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Does Beamdog have the permission to create derivative works?

palladiumpalladium Member Posts: 16
edited June 2016 in General Modding
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?

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Comments

  • [Deleted User][Deleted User] Posts: 0
    edited June 2016
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  • palladiumpalladium Member Posts: 16
    edited June 2016
    I'm still learning to use the quoting function; my preview didn't work properly, so I'll have to do some more testing before I use it in a post, but I'll try my best without quotes.

    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.

  • mf2112mf2112 Member, Moderator Posts: 1,919
    The fact that the games have been on sale for several years by Beamdog means you are safe.

  • LiamEslerLiamEsler Member Posts: 1,859
    From memory, the license is with WotC, the current rightsholders.

    mf2112JuliusBorisov
  • palladiumpalladium Member Posts: 16
    edited June 2016
    mf2112 said:

    The fact that the games have been on sale for several years by Beamdog means you are safe.

    It's not necessarily that simple. Beamdog may have distribution rights only, which means sale of the game is allowed but modding is not.

  • [Deleted User][Deleted User] Posts: 0
    edited June 2016
    The user and all related content has been deleted.

    mf2112Grammarsalad
  • mf2112mf2112 Member, Moderator Posts: 1,919
    I think you are worrying pointlessly over nothing. :)

    elminsterGrammarsalad
  • inethineth Member Posts: 623
    palladium said:

    I just would like some confirmation before I install any mods.

    Dude.
    Either I'm misunderstanding what you're saying here, or you're the most Lawful Neutral person I've ever met... :smile:

    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.

  • JuliusBorisovJuliusBorisov Member, Administrator, Moderator, Developer Posts: 21,998
    I would also notice that the laws you provided are from USA, @palladium , while Beamdog are located in Canada, and although WotC are from USA, maybe there's an element of canadian law in their contracts.

    lolien
  • Mr2150Mr2150 Member Posts: 1,170
    edited June 2016
    Actually modification is specifically against the terms stated in the EULA.

    "The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies."
    I think intent realistically has a lot of impact here.

    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.

    lolien
  • PeccaPecca Member Posts: 2,016
    Since you need the developer's word to solve this issue, I think we should tag some. @Dee @TrentOster @PhillipDaigle

    Mr2150lolienmf2112
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    Mr2150lolien
  • Mr2150Mr2150 Member Posts: 1,170
    Fully agree @subtledoctor - hence my comment about 'intent'...

    lolien
  • PeccaPecca Member Posts: 2,016
    I guess the OP wants to hear from a developer that it's okay to install mods.

  • Avenger_teambgAvenger_teambg Member, Developer Posts: 5,862
    I'm not an authoritative person, but my understanding is, that Beamdog not just tolerates, but supports modding (to an extent). I'm not sure about for profit modding, but free modders were always safe. This covers IWDEE as well. There always had been IWD mods too, and i've never heard any problem about that side either.

    Mr2150JuliusBorisovRavenslightGirewan
  • palladiumpalladium Member Posts: 16
    edited June 2016

    We spent over a year putting together the agreements for the Enhanced Editions of the games. We have a multi-company agreement with all the stakeholders and we have the rights to distribute existing content and create derivative works for commercial release.
    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

    Thanks for the information Trent! I was hoping you might see this thread. Based on what you've said, my concern about Beamdog's right to create derivative works from the original game is resolved.

    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.

    Post edited by palladium on
  • [Deleted User][Deleted User] Posts: 0
    edited June 2016
    The user and all related content has been deleted.

    mf2112JuliusBorisov
  • Xeno426Xeno426 Member Posts: 38
    Has anyone ever been sued for installing mods, ever? I've heard mod groups getting in trouble, but they're usually for making mods that are using other IPs. And even then, it's just C&D.

  • JuliusBorisovJuliusBorisov Member, Administrator, Moderator, Developer Posts: 21,998
    palladium said:

    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.

    @palladium , it seems to me that you're messing two separater terms - a mod and an addition to the game by developers.

