Deletions & Archiving at Nexus Mods

[ASXC12]

Just now, Sigurð Stormhand said:

I think you mean "ultimately a Cathedral vs Parlour debate", but in any case you're wrong. Wrye's essay is oft-cited but sadly rarely read. Whilst Wrye leaned towards what he called a "Cathedral" form of modding he was emphatic that no author should ever be forced or coerced into adopted open permissions. In fact, the only thing he insisted all authors should (not must) adopt was a provision allowing their work to be re-uploaded to other sites to prevent it being lost should one host go down.

Nexus has for a long time been a good steward of author's work and an author's write to choose - central to Wrye's original thesis. This is the reason it ultimately overtook the other modding sites - it made a point of coming down on the side of authors without being overly heavy handed and built up trust over a decade and a half. Then Robin went and did this for what are primarily financial reasons. The trust is now gone, so now mod authors are looking for competitors to Nexus mods so that Nexus no longer has a monopoly. It's worth noting that when Wrye published his original essay Nexus was one among a multitude of hosting options, probably already the largest but hardly dominant.

This is about author's consent, something Wrye recognised as essential for the health of the modding community.

Again, I am not going into this as that is not what I am trying to bring. I do not want to go into this as it is similar to most opinion-focused arguments; it will only go circular since it's based on opinion rather than fact.

I want to focus more on both sides coming to an agreement since that was the main point of my original comment. My main Idea was that both sides make good points; you with your belief of the creator rights and nexus with their belief in user functionality. The concept of collections is pretty useful, it allows inexperienced users to instantly hop into modding without having to learn shit tons of stuff beforehand; it would be a good way to bring more people into modding. I can also understand the perspective of modders since this does mean that people aren't going to their pages and that they now have less control over files. There needs to be more to the conversation than nexus bad or nexus good if we want to (hopefully) fix things.

[Sigurð Stormhand]

So, I believe this is the post that is getting everyone exercised. It was originally posted in the General Mod Author Discussion forum on Nexus. I wouldn't normally share material from there, but this is presented as an official statement from a site Admin, and it seems necessary to avoid confusion over what has actually been said. Frankly, I find the statements here contradictory. There has been no change to Nexus ToS, that is clear, yet this post implies Nexus does not actually enforce the ToS as written. Such a statement seems especially odd given them leaning into the ToS so hard in the recent controversy.

Historically, patches were not "tolerated", by Nexus. Rather, they were assumed to have permission from the original author unless said author filed a complaint, at which point they were taken down. An assumption of consent generally benefits the community and few authors scour Nexus looking for patches they haven't explicitly authorised, either individually or through the licence they uploaded their mod with. One could interpret this post as an attempt to "re-write history" despite Robin's statements that, following Gate gate Nexus would not allow un-authorised patches. Regrettably, I don't seem to have a copy of that post, though I think I snipped it before Bethsoft went down.

 

Frankly, this post by a Nexus Admin doesn't answer the original question asked, which is probably why it's caused so much controversy.

[Sigurð Stormhand]

8 minutes ago, ASXC12 said:

Again, I am not going into this as that is not what I am trying to bring. I do not want to go into this as it is similar to most opinion-focused arguments; it will only go circular since it's based on opinion rather than fact.

I want to focus more on both sides coming to an agreement since that was the main point of my original comment. My main Idea was that both sides make good points; you with your belief of the creator rights and nexus with their belief in user functionality. The concept of collections is pretty useful, it allows inexperienced users to instantly hop into modding without having to learn shit tons of stuff beforehand; it would be a good way to bring more people into modding. I can also understand the perspective of modders since this does mean that people aren't going to their pages and that they now have less control over files. There needs to be more to the conversation than nexus bad or nexus good if we want to (hopefully) fix things.

I'm sorry but you brought it up. I suggest you read Wrye's original essay on this: https://wryemusings.com/Cathedral vs. Parlor.html

If you do, hopefully you'll see how far the current champions of the "Cathedral" movement have strayed from his original vision.

I am, broadly, a Cathedral modder, I don't believe that mods should be taken down from the Internet and allowed to disappear, I'm generally in favour of unrestricted patching (except deliberate perversion). Despite that, I'll never upload another mod to Nexus until they abandon their current position and reform their ToS because that position is underhanded.

[Arthmoor]

47 minutes ago, ASXC12 said:

If you do want this site to provide a challenge to nexus, then you need to be open to what the opposing side thinks.

You seem to be misinformed as to the purpose of this site. It's purpose is not now, nor has it ever been, to offer a challenge to Nexus. It's purpose has always been primarily to be a home for the unofficial patch project, a haven for my own work, and for a place to gather knowledge and preserve it in a way that doesn't reek of politics.

