Gleemax Terms of Use - Unacceptable

resistor · Feb 5, 2008

I'm not a moderator, but I'd like to remind everyone on all sides to remain civil. Direct attacks on other posters are not conducive to discussion, even in response to real or inferred insults.

EDIT: Looking at the last few pages, there are definitely more than two sides.

Raven Crowking · Feb 5, 2008

JPL said:
I'm going to check out of this discussion...even if you are overreacting here, that's ultimately your call to make, and I suppose one should err on the side of caution.

Well, here's the thing. If you are right, and neither WotC nor any of the future owners or sublicensees of these rights ever use them unfairly, the TOU are still draconian, and it is bad practice to give away more rights than necessary to achieve your purpose. Even if you are right, the TOU should be rewritten to reflect only what WotC claims they are required for, and nothing else.

If you are wrong, of course, attempts to dismiss or confuse these concerns could cause untold harm to people who either didn't really read, or didn't really understand, the TOU. You merely have to examine this thread, including claims that WotC cannot claim ownership of what is posted on Gleemax even after the part of the TOU specifically giving them that right has been quoted to know that many people aren't going to really understand what they are giving up in terms of their own rights, and what liabilities they are accepting.

The concerns I outlined above are legitimate, because they are specifically codified in the TOU. This might be "boilerplate" as you suggest, or it might be hedging bets against the future (because who knows what rights you or your successor might want to be able to assert, or how having those rights available might affect the salability of your company?).

Given that this is the case, attempting to dismiss legitimate concerns with talk of "cyborgs" and "selling all your old posts to Satan" is not only patronizing, but it obscures the actual issues to what may very well be detrimental effect. And, in our society, when Cyborg Satan is faced with being liable for WotC's legal bills and royalty payments, and he remembers that he dismissed these concerns because of your posts, don't you think there is just a small chance that Cyborg Satan might try to claim that you are somewhat liable, just to ameliorate his losses?

Personally, I believe that people are generally good, and generally want to think of themselves as good. I am certain that is as true of the employees of WotC as it is of people in general.

I also believe, however, that people behave in accordance to the principles of economics. They examine the potential risks and rewards of actions, and make decisions on the basis of how they understand those risks and rewards. This is also as true of WotC employees as it is of other people.

When you grant sweeping powers (such as those granted by the TOU) to a group of people, you greatly reduce the risk of unethical behaviour, because, in our society, the legal risks are the primary risks of unethical behaviour. This is demonstrable when examining ethics as taught in business school. In this case, ethics is not about doing what is right regardless of the consequences (which is encompassed by the standard meaning of "ethical") but rather what you must do to avoid liability (which has little or nothing to do with actual ethical behaviour).

When you reduce the risks of unethical behaviour, you gain an equal increase in the chances of that unethical behaviour eventually being performed. The Gleemax/Wizards TOU make it almost certain that, eventually, they will be used unfairly. After all, the only remaining risk is that we, the customers, will care, and that risk is greatly reduced if it becomes obvious that we didn't care about the unfair TOU in the first place.

I have been accused of misplaced optimism many, many times by people who know me well. I don't think my optimism is misplaced. I have general faith in humanity. But I would be a fool to think that if I agreed to allow you to stack the deck in a high stakes poker game, without fear of consequence, that you would not eventually find a way to justify stacking the deck, regardless of your ethical stance. Especially if you had to answer to shareholders. Especially if those shareholders could use legal means to force you to stack the deck.

I might hate myself for doing it later, but I know as a fact that sooner or later I'd stack the deck. And that I'd stack it more than once.

If you think that I am an abberation in this regard, then by all means, use Gleemax. Agree to the WotC TOU without fear.

Just don't say that I didn't warn you.

RC

WhimsyTheFae · Feb 5, 2008

Raven Crowking said:
Hussar, you are wrong.

The Gleemax TOU say that WotC could use it, trademark it, copyright it, patent it, and then sell those copyrights, trademarks, and patents, and if there was ever any legal fallout, you must pay all costs and damages.

RC

So, if I post a picture that I found on the internet for my character portrait in some thread on Gleemax and then WotC includes said picture in a publication and was sued for it later (because I didn't really own said picture), I would have to bear all the costs related to the lawsuit.

Is this how you understand that portion of the TOU? I don't know either way, but am trying to figure out if the above scenario is possible (if the TOU works the way you understand it to).

PapersAndPaychecks · Feb 5, 2008

resistor said:
OK, we're just squabbling over semantic now.

