EULA thoughts

I bought FF pro some time back and have not really done much other than play with it so far. I bought mostly because I can afford the occasional way-cool toy like this. If I eventually start using it seriously then it will be as a seamless texture generator for 3D art.

A concern I have is that the proposed new EULA text seems as though it would prevent be from distributing a scene/model that included a filter generated by FF. If I cannot use FF to produce textures that I can give to a client, publish as part of a magazine article, offer as part of a free model, or see through a commercial 3D publisher, then FF will not be of use to me.

If I have to constantly worry about the free vs. commercial status of each filter then chances are it won't be worth the bother either.

The main reason I'm not using FF much is that I work for a company that, among other things, does commercial software development and I have to deal with licensing issues all the time. As a result, I pay more attention to software licenses than most people, and I find that generally I'm paying more attention to them than the companies that produce the products covered by them.

I think FF is a really cool tool as I said. I greatly sympathize with software developers and filter authors who are disappointed in their sales or usage results. I also know how tempting it is to blame these failings on thieves, and how rarely this is justified.

I would like to see FF (the product and the company) thrive, and supporting them was a big part of why I bought it. But I question whether the currently proposed EULA changes will help or may actually hurt. So here are some concerns in no particular order. You don't have to convince me I'm totally wrong; I just think these are things that should be considered internally before going ahead. As always, I Am Not an IP Lawyer.

1) I don't believe you can't change the existing EULA in this way. This is a contract issue, not a copyright thing. You already sold people a license to do something and you cannot unilaterally take it away, even if you claim the right to change the EULA.

This means that in FF 2.0 you can have new EULA terms like this, but I'm not even sure you could implement them in a minor update to the existing product. A court might find that the EULA change was not valid if you try to sneak it in in this way.

So immediately he problem is that all these people out there with FF 1 will be free forever to sell or give away any output that they please. If the ideas in a FF 2.0 filter (protected by a new EULA) can be expressed in FF 1, then you likely will not be able to stop someone from implementing an equivalent filter in FF 1 and then doing whatever they want with the output. See below.

2) You can't copyright filter output, output is not a "derivative work". You can copyright FF the program. You can copyright a filter. But you cannot copyright the ideas expressed in a filter or the output of the process described by a filter.

Copyright does not protect ideas, only the expression of an idea in a particular concrete form. If I write a book that reveals some great secret about the universe, then I can stop you from distributing copies of my text, but copyright gives me very limited control (very probably none) over the information communicated by that text. It's not a violation of copyright to give away the ending of a Harry Potter book (as long as you don't copy the author's words directly) no matter how much the publishers wish it was.

While you can copyright a filter if you choose, preventing someone from distributing the filter file, the content of a filter is an expression of a process or algorithm, and as such can likely only be protected by patent, not copyright. To protect the output of a filter would require a patent on the process expressed in the filter, thus controlling who has the right to perform that process. Otherwise the output of a filter is clearly (I believe) not subject to copyright in any way as nothing is being "copied". You can try to claim protection on the parameters to the filter, but again that's not likely to get you anywhere.

This also means that someone is likely to be free to take all the ideas out of a filter and make their own that does effectively the same thing. If you copy the process exactly then copyright probably protects you as this WOULD be a derivative work, but just the fact that someone extracted an "idea" from your filter and used it elsewhere is probably not sufficient to claim illegal copying.

3) Be sure there's going to be a net positive from this change.

I know I would not have bought the product with the currently proposed EULA wording. As I said, I think most people just ignore a lot of click-through licenses, but I'm in the same business and I try to pay attention to details at least when I'm paying real money for something. I have no idea how many others will feel similarly, but it's guaranteed to be a non-zero number wince I won't be upgrading to any version that includes the restrictions that are currently proposed. And presumably those people who bought it only to resell textures won't either.

So before going to all this trouble, sit back and think about how much harm you can prove is caused by the current situation. All these people selling textures. Do we really know they're making money at this? There are a lot of cheap/free texture packages out there in the world and not all of them are FF rip-offs.

If anyone using FF is free to sell texture collections, then economics suggests that there isn't going to be a lot of money in doing so, otherwise everyone would do it.

An alternative solution is for FF themselves to get into the texture package business and undercut at least the commercial resellers of stock filter output. They could even offer to share the (probably small) income with the represented filter authors, and could potentially bring FF itself to the attention of many more users.

You have to ask whether the value of FF is in the ability to run stock filters with default parameters with no input image, or whether it's the ability to do your own customization and apply filters to your own images.

Ok, let's assume there's significant harm to FF and filter authors resulting from the ability to freely distribute or sell its output. We also know that there's definitely a cost to FF in implementing these changes. So the big question is, will doing so result in more income to FF than they lose to future sales?

Let's say the legal situation is perfect. The huge FF lobby pushes copyright reform through congress and every FF filter is patented etc. Home free? Well, are these people who are already violating the "spirit" of the FF community all going to instantly pack up and quit? History suggests no. By restricting the distribution of your filter output you will GREATLY INCREASE ITS VALUE! Thus you can expect the "honest" resellers to be replaced by even more dishonest ones overseas who you will not be able to reach, and the price for such texture packages will go up and the more dishonest people will make even more money than they do now.

But the legal situation is probably not perfect as noted above. So, with the EULA changes in place, what do you do? You can send DMCA take-down notices to those resellers in the US. Haha score! Right? Well, there are dangers here. There are fairly severe penalties for invoking laws like the DMCA if its found that you were not justified in doing so. Some little-bitty guy selling $10 texture packages really has nothing to gain from suing you over it, BUT HIS LAWYERS DO. If one of the texture resellers you attack consults an IP lawyer who thinks he can prevail based, say, on one or more of the arguments I gave above, then he may be very happy to take the case on a contingency basis with an eye towards eventually getting a $500 award for his client and $250,000 in legal fees awarded to himself. So just be very certain before you go down this route lest it come back and bite you.

At some point you have to decide how much money you want to spend on lawyers versus product development.

4) A cost of community.

FF has a nice community. Yes, it's smaller than everyone would like. But the current very open EULA is at least partially responsible for creating the environment in which that community can exist. Everyone knows the rules of the game. If I contribute a filter everyone gets it and they can do anything they want with it. But in turn I get everything they make and can do anything I want with it. I don't have to consult my lawyer before clicking each button in the program.

I think if you make these changes, which on their face will sound really good to the company and its filter contributors, then it will likely do significant damage to the community. It will add a whole new class of "hey, you can't do that, it's illegal!" flame war threads, endless discussions about what is, and isn't allowed, etc.

While FF itself is not free, the things created with it live in a very open free-software community. Of course this has good and bad effects. Yes, it means everyone gives up some of their rights to the intellectual property they contribute, but please honestly consider whether you're better off this way or whether a more restrictive environment will be better.

I the end it may be possible that the market is just not there to support FF, but personally I think the proposed EULA changes are more likely to hasten its demise than to magically double the user base, or indeed to have any positive effect at all.

Anyway, I'll shut up and go away at this point. Like I said, you don't have to convince me that I'm wrong about this, but I think you should at least decide for yourselves if I'm wrong, and maybe ask a really good contracts and IP lawyer just to make sure I'm full of sh*t.

Best of luck to the FF guys and the community whatever you decide to do.

Gavin

Gavin, I almost attempted a response to your post.....but there was just too much to address......and I would have been old and grey before finishing it..... LOL.....