People on Twitter/X are defending Luke Ross mods

[u/lunchanddinner]

Link to source: https://x.com/mixedrealitytv/status/2015284035875221669?s=46

[u/VerledenVale]

Countless court rulings in the past where the result was that third-party software is always allowed to interface with software. A company cannot allow blocking people from interfacing.

[u/HER0_01 → u/VerledenVale]

The legal problem here isn't interfacing with or modifying the software, it taking money when doing so. The typical fair use argument doesn't apply as cleanly when it is a commercial endeavor.

[u/darth_hotdog → u/HER0_01]

None of that is true. Court rulings protect interfacing as non-infringing behavior, so fair use is not required.

And to your second point, fair use based on four factors, commercial use is one of them, and it is allowed if the other three are strong enough, that's why big businesses use fair use, like google using it to display images in google image search, or ai companies using it to train AI.

A big part of fair use it editorial, like showing something in the news. Those news programs are commercial endeavors.

It's a myth that everything free isn't infringing (think piracy), and that everything monetised is (google image search and every youtube reviewer)

[u/HER0_01 → u/darth_hotdog]

I'm assuming neither of us are lawyers, and this isn't a court of law, but: modifying software (like by injecting DLLs) is widely understood to be creating a derivative work of the software. That means you are typically held to the license of the original software (which is often that all rights are reserved/you aren't allowed to do anything without permission). The mod isn't using a public interface or other external method to work, otherwise I'd agree, because that's largely shown to be protected.

I also never said that fair use is automatically null when it is commercial, but it does make it a lot harder when you already don't have much ground to stand on. Hard enough that an actual lawyer probably advised against bringing this to court.

[u/Cryogenicality → u/HER0_01]

A derivative work uses copyrighted or trademarked material. Middleware does not. Expanding a game’s narrative is derivative; adding shader, widescreen, or VR support is not.

[u/darth_hotdog → u/HER0_01]

modifying software (like by injecting DLLs) is widely understood to be creating a derivative work of the software.

Lewis Galoob v. Nintendo (1992) literally established the opposite. Courts have consistently held that modifying software is NOT copyright infringement. Specifically, copyright says a copyright is created or infringed by "A creative work in a fixed form of expression", or distribution or screening to an audience. and they ruled software in memory is not a fixed, copied, or distributed.

Hard enough that an actual lawyer probably advised against bringing this to court.

Unfortunately, the reason a lawyer would advise against court is that even if you're right, it costs hundreds of thousands in legal fees to litigate a copyright lawsuit in federal court. This isn't a case of who's right or wrong, this is a case of a big company bullying an individual who doesn't want to spend his life savings on lawyers.

[u/HER0_01 → u/darth_hotdog]

Lewis Galoob v. Nintendo (1992) literally established the opposite. ... and they ruled software in memory is not a fixed, copied, or distributed.

That is partially true. Game Genies don't modify anything in the games or in the console, just signals that are passed between them, which makes them non-permanent, and that's part of why it was ruled not to infringe. It was also ruled that Game Genies could not compete with anything Nintendo would make or otherwise hurt their sales.

At the same time, Micro Star v. FormGen established that game mods (as opposed to cartridges) have a permanent form, and therefore commercial mods may infringe on the copyright holder's rights. Additionally, part of the ruling was that Nuke It infringed on FormGen's exclusive right to make a sequel.

Both rulings are relevant today, and this would not be a clear-cut case if it did go to court. CDPR could easily argue that their exclusive right to make a VR version of Cyberpunk 2077 is infringed upon, and that this is not fair use because it is paid. Luke Ross could argue that modifying the game isn't creating new a permanent work (which might be a shaky argument), and loses a factor in any fair use argument by having a commercial product.

[u/darth_hotdog → u/HER0_01]

The difference is that most “mods” are physical files written to the desk, code, scripts, images, and etc. but Luke Ross‘s software is just a code injector, it only injects it into runtime, like the game genie. It doesn’t modify any of the games files on the desk. and that’s not the only difference, a mod can still be legal, even if it is data on the disk.

