written by Netpoet & Magic

Hugi takes a look at copyright laws and patents and what they mean for the demoscene.

Prologue

From the early dawn, from the very beginning of the demoscene's existence on, the copyright of digital content was connected one way or another to all sceners who shaped and were the demoscene. For example when they used existing samples in a Protracker module or digitized movie sequences in a demo. Today we are living in a digital era. Many laws have seen the light of day during the last, let's say, 25 years. What does copyright mean for the demoscene anno domini 2010? To find out, Hugi spoke with Netpoet about this topic. He is a German attorney-at-law with several years of experience in IT- and Intellectual Property-related law matters, he has been working for the Düsseldorf-based data protection company Data Elements and in 2009 he started working in Frankfurt in email marketing. He has been active in the demoscene since 1997 as, among other things, a musician in the group calodox. Netpoet has also been a host of the Scene.org awards since 2006.

For years, demoscene groups have been using music in the MP3 format inside their releases. We asked Netpoet to explain the dangers of doing so from a legal perspective.

"From a legal perspective, I guess you mean what the risks of using commercial MP3-format in demos are. The answer looks pretty much the same as it would look for any other creativity project as well. When you create something, you are the owner of all its pertinent rights. Publication, copying, playing, lending etc., it's all up to you, and you alone, to decide whether you want to use it. Nobody else may use it without your permission. That's why demo makers may not do so either. If somebody sues you for using their works illegally, you're not only obliged to stop doing so, but often damages are due as well. Depending on how important and lucrative your product (which uses the other's music) is, this can cost you a lot of money. So better ask for permission instead of using music without permission.

Here's a little thought aside. MP3s alone can be an icky issue because of the royalties that you'd theoretically have to pay when you use MP3 as a format. But there don't seem to be a lot of people out there who care to claim royalties for the use of MP3", Netpoet explains.

But why don't people care about claiming royalties from sceners for the use of MP3? Netpoet comments: "Most sceners I know don't use commercial music for demos at all, so there is no reason for people to claim royalties. And, besides, most musicians are in organizations like the GEMA or BIEM that take care of those royalty issues. The music industry has been doing a lot to claim royalties - but again, demos hardly ever include royalty music. And if they do, they're probably just not important enough for anybody to care and spend time on."

Software patents and Remakes

Another interesting topic is software patents. What problems could coders in, for example, Europe and America face if they used algorithms in their demos that happen to be patented? "Software patents have been heavily argued about for years and years. A patent is an intellectual-property right that works pretty much the same as any copyright. If you have it, you are the only one entitled to use it, and when somebody else uses it without your permission, they're due damages", Netpoet explains and continues: "The underlying huge problem with software patents is that there is hardly any piece of software out there these days that doesn't use vast collections of already existing software. And it makes sense, why go through the hassle of re-inventing the wheel. Software patents could force programmers to re-code every bit of code that already exists, just because they aren't allowed to use the patented software pieces. From complex web applications to age-old JPG compression, creation of software would become a lot more cumbersome with software patents. If programmers use patented code, they face the same charges as above, depending on the value of the code and of the software they're using that contains patented code."

Finally let's have a look at the remakes of some games released on the demoscene. For example, some known games have been released as parts of a 32k (or later 96k) game competition. What problems could be connected to that? Netpoet: "It's basically the same principle as before, with a little variation, however. When you create something by yourself, it's your work, even when you were inspired by something else. No creator is completely free of inspiration, they always get inspiration from other creators. That's just how creativity works. If you, however, create something that is very similar to something else, or even identical, the line between inspiration and copying is crossed. In that case, you might face charges for compensation as well."

How to protect the demoscene and its releases?

To understand how we can legally protect the demoscene and its releases we first have to understand how we are protected. For example, how are the tracks composed by demoscene musicians protected against unauthorized use? Netpoet tries to shine a light on this topic: "Artwork of all types and in all forms is protected by the authors' copyrights. Any use not granted by the author is illegal and can be prosecuted by a civil law suit, sometimes by criminal-law means as well, depending on the violation of copyrights. Artists have the choice to reserve all rights but in the demoscene, it is commonly understood that this hardly makes any sense, especially since a fundamental principle of the demoscene is about sharing, editing and remixing other people's work. If for this reason people decide to reserve only some rights, they are usually well off releasing their ork under the Creative Commons licensing system that allows any even half-way combination of rights to be granted and reserved. For details, check the Creative Commons website."

And what if someone is using demo scene music for commercial purposes? What can the demo scene musician do against this? "In this case, the same rights are at hand which every creator has when his or her works are used illegally. They can sue for default, compensation to the amount of the license fees which would have been due if the person had bought them properly", Netpoet answers.

A big pillar of today's demoscene is scene.org. The scene.org servers are for a huge part responsible for spreading our beloved productions. (See our article on scene.org in Hugi#34 -ed) Hugi asked Netpoet if he has any knowledge how the many scene archives/servers out there could protect themselves from copyright claims if they, for example, host a demo with copyrighted material. From my Amiga days I remember that quite a few demos have made usage of digitized movie and/or TV sequences.

Netpoet explains: "The answer that nobody wants to hear but that is actually the only really true one is: Don't use other people's material without permission. If you do, you risk having to face the above-mentioned claims in a law suit. However, keep in mind that the less important the used material is, equally little the chances to be sued will be. Let's face it, if in a 20-year old Amiga demo which probably most enterprises won't even be able to play any more, a video snippet or a commercial video with a duration of half a second had been used, nobody would have bothered sueing somebody whose real name they even have to find out the hard way. This is even more true in case the snippet has been incorporated into something bigger instead of just making it the main part of the work. So I would say, if your work is older than ten years, and you've never made money with it, you should not worry about being sued. A good indicator for a justified fear of being sued, however, usually is the mere fact that you have this fear."

Epilogue

To end this article, Hugi asked Netpoet about his thoughts on copyright infringements and asked him for his advice how the demoscene could deal with the topic "copyright" in general.

"If the question relates to copyright infringements inside the demoscene, with the violator and the creator being part of it, then I don't think there will be a real problem. If both of them work for non-commercial reasons, one decent e-mail saying that you're sorry and explaining your motives should do it. Other than that, it hardly makes a difference whether you feel affiliated to the demoscene, neither when you create nor when your copyrights as a demoscener have been infringed. The claims and rights to go to court apply regardless of whether you belong to the demoscene", Netpoet comments.

He concludes: "Really, copyright systems can vary a lot in different countries, even though the legal core is (and logically has to be) at least similar. People often think, for a reason beyond my comprehension, that taking a three-second sample from their favourite piece of music were allowed. It isn't. Ultimately, it comes down to these two principles: Being inspired by other people's work is fine. Stealing other people's material isn't. So if you're sampling audio or video and create something new with it that is recognizably not the old work any more, you're a creator. If you take a sample, loop it, add some bassdrum to it, and let it play for five minutes, you're a thief, regardless of some of the stuff that Timbaland used to say when openly confronted with his theft of 'Acidjazz Evening' by Janne Suni ('Tempest') for his 'Do It' track that featured Nelly Furtado. By the way, for those of you who are interested, rumour has it that Timbaland's attorneys and Janne Suni have allegedly worked out a deal that has paid him at least some kind of compensation. I sincerely hope so, as 'Acidjazz Evening' was a great track. Try focusing on creating, not taking others' material. Then you'll be fine. We all are inspired by others. That's perfectly fine. That's how art evolved."

Links related to this article

Creative Commons website
Netpoet's personal website
Website of Netpoet's job

Netpoet & Magic