Pathfinder 1E Paizo Copyright Issues at Obsidian Portal?

Agamon · Jul 7, 2011

Dannager said:
As Erik said only a few posts above yours, it seems it wasn't even an actual C&D. Just a note.

Argh. I should have known my using "C&D" as shorthand would get misconstrued. Nowhere in his comments does the blogger use that term. My bad.

Dannyalcatraz · Jul 7, 2011

Every rpg company has to decide for itself how to handle ip issues like this. But my feeling is it is generally unwise for rpg companies to issue Cease and desist letters in these sort of cases. This is a small industry and really rpg customers are like a community. Bad feelings spread quickly. Not saying they don't have the right to protect their ip. Just think the fallout doesn't balance out the benefits long term.

OTOH, the players have their share of responsibility: stop doing stuff that IP holders feel they need to defend themselves against.

Or as they say in certain neighborhoods, "Don't start nothin', won't be nothin'."

A lot of companies do try proactive measures to make clear where they draw the line- look at most commercial character sheets and you'll see fine print saying they're OK to photocopy.

So, exercise a little patience and common sense, because the best defense is not needing one. If you want to copy something, look for fine print first. Heck, even if you don't see any, copying & distributing in person is going to be relatively safe. But when you start using electronic data transmission methods to make your sharing easier, you really need to start thinking about what you're doing. Faxing photocopied stuff is probably safe. Making PDFs and attaching them to emails a bit less so. Putting downloadable material you're using available where anyone can find them? Not a good idea.

This instance seemed to fall somewhere in-between, but not being able to see the thumbnails myself, I can't go very far in analyzing how bad the infringement (if any) was, and thus can't say how justified the guy is in griping about Paizo's letter.

TheAuldGrump · Jul 7, 2011

And there is a fair amount of copyright free clip art, or art that includes the rights for putting on your site, available at sites like RPGNow.

Help feed some starving artists.

The Auld Grump

Bugleyman · Jul 7, 2011

IANAL, but it is also my understanding that patents and trademarks may be lost if not enforced, but copyrights generally cannot. Assuming that is correct, this was a unnecessary overreach, and one that seems out of character for Paizo.

Hopefully this isn't a sign of things to come...

billd91 · Jul 7, 2011

Bugleyman said:
IANAL, but it is also my understanding that patents and trademarks may be lost if not enforced, but copyrights generally cannot. Assuming that is correct, this was a unnecessary overreach, and one that seems out of character for Paizo.

Hopefully this isn't a sign of things to come...

It's true that copyrights cannot be lost by inaction (the same is true for patents, I believe). But I've seen in various debates on the topic that lack of action on copyrights in previous situations may undermine any attempt to win damages when pursuing a later copyright case.

AeroDm · Jul 7, 2011

Dannyalcatraz said:
Yes.

But it costs the IP holder money to file the claim as well. And there is the fact that the "minion lawyer" (mentioned below) draws an annual income from the company if he is an employee or on retainer- meaning he gets paid whether he wins a dozen lawsuits or never even sends a C&D letter.

Protecting IP is NOT cheap.

My point is that the burdens are hugely disproportionate on the two parties. The copyright holder doesn't draft an entirely new complaint. They tell someone (probably an intern, aka "minion") to spend a day updating an old complaint the partner drafted some time ago. I've been that minion ("IAAL...and an MBA. No, really!"

). It costs the copyright holder a few hundred in filing fees and because the other party *did* violate the copyright but for safe harbor provisions, they need to defend. Whoever they hire doesn't have an old brief to update, so defending is significantly more expensive. Moreover, as you say, the copyright holder doesn't want to put the person in jail, they just want to deter future violations (whether or not those violations ought to be protected by a safe harbor. Showing that you are willing to sue is a huge deterrent.

Dannyalcatraz said:
And lets not forget, not every IP holder is a big company. A lot is held by individuals (like me, actually- music, sculptures, paintings, commercial designs and a book in progress). And its no cheaper for an individual to protect his IP than it is for a big company. Actually, it is probably more expensive on a case by case basis. (Ask Ani DiFranco how much it costs her to protect her own private record label from pirates.)

That's fair and is a good point. Paizo isn't so large that I doubt they take any legal action without a fair amount of consideration and input from the C-level. Regardless of size, though, the copyright holder is better suited than the alleged infringee.

Dannyalcatraz · Jul 7, 2011

It's true that copyrights cannot be lost by inaction (the same is true for patents, I believe). But I've seen in various debates on the topic that lack of action on copyrights in previous situations may undermine any attempt to win damages when pursuing a later copyright case.

Exactly this.

Plus, if you do not defend your copyright, the practice of infringement may spread. Like fighting wildfires, protecting your IP is easier and less expensive when the scope is small and the number of problems is few.

TheAuldGrump · Jul 7, 2011

Dannyalcatraz said:
Exactly this.

Plus, if you do not defend your copyright, the practice of infringement may spread. Like fighting wildfires, protecting your IP is easier and less expensive when the scope is small and the number of problems is few.

Also, Trademark can be lost, so art that contains setting specific characters, places, or items adds another complication.

The Auld Grump

Dannyalcatraz · Jul 7, 2011

My point is that the burdens are hugely disproportionate on the two parties. The copyright holder doesn't draft an entirely new complaint. They tell someone (probably an intern, aka "minion") to spend a day updating an old complaint the partner drafted some time ago.

Yes, it's usually more expensive for the IP holder.

He's the one that has to discover the violation...which costs money.

If the IP holder is a private citizen, he'll have to find an attorney (just like the potential defendant). And he won't get any price break, so he'll be paying the same $/HR as the defendant.

If the IP holder is a company, they either have someone on retainer or an IP litigation department- both of which get paid regardless of the number of cases they get involved in. IOW, even with a price break, they will spend $10K+ per year on IP defense whether an issue crops up or not.

As for who does the actual work of "drafting" and filing of a motion- and how much it costs: if it's a solo attorney, you get charged his hourly rate, usually in 15 minute increments, with a 30 minute to 1 hour minimum.

If the attorney has clerks and THEY do the work, you still get charged at the attorney's rate. (IOW, no price difference.)

If the attorney is in-house, he and all the clerks, etc., receive annual salaries...so you could prorate how much it actually costs if you want to do the math. But again, they get paid the same if they defend 50 cases or none at all.

Then, if a C&D is not enough and they have to go to court, they pay the initial filing fees- usually small stuff- and the costs of notifying the defendant the're being served with due process of service. Do it wrong, you have to start over. Hiring a process server and, if necessary, taking out legal notice ads in newspapers and TV is not cheap.

If there are depositions to be had, the moving party, not the defendant, pays those costs.

And the defendant bears none of those costs unless and until the Court makes an adjudication in the IP holder's favor AND awards costs. (Any costs not sufficiently documented are not recoverable.)

Bugleyman · Jul 7, 2011

It seems fairly clear to me that this isn't the type of "infringement" copyright laws are intended to prevent (not that I would try to use that as a legal defense). Nor do I think that failing to squash this would lead to difficulty in preventing commercial exploitation in the future (though again, IANAL).

Don't get me wrong -- in my inexpert opinion, Paizo is well within its rights. I just think this level of "enforcement" ultimately does more harm than good, even discounting the free advertising this "infringement" represented.

YMMV