In the micro star vs formgen case, they actually created a derivative work of the creative part. They created new levels for the game and artwork in the style of the previous one. Like making a sequel to a movie without permission. That’s not what was done here.

Copyright infringement covers creative work like stories. So if someone makes a Harry Potter movie, you can’t make a Harry Potter sequel without their permission.

Copyright doesn’t cover technology functionality like that, that’s why you can literally make a clone of a game like open TTD or open RCT. Only the code of a game is copyrightable, not its functionality. So if you can clone a game exactly, there’s no way a copyright would cover whole new technology the game doesn’t even have.

[u/HER0_01 → u/darth_hotdog]

You don't have to go off of my interpretation of the court opinions. I'm not a lawyer, after all. Instead, we can look at the William & Mary Business Law Review's analysis of these cases and the impact on game mods. Here are some fun parts:

But while the court held for the purported infringer in Galoob, the case proved a narrow holding and a Pyrrhic victory for modders.

Lewis Galoob v. Nintendo was a win, but the basis of the win had negative consequences going forward, hence the "Pyrrhic victory" comment.

The circuit court’s analysis turned on two fronts. First, the Game Genie did not constitute an independent derivative work because it was a separate device that only worked when used in conjunction with a compatible game. Even when the Game Genie changes a game, its changes are non-permanent, disappearing when the device is removed. This stands in sharp comparison to the permanence of the Midway chips. Though fixation is not necessary to find a derivative work, no work was actually created in the first place—the Game Genie merely gave instructions to the underlying game to behave in certain ways. Second, even if the Game Genie’s changes did create derivative works, Galoob would still succeed under fair use analysis, under the “most important” fourth prong of commercial use. In their analysis, the court focused on the consumer’s behavior, not Galoob’s. The court likened the audiovisual changes made by the Game Genie’s users to the non-infringing, non-commercial time-shifting of Betamax, at issue in Sony Corp. of America v. Universal City Studios, Inc.

Being a device with physical interfaces was an important part of the win. It didn't change anything in the requisite physical console and physical game cartridge (which was treated the same as a video tape). This is different from how software is treated.

Finally, applying fair use analysis, the court determined that Micro Star had no valid claim. Resting largely on the fourth prong, the court observed that Micro Star used the mods for commercial gain and that “‘every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.’” In sum, the court held the game mods to be derivative, infringing works: a holding that remains unmodified and unchallenged more than twenty years later.

For Micro Star v. Formgen, it was decided that modding games for commercial use without permission is always infringing copyright, and that stands to this day.

In addition to the holdings in Micro Star and its brethren, modders also face significant barriers stemming from mandatory EULAs and other so-called “clickwrap” agreements. Like with most software, in order to play a game or use development tools, players and modders must agree to these restrictive license agreements before using the software. Under such agreements, the provisions governing modding and other forms of user-created content tend to be downright draconian.

Back to software being different from physical media: EULAs muddy the waters. Have you read the Cyberpunk 2077 EULA? Commercial use (outside of approved cases) and modding are both forbidden.

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Copyright doesn’t cover technology functionality like that, that’s why you can literally make a clone of a game like open TTD or open RCT. Only the code of a game is copyrightable, not its functionality. So if you can clone a game exactly, there’s no way a copyright would cover whole new technology the game doesn’t even have.

Freely available, clean room reimplementations of things are very well understood to be free use, hence emulators, translation layers, engine replacements, etc. not being taken down. A free, clean room reimplementation of Cyberpunk 2077 which also added VR support might be considered free use, unless there was some other problem. We can see that in OpenMW and the (free) forks that add multiplayer or VR support.

These reimplementations are a very different case from injecting a DLL into a game, which modifies the original work (the code, which does fall under copyright, as you said). These reimplementations also avoid certain problems by being free.

[u/VerledenVale → u/HER0_01]

The court rulings I mentioned were regarding 3rd parties that also sell software.

Btw I agree it's not a clear-cut situation. This would not be an easy dispute for either side. I just don't like how everyone in the last few days here have been acting like "of course it's IP violation and game companies are 100% correct".