    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.

    mf2112
  • palladiumpalladium Member Posts: 16
    edited June 2016
    Special permission has always been needed to create a derivative work such as a mod. The permission could be explicitly given by a modding section in the game's EULA, or it could be negotiated separately (much harder) as Beamdog did. The reason the general public believes no special permission is needed is because most gaming companies don't take legal action against what is clearly legally actionable copyright infringement.

    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.



    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.

    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.

  • [Deleted User][Deleted User] Posts: 0
    edited June 2016
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  • palladiumpalladium Member Posts: 16
    edited June 2016
    TLDR: My question to Trent remains: 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? Trent, please see my 4th post in this thread for more elaboration on my question.

    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.



    You seem to take it as an article of faith that mods necessarily infringe copyrights. But that is a factual question and I think your assumption is incorrect.

    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:

    palladium said:

    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.

    I disagree.

    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.


    Beamdog has made clear that they do indeed have all necessary permissions. They have hired several modders and included those modders' work in the commercial products. The exact details of the negotiations with such people has not been published, nor will it be - to do so would potentially put the company at a competitive disadvantage when negotiation employment with future hires, and I doubt they would sacrifice that to assuage the moral doubts of a consumer. But everyone seems to be getting along, and several informal statements have been made around the web to the effect that no rights have been abrogated. You can pretty safely infer that all permissions have been granted.

    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.



    Thing is, as I tried to explain earlier, the law in America is not a simple black-and-white construct. It is nuanced by regulatory decisions and judicial glosses, and shaded by public opinion. You cannot separate these things. The text that describes what is a derivative work is subject to interpretation, and after a week of legal research trying to nail down a good interpretation, reasonable minds might still disagree. It might be litigated, and courts in different parts of the country might arrive at opposing decisions, doubtless informed by local sentiment and the particular experiences and beliefs of those different judges. And the difference might never be resolved! You can't say that one party is right and the other is wrong, because the law is "x." That very dispute is part of the fabric of the law.

    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.



    Beamdog has the first authority over this material and Beamdog would be in a position to sue if its copyrights were infringed. As the party with a potential cause of action, they would be the first party to take action against those who might infringe. Therefore, they are the organization who should be considered as the "government" or the "authority" in the terminology of Romans 13.

    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.


    (By the way, contrary to Romans 13, there are plenty of places on this earth where rulers hold terror for those who do right. That text, written in AD 57, was written in the present tense, and does not reflect the 21st-century. But as you are in America, you are not in one of those places, so that's cool.)

    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.

    Post edited by palladium on
  • mf2112mf2112 Member, Moderator Posts: 1,919
    In all seriousness, given the questionable history of the patent office, patent trolls, ridiculous lawsuits, labor conditions, I am not sure how you can justify being on a computer then. Or using a cell phone or tablet.

  • [Deleted User][Deleted User] Posts: 0
    edited June 2016
    The user and all related content has been deleted.

    Post edited by [Deleted User] on
  • Xeno426Xeno426 Member Posts: 38
    Again, when has anyone EVER gotten into legal trouble for installing mods? The closest I can think of are people that get banned from multiplayer games for having mods that are cheats.

  • palladiumpalladium Member Posts: 16
    edited June 2016

    Well, you reasonably disagreed with several of my comments, and misinterpreted others - I didn't say there is no right or wrong, just the the litigation (both sides, not just the winning side) becomes part of the fabric of the law. The law is a rich tapestry, not a flat sheet of paper.

    I'll not debate, except to say that I think the law is FAR more nuanced than you you suggest. American laws spring from, and are interpreted through the lens of, centuries of intellectual development, including the Enlightenment, that is not addressed by Romans (because Paul was not a time traveler :) ).

    Yes, perhaps that was a bit hyperbolic on my part. But it wasn't deliberate misrepresentation. I was probably more motivated by wanting to avoid getting into whether mods were derivative works, because such a question would probably need to go into the statutory definition as well as substantial case law; and even then, you never know how a judge will rule. As you pointed out, the law is complicated. Look how long it took Beamdog to get the proper licenses from all those companies. I can't find the article now, but if I remember correctly, the whole thing nearly fell apart at one point and we nearly didn't have Enhanced Edition games.

    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.

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