Part PSA, Part Discussion Thread for fans of video games, specifically modding

[Leon Weber]

So its come to my attention recently that Nexus Mods is trying to implement a collections system on their website. For clarity what collections does is provide collections of mods pre-packaged already in optimal load-orders and proper patches to make large scale modding more accessible for newer mod users who are not quite as practiced as the rest of us. However the caveat to this is apparently they are also removing mod authors ability to permanently delete their mods from the Nexus. In my personal opinion this essentially constitutes the largest single heist of intellectual property ever performed (at least that I am aware of) with more than 300k piece of intellectual property rights being removed from their respective creators.

So I guess i'm here to collect thoughts, opinions, and other perspectives on the issue. I agree with the Nexus team that making modding more accessible is objectively good but however at the cost of removing the rights of creators to their creations I do not agree that it is worth it.

[Hawkwood]

I'm not entirely sure about the legal status of a mod. My assumption is that they belong to the the mod-creator only so far and until the original game publisher (i.e. the party that holds the actual copyright in the original game) decides to tolerate or permit them. It looks as though there are several different general approaches to mods:

1) The publisher pays creators: Bethesa: Fallout, Skyrim.
2) GNU General Public License: EA: C&C Tiberian Dawn.
3) Permission through 3rd party repositories like Steam
4) Selective Enforcement. This mostly seems to be the case where someone tries to make a profit from their mods.
5) No modding at all. Nintendo.

In most cases, the OWNER of the IP is probably the software publisher rather than the actual creator of the mod.

[Hawkwood]

I had meant to also include some links:

A good summary via WIPO

Summary from a Law firm

Interesting piece from a few years ago

EPIC's policy

[Leon Weber]

I'm not entirely sure about the legal status of a mod. My assumption is that they belong to the the mod-creator only so far and until the original game publisher (i.e. the party that holds the actual copyright in the original game) decides to tolerate or permit them. It looks as though there are several different general approaches to mods:

1) The publisher pays creators: Bethesa: Fallout, Skyrim.
2) GNU General Public License: EA: C&C Tiberian Dawn.
3) Permission through 3rd party repositories like Steam
4) Selective Enforcement. This mostly seems to be the case where someone tries to make a profit from their mods.
5) No modding at all. Nintendo.

In most cases, the OWNER of the IP is probably the software publisher rather than the actual creator of the mod.

I guess the main problem here to address is the fact that NexusMods the website will be explicitly profiting off of these mods while refusing the mod creators to even opt out from the collections system.

[Saria]

I don’t really know much about games and mods, but I know a whole hell of a lot about copyright law. My knowledge is based on Canadian law, which uses a concept called “fair dealing”, which is more limited than the US concept of “fair use”. So if it’s okay in Canada, it’s almost certainly okay in the US.

However the caveat to this is apparently they are also removing mod authors ability to permanently delete their mods from the Nexus. In my personal opinion this essentially constitutes the largest single heist of intellectual property ever performed (at least that I am aware of) with more than 300k piece of intellectual property rights being removed from their respective creators.

In theory, with me making some assumptions on what all is going on here, there is no way this could possibly survive a copyright challenge. If a mod creator wanted their mod removed, they will win the case.

In reality… there is a single complication I can think of, and that is the technical challenge that comes with removing the work. If these mods are really so tightly integrated that removing one without destroying the whole “collection” is impractical… then even though the author has the theoretical right to demand its removal, that right could be overridden by the rights of Nexus and all the other modders to, yanno, not have their work destroyed as well.

This is analogous to the situation where a bunch of creators have contributed to a film (for example), with each retaining their copyrights to their individual contributions, and now one of them wants out. If that person’s contributions can be practically separated out from the rest of the work—like, say, it’s an anthology film, and the person’s contribution was a single, isolated segment—then it could be pulled out, leaving the rest of the work more-or-less intact. If, on the other hand, as is much more common, one person’s contribution can’t really be separated from the work, then they’ll just be told “tough luck”. They’ll still own the copyright on whatever it is they contributed; the other creators, if they make a sequel or whatever, will have to work around without it. (The most common way this happens in film is when an actor refuses to take part in a sequel. The actor owns the copyright to their performance. They can’t simply… “remove” their performance from an existing film… but they can insist that subsequent films don’t reuse footage of them from the first film.)

