And again... My entire point is that if you want to be granted license for use without paying monetary consideration, then ask the copyright owner permission.

I have permission, in writing, for every piece that I use... and I asked for it in advance.

Huh? How exactly am I engaging in an unsolicited request to "share and share alike"?

I fall under the exception only for one type of usage. For all other things... casual viewing/listening, etc. I PAY for the material I acquire. All the material I use in any exempted criticism is obtained lawfully.

So explain how I'm a hypocrite: I don't engage in piracy or circumvention of copyright protection systems to obtain any material. I either buy the material or it's press material made available by the author to accredited members of the press.

I have thousands of dollars of audio and video in my collection for items I've acquired outside the course of criticism/comment.

This situation is not more subtle than a toddler screaming. It boils down to convenience at the expense of another's rights. You don't have any inherent right to creative works you didn't author. No one is obligated to furnish you with access to them.

But if you really think it's more complicated than that, please do enlighten me as to a single, legitimate reason, i.e. one that completely excludes personal convenience/gratification as the underlying motive.

While comments seem to be transfixed on the "hip" rejection of authority, did anyone actually stop to consider the nature of the infringement?

We're talking about people sharing content not for academic purposes, criticism or comment, but simply because some individuals believe that their convenience outweighs another party's right to control the distribution, exhibition or other presentation of their work, as well as the right to decide who to grant license to do the same.

I use other copyrighted works all the time, but my work is academic in nature, it falls under criticism and comment, and even though I'm not strictly required to (especially with the 1201 rulings by the Librarian of Congress earlier this year), I obtain written permission from the copyright owners, as well as the digital masters of the content in question.

Suffice it to say, I've never been served a DMCA notice... and I'm not likely to. If you want something from someone, try asking their permission... I know, I know... baby steps. How about we just start with not whining just because you hold your convenience and the "right to share" as some moral obligation owed to you, without any consideration in kind for others rights to the material they created.

This is not to say that there aren't any flaws with DMCA, but not once have I set foot on a message board and actually found anyone discussing the real flaws with that legislation... e.g. the failure to distinguish between enduser ISPs that facilitate, filter or host content versus Tier 1 and 2 ISP's that are mere conduit. The basic concept of the DMCA, however flawed it became in practice, was to provide two things: 1) clarity around digital piracy's definition and the remedies that could be sought under criminal copyright infringement (that copyright infringement is criminal is a much older law and a different debate all together) and 2) immunity to internet service providers (including the little guys, and some of you might be running a host here or there) who are acting as mere conduit and should not be held responsible for the infringement committed by their subscribers.

But before anyone here throws me in the EFF stockade for daring to question those on their "share and share alike" crusade to stop and consider the immorality of expecting others to "share" without asking permission or giving remuneration, let me note that the 1992 Audio Home Recording Act under which, and with the help of the Section 1201 ruling in April, it is TOTALLY and COMPLETELY legal for you to make, share or perform copies, even circumventing copy protection schema, if its use is noncommercial in nature and falls into one of the six classes defined by the Librarian of Congress as of April 26, 2010. Those six classes included DVD's lawfully obtained where copy protection schema needed to be broken in order to incorporate them into a presentation for academic, noncommercial comment or criticism purposes.

There's a concept of consideration-in-kind in both capitalist AND socialist societies called consideration (in capitalist societies it takes on the form of profit, in socialist societies it takes on the form of shared enterprise and, well, equal remuneration for unequal talent which is an inequity in itself)... It is hypocritical to find one kind of selfishness (the desire for personal convenience over another's remuneration) as more morally praiseworthy than another, especially when the latter has, in principle, a greater basis as it is the owner of the work asking for remuneration for their work. David vs. Goliath comparisons abound, but these hyperbolic rants often forget that the vast majority of content creation, protected under copyright law whether registered or not, is performed by either independent creators or works for hire by an overwhelming majority of recording, performing and other artists who rarely ever break even on the advances loaned to them by the record labels, motion picture studios, etc. I'm not exaggerating here.

In the record industry, over 85% of artists signed to MAJOR labels alone do not sell enough albums to break even on the advances they owe back to the record company. To categorize these 85% as being some kind of Bentley-driving, courvoisier-swilling rockstars like the fewer than 1% superstar contracts who make 99% of the label's money back for all the smaller artists who failed to find a market is blatantly ridiculous. Appeals to emotion aside, it shouldn't matter whether the artist is Ani DiFranco or that detestable son of a bitch Lars Ulrich (whom I have it on direct, personal authority was always an asshole well before the Napster debacle)... even stupid Lars Ulrich and his gang are to be paid what's contractually owed to them... even if all they did was completely throw sound fidelity in the toilet with that Death Magnet piece of crap record. It's a matter of principle, because if we treat some differently from another, then all we're doing is reinforcing the very classist system that the whiners are bitching about.

