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#51 2019-03-02 17:05:55

Greep
Member
Registered: 2018-12-16
Posts: 289

Re: Open Letter to the Mobile Developers

Chard wrote:

Perhaps this will reflect my naïvety in these matters, but:

How is this not just a straightforward trademark issue? Jason was selling the product as One Hour One Life, a mark that is clearly unique, even registered as a domain and had been doing so for a while with reasonable success (for a small business). Is it not therefore immediately illegal to sell something called "One Hour One Life for Mobile" without being Jason (or with his direct involvement)? I was of the impression that trademark protections were non-optional and couldn't be waived because the risk is not to either vendor but to the potential consumers.

I don't think this is the case.  I think you even have to defend your trademark or risk losing it even.  Which is why companies are so anal when it comes to IP laws in general.  Outright giving away the right to use the name sounds like immediate failure to defend it. 

<-- Also not a lawyer, but I've read a lot about this so I have a general idea.

At least this is how it appears to work in the US.

And it makes sense, business isn't screwing around.  Telling someone they can use a name, then they spend thousands of dollars investing in it, and then hearing "wait nevermind" is a situation nobody wants to be in.  I would be surprised if the laws were written such that this is allowed.

Last edited by Greep (2019-03-02 17:11:59)


Likes sword based eve names.  Claymore, blades, sword.  Never understimate the blades!

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#52 2019-03-02 17:18:23

CrazyEddie
Member
Registered: 2018-11-12
Posts: 676

Re: Open Letter to the Mobile Developers

Chard wrote:

Perhaps this will reflect my naïvety in these matters, but:

How is this not just a straightforward trademark issue? Jason was selling the product as One Hour One Life, a mark that is clearly unique, even registered as a domain and had been doing so for a while with reasonable success (for a small business). Is it not therefore immediately illegal to sell something called "One Hour One Life for Mobile" without being Jason (or with his direct involvement)? I was of the impression that trademark protections were non-optional and couldn't be waived because the risk is not to either vendor but to the potential consumers.

Chard:

A few things first: I am not a lawyer. I have offered all the advice to Jason that I feel I have worth offering. I'm reluctant to write anything else in this particular thread, because almost everything that everyone has said so far - including probably me - is not likely to be helping either Jason or Christoffer better understand their dispute and better find ways to resolve it.

Discussing fine points of the law with anyone other than a licensed attorney with practical experience in the specialty at hand is a sure-fire recipe for misunderstanding crucial details while expending huge amounts of words and energy arguing to no effect. I personally think that Jason's most recent attempts in this thread at understanding or explaining his legal situation are horribly off the mark, but I'm not going to try to discuss it with him: because I am not an expert, because I will probably get something wrong in my own explanation, because he has no reason to listen to let alone argue with me, because me discussing it with him won't help him at all in a very serious practical matter he's dealing with right now, and because he really really needs to have these kinds of discussions with a lawyer.

That said.

To answer your questions here, as a purely academic matter, speaking purely as a layman:

There are no Copyright Cops. There are no Trademark Cops. You could write the great american novel, and I could steal it and publish it and make money doing so in blatant disregard of copyright law and absolutely nothing would happen to me... until you filed suit against me.

Let's assume for the moment as you do above that Jason does have valid trademarks in OHOL, and that Christoffer and his associates are infringing on those trademarks. Absolutely nothing will happen to them unless and until Jason files suit against them. Leaving aside questions about jurisdiction for the moment... Jason will have to prove that he has valid trademarks and that the mobile team is infringing on them, and he will do so by making specific legal arguments. The mobile team will have an opportunity to counter those arguments with their own. The validity of trademarks and the question of whether a particular use infringes on those trademarks can be a rather complicated question. The laws surrounding these two questions are complex and voluminous, and the case law surrounding them even moreso. The effort that Jason would have to go through to press a suit and prevail on his claims would be extensive and costly, for both sides.

So. Not being a lawyer I'm not going to opine on whether or not Jason's trademarks are still valid and whether or not the mobile team's use of those trademarks is infringing. I'll simply note that even if they are, that is of little use to Jason unless he is prepared to defend his trademarks in court, or can convince his counterparts that he is prepared to do so and use that as leverage.

I want to stress that my answer here is to Chard regarding what is essentially a hypothetical question, and that I wholeheartedly encourage Jason and Christoffer to seek a resolution to their disagreement in consultation with knowledgeable and experienced professionals.

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#53 2019-03-02 17:47:03

Redram
Member
Registered: 2018-08-16
Posts: 113

Re: Open Letter to the Mobile Developers

Christoffer wrote:

"Not approved by Jason Rohrer" is equivalent to "Not permitted by Jason Rohrer" or "Against the wishes of Jason Rohrer".

