Machinima for Dummies: Game Content Usage Rules from Microsoft - the HUUUUGE but calming post

Game Content Usage Rules from Microsoft - the HUUUUGE but calming post

Hugh "Nomad" Hancock — Fri, 31 Aug 2007 14:13:00 +0100

OK, I promised a longer article on the Game Content Usage Rules. And boy, are you going to get one. Strap in, this one’s a doozy.

Before I start I should note that the ineffable Fred Von Lohmann, who was on the same conference call about these Rules as I was, yesterday, has posted a shortish analysis of the Rules from a legal perspective, over at EFF Deeplinks. His article’s worth reading if you’re at all interested in this topic.

OK, OK. Back up. What are these Game Content Usage Thingies, and why do I care?

So we said a little while ago that we’ll be keeping this blog up to date with the latest developments in Machinima. And something big - like, really big - just developed.

Microsoft released a usage agreement for Machinima creation using its engines. That means that, for the first time, Machinima made in Halo and other engines isn’t even technically illegal - provided you follow their rules.

Now, various bits of those Rules made my and many other Machinima creators’ blood pressure rise. It looked like they were pretty limiting.

Fast-forward some days later. I spent some of yesterday in a massive conference call with Fred von Lohmann, two-fisted fighter for Internet Justice (and Senior Staff Attorney at the Electronic Frontier Foundation) and what felt like about half of Microsoft Games And Legal, including the author of the Rules (whose blog you can read and comment on, incidentally - he’s covering this too, which is awesome). We hacked through the Rules, we covered a lot of stuff, and now I can present you with the definitive guide to the current version of the Game Content Usage Rules - which actually turn out to be pretty darn good.

(Current version? Yep - they’re currently preparing a new version, as I write. Well, probably not literally as I write, because I think it’s about 4am there, but, you know, within a 24-hour timeframe.)

So. Game Content Usage Rules for Dummies, if you will.

Heeeere we go!

Let’s have a look at the Rules. You can sing along at the URL above - I’d recommend having a quick scan before you read on.

First up, it’s worth noting that if you don’t fit into the restrictions within the Rules, you’re no worse off than you used to be. Halo in particular has always been quite “friendly” to Machinima - no prohibitions on derivative works, no Fair Use restrictions. Indeed, the XBox versions don’t have an End User License Agreement at all.

(At risk of a plug, I should mention that Machinima for Dummies the book - due out on Monday - has an entire chapter on the legal aspects of Machinima, how to read EULAs, and all that stuff)

So, basically, if for whatever reason you can’t make your Machinima series fit within the Game Content Usage Rules (catchy title, innit?), you’re exactly where you were before, no better, no worse.

(You may be asking about Halo 3. Well, we’ll have more information on Machinima in Halo 3 on the 25th, when it comes out - I’d say more now, but I’d then fear sudden attack from the Microsoft Ninja Squadrons, and unlike Richard Stallman, I don’t sleep with a katana by my bed. )

Clause Catching

The three clauses in the agreement that have been really exciting everyone are:

You can’t add to the game universe or expand on the story told in the game with “lost chapters” or back story or anything like that.

Yipes. It’s possible to read that as “if you mention Master Chief, we will sue your ass”. However, I’m told that that is very much Not The Intention. Indeed, the MS team had already been following the reaction online, and were frankly a bit aghast.

Why is this clause in there? Well, basically MS are afraid that some obscure Machinima creator will write a story set in the Halo universe that turns out to be very similar to an “official” Halo story, and will then sue MS for “stealing” their idea. It’s a problem a lot of content creators face.

However, they intended this clause to be read a lot more narrowly than it has been. Basically, it seems that provided you’re not explicitly setting your story within the main storyline of the Halo games, starring major Halo characters, MS will be fine with your work. The MS guys were pretty darned shocked at how scared they’d gotten the Machinima community - that certainly wasn’t their intention.