And ironically, Paul Simon successfully sued the Krofft's for basing the H.R. Pufnstuf theme song on his work, "The 59th Bridge Street Song." (http://en.wikipedia.org/wiki/The_59th_Street_Bridge_Song_(Feelin%27_Groovy))

A little background, the case of Sid & Marty Krofft Prod. v. McDonald's Corp. has to do with the Krofft brothers alleged claim that the character of the Hamburglar was based on the Krofft's character of Mayor H.R. Pufnstuf from their children's television show. They won the case because the preponderance of the evidence showed that their story concept was known to McDonald's via an ad agency attempting to secure a deal with McDonald's.

The court concluded that because no layperson would see a substantial distinction between the two characters, that infringement was substantial enough to merit damages under extrinsic and intrinsic factors.

A concise explanation of the court's decision can be read here: http://www.studentweb.law.ttu.edu/Cochran/Cases%20&%20Readings/Copyright-UNT/krofft.htm

Basically, the two important takeaways are that:

a) Like the OP, McDonald's did not deny that the characters of their McDonaldland were in fact based on the Krofft's show. The involvement of the ad agency soliciting concepts to be used by McDonald's without having ever compensated the Kroffts constituted part of the extrinsic, objective evidence that infringement had occurred.

b) Instead McDonald's attempted, and failed, the intrinsic test in their argument that the characters are too dissimilar. They decided that the McDonald's commercials captured the "total look and feel" and also noted that McDonald's attempt to dissect the case based on extrinsic factors reveals a failure of the intrinsic test:

The issue was not that Microsoft hadn't copied. The court found that 179 of 189 elements Microsoft had indeed copied were licensed to them by an agreement in writing with Apple in the mid-1980's, and that the remaining ten ideas were not copyrightable because either they were vague or the ONLY way of expressing an idea. Two important distinctions here are that: a) The OP repeatedly acknowledges Pac Man as the basis for his concept and therefore admits it's derivative of their copyright. and b) OP did not have a prior agreement with Namco/Bandai to license a single element, let alone 179, of the Pac Man game.

It's important to understand where the Ninth Circuit Court of Appeals' decision comes from, so here's the relevant text of their decision, which was the first to specifically set out in case law the criteria of examining elements of an idea individually and not as a whole, which is entirely applicable in OP's case because there are numerous elements that have been quite directly imitated. Here's the relevant text from Apple v. Microsoft (1994):

Sorry for the typos and incomplete sentences... it's late and I'm tired. One sentence should read "Zuhdi had a colleague vouch for him."

You are correct about idea to an extent. Vague ideas are not copyrightable... but a specific concept that can be fixed in a tangible form, going well beyond a vague idea, is. It depends on the specificity of the idea. For example, the concept of "goodwill" is not copyrightable because it is broad and ephemeral.

But consider two cases about ideas: Art Buchwald successfully won a case against Paramount because the concept the movie Coming to America was based on originated with a story treatment (these are very detailed ideas typically 40-80 pages in length, but nowhere near as specific as a script) that Paramount rejected. In Buchwald v. Paramount, Buchwald prevailed and was granted both royalties and story credit. (See http://en.wikipedia.org/wiki/Buchwald_v._Paramount).

Enough documentation existed to substantiate that the concept was in fact inspired by Buchwald's idea. The same thing happened with Roland Emmerich and Stargate. Years before the film went into production, an egyptologist named Omar Zuhdi had pitched the concept to him. Zuhdi had a colleague Emmerich expressed disinterest but then went on and adapted the story concept into Stargate. Emmerich settled out of court with Zuhdi for an undisclosed sum.

Even if Namco never published/manufactured Pac Man but had a detailed account of the game concept and evidence that OP knew about it, just as in the cases of Zuhdi and Buchwald, they could successfully hold OP responsible for copyright infringement and file for a number of remedies, including but not limited to injunctive relief and/or a substantial portion of OP's gross receipts.

There are several ways of looking at this. If I make a movie that "looks and feels" like Richard Donner's Superman in every way, right down to Lois's car stalling and falling into a crevice in the middle of a Central American earthquake, but I just change some names around and call Lois "Barbara" and Central America "Kazakhstan", and Superman "Super Miguel"... I'm pretty certain that I'm asking for some level of trouble.

