Announcement re: commercial pre-release screenshots rule

[nwallace]

After any legal action threat from EB ideally UKTS should have sought legal advice on the matter immediately.

I know we have gone through this all before but:

UK Libel law for idiots http://www.urban75.com/Action/libel.html

There is also a defence of 'fair comment' which is somewhat vague but is basically there to stop someone being sued for saying they don't like Marks & Spencer or McDonalds or Piers Morgan.

You are allowed to say that - even if you were a famous star or a very persuasive writer and it could damage them financially. That's the law.

However libel does not extend to the dead. Nor is being abusive libelous.

So I can say "Keith Moon was a smackhead lower of the highest order" and it's no problem. In fact I could say "every human who ever existed was a smack dealing, gun running, uncle."

Defamation act 1996 http://www.opsi.gov.uk/acts/acts1996/1996031.htm

Responsibility for publication.

1. - (1) In defamation proceedings a person has a defence if he shows that-
(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

Defamation (syn: Libel)

Communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person

So when is criticism libelous?
When is blocking someone illegal discrimination?
Do EuropeanBahn even have a reputation that can be defamed?
Would the law courts even bother to look at the case?

The site http://www.swarb.co.uk/lawb/defGeneral.shtml:
Puts it as:

In general, mere abuse is not defamatory, but it can take a clever person to insult another without straying over the line into defamation. The better the insult, the closer to the edge.

My 2p: If magazines can publish negative reviews about software then what can EB do? If someone posts a comment about a piece of software expressing their opinion such as "I think that the trees aren't very good" is that fair comment, I suspect "EB are a really bad company who have created really bad software no sane person would buy it" is defamitory though.

[johndibben]

After any legal action threat from EB ideally UKTS should have sought legal advice on the matter immediately.

Would the law courts even bother to look at the case?

Thanks for clarifying the point. I'm sure those involved know these facts by now but members may not. They may not also know that threats (implicit and implied) are nothing new to Matt. Unfortunately website owners have to deal with such things.

The answer to the question has to be almost certainly no and it goes with the territory.

I've been threatened on these forums and ignored it.

It has to be understood that people react very differently to perceived provocation as we've seen this week. Some go off all guns blazing. Some take so much and then *boom*. We know the score by now and can react to it accordingly.

One thing is certain, throw poo around and it will come back at you. How many of us are completely innocent? I'm certainly not

Cheers

John

[AndiS]

Defamation act 1996 http://www.opsi.gov.uk/acts/acts1996/1996031.htm

Responsibility for publication.

1. - (1) In defamation proceedings a person has a defence if he shows that-
(a) ...,

(b) he took reasonable care in relation to its publication, and

If you see the owner of the forum as a publisher (which is reasonable), then by that statement above you can conclude that he must take "reasonable care" to prevent defamation, which is exactly what moderation is for.

Defamation (syn: Libel)

Communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person

Here the important word is "false". If you can show that a statement is true, it is not defamation, even if it is a very negative statement.

My 2p: ... If someone posts a comment about a piece of software expressing their opinion such as "I think that the trees aren't very good" is that fair comment, I suspect "EB are a really bad company who have created really bad software no sane person would buy it" is defamitory though.

I think that is the most important part and this line was never crossed (IMHO). If I say "X sucks" on this forum, I get problems independent of what X is (and that is a good thing).


However, we must not forget that there is another legal threat: That of favouring other groups over EB. Here I think the "quality" token is the key. People at UKTS are obviously critical in the positive meaning, they point out potential flaws in anything. Just look at the Kuju thread. Now EB took that negative in the past (in contrast to Kuju) and it cost the moderation team enormous effort to find a thin line between extreme censorship and upsetting EB. I for one saw several issues on the screenshots which EB published (pageants field) which I did not post to help the moderation team in their appeasement policy.

Now that it proved impossible to discuss EB products in the normal way, I think that not discussing them at all is the best solution. If EB is not allowed to post here (in official capacity), but we are allowed to say anything about their product, and since it is likely that a majority of objective statements will tend towards the negative side, then that might seem unfair, because other groups are allowed to defend their products.

My guess is that making it an official rule not to discuss EB and EB products (in the future, not in this thread). For the next weeks, nobody will feel like that anyway, but later there will be innocent newcommers which might trigger the next round. So politely pointing them to the EB forum would be the best solution for me.

Now you can say "no another rule!" but this rule can take time to formulate and by making it a forum rule and not a silent agreement of some of us, Matt demonstrates will to provide a fair ground which might help if any thread should ever be taken any further.

[johndibben]

As EB have produced half of the UK trainsimming add-ons, I'm wondering where they fit in to things now?

I have add-ons from various groups and while I have my obvious favourite , I enjoy the variety of styles.

