Performance, like distribution, is one of the exclusive rights granted by copyright law. Why should it be treated any differently?

Ambiguity in the terms restricting performance. The distribution terms are pretty clear: Keep the credits, send them emails, don't charge to distribute your copy. But what you do with the copy once you have it no longer falls under distribution. It falls under performance. The non-for-profit clause is a performance condition which is not clearly defined in that it restricts profit, not revenue.

From the top of the Diku licence: "This document contains the rules by which you can use, alter or publish parts of DikuMud."

Unless you're arguing that performance doesn't count as "use", all of the terms of the licence are going to apply to it.

It applies. But it's also ambiguous. If I start taking in revenue for virtual swords, but don't make a profit, I'm compliant with what the license actually says. Not with what one author said 8 years after the fact.

The only way that it can be proven I'm making a profit from it would be to file suit, drag me into court, and admit the financials into evidence. They can't just accuse me of profiting from it with nothing to back it up with. Since as you say, the license is my defense against the infringement action. And it doesn't prevent me from bringing in revenue.

Well now you're once again arguing loopholes. The licence says "You may under no circumstances make profit on *ANY* part of DikuMud in any possible way", and one definition of profit is "Income received from investments or property", so you would indeed be profiting in one "possible way" by selling items. The Diku team have even clarified their exact intent, which is perfectly within their right, considering you don't have a contract with them.



And the only way it can be proven that you've commited murder would be to drag you into court, too, but that doesn't mean it's fine to go around killing people until someone takes legal action.

There's no legal ambiguity on murder either. The criminal code is quite clear on it. And society is pretty clear on the moral consequences of killing without just cause. I happen to agree with the status of murder. But that was a nice try just the same.

The diku license uses a specific word: profit. And your one possible definition of it doesn't necessarily match what the law, or society in general, says it matches. So it's not a bright line case like murder. Comparing the two isn't even in the same realm of law. One is a criminal action, the other is a civil action. The courts exist to sort out these types of disagreements with parties to agreements. Be they contracts or not. A license agreement isn't called that for the hell of it.

They don't have to. It's exactly like you've argued on the other thread. Darien can revoke any of the rights he granted Kyndig in his licenses if he just feels like it. It doesn't matter that Kyndig has not violated Darien's licenses. The Diku group can revoke your license for any damn reason they want. The Diku group apparently being reasonable and responsible adults are not going to revoke your license because you were mean to them or banned them from MudBytes, but because they believe your interpretation subverts their license.

The only defense you'd have against their revoking it, would be Vryce's defense. That is to argue that you ain't a DikuMud.

Now if you had a contract with the Diku Group, and had negotiatied a license to run a DikuMud in return for consideration then you have a case where ten thousand lawyers can argue over the meaning of the license contract.

sweet i'm in another thread now!

All my dreams have come true, except for the one where mickey mouse was jack hammering garth brooks in the doo-doo hole while giving birth to something resembling an almond with the shape of santa's tummy tum.

Well if they want to revoke it because they don't want me distributing things based on it, then I guess I'm fucked. Serve me with legal notice, and it's all over. And I do mean they since everyone makes such a big deal out of how they all have to agree to do action X. We've only heard from Hans. Suppose the other 4 don't care at all?

The only thing I see Kyndig having done that was reasonable enough was waiting for legal action ( or threats I guess ) and once he had that, he knew he was fucked too. Darien is a single author and doesn't need to wait for consensus with 4 other people.

But until this happens we can all sit here and BMW about it all day long. Nothing has been decided. No action has been taken. Hell, they haven't even explicitly revoked Vryce's license. Hans has danced around it a bit, but he's just one of 5. The other 4 have been oddly silent one way or the other. Regardless, no legal notices have been sent as far as anyone knows. Did the Diku team collectively serve Vryce with a C&D order? With a DMCA notice? Have they done it to anyone else?

I don't think it's reflective of their maturity in not having done anything. It's more reflective of their apathy and laziness. Because from what I've seen so far when an author or authors actually do stand up and defend their rights, you're right there calling it immature and childish. You can't have it both ways.

Tyche's response pretty accurately matches my view, but to provide an analogy:

Supposing you were to say to me, "KaVir, you seem to be a nice chap - feel free to borrow my car whenever you like, as long as you don't profit from it in any way". I then borrow your car and use it to operate a taxi service.

Which of the following arguments do you think would be reasonable?

1. Although you said I couldn't profit in any way, in the accounting sense net profit is defined as sales minus expenses such as wages - and because the fares are my wages, I therefore don't make a net profit, and am therefore still following your licence, and therefore cannot be stopped from operating a taxi service with your car.

2. Because I have placed my own seat cover on the passanger seats, I am not actually profiting from your car - instead, I am profiting from the seat cover which I own, by allowing my customers to sit on it for a reasonable per-minute fee while I drive them to their destination.

3. The only way you can stop me from borrowing your car whenever I like is by dragging me into court and proving that am breaking the original conditions you set down. I am not bound by any clarifications you might make later (such as "You can't borrow my car any more"), and can continue to legally borrow your car whenever I like until a court rules otherwise.

Flawed analogy.

Operating a taxi service with my car even though I said not to profit from it is irrelevant. Why? Because the state requires you to get a license for that and if they catch you, my arrangements with you are meaningless. You might even get arrested by the police in the process. I cannot give you permission to conduct illegal activity.

I might get called to testify on your behalf to avoid the possible auto theft charges that might stem from it when the cops realize you did this with a vehicle that wasn't your own, so I'd at least keep you out of jail for that.

But I'm going to guess that's not the result you were looking for. Care to try another that I can legally authorize you to do?

Assuming I have a valid driving licence and you have the appropriate insurance, it's perfectly legal for me to borrow your car.