I agree with Chrostoffer 100% here.  To the average *english speaking* person, 'not approved' is going to be synonymous with 'disapproved'.  Nevermind non-english speakers.  I agree that I would be far less likely to buy a game with that in the title or description, and it is entirely unreasonable to ask them to torpedo their work in that way when they have made every effort to work with Jason, getting his specific approval for verbiage and other conditions earlier.   It seems to me that the mobile version *is* in fact approved by Jason.  He simply doesn't want confusion between the two, and wants it to be clear he has no influence over the development of the mobile, and not be bothered with suggestions and bug reports regarding it.  If he failed to stipulate a sufficient means of that at the early part of their discussion, that to me is his fault.  Moving the goal posts now is not reasonable to me, and frankly I think Christoffer is being reasonable under the circumstances.

It seems pretty clear to me (a non-lawyer) that Jason is going to have virtually no legal legs to stand on here, even if all the parties were in America, so this is basically going to be tried in the court of public opinion.  And as a member of the public, I find it hard to have any sympathy for Jason here when he (apparently) failed to establish thorough trademark protection.  If the mobile had simply used a different name, and different art, I think there would be no need for verbiage question, as nobody is reasonably going to confuse two games named differently and with different art.  I'd imagine they may want to revise the player art at least, anyway, for the asian market.

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#54 2019-03-02 18:02:59

fragilityh14
Member
Registered: 2018-03-21
Posts: 556

Re: Open Letter to the Mobile Developers

Jason didn't "fail" to establish copyright protection, he pro-actively chose to release the game in the public domain.

I don't see "unofficial mobile port" as a turnoff, when there is no official mobile port, but I'm also really hostile to IP.

I think both sides are being reasonable for what is a complicated situation. Christoffer is clearly thinking about this more like a normal business person, whereas Jason is thinking about it more as an artist.




Is it possible that something agreeable would be to call it "A fan-made mobile version of Jason Rohrer's game One Hour One Life" in the main description, and then "This version of One Hour One Life is not officially affiliated with Jason Rohrer" at the bottom where few read?


I'll tell you what I tell all my children: Make basket, always carry food.

Listen to your mom!

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#55 2019-03-02 18:55:56

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

It is not at all clear to me that the mobile developers are making "tons of money" on this game.  After all, they are selling it at 1/4 the price that I'm selling it for.

When the $10K gift offer was made to me, that was right around the time the mobile game was taking off in Japan.  They eventually reached 1000 concurrent players in Japan, which is about 2x the peak that the PC version ever saw.  Does this mean they sold 2x as many units as me?  If so, they only made 1/2 the money that I made.  But I'm sure the correlation between concurrent players and total sales is different on mobile vs PC.  Maybe they made way more than me, maybe way less.

As for why I did not accept the gift, I felt like there was too much confusion already, and me taking money, even as a gift, would only add to that.

But it's not about the money.  The public domain gives people full permission to make money with derivative works, and I stand by that.

Where I disagree with Jere and a few other people is this point:  I don't think the public domain grants people the right to mislead people.  When I waived my rights to control what is "done" with my work, I didn't waive my rights to ensure that the truth be told about me and my work.  "Do whatever you want" meant do what you want "with the work."  I didn't say, "say whatever you want about it," or "feel free to take false credit for the entirety of this work" (which is what happened with the Chinese version before I stepped in).


CrazieEdie, I may not be a lawyer, but I've won a 1st/14th amendment case in court.  I was arguing against a "real lawyer."  He did a bad job, didn't know case law, didn't understand the constitution, etc.  The village eventually fired him, after that, I think.  The point is, just like having an MD does not make you a good doctor, being a real lawyer doesn't make you good at law.  In my experience, reading case law is VERY similar to reading this thread.  Intelligent people (judges) making common sense arguments in plain English.


In this particular case (just like in the case that I won, which was about landscaping rights), there is no lawyer in the country who is an "expert."  This is untread ground.  There is no specific case law about public domain works from a living author, and how it relates to libel, etc.  This won't go to court, but if it ever did, it would BECOME the case law.  In other words, a "real lawyer's" opinion here is likely to be no more informed than anyone else's, in this particular, highly unusual case.




