Flash Game Industry: The “Clone” Wars

There’s a wave of excitement in the Flash game dev community, as a small band of respectable developers speak out against the villains in their industry, and slowly begin to turn the tide against negative public opinion surrounding Flash game development.

This week saw the removal of a post on monetizing Flash games by Russian developer Vadim Starygin (AKA Badim), whose tips included using a spritesheet of Mega Man or Legend of Zelda character animations for use in your own game, or producing an unauthorized sequel to some other developer’s game.

i shit you negative.

Stealing is only cute when these guys do it

Stealing is only cute when these guys do it.

Due to pressure from many members of the community, who disagreed with MochiMedia’s stance that they were just airing alternative viewpoints (no – they were tacitly endorsing copyright infringement), Team Mochi decided to axe the article. Badim continues to earn advertising revenue on sites like Nonoba.com with his game Elite Forces: Clone Wars and its sequel:

Elite Forces:Clone Wars

The background behind the game is a stolen image of characters from the Star Wars property. The logo Badim uses in the game is the almost completely unmodified Star Wars: Clone Wars logo, which i reproduce here purely for the purposes of review and comparison:

Clone Wars

Copyright George Lucas Enterprises 1977-2087 inclusive all rights reserved void where prohibited please don’t sue Amen.

So while MochiMedia showed good faith by removing the post, we still have a Nonoba problem.

The Nonoba Problem

i know it must be next-to-impossible to police every single game on your distribution system. And while this is hardly a subtle infringement, i emailed Nonoba to let them know what was up. That was a few days ago – no word. i’m not sure a company would even respond if the complainant was not the original IP owner. Should they?

Apparently a buck’s a buck to Nonoba. And if not, i’ll call them out publicly right here: Nonoba, please honour the well-lit corners of the Flash community by following these steps:

  1. Remove Badim’s copyright-infringing games from your service.
  2. Reclaim any and all moneys paid to Badim for those games.
  3. Cut a cheque with your portion and Badim’s portion to LucasArts and mail to:

    LucasArts, a division of Lucasfilm Ltd.
    Attention: Legal Department
    P.O. Box 29908
    San Francisco, CA 94129

    Or call Yoda’s Help Desk. That dude is hilarious when he talks tech.


    Check your video card manufacturer’s site for the latest driver updates you must.

    And while we’re on a roll, what’s up with GamerSafe featuring Badim in their latest newsletter last week? Regarding Badim’s post on MochiLand, the GamerSafe guys said “hey – leave us out of it!” on Twitter while this whole thing went down, claiming that they don’t knowingly support games that have copyright-infringing material in them. i explained that allying their service with devs like Badim invited a negative association that their company could do without. He may not perform a ritual killing on-camera, but nevertheless, you still don’t invite Charles Manson to guest-host the Oprah show.

    Charles Manson to host Oprah

    Everybody gets a caaar! (and a swaaaastika on their foreheads!)

    Why Not Just Let it Slide?

    So what’s the big deal? Devs who steal stuff aren’t hurting anyone. If IP owners like LucasArts cared enough, they would ask for the games to be removed themselves. We don’t need anyone policing our industry.

    Here’s the issue in a nutshell: i make no bones about the fact that i want to make money from my own original games. The game creation tool i know best is Flash. The Flash game dev community is packed with young hobbyist boys who don’t see too much of a problem with yanking assets and code from wherever to create their own games and make a quick buck through ad revenue sharing.

    As a result, the Flash platform is synonymous with low-quality, piratey IP rip-off games, and badly-animated 2D pornography. Many of the people who play the games are the people who create the games. Those people don’t have credit cards. The people who do have credit cards – the people whose money i want to have – are more likely to spend their cash on a more reputable segment of the entertainment spectrum. But Flash is always good for a laugh – as long as it’s free.


    A quick trip to the Newgrounds front page today turns up an unauthorized Pac Man sequel, a fat anime collaboration promising larger breasts, two Legend of Zelda rip-offs, and something called “Dick Neck”. Wait right there – let me run and get my credit card.

    My plan: to encourage the more professionally-minded Flash game devs to make a bigger noise than the hobbyists – to set the tone for the industry that the young among us strive to emulate. i’d like to see some semblance of mentorship in our industry. i’d like to see the more mature developers modelling behaviour that the younger devs aspire to.

