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> distribute the resulting new work

There are several mods of this sort in the Elder Scrolls community that work because they explicitly do not do this. You basically take an open-source engine and point it at an existing install of the game. It knows how to read all the original data files but does not do any modification or redistribution of them. AFAIK Bethesda explicitly gave them a blessing for this approach.

In this case it's the OpenMW reimplementation of the Morrowind engine, which is fantastic and rapidly maturing (and capable of playing the game right now, they just continue to add features). http://openmw.org

The Bethesda thing as far as I know was about Morrowind on non-PC devices and they talk about it here: https://openmw.org/faq/#bethesda_legal

But then you've got stuff like Skywind, who are painstakingly recreating Morrowind from scratch in the Skyrim world builder, from terrain to new 3d models to music...

Individually, building one thing from scratch should be clear from a copyright perspective. Trying to port the whole game from scratch though (rather than an end-user datafile conversion tool) feels like it's destined to failure.

There is some legal area around creating modified version of licensed copyrighted work. In US there is an explicit right called Adaptation Right and it has a few prior cases, like the one I recall where a person bought a physical painting and cut it into pieces only to reassemble into a mosaic to be resold. The court judged that case as infringement since the purchaser of the physical painting did not get the Adaptation rights. In EU there is a similar concept in the moral rights of the author where the integrity of work is considered an inalienable right.

But the prior cases are not all like that. There are for example cases where a company produced a physical modification to a game console and got sued, and the supreme court siding with the defendant that such use did not modify the original work but rather was interfacing with it. Similar argument was made during the Oracle vs Google API case from 2010.

When it comes to GPL, there has also been quite a bit discussion on the subject when a user combine the kernel with non-free modules. Is it the user that do it, is it the company that released the module, or is it the distribution that make the two easily combine-able? This became a rather heated discussion when Ubunutu made the module available and Debian had to decide on what the best approach was.

I don't think that legal guidance actually exist since there is prior cases pointing in both directions. I would lean onto the question if the copyrighted work in question is being modified or not. Voice recording itself is very distinct from the rest of the work, so I could easily see that it is permissible for a project like this to pull the intact files from one game to an other, but its a very uncertain what the court would actually decide if it ever went to that. We also have to consider fair use rights, as they did with the Oracle vs Google case.

When it comes to GPL, there has also been quite a bit discussion on the subject when a user combine the kernel with non-free modules. Is it the user that do it, is it the company that released the module, or is it the distribution that make the two easily combine-able? This became a rather heated discussion when Ubunutu made the module available and Debian had to decide on what the best approach was.

Essentially since the user-side is basically unenforceable. AFAIK GPL only applies to distribution, and even if it didn't, who's to know if someone privately combines all sorts of incompatibly-licensed software?

We can do all sorts of technically illegal things, if we don't disseminate anything. Or as the old saying goes, "it's only illegal if you get caught." ;-)

In practice, Bethesda does not permit mods with assets from a different Bethesda game. Everything else is negotiable, there are kid toys trains turned into Skyrim dragons, but mods with assets from another Bethesda game (or even from a DLC of the same game, but without making the mod dependent on that DLC) are taken down.

So, modding projects which plan to accomplish that with some installers extracting those assets tend to operate a bit under the radar, legal gray area or not.

It seems like a poorly constructed argument to suppose that creativity is a required element to be the party responsible for creating a copy. Its very nearly the opposite of real. It is 100% unambiguously the customer who is creating the copy. Else bic and xerox will be sued out of existence shortly.

Essentially the act of copying is totally without creative merit however the buyer of the game arguably has a fair use right to make use of the work in a different context not terribly dissimilar from format shifting.

The only argument that could be made in this universe is that the customer is responsible for copyright infringement and that the modder is acting to enable copyright infringement. While its clear that say exist only to facilitate obvious piracy could be found to be enabling piracy its not obvious or even reasonable in this case.

EULA's are of questionable utility not because they are legally invalid although I think they are trash but mostly because people don't care and its difficult to persecute your customers without losing them.

> EULA's are of questionable utility not because they are legally invalid

Most EULA's are invalid in Germany (and possibly in other parts of the EU) as you need to accept them before buying, which usually isn't the case, and they count as AGB (more or less Terms of Service) which are heavily regulated in what is allowed to appear in them (including no surprising clauses).

"It seems like a poorly constructed argument to suppose that creativity is a required element to be the party responsible for creating a copy."

It was. I elided, either deliberately or otherwise (I'm honestly not sure myself), a discussion on the idea that creativity is the standard in the ability to have copyright on something, and thus if you use that as a sort of guideline by choice, then you can make an argument that somebody who isn't bringing any creativity to the party can't be said to be the one who has produced any useful work. Therefore, the question is, if the end-user can't be said to have had any hand in creating the work, who did? Well, the only people left are the developers of the merging code. If it's not legal for said developers to simply distribute the result of the merge, how can it be legal for the result of the merge to appear on someone else's desktop anyhow, if the user didn't really do anything to produce it?

Basically, this asks the question "What is distribution in a world of computing devices, anyhow?" And I reiterate I'm not trying to take a position here per se, but simply pointing out that there is a question here. The ideas of distribution were created before we were all equipped with multiple powerful media engines of our own.

So the copy machine metaphor is not relevant, because copy machines fit into the old paradigm handily. We're not talking about simple copying or we'd already know the answer as to whether or not it is legal, give or take a bit of EULA.

