I guess I shouldn't be surprised, but... wow.

So, a while back, I eyeballed my own model of a Cryptic Dragon scout rifle and printed it in action figure scale on Shapeways. Then, I offered it for sale (like $6 I think) if anyone else wanted one. I think only one person actually bit. For the record, I've made maybe $2 on Shapeways, well below the threshold where they will actually disburse money to me.

Today, I get a message from Shapeways saying Activision has flagged me for copyright infringement. Legally, I get that I have no ground to stand on. But why not go after cosplayers? And other fandoms, like Star Wars, are full of fan-made shit that the powers that be are content to leave alone. To pour salt in the wound, a quick search of "Destiny" on the site brings up several dozen pieces of Destiny stuff, be it weapons, Ghosts, or medallions. Our own DBO/HBO-goer Mid7night has products on there.

My question is, have I been singled out? Or is it the beginning of a purge?

Grinds my gears.

I guess I shouldn't be surprised, but... wow.

So, a while back, I eyeballed my own model of a Cryptic Dragon scout rifle and printed it in action figure scale on Shapeways. Then, I offered it for sale (like $6 I think) if anyone else wanted one. I think only one person actually bit. For the record, I've made maybe $2 on Shapeways, well below the threshold where they will actually disburse money to me.

Today, I get a message from Shapeways saying Activision has flagged me for copyright infringement. Legally, I get that I have no ground to stand on. But why not go after cosplayers? And other fandoms, like Star Wars, are full of fan-made shit that the powers that be are content to leave alone. To pour salt in the wound, a quick search of "Destiny" on the site brings up several dozen pieces of Destiny stuff, be it weapons, Ghosts, or medallions. Our own DBO/HBO-goer Mid7night has products on there.

My question is, have I been singled out? Or is it the beginning of a purge?

According to the leaked contract everyone has seen, Activision does not own any of Destiny's IP. Bungie does. So unless additional rights have been assigned, or the agreement gives Activision the rights to police the Internet for violations of Bungie's IP... I don't know what to say.

Perhaps Activision holds some merchandising rights (toys, etc) that they believe your item infringes.

Right? That's what I thought too. It's bizarre.

The text of the email is as follows:

"I am sorry to have to be the bearer of bad news, but unfortunately we have received a copyright infringement notice for your model Destiny Cryptic Dragon Scout Rifle

It claims that you infringe the rights of Activision, who own the copyright to Destiny.

Therefore we have no choice but to remove your design by making it private at this time. Please do not make the design public without express permission from us or place any orders on the model. Doing so may trigger our repeat infringer policy.

Our full content policy is here if you would like to know more: http://www.shapeways.com/legal/content_policy. If you believe that this takedown is incorrect, under our content policy you have the right to challenge this takedown. Please refer to the content policy for information about what needs to be included in your counter-notice.

Thank you for your understanding. If you have any questions, please feel free to contact me at any time."

Maybe Activision is finally ready to release a toy line? (Not counting the ThreeZero Titan figure) That would be sweet, but it still seems heavyhanded to snuff out fan creations--and with the rarity and inconsistency of a lightning strike, no less. I just don't see how my thing infringed worse than others. People's replica Ghosts, for instance, compete with a physical object released in a special edition of the game. That I would understand. But my tiny plastic gun has yet to present a threat to anything they're selling. Just... weird.

Right? That's what I thought too. It's bizarre.

The text of the email is as follows:

"I am sorry to have to be the bearer of bad news, but unfortunately we have received a copyright infringement notice for your model Destiny Cryptic Dragon Scout Rifle

It claims that you infringe the rights of Activision, who own the copyright to Destiny.

That is absolutely false, at least according to everything I have seen and read. The entire point of Bungie going independent was to retain ownership of their own IP.

Are you sure you and Shapeways aren't getting pranked? Have they shown you the message they received and how it was authenticated?

Here's clause 6.2 on the leaked Bungie-Activision agreement. In this agreement, "Licensor" refers to Bungie, and "property" refers to Destiny:

Licensor shall retain all rights, title and interest (including all rights in the Intellectual Property related thereto or embodied therein and the right to seek damages for past and future infringement) in and to the Destiny Property and the Products and Conversions, including all source and object code, Game Assets, technology, engines, packaging and marketing materials, characters, settings, storylines, etc. relating thereto now existing or created by Licensor, Activision, an Activision Affiliate, a sublicensee, or any third party (collectively, the "Licensor Product Intellectual Property"), but specifically excluding (a) any Intellectual Property owned or controlled by Activision before the Effective Date; (b) any non-Game Assets solely developed by or for Activision; and (c) any improvements, additions, and modifications to and enhancements and derivatives of the materials described in the immediately preceding clauses (a) and (b) (collectively, the "Activision Product Intellectual Property").

I would shoot that back to Shapeways along with any link to the contract you can find. There are lots of them, as the story was widely covered.

Their content policy has a long thing about presenting a counterargument. I won't do that yet, since the next step after that would be whoever filed going for a court order (and I don't really want to get involved in that, poor college student that I am).

