Okay, lets say I have developed this awesome game, and have a CD with the installer on it and a Logo and Cover designed. I also have flash movies advertising my movie and a game manual. But I need to get my ads on the internet and distribute my game. I also want you to be able to download it off the internet for a price. How would that work? Do I contact a distributing company, or can I just trade ads on the internet for ad space on my site? And can i just put up the site with PayPal and just start selling immediately? And what about Terms and Agreements? Am I allowed to put something in there that says you can't sue me? Can I take another Terms and License agreement, take it and change it a little to adjust to my needs? And, when i distribute it, where will my games go? I'm trying to use as little money as possible at first. Any help would be appreciated. Thanks!

Quote: Original post by Jedimace
Okay, lets say I have developed this awesome game, and have a CD with the installer on it and a Logo and Cover designed. I also have flash movies advertising my movie and a game manual.

None of this is particularly germane to the rest of your post.

Quote: But I need to get my ads on the internet

Prepare to pay a good bit of money to do so. My sites--completely non-gaming-related and with a relatively small turnover per day--do about $300 per ad space per million impressions.

Quote: and distribute my game. I also want you to be able to download it off the internet for a price. How would that work? Do I contact a distributing company, or can I just trade ads on the internet for ad space on my site? And can i just put up the site with PayPal and just start selling immediately?

You write the code that interfaces with paypal to figure out when you've been paid, then generate a one-time-only download link or something. Straightforward process.

Quote: And what about Terms and Agreements? Am I allowed to put something in there that says you can't sue me?

Get a lawyer.

Quote: Can I take another Terms and License agreement, take it and change it a little to adjust to my needs?

Generally no, unless you like violating the copyright of whoever wrote it (this is a gray area, but generally you don't want to have the chance of it happening).

Quote: And, when i distribute it, where will my games go?

Uh...what?

Quote: I'm trying to use as little money as possible at first. Any help would be appreciated. Thanks!

Keep in mind that you're underage, and as such nobody's going to seriously entertain the idea of signing any sort of contract with you because it isn't necessarily binding.

As for distributing my game, you got what i wanted with the download part, but i also meant about actually getting it into a store. And about age, I plan to develop a few games and when i am of age distributing them. That way I'll have time to check for quality and improve it, and also using the internet to get opinions of how to improve it. And hopefully with downloading it before i am under age, i can get enough money to distribute it when i am old enough. And about ads, i can't just trade ads with someone, saying I'll give you space for an add on my site if you give me space on yours? Or can i have ads on my site paying for the ads on other sites? Or would i lose money in that process? Thanks for responding.

Jed wrote:
>I ... want you to be able to download it off the internet for a price. How would that work?

However you make it work. Have you read my article on publishing yet? It's not much, but it'll get you started. It's at http://www.sloperama.com/advice/article60.htm.

>Do I contact a distributing company,

I gather that you're a minor. You probably don't do anything without going through a legal adult (probably a parent), at least for the time being.

>or can I just trade ads on the internet for ad space on my site?

Anything is possible.

>And can i just put up the site with PayPal and just start selling immediately?

Sure. Any legal adult can do that.

>And what about Terms and Agreements? Am I allowed to put something in there that says you can't sue me?

Of course, you're allowed to do whatever. But language like that isn't binding on anybody. Anybody can sue anybody for any old reason. I recommend you buy a book from Nolo Press. Just go to nolo.com and browse. Then as soon as you are ready to go into business, you need to have the money to hire a lawyer. Until you have the money to hire a lawyer, you aren't ready to go into business. It's really that simple.

>Can I take another Terms and License agreement, take it and change it a little to adjust to my needs?

Yes. You can. Legal agreements are not copyrightable. But remember, anybody can sue anybody for any reason.

>And, when i distribute it, where will my games go?

To the place where you distribute them. Duh. (^_^)

Quote: Yes. You can. Legal agreements are not copyrightable. But remember, anybody can sue anybody for any reason.

I was under the impression that the specific verbiage could be copyrighted. Got a source for that, Tom?