    And once we’re all resolved to improving our entertainment offering, we may change the attitudes of the customers we want to attract. When we change those attitudes, our audience expands to include players with both money and taste.

    Money and taste: two things the free-to-play Flash game industry could benefit from.

31 thoughts on “Flash Game Industry: The “Clone” Wars

  1. Marcus

    OK, I have a few opinions on this. First of all, I think you’re being unfair for singling out Badim. The mochi article might have been bad, the Clone Wars game worse, but I don’t see why you have to make him a symbol for everything that’s wrong with the flash game industry. I’ve met Badim in person and he’s a nice guy, he organized a flash game developer meet up in Hamburg during the Casual Connect and thanks to him, me and a few other flash game developers got free admittance to the last day of the event.

    Badim might have a different view from what’s legal or even acceptable to most, but that doesn’t make him “the bad guy”. No matter how horrible you thought the advice he gave was, he didn’t write that article for his own sake. It was his way of contributing to the community.

    When somebody has good intentions but screws up, scolding them might be a good idea, but comparing him to Charles Manson and run some sort of a campaign against him is not OK.

    (there were some other things I wanted to get off my chest too but I’ve got to run, I’ll post again later)

    1. Ryan

      Marcus – there’s a very good reason why i’m picking on Badim. By asking him to write a guest post on their site, and by featuring him in their monthly newsletter, companies like MochiMedia and GamerSafe have lifted him up as an example to the community – a role model to emulate. The Flash industry needs better role models. There are people in our industry who can turn a buck from Flash games *without* swiping IP. i want to hear from those people, not this guy.

      Badim might have a different view from what’s legal or even acceptable to most

      That was a silly thing to say. There’s no such thing as a “different view from[sic] what’s legal”. If i steal someone’s car, but it’s not my view that stealing cars is illegal, does that mean i won’t get arrested? Folks under the age of 40 toss around the statement “everyone has the right to his own opinion”. But law is not opinion. It’s law, baby. Absolute vs. relative.

      And for the record, i’m not comparing Badim to Charles Manson. Sorry if i gave you that impression. i’m only being hyperbolic. i only meant to say that a company should not willingly ally itself with a known criminal, even if that person is not doing criminal things in his relationship with that company. A better example that i’ve used is asking Al Capone to tell a bunch of beverage bottlers how he made such fantastic money in the industry, when everyone knows full well that Capone is a notorious gangster and rum-runner who made his money by breaking the rules. As a guy trying to make an honest buck on soda pop, i’d not only resent Capone – i’d resent the company that asked him to guest-blog, or the company that featured him in their monthly newsletter.

      – Ryan

    2. Pete

      I know this article is waaay old – but if he’s really a nice guy like you claim, then that does make him the symbol representing everything Ryan claimed. A villain you could easily… well… vilify for things like IP theft (and it is theft) and not feel bad about it, or not feel bad or indignant when you see someone else calling them out. The Manson example is perfect. He just slaughtered a suburban family and then he used images of DarkWing duck in an un-authorized flash game that has microtransactions and ad-revenue. That bastard.

      That’s easy, we’re all onboard.

      It’s still wrong, however, when Mother Theresa does it. The difference is you’re not likely to care as much so long as Mother Theresa isn’t ripping off *your* IP to make the microtransactions attractive, to increase the ad revenue share.

      Too many nice guys think it’s not a big deal. It’s a big deal. I’m just starting out and I’m ten times more a coder than an artist, so finding art that I don’t have to pay for at this early stage of the game (when I simply can’t AFFORD to pay for it) is proving to be a real headache. What I’m absolutely not gonna do, even though I too am a nice guy, is steal it.

      1. Ryan Henson Creighton

        Wow – this article IS really old. i was a lot angrier in my youth. :)

        What’s driving me nuts these days is the perception that the other young companies in my sector steal their development software. i’d like to do more Unity 3D development, especially having written a book on the bloody thing, and i’m trying my best to come up with a way to foot the bill for a four THOUSAND dollar copy of 3DS Max. i know this isn’t a problem for many other companies – they’ll just pirate the software and move on.

        i’ve said it once, and i’ll say it again: if you make your living selling and creating software, and you steal software in order to do that, karma’s coming for you.