Christoffer, as for why I'm not wiggling on the wording, I feel like I've wiggled too much in the past already.  Enormous damage has been done to my legacy and reputation, some of it likely accidentally, but some of it through "negotiations" on wording in the past.  I asked for a single screen that said, "UNOFFICIAL ADAPTATION" back in October 2018, and you "massaged" that into a title screen with extra wording ("unofficial extended....") that made it less clear.  Yes, I agreed to it, but I now realize that it was a mistake.  That extra wording was confusing enough that it was lost in translation in the Chinese version (where UNOFFICIAL ADAPTATION certainly wouldn't have been mistranslated).  In other words, it has never been clear enough, and it has finally come back to haunt us.  I also suspect that you didn't fully explain the "unofficial adaptation" situation to the Chinese publisher---otherwise, they certainly would have been more careful with the wording.

With a commercial Chinese release on the horizon, and the potential for literally MILLIONS of new players, it's time to make it clear, once and for all, so we can move on, and so that everyone knows the truth of the situation.  It's not time to further negotiate wording.  That didn't work last time.

Consider this tweet, exemplifying why it hasn't been clear enough:

ZhlpJaG.png

It is not MY duty to make this clear through blog posts.  It is YOUR duty to make this clear in your marketing and presentation.  Unfortunately, you have failed in that duty (apparently), which is why I'm finally stepping in and giving you a specific set of changes that I feel will be sufficient to make it clear to everyone.


I did not approve of the font.  I did not approve of the "character mosaic" clip art in the background of the Settings screen, the brown torn paper at the bottom, or the button icons.  I did not approve of nudity being removed by default.  I did not approve of weekend challenges.  I did not approve of Santa, or the Peace Lilly.  I'm sure you have all sorts of other modification plans in the works, and more power to you.

That is fine.  I don't need to "approve," but everyone needs to know that I did not approve.  That is all.  I did not approve.  End of story.  No confusion.


And as for whether "not approved" sounds too negative, you have all the word count in the world to fully explain yourself and tell the whole story.  That's why I suggested a "more info" button inside the game (and that's why I only specified two lines in your App Store description).

You could have a whole scrolling page of text there, explaining the public domain, explaining that I released the game in a way that allows anyone to do what they want with it without permission, explaining that you asked permission anyway, and that I told you it's in the public domain.  Explaining that I later demanded this specific wording to be added, and that it was unfair of me to do that in your opinion, and that you think I don't really believe in the public domain after all, but that you added the wording just to be nice, because you want to respect the original author's wishes, even though I apparently gave up my rights.  Explain that anyone can make anything without Jason's approval, so lack of his approval isn't a negative thing after all.  Explain that there are other mods, that you're not the only one doing this.  We didn't steal anything---he let us do this.  However, he wanted to make sure that the situation was clear to everyone.  Explain that you offered me cash gifts, now and in the future, which I originally suggested, but later declined.  Quote our emails.  Quote this thread.  You can say any truthful thing there, anything at all that you want, to clear your name and set the record straight, if you think that "not approved" sounds too negative.


And by the way, I'm not requiring that you explain anything.  I'm offering this suggestion to you as a way for you to "soften" the "not approved" wording.

And if you think that "no one will read" the explanation, I think they will.  Are you kidding?  With teaser text like that, who wouldn't be curious?  Put a ping-back in there, and count exactly how many people eventually press the "more info" button.  I bet it will be a lot.


Finally, I don't think this will substantially harm your commercial prospects here.  Anyone who sees the stamp inside the game will have already bought the game.  Most people don't read the App Store text (which is part of the problem).  And "Unofficial" in the title will just as likely attract eyeballs as repel them.  It will be highly unusual----an unofficial game for sale in the app store, and at the top of the charts?  How is this possible?  Tap.



(I just realized that you may have some trouble getting the word "Unofficial" approved by Apple, since they hand-approve everything.... if that's the case, please let me know, and I'll be happy to provide you with a signed and notarized letter explaining the situation.)

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#56 2019-03-02 19:23:35

Redram
Member
Registered: 2018-08-16
Posts: 113

Re: Open Letter to the Mobile Developers

fragilityh14 wrote:

Jason didn't "fail" to establish copyright protection, he pro-actively chose to release the game in the public domain.

Copyright is not the same as trademark.  This has been talked about several times in this topic.  As has been pointed out, he could have easily claimed *no* copyright, but claimed trademark rights.  This would have cost him $0.  This entire situation would have been avoided, or at least greatly ameliorated.   Trademark rights can be claimed post-infringement, but I would guess he gave up any hope of actually trademarking the art - in this specific case at least - when he allowed it to be used in the port with his knowledge and consent.  He could still trademark the name of the game, but I don't think that will help unless he could also get it ruled that 'one hour life' is too close and not legal, AND get that enforced.  In Asia.  Good luck.

Edit: Button for explanatory screen in-game sounds reasonable though.  As he says, the game is already bought at that point.