Fair use is unlikely to be even slightly relevant here, for all kinds of reasons. The internet conception of "fair use" does not legally exist, and the legal one seems irrelevant anyhow, since we're stipulating that the end-user has a license to at least the original manifestation of the copyrighted work anyhow. This is the sort of thing I was referring to when I said that step one is understanding there is a problem at all; in my experience most people grappling with these questions get so hung up on the things they want to be able to do that they can't see past those to the underlying issues. The simple truth is that just like pretty much everything else in life, a fair, equitable, and coherent legal answer to these questions may result in you being told you can't do something you want to do, but you can take some comfort in the fact that you won't be the only one, and the result is fair and equitable. (Of course the odds of us getting a fair and equitable legal answer approach zero, especially in light of the fact that virtually nobody has even thought about these issues coherently in the first place.)

I don't think that because creativity is a guideline for creating a work worthy of protection implies that the act of creativity is required in order to be responsible for copying. This not only doesn't follow its a complete non sequitur. It is unrelated to any law or precedent or even a common sense reading of the law.

The person who actuates the creation of a copy including by just pressing copy on a copier is guilty of copyright infringement. If the party that produces the recipe to create a derivative work is guilty they are guilty because they acted to enable that actual act of infringement or not at all not by some magical transference of responsibility based on a creativity test that you literally made up from whole cloth. If combining 2 works you paid for in a way not foreseen by the authors on your own computer is within the boundaries of copyright, which it is, then then the challenging to prove tangential responsibility for enabling infringement poofs like the morning dew under the bright summer sun.

In your magical transference of responsibility theory the mod creator would have had to prove that creating a derivative work out of someone else's work was legally acceptable a hard task.

In reality it is incredibly obvious whom is making a copy and any perceived ambiguity is merely you failing to understand copyright. Its also reasonable to suppose that copying the files you paid for access to to a different folder is either a) no different recording a program to view at a different time or b) no different than the copy that is created in ram to run the software. The first is fair use the latter is explicitly protected by law.

https://www.law.cornell.edu/uscode/text/17/117

(a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner,...

Nowhere is it stated that this ought to be limited to using the sofware in a manner approved of by the author. Such restrictions would have to fall on the EULA and we would have to suppose that it was acceptable to toss on additional restrictions AFTER money had already changed hands and with no recourse for the user other than to eat the loss of money AND value.

Basically its not just that your argument is flawed. It is creatively flawed in multiple ways which would be harmful to user freedom. Personally I don't look forward to your world where shovels come with contracts of adhesion that describe what kind of tasks they can be used for consulting a lawyer before I dig a hole more than n inches deep and paying an addition fee per day where I used it beyond approved use cases.

I have no idea why ideas which would be wildly stupid applied to real things somehow sound tenable to some people when applied to software.

Selling software should afford you no greater control than selling shovels and the people that want to argue otherwise need to push off.

Surely because the end user bought both games clears things up a bit? If there's no intention of letting the resulting Franken-game off of the PC it's generated on, what outcome beyond more money for the games company could come from that?

While I don't agree with the argument, perhaps one should look at it the same way as needing to "upgrade" one's license when moving from LP->Cassette->CD, or VHS->DVD->BluRay.

In all of these cases, the license to the older media isn't taken as a valid license for the higher-class ones. If you've only paid for a crappy VHS tape, shouldn't there be some additional cost for getting the higher quality and convenience (now without rewinding!) if you want the BluRay?

So in this case, the owner of a Fallout 3 game is seeking to have the higher-quality experience from the Fallout 4 engine, but without needing to incur that expense.

I don't think that's the right comparison. Moving from LP to CD etc. is changing the source format, which loading FO3 assets in FO4 isn't doing. If you bought a better device for playing your media (analogous to the FO4 engine), say a laser turntable or a VHS player that caches the video in memory to facilitate better short-term rewinding/pausing, you wouldn't be expected to re-license the content. (The fact that they are physical products also has _some_ bearing)

VHS to DVD etc. is more akin to there being a re-release of FO3 with higher quality textures, and no-one is suggesting that owning the original necessarily entitles you to that.

> So in this case, the owner of a Fallout 3 game is seeking to have the higher-quality experience from the Fallout 4 engine, but without needing to incur that expense

We are discussing the case of buying both, incurring all the expense.

Actually format shifting is expressly allowed under US copyright law. So it's entirely legal for you to create a CD from a vinyl record you purchased. Or a DVD from a VHS tape.

Here’s a precedent: a MIDI file doesn’t break copyright just because it could be used with a soundfont you don’t have rights to, to generate an audio file you don’t have rights to (because it’s a derivative work of the soundfont).

Or, even simpler, a text file doesn’t break copyright just because you could print it using a copyrighted font you don’t have rights to.

A game-modding program is exactly the same thing, here, as a MIDI sequencer or a printer; and the mod itself is exactly the same thing as the MIDI file or the text file.

In both cases, you’ve got 1. a high-level description of a thing you’d like to make, and 2. a program that renders that high-level description using a supplied asset library. Presumably, there’s nothing stopping you from using an entirely public-domain asset library. Some unscrupulous people just happen to want to use a copyrighted one. (Just like some unscrupulous people happen to feed BitTorrent clients torrents that point to copyrighted material!)

In both cases, there’s nothing inherent in the software that leads to it being used in that manner. It’s the user’s choice to point the software at an asset library—or a torrent—which contains content they don’t own.

Of course, by this line of argument, a page with instructions for how to use the software in combination with the game’s copyrighted asset library, would be breaking copyright in about the same way The Pirate Bay is. The site hosting the software itself would best refrain from doing such. (And better yet if it comes with such an open asset library, such that it can’t be argued that breaking copyright is its only purpose in practice.)

I disagree. In the case of MIDI, or a printer it has significant non infringing uses, and they weren't implemented solely, and with great detailed knowledge of the work in question. If you had a printer that was designed specifically to print Steven King's It and wouldn't work with any other novel then you would have something parallel to what they have built. Their project isn't general, you couldn't use it to target a couple of open source games, or a couple of games you wrote yourself.