-Ed

Like most copyright questions, the answer to the contract as copyrightable subject matter question is "it depends."

You can find an interesting discussion on it here if you're interested. According to Nimmer, there's no direct argument against copyright protection if the documents are sufficiently original/creative. However, one counter argument is that certain contract language is necessary to achieve specific legal effect. An example is the "work for hire" language in most independent contractor agreements.

EULAs and ToS's that contain language limiting legal liability are usually enforceable. Almost all software licenses contain "AS IS" language to limit liability against any implied or express warranties of merchantability, for instance. It depends on what kind of suits you want to protect yourself from. Some liability you can limit. Other types of liability, you can't. You can't fully limit the licensee's ability to seek legal remedy, but you can, for instance, have an arbitration clause. Arbitrations and mediations are cheaper and easier to deal with than full court proceedings, they encourage resolution, and they are typically enforceable in "shrink wrap" and "click through" agreements.

In every instance, you'll need to hire a lawyer to handle claims brought against you. If someone sues you and your agreement contains an arbitration clause, they can still bring the action in state or federal court. You'll have to file a motion to have it removed to arbitration.

Best of luck!

Quote: Original post by Edward Ropple

Quote: Yes. You can. Legal agreements are not copyrightable. But remember, anybody can sue anybody for any reason.

I was under the impression that the specific verbiage could be copyrighted. Got a source for that, Tom?

-Ed

(reminder: this is all US centric)


As madelaw's post starts to explain, the general rule is that "purely functional" speech is not covered under copyright protection.

Legal boilerplate is one example of purely functional text, as are phone directories.

Incidentally, the same is true for source code interfaces and even a surprising amount of compiled code.

See the 1992 case "Sega v. Accolade" for some fun details on that. If the source code, or even reverse engineered compiled code, is determined to be purely functional then it does not have copyright protection. Similarly, there was a recent case with Lexmark and Static Controls involving copying code. The court again ruled that the code to prevent cartridge reuse amounted to a purely functional interface, and therefore was not covered under copyright.




Finally, I'd be careful with Madelaw's comments on Tos and EULA. The legality varies within each state and within different areas of the country. For example, the 2nd Circuit Appeals has found that sale amounts to ownership of a copy. The 9th Circuit Court of Appeals has ruled both ways. Nearly all have said quite clearly in (Softman v. Adobe, Microsoft Corp. v. DAK, Novell, Inc. v. CPU Distrib., Inc. ...) that a single payment for a perpetual (or functionally perpetual) license to use a shrink-wrapped commodity software amounts to sale of an instance and not a grant of license. Yet they have also held that licenses apply in other cases. They have also held that uncopyable media must be replaced for a reasonable cost in order for a company to maintain their greater-than-copyright license terms. In one case (I forget which one) a company sued under both Washington state's law and under the federal law. They lost both the federal court and the 9th Circuit Appeals, yet won within the state under a nearly equivalent state law.

EULAs and ToS agreements on software are currently a nightmare for everybody (including the lawyers!) with the exception of the legal financial sheets. That will continue to be the case until it eventually hits the US Supreme Court.

Your words of caution are appropriate, but all the same, it's probably safer to have an EULA (with an appropriate severability clause) than not. It's equally important that the EULA not be improper to the point where it constitutes a contract of adhesion. While the rulings are in flux and UCITA hasn't been adopted in the majority of jurisdictions, the availability of the defense of a disclaimer only exists if you have the disclaimer in the sales agreement and/or EULA.

I wouldn't recommend simply using someone else's EULA unless you clearly understand what's in there and what you're trying to protect. As frob suggests, there's no guarantee that the license will be enforced-- however, the SoftMan v. Adobe decision that I believe he's referring to relates primarily to the limitation on resale and the applicability of the first sale doctrine as opposed to the implied warranty of merchantability.

Ok, thanks guys. You know of any good distributing companies?

Quote: Original post by Jedimace
Ok, thanks guys. You know of any good distributing companies?

Have you read my article on publishing yet? It's not much, but it'll get you started. It's at http://www.sloperama.com/advice/article60.htm.