Obviously, the paranoid amongst us (and I’m often in their heavily-armed, fortified, survivalist camp) will say “great, but we’ve only got their word on that.” . No worries. In light of the reaction from the community, MS are looking at redrafting this clause to something totally different - perhaps an agreement that, if you’re using this license, you won’t sue MS for any similarities between your work and theirs.

Even if that doesn’t happen, though, it’s very unlikely that, even in a worst-case reading of this clause, you’d get in trouble. See “Should I stay or should I go?”, below.

(Were The Codex guys right to cancel their production? My feeling is that reaction was a bit hasty. Still, I can understand legal-induced panic!)

“You can’t … use it to enter a contest or sweepstakes”

I’ll just quote DonkeyXote’s blog this morning:

“No one intends for the Game Content Usage Rules to interfere with machinima film festivals or other events dedicated to the promotion of machinima as an art form. We’re grappling with the idea of third parties who are promoting their own commercial website by having a machinima “contest”. If Site X decides to promote its own business by inducing the community to make machinima using our IP then yes, we do have an issue with that. But if someone submits a film to the Montreal International Film Festival, probably not. Sure, when they leverage that into a commercial distribution agreement we’d like to talk with them, but that’s a different discussion for a different day.”

The MS guys were also very, very clear that you CAN submit your Halo films to the Machinima Film Festival, the Machinima Europe festival, or basically any other film festival.

(And if you make Halo Machinima and haven’t submitted to Machinima Europe yet, why not? Get on with it!)

You can’t use Game Content to create pornographic or obscene Items, or anything that contains vulgar, racist, hateful, or otherwise objectionable content.

Right. Say hello to the long arm and dark shadow of the Fear.

This clause really pissed me off when I first saw it - not least because I envisioned a world where I couldn’t use the phrase “pissed off” in a Machinima piece.

And, to be honest, this is the one clause where I wasn’t totally satisfied with my discussion with Microsoft. (To be fair to them, everyone knew from the outset that there was probably going to be somewhere where we didn’t quite see eye-to-eye).

Microsoft are, sensibly enough, worried about the perception of their brand and their characters. This clause exists in case they want to shut down something that they feel harms their brand.

What are they likely to feel is “objectionable content”?

Well, from what I could gather:

If you’re telling a story set in a game world, with game characters, then you need to be fairly careful. Basically, if they think that your work is genuinely likely to offend people, doesn’t have any artistic merit, and might negatively impact perception of the characters that you portray, then you may not be covered by the Rules. The example I gave was a re-telling of the Halo story with the Master Chief in the role of a Bin Laden character - which the art guys felt would definitely offend and upset them, and the legal guys felt would very much depend on how well the story was told. However, even if you’re not covered by the Rules, that doesn’t mean that you’ll get sued, or that you’re doing anything illegal, by any means. See “Should I stay or should I go?”, below.
If you’re just using the character models and maps to tell a story outside or not directly linked to the game world, then you’re probably OK. Let’s face it, Red vs Blue is pretty offensive. Again, this is likely to be a call based on quality and content, but they’re likely to be more lenient, and allow more options, if you’re not directly saying that it’s actually Master Chief, for example, who is calling someone a string of Anglo-Saxon names.

Remember - these Rules don’t take away your other rights. If you’re in the US, satire and parody are protected under copyright law’s Fair Use provisions. If you think that you might upset MS, it’s worth having a quick chat with someone like the EFF to see if you can go ahead anyway.

(If you’re in the UK, you’re less protected. Our copyright laws suck.)