Last edited by Redram (2019-03-02 19:26:11)

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#57 2019-03-02 19:43:13

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

One thing I'm looking at is the realm of "unauthorized biographies."

Those are not governed by copyright, but they are still governed by libel laws.

However, you will notice that they ALWAYS contain the word "Unauthorized" in the title.  They do this for a good reason, to make people fully aware that the subject did not participate or approve.  Implying that the subject approved would mislead people.

They don't hide the "unauthorized" status in some fine print.  They put it right in the title.


I'm trying to find case law about a biography that that was falsely labeled as "authorized" when it was not, or an unlabeled biography (where the word "unauthorized" is omitted from the title), and what that implies.

Still, because everyone happily uses "unauthorized" in the titles of their biographies, it seems like this has never come up.


But it gets much closer to what I'm touching on here.

"Jason Rohrer:  A Biography" would imply that I was involved, just like "One Hour One Life for Mobile" implies that I was involved.

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#58 2019-03-02 19:59:56

CrazyEddie
Member
Registered: 2018-11-12
Posts: 676

Re: Open Letter to the Mobile Developers

Jason, I agree with you - the law is not an impenetrable fog that only the experts can navigate or understand, and there are plenty of purported experts who are terrible at it. That said, I do think that an attorney with experience in this area could benefit you not just by their greater knowledge of the relevant law, but also from their experience in handling matters similar to yours in previous cases for other clients.

If I broke my leg and had the Internet handy I could learn how to set my own broken bone, but I'd rather have an ER doc do it because they've done it a hundred times before.

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#59 2019-03-02 20:18:39

lionon
Member
Registered: 2018-11-19
Posts: 532

Re: Open Letter to the Mobile Developers

Redram wrote:
fragilityh14 wrote:

Jason didn't "fail" to establish copyright protection, he pro-actively chose to release the game in the public domain.

Copyright is not the same as trademark.  This has been talked about several times in this topic.  As has been pointed out, he could have easily claimed *no* copyright, but claimed trademark rights.  This would have cost him $0.

Actually it would cost 250 or so. Anyway.

Just wanted to bring a practical example, you certainly know Firefox the browser. Or the "brand". It's a Trademark by the Mozilla Foundation. The browser is actually "Mozilla" So whenever you download and install "Firefox" you know it's a version that got their final blessing. It's an understandable policy.

This got the Debian Foundation into quarrels, as they want to be able to fix securities issues in software in the repository on a whim. Also an understandably policy. It resulted them rebranding it as "Iceweasel". It was otherwise pretty much the same OpenSource software, only the title and the logo was changed. It got a lot of users confused, that looked to install Firefox on their machine, "Well you have it already, it's only called differently". Or that looked down on Debian, because "it doesn't include Firefox .. but that other distro does".

After a while they settled on redistributing "Firefox ESR" and both communities got their heads cooled on the clash of their policies, which by themselves were understandable from both sites, but conflicting. Also there seems now to be much more mutual trust between the Foundations.

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#60 2019-03-02 20:31:40

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

Yes, the IceWeasel thing is quite a mess.  Here's an article about it:

https://lwn.net/Articles/676799/

The reason I put stuff in the public domain is to avoid such nonsense.  One Hour One Life should be easily includable in Debian, for example, logo and all.

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#61 2019-03-02 20:54:59

Christoffer
Member
From: Sweden
Registered: 2018-04-06
Posts: 148
Website

Re: Open Letter to the Mobile Developers

jasonrohrer wrote:

Anyone who sees the stamp inside the game will have already bought the game.

This is not true by a long shot, Jason. The main way this app is made known to people is through Youtube, so virtually anyone who might have been inclined to get the game because of the gameplay, would see this message (which I still maintain is misleading) before they buy it. Unless of course Youtubers stop posting about it. They may hesitate to post videos of them playing a game which displays that it's "Not approved by the original author Jason Rohrer", thus removing our chances to be seen.

But I had an idea here:

What if we turn it around a bit? Maybe we could by default show a message saying something like "This game was not made by the creator of the original PC game, Jason Rohrer, but here is a message from him." When you tap it, it leads to a text page where you explain your ideas about public domain and how you allow and encourage people to build on top of your games, but also that in your view, the only Jason Rohrer game is the PC version which is 100% JR and nothing else. We could include a link to your site as well, so people can read more, or even order your game.

There would also be a check box or button on the message page saying "Remove the text from the main screen", so only people who have seen your message could remove the text on the top. Youtubers would likely remove it, but only after being made aware the difference between the versions. Your goal of no confusion would be achieved. Your message would also be reachable through our settings after the top text has been removed.

