QJ How-To #6: Legality 101 (Part 2): Copyright Issues and Homebrew

There’s been one too many a case where a homebrew project got snagged in major snafu because of copyrighted sprites. What are they exactly, and what kind of antics can they pull from under their little sleeves to get you in trouble?

Simply put, they’re clips of moving video game characters and background scenery and are caught as stills in image format. Sprites usually come from video games of early years, such as from Nintendo and Sega consoles.

Now, for the most part, the use of sprites are generally condoned by the powers-that-be. Fair use may be bannered high when using a copyrighted sprite for a parody (say for example, the bajillion Super Mario parodies circulating out there). However, to be safe, it would be best to ask for permission from the company concerned. Also, using copyrighted sprites for fan-enjoyment may be quite fine, but if you intend to use it in your brew to profit from it, then that will most likely get you in trouble.

Sometimes, though, good intentions are never enough (baby sometimes, love just ain’t enough). We witnessed one such case unfold right in our own forums. Remember sony_psp_player‘s Mooorhuhn brew?

Cluck went the chicken’s tongue

It all started during last year’s PSPUpdates Homebrew Summer Contest. sony_psp_player submitted an entry entitled Moorhuhn (Moorland Chicken) PSP. The game was a hit among the readers, with you shooting chickens as they waddle their way across the map.

The graphics did look clean and immaculate – so much so that it got our attention. See, just a couple of months before that, QJ received a package from publisher Mumbo Jumbo, with a copy of the DS game Chicken Hunter. The game was developed by German company  phenomedia.

Having been struck with that strong sense of familiarity that we’ve had a run-in with this chick already, Chris C. then went about to investigate further and found that the sprites used in the Moorhuhn brew game was indeed the same as the one in Chicken Hunter (Moorhuhn on PC).

        sony_psp_player’s Moorhuhn entry to last year’s contest
vs.
phenomedia and Mumbo Jumbo’s Chicken Hunter:
chickens of the same feather are… most probably the same.

Immediately, Chris raised the red flag and informed sony_psp_player that if he still wants to submit Moorhuhn as an official entry, he should remove the Chicken Hunter sprites and replace it with his own (cos really, it was impressive work for a 15-year old, if not for the sprites). He did comply and was able to submit the game for the contest in the end.

All’s well that ends well, then?

Unfortunately not.

A couple of months later after the contest, sony_psp_player headed to the forums to seek for some advice. According to him, he had just received an email from phenomedia, Chicken Hunter‘s developer, stating that:

with amazement, we found out that the day after the e-mail you wrote on 12-Sep, a game with our Moorhuhn was offered for download. Please explain us until 12-Nov-2008, Noon, what this is all about. Legal steps are reserved (translated from German).

While the email did not exactly threaten to have cops swooping down sony_psp_player’s front lawn to arrest him, it still was nonetheless frightening for then-15 year old brew dev. For his side of the story, he did try to get the permission from the developers. But obviously, he did not gain their blessings. So he went on to create his own material, albeit making the drawings “look pretty much the same as the original material.”

Said sony_psp_player:

That e-mail really frightened me because I thought that I was in really big trouble now. So I answered I was making my own material for the game, but they stated that the name Moorhuhn is a registered trademark and the pictures I used seem to be the same as in the original game.

In the next e-mail, which I received the next day, phenomedia told me that I have got two choices of what to do now. Either removing the files from the Internet or removing the files from the Internet and agree on a license, which would allow me to use phenomedia’s material.

In the next e-mail I sent to phenomedia on 31st Nov 2008, I told them that I have removed the downloads and I declined the offer on a license because I had no time for that.

Apparently, that sealed the deal for phenomedia because he had not received anything else from them after that last correspondence. While sony_psp_player remains to be a free citizen, and fully enjoying his teenage years, this story still serves a good and smart lesson to all you other aspiring devs out there:

ask due permission; if you don’t get a reply, assume that’s a “No”; create your own material, and don’t even think about making it look like the one you asked permission and got denied for in the first place.

Now, am sure you found it terribly curious, that second choice phenomedia gave sony_psp_player: Remove the files from the Internet and agree on a license, which would have allowed him to use phenomedia’s material.

We’re gonna have to assume that the license he was talking about in his email (since he did not get into details about it, nor did we see the specific corresponding documents for it) would be the one for proprietary software license, where phenomedia will grant him the permission to use their material for his project, albeit under a non-disclosure agreement. However, the final product will remain to be recognized as legally owned by phenomedia, thereby essentially making it un-homebrew.

But before we go on speaking of licenses, another factor that you should familiarize yourselves with would be the sources, namely, Free and Open Source Software, and Closed Source (or Propriety Software).

Saucy Sources

Essentially, these are recognized as approaches to the development, control and commercialization of computer software. What basically differentiates the free and open source software from the closed one is the availability of source codes.

In the closed source model, the binaries of a computer program are indeed distributed, but the license keeps the source code private. Apart from that, it is mostly considered to be a trade secret of the company.

Meanwhile, the open source model is recognized as one where the source code of a computer software, as well as certain other rights which would have otherwise been regarded as duly copyrighted, is afforded a software license that allows it to be considered as being in the public domain.

