7 Things To Remember About Copyright Before You Distribute That Cool Thing You Made!

[Andor]

On #5, ideas/processes are not copyrightable:

however, they are PATENTABLE. Which is effectively a similar protection (albeit with different duration, requirements, etc).

Actually processes are only patentable in the US. The rest of the world finds the notion silly. And process patents are something of a nightmare to both write and enforce. While WotC may have patented "Tapping" I have my doubts it would stand up in court as one of the requirements is that the idea is "Non obvious". I suspect few game processes would both pass that test and make for a good game. Not to mention be worth the $10k-$15k to patent. WotC has enough money that their lawyers could eat the entire rest of the industry for lunch, that helps.

 

[Janx]

Actually processes are only patentable in the US. The rest of the world finds the notion silly. And process patents are something of a nightmare to both write and enforce. While WotC may have patented "Tapping" I have my doubts it would stand up in court as one of the requirements is that the idea is "Non obvious". I suspect few game processes would both pass that test and make for a good game. Not to mention be worth the $10k-$15k to patent. WotC has enough money that their lawyers could eat the entire rest of the industry for lunch, that helps.

In the specific example of Tapping, it was only obvious after it was demonstrated.

Given that card games have existed since the printing press, if there was no game that demonstrated prior art, then WotC fully earned their Patent for Tapping.

As opposed to Amazon's One-Click shopping patent. Anybody making an e-commerce site could and would have done it. In fact, the only programmers didn't do it was concern over storing credit cards on a web site.

Amazon didn't do something nobody'd thought of. They did something everybody had avoided doing over security concerns in the early dotCom era, even though they all knew it was faster if they could.

 

[Dannyalcatraz]

Actually processes are only patentable in the US. The rest of the world finds the notion silly. And process patents are something of a nightmare to both write and enforce. While WotC may have patented "Tapping" I have my doubts it would stand up in court as one of the requirements is that the idea is "Non obvious". I suspect few game processes would both pass that test and make for a good game. Not to mention be worth the $10k-$15k to patent. WotC has enough money that their lawyers could eat the entire rest of the industry for lunch, that helps.

That patent on "tapping" may have been one of the reasons why Ultimate Games, makers of Ultimate Combat! went out of business. Whether it could win the legal argument, they may not have had the resources to make their case.

 

[Umbran]

Actually processes are only patentable in the US. The rest of the world finds the notion silly.

But it isn't. As I understand it, the point of a process patent is to make things more clear - if you couldn't patent a process, you could patent a device that enacts a process, and get largely the same result! So, allowing the process patent avoids a layer of obfuscation.

 

[Jhaelen]

But it isn't. As I understand it, the point of a process patent is to make things more clear - if you couldn't patent a process, you could patent a device that enacts a process, and get largely the same result! So, allowing the process patent avoids a layer of obfuscation.

Now this is completely off-topic, but isn't that exactly why it's not possible to patent processes (except maybe in the US...)? This is a _good_ thing. By restricting patents to a particular implementation of a process, you allow others to come up with alternate implementations that effectively have the same result. This is important to prevent the patent holder to completely monopolize the market relying on the process. The US patent system has other problems, e.g. where US patent office seems to consistently fail is the requirement of being non-obvious to be patentable - just consider Amazon's One-Click-Buy...

Regarding the specific case of Mr.Garfield's patent for MtG, it's been stated quite often that it should never have passed, e.g. here:

Granted by clueless Patent Office non-gamers, this patent covers any game where each player custom-builds his own deck from a larger universe of cards (the central Magic innovation). And not just cards -- the patent applies to any imaginable game component. It's like inventing the hot-air balloon and patenting all forms of air travel.

and further:

This is a symptom of recent changes in Patent Office practice. The government now awards patents for just about anything and lets the courts decide their validity.

It's normal that the first patent in a certain field is broader in scope than patents following it. But you cannot have a patent prevent any progress in the field.

 

[Umbran]

Now this is completely off-topic, but isn't that exactly why it's not possible to patent processes (except maybe in the US...)? This is a _good_ thing. By restricting patents to a particular implementation of a process, you allow others to come up with alternate implementations that effectively have the same result.

If it is really an alternate implementation, and not just a minor variation on an existing design, then it is a different process. To be a valid patent, you have to get at the same result using something fundamentally different from existing designs.

In some fields, if you cannot patent a process, you get no protection for your work. This is especially relevant for, say, chemistry - because chemistry is all about process. You do This with stuff A under condition Q, then you raise the pressure and do That, and suddenly, you have Unobtanium! If I were to design a device and patent it, it wuold only be a device that enacts the process - the process is the interesting, valuable bit, not the machinery that enacts it.

The US patent system has other problems, e.g. where US patent office seems to consistently fail is the requirement of being non-obvious to be patentable - just consider Amazon's One-Click-Buy...

I agree the US patent system has issues. I just don't agree that this is one of them.

I think also, a proper implementation of the non-obvious requirement would probably dismiss most of your issues with process patents.

 

[Spookymonster]

That's really up to the owner of the IP though (in this case Hasbro/WOTC). Many companies are fine with fan material as long as you don't try to profit from it.

