I can't think of an appropriate subject....blame the regs!

LMAO!! No, that would be irresponsible of me, wouldn’t it?


No, it’s not an attack piece. It’s a poorly written review. Don’t take life so personally. :-)

[color=darkblue][Yes, he mentions you personally, but you’ve built celebrity status for yourself over the past decade. So like Winona Ryder, you have to deal with the consequences of that. :wink: But from reading the review, it comes across as a poorly researched piece from someone who doesn’t enjoy the type of game you built in the first place, not an attack.][/color]

And I wasn’t accusing you of using scare tactics. Rather, I was saying that if the DMCA does allow the restriction of screen shot use, that other companies could use that to try to prevent reviews of bad products…

But if you bastards gang up on me, I’m goin to freak

So if you find out you hold the unpopular opinion and the majority of people disagree with you - with this be considered ganging up? Or majority consensus?


Did you see a Bug’s Life? The part where Louis 9?) kept flying toward the light and his friend was saying not to fly towards it and he kept screaming …but I can’t help it?

hehe, there yer go :D :D :D

And I wasn’t accusing you of using scare tactics.

I know. I didn’t say you did. That response was to Chet :P

Well, considering the company I’m in, I would vote for the latter. I’m crazy, but not that crazy you know, Chet. :D :D :D

Derek here is the company you keep when you make wacky legal threats.

[i]You must remove my site from portalofevil.com

I will be taking legal attion and I mean it too.

followed up by


Sadly, this woman is serious. She is also obviously insane.

Here is one for a site we host on poehosting, this is near the end of the exchange, as a host I answer each email seriously and try to explain the law. Some people have a different version of the USA they live in.

[i]no. You are sad. You obviously have not taken a look at any of the laws
before running that server or youd know that whoever is complaining, it is
still valid.

YOU are responsible for the content on YOUR servers. Do not give me any first ammentment crap as it does not count toward satire. And he has said it was himself. Why not read your own terms of agreement. That art IS illegal. and its your fault. BY LAW. [/i]

Is this the company you want to keep Derek? So far in comparison the only thing you have going for you is your ability to spell.


oy!! 'ang on a minute, how dare you lump me in with those, obviously illiterate folks?!?

I’m crushed. :D

and, and, and…I have a valid claim, and, and…oh wait! brb!

ps: I don’t drink soda. I’m strictly a coffee (decaf no less) man myself

I don’t think anyone likes that. But since scaring the site wasn’t my intention (not sure where you got that impression from), I’m not irked by your response.

As to your interpretating of the DMCA? Well, its not entirely true. You might want to actually talk to someone who can interprete it.

If you’ve forgotten what fair use means, you might want to read up on it again Chet. No, seriously. Not sure if I can explain it correctly, but my point is (and I’m clearly not a lawyer), this was not a review, but an attack piece. To me, he’s using my stuff to attack me. OK, so it may NOT be legal and permissible under the DMCA (meaning that I can’t enforce it), but thats for an attorney to determine - and doesn’t prevent me from bitching incessantly about. :D

As I said to Denny, my intent was misinterpreted. It has NOTHING to do with scare tactics. But of course, knowing my luck, only someone like you would come up with such a preposterous notion. Oh well.[/quote]

There are four prongs to the test to detmine whether something qualifies for fair use. A use does not have to pass all four prongs, just meet the balance of them. The four prongs are:

  1. What is the character of the use?
  2. What is the nature of the work to be used?
  3. How much of the work is to be used?
  4. What effect would this use have on the market for the original?

Character of use describes the overall usage. Is the use commercial or not-for-profit, is it personal or public, is it criticism, commentary, parody, or news? hardCORE is commercial and public, which leans towards not being fair use, but that is trumped by the criticism and commentary aspects of the ‘review’. hardCORE passes prong #1.

Nature of work refers to the nature of the copyrighted work. If it’s factual or not imaginative, it’s hard to argue against fair use. If the work is original and imaginative, it’s much easier to argue that a usage is not fair use. For the purposes of our discussion, BC3000 is highly original and imaginative. Derek win prong #2.

Is pretty easy to define, how much does the user use of the original work? I’ve argued this previously on Joystick101.org (RIP), but I cannot see how any review of a game could use more than a mere fraction of a precentage of a game. Even if the reviewer posted thousands of screenshots, it couldn’t represent more than a few minutes of a game that has hundreds of hours of play value. hardCORE wins prong #3.

This might be a bit controversial to you Derek, but effect of the useage on the market for the original does not apply to comments that might dissuade someone from buying the original. In other words, Roger Ebert is within his fair use rights when he pans a movie. Rather, the potentially fair use material has to compete with the original material. I can’t take “Phantom Menace,” edit it to my liking, and then release my version to theaters. hareCORE wins prong #4.

Like I said, you don’t have to win all four prongs to be covered under fair use, likewise, you could lose most prongs and still be covered. hardCORE is covered under fair use because it uses little of the original material, does not compete against the original, but most importantly, because it is a criticism/commentary of the original. You’ll have difficulty finding a court (at least in the US) that will find a review of a game to not be fair use.

Maybe the term “fair use” has you confused, since you say that this can’t be fair use since hardCORE is attacking you. “Fair use” doesn’t mean a nice balanced view, it means that someone has a right to use portions of your copyrighted work, as long as they don’t fail too many of the “fair use” tests.

