The Original shutdown scare from 2004/5

Started by doc7924, October 11, 2013, 07:48:42 PM

dwturducken

I was actually in the closed beta for Marvel Heroes, so I dismiss it out of experience. :D

After a year, I don't remember which server it was (my character list is on my other computer), but I had dedicated one of the lower populated servers to copyright infringement. I did have one character on Champion, tho, Specialman, who arguably looked like Superman. He was a tank, but his backstory was more reminiscent of the Tick. ("His mom always told him he was special! Now, he was going to show the criminal element of Paragon City!") The name wasn't genericked, but his costume was switched to shades of grey and the "S" removed from his chest. I'm not sure if I felt he was important enough to me to take screenshots of him (again, other computer), but I changed his costume to something very close to early West Coast Avengers Wonderman, and all was good. ;)

Point being, sometimes the (arguable) copyright infringement is not a complete lack of creativity.
I wouldn't use the word "replace," but there's no word for "take over for you and make everything better almost immediately," so we just say "replace."

Arcana

Quote from: Thunder Glove on October 13, 2013, 08:49:47 PM
Yeah, basically, if I'm remembering the original legal documents correctly, Marvel asserted that there were "hundreds" of player-created characters in-game that were infringing Marvel copyrights.

However, when challenged to show examples of such, the only ones they could produce were characters that Marvel employees had created.  And they created them after the legal forms had all been filled out.  They couldn't produce a single example of an actual player with an infringing character.

(Which is a bit of a surprise, since Hulks were all over the place)
This wasn't due to Marvel's lawyers being blind or anything, but because of the highly dubious nature of their lawsuit in the first place.  Their lawsuit rested almost entirely on the following legal theory:

1.  City of Heroes marketed itself as being designed to allow players to create comic book characters.

2.  NCSoft was not a comic book publisher and did not own any substantial amount of comic book property.

3.  Ergo, by encouraging people to create "comic book characters" they must have been referring to Marvel and other company's characters, and thus encouraging players to recreate other company's intellectual property.

I believe they (Marvel) honestly didn't feel it was necessary to demonstrate all of the technical mertis of infringement carefully, because they were hinging their case on essentially creating new law.  In fact, they felt that actually creating most of the infringing characters was irrelevant, because their legal theory was enablement: because you *could* make infringing characters, NCSoft was responsible for contributory infringement no matter who actually did the infringing.  Because Marvel had no intent on going after thousands of individual players for individual infringement.

Honestly, the case was so shoddy that I think it was entirely a pro-forma case given to the lawyers to give them something to do.  I'm not exaggerating the ridiculousness of the case above; here it is taken from the actual complaint:

Quote1.  This is a civil action by Marvel against Defendants for direct, contributory and vicarious copyright and trademark infringement arising out of  Defendants' creation, distribution and online facilitation of the computer game enttiled "City of Heroes."  According to Defedants, "City of Heroes brings the world of comic books alive in the first PC massively multiplaer online game of its kind."  Considering that Defendants own no comic book characters themselves, it stands to reason that the comic books to which they refer are those that depict the characters of Marvel and others.  Through its character creation engine (the "Creation Engine"), City of Heroes enables players to create customized "Heroes," which then enter "Paragon City" by way of Defendants' internet servers and engage in multiplayer online games.  Unfortunately, Defendants' Creation Engine facilitates and, indeed, encourages players to create and utilize Heroes that are nearly identical in name, appearance, and characteristics to characters belonging to Marvel.

2.  Within minutes of loading City of Heroes onto a personal computer ("PC"), a player can use Defendants' character Creation Engine to "create" a gigantic, green, "science-based" "tanker" - type Hero that looks, moves, and behaves nearly identically to Marvel's character "The Incredible Hulk."  The player can even name his or her "creation" "The Hulk" and enter Paragon City to join scores of other such infringing Heroes.

3.  Alternatively, a player can choose a "mutant-based" Hero and, within minutes, enter Paragon City as a character nearly identical in appearance and attributes as Marvel's X-Men characters "Wolverine" or "Storm."

4.  In sum, Defendants have created, marketed, distributed and provided a host environment for a game that "brings the world of comic books alive," not by the creation of new or original characters but, instead, by directly, contributorily and vicariously infringing upon Marvel copyrights and trademarks, in clear violation of 17 USC 101 et seq, 15 USC 1114(1)(a) and 15 USC 1125.

