Following our story the other day about the Apogee license agreement, our ever-helpful friends at Blue's News gave Scott Miller an opportunity to obfuscate the issue with some misleading 'assurances'.

This is a response to his comments, which are quoted here in their entirety and addressed point-by-point.

A standard response to the madness! :-)

I must say this is just entirely too funny. And a sad commentary on how little most people understand law.

What's really funny is that Scott criticises people for not understanding the law, but he then attempts to exploit that supposed ignorance...

I will say that anyone who thinks we are trying to control reviews and such are jumping on a bandwagon without really giving it proper consideration. Legally, that's entirely impossible -- but then, most people know less about law than they do making ice. ;-)

This is correct. But misleading.

It is unlikely that Apogee would sue someone for publishing a negative review. Doing so would be a public relations disaster and would go against free speech and fair comment laws.

Instead, the license is constructed in such a way that anyone using an Apogee trademark must agree in advance not to use it in any "negative context". If the trademark if then used in, for example, a critical review, Apogee could sue for breach of contract.

The license agreement circumvents the issue of free speech by creating a separate issue of contractual obligation.

This policy/agreement simply allows fan sites to use our trademarks and copyright character art, etc. Most developers/publishers do not allow this at all. End of story.

I'd be interested to hear one example of a developer or publisher that does not allow reasonable use of trademarks and artwork on web sites or in magazines. Doing so would be commercial suicide as they would lose the vast majority of their free advertising.

We are providing a way for them to do so, though. Lay people, of course, read this policy and become panic mongers.

Other publishers and developers also provide a "way for them to do so" without resorting to such restrictive license agreements. They just... let them. No legal hassles, no contracts to sign, no agreements to adhere to. They just shut up and let them get on with it.

Scott implies that there was some form of pressure on Apogee, from people who run web sites, to create this license. I very much doubt this.

This policy is only for owners of web sites who wish to use our trademarks and copyrights, like www.3dportal.com. Somehow, someone found a link to it and of course jumps to the wrong conclusion, because...hey...it then can become a hot topic. Yippee. Don't we live in a fun society?

When I read this over on Blue's, I questioned the use of the words "somehow" and "found", as these words implied that the agreement was meant to be hidden. Apogee's Charlie Wiederhold responded to this, stating:

That's exactly what it is supposed to mean. This is not an agreement that is intended for the general public, for people who read the 3D Realms news page, nor for the people who play 3D Realms/Apogee games.

This is extremely worrying. Not only are web sites being held to an extraordinarily restrictive agreement that forbids negative commentary, but we, as consumers, were never supposed to know about it.

Surely we have a right to know that a software publisher is dictating what journalists can and cannot say?

Back to Scott:

We might need to make it more clear that reviews are--of course!--not what concern us (nor could we legally prevent negative reviews--that's patently absurd).

Again, correct but misleading. Apogee could not directly prevent negative reviews as such, but they could sue for breach of contract and the threat of that would be enough to make many people behave in an Apogee-friendly way.

It's also worth noting that it is not just negative reviews that are forbidden, it is the use of Apogee trademarks in any "negative context". That would include reporting of bugs, which I would personally assume is the greatest concern.

Apogee no doubt believes that Duke Forever will be an awesome game, but will likely have some teething problems. Inevitably, some journalists will be queuing up to slate it. After four years of development, Apogee will not want their game to lose sales because of bad publicity about bugs.

The hope is, presumably, that this license will give the more ferocious journalists a gentle nudge in the right direction.

It's a web site using our logos next to overly foul, abusive, racist, etc. language or art. For example, we would not allow our logos to be used on a porn site.

Back to important work... <g>

No comment about this.

Springer's Final Thought...

Let's forget about the legalities for a moment. Let's imagine that the world is a nice, sensible, lawyer-free place and the Apogee license could never be enforced.

The fact still remains that Apogee has created that license, and must therefore want people to believe that it can be enforced. Isn't that bad enough?