Say, isnt Olantern the resident lawyer who could give more details on stuff like this?
Maybe he did already just point me in that direction, please.
There's a bit of discussion of these issues toward the beginning of the "Legal Considerations" thread. Look for the discussion of "the rules of football" versus "
The Rules of Football" and related posts.
This is another "don't do this" situation.
First of all, as always, this post is not intended as legal advice. If you are interested in pursuing this sort of idea and what's been posted in this thread doesn't dissuade you, consult an attorney who specializes in this area. (It will cost you much more than "100 quid" or the U.S. equivalent thereof. Attorneys' fees are normally going to range in the thousands of dollars.) Second, I am not an IP specialist.
That said, I don't believe this scheme would fly, legally. The main reason, for tl;dr folks, is that the motive for infringing a copyright doesn't matter. If you copy without permission, you violate the copyright, even if you pay the copyright holder later.
As Segev pointed out, there are two pieces of intellectual property here, the game code and the story material. Neither can be used without permission because it's owned by NCSoft, and, like the car in the driveway in the metaphor on the first page of this thread, NCSoft has the right to exclude others from using it. To put it another way, NCSoft has the right to operate a CoH MMO. No one else has that legal right unless they buy the right from NCSoft.
It doesn't matter that the use in the "pass on the profits" set-up provides no profit to the users. Whether a copyright (or other intellectual property right) is being violated turns on what rights the holder (NCSoft, here) has, not what the violator does with the property. Put another way, the law doesn't allow you to duplicate CoH and then pay NCSoft back for doing it because that's effectively forcing NCSoft into a contract with you whether it likes it or not. NCSoft has the right to pick who develops their game and runs their servers until they give or sell that right away.
The discussion of reverse engineering brings up the limits of NCSoft's rights. This is easiest to understand with regard to the story and visual material. NCSoft holds a copyright in the story of CoH, as well as all the original art, text, and music created for the game. This includes everything from the in-game model for Statesman to the text of the "World Wide Red" arc to the power icon for Greater Fire Sword. You can't duplicate any of those things because it would constitute a derivative work of the original game made without NCSoft's permission, even if you don't intend to profit by doing so. "Derivative works" is a broad term, and it definitely includes a pixel-for-pixel duplicate of the existing MMO. That's the easy part to understand.
The other class of IP is more subtle. NCSoft also holds a copyright in the code. Copyright protects material placed in a fixed form, such as written text, pictures ... or lines of code. Ideas in an unfixed form, just noodling around in people's heads, aren't subject to copyright protection. (I'm basing this discussion on U.S. copyright law, but due to international agreements like the Berne Convention, the rules of copyright are very similar from country to country.) The fact that NCSoft holds a copyright in the code means NCSoft has the right to prevent people from making duplicates of the code. Again, this is regardless of profit motive or lack thereof.
But if code is subject to copyright, how can something like reverse engineering ever be possible? That's because the
ideas that the code implements aren't subject to copyright. In the Legal Considerations thread, someone pointed out that the rules of a game, such as football, aren't subject to copyright. That's true, because they are unfixed ideas. But if I write them down in a book called
The Rules of Football, I can prevent people from copying my book because I enjoy a copyright in the book. This doesn't mean that no one can ever play a game of football without my permission, though, because the ideas at issue can't be copyrighted.
How does that apply to CoH? The code implements the "rules," but a computer game, unlike a game of football, can't be played without the code. In theory, you could develop an entirely new code that did most of the same things the existing one does. To use a CoH example, you can't copy the game code for the concept of Defense, but you could develop new code to reflect an MMO player character's ability to avoid attacks. If you could do that
and not infringe any copyrights in the story, visual, textual, and audio material, you could make your own MMO. But to be different enough from CoH to avoid violating NCSoft's copyright, it would need to be so different that it wouldn't be recognizable as CoH. In other words, it'd be a completely new MMO.
By the way, courts' real work on copyrights (and what IP lawyers do when advising clients on these issues) is figuring out where to draw the line between "idea" and content inherent to the fixed form. For purposes of this discussion, it's sufficient to know that they're more likely to find material copyrightable than not.
So, all in all, this idea isn't workable. If someone were to try it, NCSoft would be well within its rights to sue. It could have a court grant an injunction to shut the "shadow CoH" down. It could also seek damages for violation of its copyright. Once again, this is a no-no.
