Just a few weeks ago, I did a short little flight into St Petersburg, Florida. I choose to use the Bridge Transition to get through the Tampa class Bravo airspace. Now I had been using FlyTampa’s Tampa Rebooted scenery, but this time I had disabled it in favor of some freeware scenery I had found. This freeware scenery claimed to have highly detailed custom made objects. Once I got over the airport, however, I looked down and saw the exact same objects I always had. At first I thought something went wrong and somehow the FlyTampa scenery was still active. But the real reason I saw what I did turned out to be the beginning of an investigation.
After my flight I slewed over to KTPA just across the bay from St Petersburg and got a much closer look at the objects. They bore a striking resemblance to FlyTampa’s objects. Since it is the same airport, some similarities were expected – but as a scenery designer myself, the level of detail present in the scenery seemed odd. What really got my attention were the jetways. They were custom made – each one in a different spot, sporting a different texture. That takes a decent amount of work to do – so much so that most freeware scenery developers don’t bother with it. The default FSX jetways work just fine anyway.
But not all freeware developers do – Sun Sky Jet comes to mind. Still, the similarities were uncanny. I was getting a weird feeling of deja vu. I then left the terminals and went over to the GA ramp. There I found another glitch in the matrix, as the FBOs and hangars were exactly like FlyTampa’s scenery too. Right down to the same hangar doors being open. This was too much to be coincidental!
I closed my sim and immediately opened the objects in Model Converter X. I looked over their bounding boxes, wire frames, and even had the program generate a report on the models. That was for the freeware scenery. I then looked at FlyTampa’s objects, which contained the same boxes and wire frames. Let’s take a look at the report.
The object reports generated by Model Converter X contain the object’s name, bounding box dimensions, texture file names, and most importantly, the object’s GUID, or globally unique identifier. This is the number that the simulator uses to differentiate one object from another. No two objects ever should have the same GUID. When an artist makes a new object, they have a program create the GUID, which is done randomly. The odds of two separate objects, made by two separate artists, for two separate products having the same GUID is very, very small – even if it is a recreation of the same building.
And yet, here it is. Both the objects from the freeware package and the payware FlyTampa package have the same GUID. Not only that, but the object uses the same name, has the same texture file names, and the same bounding box dimensions! Whoever did this did not even bother to change the BGL file names. I had just downloaded a freeware scenery that was not only using assets from a payware scenery package, but was actually distributing them. I had just downloaded a pirated addon.
But this addon came from a website that I would otherwise considered reputable. This did not come from The Pirate Bay, or other similar websites. This was from a website that is used by a lot of people and which I myself use for hosting my own scenery creations. And yet, there was pirated content on it.
I don’t want to throw the website under the bus. A lot of content gets uploaded there everyday, and verifying that everything is legitimate would be a hassle – or hitherto impossible. However, that does not change the fact that payware scenery assets can be obtained for free from Flightsim.com.
To be fair, it’s not Tampa Rebooted in its entirety. The person responsible for this did not take everything, just 5 files containing 47 objects. Several other objects – including the HD ground textures – are not included. Additionally, the uploader did at least make his own AFCAD. But at the end of the day, only taking a few of the assets is still taking a few of the assets.
Who exactly did this? Well, the name attached to the download is Harry Patten. A quick search for him on Flightsim.com shows four pages of freeware mods made by him. Most of it is scenery, and a few of the mods follow the same naming style as the offending Tampa 3D. I then decided to download some more of his scenery packages. After cross checking the scenery available from Mr. Patten with known payware products, I downloaded four other packages that I know have a payware version. The ones I’ll focus on are San Luis in Spain, and Kai Tak in Hong Kong.
I am happy to report that Kai Tak was mostly good, and used default FSX objects and assets. I say mostly, as there was at least 2 objects that I don’t think are default, and look better detailed than the surrounding buildings. But I can’t prove for sure that they were from another package. San Luis, however…
To save time, I will go ahead and tell you that is from Aerosoft’s Menorca X addon. This time, he did not stop at the objects – he appears to have taken the ground textures too. Now, I actually don’t have this addon myself, but luckily some other members of FSElite do. I reached out to Seth Ainsley who works a proofreader for us, and he was willing to help me out on this project. He downloaded Model Converter X and generate a report on the objects used in the payware scenery which he owns. I then generated a report of the freeware scenery I downloaded that I believed to contain assets from the payware scenery.
As you can see from the images above, the objects are strikingly similar. Surprisingly, the object name and GUID are different. However, the texture file names and bounding box dimensions are all exactly the same. Whilst this is not irrefutable proof the assets came from Menorca X, the odds of both the bounding boxes and the texture file names being identical is pretty small. Also note that the difference between the object names of the two is small. Notably the one from my report contains FSX in the name, whereas Seth’s doesn’t. Seth uses Prepar3d and I use FSX, so I’m betting that accounts for the difference in file names.
