SAVE SCENE.ORG FROM LEGAL ATTACKST!!
category: general [glöplog]
Anyone out there with the legal answer?
read this:
Scene.org staff has been receiving a lot of requests to remove files from artists whose previously-uploaded works have been sold to a commercial entity. Some of these requests have been polite, few have been not so polite and then there have been down-right threatening demands with associated legal language.
As you know, Scene.org exists as an archival and distribution service for the good of the community, run & supported by the members of the community. I'm sure you understand that we do not have the resources to continue to handle these requests nor defend ourselves should someone decide to initiate legal proceedings. Thus, we are investigating options to protect ourselves without taking away any rights from the creators of the works.
Chief among these options is requiring a CC (CreativeCommons) license for all works in the archive -- both past & present.
We realize this is a major change, and thus would very much welcome any comments and suggestions from our users through the discussions area. Should you be or know someone who is legally-savvy in these matters, we would very much welcome an opportunity to consult with you directly (contact: staff@scene.org).
This just sucks companies threating scene.org with legal theads. Becoz a sceners sold his good old demo which was once spread as freeware is now copyrighted. Bah!
magic/nah
read this:
Scene.org staff has been receiving a lot of requests to remove files from artists whose previously-uploaded works have been sold to a commercial entity. Some of these requests have been polite, few have been not so polite and then there have been down-right threatening demands with associated legal language.
As you know, Scene.org exists as an archival and distribution service for the good of the community, run & supported by the members of the community. I'm sure you understand that we do not have the resources to continue to handle these requests nor defend ourselves should someone decide to initiate legal proceedings. Thus, we are investigating options to protect ourselves without taking away any rights from the creators of the works.
Chief among these options is requiring a CC (CreativeCommons) license for all works in the archive -- both past & present.
We realize this is a major change, and thus would very much welcome any comments and suggestions from our users through the discussions area. Should you be or know someone who is legally-savvy in these matters, we would very much welcome an opportunity to consult with you directly (contact: staff@scene.org).
This just sucks companies threating scene.org with legal theads. Becoz a sceners sold his good old demo which was once spread as freeware is now copyrighted. Bah!
magic/nah
WTF?
once you release something on a demoparty you agree to certain terms. to ppl who have released sth in the scene and now want to sell it i say : go where the pope is.
once you release something on a demoparty you agree to certain terms. to ppl who have released sth in the scene and now want to sell it i say : go where the pope is.
word!
To kick-off the discussion here, I'm going to post Jesse's (Ior) great letter to CreativeCommons for advise.
I think it rather well serves as an open letter for assistance & comments.
----
Hello,
My name is Jesse Rothenberg. I'm writing to you on behalf of Scene.org and the International Scene Organisation RY, a non-profit organisation registered in Finland. For a decade now we have run the major archival service of the 'demoscene,' a loose-knit community of diverse digital media (audio, graphics, animations pre-rendered and real-time, and combinations thereof) creators spread around the world. This service and more are available off our servers: http://www.scene.org for more information. We host tens if not hundreds of thousands of works and our main server alone transfers an average of 100 GB per day.
Historically, works created within the demoscene have been released more-or-less into the public domain by their authors. That is to say:
Sometimes the authors will append a (c) notice to their works (whether or not that is all that is required in the country of creation is a different
story) but in almost all cases have either signed a document or provided a packaged text in which they explicitly allowed non-profit distribution of the works.
Unfortunately, this trend is changing. As many demoscene participants are active in the design, videogame, animation, film, and music industries -- or will head in those directions -- it should come as no surprise that the demoscene has fostered the birth of new distribution mentalities, primarily the netlabel, as showcased by Simon Carless' (now of
archive.org) Mono411 and Monotonic labels, possibly the first explicit netlabels created.
So it turns out that a number of musicians are now releasing music directly or via netlabels hosted on Scene.org with the aim that free distribution will lead to increased awareness and possibly a commercial deal. So far, so good. The problem is when a commercial deal comes through for a work previously released by the author through Scene.org services.
As it stands we are receiving an increasing number of threatening emails demanding removal of a work.
