A History & Analysis of TSR’s Copyright Policies

[joethelawyer]

A History & Analysis of TSR’s Copyright Policies

Here's a really interesting historical article written by a guy from the Usenet days of the T$R copyright wars of the mid-90's. He apparently wrote it just as the OGL was about to be adopted, so the meat of it covers 1994 (and earlier) until then. I think it captures a lot of what was going on at that time. We have come a long way.

I post this for general interest and discussion purposes, not to start a war on anything. Please try and keep it that way.

None of this is my work...though in the article when he mentions law students, one of them was me.

Enjoy...

 

[Cardboard Carnage]

The last line is a classic... thanks for posting.

D.

 

[Jack7]

And you know the best thing
about the good old days? It was the
comparative lack of these fiendish
creatures… a general sense that they
weren’t needed, that their lives and
ours needn’t ever intersect. Like the
terrible lizard, these evil minions
called “lawyers” belonged to
another world, one quite apart from
our own. Oh, those were the days.

I got a buddy who is a copyright lawyer. He'll get a kick out of that.

 

[Silverblade The Ench]

Since I do fan art of D&D (Spelljammer mostly) I contacted TSR back aorund 1999?? something like that, and, amazingly, the response to me was fan art = grey area = probably ok long as I didn't over step it.
Was expecting the usual crap instead.

I don't want to drag a good thread into politics, but yeah, lawyers, IP, DRM etc...all a big mess that makes things worse, not better, and TSR's woes and attitudes shows why People always get greedy and take things to extremes, in any area of our societies.

 

[Aus_Snow]

Thanks joe, that was an interesting read.

Ah, such idealism. If only. . .

 

[Oldtimer]

Such a good read... it brings back many memories.

Do you know when it was published and in what APA?

 

[Hussar]

Very facinating read. Thanks for this.

 

[S'mon]

I remember corresponding with a TSR lawyer in the mid-90s. At the time I was writing my PhD on copyright, these days I'm a UK senior lecturer (US - Professor) teaching IP law, including copyright. I remember being struck by how this TSR lawyer had only the vaguest idea about what US copyright law actually said. They barely seemed to know the difference between copyright and trademarks. One reason for the 'sue the fans' policy was that they apparently thought that copyrights became unenforceable if not aggressively enforced. Which is potentially true for trademarks under US law, but bears no relation to copyright law.

Edit: As that article indicates, they also did not seem to know what a 'derivative work' was. There was never any basis for their claims that a D&D-compatible adventure was inherently a derivative work of D&D. They also didn't seem to understand that a phrase like "Armor Class" is not copyright protected. Nor did they understand that trade mark infringement requires a commercial use of the mark - a use indicating the origin of goods.

Edit 2: Setting an adventure set arbitrarily in the Forgotten Realms setting does not create a derivative work of (eg) the FR 1e grey box contents. Writing a story where the protagonist is Elminster might conceivably create a derivative work in US law, but still you have to go back to the original works and show where the non-literal copying occurred. And there must be substantial copying of the original literary works.

 

[DaveMage]

It's amazing to watch the cycle unfold.

Hopefully WotC will not return to the worst days of TSR, but the closing of things (OGL -> GSL) may be a step in that direction. (Or it may not, but as people change over there, who knows?)

 

[Imperialus]

It's amazing to watch the cycle unfold.

Hopefully WotC will not return to the worst days of TSR, but the closing of things (OGL -> GSL) may be a step in that direction. (Or it may not, but as people change over there, who knows?)

I'll be interested to see how things shake out too.

My prediction is that it will never get as tight as it was in the 90's but they're definitely putting some fences up around the pasture. I won't be surprised if a few people who try and push the boundaries start getting some legal attention.

The big thing that works against it though is now there is actual legal president for open gaming. It would have been tough to use the early Gygax quote he uses in a court case but now there is a legal framework that open gaming (and not exclusively OGL gaming) can take place under. I expect that we'll see some new systems start to emerge that also take advantage of the open framework. I suspect that White Wolf might try something to try and capture some of the market but who knows? Paizo almost certainly going to do something but I don't know enough about Pathfinder to say for certain.

Plus there are the companies that are going to keep doing their own D20 derivatives. I suspect that Green Ronin's True20's going to come out of this well, even if they don't become a huge player. If Troll Lord survives the loss of Zygag and revise C&C some more they'll probably do OK too.

At any rate, moving beyond D20 and open gaming, Shadowrun is still going strong, Steve Jackon has quietly kept his fanbase loyal, I think that WoD's still doing well, and Burning Wheel has the potential to be big if Luke gets his system a bit more coherent and busts out of the niche he's created for himself... Of course that's assuming he isn't perfectly happy in his niche, if that's the case then I can see the next Paladium.

I don't think we're about to return to the bad old days, just something different.