Does Beamdog have the permission to create derivative works?
palladium
Member Posts: 22
From what I can tell, Beamdog has added content such as additional party members (e.g. wild mage) and an expansion (i.e. Siege of Dragonspear) to its games. You also have entire forum sections encouraging users to create mods, update existing ones that were previously created, and, presumably, to install those mods for their own enjoyment.
The Icewind Dale and Baldur's Gate games are from an era when user-created content wasn't fully appreciated. These days, games often have separate modding agreements spelling out what users are and aren't allowed to do. Skyrim's EULA, for example, allows its users to create mods: http://store.steampowered.com/eula/eula_202480
Note the provision "You are only permitted to distribute the New Materials, without charge (i.e., on a strictly non-commercial basis) (except as set forth in Section 5 below), ...". This provision explicitly allows the distribution of mods.
No matter the reasons for the lack of a modding agreement, the fact remains that it is, strictly speaking, against copyright law for users (in the absence of another agreement granting the requisite permissions) to create or install mods. Mods are clearly derivative works of the original game, and even installing a mod for personal enjoyment clearly doesn't fall under fair use.
Therefore, the only way Beamdog could legally create and allow the installation of mods would be if they had the necessary permissions from all the copyright holders. Without such permission, it would be against copyright law for even a store to allow their customers to install mods. For example, Gog.com is purely a distributor of games and does not have the required permissions. Thus, although they may tolerate posts in their forum on how to mod the game, it is against copyright law.
I believe Beamdog's legal situation might be different, but I would prefer to hear from the founders (or someone with knowledge of this matter) rather than relying on my pure speculation. Tolerating talk in one's forum and actually creating content without permission are quite different, and I strongly believe Beamdog would not do something that is against the law. The creation of extra characters in a game and the creation of an expansion pack are two clear examples of the creation of derivative works. Based on my assumption that Beamdog abides by the law, therefore, it seems reasonable to conclude that Beamdog does have all the necessary permissions to:
1. Create derivative works for the games they are selling (e.g. expansion packs, mods, extra characters)
2. Grant users permission to create derivative works (e.g. expansion packs, mods, extra characters)
Is my conclusion correct, and if so, when and from whom did Beamdog obtain the necessary permissions?
The Icewind Dale and Baldur's Gate games are from an era when user-created content wasn't fully appreciated. These days, games often have separate modding agreements spelling out what users are and aren't allowed to do. Skyrim's EULA, for example, allows its users to create mods: http://store.steampowered.com/eula/eula_202480
Note the provision "You are only permitted to distribute the New Materials, without charge (i.e., on a strictly non-commercial basis) (except as set forth in Section 5 below), ...". This provision explicitly allows the distribution of mods.
No matter the reasons for the lack of a modding agreement, the fact remains that it is, strictly speaking, against copyright law for users (in the absence of another agreement granting the requisite permissions) to create or install mods. Mods are clearly derivative works of the original game, and even installing a mod for personal enjoyment clearly doesn't fall under fair use.
Therefore, the only way Beamdog could legally create and allow the installation of mods would be if they had the necessary permissions from all the copyright holders. Without such permission, it would be against copyright law for even a store to allow their customers to install mods. For example, Gog.com is purely a distributor of games and does not have the required permissions. Thus, although they may tolerate posts in their forum on how to mod the game, it is against copyright law.
I believe Beamdog's legal situation might be different, but I would prefer to hear from the founders (or someone with knowledge of this matter) rather than relying on my pure speculation. Tolerating talk in one's forum and actually creating content without permission are quite different, and I strongly believe Beamdog would not do something that is against the law. The creation of extra characters in a game and the creation of an expansion pack are two clear examples of the creation of derivative works. Based on my assumption that Beamdog abides by the law, therefore, it seems reasonable to conclude that Beamdog does have all the necessary permissions to:
1. Create derivative works for the games they are selling (e.g. expansion packs, mods, extra characters)
2. Grant users permission to create derivative works (e.g. expansion packs, mods, extra characters)
Is my conclusion correct, and if so, when and from whom did Beamdog obtain the necessary permissions?
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Comments
Mods are a derivative work as defined under 17 U.S. Code § 101: https://www.law.cornell.edu/uscode/text/17/101
U.S. Copyright Law protects derivative works. That's why Beamdog or any other company that mods the game needs permission from the original copyright holders. See this article for a summary: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States
There are 2 types of law: Civil and criminal. The words "against the law" could mean against civil law instead of a criminal violation that the media so often loves to cover.
When I mentioned the forum posts, I was talking about Gog.com's forum posts, not Beamdog's. If anyone is at risk of being sued, it's Gog.com: https://www.gog.com/news/enhance_the_gameplay_in_your_edition_of_baldurs_gate_from_gogcom
Just because the copyright holders can sue doesn't mean they will, however. Modding increases interest in the game and probably contributes to their bottom line, so they wouldn't hurt that stream of revenue by suing even if they could. Similarly, even if Beamdog was somehow selling these games and allowing modding without permission, the risk of a lawsuit is also very low. My concern with obeying the law is a moral one rather than out of fear of a lawsuit.
