A question for the resident legal eagles: Distributing the CoH client

[Quinch]

Namely, how would it stand legally? With Icon being fully functional, it would be a great tool to show people just how versatile the character creator is. But this depends entirely on whether it would be legal to do so - we can't afford to lose the moral high ground.

Thoughts?

[TimtheEnchanter]

Namely, how would it stand legally? With Icon being fully functional, it would be a great tool to show people just how versatile the character creator is. But this depends entirely on whether it would be legal to do so - we can't afford to lose the moral high ground.

Thoughts?

Based on how the SWG emulators are handling it, it's gray area to hand out the software to people. Gray enough that it would give a company far more reason to launch a legal attack than just writing a modded launcher to point to a server running on original code. By only using legit copies of the client, nobody is "pirating" copyrighted assets.

[Quinch]

So basically, wobbly enough to be more of a liability than an opportunity? I assume the same principle would extend to a stripped-down version of the client {i.e. only containing the files needed for Icon to work}?

[TimtheEnchanter]

Yeah, I wouldn't recommend it. Perhaps the standalone City of Hero character builder could be modified and used. The EULA on that one might be more lenient on redistribution... IF anyone can find a copy of it.

[TonyV]

I'm almost certain that it would be illegal to distribute the game client.  However, I'm also almost certain that unless we put up a web site saying, "DOWNLOAD IT HERE!", that is, if people started sharing it amongst themselves, no one would ever get prosecuted for anything for it.  I seriously doubt that NCsoft is paying much attention to what individual players are doing in this area.

[Quinch]

Got it. Still, since it would be easy for NCsoft or associates/sympathizers to spin it that way, maybe it would be best to nuke this thread.

[Golden Girl]

This is why I've been telling people not to delete the game - if you still have CoH on your computer, then you have the game files that you legally paid for, downloaded and installed when you first bought the game.

[Quinch]

Technically, anyone could have downloaded the client for free.

[The Fifth Horseman]

Yeah, I wouldn't recommend it. Perhaps the standalone City of Hero character builder could be modified and used. The EULA on that one might be more lenient on redistribution... IF anyone can find a copy of it.

NCSoft was cracking down on redistribution of that one as well. It's not fully compatible with the current data either.

Technically, anyone could have downloaded the client for free.

Technically yes, but NCsoft still controlled the distribution and usage. You'll find that many companies can - and will - object to people passing on further things they themselves are giving out for free. It's a question of control.

[Peregrine Falcon]

"Is it legal" is a difficult question. There are almost two hundred different countries on this planet, all with their own set of laws and legal precedents. So let's just stick with the United States and the European Union. Also it just depends on exactly what you're planning on distributing, and how.

You can write and distribute your own code. If this bit of code allows me to modify my City of Heroes client on my own machine and then access the character creator, or any other part of the game, that is completely legal. So even if this code allowed me to play the entire game, on my computer, it'd be completely legal in those two countries. Even if you sold this program/bit of code for money it'd still be legal.

It might be against the EULA, but that only allows NCSoft to stop allowing me to access their servers, which they've already done.

Now, if the code that you write contains a portion of the CoH IP, like mission text, then that is actionable. Meaning that they could sue the person/company in order to get them to cease distributing this code. This is how companies shut down private servers. Running a private MMO server is not itself in any way illegal. It's the use of their IP without their permission that is the problem.

Likewise if what you sell/distribute for free contains a portion of the CoH code then that is also actionable. They own the code just like they own the IP and you can't sell it, or even distribute it, without their consent.

That being said, if a single person puts a copy of the unmodified CoH client up on the internet and allows people to download it for free, NCSoft probably won't bother to sue. It's not worth their time and money. And a good attorney might be able to convince a judge that since NCSoft allowed us to download the client for free from their site then they have no legal right to stop us from distributing the client for free. This would set a precedent that no MMO company wants so it would actually be against their interests to sue in order to stop free distribution of the unmodified client. Which doesn't mean that they might not try to stop it anyway.

Anyway, this is why I've posted in the past that if anyone does manage to get a private server up and running that they should have it running on a server that's physically located in one of the myriad nations that won't cooperate with the US and SK. In this way the server would be legal "in that country" and there'd be nothing that NCSoft could do about it unless they want to spend a lot of money bribing local officials.

