Morrowind 2011 is an extremely large compilation of Morrowind assembled by Tyler Smith of Alberta, who also went to the trouble of creating an incredibly detailed guide on how to get the compilation to work. It was aimed at making Morrowind a lot prettier, making it appeal to the mainstream in 2011, and ensuring that the majority of people interested in it would be capable of installing and enjoying Morrowind with these mods.
Anyone who has tried their hand at modding Morrowind knows that it’s a giant pain in the arse to get all mods working together without issues. Last time I played Morrowind I spent a good 13 hours in modding, before I actually got around to playing the damned game. I mention this because Tyler’s effort needs to be applauded; a lot of modders create fantastic material but have a rather “my way or die in a fire” attitude to getting their stuff working which can be highly frustrating for a novice modder. Besides that, not everyone is willing to spend 13 hours preparing before they can play a game, even if they did know how to make it all work without it blowing up in their face.
Unfortunately it seems that some of the authors of the mods included in this compilation were not as pleased with the effort. The day after the mod collection was turned over to the public, Tyler reported on Reddit that he had began to receive complaints and threats of legal action from various mod authors along with demands that he take the package offline. He was also banned and IP blocked from Bethesda’s Morrowind forums. And to rub salt in the wound, someone even went to the trouble of contacting his ISP to get him cut from the internet. (Talk about taking things a little too far?)
Tyler started to update the credits of his compilation in an effort to appease the mod authors, but the ones causing trouble didn’t seem interested in reaching a middle ground. One particularly annoyed mod author said that “the list of credits is largely irrelevant” and “The bottom line is that your compilation violates copyright law in about a dozen countries and a vast majority of the authors whose work was included aren’t happy about it.” as well as “Fixing the credits, nice as it may be, doesn’t solve the issue of the whole package being illegal.”
Illegal, eh? Well it’s really quite a conclusion to leap to without providing any backup so let’s briefly examine the relevant law. First off, the dispute concerns the complilation of a set of mods to which the original authors potentially hold no copyright in the first place (obviously jurisdiction is an issue depending on the location of the servers where the alleged infringement occurred, so I am taking US law as the example) as, being derivative works, copyright would not be granted to the mod authors unless they can show sufficient “originality” to warrant their own copyright protection.1 This is not something which can or should be decided de facto by the mod author, Bethesda or anybody else; if there’s a dispute it’s surely for the courts to decide before remedial action is taken!
Even if we assume that the mod authors do in fact hold copyright, by removing the download link to the compilation there is no longer a breach of that copyright. Simply writing instructions on how to get one piece of software to run compatibly with another is certainly not copyright infringement.
And even if that could be held to be copyright infringement, the fair use defense means that liability would likely not be proven in any event. When Nintendo pursued Game Genie for allowing players to customise Nintendo games, by editing things such as character stats, the appellate court held that “a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use … a Game Genie to enhance a Nintendo Game cartridge’s audiovisual display in such a way as to make the experience more enjoyable.” 2 This can quite clearly be directly compared to Tyler modifying the original mods in such a way as to make them run compatibly.
Taking it a step further, the court has even ruled that “where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.” 3 So even by further modifying the original mods in order to make them run compatibly – certainly a legitimate reason for doing so – Tyler has surely acted within the bounds of fair use already set by the court.
So simply issuing a blanket allegation that the mod pack Tyler created is illegal and throwing DMCAs around is at best laughable and at worst has caused a grievous injustice to a man who was simply trying to make life easier for people who wanted to enjoy work that – lest they forget – these authors had already freely distributed.
It could be considered poor etiquette to not ask the mod authors prior to the compilations being released but realistically, he would never have been able to contact all of them anyway. At the end of the day, it’s nothing more than a guide on how to get a specific set of mods to work together without issues, and a download where most of the work has been done for people already. Honestly, suck it up and be glad that people are enjoying your mods.
Tyler was also accused of keeping the package under wraps until just before it was released and then contacting news sites in order to maximize publicity, a charge he denied. He claimed to have posted word about the project on Reddit “weeks ago” and had no hand in spreading the word to other sites. Not that it matters; he was asked to remove the collection and told that if he refused, WordPress and any other site hosting the package would receive “DMCA and other applicable copyright takedown notices.”
What do we think? We think that this compilation and the resulting drama has given Morrowind and its seemingly unlimited possibilities some fantastic publicity. And did the over-the-fucking-top reaction of a handful of modders help them in any way, shape or form? Nope – Reddit has jumped on the case and created a torrent of the compilation which has since been seeded thousands of times. You cannot stop the hivemind. The original guide has been taken down from WordPress, but it will pop up across the internet like a mushroom. You can count on that.
1 Durham Industries, Inc. v. Tomy Corp 630 F.2d 905 (2d Cir, 1980)
2 Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. 964 F.2d 965 (9th Cir. 1992)
3 Sega Enterprises, Ltd. v. Accolade, Inc. 977 F.2d 1510 (9th Cir. 1992)