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Legal Advice in the forums and peer review

Last post 9/25/2008 4:34 PM by The ZMan. 0 replies.
  • 9/25/2008 4:34 PM

    Legal Advice in the forums and peer review

    Why do Microsoft not allow legal advice in these forums?

    • They do not want any liability
    • There are few/no lawyers in here giving out advice
    • Armchair lawyers are worth exactly what you pay for them
    • Most of the advice would be wrong or unwise

    What about in peer review, I'm expected to look for IP violations?
    For peer reviews you are asked to determine IP violations which some have pointed out is a legal opinion. Here's how to deal with it:

    1. Anything that the developer claims is licensed, used with permission or fair use in their notes, credits or forum posts then ignore. Let the abuse system, the IP owner and the legal system worry about it. If they claim a license/permission or fair use and they don't have one then they will get everything they deserve. Of course there's limits here... if someone claims permission to use Pacman then we expect more people laughing than passing. Also remember that fair use means different things in different countries - make sure your lawyer understands the game will be released in multiple places. Fair use often requires proper attribution too - check with your lawyer.
    2. Obvious ripped graphics and sound, emulators running copies of games, trademarked game names - simple fail unless they claim permission.
    3. In general fail for trademarks directly used as part of the game e.g. Colt guns, Ford Cars, Bacardi Rum unless the developer has permission. In all other case warn the developer in the forums as they may want to claim fair use. Its clear that there are some valid usages and some invalid. e.g. you can't use Ford motor cars in your game. However coke can say "Coke is better than Pepsi" in its ads without permission from Pepsi and you could write a book about XNA Game Studio. We don't know these rules and we can't enforce them. The developer should add a note that they HAVE checked into this with a lawyer and believe its allowed. See #1
    4. Microsoft have not granted anyone permission to use the Xbox, Xbox Live, XNA, Xbox Live Indie games logos or graphics to anyone. If you see that in a game, video or screen shot then its an insta-fail. The same goes for the little orange creatures ("Nogs") on the XNA site. The XNA logo pack does NOT grant you permission to use them in game.  
    5. Uploading unmodified starter kits or other educational content without significant modification see (what does 'significant' mean? Well if a layman were to look at he games side by side and say 'looks the same to me' then you are probably in iffy territory. We have had games that are art reskins and they have passed so that is one way to be considered significant)
    6. Similar graphics/sound games that sound like or contain trademarked names - recommend a change and/or talk to a lawyer but not a fail unless you are a lawyer
    7. Anything else? Post a question to the game forum - if the developer ignores the question and doesn't clarify a license then fail it until they do.

    Our advice to developers here is clear.... JUST DON'T DO IT!!! The risk is generally not worth it. Yes there is a chance you will get away with it, there is a chance you won't get sued but if there is an IP issue complaint Microsoft will simply pull the game and let you deal with the complaint. This will likely mean that you miss your time in new releases which is the most profitable time.

    Other  legal notes....
    Asking a legal question and then saying "I'm not asking a legal question" just makes you look foolish and doesn't change what you are doing.

    The only legal advice you can give in these forums is "talk to a lawyer" ;-)

    If you want to help more then link to this post and let the mods lock the thread.

    1. If you want legal advice then go and see a lawyer.
    2. If you can't afford a lawyer then the thing you want to protect can't be worth all that much*
    3. If you want to look up Microsoft trademarks then look here
    4. If you want to look up other US trademarks then look here
    5. Yes we will reject Indie Games if we see a trademark we can find on one of those lists
    6. No Microsoft have not given anyone permission to use the XNA logos
    7. Really, go and see a lawyer
    8. "I read it on wikipedia" may not get you much more than a big laugh in a courtroom
    9. This is a legal blog maybe that can help he writes for gamasutra too
    10. These are some legal forums that deal with IP issues,14602.0.html - we have no idea how good the advice is nor can we recommend them but they are free.
    11. We mean it... save up your money and go and talk to a lawyer.
    12. Go and read some Sloparama #61 that repeats much of the advice from here

    Can you clarify a EULA for me?
    No because that would be legal advice..Here's some advice from some wise men of the forums. Jon and Shawn on 'EULA clarifications':

    Personal opinion: contracts and EULAs are written in English, and are usually reasonably easy to understand. At least in my experience, when people have questions about such things, that is usually because they are wanting to stretch some rule or other....These legal questions only come up because they are skating close to the edge. People who choose not to push the boundaries generally don't run into such grey areas where the exact interpretation of a wording can be important. So, you really have three options:

    • Play it safe and don't push boundaries
    • If you choose to push boundaries, be aware that you are taking a risk by doing so
    • If you are uncomfortable with that risk, hire a lawyer to advise you about it

    If Microsoft had anything more to say to clarify the EULA, they would put that straight into the EULA, because it (like any US legal document) is intended to be the full and whole agreement. Anything that's not written into it is not part of the agreement. That's just how it works.


    * [Some folks didn't like me saying their game isn't worth much - here's what I mean]
    Lets assume your game took you 400 hours to make (that's VERY fast!). Lets assume that even though you worked in your spare time that gives you a value of $10 an hour. Lets say you expect to sell 1000 copies at $2.50 and 70% royalty on indie games. That's $4000 + $1750 = $5750. Is it worth spending a few hundred dollars on a lawyer to make sure that calling your game "Pacman Vs Pong" is OK? Is is worth the stress when you get the lawyers letter from Atari and Namco? Is it worth thousands of dollars of legal fees? That's what I mean by "Can't be worth all that much". Everything has a value - what would you spend to protect it?

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