More Clause Catching

Let’s quickly pass through the rest of the document:

“You can’t reverse-engineer” - This one’s a little tricky, as it doesn’t include the provision “except as allowed under applicable law”. That means that if you’re in Norway, for example, where reverse-engineering is more allowed than in the US, theoretically you might put yourself outside the Rules by reverse-engineering. However, the MS guys did say that it wasn’t their intention to reduce your rights, so this is likely to a) not be enforced provided what you did was legal and b) change in the next draft. It’s also very unlikely you’ll ever get sued on this one. There’s no way that MS were ever going to explicitly let you reverse-engineer their game - cheaters would have a field day - but most of the time, they also won’t care, unless it damages them in some way.
“You can’t sell it” - No surprise. Again, you couldn’t do this before, either. Selling Machinima without a license has always been on the list of things it’s not a great idea to do (RvB have some kind of agreement with MS, for certain), and it still is. However, MS are being VERY open about the idea of commercial licensing, and they did confirm that they will happily discuss licenses that DON’T have up-front payments, so you could work on a series for sale without having to shell out a ton of cash first. This is probably the biggest news in this entire license, to be honest - it’s a HUGE potential deal for Machinima creators. You can probably tell I’m excited because of all the CAPITAL LETTERS.
“You can’t use the sounds” - OK, no-one’s going to be very happy here, but this is just the way it goes. Microsoft don’t create all their own sound effects or music. Even the ones they do create or have created, they can’t always license out to other content creators. As any sound designer knows, the licensing for the sound and music you use is likely to be horribly, horribly complicated. As a result, right now, they can’t give you permission to use the sound from their games. Nothing anyone can do. This sucks, but there you go. We’re discussing alternate language for this, but there are all sorts of problems with it. Again, from our discussion, it’s very unlikely MS would sue you because you used a few sounds from their game - however, the person who originally created those sounds might. Be careful.
“You can’t grant anyone the right to build on your creations.” - Yup, right now this limits you somewhat - you can’t publish your work as Creative Commons Derivatives-Allowed. (It’s worth noting that you can use other CC licenses). Basically, this is in here because MS are afraid of a game of Chinese Whispers starting up, and people not knowing what rules they’re publishing under. Again, they’re looking at this clause with the intent to improve it - they’re big fans of game mashups (if you’re one of the people who mashed up the Gears of War trailer, for example, you might want to know that about half the people on my call have probably seen your work), and want to make sure people can keep making them.

Should I Stay Or Should I Go?

You should stay.

You know back before this agreement came out, when you were making your offensive, backstory-based, for-profit Machinima? Nothing’s changed.

Worst case, if you make some Machinima that doesn’t fit into this agreement, you’re in exactly as much legal trouble as you were three months ago. Sure, the Agreement has some scary language about “you can expect to hear from Microsoft’s lawyers” if you breach it, but neither Fred nor I reckon that MS are about to go on a Machinima clampdown, because That Would Be Insane.

Say you’re making a piece of Machinima that makes South Park look like Sunday School material. Will MS shut it down?

Well, first of all, it’s going to cost them money. It costs them money - quite a bit of it - just to send out a Cease and Desist letter. And if you happen to know your rights and decide to be bolshy about it, it’s going to cost them more money to enforce the shutdown. If you actually decide to go to court, or if you live in a foreign country, they’re into the territory of spending $30,000 plus to shut down your film, even if they can.

Do you reckon that they’d risk $30k to shut down your film? No? Then you’re probably fine.

(“But I don’t have the money for a lawyer!” They don’t know that. They don’t know who you are. If the guy who made that offensive Halo video is an IP lawyer, or his father is an IP lawyer, or his family own most of Kentucky, MS might suddenly find they’ve bitten off more than they can chew. They don’t want that, so they won’t do anything unless the reward outweighs the risk.)

Secondly, any time MS decide to kill a film, they’re risking a gigantic PR explosion. Everyone likes bashing Microsoft, and Microsoft are more than a little aware of this. Machinima’s quite a hip cause, and we’re still pretty monolithic - if MS shut down a Machinima film, everyone’s going to be blogging about it. If it happens to be a popular Machinima film - which it pretty much has to be for MS to even notice it - then there are going to be thousands of mad, howling fans out there too. And then you’ve got the Free Speech implications, and suddenly MS is looking at lots of people pointing at it and calling it all sorts of nasty names.