That being said, I'm also not of a mind to turn anyone away who wants to come here either for the community to gather after the fall of the Bethesda forum, or to provide a home for their own mods in the wake of the Nexodus. This may not be a fully modern and convenient hosting platform, because IPS is a generic package intended for a wide variety of things, but it suits the purpose well enough and I'll do what I can to expand its capabilities if that's what people want.

29 minutes ago, Sigurð Stormhand said:

This is about author's consent, something Wrye recognised as essential for the health of the modding community.

This. So much this. Nexus has lost sight of what community leaders in the past had to say on these matters. Bully pulpits don't work.

[ASXC12]

1 minute ago, Arthmoor said:

You seem to be misinformed as to the purpose of this site. It's purpose is not now, nor has it ever been, to offer a challenge to Nexus. It's purpose has always been primarily to be a home for the unofficial patch project, a haven for my own work, and for a place to gather knowledge and preserve it in a way that doesn't reek of politics.

That being said, I'm also not of a mind to turn anyone away who wants to come here either for the community to gather after the fall of the Bethesda forum, or to provide a home for their own mods in the wake of the Nexodus. This may not be a fully modern and convenient hosting platform, because IPS is a generic package intended for a wide variety of things, but it suits the purpose well enough and I'll do what I can to expand its capabilities if that's what people want.

This. So much this. Nexus has lost sight of what community leaders in the past had to say on these matters. Bully pulpits don't work.

Thank you for that open invitation. I came here mainly to find out what was going on (and to grab open cities since I can't play skyrim without it lol). That being said, I came to this discussion to try and make some common ground for both sides to stand on since I'm seeing mud slinging everywhere I go. before I came here I was looking through a reddit post filled with the comment equivalent of a gladiatorial bloodbath. Comment after comment of modders and users lashing out at each other, neither going anywhere with their ideas. I want to at least try and help fix this issue since I grew up with skyrim mods and it hurts to see the community this fractured. This is the community I spent hours scrolling through when I was younger and to see people at each others throats kinda hurts. I don't care if the solution to this issue is competition, paid mods or even a discord call between modders and the nexus site owner (I still don't know his name lol); I just want something to break so this community can move forward and hopefully repair things.

Sorry for the text dump lol, I have a bad habit of "getting lost in the flow" of things.

[Arthmoor]

Well I can pretty much guarantee you that there will be no progress to be made in trying to get Robin to see reason. He's made it crystal clear that as far as Nexus is concerned, it's their way or the highway. So it shouldn't come as too big a surprise that numerous mod authors chose the highway.

[xrayy]

what nexusmods showed with their move is that quick commercial interests count more than a reasonable treatment of their community or relevant parts of it.  and it shows that  they are obviously incapable to add new features like mod packs to vortex with a solid plan and introduction of a compatible system around including all valid ideas and interests regarding modding. and they showed to be incapable to discuss this topic and their planned "quick shot" and the consequences with the community in an open and fair way and before the hidden/not announced system and tos changes.

i would call the nexusmods approach a "planned quick shot" through the backdoor with calculated victims for commercial reasons and with a main goal to push vortex in a short time. it was never planned as an idea to integrate all modders and to improve the system for all.

i needed the full grace period to realize that. but if you read the vision and see how nexusmods acted to implement this quick shot it seems this is an essential part of their strategy for the future (including the treatment and restriction of modders creative options). Many people seem to forget: creativity includes the right to delete or to destroy your own especially in the process of creation. if you do not grant this right as a mod hoster you will always stay in conflict with modders or they just omit you (if they have a valid choice instead of a 5 week grace period).

i ask especially all cathedral model supporters: who really needs an archiving system and a cut for mod deletion for mods in alpha or beta phase or with an obviously known high rate of erratic output or a high rate of new versions ? this is not good for modders and not good for mod packs. who measures the quality of a mod ? how is this point implemented in the vortex mod pack solution ? it is not the mass that counts for mod packs, it is actually the quality of a mod! so why no opt out as an essential method to increase quality ?  all this needs imho time and not a nexusmods vortex quick shot. my personal feeling: nexusmods has chosen and will learn it the hard way. it is just sad that they alienated mod authors on this way who trusted them for a decade instead of integrating and discussing their complaints. the discussion after the "vision" came much too late! 