I think this would go a long way to make you and your game better known and understood. China could be a huge potential.

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#62 2019-03-02 20:56:00

Christoffer
Member
From: Sweden
Registered: 2018-04-06
Posts: 148
Website

Re: Open Letter to the Mobile Developers

I still think that a phone call or live meeting would use much less time and yield better results than writing on your forum. Can't you please consider it?

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#63 2019-03-02 21:53:09

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

The reason I'm not considering a phone call or live meeting is because I know you are trying to talk me into something.


Should people watching YouTube videos not be aware that what they are seeing is unofficial?  Why?


I hadn't considered that, but obviously, those viewers should be aware of the situation as well.  I'm guessing that most streamers of the mobile version don't realize that they're playing something unofficial.  That is bad.  It should be obvious.  It is not obvious.

Here is the second-most viewed video in the history of the game:

https://www.youtube.com/watch?v=4SXcvJWm8tA

Granted, I'm relying on machine translation, but he talks a lot about the details of the game, how it works, the different types of servers available, etc.  But he doesn't mention that what he's playing is an unofficial adaptation.  He probably doesn't know!  That is very bad.


It should not be hidden or obscured or backgrounded or downplayed.

It should be quite common for a streamer or reviewer to say, "Hello folks, today we are playing the unofficial mobile port of One Hour One Life."  They should all know.  It should be common knowledge.


You are making an unofficial adaptation, you are not the authors of the original work, and I didn't approve the changes that you have made.

That is the truth, and everyone should know the truth.

Perhaps you see it as an inconvenient truth.  But the truth is the truth.

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#64 2019-03-02 22:23:07

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

Twisted didn't mention it either when he first showed the mobile version:

https://www.youtube.com/watch?v=leOQpYBpjVw

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#65 2019-03-02 23:02:41

Twisted
Member
Registered: 2018-10-12
Posts: 407

Re: Open Letter to the Mobile Developers

jasonrohrer wrote:

Twisted didn't mention it either when he first showed the mobile version:

https://www.youtube.com/watch?v=leOQpYBpjVw


I did mention it, not at the very start of the video but I did mention it early on (7:50):

"It's important to point out this is by a different dev. As you might know One Hour One Life is an open source game, copyright-free open source game, which means anyone can do anything with it. Jason knows about this version, he is fine with it, because, again, open source game that's copyright free. This uses different servers, so if you're playing on the mobile version, you're gonna be playing only with the people who are playing on mobile. You cannot play this with people who are playing it on the desktop build."

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#66 2019-03-02 23:41:41

jere
Member
Registered: 2017-04-09
Posts: 17

Re: Open Letter to the Mobile Developers

Where I disagree with Jere and a few other people is this point:  I don't think the public domain grants people the right to mislead people.  When I waived my rights to control what is "done" with my work, I didn't waive my rights to ensure that the truth be told about me and my work.  "Do whatever you want" meant do what you want "with the work."  I didn't say, "say whatever you want about it," or "feel free to take false credit for the entirety of this work" (which is what happened with the Chinese version before I stepped in).

I don't understand your position on credit, clearly. Someone is free to remix your work without attribution... but they can't also put their own name on it without risking "fraud"? Are you suggesting the "no attribution" part applies so long as people release works anonymously? Do you think that is a reasonable idea?? Do you think people releasing anonymous works is commonplace?

Are these third party developers taking credit for the "entirety" of OHOL? It sounds like they put work into their game, not only infrastructure, mobile development, translation, and new features. It sounds reasonable to expect them to put their names on it. On the other hand, it's expected that works with non-attribution licenses are not attributed except possibly as a courtesy and especially not on main menus.

Or is it that they are free to put their names on it and not yours as long as the derivative work is sufficiently different? But what is sufficiently different? 1% different? 5% different? Who decides? Jason Rohrer I guess. Whoa, now that's a murky situation for anyone considering using your public domain works in the future. Consider the chilling effect this has. One day it seems that it really is "do what you will" and "no attribution" and the next they see you demanding your name in a game "flashing in red, or permanently on the menu screen, or whatever it takes", even after other agreements were made. It doesn't look good from the outside.

Regardless of what you choose to do, it would be really great for your position on these matters to be defined somewhere (your website, the OHOL website, somewhere other than a forum post) in more clear and specific terms. And if you want attribution, I think it's reasonable to demand it up front.

A reasonable Chinese person is now likely to believe that you are the originator of One Hour One Life.

I hope you understand how horrifying that is.

