Author Topic: Very theoretical IP question...  (Read 3775 times)

chaparralshrub

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Very theoretical IP question...
« on: October 09, 2012, 04:04:14 PM »
Allow us to suppose that a country, we'll call it Defiancia, were to allow citizens there to host private servers of CoH. NCSoft would do as the did here to Tabula Rasa and send C&D letters, and, if the private servers refused to shut down, NCSoft would sue. But let's suppose for the sake of argument that the Defiancian government ordered their courts to refuse to hear NCSoft's case. What ramifications would this have for (1) the servers (i.e. could the U.S. government block them from being accessed in the U.S.), and (2) for Defiancia (what kind of economic/diplomatic/military action would be levied against it)?

emu265

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Re: Very theoretical IP question...
« Reply #1 on: October 09, 2012, 04:14:16 PM »
I'm not sure where you're going with this, so I guess I'll just keep it in the realm of theoretical.  I highly doubt any military action would be taken, the stakes just aren't that high.  Economic and diplomatic ties might be stressed slightly, but it's such a non-issue in the grander scheme of international relations that I doubt it would serve little more than the straw that broke the camel's back (if it even came to that).   


downix

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Re: Very theoretical IP question...
« Reply #3 on: October 09, 2012, 04:45:50 PM »
http://www.sealandgov.org/

You forgot to include the link.

Olantern

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Re: Very theoretical IP question...
« Reply #4 on: October 09, 2012, 04:47:05 PM »
Ah, a Conflict of Laws question.  This is considered one of the most, if not the most, difficult areas of law- what to do when one set of laws says one thing and one says another.  I'll venture an answer, but these conclusions are only tentative.

It's a bit difficult even to get started because some conditions of the hypothetical aren't very realistic.  When you say that the government of Defiancia orders its courts not to hear the case, do you mean the Grand Negus of Defianca says to the Chief Judge of the Super-Supreme Court of Defiancia, "No court of this nation shall hear this case?"  Or do you mean that the court hearing the matter rejects the suit on procedural grounds (i.e., NCSoft failed to follow the Defiancian courts' rules of procedure)?

In either case, given that the country seems to have a known history of allowing private servers, NCSoft is unlikely to bring its suit there.  Instead, it will file suit in Korea, or the United States, or the U.K., or any number of other places where potential consumers of its IP are located and not paying it.  Basically, anywhere NCSoft is suffering damages.  NCSoft can probably obtain a judgment in its favor in such a court.

That is only half its battle, though.  Now, NCSoft needs to get its judgment enforced.  If the servers were in the U.S., it could just take the judgment to a sheriff's office and have the sheriff seize the servers.  Even if the judgment were from, say, Korea, and the servers were in, say, the U.S., it could do something like this, using various international law devices that have been around for centuries.  Essentially, most countries agree to enforce each other's legal judgments, whether by comity (i.e., international niceness), treaty, or special request.

But we've established that Defiancia refuses to shut down servers, for whatever reason.  Thus, it won't act out of comity with the foreign judgment, and we can assume there aren't any treaties.  Still, NCSoft's attorney might file a new action in the Defiancian courts to enforce its judgment.  Or the attorney might submit any of several kinds of international requests for assistance to the Defiancian government.

If all of those fail, NCSoft would likely move out of the lawyer-arena entirely and complain to diplomats (presumably South Korean rather than American, but one never knows).  Those diplomats might complain informally to the diplomats of Defiancia.  If you're asking if South Korea will go to war with Defiancia over this, it seems wildly unlikely.

All this becomes much more questionable if Defiancia is not an actual nation at all, but something like an oil rig someone has claimed as a country.  In that case, any of the several courts involved are likely to determine that "Defiancia" is really part of, say, Great Britain, or the U.S., or whatever country is nearest.  To my knowledge, no one has legally tested the notion of sovereign oil rigs and the like.  I find it hard to believe countries would allow possible tax revenue to slip through their fingers that easily.  Now, NCSoft may still have trouble getting its judgment enforced if Defiancia is out in the middle of the North Sea, but if it's recognized as part of a country or otherwise subject to a nation's jurisdiction, it can eventually get someone to do it.

As with so many other things I've seen proposed here and elsewhere, this is something that looks like a quick, easy solution and isn't.

Again, as always, the foregoing should not be taken as legal advice.

TimtheEnchanter

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Re: Very theoretical IP question...
« Reply #5 on: October 09, 2012, 05:24:21 PM »
If a whiny corporation ever tried to convince a country to go to war against another country over abusing an IP that the corporation wasn't even selling...

Here's how I think that would go.

"So you want us to blow them up because they're selling your property without a license?"

"No, they're not selling it. They're giving it out for free."

"I see. And, how much money have you lost because of this?"

"None. We're not selling it."

"..... get out of here."

RedWolfeXR

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Re: Very theoretical IP question...
« Reply #6 on: October 09, 2012, 06:00:41 PM »
You are basically describing the IP theft scenario that Pirate Bay and other sites use.  Go look up how they are prosecuted.