Apparently in this case (at least 5e), they are not fine with it. But you never know (until you get a C&D letter), the vast majority of companies seem to be willing to turn a blind eye for the sake of goodwill from its fanbase.
...
edit: Or are they just going after software? WOTC probably wants to license it out, thus sees any software as competition.

Or they've already licensed something out, and don't want the licensee to sue them. Consider Gale Force 9 and their 5E spell cards. They paid WOTC for the rights to publish a game aid for spells. Now along come the various web sites and programers that allow you to print your own set of cards, for free. What is WOTC supposed to do? If they do nothing, they risk getting sued by GF9 for not protecting the exclusivity WOTC promised them. If they issue a C&D, they risk alienating a portion of their fan base. Ultimately, failing to honor their licensing agreements is the more financially dangerous route, so they send out C&D emails.

 

[Janx]

If it is really an alternate implementation, and not just a minor variation on an existing design, then it is a different process. To be a valid patent, you have to get at the same result using something fundamentally different from existing designs.

In some fields, if you cannot patent a process, you get no protection for your work. This is especially relevant for, say, chemistry - because chemistry is all about process. You do This with stuff A under condition Q, then you raise the pressure and do That, and suddenly, you have Unobtanium! If I were to design a device and patent it, it wuold only be a device that enacts the process - the process is the interesting, valuable bit, not the machinery that enacts it.



I agree the US patent system has issues. I just don't agree that this is one of them.

I think also, a proper implementation of the non-obvious requirement would probably dismiss most of your issues with process patents.

As I have a patent, I agree. Somebody with skin in the game has a different view of things than folks who don't.

Software is a process, so the algorithm is the thing to protect. The implementation can usually be done in any programming language, so protecting the exact code I used (which falls under copyright) isn't sufficient.

If people can get past the Amazon One-Click fiasco, there are a ton of important and valid patents on RAID technology, encryption, etc. The processes these describe took time to figure out and give product advantage to the inventor if their competitor is barred from reverse engineering and copying the process so their product works the same way.

The non-obvious part is really the tricky part of the problem. What is non-obvious changes before and after you've seen the proposed solution.

Tesla's tale of how he got funding for the AC motor is by telling the tale of how Columbus got funding for a return trip to the Americas. His investors said there was no point in returning to the Americas. He told his investors he could solve the riddle of balancing an egg on end, and if they agreed to his bet, they'd fund him. Columbus then demonstrated balancing the egg on end by breaking the egg on end.

The investors cried "no fair, that was too simple." Columbus explained that it was only easy after the work was put in to figure it out. Nobody else had come up with the solution.

Tesla in telling his parable to his investor, then secured his own funding by improving Columbus's balanced egg. he balanced a metal egg on end by means of an alternating magnetic field under the egg, which was the underlying technology behind the AC motor.

In short, what is obvious or non-obvious needs to be weighed carefully. The general test I favor is whether an engineer in the same field would have solved the problem the same way. Amazon's One-Click would have failed because any engineer would have done it that way if their security analyst had told them not to. WotC's Tapping had plenty of prior opportunity to be invented, but they were the ones to come up with it. So it is only Obvious In Hindsight.

 

[Janx]

Or they've already licensed something out, and don't want the licensee to sue them. Consider Gale Force 9 and their 5E spell cards. They paid WOTC for the rights to publish a game aid for spells. Now along come the various web sites and programers that allow you to print your own set of cards, for free. What is WOTC supposed to do? If they do nothing, they risk getting sued by GF9 for not protecting the exclusivity WOTC promised them. If they issue a C&D, they risk alienating a portion of their fan base. Ultimately, failing to honor their licensing agreements is the more financially dangerous route, so they send out C&D emails.

This is a good example actually.

GF9 paid license money in good faith that they'd be able/allowed to make a product for 5e.

Once other people start doing it without a license, GF9 was effectively ripped off by either WotC for not preventing the violators, or the violators for rendering their fee useless.

People tend to be like "they're big, so who cares" but smaller parties like GF9 also get hurt in these things.

 

[Jhaelen]

As I have a patent, I agree. Somebody with skin in the game has a different view of things than folks who don't.

Speak for yourself. I have a patent, too, and I don't agree
Here in Germany it's basically impossible to patent an algorithm. So, in order to patent my software it had to be applied to a particular device, in my case a PBX. It would have been applicable to all kinds of network devices, but that would have required separate patents. And since I came up with it working for a telephone complany they weren't interested in any other applications. Now, is that a good or a bad thing? It means that someone else can copy my approach, as long as it's used in a different kind of device without having to respect my patent. I'm totally fine with that.

Since you brought up Tesla: in his biography, he's cited as complaining about patent law: He would have liked to patent the principles for his motors but since that wasn't possible, he patented as many variations of the principle that he could think of (and afford...).

Really, I'm a firm believer that some things simply shouldn't be patentable. What would you have done if someone had patented conditional jumps? It would have crippled the entire field of software engineering. Patenting genetically manipulated plants or animals, medicine, etc. are all questionable applications of patenting to me.