Bethesda And Zenimax Settle 'Redfall' Trademark Dispute With Trollish Book Publisher

from the what-a-breeze dept

Zenimax, parent company of Bethesda, was in a trademark dispute with book publisher BookBreeze.com on behalf of author Jay Falconer over Zenimax's trademark application for the term "Redfall". I could have sworn I wrote about this when the this dispute started in February, but it appears not. At issue is that Falconer has a sci-fi series of novels with the Redfall title and he is claiming that the public might be confused between his books and whatever game Zenimax is planning to publish with that trademark. Much of the speculation is that it will be for the next Elder Scrolls game.

It’s not known exactly what game ZeniMax applied for the Redfall trademark for, but with another Elder Scrolls game in the works at ZeniMax-owned Bethesda, it’s possible that the company was planning to use Redfall in the name of that in-development game.

According to the author, his legal team attempted to resolve the issue before filing an official dispute, but was met with radio silence from ZeniMax at every turn.

“My lawyers made attempts to contact gaming company to work out a simple licensing deal for them to use my Redfall name,” tweeted Falconer. They ignored me every time. Shame. Left me no choice. All could have been avoided. Just call my attorneys back.”

All of which is nonsense. The video game and literary markets are not the same and it strains the mind to imagine how the average consumer might somehow confuse an entry in the Elder Scrolls game series with a series of science fiction novels. This always had the smell of a money-grab and I had rather hoped that Zenimax would bother to fight this one out in court. After all, the real concern by Falconer appears to be that he might some day want to license his books for a game. That hope and dream is not the basis for a trademark dispute, however.

Unfortunately, it looks like Zenimax has settled with Falconer. I say unfortunately because, as is common, the terms of the settlement have not been disclosed.

"ZeniMax Media Inc. and Bookbreeze.com are pleased to announce that they have amicably resolved a pending trademark dispute related to the Redfall trademark," reads a short statement.

"While the specific terms of the agreement are confidential, the parties believe that resolution of the matter is mutually beneficial to both ZeniMax and Bookbreeze.com and their respective fans."

So what does that all mean? Who knows. I'll be interested to see if Zenimax gets its trademark for "Redfall", or uses it without a trademark. We'll never find out if any money was exchanged, but, if that happened, it looks like Falconer will have pulled off some trademark bullying for profit. It would have been much better to see this fought out in court, because the initial claims weren't particularly strong.

Oh well. Perhaps Zenimax's lawyers have grown tired of lawyerly adventures after taking too many trademark arrows to the knee.

Filed Under: books, jay falconer, redfall, science fiction, trademark, video games
Companies: bookbreeze.com, zenimax

How Is 'Non-Literally Copying' Code Still Copyright Infringement?

from the form-and-function dept

Back in 2014, when ZeniMax first claimed that Oculus and its CTO John Carmack had copied the company's VR technology, we pointed out the obvious: since ZeniMax hadn't made a peep until the announcement that Facebook was buying Oculus for a cool $2-billion, it was a pretty blatant cash-grab. Now ZeniMax has scored a partial win in its lawsuit against Oculus and its executives, with the jury rejecting claims of trade secret misappropriation but awarding $500 million for copyright and trademark infringement and violation of non-disclosure agreements.

The trade secrets were the most important claim, but Oculus has already vowed to appeal the rest — so the case isn't over. But the most interesting thing to come out of this verdict is a statement from John Carmack about the expert testimony on "non-literal copying" that was central to some of the copyright claims:

For the most part, the process went as I expected.

The exception was the plaintiff’s expert that said Oculus’s implementations of the techniques at issue were “non-literally copied” from the source code I wrote while at Id Software.

This is just not true. The authors at Oculus never had access to the Id C++ VR code, only a tiny bit of plaintext shader code from the demo. I was genuinely interested in hearing how the paid expert would spin a web of code DNA between completely unrelated codebases.

Early on in his testimony, I wanted to stand up say “Sir! As a man of (computer) science, I challenge you to defend the efficacy of your methodology with data, including false positive and negative rates.” After he had said he was “Absolutely certain there was non-literal copying” in several cases, I just wanted to shout “You lie!”. By the end, after seven cases of “absolutely certain”, I was wondering if gangsters had kidnapped his grandchildren and were holding them for ransom.

