Do we have rights to use WotC's intellectual property? Factually, if you bought your D&D books, or are using the SRD 5.1 under its Creative Commons status, YES. Not unlimited, i.e. falsely implying endorsement, or some trademark uses, or to deceive, but otherwise very, very broadly.
- Can we use WotC's intellectual property for criticism, commentary, news reporting, teaching, scholarship, or research, including trademarks? Absolutely yes. Fair Use Doctrine.
- Can we do things like livestream D&D games? Factually yes, and WotC doesn't have a legal leg to stand on. First Sale Doctrine.
- Can we advertise, without permission, compatibility with WotC's products? Yes, modulo some trademark restrictions (see section D).
Of course WotC doesn't want someone publishing a d20 system for "Rednecks and Racists", for instance. But unless there is specific defamation or infringement that falls outside of the above, they have no recourse. Certainly not on copyright (so no DMCA takedowns), and defamation requires an actual judgement and court order. Sites like YouTube, Twitch and ENWorld have their own terms of service that would forbid display or promotion of such a thing, but those are due to the private nature of the sites in question and the rights the site owners have with regard to content. I don't want to see "R&R" exist either, but WotC falsely claiming that it has all of the rights listed in the FCP doesn't actually empower them to order takedowns anywhere other than their own property, i.e. DnDBeyond and DMSGuild. That power is reserved for judges and juries, and only after determining why the media in question isn't protected by any of the above. And that's a mighty high bar to clear.
Seriously, I don't understand the pushback against warning that there might be other documents WotC could try to leverage, especially when those documents contain at least some assertions of rights and powers they factually do not have. The FCP is a weaker document than the OGL (especially the proposed OGLs), but it does indicate a mindset of "we can take stuff down". I quote from the policy:
No. They do not have that right, and they will not be the judge of that. The above quote is just plain a lie. If I want to have a sponsor to my Dungeons and Dragons videos be Bad Dragon and they were down for that (wibble wobble), I have the right to do exactly that as long as I don't claim specifically that WotC is okay with that sponsorship. They don't get a vote. Similarly, I can have Paizo as a sponsor to videos discussing featuring and discussing WotC products if I so desire. Takedown attempts there would run squarely into
anti-competitive practices, and that's the kind of behavior that incites those
mind-boggling (but justified) fines we're hearing about Google and similar being hit with.
Another quote:
First, the above is simply untrue based upon the principles early in this post. Second, there never has been an obligation to release something under OGL. Third, that doesn't matter any more with regard to anything in SRD 5.1 because CC-BY-SA-4.0 (so they probably should update that). Game mechanics are not patentable. Long since settled. And I can absolutely use their logos and trademarks under the Fair Use Doctrine (see above); I just cannot use them in a way that implies I'm WotC or the trademark owner myself, i.e. confuse a reasonable customer/viewer that there is specific endorsement or ownership by WotC.
In fact, about the only thing I
couldn't do with a stream is to either sit down and page through every page on-camera or go 100% audiobook-reading of WotC's book content that isn't covered by SRD 5.1 (copyright infringement) or blather on in a way falsely claiming trademark ownership (deceptive trade practices/trademark infringement). Patents (the third pillar of intellectual property) are not applicable, as
game mechanics are not patentable, and even if they were the grace period within the
public disclosure doctrine has long, long since passed (by years to decades) and would have expired even if such a patent had been granted.
Everything else is on the table.
There's a lot of misunderstanding of what rights these companies do and do not have, and they depend upon that misunderstanding. They depend upon confusion about intellectual property law (you'll note that I support my assertions with primary sources). They depend upon intimidation and "win or lose, it'll cost ya" (for which we have
anti-SLAPP laws, specific
provisions of the DMCA and other protections such as
those within my state, California).
I've done my homework. If I'm wrong, show me factual sources exceeding in authority and depth of analysis than those linked to here.
All I am trying to do here is to dispel that misunderstanding with supportable fact, and warn people that given WotC/Hasbro's recent bad faith efforts, they might try to leverage that misunderstanding. They are untrustworthy, in full CYA-mode, and it needs to be made clear that this other potential legal trickery will be neither tolerated, hidden, nor successful. Is that so very bad?