MS Does Not Want To Go There. People on the ‘net get very upset about censorship, and MS doesn’t want any more bad PR days than it has to endure.

The call that MS make here will very much depend on how well they think they can argue its case. If your film is completely without merit to any reasonable observer, then they can and will probably shut you down if you are doing things they’re worried about. However, if you’ve made a competent film which makes a genuine point, or is just plain funny or entertaining, then they’re going to look a lot like they’re attacking free speech if they try to shut you down - and that is something they won’t want to do. So, you’ve got good odds if you’ve got a good film.

Thirdly, your film may well be legal anyway. Whether or not you’re abiding by these Rules, copyright infringement isn’t an open-and-shut case when it comes to Machinima, particularly in the US. Satire and parody are heavily protected under US law. Even if you can’t characterise your film as either of those, you can still argue that you are making a transformative use of the material in turning it into a film - which covers you under Fair Use.

Now, as lawyers say, “Fair Use is a defence, not an exemption”. If you actually end up in court, it’s going to be sticky and unpleasant. But the point here is that it’s going to be sticky and unpleasant for both sides!

The Rules are like an ablative shield against legal attack. You don’t “use” them when making your film, and if you accidentally or deliberately put yourself outside them, you don’t lose any of your other rights - the same rights that were the only thing protecting you before the Rules came out. All they do is carve out a big area in which Microsoft can’t claim you’re infringing at all - they actually limit MS and don’t limit you.

The 99% of you who aren’t working on “Red vs Blue: The Al-Quaida Propaganda Edition” should just keep going. If you can make easy changes to get within these rules, great - because then you’re Definitely Not Illegal. If you’re planning something absolutely massive, then you might want to get in touch with MS to check that you’re OK (or you could call me, and I’ll check with MS on your behalf).

But under most circumstances, even if the first six words of your new film are more offensive than an entire season of South Park, then these Rules shouldn’t stop you.

The Summary

The biggest problem that Machinima groups like AMAS have always had is that games developers don’t think Machinima is important enough to waste executive time on. Microsoft has made a huge step here in actually considering Machinima. That alone is fantastic for us. Where one major company has led, others are much more likely to follow. And that goes double if these rules are followed by a boom in MS-based Machinima creation.

At the same time, these rules aren’t perfect. So don’t stay silent about that. Write to MS. Comment on blogs. Hell, make Machinima films about the problem and how to fix it. Be polite, be reasonable, but speak up.

We can, and should, also now challenge other developers to beat the freedom of this contract. Come on, Epic, Blizzard, all you guys. You can make a better Machinima agreement than this one, right? If it was worth it for MS, it’s gotta be worth it for you too.

Some Legal Bollocks

I’m not a lawyer. I don’t play one on TV. This column should not be construed as legal advice. If you have any doubts, TALK TO A LAWYER. Really. They’re not that scary, and many of them - like the guys at the EFF, for example - even offer basic advice for free.

Also, this column is my opinion and mine alone. It doesn’t represent the opinion of the Electronic Frontier Foundation, Wiley Publishing, Johnnie Ingram, Fred von Lohmann or anyone other than me.

Thanks to

Huge thanks to the various people at Microsoft (whom I’m not specifically naming at their request, but they know who they are, and they’re very cool for doing this), and equally huge thanks to Fred von Lohmann, without whose connections and calming influence this entire deal would have gone down very differently.

Questions?

If you want more clarifications, ask, and I shall answer. I already have a few questions in based on yesterday’s comments, and I’ll hopefully have answers for you over the weekend.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Johnnie Ingram

Sun, 02 Sep 2007 16:28:44 +0100

It’s good to see most people reacting positively to what I think is a pretty positive statement from the Microsoft guys. They could have been a whole lot harsher, and there’s very little any of us could have done about it if they had been.

