Are you going to pay a lawyer to fight them in court over this? If not, it is the law for all practical purposes.
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I think this might miss the point, somewhat. For a company to make a gaff like this doesn't say much about their potential for longevity. For a company to knowingly make a "gaff" like this doesn't say good things about their trustworthiness. Either way, it clearly expresses a willingness to attempt to impose illegal contract conditions which is a blatant display of disrespect for "local law" and an open rejection of democratic principles. All of this speaks to worthiness of trust, or lack thereof.
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I'm concerned about practical outcomes. Regardless of legal definition, it's a well-established observation that any opportunity to make money changes behaviour.
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I agree, money does influence behaviour but I think it is the system of monetary acquisition which determines whether that influence is good, bad or indifferent. If authors could not earn money from writing, then the masterpieces of contemporary authors like Peter F. Hamilton and Kevin J. Anderson may have, in all likelihood, never seen the light of day - to say nothing of other gifted authors like Jack du Brul, & R.A. Salvatore. With better financial support emanating from his literary efforts, it is entirely possible that J. R. R.Tolkien might have churned out several more trilogies in his lifetime. However, with no money behind an activity, nobody can afford to take it seriously.
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When people compete over money, on the other hand, it may be good for price but the effect on quality and community is truly atrocious. You're right, people tend to withhold support from one-another when operating under the assumption that someone-else getting an edge over them cuts into their market share. Although this is characteristic of a free market economy, the magic of the niche market economy resides in a focus on serving the needs of a given niche (which includes pricing considerations). This needs-based focus renders price and market-share competition redundant along with all of its nasty side effects. In a similar vein, the open source styled donation system also eliminates this sort of counter-productive price and market-share competition but its weakness is that, in reality, far too few people are prepared to put their money (even their spare change) where their mouth is - at least, that is what I have observed in other fields. Consequently, very few open source projects are driven home to full completion of specification.
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However, I am
very curious to see how the donation system fares in the modding community.
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In light of my rather anecdotal experience of how well donation-for-content systems perform, I tend to think that an economic system reminiscent of the novelist's economy would be beneficial to both the quality and quantity of mods available. Because such economies depend heavily on a complete absence of any form of plagiarism, the key to making something like this work is not to discourage the making of money but to discourage the tendency of some people to plagiarise the work of others. The economic ethic of the niche market is very simple:
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Don't even bother make a cheaper widget until you can make it a spectacularly better widget..
However, until companies other than
Bethesda begin to develop computer-based RPGs seriously, then it is really up to
Bethesda to choose whether or not they are going to invest their own effort to foster such a new niche-market economy. This would require a sound understanding of what makes a plug-in merchantable in the first place. If
Steam freely feed
Bethesda with information concerning which mods actually get donations, then it makes the whole open-source styled donation system a very good first step in the process of establishing a viable niche market economy serving the RPG community.
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The next step, once the concept of plug-in merchantability is accurately defined, would be for
Bethesda to set up a publishing house where, using royalty rates and pricing for officially endorsed plug-ins, as agreed on with the modding community, they could profit directly from the better plug-ins
and maintain great relations with the modding community at the same time. The fact that some money would actually find its way back to modders who completed good projects would encourage modding which, in turn, would fuel sales and profits for
Bethesda as the game gets taken into new market niches by modders who inject new concepts into the game. As to the "problem" of managing hundreds of thousands of accounts, in this day and age, it's a non-issue. Setting up an unsupervised automated split-payment system is dead easy. You simply sell the product in two parts; one via the author's account and the other via the publisher's account. The esp/esm and bsa system is ideal for this because an officially endorsed plug-in could be served with
PayPal or
Amazon handling the merchant service for the esp/esm file on behalf of the modder and the bsa file, as a separate transaction, on behalf of
Bethesda Publishing. It is worth noting that either of these merchant-service companies might be quite happy to handle any payment splitting themselves, given the large turnover and high potential for solid transaction fee returns.
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There is, of course, no obligation on
Bethesda to make all this effort, but if they don't someone else eventually will - and probably won't do half as good a job in the process - maybe serving up a vastly inferior game engine in the process. The failure to comprehend the role of people who develop material to tun on a given platform, and their command of the market for that platform, is precisely how early Apple/Macintosh architecture wound up being totally trounced (in the marketplace) by vastly inferior IBM architecture. And, as history shows us time and again, that's just how the cookie crumbles.
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[EDIT]Fixing my truly atrocious spelling & grammatical gaffs[/EDIT]