 

[DayDreamer]

3 hours ago, Sigurð Stormhand said:

I suggest you read Wrye's original essay on this: https://wryemusings.com/Cathedral vs. Parlor.html

Thanks for posting the link. I'd been awfully confused about usage here of "Cathedral", as I'm a long-time Open Source participant (45+ years, since before the term "Open Source"). We have used Cathedral differently, as in The Cathedral and the Bazaar (see https://en.wikipedia.org/wiki/The_Cathedral_and_the_Bazaar).

I've always been a little uncomfortable with Nexus. My early Skyrim hosting was Steamworks (built-in the CK) and Dark Creations. But folks were re-posting my stuff on Nexus with somewhat different names, so it seemed best to use Nexus too and get ahead of the problem. Then Dark Creations went away, and the migration seemed fortuitous.

Nexus added Donation Points. Folks have re-posted various things with Donation Points turned on, even though I'd explicitly selected "You are not allowed to earn Donation Points for your mods if they use my assets". The most egregious is where they combined my nif changes with SMIM mesh and texture changes, even though both of us don't allow Donation Points for derivatives. There's no good enforcement mechanism.

On the other hand, I'm not sure that the "Parlor" model is even legal under the "first sale doctrine". But that's an Americanism, and Nexus is British-based.

I've given my modding contributions to be available to the general public for free. I'm irked when somebody tries to profit from bundles that include my works.

But I'm also at end of life, so don't have a lot of fight leftover for this issue.

[lmstearn]

1 hour ago, Arthmoor said:

So it shouldn't come as too big a surprise that numerous mod authors chose the highway.

Those of the living, yes. What about those who make mods, and then go away from modding for months or years, turning off all Nexus and related notifications? Or those who pass away? Their interests are mostly left out in the breeze- Nexus would sure to be making some kind of noise as to providing them more shelter as well, if they indeed cared.

[Gruffydd]

6 hours ago, DayDreamer said:

...

On the other hand, I'm not sure that the "Parlor" model is even legal under the "first sale doctrine". But that's an Americanism, and Nexus is British-based.

...

Not really applicable. The First Sale Doctrine refers to physical media copies of an intellectual property, a book or disc or suchlike, and allows the purchaser to resell that individual copy, but not to make additional copies.

[DayDreamer]

1 hour ago, Gruffydd said:

physical media copies

This is not correct. See 17 U.S. Code § 109. Just "copy". Any "copy".

We'd all granted a nonexclusive perpetual license to distribute copies. We knew that the distributor Nexus was paying for its infrastructure by ads and subscriptions. Once we've done that, there's no "recall" provision in the Act.

Normally, an artist who wants to retrieve all the copies of their work has to pay to collect them, at the current going rate. There are plenty of extant examples.

Nexus was generous enough to give notice of changes in their distribution model, and allow folks to rescind their license to distribute without cost.

Again, this doctrine is US, and I'm US, but Nexus is British. If somebody has a good grasp of British copyright law, that might be interesting.

[Gruffydd]

46 minutes ago, DayDreamer said:

This is not correct. See 17 U.S. Code § 109. Just "copy". Any "copy".

We'd all granted a nonexclusive perpetual license to distribute copies. We knew that the distributor Nexus was paying for its infrastructure by ads and subscriptions. Once we've done that, there's no "recall" provision in the Act.

Normally, an artist who wants to retrieve all the copies of their work has to pay to collect them, at the current going rate. There are plenty of extant examples.

Nexus was generous enough to give notice of changes in their distribution model, and allow folks to rescind their license to distribute without cost.

Again, this doctrine is US, and I'm US, but Nexus is British. If somebody has a good grasp of British copyright law, that might be interesting.

The DOFS is about the secondary market on ownable copies of copyrighted material.

For example, if you buy a DVD, you own that DVD. It is yours, and you can do what you want with that copy - view it, destroy it, sell it, whatever. But you don't own the material on the DVD, that's still owned by the copyright holder. You as the owner of the DVD have the licensed right to use that copy. You can't make and distribute copies.

Some have attempted to apply the DOFS to electronic media, but since there is no unique copy of it to be sold and transferred, this has not generally been successful. See Capitol Records, LLC v. ReDigi Inc. for an example.

It definitely does not apply in the current situation, because no distinct copy of any mod has been sold to anyone. No ownership has transferred. Licensing cannot transfer ownership, and grants no rights under the DOFS.

Here's some good info from the Department of Justice on the topic:

1854. Copyright Infringement -- First Sale Doctrine | JM | Department of Justice

[DayDreamer]

23 hours ago, Gruffydd said:

It definitely does not apply in the current situation

IANAL. However, I've briefed and argued pro se up to the state supreme court, and at the federal district and circuit. My areas of expertise have been FOIA, landlord-tenant, political redistricting, tax law, among others. I've been following US copyright issues for over 40 years, due to personal involvement in the Unix wars as a *BSD and Linux kernel contributor, and served as a subject matter expert in several cases. I'm also the former head of standards for Red Hat, and have spent much of my life discussing intellectual property law.