If he had said “this supports a determination of”, or dozens of other possible phrases, then it would have fit in with everything else, but I am offended that a distinguished academic would say that his ad-hoc textual analysis makes him “absolutely certain” of anything. That isn’t the language of scientific inquiry.

Now, ZeniMax was quick to hit back with its own statement pointing out that some of the code at issue was literally copied (though the jury seems to have found that little or none of that code was actually used), but this question of "non-literal copying" is far more important. This whole notion of experts doing textual analysis to find recurring patterns is a worrying one: for all the real science behind such methods, it's not at all hard to see how easily they could be manipulated to support a chosen result, or how difficult it would be to ensure a jury properly understands the arguments and affords them the appropriate weight. Indeed, Carmack goes on to explain how the expert's presentation was... lacking:

There are objective measures of code similarity that can be quoted, like the edit distance between abstract syntax trees, but here the expert hand identified the abstract steps that the code fragments were performing, made slides that nobody in the courtroom could actually read, filled with colored boxes outlining the purportedly analogous code in each case. In some cases, the abstractions he came up with were longer than the actual code they were supposed to be abstracting.

It was ridiculous. Even without being able to read the code on the slides, you could tell the steps varied widely in operation count, were often split up and in different order, and just looked different.

The following week, our side’s code expert basically just took the same slides their expert produced (the judge had to order them to be turned over) and blew each of them up across several slides so you could actually read them. I had hoped that would have demolished the credibility of the testimony, but I guess I overestimated the impact.

The notion of "non-literal copying" as applied to code is a weird one, and casts a light on how weird code copyright is to begin with. If copyright isn't supposed to cover functional choices, how can it be infringing to create new code that accomplishes the same function in a slightly different way? Are juries supposed to determine which "non-literally copied" aspects of the code were aesthetic, and which were purely functional? This sort of idea-expression divide question is muddy in the worlds of art and literature, but it should be simple in the world of code: what a program does is not covered by copyright, nor are any purely functional elements of how it achieves that.

But instead, we've got experts applying what more or less amounts to literary analysis to computer code, and even using that analogy (to which Carmack has an excellent response):

The notion of non-literal copying is probably delicious to many lawyers, since a sufficient application of abstraction and filtering can show that just about everything is related. There are certainly some cases where it is true, such as when you translate a book into another language, but copyright explicitly does not apply to concepts or algorithms, so you can’t abstract very far from literal copying before comparing. As with many legal questions, there isn’t a bright clear line where you need to stop.

The analogy that the expert gave to the jury was that if someone wrote a book that was basically Harry Potter with the names changed, it would still be copyright infringement. I agree; that is the literary equivalent of changing the variable names when you copy source code. However, if you abstract Harry Potter up a notch or two, you get Campbell’s Hero’s Journey, which also maps well onto Star Wars and hundreds of other stories. These are not copyright infringement.

(Not that plenty of people haven't tried to sue over books, including Harry Potter, being vaguely similar to their ideas.)

After all this, you might be thinking that you want to go find out more about just what that expert had to say, and get more detail on how he reached his conclusion about copying. Too bad! Even the defendants didn't get to see the full report, and we get even less:

Notably, I wasn’t allowed to read the full expert report, only listen to him in trial, and even his expert testimony in trial is under seal, rather than in the public record. This is surely intentional -- if the code examples were released publicly, the internet would have viciously mocked the analysis. I still have a level of morbid curiosity about the several hundred-page report.

Several hundred pages to "prove" that software was "non-literally copied" because it does the same thing in similar ways, all by abstracting chunks of code into their platonic forms and comparing them? Well, I guess those experts have to earn their paycheques somehow.

Filed Under: copyright, john carmack, non-literal copyright, software, source code, vr
Companies: facebook, oculus, zenimax

Bethesda Bullies One Of Its Creative Fans Over Website Metatags

from the jerk-like dept

Bethesda has something of a complicated history on our pages. The company is at once often terrible on matters of enforcing its intellectual property in a protectionist manner, while also occasionally acting quite good on matters of connecting with its fans in a meaningful and downright sweet manner. Few and far between have been the stories of those two separate philosophies intersecting, but we have such an instance now as Bethesda has demanded any Bethesda trademark words be removed in metatags on the website for DoomRL, a fan-made rogue-like inspired by the classic Doom games.