Yes, it is! Which is why I can never imagining putting works into the public domain myself. Nor do I understand why you're doing it when the thought horrifies you.

Can you help me understand how I am misreading this court case, which seems open and shut on the issue of attribution on public domain works: https://en.wikipedia.org/wiki/Dastar_Co … _Film_Corp.

The U.S. Supreme Court, ruling only on the "reverse passing off" claim, reversed the decisions of the appeals court and district court, ruling 8–0 in favor of Dastar. The Court reasoned that although the Lanham Act forbids a reverse passing off, the rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work (or even a patented invention) passes into the public domain, anyone in the public may do anything with the work, with or without attribution to the author.

Last edited by jere (2019-03-02 23:52:22)

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#67 2019-03-03 01:37:22

Redram
Member
Registered: 2018-08-16
Posts: 113

Re: Open Letter to the Mobile Developers

lionon wrote:

Actually it would cost 250 or so.

Actually it would cost him $0 to CLAIM the trademark (™).   It would cost him money to REGISTER the trademark (®) .  They are different things and I used the word "claim" for that reason.  In a case like this where the mobile devs are reasonable people, claiming it should have been plenty.

Last edited by Redram (2019-03-03 01:38:27)

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#68 2019-03-03 01:52:29

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

Jere, that's a great case there, and probably the only relevant case law that I have encountered.

But I think that the USC's decision there is very specific:

Therefore, claims about authorship cannot be used as an end-run around the underlying philosophy of a time limit on exclusive ownership of a copyright or patent.

They were really worried about opening the door to perpetual copyright, based on trademark.  Furthermore, the suit in question was seeking commercial damages, not just enjoining them to give proper credit.


Regarding "credit," you can see here that I'm not demanding that, so much as explicit "anti-credit."  And indeed, the court acknowledges this issue:

Dastar might have been able to avoid this legal attack entirely if it had credited the original authors. However, as Scalia noted in the opinion, that would have put them in a bind: crediting the original authors might have implied their sponsorship or approval, which could have exposed Dastar to other lawsuits unless the credit had been carefully worded.

But, if you read an article on the case from a law journal, you will see an entire discussion of "passing off" and "reverse passing off," which is exactly what is going on here:

https://scholarship.law.berkeley.edu/cg … ntext=btlj

The example is taking Levi's jeans, stripping the Levi logo off, and selling them as Wranglers (reverse passing off).  Or taking cheap jeans, slapping a Levi's logo on them, and then selling them as Levi's (passing off).

What is happening here is a mixture of both.  OHOL is well known enough.  If you stick Santa Clause in there, you are passing off something that is not mine as potentially mine.  Same with your servers, your tech support, etc.  If you don't clearly explain that these are not my servers, and people think that they are my servers, you are guilty of passing off.  And if you claim authorship over the whole thing, then you are reverse passing off.  There is the potential for both here.

The decision itself is here, with a lot of interesting discussion:

https://supreme.justia.com/cases/federa … 3/case.pdf


As for what "remixes" would be permitted that wouldn't cross this line, well, any remix that didn't cause mass confusion on this scale.  2HOL, Terminal Heist, etc.

My service, obviously, is NOT in the public domain.  If you sell an almost-identical competing service, but don't make it clear to people that they are getting a different service from what I'm selling, then you are passing off.

The problem here is that there is a public perception that there are "two ways to play OHOL," and people think they are equivalent---that they are the same thing, the same service, made by the same people.  This is not true.


I'm not asking the mobile developers to stop remixing, or stop selling their remix.  I'm not asking them to remove Santa Claus.  I'm asking them to take steps to clear up this confusion.  I asked them to do this back in May 2018, when they were just getting started.  I don't think the steps they took were sufficient.  In the case of the Chinese version, no steps were taken at all.  So now I'm getting very specific about what steps would clear up the confusion.


And Jere, I still maintain that this has nothing to do with "copyright."  Especially for an online game service, which includes live servers, tech support, regular promised content updates, etc., there is a very real distinction between the "official" service and the unofficial one.  Which version of this MMO do I want to play?  The $20 one, or the $5 one?  Oh wait, the $5 one has Santa Claus in it?


After all, the copyrightable code and content is right there on github, freely available to the world.  The mobile devs are not marketing that.

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#69 2019-03-03 03:04:07

Penthus
Member
Registered: 2019-02-17
Posts: 2

Re: Open Letter to the Mobile Developers

I can see this from both sides but Jason I don't think you fully understand the impact of the word Unofficial in a game title. If a normal person was browsing the App store and found a game with Unofficial in the title the first thing that would come to mind is that it's unsupported, fake, buggy or plain doesn't work.