But what about the difference in GUID? Look closely at the thumbnails of each report. If you look at the one generated by Seth which is the actual payware product, you will see that it has an extra building in it that’s not present in mine. This must have been added by Aerosoft at some point after the assets were taken and used in the freeware scenery. That would explain the difference in GUID.
There’s also another difference. The images of San Luis from Seth are of much higher quality than mine. They have better resolution, better color, and so forth. This is because Seth is using the newer version of Aerosoft’s Menorca addon. Still, the objects used by that addon are the same with the above exceptions. What’s happened is Aerosoft updated the objects for the version of the addon Seth is using. The version I’m seeing in the freeware download is a much earlier version of the airport, likely from the previous release of the software..
But wait – it gets better. The readme for these downloads point to a website named FS-World Creations, and even by Flight Sim addon website standards it looks bad. It’s made with Webs, a ‘make-your-own’ free website service. The website seems to be abandoned – there are people on there asking for support for the sceneries as recent as February, but their requests are going unanswered. The home page tells us why – the creator of these sceneries (if you can call him that) will no longer be making scenery addons for Flight Sim, however, the downloads will remain up. There’s also a download page linking directly to Flighsim.com downloads.
Now it seems not all of the downloads there contain pirated content – only some of them – and the last mod uploaded under the name Harry Patten was in August of 2013. However, the scenery containing the pirated content was uploaded that same year. This means that these sceneries have been available for quite awhile.
The worst part of it all is that the sceneries are not even that good. Well, with the exception of San Luis, but that’s only because he made off like a bandit with the whole airport. Tampa and Kai Tak were horrid! I’m a scenery designer myself, and I have seen some ugly scenery made by people before, but these are particularly bad. Tampa did not even have COM frequencies, meaning the AI at this busy class Bravo airport would behave as if it was at an uncontrolled field. Not to mention the haphazardly placed aprons and edge lights. It was bad. Other airports made by Mr Patten had objects spawning on the taxiways and runways.
My favorite part was just how obvious its was. Of the 39 mods uploaded to flightsim.com under the name Harry Patten, five of these were uploaded the same month – within days of each other. These were mostly sceneries too – Cornwall, Dublin, Lukla, St Mary’s in Sicily, and a AI helicopter package for Sicily. The mod that kicked off this whole thing was uploaded a mere two days after the AI helicopter one. Six different mods, each proclaiming to be high detail, all uploaded within a month. The amount of work that goes into making even a simple scenery like I do can take at least a week to do. There’s no way someone could make five HD sceneries inside of a month.
By the way, I mentioned earlier that I use Flightsim.com to host my own scenery addons. We should take a look at how easy it is to upload a mod to Flightsim.com. They offer 2 methods of upload, either using their FTP site, or via a normal browser upload. The webpage you get when you click ‘Upload’ also contains a lot of helpful tips for people, including a pre-upload checklist. Amusingly enough, the first thing on that checklist is “Obtain all necessary permission(s) for anything you are using based on another designer’s work.”
It also notes that all files are manually checked before they are made available on the site. This implies that some human somewhere actually looks over everything. They state that this is to catch any technical or legal problems before the file goes public. Most likely they don’t check the mod itself, just the mod’s information. They are looking to make sure the description and filename is good, and then run a virus scan – or that’s what I would assume they are doing. Things can fall through the cracks, however, and it looks as though I found one.
Additionally, the pre-upload checklist states that once a day, uploaded files are checked for integrity, proper description and documentation, security, and legal issues. If any issue is found the files are held or deleted. This is for uploaded files that have not been approved yet. Once they are approved they are added to the downloads section of the website and made publicly available. Its unknown whether or not they continue checking the files in this manner after they are made available. They also state that “no testing is perfect and [they] do not guarantee the safety or usability of files in [their] library.”
Once the files are available, they can be viewed, searched for, or downloaded. Each has a description from the author along with thumbnails and links where applicable. You can comment on the files as well. The comments for the Tampa scenery have people complaining of no working ATC at the airport, no moving jetways – although that’s a fault against FlyTampa – and big black boxes over the airport. The big black boxes being something that FlyTampa points out in their FAQ: “This can happen when the scenery is not installed correctly or the folder was simply copied from a previous installation.”
Now, researching everything for this article took some time. Once I was satisfied that I was looking at actual payware content, I needed to make sure this was actually piracy and not a legitimate reupload. The first thing to do is hit the books.
