Copyright, the Right Way To Address Concerns, and the Wrong Way.

mclemore

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Copyright, the Right Way To Address Concerns, and the Wrong Way.

I have been directed to a few posts made by a user in another (long) thread. Some statements were written about communication with us in regards to another user' alleged improper copying and offering for sale of content from two other enthusiast sites. We do not have the resources to review every post in the thread, and have not done so. From what I did read though, it was clear that the representation of our position was incomplete and being misrepresented or at least misunderstood by the poster and thus likely by others, and has also apparently been subject to speculation. To prevent any confusion, I thought a post now was appropriate. Additionally, I am providing information that may shed light on a few recent events of interest.

We respect the intellectual property of others and ask our users to do the same. As you know or should know, it is our policy to respond expeditiously to validly prepared notices of claimed infringement. Rights holders have a clear mechanism to report infringement under federal law, which requires amongst other things, that claimants provide specific references including URLs as applicable and to make certain representations and warranties about their claims. Federal law also provides clear protections for online service providers, which generally do not have the obligation to hunt for, watch, or block potential future infringements. Those accused of infringement have the ability to refute a claim on a variety of valid grounds ranging from accuracy of claim, to license, to fair use, to lack of standing of claimant, etc. Our policy for copyright claims and counter-claims (http://www.arcade-museum.com/accounts/copyright-claims.php) is nearly identical to those of most major online service providers (web sites of user generated content like YouTube, Facebook, Twitter, most web forums) as well as those of access providers, though does include more explanatory text than most sites provide. All major online service providers, including this one, have very similar policies providing for the removal of infringing content and of termination of access for those deemed to repeatedly infringe. Online service providers tend to have very similar policies as they typically mimic the requirements specified in the United States' Digital Millennium Copyright Act (DMCA).

Rights holders are usually in the best position to determine whether or not their rights are being infringed. In addition to right holders' ability to make claims, we will take action against known infringing content—content clearly determined to be unlicensed, protected, and outside of fair use, etc., etc. Such determination of infringement by third party service providers is obviously often difficult due to an inadequacy of available facts, which is why the conditions for reporting under the DMCA are so stringent and specific.

We recently received a private message (PM) from a user claiming that content from two enthusiast "emulator" web sites was being improperly included in an offering for sale made by a user here, and directing us to a post. We looked at the post and could not determine any infringing activity was taking place. In fact, the user in question was asked in the second pots of the thread if he was selling emulator software, and the immediate response was 'no' that he wasn't.

We responded to the PM that we were unable to make a determination that any infringing activity was occurring, and asked for clarification. Additionally, we stated that we were not particularly familiar with the other members' only web sites mentioned in the report, their offerings, or terms of use. The report to us suggested other, previous behavior, but no references were included so we stated that there might be more to the story that could be provided to us. We received a response back that again included no references.

Around the same time we received a report that a member here reported this same user (the user that had been accused of selling content from the enthusiast web sites) to an organization called the Business Software Alliance (BSA). Either a user here or the BSA apparently then apparently contacted a company called Digital Leisure. We were informed that Digital Leisure intended to contact this user with a "cease and desist letter and possible legal action." This was the first we heard of Digital Leisure or their alleged rights. It was clear that they should be in an ideal position to determine if a user on this service had in fact infringed their rights.

We were quite surprised however, to subsequently receive a written, nasty communication from a Los Angeles based lawyer apparently retained by Dragon's Lair LLC, accusing us of infringing their rights.

We replied that their letter was factually flawed, but that "we would be more than happy" to immediately talk to them on the phone that very same day and help them in any reasonable way we could. They responded by repeating their threats. We repeated our desire to properly address their claims, suggested that their focus on making clearly baseless claims against us was not conducive to allowing us to have direct communication with them, and told them that if they wanted to act in good faith that we would talk to them directly, but if they wanted to continue to rattle their sabre at us that they were hereby directed to our retained law firm representing us in this matter.