  2. Merve

    Interesting article. Here’s what I think may happen – If professional flash game devs started charging some money for the back half of their games the whole flash game market would break in two – Those willing to pay some scratch for entertainment, and those who aren’t. Then portals would start to cater for each group (ALL FREE!!!! vs High Quality) which would cause more of a rift. With some actual money going towards developing games the standards would probably rise as well. (But what do I know :P, at least it’ll be interesting to watch the developments)

    Also Vadim has the article on his blog (in all all it’s sprite-steally glory)

    1. Ryan

      Thanks, Merve. And thanks to that link to Badim’s article. (Important: it’s entirely possible that he may revise the article while it’s on his site, so please don’t read it and come back here defending his angelic Flash development practices :)

      i’m with you – i can see a rift coming. It won’t only be a rift from the consumer’s perspective – i see a rift in the community happening as well, drawn along the same lines of quality and professionality. i think that would be a good thing – if the mature, more pro devs find a new audience and are able to monetize them, there will be an incentive for the Other Side of the community to improve their work (and their sometimes skeevy practices).

      – Ryan

  3. Richard Davey

    While you know I didn’t agree with most of the advice given in his original article, I’m not sure I see the need for this post against Badim at all. Yes one of his games blatantly steals from well-known IP, but it’s only one out of many, and the more savvied sponsors haven’t touched it with a barge-pole.

    I also disagree that a quick trip to Newgrounds highlights the “problem with Flash games”. Newgrounds is not a gaming portal. It never has been, and it never will be. There is a good reason why it’s classified as an internet “sub-culture”. You’re either part of that culture, or you are not. The 2D pr0n and IP rips you talk of are what that culture is all about.

    Visit a proper gaming portal and try to find the same issues. Do you see Star Wars clones on Candystand, BigFish, Nitrome, Armor, Shockwave, King or Mindjolt? No, because they are clued-up about what is safe to sponsor and what isn’t. That is where the professional Flash games of this generation are born. Sure they eventually get seeded to Newgrounds and its ilk, but only by means of gaining a few extra thousand eyeballs / ad impressions. Mostly the users on that site are treated like a field full of cows, there for the milking and little more. If you don’t want to participate in their culture that is fine (I don’t either), but don’t hold it up as a shining example of what the flash gaming scene is all about, because honestly it couldn’t be further from the truth. You’re focusing on one tiny back-alley out of a whole block. Walk back out onto the street again.

    1. Ryan

      Thanks for your comment, Richard. i don’t know that Newgrounds is quite as niche as you’re painting it out to be. When the portal owners create a game for XBLA that sweeps the sales charts and gets a lot of excellent press, you’re no longer really talking about a subcultural Internet cul-de-sac. When they attract the promotional attention of companies like Aardman Animation, they’re a little larger and more important than you give them credit for. And for your Candystands, BigFishes and Nitromes, i give you the AddictingGames juggernaut.

      But believe me – i don’t wish to hold Newgrounds up as a “shining example of what the flash gaming scene is all about.” (But neither do i think that BigFish should be praised, with their $400 non-exclusive, unlimited buy-out price for free-to-play Flash games.)

      And anyway, when you’re an outsider and you think “free-to-play Flash games”, which sites come to mind more readily: Nitrome and Candystand, or AddictingGames and Newgrounds?

      – Ryan

  4. Paolo

    Richard, why can’t someone complain about the red light district that is a block away that brings down your land value, increases crime and gives your whole neighborhood a bad reputation? It’s a legitimate complaint and the big guys like GamerSafe and MochiAds should not endorse this kind of behavior either directly or indirectly.

    I was appalled enough that one of the judges of the last contest of MochiAds blatantly ripped off music and the IP of Metal Gear Solid in his game: http://bit.ly/cnWml

  5. Chris

    Congratulations, Ryan, you are getting what you want. For one of us in the article to post. ;)

    However, I’m only going to focus on the GamerSafe part as you, for no apparent reason, decided to add us into your argument.

    Firstly, any time someone includes one of these people in an argument: Adolf Hitler, Charles Manson, Joseph Stalin, or Ted Bundy. It usually means they don’t have much of an argument, and are setting up a straw man.