Quality control in trainsimming isn't like that of fruit and veg.

There's other issues such as frame rates which are important. Ensuring products work straight from the box without patches would be of enormous assistance in wideneing appeal given we're told the vast majority of customers don't visit forums.

There's clearly room for improvement in standards and quality but I would suggest it is very hard to define. I suggest opening a new thread or posting here to find out how similar or diverse they are. What do we look for in a an add-on? We're the customers

Cheers

John

[jimmyladd]

As EB have produced half of the UK trainsimming add-ons, I'm wondering where they fit in to things now?

Cheers

John

How do you come to that conclusion John? As far as I'm aware, they have produced L2B, WCW and Pagents Field. Thats hardly half is it? or have I missed something????
Cheers
Jim

[johndibben]

Probably not

In terms of routes:

3DTS: 2

BA: 2

MT: 1

FD: 1

EB: 3

A third.

Think I might've missed an early Branch Line Pack but never had it and not sure who made it. 3DTS possibly? Apologies if I'm wrong

[Crosstie]

After reading the UKTS statement about the events that caused this whole problem, it struck me as very odd. I have only a layman's grasp of libel laws but I know that US sites would not face this problem.

Libel actions are very rare over here because the plaintiff has enormous hurdles to overcome. They (and the onus is on the person bringing the action, unlike in the UK) would have to prove:

1. The statement was patently untrue (factually).

2. The person making it knew that it was untrue before he/she made the statement.

3. Measurable damage was caused directly by the statement.(very difficult to prove).

4. When it involves someone or a company in the public arena, that there was "malice aforethought".

So, an opinion, like "this person is an idiot" or "this author has a very poor command of English" or "their hamburgers taste like cardboard" or "this route has a lousy track profile" can never be libelous.

I suppose that's why these high profile actions by celebrities against publications, for example, end up in the British courts.

Of course, this being a British site, I'm always very careful with my posts.

Stu.

[supergoods]

I have held off on giving my views on what has developed into a very depressing situation, especially as with the new simulators getting closer, there is less incentive to do the mammoth amount of work necessary.

The threat of a lawsuit is a fairly common tactic both here in the US and now, regrettably, in the UK also.

It is relatively easy to file a suit or to obtain an injunction, regardless of the merits of the case, where these tactics become effective is that it costs money to defend against even the most frivolous claims, usually big money too.

Therefore the threat of a suit has to be taken seriously and if some one feels his or ego is so bruised by critics, then this is the situation I believe Matt reacted to.

It is the CD distribution charges that seem to be at the core of this dispute, nothing is free and many sites do not offer this option of distribution for those who do not have unlimited broadband.

Matt does not have to tell us his economics in providing the CD distribution service, I doubt it makes much profit, especially if you take the time involved, but people who can only see the material costs, fail to realise the that time is not free and that the price asked is certainly well below that of a commercial CD.

Personally I do not build routes, structures, rolling stock or reskins, but contribute in other ways, most of which I hope are positive.

I do not care who uses what I contribute, all I look for is improvement in the simulator be it commercial or community.

Ian

[learnerdriver]

I was dismayed to read this thread. However, I suspect it is an indication that for many, what was once very much a hobby is now being turned into a business, either full or part-time.

Both freeware and payware contributors to trainsimming put in a huge amount of time and energy and it must be galling if after all the hard work, your efforts produce criticism. Whereas I believe Freeware contributors might be more entitled to express their frustration in the forums, payware contributors have to learn to be grown up entrepreneurs and realise that all businesses will be disliked by someone and that people will express negative views. The way to prevent such negative views becoming the generally accepted view of the business is to be proactive in promoting your business. MT's free downloads, and BA's positive attitude to reskins are good examples of giving something extra back to their customers, thereby fostering a good reputation amongst the customer base which will be more likely to buy the next product from them. Any payware producers who produce less than up to the mark products must expect their reputation to take a severe knock. If you have paid good money for something and are then disappointed by it, who can you moan to other than to those mates who share your hobby.

Matt has done an absolutely fantastic job in providing a central point of contact for those interested in UK trainsimming and indeed beyond the UK. But as I said at the beginning, what was once just a few hundred folks trying to understand and improve a computer game, is now becoming an industry.

I think that the idea of a payware producers association is both an excellent idea and a necessary next step as we move into the new era of the new sims. One of the many problems we have all had with MSTS is the physics, and payware producers must in the future pay more attention to this area than perhaps some have done previously. This is a highly technical area and one where the technical exchange of the raw data before conversion into computer code could be useful to the producers and to the ultimate benefit of everyone.

I do not know much about libel laws except that any actions are both very risky and very expensive to bring. From Matt's point of view, he might wish to take legal advice (if he has not already done so) to place UKTS into a limited company to avoid any personal liabilitties. This will of course add to his costs of running this site and we shall all have to contribute a bit more to ensure he is safe from losing his home.