Please re-read my earlier comment about the Parlor model. The transaction was from the modder to the distributor, who has rights to copy.

Note that the EU has a contrary decision on the same subject. Now that UK is not part of the EU, we don't know the British status.

 

[Sigurð Stormhand]

5 hours ago, DayDreamer said:

IANAL. However, I've briefed and argued pro se up to the state supreme court, and at the federal district and circuit. My areas of expertise have been FOIA, landlord-tenant, political redistricting, tax law, among others. I've been following US copyright issues for over 40 years, due to personal involvement in the Unix wars as a *BSD and Linux kernel contributor, and served as a subject matter expert in several cases. I'm also the former head of standards for Red Hat, and have spent much of my life discussing intellectual property law.

Please re-read my earlier comment about the Parlor model. The transaction was from the modder to the distributor, who has rights to copy.

Note that the EU has a contrary decision on the same subject. Now that UK is not part of the EU, we don't know the British status.

 

First of all, At the time Britain left the EU all EU law was translated into British law. In any case, the parlour model does not seek to with draw every single copy of a mod when the modder "takes their toys home", it simply seeks to end distribution. It's also worth noting that, irrc, Nexus claims an "infinite" right to distribute etc. which is really robust legal language. Infinite means of distribution? Infinite copies? Infinite length of licence? It *should* say "perpetual and irrevocable" but Nexus has never been anything like legally robust.

[Gruffydd]

12 hours ago, DayDreamer said:

...

Please re-read my earlier comment about the Parlor model. The transaction was from the modder to the distributor, who has rights to copy.

...

 

There's no sale. There's nothing to re-sell. There is no "first sale" for there to be a right of. There is a licensing. The distributor in this situation has the licensed right to distribute to a third party, who has no rights to copy or redistribute at all, as the license is nontransferable, and only the owner of the copyright can grant such rights. Licensing is not ownership.

I'd list my past education and employment history dealing with copyright, but what's the point? I'm not trying to "win" anything, I'm more interested in clearing up misconceptions.

Since it doesn't sound like you read it, here's the applicable part of that DOJ link I posted. Hopefully this clears things up for you.

"The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.

Further, the privileges created by the first sale principle do not "extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it." See 17 U.S.C. § 109(d). Most computer software is distributed through the use of licensing agreements. Under this distribution system, the copyright holder remains the "owner" of all distributed copies. For this reason, alleged infringers should not be able to establish that any copies of these works have been the subject of a first sale."

[cevune]

On 8/23/2021 at 9:33 PM, Gruffydd said:

There's no sale. There's nothing to re-sell. There is no "first sale" for there to be a right of. There is a licensing. The distributor in this situation has the licensed right to distribute to a third party, who has no rights to copy or redistribute at all, as the license is nontransferable, and only the owner of the copyright can grant such rights. Licensing is not ownership.

I'd list my past education and employment history dealing with copyright, but what's the point? I'm not trying to "win" anything, I'm more interested in clearing up misconceptions.

Since it doesn't sound like you read it, here's the applicable part of that DOJ link I posted. Hopefully this clears things up for you.

"The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.

Further, the privileges created by the first sale principle do not "extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it." See 17 U.S.C. § 109(d). Most computer software is distributed through the use of licensing agreements. Under this distribution system, the copyright holder remains the "owner" of all distributed copies. For this reason, alleged infringers should not be able to establish that any copies of these works have been the subject of a first sale."

Now this is the sort of discussion I find very interesting. I'm not involved with the law at all, my involvement is stuck to the realm of the Artists and the Code Monkeys as those are my trades. But the actual legalese that governs what occurs with our creations is very interesting indeed.

I'll contribute one thing though, specifically in response to the line I bold underlined in the quote. If your intent is to provide information in order to clear up misconceptions, particularly if your information is called into question, then I'd say you are in fact trying to "win" something. You're trying to win the validity of your statement as opposed to the statements generating the misconception you're attempting to refute. Or put another way you're trying to win the argument of your own stance versus the misconceptions that you perceive. Also, saying "I could validate my opinion with relevant background, but nah" sounds very politically shady and almost like the people who want to imply they have experience they really don't during an argument. I'm not necessarily insinuating that's what you're doing either because you do seem otherwise well informed. I'm just saying that's the kind of knee-jerk reaction I get on a first read of such a statement. It'd probably be better to either provide your background or not bring it up at all. IMO.