P.S. Nothing that I've said should be in any way be construed as legal advice. If you're planning on distributing or producing anything then you should disregard everything I've said and speak to a qualified attorney in your local area.

[Little Green Frog]

yes, but NCsoft still controlled the distribution and usage. You'll find that many companies can - and will - object to people passing on further things they themselves are giving out for free. It's a question of control.

This is true but just because a company deems something illegal, it doesn't automatically make it so. Have in mind that it is a well known and widely abused scare tactic to send letters filled with threatening legal lingo to people to whip them into submission even though the basis for the claims is questionable or has never been proven in court.

Back to the original question: the answer is somewhat complicated and relies on many factors. First it depends where the server hosting the files is located as it usually the law of the country it is physically placed that regulates such things. What would be illegal in US, could be legal in EU and vice versa.

Second, well, for years the game was distributed for free and was widely available from NCsoft servers as well as many unauthorized mirrors. In case NCsoft would be interested in pursuing a person who is distributing the game client now that the game servers are closed, they would need to prove that the act of closing the servers somehow changed things and that the court should ban something that they previously deemed perfectly okay for 8 consecutive years. I think they would be at a disadvantage here.

Third, what is the worst thing that could happen to you if you were to host, got dragged you to court and lost? The most likely outcome would be that the court would tell you to stop redistributing the file and that's it. There are no damages to speak of, since the client never generated money for the company and I am assuming you weren't taking money for it either.

In truth, I doubt that NCsoft would take any real legal action, though. Most likely they would send you a few angry letters if they knew who you are in the first place and if that didn't work, tried to argue with the hosting company that the file should be taken down. If that failed as well, they'd probably give up.

So to sum it up - you probably won't get a merit badge for it, but illegality of you redistributing the game client is doubtful and it would be up to NCsoft to prove it.

edit: whoops, Peregrine Falcon beat me to it.

[Starsman]

This is true but just because a company deems something illegal, it doesn't automatically make it so.

In this case, they don't need to dim it illegal, because it already would be illegal. Let's say I make a game, I make it available for free for a temporary amount of time (day, week, decade, who cares, it's my license) and then either resume charging or cancel all distribution.

Just because I gave it away for free for a period of time (regardless how long) does not make redistribution any more legal.

Now there are minor nitpicks, it's very hard to even prosecute someone for a single redistributed copy, almost no one goes after people that burn CDs for friends, for example. Easy targets become so once they host something online and it becomes available for distribution to potential thousands or millions (I think in the old days of VHS copies FBI had a definition of copying lab as a lab that was making over 3k copies a month due to these same reasons.)

Anyways: yes, redistributing the client is purely illegal. Nothing gray about it. Not all illegal action gets prosecuted, but just because you are ignored for long periods of time does not turn your actions into sanctioned ones. In fact, allowing distribution rings to grow to a point that makes them easier to prosecute is a common anti-piracy "war tactic".

Anyways: again, no grayness, no complications, this will be illegal on the US, Europe and any country that has a trade agreement with the US.

Can you host things outside this network? Perhaps, but that does not clear you up. You would have to be extremely secretive, although the government can't shut down a server hosted, let's say in Cuba, you still may be discovered as the one behind the distribution if you don't keep it very discrete.

Second, well, for years the game was distributed for free and was widely available from NCsoft servers as well as many unauthorized mirrors. In case NCsoft would be interested in pursuing a person who is distributing the game client now that the game servers are closed, they would need to prove that the act of closing the servers somehow changed things and that the court should ban something that they previously deemed perfectly okay for 8 consecutive years. I think they would be at a disadvantage here.

Again, to clear this bit up: not true. As a copyright owner, I have full power to discontinue distribution. I may think I have an asset I can sell; I may be planning to sell a single player version of the game... I don't even have to prove it, it is simply my right and no one can take it away from me. It's my property and I can handle it whatever way I want (within legal limits that are darn broad for an owner of the IP.)

There is nothing you can prove in court to ever make free distribution of software legal if it's owner just does not want it to happen.

Third, what is the worst thing that could happen to you if you were to host, got dragged you to court and lost? The most likely outcome would be that the court would tell you to stop redistributing the file and that's it. There are no damages to speak of, since the client never generated money for the company and I am assuming you weren't taking money for it either.