The rest is just the technical details of their complaint.  Their entire legal argument rests with the notion that since NCSoft advertised City of Heroes as allowing players to make "comic book characters" *of course* players would make copies of existing ones, because that's what comic book characters are: the ones Marvel (and other companies) make, not what players might think up on their own.  Just giving them the ability is de facto encouragement, and thus all player infringement is all NCSoft's fault.

Their case relied heavily on the notion that it doesn't matter who makes them, only that they can be made, so that's why they did not spend a lot of time locating actual players with actual infringing characters.  In fact as NCSoft stated in their countercomplaint, Marvel was so arrogant in their belief that they basically own all comic book characters that they didn't actually provide the court with any actual depictions of their own characters to compare to the supposed infringing ones.  They just said "see, I can make something with a bad haircut and claws, ergo Wolverine-clone."

They wanted the court to rule that just because you could make infringing characters, NCSoft was as much at fault as the players doing so.  Unfortunately, that requires Johnnie Cochran-levels of Chewbacca which the Marvel attorneys did not possess.

JaguarX

Quote from: Arcana on October 18, 2013, 01:08:38 AM
This wasn't due to Marvel's lawyers being blind or anything, but because of the highly dubious nature of their lawsuit in the first place.  Their lawsuit rested almost entirely on the following legal theory:

1.  City of Heroes marketed itself as being designed to allow players to create comic book characters.

2.  NCSoft was not a comic book publisher and did not own any substantial amount of comic book property.

3.  Ergo, by encouraging people to create "comic book characters" they must have been referring to Marvel and other company's characters, and thus encouraging players to recreate other company's intellectual property.

I believe they (Marvel) honestly didn't feel it was necessary to demonstrate all of the technical mertis of infringement carefully, because they were hinging their case on essentially creating new law.  In fact, they felt that actually creating most of the infringing characters was irrelevant, because their legal theory was enablement: because you *could* make infringing characters, NCSoft was responsible for contributory infringement no matter who actually did the infringing.  Because Marvel had no intent on going after thousands of individual players for individual infringement.

Honestly, the case was so shoddy that I think it was entirely a pro-forma case given to the lawyers to give them something to do.  I'm not exaggerating the ridiculousness of the case above; here it is taken from the actual complaint:

The rest is just the technical details of their complaint.  Their entire legal argument rests with the notion that since NCSoft advertised City of Heroes as allowing players to make "comic book characters" *of course* players would make copies of existing ones, because that's what comic book characters are: the ones Marvel (and other companies) make, not what players might think up on their own.  Just giving them the ability is de facto encouragement, and thus all player infringement is all NCSoft's fault.

Their case relied heavily on the notion that it doesn't matter who makes them, only that they can be made, so that's why they did not spend a lot of time locating actual players with actual infringing characters.  In fact as NCSoft stated in their countercomplaint, Marvel was so arrogant in their belief that they basically own all comic book characters that they didn't actually provide the court with any actual depictions of their own characters to compare to the supposed infringing ones.  They just said "see, I can make something with a bad haircut and claws, ergo Wolverine-clone."

They wanted the court to rule that just because you could make infringing characters, NCSoft was as much at fault as the players doing so.  Unfortunately, that requires Johnnie Cochran-levels of Chewbacca which the Marvel attorneys did not possess.

Yeah lot of their complaint got thrown out, six of them the first round and six more after the amended complaint was put forward.

One thing that did survive the cuts were the charge of contributory copyright infringement and that is when the settlement happened for undisclosed amounts allowing NCSOFT to keep the character creator.

And that probably had a lot to do with them ncsoft going on a "generic hammer" war path soon after the settlement was done. 

While most of the stuff was found to be bogus and "shady", not all points were. Thus the settlement. If the settlement was turned down, would it had been thrown out eventually? Possibly but there is a such law that covers contributory copyright infringement, but yeah they would have to prove that NCSOFT was letting it go and not policing the players and it would have been hard to prove at the time. Since then though, the contributing copyright infringement laws got a bit more in depth especially dealing with software and digital media. contributory copyright infringement  is how Napster went down.

Which honestly it was an on and off thing throughout the years and very lax before the lawsuit thing happened.

Arcana

Quote from: JaguarX on October 18, 2013, 01:58:09 AMWhile most of the stuff was found to be bogus and "shady", not all points were. Thus the settlement. If the settlement was turned down, would it had been thrown out eventually? Possibly but there is a such law that covers contributory copyright infringement, but yeah they would have to prove that NCSOFT was letting it go and not policing the players and it would have been hard to prove at the time.
True, but its worth noting the following facts of the case.  First, the court allowed the following claims to go to trial:

1.  NCSoft *itself* infringed on Marvel copyrights; specifically Marvel claimed the character of Statesman infringed on Captain America.

