Why Shouldn't I Pay for Content? 

 
Whether it's a violation of the End User License Agreement or not (which is now a topic of some debate), there are copyright issues and ethical issues.

The Legal Argument 
From Dani at PMBD:
Obligatory disclaimer: I am not a lawyer, I simply have experience in researching legal matters. The following advice should not be used in lieu of an attorney.
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I've seen a number of legal opinions floating around on the subject of paysites and I figured I'd chime in. It may come as a surprise, but in fact, sites charging for Sims 2 related objects are violating copyright laws and Electronic Arts' copyrights. In fact, what paysites are doing is illegal even without the EULA that comes bundled with The Sims 2. Furthermore, because what paysites are doing is illegal, any potential copyright claims that are made on most user-created content are invalid in a court of law.

Objects

Why? Let's start with US Code Title 17 which encompasses United States federal copyright laws. More specifically, Chapter 1, Section 103.

Quote:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.


Anytime you make a new object, you are basing it off a pre-existing object which uses EA's code. If you make a new refrigerator, even if you make a new mesh, you are still including EA's code in your object which instructs your Sims on how to use it and determines what options are available in the radial EA has not granted permission for people to use their copyrighted code for commercial gain.

As such, the material is being used unlawfully. Which means that, in fact, you can't copyright a custom object if you are charging for it because that is an unlawful use of EA's copyrights. Now, if these sites what to bundle just the mesh without the rest of the code, they are free to charge for it and copyright it. If you want to write your own code from scratch, you are free to charge for it and claim copyright as well. But if you distribute an actual object package, which contains EA's code, you CANNOT charge for it and still claim copyright.

This applies to anything where you have based your creation off of something that came with the game. You cannot copyright a derivative work in which existing copyrighted material is being used unlawfully. And it gets better. Because these pay sites are violating EA's copyrights, EA could easily take them to court. So far, EA has chosen not to because it wouldn't do much good for their reputation and it's not worth the money. But they could and would be within their legal rights to do so.

But wait, it gets even better. Mendenhall V. Davis (1985) established that not only can an artist not copyright a derivative work that unlawfully uses a preexisting copyrighted work but that the copyright holder of the original work can actually assert copyright over the derivative work in question. So EA could in fact, assert copyright over a lot of the custom content from paysites. Again, EA hasn't done this because it's probably not very profitable but they would be in their rights to claim copyright over the derivative works in question from paysites and then use them as expansion pack or stuff pack content without compensating the paysites at all.

Retextures
The above mostly applies to objects. Anytime you have an object, you have a mesh, textures and the code that makes it work. Unless you code the object from scratch and don't use anything that came with the original game, charging for objects is a violation of EA's copyrights.

Retextures (recolors) are more of a grey area simply because, in most cases, they are not derivative works. However, they are also quite useless without an accompanying mesh.

Here's where we start running into some problems. When retextures are shown on the paysites, they are shown displayed on (usually) a mesh designed by EA. Even though they aren't actually distributing the mesh, they are still showing the retexture in association with the mesh on the website. Furthermore, texture files are designed to work with a specific mesh. You cannot drop a texture package into your downloads folder and then apply it to any mesh. Short of modifying the package file, you must use the retexture on the mesh it was designed for.

There is no cut and dry law for this situation because this kind of stuff didn't happen back when the copyright law was created. So in the case of retextures, it would mostly depend on the court. However, I believe that most courts would agree that retextures are at least partly derivative because the paysites display them on EA's meshes and state quite clearly that the intended use of the retexture is on EA's meshes.

Hairstyles
These are very similar to retextures except they aren't limited by design to a specific mesh. Howver, if the paysite is displaying them on a stock EA model, stock EA clothes or stock EA accessories it could be construed as a derivative work. At the very least, a screenshot of copyrighted EA material is being used without the appropriate permissions.

Bodies, Accessories, Hair Colors, Wallpaper, Floors
Same as above

The EULA
Up until this point, I've pretty much avoided the EULA or license agreement that comes with the game. It's not particularly reliable and it's legally dubious. The paysites are violating EA's copyrights without even needing to bring the EULA into the picture.

However, with that said, there are a few problems with the EULA that make it not so reliable for shutting down paysites.

1.You cannot view the EULA at the place of purchase before you purchase the protect. You do not know what you are agreeing to until you've purchased the product at which time you are stuck with your purchase. The fact that the EULA is available online is irrelevant, in many states, it has to be available at the place of purchase.