All this is assuming the modders haven’t actually granted Nexus the right to use their mod in perpetuity, which is a very common thing, and not the same as giving up your copyright. For example, when you make a post or upload a picture to a service like Facebook, you grant them the right to use the post and picture in perpetuity. You still own the copyright on the text or image, of course, but—as per the terms of service—you have granted Facebook a licence to use it… forever. (The real-world reason for this is that it is functionally impossible on services like Facebook to completely remove something that someone’s uploaded; it will always be preserved, at least, in backups and archives. Another reason is that you have granted the service the right to use your image in its advertising and such—such as being featured on the front page or even just included in screenshots of the service in action—and once the ad is made, it usually can’t feasibly be un-made.)

Like I said, I don’t know how all this works. Did the modders apply to have their mods included in these collections? Or did they just make the mods on their own, and then the people curating the “collections” chose them to add to the “collection”? If you have to proactively “ask” to be in a “collection”, there could very well have been a step in the process where the modder agreed that Nexus could use the mod in perpetuity (which, again, is not taking away the creator’s copyright). But if you only agreed to have the site host your mod, and didn’t explicitly request to be in a “collection”, then Nexus probably doesn’t have a good legal argument for co-opting your mod like that.

In most cases, the OWNER of the IP is probably the software publisher rather than the actual creator of the mod.

No, in all cases, the software publisher (presumably) only owns the IP that they created. Whatever NEW IP the modder created belongs to them. Even when you infringe on someone else’s copyright you still own the copyright on the novel elements you created. This is true for all creative works: if I write a raunchy story of a steamy tryst between Saria the Tentacle Vixen and Captain America, even though I am infringing on Marvel’s IP, Disney does not automatically gain ownership of Tentacle Saria, no matter how awesome a Disney Princess they think I’d make.

I actually came across a hilarious example of that specific to modding in one of your links. So apparently, Blizzard made a game called Warcraft III. Some modder took that game, and built a mod that basically converted it into a whole new game: Defence of the Ancients. That game was apparently a much bigger hit than Warcraft III. So Valve came along and licensed DotA from the modder, and then went and created DotA 2. This made Blizzard howling mad, and of course there was a decade of lawsuits… but Valve won in the end. So even though DotA was a mod of Warcraft III, the new elements of DotA were not the property of Blizzard. They were the property of the mod creators, and then Valve bought them from there.

So the software publisher (who is presumably the copyright owner) could cease-and-desist the modder to stop them from distributing the mod anymore, they could even sue for any profits the modder may have made (as lost revenue from their own work… not as extra revenue from the modder’s), but they cannot simply lay claim to the novel elements that the modder added. The modder could actually just extract the novel bits, replace anything that came from the original IP, and make something new. Whats-her-name actually did this with 50 Shades of Grey; she simply kept the personally-created elements from her Twilight fanfic, replaced all the Twilight shit with non-Twilight shit, and that was that. Granted, you have to very careful that you completely remove all the elements of the original IP… and that’s not always easy. But 50 Shades of Shit proves it can be done.

[Leon Weber]

I don’t really know much about games and mods, but I know a whole hell of a lot about copyright law. My knowledge is based on Canadian law, which uses a concept called “fair dealing”, which is more limited than the US concept of “fair use”. So if it’s okay in Canada, it’s almost certainly okay in the US.

In theory, with me making some assumptions on what all is going on here, there is no way this could possibly survive a copyright challenge. If a mod creator wanted their mod removed, they will win the case.

In reality… there is a single complication I can think of, and that is the technical challenge that comes with removing the work. If these mods are really so tightly integrated that removing one without destroying the whole “collection” is impractical… then even though the author has the theoretical right to demand its removal, that right could be overridden by the rights of Nexus and all the other modders to, yanno, not have their work destroyed as well.

This is analogous to the situation where a bunch of creators have contributed to a film (for example), with each retaining their copyrights to their individual contributions, and now one of them wants out. If that person’s contributions can be practically separated out from the rest of the work—like, say, it’s an anthology film, and the person’s contribution was a single, isolated segment—then it could be pulled out, leaving the rest of the work more-or-less intact. If, on the other hand, as is much more common, one person’s contribution can’t really be separated from the work, then they’ll just be told “tough luck”. They’ll still own the copyright on whatever it is they contributed; the other creators, if they make a sequel or whatever, will have to work around without it. (The most common way this happens in film is when an actor refuses to take part in a sequel. The actor owns the copyright to their performance. They can’t simply… “remove” their performance from an existing film… but they can insist that subsequent films don’t reuse footage of them from the first film.)