2.  NCSoft "enables and encourages" players to infringe on Marvel copyrights by making infringing characters.

3.  NCSoft profited from players infringing on Marvel copyrights, and were in a position to control or stop the infringement.

4.  NCSoft *itself* directly infringed on Marvel common law trademark, vis-a-vis Statesman again.

5.  NCSoft damaged Marvel by reducing the value of Marvel property, in effect by claiming NCSoft was commercially profiting from game content Marvel could have otherwise done so through future games.

Of those five remaining issues not dismissed by summary judgment, two relate to Marvel asserting that Statesman infringes on Captain America, a matter of law and not of fact, which is why it could not be summarily dismissed.  But it does seem unlikely Marvel would have won on either of those counts, and neither would have materially affected the game negatively if NCSoft lost.  After all, we eventually killed Statesman ourselves :).  The second issue also seems extremely unlikely to win at trial, and you would have had amicae lined up around the block on appeal, because *no one* anywhere in the entire games industry would want Marvel to prevail on that count.  Consider that even Warner would have been vulnerable to that ruling with DCUO.

Really, the only two issues that seem like they had any chance at all were three and five.  Three would have been difficult to prove and the court itself shot down an attempt by Marvel to have the court summarily rule that the DCMA did not provide safe harbor to NCSoft as an internet service company, which would have been an affirmative defense (i.e. if upheld they win).  Which leaves issue five.

Given that, I think Marvel eventually decided to just plain give up.  The most they could have gained on issue five would be some multiple of the revenue they claimed to have lost, and they would have proved they actually had upcoming games whose sales were likely to be impacted.  Which I don't think they actually had.  Which means proof of actual damages would have been tricky at trial. 

Although the terms were sealed, NCSoft went out of their way to claim after the settlement that the terms of the settlement did not require them to alter the game or their operating of the game in any way.  In other words, the settlement contained no requirement for NCSoft to do anything at all.

Combined with no financially visible settlement number, and I think both sides spent more on their lawyers than changed hands in the settlement in either direction.

JaguarX

Quote from: Arcana on October 18, 2013, 03:35:15 AM
True, but its worth noting the following facts of the case.  First, the court allowed the following claims to go to trial:

1.  NCSoft *itself* infringed on Marvel copyrights; specifically Marvel claimed the character of Statesman infringed on Captain America.

2.  NCSoft "enables and encourages" players to infringe on Marvel copyrights by making infringing characters.

3.  NCSoft profited from players infringing on Marvel copyrights, and were in a position to control or stop the infringement.

4.  NCSoft *itself* directly infringed on Marvel common law trademark, vis-a-vis Statesman again.

5.  NCSoft damaged Marvel by reducing the value of Marvel property, in effect by claiming NCSoft was commercially profiting from game content Marvel could have otherwise done so through future games.

Of those five remaining issues not dismissed by summary judgment, two relate to Marvel asserting that Statesman infringes on Captain America, a matter of law and not of fact, which is why it could not be summarily dismissed.  But it does seem unlikely Marvel would have won on either of those counts, and neither would have materially affected the game negatively if NCSoft lost.  After all, we eventually killed Statesman ourselves :).  The second issue also seems extremely unlikely to win at trial, and you would have had amicae lined up around the block on appeal, because *no one* anywhere in the entire games industry would want Marvel to prevail on that count.  Consider that even Warner would have been vulnerable to that ruling with DCUO.

Really, the only two issues that seem like they had any chance at all were three and five.  Three would have been difficult to prove and the court itself shot down an attempt by Marvel to have the court summarily rule that the DCMA did not provide safe harbor to NCSoft as an internet service company, which would have been an affirmative defense (i.e. if upheld they win).  Which leaves issue five.

Given that, I think Marvel eventually decided to just plain give up.  The most they could have gained on issue five would be some multiple of the revenue they claimed to have lost, and they would have proved they actually had upcoming games whose sales were likely to be impacted.  Which I don't think they actually had.  Which means proof of actual damages would have been tricky at trial. 

Although the terms were sealed, NCSoft went out of their way to claim after the settlement that the terms of the settlement did not require them to alter the game or their operating of the game in any way.  In other words, the settlement contained no requirement for NCSoft to do anything at all.

Combined with no financially visible settlement number, and I think both sides spent more on their lawyers than changed hands in the settlement in either direction.

Indeed.

Especially the lawyers fee part. I wouldn't be surprised if both parties were happy to end the court case by the end and do a settlement. But I bet those lawyers made out like bandits though. kaching!