Many of those who read this article have heard about Tecmo's legal action against the website NinjaHacker.net (since taken down) for "creating, hosting and contributing content to a forum created to foster and facilitate the knowing infringement of Tecmo's proprietary software for its video game titles." Many websites posted the official press release, though very few have actually dug into the case to bring to light the facts from each side.
After researching the case itself, reviewing the material in question, and speaking with individuals related to the site, a different side to the case has been found, one that doesn't mesh very well with the one presented in the official press release. In this editorial, I hope to bring both sides of the case to light, not just that of Tecmo's but also that of NinjaHacker and its fans, and let you as the reader form your own opinions.
Ninjahacker.net was started in mid-2003 by a group of fans who wanted to modify Team Ninja's games (such as Ninja Gaiden, Dead or Alive 3, Dead or Alive Xtreme Beach Volleyball, and Dead or Alive Ultimate). Though the exact methods used to modify the game differed slightly from title to title, the overall goal remained the same: the ability to add custom content to the games. The community population increased, largely accredited to widespread publicity over the "nude hacks" that members had created for DOA: XBV.
At its prime, the NinjaHacker was a full-blown community in every sense of the word, dedicated not to piracy, pornography, and "hacking" as they have been woefully portrayed, but rather a group of people representing the most rabid and loyal of Tecmo's fans helping each other learn the ropes of skinning and 3d modeling using the games they loved as a base for their work. It must be said that despite the intentions of NinjaHacker, the goal of the site was one that couldn't fully be achieved without dipping into the realms of illegality. To use the custom skins in a game, a user first had to equip their Xbox with a means of copyright circumvention and then either copy the game data onto the Xbox hard drive or burn the original data along with the modified skin files onto a DVD. The extraction of most of the files to be able to alter them also required such a modification to the console.
This brings an interesting question into play: with the creation of the skins inextricably woven into the illegality that is mod chipping, how do sites like NinjaHacker harm Tecmo's sales and property? If the interviews conducted with various ex-members of Ninjahacker.net are any indication, not at all. A person still has to have a copy of the game in order to make any use of the skins, and though there will always be people who illegally download the title from the internet, the blame for that can hardly be placed on NinjaHacker's doorstep.
Rather, if the buzz surrounding the skins affected sales at all, they did nothing but contribute to them, a sentiment echoed by FoxRacR17 on the Xbox-Scene.com forums who expressed that he "had just gone out and bought DOAU just for the patches. Only to see ninjahacker.net is gone. Good thing I didn't open it up yet, I'm taking it right back and getting my money back. Oh well, money out of their pocket, back into mine."
But what about Tecmo's intellectual property? To modify a skin and to make it show up in the game, five files have to be modified: .afs, .xpr, .cat, .xbe, and .dat, none of which are, in and of themselves, proprietary formats. The .afs files are essentially container files that hold the .xpr and .cat files, much as a .rar file can simply hold a group of uncompressed files. The .xpr and .cat files were the ones that actually contained the skin data and were overwritten with modified files to replace the original character skins with new ones. The .xbe file format is literally an Xbox executable file, not unlike how PC games all have a root .exe file, and had to be edited to allow for the custom content to show up in game. Finally, the .dat file contained a player's save game status and in the case of DOA: XBV, their inventory status.
To modify these files, custom tools were created by the NinjaHacker community, and as those five file formats are not proprietary to Tecmo or Microsoft (with the exception of .xbe files), the tools were largely legal. What muddies the legality waters somewhat is that Tecmo introduced a form of encryption in DOAU, which the tools then had to be coded to be able to decrypt the data, a facet of the skinning development that is likely what is garnering a significant portion of Tecmo's recent legal actions. Still, DocDiZ noted on the X-S boards that the legality of such practices "depends if the x86 ASM was reverse-engineered or just incorporated but [again] in order to modify you must get your mitts on the original game in the first place (fair use clause)".
Two of the other known pillars that make up Tecmo's case against NinjaHacker are widely debatable, being that of "unfair competition" and of "defamation of character." The unfair competition accusation appears to be largely baseless, given that the skins were never sold and were original works created by independent authors. The only "competition" able to be readily seen is how a user must pick one set of skins to use over another, a matter hardly qualifying as "unfair" in any light. The issue of defamation of character is likely connected to a variety of things but undoubtedly has the issue of the "nude skins" making up a large portion of them.