All this is assuming the modders haven’t actually granted Nexus the right to use their mod in perpetuity, which is a very common thing, and not the same as giving up your copyright. For example, when you make a post or upload a picture to a service like Facebook, you grant them the right to use the post and picture in perpetuity. You still own the copyright on the text or image, of course, but—as per the terms of service—you have granted Facebook a licence to use it… forever. (The real-world reason for this is that it is functionally impossible on services like Facebook to completely remove something that someone’s uploaded; it will always be preserved, at least, in backups and archives. Another reason is that you have granted the service the right to use your image in its advertising and such—such as being featured on the front page or even just included in screenshots of the service in action—and once the ad is made, it usually can’t feasibly be un-made.)

Like I said, I don’t know how all this works. Did the modders apply to have their mods included in these collections? Or did they just make the mods on their own, and then the people curating the “collections” chose them to add to the “collection”? If you have to proactively “ask” to be in a “collection”, there could very well have been a step in the process where the modder agreed that Nexus could use the mod in perpetuity (which, again, is not taking away the creator’s copyright). But if you only agreed to have the site host your mod, and didn’t explicitly request to be in a “collection”, then Nexus probably doesn’t have a good legal argument for co-opting your mod like that.

No, in all cases, the software publisher (presumably) only owns the IP that they created. Whatever NEW IP the modder created belongs to them. Even when you infringe on someone else’s copyright you still own the copyright on the novel elements you created. This is true for all creative works: if I write a raunchy story of a steamy tryst between Saria the Tentacle Vixen and Captain America, even though I am infringing on Marvel’s IP, Disney does not automatically gain ownership of Tentacle Saria, no matter how awesome a Disney Princess they think I’d make.

I actually came across a hilarious example of that specific to modding in one of your links. So apparently, Blizzard made a game called Warcraft III. Some modder took that game, and built a mod that basically converted it into a whole new game: Defence of the Ancients. That game was apparently a much bigger hit than Warcraft III. So Valve came along and licensed DotA from the modder, and then went and created DotA 2. This made Blizzard howling mad, and of course there was a decade of lawsuits… but Valve won in the end. So even though DotA was a mod of Warcraft III, the new elements of DotA were not the property of Blizzard. They were the property of the mod creators, and then Valve bought them from there.

So the software publisher (who is presumably the copyright owner) could cease-and-desist the modder to stop them from distributing the mod anymore, they could even sue for any profits the modder may have made (as lost revenue from their own work… not as extra revenue from the modder’s), but they cannot simply lay claim to the novel elements that the modder added. The modder could actually just extract the novel bits, replace anything that came from the original IP, and make something new. Whats-her-name actually did this with 50 Shades of Grey; she simply kept the personally-created elements from her Twilight fanfic, replaced all the Twilight shit with non-Twilight shit, and that was that. Granted, you have to very careful that you completely remove all the elements of the original IP… and that’s not always easy. But 50 Shades of Shit proves it can be done.

So from what i've gathered there is no opt-in or opt-out, all mods on the Nexus are subject to the curators adding them to a collection. They did give all mod authors a deadline for removing their mods permanently from the nexus which was august 5th, but now any and all mods that are there cannot truly be deleted and can only be archived but will still be accessible via the collections.

The real scummy thing is that its obviously part of a cash grab, in order to use the collections as intended (1 click and boom, mod list) you have to use their premium subscription service which they just hiked up the price of and removed the option to purchase a lifetime subscription to as well

[stormwyrm]

In reality… there is a single complication I can think of, and that is the technical challenge that comes with removing the work. If these mods are really so tightly integrated that removing one without destroying the whole “collection” is impractical… then even though the author has the theoretical right to demand its removal, that right could be overridden by the rights of Nexus and all the other modders to, yanno, not have their work destroyed as well.

No. The collection is a derivative work, and copyright law regarding derivative works says that if you have no license for even one of the works your derivative is based on, then you have no license for the whole derivative work at all and cannot redistribute it without the risk of a copyright infringement suit from the unlicensed work's holder.

A similar issue comes up for the Linux kernel: anything incorporated into the kernel (e.g. a module or a patch) that is not itself licensed under terms legally compatible with the GPL that the Linux kernel as a whole is under, results in a kernel that is "tainted", and cannot be legally redistributed without copyright infringement. When this happens, the offending code is usually excised and cleanly reimplemented with totally new code that has been given appropriate licensing.