As Scene.org and its equivalent registered organisation have no revenue streams and staffers are working pro bono, we have no way to defend against legal actions. So we're looking at options that protect: 1) the integrity of the archive, 2) our rights as distributors, and 3) ownership rights of the authors. Naturally, a CC license seems just about right.
So here's the problem and the questions: As Scene.org grew haphazardly out of a grass-roots ideal for distribution, we have had no explicit Terms of Service. We now wish to create/append a requirement to the TOS stating
that: by uploading your work to Scene.org, you agree to a CC license ( http://creativecommons.org/licenses/by-nc-nd/2.0/ ) of your work.
Likewise, all works previously uploaded to Scene.org would fall under this same license.
So I'm writing to enquire about the legality of this action. We want to do this to reduce legal conflict and preserve the spirit in which our services were founded. We don't want to get into legal hot water. Clearly, there's no way we could contact every single author of every work we host.
Can you provide us with any analysis or advice?
Just to make it more confusing: We are a registered non-profit organisation in Finland. Our main server resides in the Netherlands. We have mirrors Japan, Germany, the U.S., Hungary, Poland, Portugal, and Sweden. Our users have created their works in over 50 countries worldwide.
So under whose jurisdiction do we fall?
Thank you for your time and consideration,
Jesse Rothenberg and the Scene.org staff
I think it rather well serves as an open letter for assistance & comments.
----
Hello,
My name is Jesse Rothenberg. I'm writing to you on behalf of Scene.org and the International Scene Organisation RY, a non-profit organisation registered in Finland. For a decade now we have run the major archival service of the 'demoscene,' a loose-knit community of diverse digital media (audio, graphics, animations pre-rendered and real-time, and combinations thereof) creators spread around the world. This service and more are available off our servers: http://www.scene.org for more information. We host tens if not hundreds of thousands of works and our main server alone transfers an average of 100 GB per day.
Historically, works created within the demoscene have been released more-or-less into the public domain by their authors. That is to say:
Sometimes the authors will append a (c) notice to their works (whether or not that is all that is required in the country of creation is a different
story) but in almost all cases have either signed a document or provided a packaged text in which they explicitly allowed non-profit distribution of the works.
Unfortunately, this trend is changing. As many demoscene participants are active in the design, videogame, animation, film, and music industries -- or will head in those directions -- it should come as no surprise that the demoscene has fostered the birth of new distribution mentalities, primarily the netlabel, as showcased by Simon Carless' (now of
archive.org) Mono411 and Monotonic labels, possibly the first explicit netlabels created.
So it turns out that a number of musicians are now releasing music directly or via netlabels hosted on Scene.org with the aim that free distribution will lead to increased awareness and possibly a commercial deal. So far, so good. The problem is when a commercial deal comes through for a work previously released by the author through Scene.org services.
As it stands we are receiving an increasing number of threatening emails demanding removal of a work.
As Scene.org and its equivalent registered organisation have no revenue streams and staffers are working pro bono, we have no way to defend against legal actions. So we're looking at options that protect: 1) the integrity of the archive, 2) our rights as distributors, and 3) ownership rights of the authors. Naturally, a CC license seems just about right.
So here's the problem and the questions: As Scene.org grew haphazardly out of a grass-roots ideal for distribution, we have had no explicit Terms of Service. We now wish to create/append a requirement to the TOS stating
that: by uploading your work to Scene.org, you agree to a CC license ( http://creativecommons.org/licenses/by-nc-nd/2.0/ ) of your work.
Likewise, all works previously uploaded to Scene.org would fall under this same license.
So I'm writing to enquire about the legality of this action. We want to do this to reduce legal conflict and preserve the spirit in which our services were founded. We don't want to get into legal hot water. Clearly, there's no way we could contact every single author of every work we host.
Can you provide us with any analysis or advice?
Just to make it more confusing: We are a registered non-profit organisation in Finland. Our main server resides in the Netherlands. We have mirrors Japan, Germany, the U.S., Hungary, Poland, Portugal, and Sweden. Our users have created their works in over 50 countries worldwide.
So under whose jurisdiction do we fall?