Instead of taking us up on our offer to see how we can be of assistance, and instead of discussing the matter with our law firm as they were directed to do, they appeared to threaten us via unsigned PM sent directly to me on these forums three days later. (Update:) Now it turns out that this PM communication was uncoordinated, and from content licensee Digital Leisure--see Update #2 below. Both the email and the PM claimed to represent the holders of the same property rights.

I wrote Digital Leisure back that we would be more than happy to respond but that we need to know who to respond to. Not only was their message unsigned, but their account registration had filler data under the clearly required 'First Name' and 'Last Name' fields. The PM was finally answered, and I now have communication with Digital Leisure. The communication in both directions has been good, constructive, and with purpose.

What we received from the lawyer was very different in tone to the Digital Leisure communication, and the former did not appear to me to be in good faith, and definitely was trying our patience. We have constructive relationships with countless game producers, rights holders, and people in this industry, and ideally would like the same positive relationship with this company too. At that point, however, this entity might be the sole exception. It's hard to know since we haven't heard back from their attorney and we have had no direct communication with them.

We have more than ample ability to defend ourselves from fraudulent or baseless claims, have a long history of successfully defending ourselves from same, and have a long history of successfully and tirelessly pursing counter-claims in such cases. Still, we have little interest in being subject to such harassment, let alone attacks. Such a direct attack against the community would be unfortunate, and would divert resources away that would otherwise be used to further develop our offerings and support of the community and society as a whole.

We would like to encourage Dragon's Lair LLC to plot a more constructive course with the preservation, research, and enthusiast communities (as Digital Leisure apparently has).

We would also like to encourage users on this service to respect this company's rights and sensitivities.

UPDATE #1: I wrote the above draft and circulated it to the moderators for comment. Before I was able to post it online, I received a response from Digital Leisure about my last PM to them. The writer was clearly identified, it was a refreshing change of tone, and it clarified a few points. Apparently the last threat I received (the one via PM) was simply a CC of a PM sent to a use on this service. That had been far from clear. The new PM clearly identified its writer, and was constructive in tone unlike the previous communications.

It is unfortunate that the first company (Dragon's Lair LLC) didn't follow a more constructive approach from the start. The main unfortunate event was their outsourcing of this matter to a home-based sole practitioner that did not appear to me to be an intellectual property specialist and that appeared to me to be someone who ignored reason. He appeared to me not to be working in his client's best interest. As an Internet entrepreneur I've had to deal with endless legal matters (w/ a 100% success rate). What I've learned is that I don't fear Fortune 100 companies with A+ law firms—they act rationally. What I fear is small mom and pop companies that hire general practitioners that drink their own Kool-Aid. These are the ones that have the ability to drag themselves (and us) down to hell.

Since neither I nor our attorneys have heard from Dragon's Lair LLC after our last communication to them, I consider the matter closed. I have however, pointed Digital Leisure to our DMCA policy for future use, and although it was not discussed, I was happy to provide them a link on our Dragon's Lair page. In the future we my include more coverage of emulation software including discussion of their fairly progressive policies on same. For a very modest cost (the purchase of the 20th Anniversary set), they will license the ability to run "Dragon's Lair" legally for enthusiasts without original hardware, basically as enthusiasts sees fit.



- Greg
 
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UPDATE #2: The power of good communication...from and with Digital Leisure. It appeared to me that the PM was just a continuation of the emails sent to me. It turns out that the email sent to me by the lawyer was on behalf of Dragon's Lair LLC. Three days after receiving the last one (which i did respond to), I received the PM mentioned above. The PM was not intended to be directed towards me, and was just intended to be a 'cc'. The PM came from Digital Leisure, independently and apparently without any coordination with DL LLC. Digital Leisure also posted on this site. A user here had apparently notified both companies (and the BSA). Digital Leisure licensed a variety of gaming properties from DL LLC. The later apparently owns the DL series IP (content), the Digital Leisure programming and software IP (tech). Dragon's Lair LLC, never responded to my last communication to me and have not contacted us again, nor our attorneys. The first post in this thread has been edited based on the newly discovered information.
 
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