One of the abilities that custom skins grants is the ability for the player to alter the skins of characters to make them look nude, or in the case of DOA: XBV, altering their base skin and then simply removing the "swimsuit" model from view. Now, nudity in itself in this day and age is far from taboo (look at our screens for Playboy: The Mansion), but in Tecmo's case, the nude skins could be considered indecent since the female characters in the game are not presented as such by default. However, the skins were never mentioned as being official, being condoned by Tecmo in any way, or even presented as such, making calling their distribution "defamation of character" a bit of a stretch, especially when one looks at the variety of nude skins for EA's The Sims 2 and in nearly any other title containing a female character.
On the same note though, it is hard for Tecmo to really combat the nude skins on the grounds of defamation of character or indecency. Whatever77 on the X-S boards said it best in that "Perhaps if they didn't want people to think their games were about nude girls, they wouldn't have Kasumi nude in the intros to DOA2 and DOA2U. Or Kasumi nude in the tubes in DOA3. Or Christie nude in the opening to DOAX. Or Helena with her shirt open. Maybe they would have done something about the ESRB "Nudity" warning on DOAX. Or they wouldn't have had commercials that do nothing but play up the sex appeal of the game."
Indeed, the commercials for DOA: XBV had taglines such as "Stacked" written against a backdrop of large melons and taglines of "More coverage than your grandpa's dental floss," playing up the assets of the girls and amount of skin displayed in the title as a selling point. Even further, there was a means coded into DOA: XBV where you could see the characters completely unclothed with the exception of tiny stars covering the most extreme parts.
In the same vein, Christie's ending video in DOA3 shows a showering Christie fully naked from head to toe as the camera slowly pans up from the floor behind her. Though Tecmo has never gone as far as to put full nudity in its titles, one must question the legitimacy of the legal action based on the grounds of the nude skins when Tecmo itself has publicly stated that sexual appeal is one of their title's primary selling points.
Should Tecmo continue to pursue it could prove to be deadly for the modding community across the board , the precedent that this case could set, and the repercussions against Tecmo for its legal actions against NinjaHacker, could be just as severe. As reported on the SecurityFocus (link: http://www.securityfocus.com/news/10466) website, Tecmo's official stance on the issue is perhaps best represented by John Inada, the general manager of Tecmo, Inc., in that "[W]e believe it is our duty to uphold the integrity of our work … [h]acking of this kind will not be tolerated and we intend to take all necessary measures to protect our intellectual property."
On the other side of the fence and in the same article, an attorney by the name of Jason Schultz who works with the Electronic Frontier Foundation was quoted as saying, "If they'd offered a competing video game with Tecmo's code in it, it's a legal issue. But here, they have simply offered a way for legitimate game owners to modify how the game looks on their screen. It's like a home customization kit. It's not competing in any way with Tecmo's product. In fact, you have to own Tecmo's product to use this stuff."
The media flurry surrounding the Tecmo vs. NinjaHacker case is one that is largely based on bits and pieces of information rather than official statements given by either side. Still, it is able to be seen as to where each side of the case is coming from: Tecmo, with its feelings that its intellectual property has been attacked and wielding its right to defend it, and the NinjaHacker community, who were essentially some of Tecmo's biggest fans and though they simply wanted to customize the look of the titles they own, they had to tread some very fine legal boundaries to do so.
Many previous fans of Tecmo have called for a boycott of all future Tecmo products, stating that their legal actions against NinjaHacker are far too severe when a cease-and-desist would have served all of Tecmo's goals in the same manner. Rather, NinjaHacker did not receive any form of communication from Tecmo whatsoever prior to the onset of the legal action, to the point that one of the defendants in the case didn't even know action was being taken against him until he saw the news article.
All things considered, the debate can and likely will wage on for months as to the validity of the severe legal action Tecmo has taken against NinjaHacker and the effect it will have not only on Tecmo but on the modification scene as a whole. While the NinjaHacker community is far from the out-and-out bunch of "hackers" that the media in general has labeled them as, there are still a handful of legal issues to be considered in their efforts to modify the games they enjoy.
Additionally, though Tecmo has every right to pursue legal action wherever it sees its intellectual property threatened, it remains to be seen how it will affect Tecmo's sales, especially given the number of cases where people only bought the game with the modifications in mind and of how NinjaHacker was essentially a collection of Tecmo's most loyal fans. Look for more news on Tecmo's legal actions against NinjaHacker in the coming weeks.