Thank you for your time and consideration,
Jesse Rothenberg and the Scene.org staff
Wow, quick reaction Magic, that news is already a month old :-)
Anyhow, forcing people to release their work under specific licenses is wrong IMHO, it should be up to the author to decide how he releases his work... And how is scene.org going to check if the uploader is also the rightful copyright owner of the work?
Anyhow, forcing people to release their work under specific licenses is wrong IMHO, it should be up to the author to decide how he releases his work... And how is scene.org going to check if the uploader is also the rightful copyright owner of the work?
I think once something is released as freeware, it cant be changed in the future saying is copyrighted!
I agree with magic: When people decide to release something for free, then it will remain free for ever. They can't all of a sudden decide it's no longer free and therefore has to be removed from the servers they had previously uploaded it to. It's their own fault that they uploaded their prods to scene.org when their actual intention is to sell them!
is this an april fools joke or magic really thinks no one has been reading scene.org's front page for the last month? O_o
yaaaaaaah now go and explain that to the entities which manage their copying and broadcasting rights ... it´s not so easy, people!
actually every piece of work is _always_ copyrighted by the creator and just because the creator decides to release the piece of work freely on scene.org doesn't mean that the creator relinguishes the copyright. no matter what happens, the creator will always hold the copyright, except if it is expressly handed over to another entity. as i see it, the only way to get around this, is to make the creator agree with a license, if the piece of work is to be featured on scene.org. this of course presents a problem, since the piece of work is often not uploaded by the creator himself.
The problem is only with the /music directory and all the netlabel releases and all those "Musicians" desperately wanting to become famous anyway.
Restricting /music uploads to a web interface which requires explicitly agreeing that scene.org may host and distribute the uploaded files for free should handle 95% of the cases they have to handle.
And coping with the other 5% are your fucking DUTY if you intend to host an archive with tens of thousands of files. Life's no pony farm, goddamnit.
Restricting /music uploads to a web interface which requires explicitly agreeing that scene.org may host and distribute the uploaded files for free should handle 95% of the cases they have to handle.
And coping with the other 5% are your fucking DUTY if you intend to host an archive with tens of thousands of files. Life's no pony farm, goddamnit.
Another good solution would be: delete the /music directory and no longer accept uploads of this category.
KB what a crock of shit. Scene provides a free service that helps musicians get their music out in the open. Hosts the file so THEY DONT HAVE TO PAY MONEY TO A HOSTING SERVICE THEMSELF. They just need to be selective at what they put on public display, it can not be THE FREE hosting services problem EVER!
adok's solution is a plausible one. No music, no problem. Want hosting. Bleed through your nose, or accept that what you release remains public domain on this server.
ps: Unfortunately no aprils fool joke. It's biiter reality situation. Which I thought was so important to debate it at pouet.net bbs also since pouet.net can't fully function without the servers from scene.org!
magic: ok
I rarely post anymore because pouet has just turned into one giant slinging match, but this deserves comment.
In essence, scene.org are screwed for a number of reasons. First the basic premise of copyright needs to be understood. There is no such thing as common law copyright. To understand what that means, read this page:
http://encyclopedia.laborlawtalk.com/Common_law_copyright
Second, the idea of publishing needs to be understood. A work is not necessarily subject to copyright laws if it has not been "published". I'll quote directly to explain this:
For example, Andre Bergmino writes an essay called "Blood and Oil" about the war in Iraq, and distributes it to five human rights organizations under a nonexclusive license that places restrictions on their right to disclose the essay's contents. "Blood and Oil" has not been "published" in the copyright sense. If Bergmino authorizes posting of the essay on the Internet, however, it would likely be considered published.[end]
Releases on scene.org clearly fall under the publishing category. The issue is transfer of rights.
Consider this for a second. If I write a book, print it and give it away for free, that is perfectly within my rights to do so. I can also stipulate that, as the copyright holder, anyone who owns a copy of that book may duplicate it and give it away for free. If a year later I sell my book to a publishing company, they cannot demand that all existing copies of the book (owned by private citizens) are destroyed. They can, however, physically prevent me from printing and giving away more books (because, for example, they have the master PDF document). They are also legally able to prevent me from doing so.