Mainly they would get your links TO the web shut down...  by delivering C&D letters to anyone providing that internet connection.

And whoever said the US allows this sort of activity?  Its not up to law enforcement to protect IP, its up to the owner OF the IP.  NC Soft would sue (which is what a C&D letter is the preface of, they have to ask nicely before they can file) in civil court for an injunction and then serve that against anyone they needed to kill your internet access.  Once they have an injunction they can invoke law enforcement to enforce what is essentially an order of the court.

The reason a lot of these emulators get away with it is because the owner is not enforcing it.  NC has enforced theirs in the past with TR, and you can assume the same for CoH.  If they don't enforce it then they can actually LOSE it.  Someone could base a future product on the emulator and they would actually own the NEW IP that they introduce to the environment - at some point the product becomes divergent enough that you can sell it yourself.   

TimtheEnchanter

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Re: Very theoretical IP question...
« Reply #7 on: October 09, 2012, 06:17:43 PM »
You are basically describing the IP theft scenario that Pirate Bay and other sites use.  Go look up how they are prosecuted.

Mainly they would get your links TO the web shut down...  by delivering C&D letters to anyone providing that internet connection.

And whoever said the US allows this sort of activity?  Its not up to law enforcement to protect IP, its up to the owner OF the IP.  NC Soft would sue (which is what a C&D letter is the preface of, they have to ask nicely before they can file) in civil court for an injunction and then serve that against anyone they needed to kill your internet access.  Once they have an injunction they can invoke law enforcement to enforce what is essentially an order of the court.

The reason a lot of these emulators get away with it is because the owner is not enforcing it.  NC has enforced theirs in the past with TR, and you can assume the same for CoH.  If they don't enforce it then they can actually LOSE it.  Someone could base a future product on the emulator and they would actually own the NEW IP that they introduce to the environment - at some point the product becomes divergent enough that you can sell it yourself.

NC is going to have to ask themselves if it's worth it to them to appeal to the courts of every key gaming country to block access to Defancia. That could cost more than it would to keep the game running for another year, which would actually be giving them a profit. If they're really that wasteful, after how much unnecessary damage they've already taken, then they have no business... well... being a business.  :P

As for being able to resell the IP... I don't see that happening. It would take forever for a private version of CoH to deviate far enough to be considered a new product. Otherwise it's pretty much a fanfic. Considering the pace at which independent MMO emulators go, it would take less time for the IP to go into public domain than it would to become a deviant work. And even then, the engine is still Cryptic's.

P51mus

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Re: Very theoretical IP question...
« Reply #8 on: October 09, 2012, 06:18:30 PM »
You are basically describing the IP theft scenario that Pirate Bay and other sites use.  Go look up how they are prosecuted.

Mainly they would get your links TO the web shut down...  by delivering C&D letters to anyone providing that internet connection.

I just did a search for pirate bay on google, and it's the first search result.  And the link works just fine.

Codewalker

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Re: Very theoretical IP question...
« Reply #9 on: October 09, 2012, 06:27:21 PM »
The reason a lot of these emulators get away with it is because the owner is not enforcing it.  NC has enforced theirs in the past with TR, and you can assume the same for CoH.  If they don't enforce it then they can actually LOSE it.  Someone could base a future product on the emulator and they would actually own the NEW IP that they introduce to the environment - at some point the product becomes divergent enough that you can sell it yourself.

Have they?

They sent a cease and desist letter, which is the legal equivalent of a warning shot. I could draft a C&D letter to tell you to stop posting pictures of your spaghetti dinner on your website, but it's worth the paper it's printed on unless I'm able and willing back that up.

Did they back it up the TR letter and file suit, putting their money where their mouth is? Lawsuits are expensive, and big companies often file them hoping that the individuals they're targeting give in to avoid potentially catastrophic expenses, but it does cost NCSoft a fair amount of money as well if they actually go through with it. Is keeping TR or COH dead worth enough to them to do that?

Also, a real lawsuit would have to show damages, which means they'd have to put a dollar amount on the value of the COH IP, and how much they think it's being devalued by Defiancia's actions -- that's the only possible damages they could show, since they aren't getting any direct revenue from it. That in itself would be interesting to see.

It's a very dangerous game of poker Defiancia would be playing; it just depends on who's bluffing and who's going to call.

Minotaur

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Re: Very theoretical IP question...
« Reply #10 on: October 09, 2012, 06:34:33 PM »
The problem is somewhat similar to the one with internet gambling sites (illegal in the US, legal in Europe). If they can get a criminal judgement against you, they will then extradite you from anywhere that has an extradition treaty with the US which kinda leaves a load of places you wouldn't want to live the rest of your life.

You don't have to have been to the US, this has happened to several UK citizens.

