twig wrote: ↑
February 26th, 2024, 17:31
I see this falsehood being repeated. Derivative works can have their own license terms (as long as they
fall under copyright). Fair use applies, and even works that violate others' terms can have their own licensing terms.
Fair use in most cases does not apply to modding. It is only tolerated by the grace of the owner of the IP.
https://kblroche.com/thinking-before-mo ... 's%20scope. If a rights-owner stated no modifications whatsoever to their work then they can freely DMCA anyone who does not comply.
It is certainly possible but unlikely that a mod (whether free, only shared with your friends, or a parody) may be found to be a fair use under the so-named Fair Use Doctrine. Fair Use is used to argue that certain infringement is OK because it is, say, educational, satirical, or non-commercial. A mod, free or not, would still involve a modder’s use of copyrighted material to create a derivative work, and would most likely be outside of Fair Use’s scope.
Fair use just isn't a real justification if the developer decides to not tolerate the modification of its work. You may be able to take it to court and use that as a defense, but it completely depends upon the decision of that specific court itself, which would unlikely be in the defendant's favor given that most big games have pretty well-defined legal clauses. Essentially, there is no guarantee that fair use would work, as it is a largely vague and subjective metric in the first place. It mainly applies to factual content like news articles or general information, fictional works are typically less protected.
https://cdas.com/fair-use-in-gaming-con ... -creators/
Doesn't help either that the reality is most people can't even afford to get to that point in the first place.