I’ve got a few comments back from Don McGowan, the author of the Microsoft Gaming Rules, on various points people have raised and questions they’ve asked.
(If you’re wondering what the hell these “Gaming Rules” are and why Machinima for Dummies seems to have suddenly become a law blog, read this summary to get the latest. )
First, and most importantly, they’re putting together a standard contact if you’re interested in enquiring about commercial licensing. Hopefully we’ll have more news on that soon - they are working on it!
Secondly, on the issue of extracting 3D models and so on, Don says:
“I get nervous about approving things in advance because people are so damned inventive… I’d say that if someone can get assets off the disk in a way that doesn’t require them to do anything that’s illegal in their jurisdiction, then I can’t stop them. Does that help?”
I’m so not a lawyer, so I asked Fred von Lohmann if that means that extracting things from GL streams are fair game. His response:
“There is basically no way to answer that with any certainty. There is no consensus about how far the term “reverse engineering” reaches. Some companies (Blizzard) have argued that just eavesdropping on a wire to figure out an undocumented protocol constitutes “reverse engineering.” I think that’s crazy, but you never know how a court might rule. In any event, it’s like most of the other restrictions in the MSFT license – most machinima creators can’t afford a legal fight with MSFT, so if you think what you’re doing will annoy them, call a lawyer first. “
Personally (and please remember the “I’m not a lawyer” rule) I’d tend to approach this the same way I’d approach a potentially offensive piece - if it’s short, just do it and see if they tell you to take it down (and make a stink if they do). If it’s long (like six months plus of production), ask Don and company first what their feelings are on your proposed techniques, call a lawyer and get their opinion, or both.
Obviously, the above discussion applies to the US specifically. In other juristictions, reverse-engineering may be more allowable or more well-defined. Check with a lawyer.