A compromise needs to be made but I don't think a name change is the way to go. Maybe something in the game description linking to the PC version and making it more clear that the mobile is a port worked on by different developers. Maybe add a page inside the mobile app linking to the PC games website for people to check out and see they are different games. At the end of the day no matter what you do there is going to be confusion unless they change the name but then you would consider it fraud for them to pretend OHOL PC doesn't exist.

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#70 2019-03-03 03:05:29

Greep
Member
Registered: 2018-12-16
Posts: 289

Re: Open Letter to the Mobile Developers

Nobody would care if you had originally said "You're allowed to do what you like, but you must call it the 'Unofficial' One Hour One Life".  What people are questioning, and probably will turn out you don't actually have rights to do anymore when they inevitably just say "nope, not gonna do it", is how you're saying they need to do it NOW when originally they did not.  Doesn't matter that it will make up for other requests you felt they didn't handle well.  It's an explicit right that has a lot of importance that you probably waived yourself of.

Anyways, agreeing with CrazyEddie on just see a lawyer already, you'll probably end up seeing one soon at some point if you're making demands with deadlines.  They'll probably say you're pretty hosed as far as getting what you want, though.

Edit: And as far as your "passing off example" is concerned, it has to do with trademark on the second page.  "Professor McCarthy, in his famous treatise, calls this "the classic
form of trademark infringement.""  Which ya don't have anymore most likely.

Last edited by Greep (2019-03-03 03:17:25)


Likes sword based eve names.  Claymore, blades, sword.  Never understimate the blades!

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#71 2019-03-03 04:58:45

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

There's a parallel discussion happening on the mobile forums:

https://forum.onehouronelife.app/t/a-de … jason/3957

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#72 2019-03-03 18:59:24

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

A few thoughts this morning.


First, there is a very prominent, widely used "derivative work" of OHOL out there.  It is used by thousands of people every day.  It is based loosely on my code and data format, and based directly on my copyrighted (but public domain) drawings and now sounds.  In fact, it makes use of every single drawing and sound that I've ever made.  In fact, it makes use of drawings and sounds that I haven't even released yet, before the players actually see them in the game.

Strangely, there is no confusion about this derivative work, and I've never had to clear anything up, and no one emails me, and I've never felt the need to make any clarification demands of the developer.  In fact, the derivative work does not link to my game, or mention me, or mention that I did not specifically approve, and I'm fine with that, because it's clear enough, and even if it's not clear, it does no specific damage to my reputation as a designer.

That derivative work is here:

https://onetech.info/

Thanks to the public domain, this developer had full, unfettered creative access to remix and reuse my work, and the result is nothing short of beautiful and astonishing.  There are times that I think OneTech is the coolest part of the OHOL universe.  Beautiful and astonishing... but NOT confusing!

And this is why I don't use a CC BY license, or whatever other restrictive nonsense.  Yes, restrictions will prevent some "very not okay" things from happening, but they are too broad and too blunt, and thus also prevent many totally okay and actually excellent things from happening too, and that is the majority of things that could happen!

The example of a direct service competitor passing off an almost identical product in a way that is indistinguishable from your own is the one really bad and harmful possibility among billions of not-harmful possibilities.  But wielding copyright to prevent that one possibility is overkill.

(And by the way, my definition of "harmful" may be different from yours.... an OHOL comic book, or film adaptation, or completely different game using the engine, or RPG using the characters, or YouTube animations made with the editor.... those are awesome and not harmful, in my eyes---none of these things muddy the waters about what constitutes the official OHOL game.  None of these are "horrifying" to me.  Someone else making money isn't horrifying to me, the way that it apparently is to so many other people.)



Second, an explanation of why these sudden demands that I'm making are more "harsh" than some people think they need to be ("unnofficial---gasp!"  "not approved by---gasp!").

The way the game was originally presented on TapTap in China was in direct violation of our "friendly" agreement. It is impossible to see it now, how it was before, but you've seen at least one sample of it (the splash screen).  But this violation of our agreement pervaded the entire presentation.  The app store text made no mention of the unofficial status.  The video made no mention of it.  So, in three major places (splash screen, store text, and video), misleading claims were made.  I can imagine one accident.  Harder to imagine three accidents.  And even if all three were accidental, these accidents demonstrate a flagrant lack of concern about this very important issue.

And yes, I found out about this because a Chinese player emailed me with great concern.  Through their translation help, I was able to understand what was going on.  And yes, I contacted you, the mobile developers, and yes, you acted to correct this.  But I didn't notice this issue for more than 40 days.  The Chinese version launched on January 15, 2019.  I didn't learn about the problem until February 26, 2019.

