Discussions about writing in '4e compatable' mode?

[Fifth Element]

1) Get off the online forums
2) Hire a lawyer & ask them
3) Do what your lawyer says
4) ???
5) Profit!

Unfortunately, point 2 jeopardizes your ability to fulfill point 5.

 

[arscott]

I'm not so certain of that. As Clark Perterson of Necromancer Games pointed out, if they sue they will likely have to publicly open their books and show how much they are actually making from D&D. Also more importantly WotC's parent company Hasbro has been reluctant to sue Scrabulous even though it is an almost direct copy of Scrabble. I personally wouldn't bet on WotC actually sueing anyone (Cease and Desist letters are another matter) unless there is some very blatant infringement issues.

Here's the thing though: If they weren't willing to sue, then they almost certainly wouldn't have written such a restrictive GSL. As it stands, they either need to sue or admit that their GSL is worthless, and I don't think they're willing to do the latter.

 

[pemerton]

Generally speaking, names are not protected by copyright.

<snip>

Also, any text in a specific form is copyrighted.

<snip>

My guess is that if you don't use any of their trademarks and don't copy any blocks of text, you'll be fine.

<snip>

I wanted to correct some of the misinformation above.

I'm not sure what misinformation you are referring to, but I'm not sure that your post addresses all the relevant issues, such as copyright in derivative works, and a breach of copyright by way of imitative/allusory work, which I think can occur (under US law) even if specific text or names have not been reproduced.

 

[pemerton]

I'm not so certain of that. As Clark Perterson of Necromancer Games pointed out, if they sue they will likely have to publicly open their books and show how much they are actually making from D&D.

As far as I know you are referring to Clark's comment made in a discussion with me about the available remedies for a breach of clause 6 of the GSL. That is, it was in relation to the measure of damages for a breach of contract. I don't know what the rules are for the measure of damages for a breach of copyright under US copyright law, but I believe that they do not necessarily require the aggrieved party to prove a loss (and hence may well not require WoTC to open its books as evidence).

 

[pemerton]

I'd have to read the complaint to know, but I wouldn't be so sure they're suing over game mechanics and copyrightability. Scrabulous has a name which is clearly derivative of "Scrabble," which is undoubtedly trademarked so hard. I bet they have very little difficulty proving that Scrabulous is confusingly similar, especially given the context.

They're suing for copyright infringements, trademark infringements, trademark dilution, and unfair competition.

The remedies they're seeking include damages, account of profits (for unjust enrichment) and costs.

For all the copyright/trademark enthusiasts, it's interesting that they're pleading that Scrabulous is an unauthorised derivative work. They're also pleading, as part of the argument for this, that one cannot work out how to play Scrabulous without knowing the rules of Scrabble. I (and others) have pointed out on multiple occasions that these are potential problems facing a 3PP producing 4e-compatible adventures outside the framework of the GSL.

Now, that's not to say that Hasbro have a good case. But (to me at least, although I'm not an expert in the field) it doesn't look absurd. (Though I have to say, the pleadings seem very informal, what with references to the Great Depression and use of the phrase "knock-off" - can one of the US lawyers who posts here confirm if that is the norm for pleadings in US courts?)

 

[Cerebral Paladin]

I'm not sure what misinformation you are referring to, but I'm not sure that your post addresses all the relevant issues, such as copyright in derivative works, and a breach of copyright by way of imitative/allusory work, which I think can occur (under US law) even if specific text or names have not been reproduced.

As I tried to make clear, I am not an expert in IP law. And there are issues that I didn't cover or simplified, partly due to my lack of expertise. Anyone relying on my post as their whole analysis is being foolish and acting at their own peril. I don't know the full scope of what constitutes infringement if you make an obviously imitative work--I think you may be right that that can lead to infringement, although dozens of Lord of the Rings knock-offs demonstrate that it doesn't necessarily. However, I do know that it is standard black-letter law that copyright protects specific representations of ideas, not the ideas themselves and that names cannot be copyrighted (although they can be trademarked). What I viewed as misinformation was specifically the notion that the names of classes could be copyrighted in and of themselves. (They could of course be trademarked, but that's different, and requires an affirmative act by the party trademarking the term to indicate that status. Also, most of the names of the current classes probably couldn't be trademarked anyway, because most of the classes have names that are widely used in other games, anyway.)

The area is hazy. If I made it sound otherwise, I'm sorry. My understanding is that the general consensus is that gaming products designed to piggyback on pre-existing games do not infringe copyright, assuming they don't violate trademarks, copy text, or the like, but there are relatively few cases addressing the issue squarely. There is probably nothing that anyone can publish that is explicitly designed to use the 4E rules and is unlicensed that would be completely clear of any risk of at least getting sued, even if WotC would not prevail. But there are things that can be done that would reduce the risk, and that would in particular reduce the risk of being sued successfully.

 

[arscott]

As far as I know you are referring to Clark's comment made in a discussion with me about the available remedies for a breach of clause 6 of the GSL. That is, it was in relation to the measure of damages for a breach of contract. I don't know what the rules are for the measure of damages for a breach of copyright under US copyright law, but I believe that they do not necessarily require the aggrieved party to prove a loss (and hence may well not require WoTC to open its books as evidence).

Assuming that WotC has registered the books with the US copyright office (which is pretty much a no-brainer for commercially produced works), then they can sue for Statutory Damages instead of actual damages. Rather than trying to prove how much they lost and/or their competitors unfairly gained, they just get a flat amount that the judge considers fair (anywhere between $750 and $30,000 normally, and as high as $150,000 or as low as $200 under certain special circumstances).