But here he went steps further. In his own bugfix notes he refers to the character repeatedly as "pacman".

Trademark violation applies because he refers to the character as "pacman" in his release notes. Trademark violation may or may not apply to the game name. But the "look and feel" is not the only issue here. The specifics of the characters, their appearance, the gameplay, the objective, the maps, pills, power wafers, maze w/escape tunnels, etc. is so identical to the original in so many ways that is definitely meets the conditions for infringement.

Oh. My. God. I'm sorry but OP is a fucking imbecile if he is so deluded as to believe he did not infringe on Namco's copyright.

30 years is too long? How old are you? The market for Pac Man hasn't died. It's still the top selling arcade game of all time. Just because other people lack creativity to come up with something even four or five degrees of difference from a game involving a yellow circle with a triangle mouth and four ghosts of different colors going around a maze with tunnels, pills and power wafers, doesn't automatically make licensing a moral obligation of the original creator/owner of the work.

It's also foolish of you to use the "hard work" argument in this context because as my description above demonstrates, Namco did 90 percent of the work for him.

"filed by the ISP" to their end user, that should read in the last paragraph.

The idea of a "copy" means a facsimile... whether produced mechanically by an image, or produced by replicating the look and feel of, say, a Van Gogh painting, or by using your own code to generate a series of pixels that create a reasonably similar set of characters to the Pac Man game, that is essentially the definition of what it means to copy, transcending and irrespective of the particular technology used to facilitate the copy—whether by hand, photocopier or computer code. What also matters here is that your objective was commercial in nature, not related to education, criticism or comment as would have exempted you under 17 USC 1, Section 107. Bear in mind I'm not a lawyer, but I do know that you need to go talk to one now.

How does one "navigate the minefield" of copyright law? Well, for starters, don't attempt to make a spinoff of the most popular arcade game of all time without permission in writing from the creators.

I was just about to say this. Yes, correct... The judge did find some 170+ elements that Microsoft did copy and would have been guilty of infringement had Apple not given Microsoft license to use these elements. They worded their agreement poorly and Microsoft had a pretty clear license to use elements of the Mac OS look and feel under that agreement.

I looked at this developer's page and he's got himself a real problem here. The characters, the "Super Pac" name, the maps, the pills, the gameplay, etc. all constitute a good case of copyright infringement.

Trademark infringement, incidentally, may not apply because while "Super Pac Man" is a trademark, "Super Pac" is less clear. However, copyright infringement applies because the detail of the gameplay, the characters, the look, the feel and the objective... more than 75% of the "idea" that constitutes the intellectual property known as the Pac Man game, is in this developer's product. It would not have the look, feel and gameplay that it does without having referenced Pac Man...and he completely shot himself in the foot by making direct reference to the Namco game in his description.

Another condition of proving copyright infringement is proving significant infringement of the brand and/or market for Pac Man. Since there's a good chance that users may confuse this product as being related to, derivative of, an offshoot, etc. of the Namco branded game, there is significant opportunity for harm to their brand image and their market for Pac Man games. It doesn't matter if the distribution is limited or they think the "chances" aren't likely it will outstrip Namco's sales of Pac Man, it's about whether or not it could be easily confused, in principle.

Fishexe states he's studied copyright law. I take that to mean he's had coursework but isn't a lawyer. If he were a copyright lawyer he'd say so. I'm not saying this to attack the messenger but just to establish some parity here... I have also studied copyright law. I am not a copyright attorney but I have worked for an ISP's internet security group and had direct contact with General Counsel on matters of DMCA. Also, I am both a copyright owner, and a copyright user (I've used copyright material under 17 USC 1, Section 107, fair use, for the purposes of comment, criticism or education. I would say that for the past 20 years I have gained a pretty intimate understanding of copyright issues... and this is a copyright issue.

Notwithstanding people's moral objections to intellectual property (an entirely separate discussion)... As to whether it's a DMCA issue or not, it is. While 17 USC 12 concerning circumvention of copyright protection systems does not apply, the other amendment, 17 USC 5, Section 512, does. That amendment passed under the DMCA concerns the notification requirements and limitation of liability of ISP's acting as mere conduit to a third party who is responsible for creating and distributing the unauthorized work. In this case, a valid DMCA notification filed with the ISP is the proper course of action.

Now can we work on that awkward name which sounds a little too much like "Department of Fatherland Security"? How about Domestic Security Service or Dept. of Domestic Security? Or State Security Department? "Homeland" sounds far too much like something George Bush thought of while he was playing with his Al Qaeda and G.I. Joe figurines.