    Secondly, you conveniently left out my logical argument to your initial tweet about Oprah and Charles Manson which is this: If I follow your logic above, then if Charles Manson tells me I should not kill someone, then I really SHOULD kill someone. This is called a “Guilt By Association” fallacy. Just because someone you happen to agree or disagree with on one point or belief does NOT mean you agree or disagree with all of their points/belief’s. In fact, I noticed you tweeted about an article the other day that you said you liked, and there was a link IN the article linking to someone making a game with illegal sprites… so I suppose you should include yourself above for supporting illegal actions?

    Also, you could just ask us our positions instead of putting false statements out there. We at FGL/GamerSafe are trying to improve this industry and help indie developers as much as possible. I don’t think it is beneficial or productive to engage in these fallacious rants. The saddest part is I actually agree with your overall theme that stealing sprites and taking advantage of properties that are trademarked or copyrighted is wrong, but the point is lost in all of the bashing. I really do think you are talented enough to compose very funny, entertaining, thought provoking and informational articles and still raise your readership. No need to resort to such tactics… especially when we’re trying to do good for developers just like you! :)

    1. Ryan

      Chris – agreed re: your point about bringing up Hitler and Stalin. That’s why i think my Capone argument is *gold*. No one uses that guy.

      To tell you the truth, i didn’t understand your “Guilt by Association” point in 140 Twitter characters, but i see what you’re saying now. i disagree, but at least now i understand :) i don’t think that FGL/Gamersafe is guilty of IP theft by showcasing Badim … i just wish i could hear success stories from people trying to make an honest buck. i’m not trying to bash either company. The feeling i’m trying to project is more “disappointment” than “anger”.

      i am glad to hear, as Squize mentions, that Badim has done a lot to try to help the community. But just as preachers can’t buy hookers, the people writing high-profile articles and being showcased on community sites need to be held to a higher standard. It’s like appreciating a lot of what Jimmy Swaggart has to say about Jesus and stuff, but damn, guy. Ne hooker pas, s’il vous plait. What sets Badim apart from the rest of the script-kiddies who rip IP, is that those script kiddies aren’t held aloft as bastions of the Flash game dev community. They aren’t being asked to speak at conferences, to be featured in newsletters, or to write guest posts.

      If Badim is really that important to the community, i’d love to see him just remove his infringing games, issue a quick “my bad – won’t happen again” apology to the devs, and move on. Then, whatever. We can build a golden throne for him and put him on the covers of our eZines. But he doesn’t really seem motivated to do that. Quite the contrary – he’s proudly re-posting his article and making excuses along the lines of “Newgrounds allows IP infringement, so it must not be such a big deal.” Again: we need better role models to follow – better people to emulate. That’s all i’m saying.

      – Ryan

  6. Squize

    *mental note* Never piss Ryan off.

    I did write a blog post soon after reading the original article on Mochi, after being quite shocked, like I imagine most like minded people.

    I know Badim is being held up as an indie poster boy by various people, but I’m not sure if singling him out quite so much is a good thing. He screwed up. He was a bit too honest ( Using ripped sprites is quicker and easier than actually paying someone and forming a creative partnership. Wrong in every way, but quicker ) and gave some piss poor advice that a lot of people will latch onto as gospel ( As it was on the mochi blog, and they’re spent a lot of time and effort building up a large amount of trust with the community ).

    Personally I think Mochi should hold their hands up for not thinking to edit it more closely, if at all. I don’t subscribe to some of the things mentioned in his article as a “grey” area. It’s only a grey area as IP theft has become the norm.
    That certain sites turn a blind eye to it doesn’t legitimise it any way ( Another argument I’ve heard to justify some of the worse points raised ).

    But Badim is one of many many people who do this. At least the guy has tried to give things back to the community, whether it’s his opening of his bank account on his blog on a monthly basis or writing articles, which although badly painfully flawed in places, still had some valid advice in there.
    I know he’s there as an easy target, and I know his not the only one in your post, but he has taken a couple more shots than any of the other thousands of script kiddies have, and who themselves will never give anything back to the community ( Aside from games with Zelda sprites in that play a lot like a tutorial I’ve seen, hmmmm ).