As Hugh says, the concern about a piece of fanfic accidentally using the plot of Halo 3 is a very real one, and it’s something that all content creators worry about. At Strange Company, we’ve been forced to make an official announcement that we refuse to read, watch or otherwise experience any fan-created material based on BloodSpell that features any sort of plot. The basic reason for this is that we don’t want to be accused of stealing other people’s ideas if we ever decide to make BloodSpell 2 (or anything else under the BloodSpell I.P.). We did this, even though the whole of BloodSpell is resolutely Creative Commons, and we get quite stupidly excited whenever we hear about any remixes or fanfic at all.

All in all, having the rules laid out in such clarity is a huge asset to the Machinima community. That’d be true whether the rules were good or bad news. In this case, though, I think these Rules are decidedly Good News all round. Well done Microsoft (I never thought I’d be typing those words), well done EFF and well done Hugh. As co-author, I’m going to take 50% of the credit, even though this whole thing had very little to do with me.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Hugh "Nomad" Hancock

Sun, 02 Sep 2007 13:14:46 +0100

@Tom - Thanks!

@Elf - Yeah, I agree, Blizz really haven’t made themselves a good reputation in the suing field. We’re talking about people who at one point were discussing C&Ding literally every Blizzard fan site on the net, from what I’ve heard. Having said that, I’ve noticed they seem to have eased off lately - WoWModelviewer is going strong, and I’ve not heard of them suing anyone for a while.

All big companies are comprised of a bunch of factions, rather than being one monolithic entity. With any luck, the “let’s sue everyone in the world” faction has lost power in Blizz after all the bad press - in which case, now is a great time to press them to make Machinima more legal, which will make it harder for them to sue anyone if they switch personalities again later.

@Coyote - Yes, talk to Fred.

@Takuia - I can’t say for certain, but I’d tend to say that you’re on thin ice there - you are using a major character. Having said that, your odds of being C&Ded are small anyway, as I mentioned above, and setting it so far in the future should reduce your worries.

I’d wait for the new language to come out and see what that says - it might totally remove your concerns.

@@AngelicLionheart - If you really want to find a downside here, of course it’s possible. But I don’t really understand your comments.

@Gunstar - Glad we’ve been able to help!

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Tom

Sat, 01 Sep 2007 15:28:59 +0100

Hugh, you know that I am pretty much outside of game based Machinima and I am not very optimistic about future development of this issues but way you reacted… man, I am impressed. To be able to do so much so fast, find right people and say all right things at right time… you have my applause and everlasting respect.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Elf

Sat, 01 Sep 2007 08:52:19 +0100

It’s great Microsoft is doing something like this and it’ll be exciting to see who else follows their lead.

I noticed your mention of Blizzard though – unfortunately some companies aren’t as friendly towards consumer rights, and Blizzard is one of them. If you read through their EULA not only is machinima prohibited (no derivative works), but it’s jam packed with legally ridiculous statements, like how you’re supposedly responsible for all their legal fees if you ever initiate legal action against them.

They’ve also through their BnetD case (which the EFF itself has a lot to say about) created very damaging DMCA case law against your ability to reverse engineer to create interoperable technologies, and pursued very, very aggressive legal action and scare tactics against people doing such work. As much as people hate Microsoft, even they’ve never managed to set such legal precedent.

For example, it’s probably not something a lot of people know, but a DMCA takedown notice was sent to SourceForge from Blizzard regarding the WoWModelViewer/MapViewer project – a key tool in every WoW machinimator’s toolkit. It seems to be one of the main reasons the original team stopped development of it and disappeared.

They’ve sent lawyers to peoples doors (!) to scare them (in the case of someone who was producing a bot for the game – wowglider, you can find the resulting lawsuit and a recount of the incident on their website), sent C&D letters and DMCA notices to fan sites showing unreleased parts of the game data (that were in the regular client everyone has and were open to anyone to look at), and all sorts of things. As it stands they’re pretty much the RIAA of the gaming industry, but for some reason nobody seems to be talking about it.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by CoyoteRepublic

Sat, 01 Sep 2007 07:15:28 +0100

I still worry but I have a whole different situation… but it does make me feel a lot less anxious. The reminder that it’s expensive for them is helpful in one sense, but of course if they’re suing you they are including the cost of their legal fees in your suit - and man alive I have a small child to feed and educate!