What I will do is ask for a copy of the infringement report, as that should contain all necessary information about who filed it and whatnot. I'll report my findings here.

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You used Destiny in the title. Probably why. It's a trademark thing. Make a new one and just call it the Cryptic Dragon Scout Rifle and you'll fare better.

That is absolutely false, at least according to everything I have seen and read. The entire point of Bungie going independent was to retain ownership of their own IP.

You of all people should know that the leaked contract isn't even close to the actual agreement right now.

You used Destiny in the title. Probably why. It's a trademark thing. Make a new one and just call it the Cryptic Dragon Scout Rifle and you'll fare better.

Call it "Ambiguous Wyvern Explorer Carbine"

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Yeah, don't use the name of the thing. I think I use "Destiny" in the titles of mine, but beyond that it's not anything game-asset-specific. You're recreating a 3D model of a thing they've paid someone to create a 3D model of (and called it the same thing), which is probably the sticking point.

Thanks to everyone for your comments. You're right, it's probably the name issue. I'll eventually resubmit it with a different name.

In the meantime, here's the response I got:

"Activision is claiming to be a licensee of Bungie and acting under the terms of that license. Since both the law and our content takedown process only requires Activision to assert under penalty of perjury that they have the rights to take down the model, we do not have access to the agreement itself. If you would like, we can ask the Activision representative for permission to share their email address with you. However, you should be aware that contacting Activision may reveal your real identity to them. In general, we do not share that sort of personal information with a third party without a court order.

That being said, I’m more than happy to ask for permission to share contact information.

You can also take advantage of our counternotice policy outlined in our content policy if you believe that the takedown request is in error. https://www.shapeways.com/legal/content_policy

I’m happy to try and clarify any of this if you have any additional questions."

Hm. Sounds... legit? Would definitely have to see the actual agreement to know for sure. What do you folks think, should I proceed to speaking with the aforementioned representative?

Thanks to everyone for your comments. You're right, it's probably the name issue. I'll eventually resubmit it with a different name.

In the meantime, here's the response I got:

"Activision is claiming to be a licensee of Bungie and acting under the terms of that license. Since both the law and our content takedown process only requires Activision to assert under penalty of perjury that they have the rights to take down the model, we do not have access to the agreement itself. If you would like, we can ask the Activision representative for permission to share their email address with you. However, you should be aware that contacting Activision may reveal your real identity to them. In general, we do not share that sort of personal information with a third party without a court order.

That being said, I’m more than happy to ask for permission to share contact information.

You can also take advantage of our counternotice policy outlined in our content policy if you believe that the takedown request is in error. https://www.shapeways.com/legal/content_policy

I’m happy to try and clarify any of this if you have any additional questions."

Hm. Sounds... legit? Would definitely have to see the actual agreement to know for sure. What do you folks think, should I proceed to speaking with the aforementioned representative?

This is interesting! You totally should ask the representative about it. I don't think they're going to sue you or anything, so you'll be fine. Or you could create a new email address with a pseudonym.

I've asked for his or her contact info. We'll see what happens. ¯\_(ツ)_/¯

If you do get sued we'll create a fun filled Destiny themed fundraiser for you. :)

If you do get sued we'll create a fun filled Destiny themed fundraiser for you. :)

I'll start modeling the 3D printed armor.... ;)

That is absolutely false, at least according to everything I have seen and read. The entire point of Bungie going independent was to retain ownership of their own IP.

You of all people should know that the leaked contract isn't even close to the actual agreement right now.

Actually I don't know any such thing, other than the fact that anything can be changed when you can't see what is going on, and the document is old.

The document lays out specific rights and responsibilities for both parties with respect to IP ownership. It sets out what each is allowed to do, and conditions under which these rights and responsibilities change.

If, for instance, Bungie had failed to ship a single Destiny game, the rights situation would have changed. That did not occur.

Ownership of its own IP was one of the central reasons for Bungie becoming independent again, and while Destiny was apparently delayed and changed a lot, nothing, not even Marty O'Donnell's departure, would trigger anything in the contract to change the ownership status of the IP, nor do I see evidence of a change in circumstances that would give cause for Activision to attempt to change those conditions, nor for Bungie to agree to such a change.

Such conditions MAY exist and we're simply unaware of them, but that is a far cry from saying someone should back down from an apparent bogus claim that may not even be from Activision at all, and probably isn't from Bungie.

I'm guessing that, if it is legitimate, someone in Activision's legal department is being overzealous and considers this creation to come under competing with toys that Activision either does, or plans, to market. That of course would be difficult and expensive to combat, even if on the face of it, the agreement we have seen does not allow it.

In an ideal world, whomever initiated the takedown would have to produce the basis for their claim (not just a form) that they own rights that have been infringed, rather than forcing the creator of this particular work to go to court.

You used Destiny in the title. Probably why. It's a trademark thing. Make a new one and just call it the Cryptic Dragon Scout Rifle and you'll fare better.

