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

[Morrus]

The idea that "githyanki" is a product identity name is somewhat odd given the fact that it was "borrowed" from a George R. R. Martin novel.

It's not that odd if you thnk about it. What it is is this:

"Hey, we at WotC would like to give you all this stuff to use, pretty much as you wish, with a couple of conditions. One of those is that you agree to steer clear of a few monsters, as we want to build our brand around them. If you're OK with doing that, you can have all this other stuff, no questions asked!"

That's why the OGL created the term "Product Identity" -- it's a category of items which the license itself defines. As mentioned above, that's not the same "Intellectual Property" or "copyright" or any other claim.

They could have said "You can use this license if you agree not to eat apple pie again". That doesn't mean they are saying they invented apple pie, just that the cost of using the license is to not eat apple pie.

 

[Aldarc]

Good point.

 

[Umbran]

Gratiutious promises generally aren't binding in common law legal systems. That clause only binds WotC if it becomes a party to a contract, which only occurs when someone takes up the offer.

Yes, but you see, since the license is, by its own terms, distributed with the licensed work, WotC cannot recall it. Remember that entring into this license agreement is passive on WotC's part. There is no active communication between licensor and licensee, and thus no way for WotC to change it.

Ryan Dancey was not incompetent. But there is no simple way in common law legal systems to unilaterally make a standing offer to all the world that is not capable of subsequent retraction.

Oh, yes you can, and in fact, must be able to, or else the following is possible.

Say Joe Writer creates the "Open Author's License". Its terms are equivalent to putting the work into Public Domain, with the one stipulation that the work must include a frontispiece reading, "Many thanks to Joe Writer for his material," with the work. Joe publishes a book, including v1.0 of this license.

Then, the week after Joe creates version 1.1 of the Open Author's License, with the same stipulations, but an addition that the licensee must also pay $100,000 per month to Joe Writer or his estate, in perpetuity (or, include any other onerous stipulation that you wish - for the example, all it needs is to be onerous). Joe publishes a single copy of the book with this new license.

Sam Author comes across the work with version 1.0, and uses it. Joe comes up and now claims that he's retracted 1.0, and that Sam now owes several hundred thousand dollars worth of pack payments, or other imposition of the onerous terms, or face lawsuit.... Which is, of course, complete nonsense. You cannot change contract terms without the permission of the parties in the contract!

So, no - if you openly distribute a work with a license, and allow the licensee to enter into that license without an express discussion and signed agreement with you first, the license can't be changed in the background, separate from the work it applies to. The OGL happens to make this expressly clear, but it would be true regardless.

WotC is free to re-release the same material under a different license. But, that new license is merely another option that may be used, not must be used. They cannot prevent anyone from using the older one, because WotC cannot control whether a licensee got a version of the text with the new or old license.

And, in fact, WotC did this - back in the day, 3e was licensed under the OGL, or the d20 license, depending on whether the publisher wanted ot use the d20 logo and actively claim compatibility with D&D or not.

 

[lowkey13]

*Deleted by user*

 

[S'mon]

To quote Chief Justice Roberts, "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria

Most academic work is much less useful than that!
Hopefully most academics who teach undergrads and postgrads Contract Law and Intellectual Property law do know a bit about those subjects though. Even if some of them don't seem to know much about teaching... sigh
Edit: While judges may have undifferentiated animosity for all us academics, we do vary quite a bit. Some of us do actually read cases and know a bit about the black-letter law.

I agree that an educated layman may well know more about a legal area than a lawyer not operating in that area, though the lawyer probably knows more about procedure and how to actually win a case - which rarely has very much to do with the substantive law.

 

[lowkey13]

*Deleted by user*

 

[Greenfield]

Copyright isn't intended to shut down things like home brew games. What it does shut down is the ability/right to copy their own work. (hence the term "copyright".)

The OGL spells out specifically what people can use and republish and what they can't.

If his postings are as similar to the published WOTC publications as he's demonstrated in the Cyclops example, and they're outside the OGL, he's screwed. Particularly if he's actually claiming copyright on his version. You can't claim ownership of someone else's published material.

In theory each of us owns our own ideas, even those casually published in forums like this one. And anyone can claim copyright on their work, and anyone can put the little "(C)" emblem in their work. (They're not supposed to anyway.) That's not really the same as a registered copyright though, so enforcement would be a problem.

I know that WOTC's copyright is registered and I'm betting that his isn't.

In any case, they are bigger than he is, so even if this was a fight on a level playing field, he'd probably lose. And the field isn't level. They had prior publication and prior registration (if his is registered at all), and that means he loses.

Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal. If he offers them that classic "one dollar plus good and valuable consideration" to license their work he's probably fine.

Sounds like he doesn't want to do that, so there may be trouble coming down the pipe for him.

 

[Morrus]

I agree that an educated layman may well know more about a legal area than a lawyer not operating in that area, though the lawyer probably knows more about procedure and how to actually win a case - which rarely has very much to do with the substantive law.

I can only speak for myself, but I’ve worked with a very narrow set of legal topics repeatedly for about 20 years.

 

[S'mon]

Copyright isn't intended to shut down things like home brew games. What it does shut down is the ability/right to copy their own work. (hence the term "copyright".)

The OGL spells out specifically what people can use and republish and what they can't.

If his postings are as similar to the published WOTC publications as he's demonstrated in the Cyclops example, and they're outside the OGL, he's screwed. Particularly if he's actually claiming copyright on his version. You can't claim ownership of someone else's published material.

In theory each of us owns our own ideas, even those casually published in forums like this one. And anyone can claim copyright on their work, and anyone can put the little "(C)" emblem in their work. (They're not supposed to anyway.) That's not really the same as a registered copyright though, so enforcement would be a problem.

I know that WOTC's copyright is registered and I'm betting that his isn't.

In any case, they are bigger than he is, so even if this was a fight on a level playing field, he'd probably lose. And the field isn't level. They had prior publication and prior registration (if his is registered at all), and that means he loses.

Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal. If he offers them that classic "one dollar plus good and valuable consideration" to license their work he's probably fine.

Sounds like he doesn't want to do that, so there may be trouble coming down the pipe for him.

This would I'm afraid be a great example of a #2.

For one thing, copyright is not use-it-or-lose -it; whereas Trade Marks do have to be defended in order to retain their badge-of-origin function.

 

[Morrus]

Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal.

You’re confusing copyright with trademarks.

(And with the latter, you’re not obligated to sue people - you can always give them permission (license them). There’s always a choice in how you react.)