Finally, I believe that a certain party who has caused all this furore in the first place may have scored a spectacular own goal. I for one will not be doing business with any organisation which takes such a high handed and seemingly unreasonable attitude to industry colleagues.

Matt, please know that you have the support of the whole community in this matter.

Chris

[NeutronIC]

Thanks Chris - I can confirm that UKTrainSim is wholely owned by Atomic Systems IP Ltd (as it has been since it's creation) - the company registration number is at the bottom of every page on the main site. I went in to this with a view to the long term right from the start, which is why I haven't afforded myself (or anyone else related to it) any of the nice shortcuts that can often be taken with much more hobbyist ventures.

It's clear that while we are maintaining the freeware community (for so long as they permit us, I don't for one minute believe that we control or own it) we are still expected to act in a professional manner in such matters as, to pick one topical subject, supply of commercial and community cd's, where I must build the infrastructure to provide these consistently, reliably, on time and to a good quality.

Thanks again Chris.

Matt.

[mickoo]

But as I said at the beginning, what was once just a few hundred folks trying to understand and improve a computer game, is now becoming an industry.

Chris

Indeed you are correct and those at the tip of the 'industry' need and hopefully will behave and adopt standard industrial protocal.

We ( all of us ) are no longer a band of merry souls jostling at the bar, the whole comunity has moved on from its early pubescant form to a early adolescence. Any person here who is a parent will see the striking simularities with there kin and no matter how parental you are there are times when you have to support your kin even if you think it wrong or misguided.

As Matt said earlier this was inevitable, recent events just cascaded the time table into a shorter span.

Best

Michael

[RONVKING]

While I only know what has been presented here I can firstly understand what Matt took the action he did. If any action does take place it would be his time and money that would be the victim.

As for EB's attitude I think it's shamefull, and that's a polite version. If you take this and their recent comment about their "Preferred Reseller Programme" I think they are scared of the other commercial suppliers of MSTS addon's, payware or freeware.

While I have two of their products it's unlikely I will buy anymore as I don't want to end up with a product that needs patching only to find out that the shop I brought it from is not a "Preferred Reseller" so I can't get a patch and that the shop wont refund what I paid either because its thier policy not to refund software that's been opened.

Anyway to UKTS I say, thanks for explaining the background and well done for having the guts to apologise.

Cheers Ron

[nwallace]

Large companies can get away with limiting their sales channels to certain outlets.

Small companies need every sale they can get, by alienating a large chunk of their target audience they are inevitably losing sales.

They have lost one sale on thier East cost product already, if i could I would appologies to Rob because I had been looking forward to it.

[buffy500]

Large companies can get away with limiting their sales channels to certain outlets.

Can they ?

I remember something about Tesco's and Levi's, and something about Levi's not wanting Tesco to sell them.
I think Tesco won the case so I am assuming that the EU decided Levi's could not control who sold their goods.

(Or it might have been about parellel imports)

[nwallace]

It was about Grey imports and Tescos lost

However it was only because of trademarks that Levis were able to stop Tescos from selling them.

Basically to sell the goods Tescos had to advertise that they were Levis (remember jeans have an advert panel on the back)

A company can control who they sell their goods to, but they can't control who that company sells the goods to.

Hence why Levis had to take the trademark route.
As Did SONY with the PSP Grey Imports

I was intending on reffering to the potential market sales rather than the legal implications.

There is as you suggest very little to stop Matt finding a supply of EB software and selling it. In fact unlike Levis and PSP there is no need to use the EB trademark to actualyl sell the goods and could go all blue peter with sticky tape over any trademark if needed.

For a large company Sony are a rather good example of a company trying to control the market and getting it wrong.

They screwed up with Betamax but only because JVC flooded the market with VHS machines.

They got it right with the PSP because everyone who wanted a PSP wanted a PSP and a Gameboy is not a PSP

The PS3 could be made available only through Dixons, Sony can afford to advertise that and direct the market to Dixons.

They don't loose a huge number of sales by doing that.

To pick on Rob again (sorry) What else does what EastCoast does? Nothing. There are people who know about it already and want the route (me) there is a large number of people who want such a route but don't know about it.

If it can't be advertised or sold here, so the people that only visit here may never find out about it. So those potential sales are lost.

Its all very well having PC World and Game on your approved seller list but chances are your only going to pick up the odd casual sale. And Im sure there were reports recently of hardly any Trainsim add ons being available from Game or PC World so it seems weird that those companies even bothered for such a small market.


I have wandered into a different topic which relates to commercial sales tactics in general and that could turn into a longer discussion more appropriate for the open forum