    Maybe if some of the sites “promoting” ( For want of a much better word ) him actually took a stronger stance then that would help. Maybe.

  7. Richard Davey

    “And anyway, when you’re an outsider and you think “free-to-play Flash games”, which sites come to mind more readily: Nitrome and Candystand, or AddictingGames and Newgrounds?”

    Judging by average traffic stats to gaming portals, evidently it isn’t Newgrounds.

    It’s a blip on the Flash game radar, no more, don’t give it more importance than it has.

    1. Ryan

      Richard – re: Newgrounds traffic. We’re gonna need to look at some proper stats to agree.

      i KNOW it’s lousy and not nearly the accurate approach we want to take, but on Alexa.com, Newgrounds ranks HIGH above Nitrome and Candystand … and it also tops King and Shockwave FWIW. It trails armorgames and addictinggames.

  8. TFernando

    I played EF:CW and I thought it was interesting that the game doesn’t really involve Star Wars past the logo at all, beyond calling the soldiers clones (unless I missed something by not playing very long). Since Elite Forces is a multi-genere brand in and of itself owned by Badim, I think it’s a pity he didn’t use another title. That said, LucasArts really is the only entity Nonoba or anyone else is obligated to respond to. If I received a DCMA take-down request from a third party I’d probably ignore it.*

    I don’t think the ad traffic that games are getting is consistant with Newgrounds being representative of the flash game player, regardless of traffic stats. If they were, the primary ads we’d be seeing from Mochi would be for Axe deoderants, Maxim magazine, and violent movies… instead of Air Wick, Multigrain Cheerios, and various cleaning products… While the companies behind the latter brands are large enough to be shotgunning all media, they’re also very established firms and didn’t become established by wasting money for months mistargeting their marketing. Of course it’s possible that mochi decided that I specifically am a 30yo housewife, but I think Google is detecting a different audience on the portals than Mochi is detecting on the games themselves, because I get the usual Evony ads on the portals themselves… Suggesting that the games are being played in large numbers off portals entirely, else Mochis run-of-network ads would be more or less identical to what Newgrounds has as banners.

    I see the rift you mention in comment 4 comming as well, I think it started to form right about the time the current crop of microtx options were being announced. I don’t know it’s a good thing, but it’s a thing. :)


    *-(As far as I can recall, the only external IP I’ve used has been SFX or music issued under licenses which permit commercial use… of course if an SFX or music track creator asked me to withdraw something I’ve used I’d remove it or version control it out of the game as fast as I could. Third party in the sentance marked was meant to refer to entities without rights in the IP in question)

    1. Ryan

      TFernando – thanks for your thoughtful comment. You’re right that a portal would not be obligated to remove content at the request of an unrelated third party. But i think some services would. A third party could likely contact GamerSafe or MochiMedia and give them the heads-up, and i think they would remove the game. Not because they *have* to, but because they would want to honour their stated Terms and Conditions.

      You make a very interesting point about the types of advertising Mochi serves up in these games. Having worked many years in the ad world, i really wonder how much of it is shotgunning, as you say. There are a lot of clueless brand managers out there with more money than sense.

      (It’s interesting, though – here in Canada, we get served different ads entirely. i was surprised to hear that Mochi serves up video ads in the States. i’ve never seen such an animal here in the frozen North.)

      – Ryan

  9. Marcus

    I said
    “Badim might have a different view from what’s legal or even acceptable to most”

    You replied:
    “That was a silly thing to say. There’s no such thing as a “different view from[sic] what’s legal”. If i steal someone’s car, but it’s not my view that stealing cars is illegal, does that mean i won’t get arrested? Folks under the age of 40 toss around the statement “everyone has the right to his own opinion”. But law is not opinion. It’s law, baby.” Absolute vs. relative.

    First of all, why would you put a [sic] after the “from” when it’s evident that’s what I actually wrote as you quote it just one row above? That’s just insulting. I’m not a native speaker and I think it’s very rude to deliberately draw attention to any grammatical mistake I make.