Statutory Damages.

In the US this would mean up to $150,000 per work. Distributing the game client can be insanely tricky, because they may not prosecute you for pirating the package, but instead pirating individual assets. If they manage to prosecute per pigg file alone that can go very nasty very fast. If they manage to prosecute per costume piece... that's nightmare inducing.

In truth, I doubt that NCsoft would take any real legal action, though. Most likely they would send you a few angry letters if they knew who you are in the first place and if that didn't work, tried to argue with the hosting company that the file should be taken down. If that failed as well, they'd probably give up.

Due to high cost of litigation, it's very likely the first step will simply be to send a DMCA takedown notice to the host. If it's a torrent distribution then things can get much more personal in a heartbeat.

So to sum it up - you probably won't get a merit badge for it, but illegality of you redistributing the game client is doubtful and it would be up to NCsoft to prove it.

I want to repeat this bit just for clarity: the illegality is not doubtful in any way. It would be illegal. No "buts" about it. The only thing that may be doubtful is NCSoft's willingness to drag the legal battle, but I dare bet anyone in these forums has way less disposition to drag a legal battle than NCSoft.

Only stance this can be legal is if you physically live in a country that likely is already under some trade embargo, or very awkward legal stance with the US or EU, something that would make it hard for you to even get a game account before cancelation too.

[Little Green Frog]

It would be up to the court appropriate for the country the server is located in to determine the illegality of hosting such file. There is no defendant yet. Also I am not a judge. Maybe you are, but your statements are not legally binding. So instead of getting into pointless argument, I will simply try to straighten up a few misconceptions in your post.

Anyways: again, no grayness, no complications, this will be illegal on the US, Europe and any country that has a trade agreement with the US.

First, the world does not operate under US law. Second, EU has no unified copyright law - every member country regulates these issues individually. This is one of the reasons the ACTA initiative was created - to make the trade and copyright law across well developed countries more universal. It failed, though, due to the public outrage in most European countries and the EU Parliament subsequently canned it.

I want to repeat this bit just for clarity: the illegality is not doubtful in any way. It would be illegal. No "buts" about it.

Your legal assumptions can work only if US law is applied (okay, maybe, I am not really buying it), but again, the world does not operate under US law.

Again, to clear this bit up: not true. As a copyright owner, I have full power to discontinue distribution.

Do you? Let's assume you own the rights to a work of a famous writer. Do you expect every bookstore and library to remove a book you have published from their shelves and burn it just because you say so? Of course not. However, as the debacle with the Kindle edition of George Orwell's Nineteen Eighty-Four shows, copyright owners would really love it if they could do just that in the digital world. The difference being in the physical world the copy already exists, while in the digital world the copy is being produced on demand, by sending bits over a wire. Currently no country has a definite answer how to tackle this problem and differences in what is and what isn't permitted vary greatly even in such perceivedly homogenous legal environment as EU.

Actually what we are discussing here is nothing new. It's been ran to the ground before in regards to so called abandonware. Which, may I remind you, is still scattered all over internet. Abandonware is not a legal term, although I have not heard about a single successful lawsuit against an abandonware hosting website. Can CoH client be treated as abandonware for practical purposes? I believe there is no difference between it and any other piece of perceivedly abandoned software hosted by one of many dedicated websites.

Only stance this can be legal is if you physically live in a country that likely is already under some trade embargo, or very awkward legal stance with the US or EU, something that would make it hard for you to even get a game account before cancelation too.

I may sound like a broken record, but the world does not operate under US law and EU is not a homogenous legal environment.

edit: clarity

[Starsman]

It would be up to the court appropriate for the country the server is located in to determine the illegality of hosting such file. There is no defendant yet. Also I am not a judge. Maybe you are, but your statements are not legally binding. So instead of getting into pointless argument, I will simply try to straighten up a few misconceptions in your post.

There are only two parties that are involved in ownership of this IP: Korea and the US. It has made very noisy news how countries will ... what's the word... extradite? Copyright infringements to the country of the IP ownership to be judged there.