Now, on the final point about Beamdog owning all the rights to the game, I too suspect that they negotiated a deal and acquired the rights from whoever held the copyright to the games they're selling (Electronic Arts? Wizards of the Sword Coast?). I just would like some confirmation before I install any mods.
Here's what everything boils down to. If Beamdog has the necessary permissions, then it's legal for me to buy their games and install mods on Beamdog-purchased games. If Beamdog doesn't have said permissions, then I would be breaking the law by doing either. Which is it? Some official confirmation would help.
Either I'm misunderstanding what you're saying here, or you're the most Lawful Neutral person I've ever met...
If anyone could theoretically get in trouble (they won't, but theoretically speaking), it would be the people who distribute mods. They could theoretically receive a takedown notice from WotC. And if they refused to comply, they could theoretically get sued.
As a user who wants to install mods on your copy of the game, none of that applies to you. You can't get into trouble for modifying your local installation of a game on your personal computer (without sharing it with anyone).
So your concern is entirely unfounded.
Unless of course for "moral" reasons, if you're so ultra-Lawful that you don't want to even go near anything that might have (during its creation or lifetime) ever come in contact with any legally ambiguous circumstances.
For minor modifications and changes, I doubt you'd actually get in any trouble or the issue would be actionable since they also actively encourage modification of the game through their modding forums.
You would probably get in trouble if you edited all mentions of Siege Of Dragonspear to be Battle Of Dragonspear and then started selling/distributing the resulting modification as an original work.
Also worth noting, that most mods don't change the .exe files related to the software but instead modify or override the associated files.
Beamdog work on the EEs based on their agreements with WotC, as Liam Esler mentioned. It may be that the agreements are with Hasbro, the head company.
The contents of those agreements are under NDA. Under those agreementsall the EEs and SoD were created, released and now are being maintained with patches.
As for modding the EEs by players, the original (pre-EE) license terms are still valid:
"This copy of Baldur's Gate is intended solely for your personal noncommercial home entertainment use. You may not decompile, reverse engineer, or disassemble the Software, except as permitted by law. All rightholders retain all right, title and interest in the Software including all intellectual property rights embodied therein and derivatives thereof. The Software, including, without limitation, all code, data structures, characters, images, sounds, text, screens, game play, derivative works and all other elements of the Software may not be copied, resold, rented, leased, distributed (electronically or otherwise), used on pay-per-play, coin-op or other for-charge basis, or for any commercial purpose. Any permissions granted herein are provided on a temporary basis and can be withdrawn by rightholders at any time. All rights not expressly granted are reserved."
Modding would be illegal if done for a commercial purpose. All mods for the EEs are free, thus they're completely legit.
Of course, mods that interfere with the trademarks are not allowed, eg:
As a modder, or player, of the game you can mod the game to increase your enjoyment of the game. You however cannot sell mods, as you do not have a commercial exploitation agreement with all the stakeholders.
So, in summation, mod away, install mods, have fun. Discuss great mods in the forums, suggest future mod ideas to the development community. Mods are awesome and we love to see how our community can improve this already awesome series of games.
-Trent
I do hope to obtain clarification on one point. Based on what you said, it's clear Beamdog can create whatever mods they want, but the original versions of some of the mods being made compatible with Beamdog's games were originally created without permission from the original copyright holders before Beamdog even existed.
Just to be clear, do your "rights to distribute existing content" also include the right to distribute and create derivative works from these unauthorized mods that were made for the original ("original" as in before Beamdog made changes to them) games?
Here's the motivation behind this follow-up question: If, say someone made a mod before Beamdog existed without getting permission, the actual copyright holders may technically own those unauthorized mods, but they may not have licensed the rights to those unauthorized mods to Beamdog. If this is true (and I'm not saying it is; I just don't have access to Beamdog's agreement), then it may be the case that Beamdog isn't allowed to use material (e.g. pictures, sounds, etc.) from those unauthorized mods. In this hypothetical situation, Beamdog would be able to use material from the original game in their mods, but not material from the unauthorized mods of the original, pre-Beamdog games.
Of course, I see plenty of work being done in the forums to make those unauthorized mods compatible with Beamdog's versions of the game, so it's possible Beamdog also obtained the necessary permission to do so. I just want to be sure.
Mods are created by people who don't have rights to create games. And as said above, both towards the vanilla games and the EEs, people have been always free to create mods which would be distributed withot a fee.
No special permition has ever been needed to create a mod that is not destined for a sale.
Additions to the games, however, are created by developers who concluded all necessary agreements with all the rightholders.
I would, however, add the the following. The developer working on the game (i.e. Beamdog) could always get a permission from a modder to use something that was created as a mod and implement it into the game through an official way.
So, your concerns, @palladium , can be resolved.