    Secondly, there is nothing absolute about law, especially not copyright law. There’s a reason we have judges and/or juries (depending on the judicial system). Besides, laws and how they are carried out vary vastly between different countries. Would you have lambasted Badim the same way if he were Cuban*? Are you also suggesting there’s no possible way anybody could have an opinion on a law? Just like the death penalty, right, how could you have an opinion on that? There’s a lot of ideologies that have problems with copyright law in particular – and the followers of those ideologies are not all under 40, why would try an discredit something like that? I’m not saying I am one of the people who disagree with it, but it’s insulting when you call me silly and rebuke me with such nonsense (if you excuse the strong word, I’m not trying to escalate the name-calling but that’s the noun I think best describes it).

    You’re also saying you’re not comparing Badim to Manson, but that’s exactly what you’re doing (it’s the very definition of a comparision). I get that it’s a joke and that you’re being hyperbolic, but I don’t think it’s fun, it’s only extremely insulting and it doesn’t lead anywhere you should want to go.

    If you think a mistake has been made by making Badim appear as the model flash developer, criticize Mochi for a bad decision (and it was a bad and ODD decision, not at least because it’s damn obvious somebody from Mochi edited it to correct Badim’s English), but don’t try and get some hate campaign started against this one guy. That kind of online harassment stuff is just creepy and represents the destructive forces of the internet more than all copyright theft combined (which actually can be extremely creative in some cases – one good reason to oppose copyright, or at least a good argument for a widened “fair use” clause).

    * I was under the impression that they still didn’t have copyright laws on Cuba, but I looked it up apparently they do. The argument still stands, though. Copyright isn’t a physical law.

    1. Ryan

      Marcus – you’re right. i added [sic] because i was being a jerk. Please accept my apology.

      i knew you’d jump on me for saying that the law is absolute. While law does constantly change and evolve over time, it’s absolute in that if the law states at this moment in time that car theft is illegal, it’s absolutely illegal. You’re not going to steal a car and successfully argue the case in court and have the judge overturn car theft laws. Who knows – in some distant future when robots rule the justice system and we’ve all evolved third arms, car theft might be legalized. But for now, car theft is absolutely illegal. Your opinion about whether or not it should be illegal is irrelevant.

      And no, if Badim was Cuban, it wouldn’t make a difference. This is more of a trademark issue than a copyright issue, and i’m reasonably assured that Star Wars: The Clone Wars is an internationally protected mark. i doubt that an Argentinian could safely rip off Mickey Mouse, or that a Turkish artist could start his own McDonald’s chain with a golden arches logo.

      Those we hold up as our industry spokespeople should be held to a higher standard than those we don’t. Badim can languish in obscurity and do whatever shady stuff he wants, but if he’s going to be in the spotlight, he needs to feel the heat from those lights.

      – Ryan

  10. Marcus

    Your Newgrounds argument is a strawman. Your screenshot clearly shows the featured MOVIES on Newgrounds, not the featured games (had you scrolled down that far you’d have noticed all the current games are all original titles). The “rip-offs” and “unauthorized sequels” you mention are parodies made by kids in their teens and 20’s, and not made for any monetary gain. Do they fall under fair use? I’m not an expert on US copyright law but from what I’ve read on Wikipedia (I’m a legal expert now!), I’d say yes.

    If you think it’s a problem that “the Flash platform is synonymous with low-quality, piratey IP rip-off games, and badly-animated 2D pornography” – if that indeed is the case – the only way to change people’s minds by it is by making better games.

    Flash is a wonderful platform and personally I love the young creativity that Newgrounds represents. Sure, there’s porn on there and there are genuine copyright infringements too, but the whole idea of Newgrounds is that anybody can create anything, and anybody can go on to be whatever they want. Newgrounds is an extremely inspiring site in so many ways and I think it’s really sad when somebody is bashing it without paying any attention to all the awesome stuff that’s going on there too. I’m not bothered by the fact that 16-year-old kids make flash animations with fighting stickmen (that somehow become immensely popular). I don’t feel that what I’m doing is cheapened in any way by the fact that some kid from Dallas choses to make a movie called “Dick Neck”. I think it’s bloody brilliant all these people are funneling their creativity into art.

    Maybe you would prefer squeaky clean EA-owned Pogo or MTV-owned Shockwave to a site like Newgrounds, a site that is run by people who actually just started out as kids drawing violent stick animations, but were encouraged by the community that became Newgrounds to keep going at it and eventually went on to release extremely well-received console titles. I know I wouldn’t.