First, luckily the world does not operate under US law. Second, EU has no unified copyright law - every member country regulates them individually. This is one of the reasons the ACTA initiative was created - to make the trade and copyright law across well developed countries more universal. It failed, though, due to the public outrage in most European countries and the EU Parliament subsequently canned it.

ACTA did not pass (and good thing!) but there are older trade agreements in place, they heavily involve extradition. If you happen to be from the UK (or anywhere in Europe) you likely heard about this particular case.

Do you? Let's assume you are a distributor of tangible, physical goods. Say a book publisher. Do you expect every bookstore and library to remove a book you have published from their shelves and burn it just because you say so?

OK stop there. You are now changing topics to physical good transfer, that's NOT the same. Copyright is about copying. Closest example would be: if the bookstores retain my discontinued books but only sold or gave away photocopies. THAT is illegal. Bookstore keeps the book in a library where anyone can read it or borrow it? That's legal.

BTW, I do think that Amazon's actions deleting content from my device should also be illegal. They are getting around it for now with "licenses" being given, not actual product, but I think it's something that laws should be rewritten for in every country possible.

Currently no country has a definite answer how to tackle this problem and differences in what is and what isn't permitted vary greatly even in such homogenous legal environment as EU.

No country has an answer you may like, but every country has it's very definitive answer, and for the most part the trade agreements will make sure you get judged in the "victimized" country court system.

Actually what we are discussing here is nothing new. It's been ran to the ground before in regards to so called abandonware. Which, may I remind you, is still scattered all over internet. Abandonware is not a legal term, although I have not heard about a single successful lawsuit against an abandonware hosting website. Can CoH client be treated as abandonware for practical purposes? I believe there is no difference between it and any other piece of perceivedly abandoned software hosted by one of many dedicated websites.

Lack of interest (or resources) to enforce copyright ownership should never be confused with entitlement to copy. Most "abandonware" is still very much illegal, but freely distributed without fear because ownership is in the hands of some one that either does not care, has no resources to fight it or some dead company stuck in void somewhere. It's not unheard that such IPs may resurge in the hands of a new company that will enforce their legal rights.

Note: I am not saying I agree with these notions, I am saying they are very well documented and legally established. Illegal does not equate immoral or wrong, simply that there are laws against it, some with very clear punishments or compensations associated with them. Trade agreements (that many do opose precisely because of what you say) are also very overreaching, but also real.

[Little Green Frog]

There are only two parties that are involved in ownership of this IP: Korea and the US. It has made very noisy news how countries will ... what's the word... extradite? Copyright infringements to the country of the IP ownership to be judged there.

ACTA did not pass (and good thing!) but there are older trade agreements in place, they heavily involve extradition. If you happen to be from the UK (or anywhere in Europe) you likely heard about this particular case.

Extradition laws are again a very individual thing. Remember Roman Polanski? He's been sentenced for prison by US court. He lives in France, though, so he can enjoy his freedom, as France does not extradite its citizens. Were he to travel to UK or Spain, however, he would probably be arrested and extradited immediately.

OK stop there. You are now changing topics to physical good transfer, that's NOT the same. Copyright is about copying. Closest example would be: if the bookstores retain my discontinued books but only sold or gave away photocopies. THAT is illegal. Bookstore keeps the book in a library where anyone can read it or borrow it? That's legal.

Except in my country every library has a photocopier for the sole purpose of copying books hosted by it. Which is, according to my country's law, perfectly legal as long as you do that for your own use. And then there's also fair use, which permits you to duplicate virtually any intellectual property under certain circumstances, and they include but are not limited to your previous ownership of the product. For example you can duplicate certain product for, as the law states it, research purposes. It's a true blessing for college students, because kids here do not need to spend a small fortune on textbooks alone.

My country is a member of EU, by the way. It's nuances like these that make copyright law very unpredictable. What is legal here, may be illegal over there, but english speaking countries appear to be at the vanguard of prosecuting for copyright infringement. Other countries can be much more relaxed in this regard.

BTW, I do think that Amazon's actions deleting content from my device should also be illegal. They are getting around it for now with "licenses" being given, not actual product, but I think it's something that laws should be rewritten for in every country possible.

I wholeheartedly agree with this.

No country has an answer you may like, but every country has it's very definitive answer, and for the most part the trade agreements will make sure you get judged in the "victimized" country court system.