In addition, in many states, software is classified as a good under the Uniform Commercial Code and you can't attach restrictions to a good after the point of sale.

2.Many parts of the EULA could be construed as unconscionable. In layman's terms, an unconscionable contract is a contract that is so obviously one-sided and/or unfair to one party that the court decides not to enforce parts or all of it.

There are a few reasons why the EULA could be labeled as unconscionable :
a.It's written in such a manner that the average person cannot fully comprehend it's meaning. (It's boilerplate/legalese)
b.There is no negotiating power on the part of the consumer. The EULA is a contract of adhesion where you either take it or leave it.

Linden Labs (Second Life, an MMO) recently learned about this the hard way. In Bragg V. Linden Research Inc., a judge recently threw out a good portion of their EULA relating to mandatory arbitration.

To quote the order in question :
Quote:

Taken together, the lack of mutuality, the costs of arbitration, the forum selection clause, and the confidentiality provision that Linden unilaterally imposes through the TOS demonstrate that the arbitration clause is not designed to provide Second Life participants an effective means of resolving disputes with Linden. Rather, it is a one-sided means which tilts unfairly, in almost all situations, in Linden’s favor. As in Comb, through the use of an arbitration clause, Linden “appears to be attempting to insulate itself contractually from any meaningful challenge to its alleged practices.” 218 F. Supp. 2d at 1176.
--SNIP--
Finding that the arbitration clause is procedurally and substantively unconscionable, the Court will refuse to enforce it.


As of right now, the only part of the EULA that Bragg has contested as unconscionable is the part requiring mandatory arbitration. That's the only reason the rest of the Second Life EULA still stands. If he were to contest other parts of the Second Life EULA, relevant to the case, as unconscionable, more of the EULA could easily be stricken.

Hopefully, this helps clear up a few things relating to legal issues. Remember though that I am not a lawyer, and you should always consult an attorney regarding any legal issues you may have.
The Ethical Argument 


Paysites alienate players 
Not everyone can afford to pay for content that should have been free in the first place. You may also be too young to hold a credit card. This creates a situation where some players are included in an exclusive group of downloaders, while others are left on the outside. We think it’s better that we follow the rule we learned in kindergarten – it’s nice to share your toys. 

Some profit off the work of those who create for the love of the game. 
The two primary programs for content creation – SimPE and Colour Enable Package (CEP) – were made for free and continue to be available for free. Without these, along with various plug-ins and tutorials (all free), very little of all the custom content we have today would have seen the light of day. When a paysite owner charge money for creations made with the help from above mentioned devices it’s a slap in the face to the whole community. These programs were made on a voluntarily basis for the benefit of the community and has always been offered 100% free to anyone! We can only imagine the amount of time and effort put into the creation of a program like SimPE – but we assure you it’s not even remotely comparable to the time spent making that new, shiny hair you just paid for, no matter how good it looks in game. Additionally, most meshes are adapted from ready-made meshes from sites like Turbosquid and Poser, so most, if any, of the orimginal work is done in the texture. 

Part two of this section has to do with recolors. Many paysites sell recolors of Maxis/EA game objects, or recolors of meshes available for free on freesites. This is an affront to the originators of the game as well as the free content creators who expect their objects to be used freely by the community. 

Game content for pay is an anomaly in the gaming world. 
The Sims 2 community is the only gaming community where people get away with charging money for custom content. It’s pretty easy to make custom content for the Sims 2 compared to other games where players may spend months on a mod and happily offer it for free, because no one would ever expect anything else! Pay content for other games is not only unheard of, it is not tolerated by the game’s respective communities. All gaming companies have license agreements which restrict profiting off their copyrighted product, or, in the case of Second Life, have an explicit procedure for selling content. EA does NOT have this type of procedure in place. 

Text from PMBD’s FAQ, inspired by Berg’s statement at Carnaby Sims.
 
 
Check out this article: "Why You Should Not Pay for Custom Sims Content"
 
 
 
Leilatigress actually sat down with three members of the EA Legal team on August 27, 2007. This is available at PMBD but for those that don't want to go look over there, it is posted here too. I asked her to cover a few topics, and here are the replies:


Q. EULA changes: TSR's making a big deal over the removal of the word 'noncommerical' in the EULA for the content manager; is this a permanent change for all EPs/Bodyshop/Homecrafter? 
A. It is a permanent change for Bodyshop and Homecrafter it is not going to be in any EPs. Turned right back around and said the EULA for Bon Voyage would match Seasons. 