    (to be continued, eventually, with the stuff you said that I wholeheartedly agree with)

    1. Ryan

      Marcus – good call. i did accidentally grab a shot of the movies on Newgrounds. Shows how often i visit Newgrounds. While i didn’t see any blatant infringements in the Featured Games panel, a quick scroll through the Action games category turns up a number of Mega Man rip-offs, a Ghosts n’ Goblins game, Metal Slug, and something with Muppets in it.

      Heh … i don’t see you passing any bar exams after a trip through Wikipedia (although Mexico might give you a doctorate?), but it’s not hard to find a swarm of articles on the myth of Fair Use:

      10 Big Myths About Copyright Explained
      Debunking 9 Copyright Myths of the Online World
      Copyright Myths

      … fair use is an affirmative defense, meaning that you would have to prove that your use was fair after you have been sued. In short, fair use will not protect you from a lawsuit, just from having to pay damages after it is over.

      i don’t think the “only” way to change people’s minds is to make better games. i think we can also change public opinion by showcasing honest developers.

      At the risk of driving undue traffic to “Dick Neck” – if that’s what qualifies as “bloody brilliant” in your books, we just have a complete difference of opinion :)

      – Ryan

  11. Dmitry

    Man how about to remove “Sonic” flash clone? Or you think this game is fully copyrighted? Badim takes only logo, that’s bad, but this game takes all art of original game. I think it’s a problem of developer, let him decide wich risks to take.

    1. Ryan

      Dmitry – if the developer of the Sonic knock-off you mention was featured in industry blogs and newsletters, i might be inclined to speak up.

      – Ryan

  12. Marcus

    “… fair use is an affirmative defense, meaning that you would have to prove that your use was fair after you have been sued. In short, fair use will not protect you from a lawsuit, just from having to pay damages after it is over. ”

    so what? that doesn’t mean it’s not fair use..? I have read through some of those very articles you linked to before and I read them now again and they only re-affirmed my understanding of fair use. Mind you, I’m not talking about the Metal Slug games or whatever, I’m talking about the animations.

    Another thing mentioned that I think is interesting (note though that the author notes below this section that parody is a major exception)
    “Now, as it turns out, many, but not all holders of popular copyrights turn a blind eye to ‘fan fiction’ or even subtly encourage it because it helps them. Make no mistake, however, that it is entirely up to them whether to do that.”

    It’s not up to you to decide which games/animations on Newgrounds are OK are not, but the copyright holder, and if he choses to take it to court, then it’s up to the jury/judge to decide.

    “At the risk of driving undue traffic to “Dick Neck” – if that’s what qualifies as “bloody brilliant” in your books, we just have a complete difference of opinion :)”

    I … think it’s irritating that you twist my words like that. I didn’t say “Dick Neck” is bloody brilliant – I said it’s bloody brilliant that whoever made it is funneling his creativity into making stuff in flash. It’s like you’re trying to discredit me by implying I have bad taste, when that’s completely besides the point.

  13. Marcus

    “You’re not going to steal a car and successfully argue the case in court and have the judge overturn car theft laws.”

    Copyright is obviously not as black and white as a car theft – I think few but the most extreme anarchists would argue car theft is ok, while copyright/trademark/patents is much more widely debated.

    Funnily, not even car theft is as black and white as you make it. This is an actual story that was published a couple of days ago:

    A 29-year-old man expressed interest in buying a $1.5 million boat. The seller believed the man’s story about how he had inherited a large amount of money from his father, and gave the man several lessons in how to start and drive the boat. As it turns out, the man was lying and didn’t actually have any money, and one on occasion when he was presumably allowed to take it out for a test ride, he disappeared with the boat. The police eventually found the man on the boat several days later after he had attempted to buy 700 litres of gasoline without paying – he had only given the shop owner a business card from his FORMER employee and told him to charge them.

    To make things worse, the man managed to elope from the country for two years but was finally apprehended.

    So what is he being charged with? Grand theft auto? No, “unlawful use” (I’ve no idea what the exact term is in US law) which has a maximum penalty of 1 year in prison. The attorney commented that there’s no evidence he actually stole the boat, so they can’t charge him with theft. Why? Because the man was obviously allowed by the seller to use the boat..!