Largely, yeah. But I think it's valuable to discuss, if only because this is widely misunderstood and I suspect some of the histrionics in this thread might have arisen from such misunderstanding.

resistor said:
2) The detailed ideas. The specific mechanics of the game, including, in the case of the MtG patent, the mechanic of tapping by turning a card 90 degrees. This can be protect by a patent.

Yeah, but it's important to be clear about what the patent protects.

If I were so inclined, I would feel comfortable about producing a collectible trading card game based on fantasy role-playing memes, that included a mechanic of turning the card through 90 degrees when used. I would argue that the act of turning a card through 90 degrees is not a WOTC innovation, having been used in games based on playing cards (notably bridge) since long before WOTC came up with it... and hence it isn't WOTC property.

However, I wouldn't try to call that mechanic "tapping".

The combination of the physical action of turning the card around and the word "tapping" is probably protectable.

Raven Crowking · Feb 5, 2008

FickleGM said:
So, if I post a picture that I found on the internet for my character portrait in some thread on Gleemax and then WotC includes said picture in a publication and was sued for it later (because I didn't really own said picture), I would have to bear all the costs related to the lawsuit.

Is this how you understand that portion of the TOU?

That is absolutely correct.

By accepting the TOU, you explicitly claim that you have the right to post that picture, and to pass the right to WotC to use it (including, explicitly, to trademark, copyright, and/or patent it) for now and for all time.

You also explicitly agree that you bear all of WotC's liability for using it, including legal fees and/or royalties.

This isn't airy-fairy reading. This is explicit:

You represent and warrant that: (i) you own or control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Site, (ii) the User Content is accurate and not misleading, and (iii) use and posting of the User Content you supply does not violate these TOU and will not violate any rights of or cause injury to any person or entity, including without limitation the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content posted by you to or through the Site.

Do you want me to quote again the part that explicitly says you will pay legal fees? Or the part that explicitly says you will grant the right to trademark, copyright, etc., to WotC? Happy to do it if need be.

RC

resistor · Feb 5, 2008

PapersAndPaychecks said:
If I were so inclined, I would feel comfortable about producing a collectible trading card game based on fantasy role-playing memes, that included a mechanic of turning the card through 90 degrees when used. I would argue that the act of turning a card through 90 degrees is not a WOTC innovation, having been used in games based on playing cards (notably bridge) since long before WOTC came up with it... and hence it isn't WOTC property.

If your cardgame had nothing else in common with MtG, you could pull that off. The full text of the claim is for the mechanic of activation by rotating 90 degrees within the context of a game with constructed-in-advance decks, if I recall correctly (feel free to correct me, I didn't go look up the text again before posting this).

Exactly how similar you could get is probably something that would have to be argued in a patent case. Given the (probable) relative sizes of your legal team and Hasbro's, good luck with that one.

WhimsyTheFae · Feb 5, 2008

Raven Crowking said:
That is absolutely correct.

By accepting the TOU, you explicitly claim that you have the right to post that picture, and to pass the right to WotC to use it (including, explicitly, to trademark, copyright, and/or patent it) for now and for all time.

You also explicitly agree that you bear all of WotC's liability for using it, including legal fees and/or royalties.

This isn't airy-fairy reading. This is explicit:

You represent and warrant that: (i) you own or control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Site, (ii) the User Content is accurate and not misleading, and (iii) use and posting of the User Content you supply does not violate these TOU and will not violate any rights of or cause injury to any person or entity, including without limitation the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content posted by you to or through the Site.

RC

That's what I thought and unless there is something that I am missing, that is how I understand that clause, as well.

[Admiral Akbar] IT'S A TRAP! [/Admiral Akbar]

ThirdWizard · Feb 5, 2008

nevermind, not coming back into it

PapersAndPaychecks · Feb 5, 2008

resistor said:
Exactly how similar you could get is probably something that would have to be argued in a patent case. Given the (probable) relative sizes of your legal team and Hasbro's, good luck with that one.

Here we move from generic legal theory to a specific problem with US law (namely that the larger wallet has the advantage in a legal case). That problem doesn't apply to me.

While we're talking about problems with specific local laws, the Gleemax Terms of Use are probably unenforceable against Brits, as S'mon pointed out earlier (Lord Denning's Red Hand rule, and possibly some of the provisions of the Unfair Contract Terms Act 1977). I don't submit to US law, but as an international company, WOTC would certainly need to submit to the Law of England and Wales...