Another Cease and Desist Letter: 4E Powercards

[Spatula]

In the end like I said earlier I don't dispute whether WotC had the right to send out the C&D letters... I don't however agree with the direction I see this headed in...

Oh, please. WotC isn't going to go around shutting down every website that has some game terms on it. Talk about paranoia.

Flagrant copyright & trademark violations = obviously and stupidly illegal
People posting their characters online = not an actual threat to WotC's business

 

[merelycompetent]

In US law is claiming enough or does it have to provide some substantial evidence or something like that? I mean how the legal system defends itself by the possibility for someone to start charging for millions for some power card or whatever product have you and then asking for damages for someone that has been distributing them for free?

Your best bet is to consult with a lawyer for your legal questions. There is also a great deal of general information available on the net:

U.S. Copyright Office
Copyright Office Basics
10 Big Myths about copyright explained
Stanford Copyright & Fair Use Center

I'm sure that there are other reliable sites out there. The above should get you started.

 

[Dannager]

In US law is claiming enough or does it have to provide some substantial evidence or something like that? I mean how the legal system defends itself by the possibility for someone to start charging for millions for some power card or whatever product have you and then asking for damages for someone that has been distributing them for free?

In a civil case the standard is what's referred to as a preponderance of evidence - in other words, it is generally accepted that if a majority of the evidence agrees with your claim, the case will be adjudicated in your favor.

This gets iffy in an intellectual property case, as coming up with any kind of evidence about what people might have done if they weren't able to illegally obtain material is difficult. Given, however, that it's a clear violation of law and that it's likely that at least some damage was incurred due to lost sales, the judge would probably view WotC's case favorably.

Note that all of the above is based on pre-law student knowledge. IANAL.

 

[Imaro]

Oh, please. WotC isn't going to go around shutting down every website that has some game terms on it. Talk about paranoia.

Flagrant copyright & trademark violations = obviously and stupidly illegal
People posting their characters online = not an actual threat to WotC's business

Did I say that? Really did I? What I do think is going to happen is that we are going to see some really good power card sets (possibly better than the one's WotC produces) vanish off the net... at least as far as being available through legal means.

 

[the Jester]

Did I say that? Really did I? What I do think is going to happen is that we are going to see some really good power card sets (possibly better than the one's WotC produces) vanish off the net... at least as far as being available through legal means.

The whole point is that they weren't available through legal means- the copyright violation means that having them up was illegal from the start, regardless of whether WotC spoke up or not.

 

[Cor Azer]

But if it's below the criminal threshold, can you still engage in a civil suit? And how can it be copyright infringement if it's not a criminal activity. Is your copyright law not part of the criminal code?

I'm sorry if I derail the thread with detailed law questions, but I find it very interesting to learn the differences between US law and our law in this area. Sometimes (as when we were debating the previous C&D against Ema) US law is not even applicable, so it's good to know how it differs.

Just to be sure, I'm not a lawyer, but I read one on Slashdot

Again, I don't know the exact differences between civil copyright infringement and criminal copyright infringement. If I had to hazard a guess, criminal copyright infringement would be mass duplication and distribution (for some quantity of mass), especially if misrepresentation is involved (claiming the work is your own, for instance), whereas civil copyright infringement is akin to downloading a copy.

 

[Cor Azer]

In US law is claiming enough or does it have to provide some substantial evidence or something like that? I mean how the legal system defends itself by the possibility for someone to start charging for millions for some power card or whatever product have you and then asking for damages for someone that has been distributing them for free?

That's where the lawyers come in. Plaintiff and defendant can claim whatever they wish... the question is how well their arguments and evidence convince the judge or jury, which may end up being some middle ground between the two sides.

 

[dvvega]

In the world of copyright law it does not matter if it is a criminal or a civil suit, it must be upheld as a local person in the country would be protected/sued if the country has signed onto the Berne Convention.

Thus if you are in Sweden with a great website with all the Ritual texts on it because you are printing out Ritual cards and the owner of the Ritual text is in the US then if you refused to comply with a C&D letter the US can then make a petition to the Swedish law courts as if they were Swedish Copyright Holders.

In quick easy terms, you are treated as a citizen of that nation with regards to copyright and that country must uphold your copyright just as they would for one of their own.

As to the difference between civil and criminal copyright law. A criminal offence is generally a misrepresentation of the imprint of the material you originally copyrighted. For example, putting the WoTC logo on a record sheet of your own making and selling your efforts. This indirectly implies that you are a WoTC representative or that your work has somehow been approved by them.

And technically saying T$R infringes their copyright because you are mutilating/altering the seal/imprint of a company. Lucky for us it isn't their original logo we are doing it to

This kind of case came up with Judges Guild in TSR days if I remember correctly. They were using the TSR logo which implied sanctioned material but it wasn't so.

 

[jmucchiello]

Wow, am I out of the loop! Can someone point me at the discussion for the first site sent a C&D, I missed that discussion entirely?

Anybody?

 

[jmucchiello]

IANAL, but...

Technically, Yes. Technically, every local band in every local bar is performing copyrighted material without the license to do so (unless it's their own original copyrighted material). However, it's almost impossible to enforce, completely non-cost-effective to enforce, and actually counter-productive (since it is in effect, free advertising) and might be considered fair-use(?). However, if you wrote a song, and someone else started performing it, and they were actually becoming better known for it than you (or they were performing it so badly it was ruining the song), it would be in your best interest (and your rights) to force them to stop performing it.

Except ASCAP and BMI exist and this isn't really an issue. ASCAP and BMI receive licensing fees from every public performance venue in existence allowing live and recorded music to be reproduced for the enjoyment of the venues' patrons. It is amazingly similar to a protection racket. If you open a bar with a jukebox, within weeks someone from one of the two companies will show up asking for a cut. I have no idea how they find out but they do.

In any case, those companies are supposed to distribute the royalties collected in this manner to the copyright holders. Of course, they don't know what songs end up being covered so generally if you cover obscure songs, the owners of those songs are probably screwed out of their small royalty unless they witness the performance and send a claim to ASCAP/BMI.

Boston...

This had to be a trademark issue involving the name and logos of the band. An artist contracted by ASCAP or BMI cannot stop anyone from performing their songs as long as the royalties are being paid. That's the whole point of singing with ASCAP or BMI, to get paid for public performance of your music. If you don't want it performed publicly, you don't sign with them. But good luck suing starving artists who just happen to cover your songs.