    Here’s the original article, it’s not in English but I just want to prove that it’s not an urban myth:

    1. Ryan

      Marcus – re: your boat story … we’re gonna be here for a year if we chase down stories of legal anomalies. (Check the “Florida” tag on Fark some time.)

      i’m re-reading what you said about “Dick Neck” … i concede that you may not have called it bloody brilliant, but you do imply that it’s art! :)

      You’re correct that people are absolutely taking a risk by posting knock-off content. It’s up to the IP owner to decide whether to sue or not. From the IP owner’s perspective, it’s incumbent upon them to protect their IP. There’s only so much they can allow to slide before they’re at risk of courts deciding that they did not actively protect their mark, so it’s fair game. So IP owners themselves may even turn to Fair Use clauses to actually avoid going after people. If you are a small company like us with no on-staff lawyers, chasing down infringing parties could get prohibitively expensive.

      But in the case of companies like Nonoba and MochiMedia who have policies forbidding stolen work on their services, i would imagine they would gratefully receive a tip-off that something on their site broke the rules … otherwise, they could be culpable if they knowingly kept a stolen work on their service and the IP owner eventually came knocking. Maybe someone from Mochi can confirm or deny that? i doubt we’ll hear from Nonoba.

      – Ryan

  14. Marcus

    The Mochi thing has been debated on their forums. Basically, it’s not up to MochiMedia to decide if something is fair use or not. A quote from Bob, one of the co-founders (I think): “We always respond very quickly when we get a complaint from the copyright holder. For all we know the developers have permission to do use what they’re using because they agreed to our TOS which says that they do. Only the copyright holder can really tell us otherwise.”

    Also, I’m afraid you think too highly of Nonoba. Have a look at this (where also the above quote is from) -> https://www.mochimedia.com/community/forum/topic/nonoba-sponsoring-and-showcasing-monoliths-mario-world

  15. David Williams

    Hi Ryan,

    I was instantly reminded of my last ‘job’ when it comes down to this. I was Administrating/Moderating what is probably the worlds most well known fetish site (link not supplied for NSFW reasons) – It’s marketed as a Social Network, and rightly so…it is. But often times, people would put pictures up of copyright material.

    I fought and fought for removing these images (obviously the 300 people who fill their profile with simpsons pictures do not have the rights – and if one of them DOES – I’m sure they’d actually be grateful for our policing) But it was a no-go.

    Admittedly, these people weren’t doing anything wrong per se. It’s perfectly legal to use pictures/images/media in a non-commercial setting, on the proviso that if the owner asks you to take it down, you do so.

    Our TOS on the site clearly said – If you upload it, the picture must be yours. But there was no going to enforce that. Which is a pity. I stuck to my guns on that issue (i was fairly vocal on a few issues as well) when the owner dropped the bomb about why.

    “Basically It’s a matter of policing. Once we admit to looking at one picture and taking it down due to copyright, we become responsible for all content any member uploads. As long as we don’t do something like that, we’re not”.

    It’s true too. Probably half the reason newgrounds can get away with it. It’s not like their submissions section is hard to get through.

  16. Seth

    I really agree of what you’ve said in this blog but not so much on how you’ve said it, especially the comparisons you’ve made. Then I’ve thought about it a bit and realized the tone you used is brilliant! Just try not to piss off too many people too fast.;)

  17. Badim

    Hi there guys! You always welcome in my blog, with constructive things and ideas.
    Rayn, its very strange being in same line as Charles Manson, etc, for me. actually i found it very Stupid and Insulting.
    you can check last version for clone wars here – (LINK REMOVED JUST BECAUSE I CAN – MWA HA HA HA!! – Ryan) or here – (ALSO REMOVED!! – Ryan)
    I have changed and updated it where i can. I will continue update version with time, but that is not my high priority atm. and if you still policing – good for you. as you can see that is 100% my achievement – if i not writing that article, you never start doing it. others start to develop, you start policing. i`m glad that my article helps and inspires.

    and about art and pictures that you using on your blog – you violating copyright and authorship of other companies and people.

    and (most interesting question) wtf man? stop picking on me. you envy? i have insulted you personally you somewhere?(cosue you still trying to insult me everywhere) or are you just trying to be tail in my career?


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