This is a good idea, although they may just be watching your account at this point. Sometimes it appears YouTube is also more apt to flag partial content matches when you use certain words in titles or video tags.

Thanks to everyone for your comments. You're right, it's probably the name issue. I'll eventually resubmit it with a different name.

In the meantime, here's the response I got:

"Activision is claiming to be a licensee of Bungie and acting under the terms of that license. Since both the law and our content takedown process only requires Activision to assert under penalty of perjury that they have the rights to take down the model, we do not have access to the agreement itself. If you would like, we can ask the Activision representative for permission to share their email address with you. However, you should be aware that contacting Activision may reveal your real identity to them. In general, we do not share that sort of personal information with a third party without a court order.

Since both the law and our content takedown process only requires Activision to assert under penalty of perjury that they have the rights to take down the model

and this is where the rubber hits the road, screwing every little guy ever. All the company with the big legal department and the deep pockets has to do is dare you to go to court, and now it will cost you way more than its worth to prove what you already know: that the claim is most likely bogus.

Section 6.2 says that Bungie reserves all rights, including the rights to seek damages, to the property. The rights granted by Bungie to Activision do NOT include the rights to seek damages EXCEPT when it includes property that Activision owned prior to the agreement. In fact, the agreement even assigns all rights, including the right to seek damages, for materials created by Activision but based on the property:

Licensor shall retain all rights, title and interest (including all rights in the Intellectual Property related thereto or embodied therein and the right to seek damages for past and future infringement) in and to the Destiny Property and the Products and Conversions, including all source and object code, Game Assets, technology, engines, packaging and marketing materials, characters, settings, storylines, etc. relating thereto now existing or hereafter created by Licensor, Activision, an Activision Affiliate, a sublicensee, or any third party (collectively, the "Licensor Product Intellectual Property"), but specifically excluding (a) any Intellectual Property owned or controlled by Activision before the Effective Date; (b) any non-Game Assets solely developed by or for Activision; and (c) any improvements, additions, and modifications to and enhancements and derivatives of the materials described in the immediately preceding clauses

Activision, on behalf of its Affiliates, sublicensees, agents and contractors, hereby assigns to Licensor the sole and exclusive ownership of all right, title and interest (including rights in Intellectual Property and the right to seek damages for past and future infringement) in and to all Licensor Product Intellectual Property created by Activision, its Affiliates, sublicensees, agents and/or contractors, whether solely or jointly with Licensor or any other person, without any payment of compensation; (y) Licensor shall own all rights to improvements, additions, and modifications to and enhancements and derivatives of the Licensor Product Intellectual Property; and (z) Activision shall, upon Licensor's request, take any step that Licensor may reasonably require to ensure that, as described in clauses (x) and (y) above, all Licensor Product Intellectual Property created by Activision or its Affiliates, sublicensees, agents and/or contractors, whether jointly or solely with Licensor or any other person and improvements, additions, and modifications to and enhancements and derivatives of the Licensor Product Intellectual Property created by Activision or its Affiliates, sublicensees, agents and/or contractors, whether jointly or solely with Licensor or any other person, are assigned to Licensor, including the execution and delivery to Licensor of an assignment of rights with respect to such Licensor Product Intellectual Property substantially in the form specified by Licensor. "

Unless this language was changed or this portion of the agreement superseded, the only place Activision can hang a claim is (b) above. They would probably claim that toy weapons or action figures fall under "derivatives of the materials". In other words, they might one day want to make toys and so your item detracts from the theoretical future value of theirs.

I'd call that overreach, but IANAL.

If you do get sued we'll create a fun filled Destiny themed fundraiser for you. :)

This will turn into a hilarious dark comedy if DBO accidentally ruins tadboz's life. O_O

If you do get sued we'll create a fun filled Destiny themed fundraiser for you. :)

This will turn into a hilarious dark comedy if DBO accidentally ruins tadboz's life. O_O

It's ok, Speedracer is a lawyer. I'm sure it'll all work out ;)

That's the great part of having this variety of professions all in one place. :P

I Am Not A Lawyer?
I Am Never Arguing Lingo?
Illusions Are Not Always Laughable?

Pretty sure it's the former.

Or possibly just TMI.

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If, for instance, Bungie had failed to ship a single Destiny game, the rights situation would have changed. That did not occur.

They actually did fail to ship in 2013, which was what the contract stipulated. Since this did not happen, I can 100% guarantee the terms changed. Whether that included anything with regards to IP neither you nor I can say.

Speedracer has confessed to being one several times. We still play with him.

So, just to keep you in the loop, the Shapeways rep said she would contact the Activision rep. Still no progress, but it's only noon on Monday.

I have a sneaking suspicion that they just want me to go away, though. :P

Speedracer has confessed to being one several times. We still play with him.

you do, I don't. :-P ;-)

of course I rarely see him on anymore... and.. I'm only on about once maybe twice a week. so that might explain it. :)