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Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

Parmandur

Adventurer
I looked through the images which were presented, and both the format and the text are modified.

Tor example, CR and Exp are relocated, and the layout uses simple lines of varying widths, while the WotC layout uses tapering lines.

Certain text elements are the same -- "Poor Depth Perception" -- but the exact wordings differ.

I think a key question is whether the wording differences are sufficient, or were made to simply appear different. The appearances do seem very similar. But then there is a second issue, which is whether the words (and layout) are primarily functional in intent.

Thx!
TomB
It copies whole sentences. It's not a coherent argument.
 

BookBarbarian

Expert Long Rester
(A name like "Illithid" is copyrightable, but a name like "Cyclops", which has been around for a very long time, isn't.
Frylock makes the case that a single word no matter how creative cannot be copryrighted, trademarked yes but not copyrighted. I have no idea if this is true however.

In fact that's the whole crux of his point. A discernible statblock must be so simple as to be completely uncopyrightable.

This popcorn is delicious btw,
 
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lowkey13

Exterminate all rational thought
I looked through the images which were presented, and both the format and the text are modified.

Tor example, CR and Exp are relocated, and the layout uses simple lines of varying widths, while the WotC layout uses tapering lines.

Certain text elements are the same -- "Poor Depth Perception" -- but the exact wordings differ.

I think a key question is whether the wording differences are sufficient, or were made to simply appear different. The appearances do seem very similar. But then there is a second issue, which is whether the words (and layout) are primarily functional in intent.
 

tomBitonti

Explorer
Having read through the first blog post, I'm finding that I tend to agree with his conclusion, but find his reasoning to be terribly muddled. Not to mention, makes a couple of dubious claims.

I find his arguments that stat blocks serve a functional purpose works in his favor. That fits with the idea that there are many many stat block formats, and they tend to a common, functional, layout. But I find that his argument that describing a historical Cyclops is non-creative because none of the properties deviate (in any substantial way) from a historical Cyclops to be completely off point. I don't think it matters how original the idea is that is being expressed so far as deciding whether an expression of that idea is creative.

Thx!
TomB
 

Parmandur

Adventurer
Having read through the first blog post, I'm finding that I tend to agree with his conclusion, but find his reasoning to be terribly muddled. Not to mention, makes a couple of dubious claims.

I find his arguments that stat blocks serve a functional purpose works in his favor. That fits with the idea that there are many many stat block formats, and they tend to a common, functional, layout. But I find that his argument that describing a historical Cyclops is non-creative because none of the properties deviate (in any substantial way) from a historical Cyclops to be completely off point. I don't think it matters how original the idea is that is being expressed so far as deciding whether an expression of that idea is creative.

Thx!
TomB
There are recordings out there of Mike Mearls and Jeremy Crawford constructing monsters live: his argument falls apart entirely based on how they make these choices.
 

BookBarbarian

Expert Long Rester
There are recordings out there of Mike Mearls and Jeremy Crawford constructing monsters live: his argument falls apart entirely based on how they make these choices.
His argument seems to be “Is it creative?” is insufficient. One must then ask, “But is it creative enough?”'

What is your argument that these live creation processes are evidence that the information presented solely in the resulting statblock is "enough"?

Edit: I have know idea what "enough" is for a court of law anyway, so don't feel any particular need to convince me.
 
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LordEntrails

Explorer
I would be satisfied if they had a requirement that you be informed when your material is used by another party.
Do you understand the impracticality of this? This is like asking Twitch to pre-screen every live stream. The human resource capital required to screen every product and compare its content to every other product is huge. The investment in software and computer algorithms required to approach such a solution is prohibitive, and in itself would prove a significant concern for privacy if such capabilities exist because of what they could be used for.

Do you ask the Library of Congress to verify no book it accepts has any plagiarized content before they accept it into the archive? Of course not.


Anyway, to the OP.

I found flaws in Flaylock's arguments. For instance stating that public sources on a cyclops says they are strong and dumb, but he then goes on to say their is no creativity in the resulting stats. But why? I mean what mythological source says that a cylcop's strength is 22? Why not 21 or 23? There is a decision made their, just like with every other numerical value. They are not givens. The mechanics of the systems does not say, 'a strength of 22 is defined at the strength of am mythological one-eyed giant'.

Like every lawyer, he is arguing his case from a biased point of view. That the adversarial approach to law that the US system relies upon. He only states those views that seem to support his side, and ignores anything that pokes holes it.
 

qstor

Explorer
Alright I read the entire blog post and the way it's broken down does seem to be a sound argument that a statblock, any statblock, is not copyrightable. But I am admittedly no lawyer.
That's how OSR games like OSRIC use the OGL to create AD&D clones the "rules" themselves aren't copyright-able. I'd argue that a stat block if its in the SRD is usable by anyone.
 