And the "meet the devs" video, specifically, was beyond the pale in terms of sliminess.  You made this video, intentionally, and approved it.  There is no way that video was posted without you seeing it first.  It was no accident.  And there it sat for 40 days.  600K people "followed" the app.  How many of those watched that video?

And yes, I asked for a boiler plate to be added to the video.  But really... I shouldn't have to ask for anything---that kind of video just shouldn't be made, in this context.


With that much damage done, and that much lack of concern demonstrated, what can I do?  I can't put the cat back in the bag.  I can't have 600K Chinese players un-see what they saw during that 40-day window.

The normal recourse in this situation would be to sue for punitive damages, or reach a monetary settlement, outside of court.  The money awarded would bring justice to an otherwise unjust situation.


Instead, I'm asking for a correction in marketing that pushes further to the other side.  A correction that is "too careful" to make the situation clear, as compensation for a presentation that was "too careless" in the past.

This will help to bring justice to an unjust situation.  Going forward, I will have peace of mind that everything was set right.


What is fair compensation for 600K Chinese people being mislead about my legacy as a designer, in direct violation of our friendly agreement?

I'd say "unofficial" in the title, the specific text in the app store, and the text on the menu screen is fair compensation.

This will demonstrate to me that you are now taking this issue very seriously, given what happened in China, and that you will ensure that it will never happen again, ever.

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#73 2019-03-03 19:34:15

Christoffer
Member
From: Sweden
Registered: 2018-04-06
Posts: 148
Website

Re: Open Letter to the Mobile Developers

So, I logged on to let you know let everyone know that we are making some progress. Jason, I saw your recent post (#72). I will have to take time to think it through before I answer, so consider this not an answer to that, ok?

So, what we have come up with is in the lines of "unofficial" but a little more palatable.

We are willing to do a name change to "One Hour One Life Mobile Mod". It's a mouthful, but it clearly says that it's a derivative work and not the original.

Almost all mods are unofficial, so that's implied and can be further expanded upon in the description. My bet is that people will look closer at the description than they usually do, before buying.

If you're good with this for now, it should be possible to roll it out on Google Play within hours. AppStore will require a new release, though, which could possibly happen next week. Regarding the various market places in China, you already know that a name change is in the works.

I'm not saying this would be the only change. It's just the fastest change that can be made.

Let me know if you agree to this first step. Thanks.

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#74 2019-03-03 20:29:39

fragilityh14
Member
Registered: 2018-03-21
Posts: 556

Re: Open Letter to the Mobile Developers

I really think "fan-made" is a good descriptor for showing that it's not official without it sounding bad to potential buyers. And it's accurate, you're a huge fan of this great game.


I'll tell you what I tell all my children: Make basket, always carry food.

Listen to your mom!

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#75 2019-03-03 22:12:23

jasonrohrer
Administrator
Registered: 2017-02-13
Posts: 3,806

Re: Open Letter to the Mobile Developers

As you can see from my post #72 above, "Mobile Mod" doesn't satisfy my desire for extreme clarity as compensation for an unjust situation, and also my desire to not be pushed around or "massaged" by you into softening my requests (which I feel has happened in the past).


Also, there are "mods" that currently connect to my servers (like the zoom out mod), so the confusion would still be present with that wording.

And in my view, "mobile" is a redundant word here, because obviously, it's for mobile.  Everything sold in these stores is for mobile.  My understanding is that you put "for mobile" there as a way to differentiate, but in my view, it didn't work very well, because "PUBG Mobile" and the like are always official.

The reason I bring this up is that I know titles are limited to 30 characters.  I see that you replaced "for" with "mod", thus preserving the 28 character count.


Let's go ahead with what I originally requested---work "Unofficial" into your title.  Good to know that you can change it in the Google store instantly, so let's start with that.  As far as I can tell, keeping it under 30 characters, your options are:

Unofficial One Hour One Life
One Hour One Life Unofficial
One Hour One Life - Unofficial
One Hour One Life (Unofficial)
One Hour One Life [Unofficial]
One Hour One Life: Unofficial

Pick one for now.  Let's let that change settle a bit, and see what happens.


If it turns out that this change absolutely destroys your business (which I don't think it will), and you demonstrate that to me with precipitous graphs, we'd be in a good place for additional negotiations at that point.

(Also, don't forget that you have unlimited text to explain the situation.... heck, make a video explaining it, if you want.  Make a screen shot explaining it.)


And with that underway, and the two lines of text in place in the app stores as well, we'd be in a good place from which to work out exactly how the text is displayed on the Menu screen over the next week.

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