All of this brings me to this. You’re not doing yourself any favors by going after this site. You’re throwing around legal threats that, by your own admission, you don’t have a clue what they mean. You might want to investigate “barratry.” If your intention wasn’t to scare them, what was it? To remove your copyrighted works? Sure, but the legalistic email you sent was a scare tactic if I’ve ever seen one.


See what I mean by this evolving into a good debate?

Agree with all your points - EXCEPT - for this above summary.

Again, my intent was NOT to scare them. In fact, I did sent a second email telling Carl to ignore the DMCA bit if he wanted, since I can’t and have no intentions of enforcing it. I could post it, but I’m on my laptop (I’m out front sitting by the pool and having lunch) and don’t have WAP access to my email server. Once I get back inside I’ll post it. But I’m sure Carl is reading this and can attest to this bit.

Like I said, good points all around. And I for one, aren’t against good, informative debate. But fer crissakes, the next person who accuses me of using scare tactics is going to hear from my…uhm, mom. :D :D :D

An easy way to determine whether Derek can get away with forcing down the screenshots: do you think Proctor & Gamble could get something comparable to happen in a consumer magazine?

Of course not.

>Like I said, you don’t have to win all four prongs to be covered under fair use, likewise, you could lose most prongs and still be covered. hardCORE is covered under fair use because it uses little of the original material, does not compete against the original, but most importantly, because it is a criticism/commentary of the original. You’ll have difficulty finding a court (at least in the US) that will find a review of a game to not be fair use.

Excellent summary. 100% agreed.


Just a side note:

It looks like it will soon not be possible to go to ISPs or other carriers if you have a DMCA problem with a content provider. Verizon and several other major carriers are refusing such requests on what they believe to be solid legal grounds, and judging from Verizon’s past record in such cases, they will probably carry their point in court or in Congress, one way or another, by fair means or foul…

Miramon, that is because when it comes down to it, the carrier or isp can do nothing. If the hosted site fights it, they have to allow it to stay up. The isp is not the judge and jury, just an impartial player in the whole mess.

The problem is most smaller isps cave in on the first threat.


btw, I just heard from Carl the site owner and apparently while they were privvy to the beyond3d.com fiasco, didn’t do the review on that premise.

Here is his post and my response

Anyway, back to a more serious and informative topic…

Its beginning to sound like the whole DMCA thing is a farce and only those with deep pockets and patience can ever hope to prevail? If its so ludicrous, how the hell did it get past congress? Record companies and lobbyists again, I suppose. :roll:

Come on, did it take you until NOW to figure that out? :)

I think everyone needs to go watch Jay and Silent Bob Strike Back (again, if necessary) to gain some perspective here.

Or, to put it another way, there’s an old proverb (or saying, or whatever) that says that a lion who chases rats to eat will die because the rats take more energy to catch than they do when eaten.

You = the lion
These small fansites = the rats

Don’t chase the rats. It’s not worth the energy.

Come on, did it take you until NOW to figure that out? :)[/quote]

But of course!! That whole ignorance of the facts thing works fine when it fits one’s agenda, doesn’t it? :D

As far as DMCA goes, you could argue that screen shots are actually new works, created using the game as a tool.

Microsoft has no rights to any document I create using Word. (Not yet, anyway… After reading the WinXP SP1 EULA, I’m sure they’ll be asking for them in Office 12…) Similarly, if I create a screen grab of a game, that shot is my own “work” – I have flown to that sector of space, I have positioned my ship, I have kicked alien butt to place the wreckage in my view, etc. The composition of the shot is my creation – so is it not an original work using the game as a creation tool? Is not the path I take through a game an original story of my own creation?

(I don’t actually know the answer to this. Just junk food for thought.)

Derek, I know we’ve had some zany adventures in the past, but now that I’ve fled the country and am a fugitive from the relentless persecution of American libel law, I’m over all that.

But I have a question. Why have you decided to be an artist if you so consistently over-react to criticism? Why do you put your work out to be judged, then threaten lawsuits when someone does so?

I mean, if you really love your games so much, it seems that you could be quietly content with their quality without needing applause. If you are so sensitive to criticism, it seems odd that you would hazard opening yourself to it at all. It all seems very odd to me.

Don’t you think this sort of reaction to a bad review makes reputable gaming sites not want to even risk the trouble? I’d imagine that you are alienating the truly objective, and that the only people who would want to review your games these days would be the extremists of either corner: BC3K fan boys or the Bill Huffman Brigade. In other words, it seems to me that your behavior just aggravates negative input, and stifles honest praise.

I doubt you’ll change your reactions, but I wanted to point out that you’ll never get constructive criticism on your games if you already react so badly to the reviews you don’t agree with. No one’s going to want to risk it.

You know, I first heard about Derek from references to his flame war (wars?) on UseNet. I read a few posts (there were a bazillion) and decided that all involved were idiotic lunatics with no lives to speak of.

But… after reading this, I’m beginning to understand that Derek is more rational than what I was crediting him for. I’ve read some reviews of my indie games that got the facts wrong, and it IS annoying. But vent to your companion or co-workers or whatever before you start banging away at the keyboard.

These other guys are right. Even with justification, the threats and insults and endless replies just tear down your soul. At the end of the day, you haven’t “defended” anything that one polite correction couldn’t defend. You can’t please everyone, and some people you displease won’t make good points when they criticize you. I took more psychic damage when someone like Tom Chick or whoever made well-reasoned criticisms of my games.

Ignore the riffraff.