It's a strangely worded letter in a couple of respects. First, the letter seems to be focused on the use of words and/or phrases trademarked by Bethesda/ZeniMax within the metatags for the DoomRL website, as opposed to making any sort of copyright claim on the game itself. In other words, it's not at all clear from the threat letter whether or not the company is objecting to the fan-game in any way, or just the use of the metatags. If the latter, the threat makes very little sense. The text on the website doesn't mention Bethesda or ZeniMax at all and only mentions ID Software to credit it for being the creators of the Doom franchise. The trademarks that appear to be in question are references to Doom itself.

And these are a game, a website, and references that are years old. The game appears to have been in production for at least six years and has been publicized on the web for about as long. It's a game that doesn't resemble any actual Bethesda property and is instead a fan's new take on the franchise, offered for free. I don't read any objection into the game itself in the threat letter, so why make such a big deal over the use of the Doom name itself? Is Bethesda cool with a fan making a Doom inspired game, so long as that fan never mentions it to anyone?

As a result of the threat, however, creator Kornel Kisielewicz has decided to scrap DoomRL for a successor that doesn't include any Doom IP. This is about the time that defenders of copyright and trademark will chime in to suggest that intellectual property enforcement has led to the creation of new intellectual property, thus fulfilling its purpose... except that isn't really true. It's basically the same game, just with the added effort of pretending like it's something it wasn't originally. Yay?

And, more importantly, the stripping of references to Doom helps Bethesda how, exactly? What was once a native expansion of the franchise as an expression of love from a fan, one which could only serve to point new potential customers back to the original game series, has instead become something independent of that series. Kisielewicz has even started a Kickstarter for the sanitized game to now profit off of it, instead of acting as a free promoter for Bethesda's game. At best, Bethesda loses out on a free marketing vector for its Doom franchise, while at worst some in the gaming public will want to punish the company for this aggressive behavior. How exactly is this kind of IP bludgeoning a better option than working with the fan/creator?

Filed Under: bullying, doomrl, fans, metatags
Companies: bethesda, zenimax

Bethesda Does Connecting With Fans Right

from the good-guys dept

We've spent some time and energy in these pages poking at Bethesda and its parent company, Zenimax, over each's overtly ridiculous stances on protecting what it views as its intellectual property in the past. But even a bad actor in the IP arena can get things right in other ways and Bethesda has shown itself to be fairly good in the past in the area of connecting with its fans. This is one of the more underappreciated aspects involved in digital business models, in which the digital realms where we operate open up content producers to direct interaction with their customers. Done right, this will ingratiate a business with its community, fostering a loyalty it might otherwise not have. Done really right, it gets a company all of that plus a PR bonus that can only come from these organic interactions.

Which brings us back to Bethesda, makers of Fallout 4. The company recently heard from one fan showing his appreciation for its work on the game and the game's help in getting him through some fairly rough times.

“I have spent over 500 [hours] in this game,” NoohjXLVII wrote on theFallout 4 Reddit (via Eurogamer). “Partly due to the fun gameplay, the new survival mode, and just the game in general. My dad passed away last year (age 56)... I didn’t take it well.”

To deal with the pain, he made a bipedal sentry bot and named it after his father. “The name of the bot was GR-36, as his name was Greg.” Then, this summer, when NoohjXLVII finished Fallout 4, he got a call that his 24-year-old brother was in the ICU. Sadly, his brother passed away. (His friends started a GoFundMe, which goes into more detail about his medical condition.)

“Thank you Bethesda for providing me with this wonderful game and distraction for everything I’m going through,” NoohjXLVII wrote.

Entertainment has always worked this way, whether it's professional sports, books, movies or music, an artistic medium's capacity to whisk us away from the troubles of life has always been a primary motivator. Those troubles can be mundane, or they can be of the more extreme variety. The ability to lose oneself is no different in the art of video games.