[Gruffydd]

@cevune:

What I meant was I didn't see any point to replying in kind and making it some penis-waving competition instead of a discussion of the topic. The prior poster listed a bunch of background. I don't see any point to doing that, especially on an anonymous online forum. I could claim to be anyone with any background to support my statements. I prefer to support my statements with verifiable links from a valid source. The former wastes time, the latter provides data.

[DayDreamer]

12 minutes ago, Gruffydd said:

anonymous online forum

Of course, I'm not anonymous. Neither is Arthmoor. We just use a sobriquet and a pseudonym (respectively) as a handle. Your (rather old) quotation was not relevant to this discussion.

On 8/23/2021 at 6:03 PM, Sigurð Stormhand said:

At the time Britain left the EU all EU law was translated into British law. In any case, the parlour model does not seek to with draw every single copy of a mod when the modder "takes their toys home", it simply seeks to end distribution. It's also worth noting that, irrc, Nexus claims an "infinite" right to distribute etc. which is really robust legal language.

As to the former, that may be the Roman view. However the British view seems to be that none of EU law was incorporated in the agreement that was not explicitly specified in the agreement. Notably leading to recent arguments about sausage.

Quote

an infinite, non-exclusive, worldwide, royalty-free license for Nexus Mods to store, distribute, copy or reproduce, edit, translate, reformat, publicly display, or perform the submitted content, at our discretion.

Yeah, I'm not sure infinite was the best legal term (as opposed to the more usual perpetual and irrevocable). Presumably they have consulted legal counsel.

In either case, that seems to me it obviates the parlor model, as there is no possibility of taking their toys home.

Arthmoor seems to be (correctly) splitting the difference, keeping the community-based mods at Nexusmods, and retaining his personal mods here.

Although personally I'd have preferred he had left Bring Out Your Dead, as one of the folks who searched for missing burials. I'd always thought of that as a community effort.

 

[Gruffydd]

Okay no more trying to edit a post on my tiny phone screen. *sigh*

Now that I'm at my computer, let's try this again...

7 minutes ago, DayDreamer said:

Of course, I'm not anonymous. Neither is Arthmoor. We just use a sobriquet and a pseudonym (respectively) as a handle. Your (rather old) quotation was not relevant to this discussion.

Apologies, but I don't know you, having not interacted with you before that I remember. But the one thing I can state with some certainty is that neither you nor anyone else here knows much about my actual identity or background (other than perhaps that I wrote a FO4 mod and have been an avid defender of copyright in various forums), and it was my omitting such background that was questioned. Thus, anonymous. I still don't see a point to my listing my background to support a point instead of providing data.

As to my quotation, I assume you mean the one from the Department of Justice website. I don't see how it is not relevant. It specifically addresses the topic, and directly counters your claims on the topic. The information has not to my knowledge changed in applicability since the DOJ wrote it, so the age of the source seems irrelevant (and I don't think I would consider January 17th of last year old). At least I am providing data in an attempt to have a reasonable, logical discussion. Without data, anything you or I state is nothing but bluster and opinion.

If you have some source that counters what I have posted or supports your view, by all means link to it, I would be interested in reading it. If you're actually interested in the topic, I can link a few dozen more excellent sites for your perusal; I chose the one I did because it was concise, from an indisputably legitimate source, and covered the important points.

Here are a couple more good ones, although not as concise nor from as direct a source:

First Sale Doctrine in Trademark and Copyright Law | San Diego Business Lawyers (bonalaw.com)

Buyer Beware: The Threat to the First Sale Doctrine in the Digital Age – Dunner Law PLLC — Your IP Anchor

[Sigurð Stormhand]

4 hours ago, DayDreamer said:

As to the former, that may be the Roman view. However the British view seems to be that none of EU law was incorporated in the agreement that was not explicitly specified in the agreement. Notably leading to recent arguments about sausage.

Yeah, I'm not sure infinite was the best legal term (as opposed to the more usual perpetual and irrevocable). Presumably they have consulted legal counsel.

The argument over sausage is about the UK submitting to ongoing EU regulation - allowing the foreign EU bodies to regulate the British meat industry. Otherwise, the EU will not allow the import of things like sausage and mince - it doesn't matter that the sausages and mince comply with all current EU regulations and legislation.

As to Nexus consulting legal counsel - I think that given the Switch mods, and other historical controversies that were literally allowed to drag on for years, we can safely say Nexus does not regularly consult legal counsel.