This works only if countries in question have very close trade agreements. The kind US, UK and Australia share. But not necessarily the same US has with Spain, France or the EU as a whole. Here's an example, which does not concern copyright law, but I think it is still a good illustration of how complicated international law is and that something what you'd deem illegal, isn't even if it boggles the mind.

There is this case of a hateful far right website. It is written in my native language and the intended target audience are residents of my country. It lists personal info of liberal politicians, LGBT activists, immigrants, etc. and deems them enemies of the state and the race. The thing they are doing, that is hate speech and propagation of racism, is considered to be a criminal offense by my country's law. It can't be shut down, however, because it is operated from US servers and American DoJ refutes every claim the DoJ of my country makes stating the contents of the website are covered by the First Amendment and since the website is operated from US, US laws apply.

International law is a very complicated thing. So much so that even big wigs with large budgets and a clone army of attorney at their disposal can't really predict how it will play out if the go to court. Apple has learned this the hard way recently when they tried to ban Samsung from selling its tablets in UK, Germany, Netherlands, Japan and few other countries on the grounds of patent infringement. It lost in all of the listed above. The same claim is being argued in US, with several trials and varying outcomes.

Lack of interest (or resources) to enforce copyright ownership should never be confused with entitlement to copy. Most "abandonware" is still very much illegal, but freely distributed without fear because ownership is in the hands of some one that either does not care, has no resources to fight it or some dead company stuck in void somewhere. It's not unheard that such IPs may resurge in the hands of a new company that will enforce their legal rights.

I am not saying you are entitled to share the game client. I am more hinting that if you do your research, choose the right country to host the file and don't share your personal info, you are most likely going away with it, because it is highly improbable that a copyright owner would be willing to make a case against you redistributing something they provided for a service that no longer exists and that was for years available free of charge from various sources (and presumably still is).

In other words I am not saying it is legal. I am saying illegality of it may be questioned depending on the location of the server. As twisted as it may be, in the world of lawyers that makes a huge difference.

[Starsman]

Except in my country every library has a photocopier for the sole purpose of copying books hosted by it. Which is, according to my country's law, perfectly legal as long as you do that for your own use. And then there's also fair use, which permits you to duplicate virtually any intellectual property under certain circumstances, and they include but are not limited to your previous ownership of the product. For example you can duplicate certain product for, as the law states it, research purposes. It's a true blessing for college students, because kids here do not need to spend a small fortune on textbooks alone.

Fair use laws are everywhere, but other than duplication for personal use of personal property, they don't really allow you to copy anything on its entirety. They give limited licenses to grab few minutes here and there of a video or song, or pages of a book, etc. I used to work in a library and we did have photocopiers. I actually worked in that room. My job involved to provide technical assistance, change, and make sure no one started photocopying entire books.

There is this case of a hateful far right website. It is written in my native language and the intended target audience are residents of my country. It lists personal info of liberal politicians, LGBT activists, immigrants, etc. and deems them enemies of the state and the race. The thing they are doing, that is hate speech and propagation of racism, is considered to be a criminal offense by my country's law. It can't be shut down, however, because it is operated from US servers and American DoJ refutes every claim the DoJ of my country makes stating the contents of the website are covered by the First Amendment and since the website is operated from US, US laws apply.

The beauty of free speech  :) But I assure you, if whoever hosted the site also hosted some illegal MP3s, they would shut the thing down in a second and should you want to prosecute them, they would be sent your way.

Trade agreements dont have a point here because only things that affect the economy of trade are in those Free Trade Agreements.

Apple has learned this the hard way recently when they tried to ban Samsung from selling its tablets in UK, Germany, Netherlands, Japan and few other countries on the grounds of patent infringement. It lost in all of the listed above. The same claim is being argued in US, with several trials and varying outcomes.

I followed those very closely, and they actually sort of prove my point. The fact that every single of those countries accepted Apple's case from the start, over US Patents, is a big thing. Unfortunately the nature of patents is very very nasty, copyright law is nice, patent law a cancer. But due to the nature of patents, you don't just claim ownership of something, you must go through painstaking process of proving the competition is actually doing things in the exact way your patent specifies, so those are very expensive, and slow, cases that are likely to yield different results based on the judge or jury in charge.

