Games, Licenses, and You: A Practical Overview (Part 2: Remedies)
Last week we talked about the various intellectual property laws and how they apply to games. Now let’s talk about what happens when things go wrong.
Disclaimer: I am not a lawyer. This is not legal advice. Find a lawyer who knows their intellectual property law if you’re anywhere near an actual lawsuit.
Objectives
- Describe ways to enforce intellectual property rights.
- Describe what you can expect from a recourse to legal proceedings.
How To Enforce Rights
So, generally what I’ve seen here has been a mixed bag. I’ve seen people try and enforce their rights on their own, and it won’t work. You can actually wind up in legal jeopardy, potentially, for claiming rights you don’t actually have if things go sour.
If you’re concerned someone is violating your rights, there are a few paths of recourse you can take:
- Ask politely.
- Use a DMCA takedown notice or similar system.
- Go to a lawyer.
Ask Politely
If you see someone doing something they shouldn’t be doing with your work, it’s always a good idea to ask politely.
Copyright law typically will not get you a giant amount of money back in damages, so it’s nice to get a desirable outcome as quickly as possible, which is an immediate end to infringement. Actual damages may be levied that are exactly equal to the amount you would have made, and statutory damages can be nice, but you still wind up running the risk of being underwater on the lawyer, and it is rare to get legal fees paid in a copyright lawsuit (at least in the US).
It’s worth noting that politeness is not optional. Don’t threaten, though you can mention that you believe their use infringes and you may seek legal counsel. Don’t necessarily say you’re going to sue someone; if you don’t have a leg to stand on this can be construed as harassment, and you may lose any goodwill you would have if it were an earnest mistake.
A lot of people see big companies send out scary cease and desist notices and start sending out their own, but it’s worth noting that those C&Ds are coming from the legal departments of those companies, not the CEO, sole proprietor, social media guy, or next-door neighbor of the company. If you need the law on your side, you need a lawyer.
Note that you can do this with either trademark or copyright infringement.
Takedown Notices
The vast majority of copyright infringement is piracy occurring over the internet, and takedown notices are a great way to deal with this.
This is the best thing a layperson can do if the person on the other side of infringement doesn’t comply. If you see someone using your work outside the context of fair use, you can usually use an automated system on a website to take it down. This is not universally the case, especially with places that serve as hubs for copyright infringement, but it works if someone posts your work illegally on most social media platforms.
One thing that you can do if an infringing work is posted on a site that does not have a DMCA-compliant (or equivalent international law compliant) interface for reporting illegal content is to contact the webmaster or host for that site. You can typically find the host of a domain by doing a WHOIS lookup; this is a simple process, but too complicated to handle here. This will include at least one way to contact the person who owns the server the site is run on.
Again, a friendly email works well here. The host is typically legally protected so long as they remove infringing content once they’ve been informed, so don’t threaten. I’ve done this a few times (largely for what seem to be automated content scraping systems), and I’ve always gotten a prompt and successful removal of infringing content.
Call a Lawyer
Don’t handle the prosecution of a copyright or trademark case yourself, even though the cost may be prohibitive. Make sure you get a good lawyer. Remember the golden rule of lawyers: A good lawyer will tell you no.
In most cases, you can’t even bring a suit to court without a lawyer, so keep that in mind. Ostensibly you might be able to get action from a governing body if the infringement is massive enough, but bear in mind that this isn’t something that even large corporations get to happen very often. Most prosecutors are relatively disinterested in pursuing copyright cases because few meet the standards for criminal convictions.
And on that point…
What You Get From Remedies
The number one thing that you will get from suing someone over intellectual property is an injunction.
This is basically a court order telling whoever was messing with your intellectual property to stop doing that. You can get a preliminary injunction before a case even goes into the main trial phase that tells the offender to stop until the court has weighed in, and a more long-lasting injunction after the fact. This is very easy if there’s prima facie infringement (e.g. someone’s literally just copying your stuff).
It’s also worth noting that you might not actually get an injunction, though this would be very rare. For instance, if someone were publishing something that comes from your IP, but was presented to them as the original work of a freelancer, you might wind up with a case where you are paid damages but an injunction is not put into place because the offender was acting in good faith. This is typically the result of a settlement rather than being an official verdict from a court.
The legal term for the financial loss you suffer from intellectual property infringement (and can ask for repayment of) is damages. You can sue for statutory damages, which is what you see on those FBI warnings before a movie, or for actual damages. Typically you’re looking at actual damages, and many times you won’t actually wind up making back your full money unless someone really got you good. Statutory damages are typically reserved for very bold infringement, namely those that people make money off of.
If you see someone selling your work (outside the limits of your licensing structure), you probably have a case to get damages; you’ll get any money they made and possibly additional damages.
It’s worth noting that if you sue someone out of the blue, you are much less likely to get a favorable judgment from the court. You may be on the hook for your legal fees and get only actual damages, which is not all that much most of the time, if you can even prove actual damages. However, if you’ve told someone to stop, your lawyers contact them, and they continue anyway you’re much more likely to be able to collect legal fees (still not terribly likely; don’t count on it) and statutory damages.
Also note that this is pretty much just from a US context. Many countries are notoriously lax on copyright infringement, and just because they’re Berne signatories doesn’t mean they really care.
Oh, and if the person you’re suing doesn’t have any money, you’re not going to get any money. Them’s the breaks.
Closing
Most of the time, you are going to see infringement in the form of people distributing free digital copies of your work. If you do not have an open license, this is piracy and is illegal, but it is rarely going to be profitable to prosecute. You may, however, send a polite letter or involve a lawyer for a more formal cease and desist notice.
Don’t expect to get rich from people stealing your stuff (unless you release your stuff on torrent sites as a marketing ploy, which sometimes works).