Parmandur

Adventurer
His argument seems to be “Is it creative?” is insufficient. One must then ask, “But is it creative enough?”'

What is your argument that these live creation processes are evidence that the information presented solely in the resulting statblock is "enough"?

Edit: I have know idea what "enough" is for a court of law anyway, so don't feel any particular need to convince me.
The cornerstone of his argument seems to be that not only the numbers, but the ability descriptions, are not creative but rather purely descriptive of existing reality. When, in actuality, the designers make monsters, they are pretty open about the arbitrary naturenof most of their choices, and how the ability scores et al are chosen by feel, that is, creatively.
 

Aaron L

Registered User
OK; I am in no way a lawyer, but this is the situation as far as I am able to tell:

The game statistics WotC has created for various mythological monsters are in no way objective facts that can be measured by anyone and which everyone can agree upon (such as the distance from Earth to Jupiter.) These monsters are absolutely based on public domain mythological creatures, true, but D&D game statistics are not simply a list of universally agreed upon characteristics of public domain mythological entities (such as a cyclops being a large humanoid creature with a single eye in its forehead) as this guy seems to be arguing. Instead, the game statistics of these monsters are unique creative interpretations of these mythological entities, as interpreted through the creative lens of a game system created by WotC, and were absolutely created by employees of WotC.

The argument he seems to be trying to make is that the 5th Edition Dungeons & Dragons game statistics of these mythological creatures (IE certain defined numerical values for physical attributes, such as a Strength rating for a cyclops which therefore defines how much weight it can lift and carry) are simply objective attributes of the mythological creatures that anyone could easily recognize and record from the original mythological source material. And that is a completely invalid argument; the various pieces of mythological source material do not define exact figures for the height, weight, strength capacity, specific level of intelligence (or Dexterity, Constitution, Charisma, etc.) of these mythological creatures in the way that WotC has interpreted and expressed them in D&D 5E game mechanics terms. The creatures are public domain entities from mythology, yes, but the D&D statistics are new, separate, unique creative interpretations of the creatures.

Has there been some major ongoing issue with WotC legally harassing fan websites (like TSR used to do) that I have been completely oblivious to, that this guy is heroically taking a stand against? Because as far as I understand, WotC has been pretty cool about D&D fans talking about D&D online using game stats (as they rightly should be, since it gives them free publicity, generates excitement for existing fans, and brings new players to the game.) Or is this all instead what I think it is: a potential fiasco being engineered by a narcissistic lawyer with a desire for attention and publicity, which will end up accomplishing nothing except potentially sowing absolutely unnecessary discord and distrust between the gaming community and the legal departments of WotC and Hasbro, which would bring nothing but harm to the D&D gaming community?
 
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BookBarbarian

Expert Long Rester
Anyway, to the OP.

I found flaws in Flaylock's arguments. For instance stating that public sources on a cyclops says they are strong and dumb, but he then goes on to say their is no creativity in the resulting stats. But why? I mean what mythological source says that a cylcop's strength is 22? Why not 21 or 23? There is a decision made their, just like with every other numerical value. They are not givens. The mechanics of the systems does not say, 'a strength of 22 is defined at the strength of am mythological one-eyed giant'.

Like every lawyer, he is arguing his case from a biased point of view. That the adversarial approach to law that the US system relies upon. He only states those views that seem to support his side, and ignores anything that pokes holes it.
Is the decision to turn a 22 into a 23 or a 21 creative enough to justify copyright though? As far as I understand it the onus is on WotC, by law that is, to demonstrate it is if they want to pursue action when Frylock refuses to comply with their C&D letter.

If this thread is any indication of wider opinions out there, if his tactic is to turn public opinion in his favour to encourage an out-of-court settlement he might want to try another tactic.

@BookBarbarian - are you sharing that popcorn?
Please have some, I'm a heavy on the salt light on the butter kind of guy.

I actually think his end result is to get WotC to send few cease and desist letters, not any type of settlement. I mean settle over what, the fact that he won't take the stat blocks down even though WotC told him to?

Maybe his goal is to help others feel more confident in ignoring those C&D letters, or to get them to do more research before doing so?

It's anybody's guess really.

That's how OSR games like OSRIC use the OGL to create AD&D clones the "rules" themselves aren't copyright-able. I'd argue that a stat block if its in the SRD is usable by anyone.
Recently VGtM one-stop-statblocks were published which are not in the SRD.

But he is actually surmising that WotC hasn't read any of the statblocks and the letter is a knee-jerk to finding that his one-stop-statblocks exist in the first place.
 

lowkey13

Exterminate all rational thought
Is the decision to turn a 22 into a 23 or a 21 creative enough to justify copyright though? As far as I understand it the onus is on WotC, by law that is, to demonstrate it is if they want to pursue action when Frylock refuses to comply with their C&D letter.
Um, no.

