikoroshi for keeping a cautious thought in mind while the rest of us are busy squealing

[Arachnion]

This is why I love this community.

 

[SeaLily]

I think being too worried about potential legal ramifications from a company that were a bunch of assholes to us is holding a lot of progress on stuff like private servers back anyway.  People should make mods and whatever without worrying about any of that.  If NCsoft object, THEN you deal with it or remove it or whatever steps are necessary.  Until they do, there's no reason to walk on eggshells or be worried about the legality of modifying or hosting a dead game.

They don't want the western market, so who cares what they think?  Really?  Get stuff made and get it out there. It'll live on via others hosting it even if they shoot you a cease-and-desist (which is all they would do).

[Golden Girl]

It's hard to see how any of this is illegal - all these programs do is access files already on your computer which you paid for when you purchased the game.

[Zekiran]

^^ That in a nutshell. It doesn't alter the files (save for the mac install, I suppose) and all it does is observe what we paid for in the first place.

Plus, NC has said not one word about anything for months. We told them in no uncertain terms we wanted to throw money at them - any legal action on their part is going to have to take that into account, plus wasn't the legal action *required* to take place in either San Jose or Austin? I can't recall the eula's specifics just now, but generally to avoid too many entanglements on their part, they often write in some moronic clause to dissuade people from suing THEM. I would imagine it must work in our favor, at this point, if any judge decided to look it over they would see so many clear issues on their side...

Ah well.

No LEGIT titan-folk charge for anything, either, so... substantive claims for 'losses' would be impossible too.

[Kistulot]

I think being too worried about potential legal ramifications from a company that were a bunch of assholes to us is holding a lot of progress on stuff like private servers back anyway.

I assure you, this is happening.

But there's something we don't want to do, and thats make it so NCSoft feels pressured to shut us down before we even get rolling.

They have an obligation to protect their interests - and its reasonable to expect them to do so. While I agree with your sentiment about boldly charging ahead regardless, I'd rather do it in a way that draws the least potential reprisal as possible.

On the other hand, if this is keeping YOU from making me able to run around in Atlas schooling Skulls, then shame on you! :p

[Zekiran]

The fact that they didn't even take two looks at the "new city of heroes" facebook or website pages leads me to believe that they aren't going to do much if anything. They've tied their hands already, and frankly I think that we as "want-to-be customers" have more of a leg to stand on than they do.

[Codewalker]

The fact that they didn't even take two looks at the "new city of heroes" facebook or website pages leads me to believe that they aren't going to do much if anything. They've tied their hands already, and frankly I think that we as "want-to-be customers" have more of a leg to stand on than they do.

That we know of.

At the moment, "New City of Heroes" is nothing more than a dumb facebook page making ridiculous claims and not following through on them. There's a not a shred of evidence that they actually have a server running. People using a logo to make themselves look foolish is probably fairly low on their priority list.

Also, legal action takes time.

[srmalloy]

At the moment, "New City of Heroes" is nothing more than a dumb facebook page making ridiculous claims and not following through on them. There's a not a shred of evidence that they actually have a server running. People using a logo to make themselves look foolish is probably fairly low on their priority list.

And it's entirely possible that "New City of Heroes" may prove to be a useful stalking horse. If NCSoft looks and finds a public and laughably subcompetent 'attempt' at recreating the CoH server, it may relax them so that they'll slack off on looking for the competent and discreet development projects.

[GuyPerfect]

I assure you, this is happening.

You bet it's happening.

Oh, did you mean the "holding back" part?

[The Fifth Horseman]

Any copyright / EULA issues aside (and there are some interesting prior verdicts related to reverse engineering), "New City of Heroes" is committing active trademark infringement. Ignoring that is bad for NCSoft for a few reasons.

Disclaimer: I am not a lawyer. These are just quick pointers from research related to the subject I've done before for other purposes.

Apparently, if a company fails to police a trademark (ie send cease & desist messages to infringers or pursue legal action against them),

Inaction in policing your trademark can lead to a bar to sue for trademark infringement. In addition, failure to prosecute infringers usually is evidence of a weak mark.  As a result, challengers can petition the USPTO to cancel your trademark registration.

Now, Eschelbacher's little website and facebook page both misappropriate the City of Heroes trademark - both in form of name and logo.

However, there's also the other side of the coin - namely limitations of where trademarks can be applied:

Trademark rights only protect the particular type of goods and services that the mark owner is selling under the trademark. (...) generally, if you are selling goods or services that do not remotely compete with those of the mark owner, this is generally strong evidence that consumers would not be confused and that no infringement exists.

The mark owner (ie NCsoft) has rather publicly terminated sale of goods or services under the City of Heroes trademark.

Also note:

Abandonment of trademark is understood to happen when a trademark is not used for three or more years, or when it is deliberately discontinued; trademark law protects only trademarks being actively used and defended.

Hmm. Could NCsoft's closure of the game and termination of all associated content, information websites and social media linked to it be construed as a deliberate discontinuation? Either way, the clock started ticking December 1st.

In other words? If NCsoft does not react, the trademark may end up losing value and consequently associated properties would also be taking a hit.

[Zekiran]

^^ that is exactly how I understand the process to work. The precedent I know of is the old Robotech show - where the original holder of the rights to it lost those rights because they didn't DO anything with them. Trademark is much more stringent than copyright in that regard, as you MUST present the office with something *actually tangible* in order to maintain the mark. This is why every few years, Marvel would come out with the obligatory "appearance of Howard The Duck" in order to maintain that it was still, even in some small way, actually using the item.

NC has dropped this product like a freaking rock. Honestly I believe that if it came down to "us versus the big bad corporation", we could EASILY prove that we'd done everything in OUR power to maintain THEIR property, and without them even bothering to give us the time of day about it, "their" trademark is literally worthless.

It is absolutely baffling.

[Tahquitz]

Just wanted to mention, there's difference between Trademark and Copyright.

Not a lawyer (don't like the acronym IANAL, it just sounds wrong), just finished a Political Science class this semester.

http://www.uspto.gov/trademarks/basics/trade_defin.jsp
http://www.copyright.gov/circs/circ01.pdf

Nevermind the trademarks, the finished program is copyrighted. 

Icon SHOULD be in the clear since it doesn't edit the Intellectual Property in question nor does it make the game fully "work" once more against the will of NCSoft (whereas Demorecords do work and by allowing players to make demorecords/not putting in instructions in NC Launcher to killswitch the client or automatically uninstall the client at the end of service... And as mentioned, staff during shutdown encouraged demorecord use... you get the idea, it would be hard to prove in court that this behavior was not allowed).  Much like the PIGG Viewer, NCSoft condoned it's use, but AFAIK they didn't C&D them from making PIGG Viewer stop being offered for public download. (I might be wrong about that, please share if I am. My best resource has a Closed sign on it right now.)

And it's honestly chasing after small fries: the costume creator and demorecords are a small percentage of the client's total functionality... (not saying demorecording is a small part of the client, mind you, just that it's not the game: even with Demorecording it's "read only" use of the client, save for the editing of the text files feeding the function that ARE NOT part of the client's code.) Once someone makes something that approaches 50% or higher utilization of the client's capability, then NCSoft serving notice to cease and desist would be expected.