Applying this to scene.org is very difficult. Creators upload their products to scene.org to give it away for free. But when they sell the rights to those products to a third party, that third party is perfectly within their rights to demand that scene.org ceases and desists from distributing copyrighted material. Because the copyright holders don't control the media (there's no master file for a demo, after all), they are reliant on laws to protect their investment.
So I'm afraid the basic answer is, scene.org is screwed. Even if the Berne Convention didn't exist, scene.org is still at risk of RIAA tactics. In other words, all it takes is for the copyright holder (nice, cash-rich company) to draft a legal demand to scene.org (no cash to defend) or scene.org's providers (who won't want to get involved), and scene.org has no choice. Take off the stuff, or shut down.
The problem here isn't scene.org, the creators of the product or the scene itself. The problem now is that the outside world is slowly creeping into the scene, and we all have to grow up and accept that.
I would recommend that scene.org contacts the EFF for their advice too. But at the end of the day, the only option is to remove the material as you receive each demand.
In essence, scene.org are screwed for a number of reasons. First the basic premise of copyright needs to be understood. There is no such thing as common law copyright. To understand what that means, read this page:
http://encyclopedia.laborlawtalk.com/Common_law_copyright
Second, the idea of publishing needs to be understood. A work is not necessarily subject to copyright laws if it has not been "published". I'll quote directly to explain this:
For example, Andre Bergmino writes an essay called "Blood and Oil" about the war in Iraq, and distributes it to five human rights organizations under a nonexclusive license that places restrictions on their right to disclose the essay's contents. "Blood and Oil" has not been "published" in the copyright sense. If Bergmino authorizes posting of the essay on the Internet, however, it would likely be considered published.[end]
Releases on scene.org clearly fall under the publishing category. The issue is transfer of rights.
Consider this for a second. If I write a book, print it and give it away for free, that is perfectly within my rights to do so. I can also stipulate that, as the copyright holder, anyone who owns a copy of that book may duplicate it and give it away for free. If a year later I sell my book to a publishing company, they cannot demand that all existing copies of the book (owned by private citizens) are destroyed. They can, however, physically prevent me from printing and giving away more books (because, for example, they have the master PDF document). They are also legally able to prevent me from doing so.
Applying this to scene.org is very difficult. Creators upload their products to scene.org to give it away for free. But when they sell the rights to those products to a third party, that third party is perfectly within their rights to demand that scene.org ceases and desists from distributing copyrighted material. Because the copyright holders don't control the media (there's no master file for a demo, after all), they are reliant on laws to protect their investment.
So I'm afraid the basic answer is, scene.org is screwed. Even if the Berne Convention didn't exist, scene.org is still at risk of RIAA tactics. In other words, all it takes is for the copyright holder (nice, cash-rich company) to draft a legal demand to scene.org (no cash to defend) or scene.org's providers (who won't want to get involved), and scene.org has no choice. Take off the stuff, or shut down.
The problem here isn't scene.org, the creators of the product or the scene itself. The problem now is that the outside world is slowly creeping into the scene, and we all have to grow up and accept that.
I would recommend that scene.org contacts the EFF for their advice too. But at the end of the day, the only option is to remove the material as you receive each demand.
From what I've read so far here, there seems to be 2 things in conflict:
1. We want scene.org to be a good complete archive, and not start losing bits here and there due to copyright
2. We can't do that as it would be illegal.
So.. scene.org has to stop distributing some files. From what defbase has said, I think that scene.org CAN keep a copy of those files itself. So perhaps as a compromise, scene.org can continue hosting the files, but disable the read rights for downloading. That way, we can see the files, know who made them and what they're called, but not download them. Would that cover scene.org? At least then we'd be able to source the files from elsewhere perhaps, if we know the filename, and they wouldn't be erased from scene history.
1. We want scene.org to be a good complete archive, and not start losing bits here and there due to copyright
2. We can't do that as it would be illegal.
So.. scene.org has to stop distributing some files. From what defbase has said, I think that scene.org CAN keep a copy of those files itself. So perhaps as a compromise, scene.org can continue hosting the files, but disable the read rights for downloading. That way, we can see the files, know who made them and what they're called, but not download them. Would that cover scene.org? At least then we'd be able to source the files from elsewhere perhaps, if we know the filename, and they wouldn't be erased from scene history.
defbase: At the moment you're right, yes.