But not perfectly legal to operate a taxi service without a license. Your dispute would be with the cops. What I have to say on the matter wouldn't do much other than saving you from an auto theft charge.

Then assume I have a valid taxi licence as well, and stop avoiding the questions I posed.

It's still flawed for another reason. While you have possession of my car, I cannot use it. It's tangible physical property which has an entirely different body of law which governs it. Has nothing to do wit IP rights, or with a verbal promise to allow you to borrow it whenever you feel like.

Your refusal to return it upon my demanding it would constitute physical property theft at that point, in the form of grand theft auto. There's a very clearly defined set of laws which cover this. Governed by possession of the vehicle, and clearly documented legal registration of who the rightful owner is. While you have possession of it, I cannot use it, and am therefore deprived of the material benefit of owning it.

With the Diku license, ownership is in the copyright for the code. My having possession of a copy, legally obtained or otherwise, does nothing to diminish their ability to use it to make profit. They have also spelled out conditions by which I may publish, perform, and display the work. For a valid civil action to succeed, they need to prove I violated the terms. They can revoke any one of them they see fit, but if I call the bluff and demand to proceed to court with it, then I can present as my defense that the license says I cannot profit from the "use" of the code, which I'm sure would get stipulated somehow as "performance" of the work. Distribution won't come into play here.

For the sake of argument, assume I am fully legally compliant with all of the terms and only the profit clause has triggered this action.

So there I sit in court now. Hauled before whatever court they managed to get it before. And assuming I complied with an international subpoena, or they came to California. When it comes time to defend the charge, I'm going to claim I made no profit and make the case in the "accounting sense" of the word: Profit = Revenue - Expenses. I'm going to claim the cost of maintaining my server. The cost of the incorporation for turning my MUD into an LLC under US law. So they're really suing the corporate entity I've created. I'll of course pay each of the corporate officers a generous salary for their time and effort. Enough so that they're now able to live exclusively on said salary. From time to time, it was necessary to hire marketing firms to advertise the mud. Hire IT consultants to upgrade the network and install new hardware and software as necessary. Well, gee, these bills are awfully large and the corporation is in debt up to its eyeballs. Selling those virtual swords hasn't gone well. Selling virtual homes was a bust. So now the corporation is operating "in the red" by several thousand dollars a month.

No sane judge or jury would interpret the only operating cost as the price of the codebase. So as far as I can see, I've won this case based on the evidence and there's nothing more to be done. Now the Diku team has to pay my lawyers legal fees. It looks to me like they lost more on the deal than I did since suing me over international lines is a huge expense.

That good enough for you?

I only use it while you're away for work, so I can be sure you never need it at the time. You're still avoiding the question.



So the Diku team says to you (through their lawyer) "We've clarified our intent but you still refuse to follow our conditions, therefore we withdraw your permission to use DikuMUD, and give you six months to comply". Then six months later, you're sitting in court…what's your counter to their claim of copyright infringement?

No. You keep changing the conditions. Obejction your honor, asked and answered.



My counter claim is that no infringement is present. Their intentions are irrelevant because the license details everything I had to comply with, and I have. Remember, we're assuming the only claim in question is that I'm "profiting" from the code. Based on the argument they can't prohibit me from "using" the code. Even if said code was "pirated". So either they now have to amend their complaint to specify exactly what they mean by "use" or they drop the action. I'm also challenging the validity of the ambiguous no-profit clause.

Can you see yet how this isn't so cut and dry as you seem to think?

No, I posted an analogy based on borrowing your car, with the assumption that it was legal to do so. Instead of responding to my analogy, you continually (and still continue to) dodge my questions.



So you'd claim you were no longer a Diku derivative?

I am not dodging anything. It's you who keep trying to alter the rules. And then make ridiculous claims. Where do you see me say I wouldn't be a Diku derivative? I said I'd be challenging the validity of one of the conditions. That's not the same thing. For you to continue to ignore this is what's causing the problem. Try to stay focused. I'm not trying to piss anyone off here. There's no ill will, hostility, or deception on my part. I'm just trying to make it clear that this issue is not black and white by any means.

Then I will repeat my question, with clarification.

Supposing you were to say to me, "KaVir, you seem to be a nice chap - feel free to borrow my car whenever you like, as long as you don't profit from it in any way". I then borrow your car and use it to operate a taxi service and am not breaking any laws by doing so (i.e., I have a driving licence, a taxi licence, am covered by insurarance, etc, etc, etc) nor depriving you of your property (I only use the car when you don't use it)

Which of the following arguments do you think would be reasonable?

1. Although you said I couldn't profit in any way, in the accounting sense net profit is defined as sales minus expenses such as wages - and because the fares are my wages, I therefore don't make a net profit, and am therefore still following your licence, and therefore cannot be stopped from operating a taxi service with your car.

2. Because I have placed my own seat cover on the passanger seats, I am not actually profiting from your car - instead, I am profiting from the seat cover which I own, by allowing my customers to sit on it for a reasonable per-minute fee while I drive them to their destination.

3. The only way you can stop me from borrowing your car whenever I like is by dragging me into court and proving that am breaking the original conditions you set down. I am not bound by any clarifications you might make later (such as "You can't borrow my car any more"), and can continue to legally borrow your car whenever I like until a court rules otherwise.



You said "my counter claim is that no infringement is present." You don't have permission to use DikuMUD, so how are you going to claim no infringement unless you also claim that you're not based on DikuMUD?



There are no "conditions". The Diku team have withdrawn your licence and given you a reasonable period of time to take the appropriate action.



No legal case is black and white. Given the right lawyers and enough money you can, sometimes literally, get away with murder. But if the real question is only "Can you get away with it?" then I'm not really sure what more there is to discuss.