Anyways, I can rant about patents for ages.

In other words I am not saying it is legal. I am saying illegality of it may be questioned depending on the location of the server. As twisted as it may be, in the world of lawyers that makes a huge difference.

And that's one thing I wanted to clarify: it's not based on the location of the server; it's based on your location. You can try to rely on secrecy but should you not actually be on the copyright haven country, you are still committing an illegal act, and secrecy is not always a reliable tool.

[dwturducken]

Monty Python

Therefore, your argument is invalid.

[Little Green Frog]

Fair use laws are everywhere, but other than duplication for personal use of personal property, they don't really allow you to copy anything on its entirety. They give limited licenses to grab few minutes here and there of a video or song, or pages of a book, etc. I used to work in a library and we did have photocopiers. I actually worked in that room. My job involved to provide technical assistance, change, and make sure no one started photocopying entire books.

You missed the part where I stated that in my country you are legally permitted under certain conditions to make a full copy of an intellectual property that you don't own. You are also explicitly permitted to copy whole books in libraries. It is something so ingrained in our culture, that no attempt at uprooting this law was ever successful. Instead copyright holders are usually trying to "educate" the public about the dangers and ethical questionability of such practices. Actually there were a few injunctions made by our local Office of Competition and Consumer Protection (I'm not sure what would an american counterpart be or if there is one), when publishers tried to spread misinformation about what is allowed and what is not in hopes that they could limit the usance of fair use laws.

The beauty of free speech :) But I assure you, if whoever hosted the site also hosted some illegal MP3s, they would shut the thing down in a second and should you want to prosecute them, they would be sent your way.

Trade agreements dont have a point here because only things that affect the economy of trade are in those Free Trade Agreements.

You are wrong for two reasons. First, national law trumps trade agreements. It was a big headache for the guys behind ACTA, because it was a treaty and it was incompatible with local laws of the signing countries. Part of the lobbying effort was to convince governments that the local laws need to be changed accordingly. Government in my country, when the protests erupted, tried to calm the public down by stating that only the parts that were in accordance with local law will be applied. It didn't help.

Second, not all countries share the predominantly american philosophy in regards how copyright and intellectual property issues should be handled. Did you know that in Spain non-profit file sharing is legal? If you were to host City of Heroes game client there, you would be perfectly within your right as long as you didn't try to get any money for your service.

I followed those very closely, and they actually sort of prove my point. The fact that every single of those countries accepted Apple's case from the start, over US Patents, is a big thing.

However I think you may be reading too much into what happened. United States and all the countries in which these lawsuits were made are both members of Paris Convention and the TRIPS Agreement. Member countries don't share an unified patent system, but make is easy to spread a patent claim in all of them if you have made a successful claim in one of them. It's not an automated process and neither it is mandatory, but it isn't hard to imagine that a corporation such as Apple made a patent claim in all of the countries it now tries to unicorn Samsung over it.

Anyways, I can rant about patents for ages.

Me too. It's the sign of the age, I tell you. ;)

And that's one thing I wanted to clarify: it's not based on the location of the server; it's based on your location. You can try to rely on secrecy but should you not actually be on the copyright haven country, you are still committing an illegal act, and secrecy is not always a reliable tool.

Depends on the claim. If the accuser wants to prosecute you for sharing the file, he makes the case based on your country of residence at the moment an alleged infringement was committed. However if they want to take the file down, and that is usually the case, laws of the country the server is physically located in applies. If they were really determined, they could go for both.

[Starsman]

Depends on the claim. If the accuser wants to prosecute you for sharing the file, he makes the case based on your country of residence at the moment an alleged infringement was committed. However if they want to take the file down, and that is usually the case, laws of the country the server is physically located in applies. If they were really determined, they could go for both.

The file be damned, if there is a legal threat I don't care if the file is taken down as long as there is no chance that *I* am taken to court for hundreds of thousands of dollars.

I think most people here share that priority.

[Little Green Frog]

The file be damned, if there is a legal threat I don't care if the file is taken down as long as there is no chance that *I* am taken to court for hundreds of thousands of dollars.

I think most people here share that priority.

That's why I say do not advertise who you are. And choose carefully the country the server is physically located. If you do your research, you are pretty much out of legal reach.