TSR TSR's War on Fans

wingsandsword · Sep 16, 2020

Shiroiken said:
TSR (and Gary) were zealously guarding the IP, because at the time it was perceived that any infringement not addressed automatically made it public domain.

Was that actual case law or statute at the time?

A trademark has to be defended, if it's being used in trade by someone else. . .a copyright doesn't.

Also, to lose a trademark it generally has to be used either generically and they don't take efforts to fight the genericization, or it has to be used in trade by someone else.

Is a fan website with someone posting a text-file netbook of their homebrew campaign setting really using it "in trade", if the file isn't being sold?

Either interpretations of IP law have changed a LOT in the last quarter century, or the TSR legal dept. was absurdly over-cautious. They wouldn't be the only one like that though, for a while, Paramount had much the same attitude about Star Trek fan sites.

wingsandsword · Sep 16, 2020

Zardnaar said:
Some of it was erm bad.

One of the first things I remember looking up online was D&D. There was an AD&D book of sex iirc circa 95/96.

Cover had the AD&D font, topless women on it and inside it had things like successful chance of crossbreeding the various races. Had rape implications as well with your own harem of sex slaves.

Made the Book of Erotic fantasy look nuanced and a literary masterpiece by comparison.

Anyone else remember that?

I remember when I very first got onto the internet. . .August 1996. I wanted to find out more information about D&D. I typed D&D into a search engine.

I remember the AD&D Net Book of Sex was one of the top results. I remember that file quite well, and it sounds like what you're describing. Except it was
a very large plaintext file with no fonts or illustrations though.

Zardnaar · Sep 16, 2020

wingsandsword said:
I remember when I very first got onto the internet. . .August 1996. I wanted to find out more information about D&D. I typed D&D into a search engine.

I remember the AD&D Net Book of Sex was one of the top results. I remember that file quite well, and it sounds like what you're describing. Except it was
a very large plaintext file with no fonts or illustrations though.

Yep I can't remember if it was at the top but it's what showed up to a D&D search on Yahoo.

Shiroiken · Sep 16, 2020

wingsandsword said:
Was that actual case law or statute at the time?

A trademark has to be defended, if it's being used in trade by someone else. . .a copyright doesn't.

Also, to lose a trademark it generally has to be used either generically and they don't take efforts to fight the genericization, or it has to be used in trade by someone else.

Is a fan website with someone posting a text-file netbook of their homebrew campaign setting really using it "in trade", if the file isn't being sold?

Either interpretations of IP law have changed a LOT in the last quarter century, or the TSR legal dept. was absurdly over-cautious. They wouldn't be the only one like that though, for a while, Paramount had much the same attitude about Star Trek fan sites.

It's my understanding that they were overcautious. I believe they originally treated it as trademark, rather than copyright, which as you pointed out requires active defense. Perhaps they were wrong in their setup, but I'd guess the lawyers were the same ones Gygax hired when TSR was being run out of his basement.

wingsandsword · Sep 17, 2020

rogueattorney said:
But the second bigger issue was that I think there was a disconnect between the managers at the tip top of TSR and the gaming world. The top managers at that time came from the publishing world and they treated D&D as a way to create intellectual property. Their main products at the time were campaign worlds and novels to be set in those worlds. They treated the D&D consumers on the internet like publishers of derivative product Much like JK Rowling and her war on Potter fan-fic.

Of course, D&D at its heart is not a work of fiction. It is a game, the main activity of which is having one player create an adventure in which the other players use Magic Missiles and Vorpal Blades, meet Elminster, fight Mind Flayers and explore Waterdeep. The game explicitly asks players to use D&D’s intellectual property to create derivative product and share with other people. That’s the entire point - creating your own characters, dungeons, worlds, etc. derived from the D&D products and then relating these to other people.

So, when D&D players started to use the Internet to do what they’d always done, the managers at TSR who didn’t understand the main activity associated with the products they were selling reacted with hostility. And that’s how you got They Sue Regularly.

I remember reading that one big problem that Williams-era TSR had was that Lorraine Williams seriously did not understand what she was making. She saw TSR as a publishing company first and foremost, they published books first and foremost, with games as a minor part of their business. She actively forbade TSR employees from playtesting their workds, she saw it as just wasting time by playing games on company time. She saw TSR as just a publishing house for books, and gave no consideration to the fact the books were used to play a game.

From that mentality, yes, it would look like one of the authors that hates fanfic, like Anne McCaffrey or Anne Rice.

jeffh · Sep 17, 2020

wingsandsword said:
Was that actual case law or statute at the time?

No, and people weren't shy about pointing this out even at the time.

(Not a lawyer, just someone who listens to actual lawyers when they talk about IP law, and pointedly ignores randos who don't even understand the difference between copyright and trademark.)

Deset Gled · Sep 17, 2020

GreenTengu said:
I would venture to guess that, as the internet was new in those days, that TSR simply hired a law firm to slap down copyright infringement and the law firm was quite zealous in sending out such letters as they would ultimately get paid based on how many cases they generated.

For starters, my general understanding is that this was not the case. TSR definitely had a legal team, but most of the information that floats around makes it seem like those in charge of TSR all knew exactly how zealous they were being and encouraged it.

More importantly, though, I absolutely hate the "blame the subcontractors" excuse. If the law firm hired by TSR was overzealous and overreaching, that's still 100% TSR's fault. If you hire someone to act as your agent, you assume responsibility for their actions. Negligence is not an excuse. In fact, I would go as far as saying that sometimes negligence would be worse than malice; malice can be honest.

billd91 · Sep 17, 2020

Shiroiken said:
It's my understanding that they were overcautious. I believe they originally treated it as trademark, rather than copyright, which as you pointed out requires active defense. Perhaps they were wrong in their setup, but I'd guess the lawyers were the same ones Gygax hired when TSR was being run out of his basement.

Overcautious? Or deliberately overzealous? Corporations have a vested interested in being overzealous. Most people don't have the wherewithal to defend themselves if a corporation leans on them about intellectual property, so they knuckle under even when they might have the law on their side.

billd91 · Sep 17, 2020

wingsandsword said:
Is a fan website with someone posting a text-file netbook of their homebrew campaign setting really using it "in trade", if the file isn't being sold?

I believe selling materials that violate IP protections (whether trademark or copyright) for money could make things more severe, but even distributing IP for free would be a violation because, it's still distributing someone else's IP.
That, of course, makes no claim that distributing a netbook of the home campaign is actually an IP violation... that would depend on the actual content of the distributed material.