Still, stories and feedback like this are not especially rare. I've seen them all over the place. More rare is Bethesda's decision to thank NoohjXLVII not only by sending him a very nice care package, but by writing his late brother into the game as a character.

Bethesda not only sent NoohjXLVII a care package, but added his brother to the game’s Nuka World DLC.

“The words they use sound exactly like him, however he was also a pretty funny guy, full of puns,” NoohjXLVII wrote yesterday, thanking Bethesda and saying he would forever be in their debt.

The character is overtly kind and caring to the player, mirroring what NoohjXLVII says of his real life sibling. It's touching for the public, but must have been a deeper kind of experience for this one person who lost two family members. Whatever we might say about the company's stance on intellectual property protectionism, this is connecting with fans done very, very well.

Filed Under: connecting with fans, fallout 4
Companies: bethesda, zenimax

It's All Fun And Virtual Reality Until Oculus Gets Bought For $2 Billion -- Then ZeniMax Wants Its Cut

from the fun-of-employment-agreements dept

It's always funny to see the greedy folks reveal themselves after a company sells out for many millions or billions of dollars. The latest is ZeniMax, the owners of Id Software, and the former employer of John Carmack. Carmack, of course, is the famous video gaming guru who left ZeniMax last year to go full time at Oculus. Prior to that, Carmack had tried to work at both companies, but after ZeniMax no longer wanted him working on virtual reality, Carmack reasonably decided to go full time at Oculus. While not exactly common, it's also not unheard of for "rockstar" tech folks to work at and/or run multiple companies at the same time -- think Steve Jobs at Pixar/Apple and Jack Dorsey at Twitter/Square. Usually there aren't any real "ownership" issues to deal with, but it appears that once Facebook ponied up $2 billion for Oculus, ZeniMax suddenly decided that Carmack was using its proprietary technology to make the Oculus Rift work. Of course, if that were true, you would have thought that ZeniMax would have raised the issue long ago, rather than waiting until many months after they knew what Carmack was working on at Oculus. This just stinks of a company that did nothing, now looking to cash in on a big deal it had nothing at all to do with.

Carmack, in response to this has noted that no work he did has been patented, and while ZeniMax may own his code, they can't claim to own the concept of virtual reality. This may not come down to patents (or copyright). It may come down to the terms of Carmack's employment agreement. As lots of developers know, it's not uncommon for some companies to have ridiculously overbroad employment agreements that try to claim the rights to basically any concept you ever thought about while you work for them.

Filed Under: deals, john carmack, oculus rift, ownership, virtual reality
Companies: facebook, id software, oculus, zenimax

Zenimax Files For Trademark On A Skyrim Internet Meme

from the arrow-to-the-knee dept

We are all aware of the aggressive nature of Bethesda parent company Zenimax when it comes to trademarks. We now learn that it is not only aggressive in defense of its trademarks but is also an aggressive filer of trademarks for things surrounding its properties. Fusible is reporting that Zenimax has recently filed 6 different trademark applications covering a variety of uses of the phrase "Fus Ro Dah".

For those of you not in the know, "Fus Ro Dah" is a phrase spoken by characters in the Bethesda game Skyrim when casting a spell that sends a blast of energy knocking back anything in its path. For those Star Wars buffs out there, it is very similar to a Jedi Force Push. This spell has spawned its very own meme using both in game footage of the spell use and the use of the phrase just before real people fall on video, as can be seen here:


While we are not entirely sure of Zenimax's true intentions, we do know that due to the ownership culture we have in the US many companies want control over anything related or somewhat related to their properties. This protectionist attitude is probably the primary driver of this move. Zenimax most likely feels that since this meme is based on one of its properties, it should have sole control over its use.

Unfortunately, this move to trademark a meme can actually result in its premature death. Memes are born in the wild and are best able to grow and spread if left to the whims and wiles of those on the internet. Memes cannot be controlled or tamed. If Zenimax's trademark filing is approved, the moment it makes its first move toward control, such as sending a cease and desist or taking down a video, it will feel a backlash by fans of Skyrim. If Zenimax had anyone capable of rational thought running its operation, it would have left this meme be and sat back and enjoyed the free advertising it provides for one of its games.

Filed Under: fus ro dah, games, meme, skyrim
Companies: bethesda, zenimax