Piracy is, for all intents and purposes, copyright infringement. In this case, we have assets from a product that requires a purchase in order to use it. I needed to verify that Harry Patten is not someone who has permission to re-upload the assets. Drzewiecki Design is a company who has uploaded demo versions of their products to popular freeware mod websites, most recently New York Airports X V2. I had to make sure that there wasn’t a similar situation going on here. Lastly, to comply with Lenz v. Universal, I needed to make sure this is not covered under Fair Use.
The first thing I did was to contact FlyTampa and Aerosoft and ask them if they employ someone named Harry Patten, or if they allowed someone by that name to use their assets in a freeware product. I sat down and composed an e-mail to the appropriate people at both companies.
“Do you now, or have you ever, allowed someone to use assets from your products in their own payware mods?” “Do you upload demo versions of your products to websites that host freeware mods?” “Does the name Harry Patten, or FS-World Creations mean anything to you?” Those were three of the five questions sent to both Aerosoft and Fly Tampa concerning this situation. The reply from both of them was a definite no! Though FlyTampa did state that they allow people to upload AFCAD mods for their scenery, they were clear that theseare not supposed to include assets with them.
So, according to both Aerosoft and FlyTampa, this is not a legitimate use of their assets. Now, we should check if it’s covered by fair use. Fair Use is a doctrine in US Law that permits the use of copyrighted materials without the permission of the copyright holder. You may have heard this term tossed around by YouTubers and streamers. Some examples of fair use include commentary, criticism, parody, news reporting, and research. Section 107 of the US Copyright Act tells us how to identify fair use:
|“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
For simplicity sake I’m going to focus on the Tampa3D mod, especially since it’s the one that I have irrefutable proof of containing pirated assets. The purpose of this mod is rather difficult to know. We don’t know if Mr. Patten intended to pirate the FlyTampa product or not. I’m willing to give him the benefit of the doubt and say it’s a case of ignorance of the law. As for whether or not the mod is of a commercial or nonprofit educational purposes, Mr. Patten would benefit from people downloading his mod, in the sense that people may visit his website mentioned above. But given that the website is by most definitions dead, and because I saw no ads running on it, I doubt that Mr Patten stands to gain anything financially from this.
As for the volume of copyrighted material used, the Tampa3D freeware mod uses five files and 47 objects from FlyTampa’s Tampa Rebooted product. This is a small number compared to the 67 individual files used by the payware package. The payware scenery also uses way more objects and has HD ground textures. It’s important to note that courts do take the amount of the copyrighted work used into account. In general, the more of the copyrighted work used, the less likely the court is to rule that it was fair use. But it has also happened that fair use has been granted to works using all of the copyrighted content. But, generally speaking, you should use as little of the copyrighted work as necessary for your work – whatever it may be.
Now one critical part to determining fair use is the last line of Section 107: “the effect of the use upon the potential market for or value of the copyrighted work.” Put simply, this is asking whether or not the fair use work competes with the original copyrighted work. Because they are both scenery for the Tampa International Airport – and you can’t effectively have two different sceneries for the same airport active at the same time – they are competing.
Given the examples of fair use mentioned earlier: the mod does not comment on anything; there is no criticism of FlyTampa’s product; it does not meet the definition of parody; there’s no news reporting going on; and I doubt this mod was created for research. It may use a small amount of assets overall, but it is competing with FlyTampa’s product. Now, in my honest – albeit unprofessional – opinion, I don’t think this is fair use.
The other questions I asked were concerning how the developers make their respective sceneries. The reason I asked these can be found in the description of the freeware mod itself. Harry Patten claimed to use Google SketchUp and Airport Design Editor 9X to create the scenery. Though we have proven here today he did not create them, he did create the AFCAD for Tampa. Claiming to use Google SketchUp was probably an attempt to account for the presence of HD objects whereas most freeware sceneries don’t have that. Although I’m sure he was telling the truth regarding ADE9X.
The entire investigation and writing process for this story took about three weeks. At the time of publication, the files seem to still be up on Flightsim.com – but please don’t take that as a recommendation. The scenery for Tampa was not very good at all, even with the pirated assets from FlyTampa. I’d instead recommend you actually purchase the scenery from them. I’ll be switching back to it myself now that this is over. It’s a much better product and it actually works. If you prefer freeware scenery then there are some that exist for KTPA – including at least one with custom buildings.
I would not expect these files to stay up much longer, especially now that this article is public and the actual creators know of its existence. Again, I don’t want Flightsim.com to be thrown under the bus. I’m willing to bet they did not know there was pirated scenery on their website. Had they known, I’m sure they would have removed it before now. There was over 5100 downloads of the two sceneries talked about in this article. That’s potentially 5100 cases of Copyright Infringement. It would definitely be in Flightsim.com’s best interests to remove the offending downloads as quickly as possible.
Editor’s Note: We contacted Flightsim.com before publication requesting a statement, but so far, we haven’t heard back from them.