Comment by jerf - Hacker Neue

jerf Sep 5, 2023 parent

I've been waiting for ~23 years for the copyright system to grapple with the implications of 1. having a copyrighted work A 2. taking someone else's "patch" (mod/crack/whatever, I call it "patch" as a general term) B and 3. combining them on your local computer to produce a final work C. We techies have been arguing about who has what rights, who can block who from doing what, who's responsible for what, etc. in that situation for at least that long, when the mood strikes us. I'm still unaware of any really clear precedent on this and I'm pretty sure legislation remains utterly oblivious that such a thing is even possible, or how powerful it is. I've been on the lookout for even a hint of this for a long time and there's hardly been anything.

I guess the economics just haven't worked out to produce a true showdown. Game mods are in my opinion the clear favorite for where this would finally rise to a court-level problem, and clearly there's been a lot of conflict in this space, but nobody yet has been foolhardy enough to build a large enough business on selling some mod that when the owner tries to shut them down they actually go to a full-on, precedent-setting legal battle. (After all, economically, when you get to that level of capability, why not make your own game that you clearly own? That path has been trod many times.)

So, my best answer to your question is, honestly nobody really knows what kind of rights Razor may or may not have to the final product of their crack, especially since it is not the crack itself being distributed.

PeterisP Sep 5, 2023

The general principle of copyright law is that copying/distributing work that combines multiple copyrightable parts requires the permission of every author/copyright holder. Copyright law does not attempt to establish a single owner for any given work, it's perfectly fine with multiple parties having copyright protections over a single work, in which case any of them has a practical veto to doing anything with the joint product, as permission to use 99% of the work isn't sufficient.

For a very common example, let's look at a translated book. Copying and distributing such a book requires separate permission from both the author of the book and the author of the translation; the translation is a derivative work, it's covered by the copyrights of the original book and the author, but the translator also holds independent copyright on the translation in addition to the author's interest.

IMHO a derivative work of a program patched with someoone else's code (no matter how small, as long as it meets the very low copyright law bar of 'the slightest touch of creative input') is quite similar.

But the specific case of Razor 1911 might be disqualified by US copyright law section 103a which says "[...] but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

jerf OP Sep 6, 2023

Yes, as I said, many people have many opinions. I think you'd find you're in the minority on HN (and the Internet armchair lawyer's favorite cry of "Fair use! Fair use!" which means next to nothing the way it is typically used) but probably with the majority of copyright laywers.

However, it hasn't actually been settled. I've been watching. The question of whether you can bypass the matter of distribution by distributing a patch you definitely 100% solely own, but then the end-user is the one doing the combining, is not established.

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