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Deletions & Archiving at Nexus Mods


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1 hour ago, Gruffydd said:

An interesting idea that I had while responding to some posts over at the Nexus...

An argument could be made that the changes there are commercial in nature. Collections - in addition to providing a service that many mod users enjoy - appear to be designed to increase sales of Premium Member subscriptions, for which prices have just been increased and the "lifetime" option removed. All of the arguments against why opt in/opt out or authors being able to delete old versions of their mods or remove them entirely appear to be based on such activities breaking the new business model. And the service itself adds a convenience function of one-click installation that is only available to Premium Member subscribers. In other words, the company is instituting changes that are apparently specifically designed to increase revenue, while at the same time explicitly claiming eternal publishing rights to mods hosted on their site to use with this new business model.

Given this, I think an argument could also be made that any mods hosted there are now being used commercially, and as a whole this commercial use is specifically designed to generate profits for the site.

I'm starting to think that the issue is no longer do I want or not want to have my mods hosted there, but can I legally allow my mods to be hosted there and still meet the licensing obligations on the assets (fonts, images, textures) I am using. A good number of them are specifically licensed to me for non-commercial use only.

on the face of it sounds feasible, I would however think they would have had their legal department check it out before this stage.

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15 minutes ago, Uncus said:

on the face of it sounds feasible, I would however think they would have had their legal department check it out before this stage.

I'm not so sure on that... it doesn't really affect them directly, as they're not the ones with the non-commercial use only licenses.

I'm the one with the licenses, so if I then license my mod to the Nexus by posting there, and they're considered commercial use, I'd be the one in violation.

I'm also not sure how much they're sending through legal at all, since the whole "we can change the ToS any time we want and it's your responsibility to spot when it changes, but as soon as we change it if you use the website you're agreeing to it" thing has lost big in a number of court cases, including one where the judge declared the entire ToS invalid because, since the ToS could change at any time without notice, it was in his words "illusory and therefore unenforceable". But that's a different issue....

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2 hours ago, Gruffydd said:

any mods hosted there are now being used commercially, and as a whole this commercial use is specifically designed to generate profits for the site.

But hasn't this been the case for many years now?  Robin has been running a business with paid employees at least since he began hosting mods back in 2006.  At that point the site stopped being a small forum-only fan site run by a teenager from a computer in his bedroom and gradually turned into, as he says, a "fast-growing company" with a "modern office". 

Now I do not know the legality of what he is doing, and I am not arguing either for or against it, but I do know that he couldn't afford to host 4.8 billion files unless the site was a profitable business.

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1 hour ago, Gruffydd said:

I'm not so sure on that... it doesn't really affect them directly, as they're not the ones with the non-commercial use only licenses.

I'm the one with the licenses, so if I then license my mod to the Nexus by posting there, and they're considered commercial use, I'd be the one in violation.

I'm also not sure how much they're sending through legal at all, since the whole "we can change the ToS any time we want and it's your responsibility to spot when it changes, but as soon as we change it if you use the website you're agreeing to it" thing has lost big in a number of court cases, including one where the judge declared the entire ToS invalid because, since the ToS could change at any time without notice, it was in his words "illusory and therefore unenforceable". But that's a different issue....

I can definitely confirm this. Somebody else looked up Terms of Service protocols on a legal website, and found that, according to said website, if a Terms of Service includes a "unilateral provision" stating that the company can change it willy-nilly and not tell a soul, then the TOS is entirely unenforceable.

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8 hours ago, Pseron Wyrd said:

But hasn't this been the case for many years now?  Robin has been running a business with paid employees at least since he began hosting mods back in 2006.  At that point the site stopped being a small forum-only fan site run by a teenager from a computer in his bedroom and gradually turned into, as he says, a "fast-growing company" with a "modern office". 

Now I do not know the legality of what he is doing, and I am not arguing either for or against it, but I do know that he couldn't afford to host 4.8 billion files unless the site was a profitable business.

Well, to me the difference is that when the site was simply a distribution site, then the mods themselves, as property of the individual mod authors, were not being used commercially by the mod authors. Since the Nexus was just a distribution site, and the mod authors had the final say in when, where, and how a mod was distributed, a solid argument could be made that the mods themselves were noncommercial, and that the site made its money not on the mods, but on its memberships and ad sales.