There are a lot of parallels here with the kind of legal binds that have come up in the context of Free and Open Source Software (FOSS). I know a fair bit about this since I have built basically the whole of my professional career as a software developer on Linux and have some acquaintance with these things. I have the feeling the modder community is going to wind up treading a road very similar to that which the FOSS people did in the last 25 years or so.

[Oniya]

So, I play Minecraft, and modding is a big part of that game community.  I'm a big fan of modpacks, especially those that are well put-together.

Two incidents have occurred that somewhat bear on this:  One involves a little grave-stone mod that got tied up in a bit of drama - the author of that mod thought that another modder had copied some code, and therefore added a bit to the grave-stone mod so that it would cause a hard crash of the game if the other modder's mod was present.  This (predictably) caused CurseForge to pull the mod with the crash-code in it, which then affected a lot of pack-creators who really just wanted a way to avoid losing your stuff when you die.  Eventually things got sorted out, the mod was restored, and people could happily collect their stuff without risking it despawning.

The other one involved a mod that provided some extra bosses and an end-game 'map'.  It made it into a couple of really big-name packs - and then all of a sudden, the author decided to yank it.  I've heard a couple of reasons, including that it was a 'first coding project', and the author was just embarrassed by the cringe-factor.  As a result, the packs that had it in there can't be played to completion any more.

Now, most Minecraft mods have some form of licensing agreement, based around the qualification of whether there is an intent to make money - that is, in most cases, you can make a modpack including a given mod as long as you're not selling the modpack.  (To be honest, I've never seen anyone try to sell a modpack, either, so there's that.)

[Saria]

No. The collection is a derivative work, and copyright law regarding derivative works says that if you have no license for even one of the works your derivative is based on, then you have no license for the whole derivative work at all and cannot redistribute it without the risk of a copyright infringement suit from the unlicensed work's holder.

Yes, but I was meandering a bit in the stream-of-consciousness post, and considering the case where the creator granted permission then withdrew it… though I didn’t clarify what I was thinking. That is different from the situation you’re thinking about, where there was no licence granted at all. Yes, if you just take someone’s code and put it in a project, then yeah, that’s straight-up infringement, and the original creator has the right to order you to completely take down the entire project, regardless of how much hardship that would mean for you… you would then have to remove their stuff, and possibly replace it somehow, before you could continue. But if someone has granted you permission to use their code and then retracts it, there is no clear-cut answer. Depends on what the terms of the licence contract were—which is often not codified, so the two sides will disagree about what they understood the deal was—and other factors of the situation; this kind of thing often ends up in court if the parties can’t come to an agreement. (In the example I gave, of actors’ contributions being used in sequels and spinoffs without their consent, there have been several court cases. One famous case that springs to mind is Crispin Glover and Back to the Future.)

I was assuming the modders had at least tacitly given permission for Nexus to make use of their mods, most likely by a terms of service agreement for uploading to the website. I can’t imagine a website that allows you to upload stuff not having a terms of service like that (for reasons I explained previously). If the users agreed, even implicitly, that Nexus could bundle their mods… then they can’t claim infringement, because they literally gave permission (even if they didn’t realize it). But they could still withdraw permission… especially if the terms have changed, which seems likely if this “collections” idea is a new thing… which brings us to the situation I was musing above, where Nexus had (implicit) permission, then lost it, but might be able to argue that removing a mod from a “collection” is impractical.

That’s not the same as what you’re thinking of, which would be Nexus simply “stealing” the mods and using them… because they did have (implied) permission (assumedly, via the terms of service).

From what Leon Weber says, this Nexus thing seems like a pretty clear cut case of (attempted) IP theft. You can’t simply set a deadline and say: “if you don’t delete your shit from our site within a few weeks, it belongs to us”. That’s complete bullshit. (Seriously, can you imagine? “If you don’t come pick up all copies of your book from our store by Friday, we claim the right to do whatever we want with your story and characters.”) The fact that they had to make the deadline and ultimatum implies that they didn’t have the permission they needed beforehand… though, I suppose they could just be covering their asses.

[BlueOrange]

In the case of anyone who uploads a mod to NexusMods now, the situation is pretty clear.

In the case of people who did it a year ago? The vast majority won’t care. The majority of those who do care will have brought them down by now.

There will be a minority of a minority who missed the deadline and want their stuff taken down. I suspect that they’ll be treated reasonably if/when they complain.

Gamers generally tend to perceive themselves as having a right to receive goods and services without paying for them. I disagree with that perspective.