But: If scene.org enforces any license agreement while uploading (be it the CC license, be it a click-through scene.org-may-publish-it one), selling the copyrights to a third party does NOT invalidate such licenses. So this would be a perfectly valid solution.
But: If scene.org enforces any license agreement while uploading (be it the CC license, be it a click-through scene.org-may-publish-it one), selling the copyrights to a third party does NOT invalidate such licenses. So this would be a perfectly valid solution.
btw, i'm totally against a Creative Commons requirement for all scene.org uploads. What you're trying to do here will have a severe impact on the demoscene as a whole: EVERY demo on EVERY platform and EVERY party release will require a CC license attached to it.
As easy as it sounds, this is so highly unrealistic (think Amiga/C64 demos) I don't know why anyone in their right mind can really propose it. It would be easier for scene.org, true, but a strict enforcement would kill off scene.org as THE scene archive that it is. Many people will rather resort to hosting their files themselves, leading to a situation where it will be almost impossible to get those releases, as there's nobody behind them willing to keep up their availability.
Using a CC licensing model will beniefit scene.org in the short term, but it will hurt the whole scene and thus also scene.org in middle/long term. At least that's my prediction.
Demosceners still have enough of this "rebel" attitude in them that they simply want to release stuff. They do not want to care about what exact license they attach to their productions, they just want to get their pieces of art out to everyone.
As easy as it sounds, this is so highly unrealistic (think Amiga/C64 demos) I don't know why anyone in their right mind can really propose it. It would be easier for scene.org, true, but a strict enforcement would kill off scene.org as THE scene archive that it is. Many people will rather resort to hosting their files themselves, leading to a situation where it will be almost impossible to get those releases, as there's nobody behind them willing to keep up their availability.
Using a CC licensing model will beniefit scene.org in the short term, but it will hurt the whole scene and thus also scene.org in middle/long term. At least that's my prediction.
Demosceners still have enough of this "rebel" attitude in them that they simply want to release stuff. They do not want to care about what exact license they attach to their productions, they just want to get their pieces of art out to everyone.
good point. Im sorry if a came off as rude kb
Quote:
Using a CC licensing model will beniefit scene.org in the short term, but it will hurt the whole scene and thus also scene.org in middle/long term. At least that's my prediction.
why?
forcing the CC licence (which anyway explicits the usual "distribute for free - we keep the rights" general release mode) is excessive imho, and would require every single entity to agree - or the uploaders to check and sort.
what about going the other way round? submitting a prod to a party uploading to scene.org implicitly gives the permission to distribute on a free base. make this explicit with a clause like 'submitting blablabla you agree on giving scene.org archives the right to distribute the entry on a free basis'.
you choose to submit - you know what. use a netlabel otherwise. how does this sound?
what about going the other way round? submitting a prod to a party uploading to scene.org implicitly gives the permission to distribute on a free base. make this explicit with a clause like 'submitting blablabla you agree on giving scene.org archives the right to distribute the entry on a free basis'.
you choose to submit - you know what. use a netlabel otherwise. how does this sound?
right now we're planning allowing cc license but not making it mandatory. maybe it will be mandatory for new uploads to /music/groups/ or /music/artists/ since those are the files more prone to request for removal.
Just to clarify, I've studied law but I'm nowhere near legally qualified (and as has been pointed out this issue covers so many types of law as well as countries it's a difficult one).
I don't believe the CC license will help. It's a known fact that contracts are only legally admissible (ie: enforceable in a court of law) if they do not impose unreasonable restraints. This is, for example, what prevents companies from tying people up in crazy contracts, and is why you see the "If any part of this agreement is found to be unlawful" clause in most contracts. A company may be able to successfully argue that enforcement of an ongoing CC license applied to their copyrighted work which they were not party to is unreasonable.
The problem with any license (CC, GNU etc) is that it is only applicable for as long as the copyright holder wishes to use it for current distribution. I don't believe that a CC license is pervasive as such - in other words, if someone buys the copyright to a work that was released under license, I don't believe they have to honour that license *for future distributions*. The "future" part is the critical one, because scene.org continues to serve content even after the copyright of the content has changed. I'm not sure whether I made that clear in my previous post, but that's what I was aiming at with the whole book publishing thing.
