Willy: The authors of "The Wind Done Gone" parody of "Gone with the Wind", a reverse engineered retelling of the exact story of "Gone with the Wind" beg to differ with you on the basis that (IMO) that single court case seems to me to debunk every point you seemed to believe you were making.
'nuf said.
Jonnan
I don't see how that follows. Let's examine the points I made, with commentary from the Suntrust v. Houghton Mifflin case.
There are fundamental differences between analysing a story and cracking a game. One is intended to be done (by good writers, anyway) and the other is not. Much of the value of a book lies in analysing the different levels on which the story works, and how different themes are portrayed. On the other hand, cracking the security features of a program is not necessary for it to be used as intended. It is generally only necessary when one is attempting something prohibited by copyright.
The Suntrust case deals explicitly with parody, and how fair use applies to it. I fail to see how reworking an iconic book to refute its premises is the same as cracking copy protection on software. Surely you aren't calling a cracked game a parody of the original?
More importantly, a crack would fail to qualify as fair use. From Suntrust:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include?
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
A crack does not really fall into any of the fair use catergories. It certainly IS a criticism of the game, but not of the scholarly variety protected by fair use; same with being a commentary; certainly not news reporting; not really a teaching aid; nor scholarship or research. Furthermore, while it gains points under factor 1, it suffers under #2, falls flat under #3, and is simply buried by #4.
Running of private servers and EULAs aren't even approached in the case, so I'll skip those.
The purpose of copyright is to provide an incentive to create and ultimately benefit the general public. It isn't to protect or enrich a copyright holder.
And the incentive provided is mostly monetary. Yes, public recognition, professional standing, bragging rights, etc. are all protected by copyright, but the main force behind it is allowing the creator to sell his work without competition from people simply reprinting his work.
I believe the 11th Circuit put that to bed as well:
The Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public. Harper & Row, 471 U.S. at 558, 105 S. Ct. at 2229 ("By establishing a marketable right to the use of one?s expression, copyright supplies the economic incentive to create and disseminate ideas."). The Supreme Court has recognized that "[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public." Id. at 546, 105 S. Ct. at 2223 (quoting Sony Corp. of America v. Univ. City Studios, Inc., 464 U.S. 417, 477, 104 S. Ct. 774, 807 (1984) (Blackmun, J.,dissenting)). Without the limited monopoly, authors would have little economic incentive to create and publish their work. Therefore, by providing this incentive, the copyright law promotes the public access to new ideas and concepts.
I'd really like not to repeat the
game cheats are illegal? discussion, but the basics are this: in no other form of media can one person reverse engineering a product affect the usability of someone else's copy of that product. Hacking the security system of a game to your benefit inevitably damages the usability of that product for others.
The Suntrust decision doesn't contradict this, either. Someone writing a parody of a book, especially one intended to tear apart the points that make the book apealing to its main audience, doesn't harm either the usability of copies of the original book, or the ability of the copyright holder to sell additional copies of the original work.
I might add that reverse engineering for purposes of creating competing products is generally breaking copyright (or patent, as is more common). That's the major reason patent rights run out so much faster than copyright - REing a physical object is often the first step in creating a (newly legal) competing product.
Again, not contradicted. The parody novel is not a competing product, as the audience of the two works is essentially mutually exclusive.
I'm disappointed. Usually, refuting your posts takes at least some work. Not so with this one.