Briefly, were WoTC to file an action, they would show (in their complaint) that they have a registered copyright (for example, 2016 for Volo's, 2014 for MM). Then that this person was using the copyrighted material.

At that point, he could certainly defend the suit (affirmative defenses) by saying that the registered copyright is invalid, or attempt to raise another defense (that he is only using non-copyrighted material from the copyrighted work).

But as I noted above, since WoTC actually has a registered copyright (as opposed to just slapping a copyright symbol on someone else's work), they would be entitled to statutory damages and attorney's fees if they prevail.

Good luck with that!
 

Beleriphon

Totally Awesome Pirate Brain
Right, like if I tell a new and distinct story about Thor and Loki dealing with Jotuns, I can copyright that. I can't trademark "Thor", but I can copyright stories or art about Thor.
Which is how Marvel gets away with using Thor and Loki. Anybody can tell a story about Thor and Loki, but they can't use the likeness of Marvel Thor and Loki.

I prefer DC's method of dealing with Superman. The S shield is a trademark, good luck telling a Superman story without that symbol.
 

BookBarbarian

Expert Long Rester
Um, no.

Briefly, were WoTC to file an action, they would show (in their complaint) that they have a registered copyright (for example, 2016 for Volo's, 2014 for MM). Then that this person was using the copyrighted material.

At that point, he could certainly defend the suit (affirmative defenses) by saying that the registered copyright is invalid, or attempt to raise another defense (that he is only using non-copyrighted material from the copyrighted work).

But as I noted above, since WoTC actually has a registered copyright (as opposed to just slapping a copyright symbol on someone else's work), they would be entitled to statutory damages and attorney's fees if they prevail.

Good luck with that!
I've got no dog in this fight. I was basing my post off of this comment on the blog by Frylock.

No, WotC has every right to protect their copyrights, but the point is that Supreme Court (and other court) precedent stands firmly against a copyright in stat blocks (as WotC has presented them). Moreover, as Justice Kagan recently pointed out in Marvel v. Kimble (a case a patent on a Spiderman webslinging toy), if the Supreme Court interprets a statute one way, and the legislature doesn’t amend their law to correct it after literally decades of opportunity to do so, then it’s clear the Court has no choice but to uphold past precedent. According to that case, that’s the strongest form of stare decisis there is. No way WotC wins back the “sweat of the brow” idea.

As for demanding I sue, that seems unfair. First, copyright misuse is a defense, and the Fourth Ciurcuit (where I live) hasn’t recognized it as something for which a plaintiff can affirmatively sue. Second, you mildly criticize my use of theory to justify my position, yet I suspect the only reason you’re making this demand of me is because you know I’m a lawyer. Would you expect an uneducated person of limited means to spend $200,000 of IP litigation? If not, then either you shouldn’t ask me to do so, or at least shouldn’t criticize my use of the law to make a legal argument. As I said, that’s not fair. Third, I shouldn’t have to set a precedent; it’s already been set in my favor. The burden is on WotC to justify their actions that spit in the face of that precedent.
This seems to apply both too the post I replied to and yours. If he is incorrect I would be interested to know.
 

lowkey13

Exterminate all rational thought
This seems to apply both too the post I replied to and yours. If he is incorrect I would be interested to know.
He states that precedent is with him; however, having read his post, I do not agree. He stretches several cases to try and make his argument, and sums it up as if there was a case authored by CJ Roberts with a holding of, "Yo, you can rip off stat blocks in RPGs all you want. Hold my beer." Saying that there is a precedent that a collection of un-copyrightable material (like phone numbers) cannot be copyrighted is not binding precedent with regard to stat blocks, and I don't even understand why he thinks it is authoritative since it begs the questions (yes, if you can't copyright stat blocks, then you can't copyright collections of them, but where is the authority regarding copyrighting unique and creative expressions of monster attributes, especially w/r/t the textual parts?).

He can make his argument; after all, nothing keeps you from making any argument you want! That said, I am curious to see if the bluster will continue once a lawsuit is filed. There's a big difference between a solo practitioner talking the big talk ("looka me, ima big boy attorney!") as opposed to weighing the cost/benefit analysis of statutory damages and paying WoTC's legal fees because you got your feelies hurt from a nice email.
 

AriochQ

Explorer
Do you understand the impracticality of this?
I should have been more clear. The onus would be on the content creator using the material to report it. DM's Guild could then impose sanctions/penalties for failure to comply.

Back to the original discussion..

I wouldn't be surprised if he wins. If I am not mistaken, wasn't it fairly recently that publishers were handed a defeat in court in that they couldn't copyright game systems?
 

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