Included in the permitted scope of the open source model are the following:

• use
• change
• improve software
• redistribute software in modified or unmodified forms

The open source model is also the one that is used by the Free and Open Source Software (FOSS) Movement.

Read more on the Debian Social Contract for more info on whether or not a software license can indeed be considered open source.

Proprietary Software License

Here, the software publisher grants the license one or more copies of software, but with the limitation that these copies shall remain to be in their ownership, same as what sony_psp_player was offered. The thing with the PSL is that despite the granted permission to make use of the copyrighted material by another party, all rights pertaining to the software are still held by the original publisher, thus leaving a very limited set of well-defined rights to the end-user.

Another binding condition of the PSL is that for the end-user to be able to enjoy the software, he is required to accept the software license and its corresponding conditions. It’s a black or white deal. Either you take it or you leave it.

Free Software License

This type of software license is one that grants its recipients the right to modify and redistribute the software, without which it would be a violation of the copyright law. It is through this concept of Free Software License that the concept of the Copyleft first surfaced.
An obvious derivation from Copyright, Copyleft is a form of licensing that can be used to modify copyrights for: computer software, documents, music and art. Thanks to the Copyleft licensing scheme, every person who gets handed a copy of a work necessarily gets the permission to reproduce, adapt, or distribute the work as long as any copies of or adaptation remain bound by the same copyleft licensing scheme.

And now we head to them licenses.

GNU General Public License (GNU GPL)

The GNU General Public License was originally written by Richard Stallman for the GNU project, and is recognized to be one of the most widely used free software license. This model is considered to be a more permissive, modified version of the GPL that was originally created for some software libraries.

At present, there are three existing versions of this License type, the first of which was released in January 1989, which then prevented the restriction on distributors publishing only binary files (although these are executable, these cannot be read or modified by humans). To answer to this problem, GPL v1 stated that any vendor distributing binaries must be required to have the human readable source code also available under the same licensing terms.

Another issue confronted by v1 would be that concerning the potential additional restrictions on the distributors.

Meanwhile, version 2 dealt mainly with the “Liberty or Death” clause in Section 7. According to this section, “if somebody uses a patent or something else to effectively make a program non-free then it cannot be distributed at all.” (cited from FSFE).

The latest version, version 3, officially came out in 2007, dealing mainly with changes on software patents, free software license compatibility, “source code” definition, and hardware restrictions on software modification.

This version also touched on other allowances for the authors to add some more specific conditions/ requirements to their contributions. One such allowance would be the Affero Clause, meant to fulfill a request pertaining to software as a service.

To read more on the GNU GPL, click here.
To read more on the Affero Clause, click here.

GNU Lesser General Public License (GNU LGPL)

This one’s another type of free software license. However, what makes this unique from the GNU GPL model discussed above is that it was originally intended to serve as a compromise between the strongly-copyleft-leaning GPL and those permissive licenses like the BSD and the MIT.

In a nutshell, the LGPL does apply copyleft restrictions on the program, but DOES NOT apply the same to software that only links with the program. Also, this is mostly used for software libraries.

What would delineate it clearly from the GPL type is that LGPL can be linked to a non-(L)GPLed program (either free or proprietary software), and then distributed under any chosen terms for as long as it is NOT a derivative work. If, however, the nature of the work is derivative, then it must allow “modification for the customer’s own use and reverse engineering for debugging such modifications.”

Creative Commons License

The Creative Commons Licenses are primordial because this is the medium of the creators to express and communicate what kind of rights they reserve, as well as which ones do they waive for the benefit of recipients or other creators.

It would be useful for you to be familiar with this as it holds the content directory wiki of organizations and projects making use of the CCL.

Another familiar term used to describe the CC project for copyright licenses would be Share-Alike, which also include certain copyright provisions.

Simply put, this is defined as “If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible license.” There are several generic variations of share-alike licenses that define free software and open content.

More information on the Creative Commons can be found here.
Share-Alike is discussed further in this link.
How to get a CCL is outlined here.

Instead, I chose to delve on basic facts that young developers out there might want to know – and should – before treading the very murky waters of homebrew. Because inasmuch as it is your creativity that you want to fulfill, truth of the matter is that there will always be rules and regulations policing you at every turn. Freedom of expression is indeed a right, but even that is never considered to be absolute.

So here’s hoping that we at least  helped you get a bit more grounded on things that you would otherwise not have considered looking into when working on your homebrew projects. These facts will definitely help you stay out of trouble from the wide, intrusive arm of the law.

Again, I did not want to get too much in the whole jargon of copyright law, because there is no such universal law for it. The conditions, concessions, requirements and whatnot vary and are context-specific from jurisdiction to jurisdiction. So to those of you who live outside of the U.S., I suggest you check online what are the policies of your government pertaining to this issue.

For those of you within the North American territory, you can brush up further on your Copyright law knowledge by checking out the US Copyright laws. And once more, do not attempt to interpret and apply that interpretation by your lonesome, when push comes to shove. Do not be afraid to go ask for some honest-to-goodness legal advice. Remember, when brewing, you are always in the line of fire.

Until next week, then, on QJ’s How-To series! Keep jumpin’ and brewin’!

• US Copyright Office
• Nintendo’s Corporate Legal Information
• Emulation and the Video Game Industry