However, now that mod authors no longer control their work there, the Nexus is saying "these mods are ours to distribute", and they're putting them together into collections to both change how they are distributed and to encourage people to buy newly-pricier memberships (because they get the one-click button). So now, the mods are needed for the collections, and the collections are driving the business model, and the business model is designed to increase profits. They have effectively become a publishing house instead of a distribution center, and that's a pretty clear step in the direction of commercial use of the mods.

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  • 2 weeks later...

I hadn't actually read the CK EULA lately, so I'd forgotten this bit...

2. GAME MODS; OWNERSHIP AND LICENSE TO ZENIMAX
A. Ownership.  As between You and ZeniMax, You are the owner of Your Game Mods and all intellectual property rights therein, subject to the licenses You grant to ZeniMax in this Agreement.  You will not permit any third party to download, distribute or use Game Mods developed or created by You for any commercial purpose.
(emphasis added by me)

I asked in the forums at NexusMods if it is even permissible under the Bethesda CK EULA for Bethesda mods to be hosted on NexusMods now under the current system, which is obviously (to me at least) commercial use, asking for someone to please give a rational reason why it is permissible (because I like using mods, specifically for Bethesda games) so I don't have to worry about it.

Within a couple of posts, I was informed by a moderator that it "didn't impact" the EULA, giving no reasoning as to why, and the thread was closed.

This does not instill me with confidence. I hope Bethesda doesn't see this as an opportunity to try to shutter the main competition for Bethesda.net. Because unless someone can give me an even remotely reasonable logical reason why this doesn't violate the EULA, I've got to think that it does....

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I'm aware of what the argument has always been. In fact, until last month I'd have been making that argument myself. As with most other mod sharing sites, the relationships were between the authors and the users, and the Nexus was just the medium. The mods themselves were not being used in a commercial manner, and income was derived from providing the medium in which authors and users could connect.

Donation points for me are also not the issue.

The issue - what has changed - is that the relationship is no longer between the author and the user. Now the author uploads their work, and the Nexus claims all rights to it, including distribution, in perpetuity. The author can even be banned or choose to delete their own account, and the mods remain. They can't be deleted unless the Nexus says so, and they've already shown that will only happen in very rare circumstances. They can't be edited by the author, because Nexus functionality only allows an update, and the old version remains alongside the new version. Even "hidden" or "archived" mods are still available to anyone who can get the proper codes for the mod and version they want. The mods are no longer the author's to control, distribute, or remove, as all management of them has been "licensed" to NexusMods the moment they were uploaded.

NexusMods is doing this - has stated so explicitly - in support of their new business model, which is designed - again stated explicitly - to among other things increase traffic to the site. Increased traffic will result in increased profits, either through increased ad revenue (free users) or increased subscription fees (paid users). At the same time, subscription fees have been raised - significantly - for the first time in years, directly coinciding with the rollout of the new product, with in-demand functionality in the new product (the one-click download of an entire collection) tied specifically to said subscription.

NexusMods is now in the business - again explicitly stated - of distributing the mods, and has stated that they have distribution rights for eternity because their ToS says they do, and authors agreed to the ToS (as stated in the ToS) the moment they used the site. Whether distributed through one-click download of collections, through self-download from the list for unpaid users for collections, or individually from single mod pages, it's no longer the author doing the distribution. Now that the deadline is over, this applies even if the mod author for whatever reason no longer wants their mod on the site. The answer is now "No, we're not removing it. Doing so would cause problems for our new product, and you licensed your mod to us to use how we want."

So, they are a business. In fact, they are the largest business of their kind on the planet. They are being run as a business, with paid employees and everything else that goes with being a business. They are not a non-profit. They are no longer serving as intermediaries between the authors and users, and are now in the business of directly distributing the mods to the users themselves.

How can we see this as anything other than them distributing the mods provided ("licensed") to them for commercial purposes?

Does this not make them a third party (not Bethesda, not a mod author) distributing mods controlled by them (not the mod author) for commercial purposes? And are we, the users of the CK, not explicitly prohibited from allowing our mods to be distributed by a third party for commercial purposes?

Please, someone find the flaw in my reasoning here, because I really don't want this to be the case.

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