I definitely need to chat with Fred :)

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Takuia

Sat, 01 Sep 2007 05:53:23 +0100

Well, this puts my heart as ease knowing most of the rules then counter acted my machinma are gone and I can continue the project with ease. But I do have one question, would i still get in trouble if my series as 1000 years after MC and showed cortana within the series has a character working with a new spartan.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by AngelicLionheart

Sat, 01 Sep 2007 00:40:52 +0100

Thank The Lord.

I was so worried about the possible retardedness.

Now I understand.

Here’s what happened: Rules are announced as such– MS Lawyer-speak: “We’re going to ravage your rectum if you do machinima in any way that we don’t like.”

What they’re NOW saying: “Uh, we don’t know WHAT that guy was talking about. Look, just don’t be stupid. Don’t make us regret the length of your leash, or we’ll switch to a choke-chain. Okay? Be smart, and all remains well. Be retarded, and pay the price.”

I cannot tell you how happy this makes me.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by gunstar2

Sat, 01 Sep 2007 00:02:19 +0100

…Alas, I have atendency to be long-winded.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by gunstar2

Sat, 01 Sep 2007 00:01:18 +0100

Oh, what a huge sigh of relief I issued upon reading your post today!

I’m a fan fiction writer and, while your post deals more with machinima than anything, I get te sense that the same rules apply. ‘Specially since we old-fashioned writers don’t get to use fancy sounds or gameplay material other than places, names, etc. by virtue of our medium.

I thought I was in a real pinch when they posted the Rules, since I hope very dearly that my massive, this-is-the-biggest-story-I-may-ever-write fan fic will hit the mark somewhere along its course. I realized soon after I became familiar with the story of Halo 2 that it was at best a passionate fan’s take on how Halo could have proceeded, especially considering the fact that I hold off the cracking of the Ark until way later than the upcoming game will have it, instead choosing a period of latency in order to cover my own characters on the Sangheili homeworld.

…But this is another discussion for another day (and only if you would suffer to sit and read my outpourings). In any case, I was worried that I’d get hit by a big brick with “Microsoft” emblazoned on it if I published my work before the release of Halo 3, notably because of my confidence that I managed to pull all the book and game material together to correctly unravel the mystery of the Forerunners.

Though, at this point, I won’t finish in time and most secondary elements of plot are obviously wrong. No copyright litigation worries for me!

Anyway, thanks for your work on this! The Halo Nation and other creators of fan fiction thank you!

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Siliconmaster482

Fri, 31 Aug 2007 20:36:01 +0100

Thanks so much, Hugh. It’s so exciting to see this happening- I can’t wait to see the revised rules. :)

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Hugh "Nomad" Hancock

Fri, 31 Aug 2007 20:12:41 +0100

A lot of people are responsible for having done that - notably the guys in Microsoft who stuck their necks out to make this happen in the first place, Fred von Lohmann from the EFF, all the Machinima people who made noise and comment, and me too, I guess.

I’m very glad we’ve been able to do some good!

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Federico

Fri, 31 Aug 2007 19:30:50 +0100

You know what? I now cant believe I thrashed MS so much. I know they were trying to just open up our doors to feel less pressure (as The Overman said) And, if you are responsible for having done that, Mr. Hancock…

YOU ARE AWESOME. Now I wont feel so tense about making “Halo 2: The musical”

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Hugh "Nomad" Hancock

Fri, 31 Aug 2007 18:29:44 +0100

Click the “Read More” bit.

"Game Content Usage Rules from Microsoft - the HUUUUGE but calming post" by Overman

Fri, 31 Aug 2007 17:43:11 +0100

Is there more coming? This seems to cut off before you get into the specifics…

I’ve released a podcast discussing the rules at: http://theovercast.com/2007/08/31/overcast-020/