Q. Filesharing: It's been suggested that the only problem EA has with PMBD is that we have adult content (Pandora/M&M/etc), and therefore they don't want our link on the Exchange. However, there's also a rumor that EA will stop PMBD/SFV filesharing altogether - in essence saying that paysites DO own their content. What's the real story? 
A. EA has nothing against filesharing since they have the exchange which promotes filesharing. They ignored the rest of that question. 

Q. The various statements from tech suport/customer support/EA legal - obviously, there's conflict. Some of it's Maxoid issues, some of it's ancient ties to TSR back when they were free. So what's the story? WHO has final say? 
A. Unless it’s signed by an EA Legal team member they have no say and are not held to be responsible for anything anyone not EA Legal says. 

Q. Obviously, the big thing we want is ANY clear statement - paysites good, paysites bad, filesharing good, filesharing bad, or 'we don't give a rat's ass what happens in the fan community". 
A. Filesharing good, paysites bad was the statement I got and that is verbatim. 
 
 
And here’s another perspective, from Jfederated at PMBD (included because it’s so nicely worded):

It's been my experience that paysite owners who do come here, and not many do, begin as you do very calm and questioning then basically lose their shit when they see that PMBD will not roll over and die for them when they demand such. They holler about their 'rights' being violated, that people are selfish, that they're being robbed. 

No creator's been robbed, how can they be robbed and robbed of what? Control? Welcome to the Internet, control gets dropped at the door when you throw something up on a website for someone to download. And besides...

All the files in the Booty are paid for. 
Booty files are not being resold.
Booty files are properly credited and have text only link to every creator.


Too many paysites have committed real, live theft from downloaders by perpetrating one or more of the following: 
· not sending a file after it's paid for 

· banning someone who's just paid a subscription for no reason given or mysterious 'legal evidence' that's never produced 

· taking money up front for shoddily made or broken crap, most often misrepresented in the pictures on the site and they sure as hell don't bother to mention it before they get paid 

· refusing to refund for or fix above said crap 

· ignoring or deleting posts that report problems with a payfile download 

· taking money for subscription to a site that is never updated or down more than it's up 

· banning/badmouthing/harrassing anyone who even questions the legitimacy of paysites or is in any way espied on any other forum with discussions about this issue. 


There's more I'm sure, but I think that's plenty. That this happens at all means it happens too much, yet it's been happening for years. Paysiters are NOT the victims here. That title is owned by the people they've ripped off and actually stolen from. I subscribe, you see my screenname on a particular forum and you ban me without refunding or providing any proof that I've done anything to deserve it? THAT is theft. And not just a tad creepy. Get the picture? 

The Booty (and filesharing in general) is the only thing currently that balances the rights of pay creators/site owners with those of the consumer set. When you charge for access to content you change the dynamic completely between creator and downloader. Now it's vendor and customer and the rules are different - the customer matters and has rights that are at the very least equal to yours and you should thus be held accountable for such behaviors listed above...except in this community there is no authority, no regulation, no guild, no avenue left to those cheated by a paysite other than complaining to Paypal, which may or may not help. EA is fled, the paysites don't care, the cheated are screwed, abandon all hope ye who enter here. Witness: resentment. Hence, filesharing. See also, the Exchange on the official site. Ergo, them's the breaks and these are the times. 

Can distinctions be made between having one or two 'donation' items (ie. items that cannot be obtained any other way than forking over some amount of money first, which negates donation and makes it a sale) and a site that charges per item for nearly everything on offer? Of course. Can that distinction be made where the Booty files are concerned? No. That's what got us into this mess in the first place. 

Don't like it? Go with voluntary donations and free content or any other of the alternatives to paysiting available, there are many. Or you can take your complaints up with the criminal element running some of these paysites that prey on the uninformed in this community, those that screwed it up for anyone who, for whatever bizarre reason, expects their fellow gamers to foot the bills for personal decisions they made all on their lonesome. I have 30 stories on the Exchange that people seem to like and they took me a long time to write and a lot of effort went into them, and my cable internet bill is due too, wanna chip in for that before I let you read them? Didn't think you did. 

Filesharing has never been denounced by EA at all; it's an old tradition anyway, dating back to TS1, so it's nothing new. It's just becoming public knowledge thanks to this place. Paysiters who've fed off the uninformed for so long don't like it. But I didn't get my money back for something I paid for and was broken, and I didn't like that either. Consumers have power, but only PMBD showed them they did. It was paysites that had them cowed. 

I think it's what's called a 'sea change'?