TimtheEnchanter

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Re: Very theoretical IP question...
« Reply #11 on: October 09, 2012, 06:38:30 PM »
It's also typically not worth it to sue individuals and small groups over IP violations. This is why there's still so much illegal file sharing going on. Technically, any business could get up tomorrow and decide to press charges against every single person who has shared one of their songs, movies, whatever online. The the fact of it is, they'd be throwing money away, even if they win. The fees for copyright violation number in the hundreds of thousands, which most media pirates will NEVER be able to pay off. And then what? Send them to prison? We don't have 10000th of the prison space needed to lock up all those people. It's just a complete waste of time and resources for everyone involved.

If you really want to go crazy with it... TECHNICALLY, if someone got caught playing as Wolverine at a tabletop session of D&D (dunno why you'd want to, but it's just an example), based on legal wording, there's grounds there for a lawsuit, which is pretty much what happened to CoH early on - the equivalent to suing crayola for enabling children to draw unlicensed likenesses of trademarks. But who would bother ever trying to enforce such a thing?

Deviantart is out there doing its thing and has been for a long time. And I'm sure there's been some whining, but I haven't heard about anyone trying to take action against it.

chaparralshrub

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Re: Very theoretical IP question...
« Reply #12 on: October 09, 2012, 07:02:31 PM »
Well, the questions that I am wondering basically amount to:

(1) If the server granting internet access were also located in Defiancia, they would be under no legal obligation, based on their country's laws, to deny internet service to the IP pirates. I know that some countries do block internet protocol addresses from some other countries, but so far as I know there are no websites in the world that are blocked by the United States government. I kinda suspect that doing so would be unconstitutional. Am I wrong?

(2) Defiancia certainly would not extradite its own citizens to stand trial in American or South Korean court if they also had their own courts rule that the private servers could continue running. Does this mean that if Defiancian citizens were to ever travel to the U.S. that they would be arrested and thrown into American prison for violating a court order of a country they don't even belong to?

(3) I also can't imagine that IP theft, unless it happened repeatedly on a massive scale, would be grounds for military action against Defiancia. However, what kind of other diplomatic and/or commercial sanctions would be put into place? I can imagine foreign businesses being leery about doing business on Defiancian soil without a very specific understanding of what the legal basis for Defiancia not upholding the trade mark law (if, for instance, say, Defiancia does not respect international trademark law in case X, but does respect it in case Y, then a company who deals in case Y could still do business without fear of this happening to their IP).

Codewalker

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Re: Very theoretical IP question...
« Reply #13 on: October 09, 2012, 07:03:59 PM »
(2) Defiancia certainly would not extradite its own citizens to stand trial in American or South Korean court if they also had their own courts rule that the private servers could continue running. Does this mean that if Defiancian citizens were to ever travel to the U.S. that they would be arrested and thrown into American prison for violating a court order of a country they don't even belong to?

Welcome to the world of international treaties. That's how your governments quietly sell out rights you didn't even know you had, without anyone noticing until it's too late.

TimtheEnchanter

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Re: Very theoretical IP question...
« Reply #14 on: October 09, 2012, 07:13:45 PM »
(1) If the server granting internet access were also located in Defiancia, they would be under no legal obligation, based on their country's laws, to deny internet service to the IP pirates. I know that some countries do block internet protocol addresses from some other countries, but so far as I know there are no websites in the world that are blocked by the United States government. I kinda suspect that doing so would be unconstitutional. Am I wrong?

This is what has been creating a big stink with the SOPA/PIPA acts that were almost sneaked through the Senate before whistleblowers caught wind of it. One of them specifically called for the government to block websites that were merely even ACCUSED of harboring pirates data. So in a sense, the online version of the Patriot Act.

Both of those finally got shot down. But is the entertainment industry done yet? Oh, no. Now they're going after something that isn't even illegal. Now they want to take away our right to resell media that we legally own! No more used CD's, games, DVD's etc at garage sales. Under a new proposal, all of that would be outlawed.

Kosmos

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Re: Very theoretical IP question...
« Reply #15 on: October 09, 2012, 07:52:37 PM »
It would be ironic to see a South Korean company trying to get a foreign government to pursue improper Internet activity, given their own nation's reputation for harboring hackers.

RedWolfeXR

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Re: Very theoretical IP question...
« Reply #16 on: October 10, 2012, 12:01:28 AM »

TimtheEnchanter

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Re: Very theoretical IP question...
« Reply #17 on: October 10, 2012, 02:05:44 AM »
RIAA and whatever the anime equivalent are have been doing this sort of action for a long time.  Its not a huge burden for them to do, since they have a legal team.   They don't HAVE to win, its the headache of fighting them.

I think you missed the point of what I was saying. Sure they make examples of targets as an example, but what is the point in suing someone when there's no way that person will ever be able to pay you what's owed? It happens all the time in David vs. Goliath situations, and in the end, all the Goliath usually gets out of it is bragging rights. That's what I was talking about. Just the act of starting proceedings, whether they fight you or not, is expensive. And NC would have a lot more to prove than anyone going after TPB.

While there are people who get in trouble, really all it accomplishes is scaring the public, and that's probably all it's really meant to do.