The final issue with licensing is enforcement from scene.org side. Ozon's idea sounds good in principle, but there is no such thing as an implicit rights agreement through distribution. This goes back to "Click through" EULA that Microsoft et al got hammered for. Essentially it has been ruled illegal to enforce a license the licensee/licenser has not explicitly accepted. Putting a page up on scene.org saying "If you upload to /music, you accept this license" is not legally admissible, because there is no requirement for the uploader/copyright holder to view and explicitly accept those terms before uploading. The point here is "explicitly accept" - a concious action to accept an license must occur, otherwise a covenant is not considered to be created. Scene.org cannot force a copyright holder to accept a licensing agreement by default. So one option would be to force uploads to /music through a web interface, that requiers the uploader to check a "Yes, I agree" box before proceeding. Not technically feasible, I think.
Requiring all uploaders to include a CC license or similar in their zip is fair, as it shows a concious acceptance of the agreement. However this would require scene.org staff to check every single archive to make sure every single CC license was correctly filled in and included.
Psonice's idea is good - read only, so we can see the details. However this leaves us open to the whole MPAA/RIAA/Edonkey/Shareconnector issue. Scene.org wouldn't be providing copyrighted content, but the argument could be made that it was facilitating access to copyrighted content. Scene.org would *legally* be in the right, but all it would take is a company with some cash and a lawyer to cause lots of problems. Nothing you can do about litigious companies though.
I think I've probably added to the confusion here. IMO the best option is psonice's. Personally I wish there was some way to ensure releases on scene.org were proper scene releases, and not stuff created because some guy wants to get a recording deal.
I don't believe the CC license will help. It's a known fact that contracts are only legally admissible (ie: enforceable in a court of law) if they do not impose unreasonable restraints. This is, for example, what prevents companies from tying people up in crazy contracts, and is why you see the "If any part of this agreement is found to be unlawful" clause in most contracts. A company may be able to successfully argue that enforcement of an ongoing CC license applied to their copyrighted work which they were not party to is unreasonable.
The problem with any license (CC, GNU etc) is that it is only applicable for as long as the copyright holder wishes to use it for current distribution. I don't believe that a CC license is pervasive as such - in other words, if someone buys the copyright to a work that was released under license, I don't believe they have to honour that license *for future distributions*. The "future" part is the critical one, because scene.org continues to serve content even after the copyright of the content has changed. I'm not sure whether I made that clear in my previous post, but that's what I was aiming at with the whole book publishing thing.
The final issue with licensing is enforcement from scene.org side. Ozon's idea sounds good in principle, but there is no such thing as an implicit rights agreement through distribution. This goes back to "Click through" EULA that Microsoft et al got hammered for. Essentially it has been ruled illegal to enforce a license the licensee/licenser has not explicitly accepted. Putting a page up on scene.org saying "If you upload to /music, you accept this license" is not legally admissible, because there is no requirement for the uploader/copyright holder to view and explicitly accept those terms before uploading. The point here is "explicitly accept" - a concious action to accept an license must occur, otherwise a covenant is not considered to be created. Scene.org cannot force a copyright holder to accept a licensing agreement by default. So one option would be to force uploads to /music through a web interface, that requiers the uploader to check a "Yes, I agree" box before proceeding. Not technically feasible, I think.
Requiring all uploaders to include a CC license or similar in their zip is fair, as it shows a concious acceptance of the agreement. However this would require scene.org staff to check every single archive to make sure every single CC license was correctly filled in and included.
Psonice's idea is good - read only, so we can see the details. However this leaves us open to the whole MPAA/RIAA/Edonkey/Shareconnector issue. Scene.org wouldn't be providing copyrighted content, but the argument could be made that it was facilitating access to copyrighted content. Scene.org would *legally* be in the right, but all it would take is a company with some cash and a lawyer to cause lots of problems. Nothing you can do about litigious companies though.
I think I've probably added to the confusion here. IMO the best option is psonice's. Personally I wish there was some way to ensure releases on scene.org were proper scene releases, and not stuff created because some guy wants to get a recording deal.