So why don't they sue? There are at least 3 reasons: 1) Sometimes it's in the best interests of a copyright holder to just allow it to happen. Mods increase interest in a game, for example, so the developer may ultimately make more money just by tolerating the mods. A lawsuit may also ruin the relationship between a gaming company and its fans, leading to loss of business. 2) A modder might have no money at all. It would cost more to hire the lawyers than they could recover from the modder. 3) It's an old game. Who cares? The revenue stream is small anyways.
Additions to the games such as expansion packs and future editions (e.g. Baldur's Gate 3) are also derivative works. Beamdog has the permissions to create such additions because based on Trent's response, Beamdog obtained the necessary permission to create derivative works.
But the focus of my most recent question was not about Beamdog's permission to create mods based on the original game. They clearly have that right. I'm more concerned about whether Beamdog has the right to base their mods on other mods of the original games (e.g. the non-Enhanced Editions) done by modders who may or may not have obtained permission from the copyright holders. By the way, by "copyright holder," I don't mean Beamdog, but the entities (e.g. Wotc) who had the right to license those rights to Beamdog. Allow me to elaborate. Your last point about Beamdog getting permission from a modder may be correct depending on the agreement of said modder with the actual copyright holders (e.g. Wizards of the Coast and so on). If the modder didn't have such permissions, then their mod is an infringing work and does not qualify for copyright protection, so there would be no need to request any permissions from them. Even in this case, Beamdog would still need to get permission from the copyright holders though. If on the other hand the modders did have an agreement with the original copyright holders, then Beamdog may have needed to obtain the necessary rights to the mod from both the original copyright holders AND The modders.
Why am I focusing on mods? Because I don't know what Beamdog's agreement with the copyright holders was. All I know based on Trent's response is that they were allowed to distribute existing content and create derivative works. What isn't clear is what this "existing content" is: does it include only the original game or does it also include mods of the original game (e.g. mods created before Beamdog was even around)?
Ultimately, my concern is not about the likelihood of anyone getting sued. The chance of that happening is almost zero. My concern is strictly about the morality of following the law (see Romans 13). I don't want to get into a theological debate here, but what this means is that my concern with abiding by the law has nothing to do with my fear of a lawsuit or prosecution. Let's stay on topic please.
Everything below this line consists of replies to comments others have made. No need to read if you're not interested in legal and theological debates. They don't infringe any rights if there's an agreement in place, be it the original EULA or separately negotiated agreements like Beamdog had with the copyright holders. And you proved my point when you said this: If you disagree that the mod does not qualify for copyright protection, then there IS a need to request permissions from the modders if not the other entitites like Wotc, in which case I'd still like to hear Trent's answer to my last question. You're mistaken. I don't need the exact details of all the negotiations. I only want to know whether the
"existing content" Trent mentioned includes mods made for the pre-Beamdog games. That's all. A simple yes or no could hardly lead to a competitive disadvantage. I'm not asking for the names of those modders, or even how many there are. I'm completely trusting what Trent says. You're right. The law in America is not a simple black and white. It's nuanced by many things, such as public policy, the letter of the law, and the intent of the law. You are also right that courts may arrive at different decisions. If two federal appeals courts arrive at two different decisions, the Supreme Court may never issue the writ of certiorari necessary to resolve the case. But your position is not that the law in this case is nuanced, but that we should ignore the law altogether because there IS no right or wrong (everything is subject to everyone's own interpretation), and that position is completely wrong. If person A says something is legal and person B says it's not, one of them is clearly wrong. The words "government" and "authority" appear together as one phrase (i.e. "governing authorities") at the very beginning of Romans 13. Thus, I believe it would be a mistake to conflate an aggrieved party with an actual human government. If you accept the date of 57 AD as accurate, then you should note that Romans was written 3 years into the reign of Emperor Nero, one of the most tyrannical and corrupt rulers in human history. If humans were to obey human law during such a terrible time, what excuse do we have for not obeying the law now?
Don't get me wrong. I don't agree with every law that's been written. But I will follow them all while working to change the law through legal means (e.g. lobbying, voting). Unless a human government tells us to disobey God's word, a Christian has no excuse for breaking the law.
But in my defense, I believed my concerns could be resolved even if I made this assumption, and indeed, Trent in one reply already resolved most of it. I have a hunch that Beamdog also licensed rights from modders and/or the multiple companies he mentioned. I just want him to confirm it. Is that not the safest way to be sure? I'm looking for certainty, or something as close as possible to it. If even if we assume that mods ARE derivative works and the proper permissions were still obtained, then everything's fine and I can get to enjoying these games.
If this problem gets resolved, I may join the Beamdog community. Beamdog's copies of the game are likely the only ones I can mod legally. I would certainly enjoy discussing other topics with you in threads where such discussions would be productive. I'm impressed. You are one of the few who truly understood my question. Most people simply assumed I was worried about getting sued instead of about following the law purely for moral reasons.