Legal Changes and Implications

[tomBitonti]

Hi,

A few questions ... I'm trying to figure out what we currently have with 3E that we would not have if 3E were done under the new licenses of 4E. For example, I am thinking that a site like d20srd.org would no longer be possible.

What else would be different?

I see big changes because of the DDI, and the incentives and restrictions that are made to get more people to subscribe.

Here are a few items that might be affected. (What am I missing?)

Preview content (preview chapters, artwork, and other tidbits) will be in the subscriber section of the the DDI.

Character creation tools that embed substantial portions of the rule set will not be allowed.

Homebrew scenarios will only be allowed to be posted in the subscriber section of the DDI.

Master lists of races, classes, spells, and feats, such as on Crystal Keep, would no longer possible.

I'm pretty sure that d20srd.org is not possible. (What would still be possible is an index of the rules.) The others I have no real idea (but I am cautiously pessimistic.)

I am pessimistic because I believe that the legal environment will be set to force the use of the DDI. I imagine a policy which maintains nearly all rights, with allowances for additional use only through the DDI.

While I am unhappy about this (as I envision it), I'm not convinced that forcing folks to pay for access is necessarily bad. More paid subscribers could allow WoTC/Hasbro to invest a lot more in the game. With more subscribers, efficiency is improved, and more money may possibly be spent making the site better, and generally creating new content. (On the other hand, the DDI may never get fully off the ground, and fail, or WoTC/Hashbro might pocket all of the profits, or the content might just be bad.)

I am thinking unhappy because I've grown to enjoy the open environment that D20 3E engenders, and am used to seeing bonus materials online for free, and seeing the preview artwork, and the many tools that have been created. (And, I have purchased a lot from WotC/Hasbro, so I consider myself a fair customer.)

 

[Cadfan]

1: Crystalkeep hangs on by a thread anyways. I suspect they exist more on WOTC's mercy than on legal grounds. I mean, a master document containing the rules text of nearly all feats? That probably stretches fair use past its breaking point.

2: I don't see why, or how, rules could prevent homebrews from being posted outside of the DI. Homebrews which embed monster statistics or something aren't on such strong footing, but homebews rarely do that.

3: I doubt that all preview material will be moved behind a paywall. On one hand, it incentivizes joining the paying clientele. On the other, it denies previews to a substantial audience, and previews help sell books. Now, SUBSEQUENT material might have strong reasons to be placed behind a paywall. Thats different.

 

[Imban]

1: Crystalkeep hangs on by a thread anyways. I suspect they exist more on WOTC's mercy than on legal grounds. I mean, a master document containing the rules text of nearly all feats? That probably stretches fair use past its breaking point.

I went and looked this up, thinking "Well, it has to more or less just be a reprint of the Consolidated Lists on the WotC site. That's probably a good idea, since WotC might take those down permanently any day now, and while it's a stretch of fair use to reprint that information even though it's freely available on the WotC website, it'd be a really dirty move if they sent cease & desists out to people hosting useful but not terribly infringing 3.5e information when they took their own 3.5e information down."

No, the stuff on Crystalkeep's past what's reasonably legal. It's impressive WotC hasn't gone after them - probably because they're not a big name. Dunno whether that would happen with 4e or not, since while that is a good deal over the line, taking legal action against your own fanbase is also lame.

2: I don't see why, or how, rules could prevent homebrews from being posted outside of the DI. Homebrews which embed monster statistics or something aren't on such strong footing, but homebews rarely do that.

Homebrews rarely contain the statistics for homebrewed monsters? What? Still, unless they're lying about what they've said before, you can publish stuff on your website under the 4e OGL and everything starting January 1, 2009. Not that most people just hosting homebrews on their homepages care about properly licensing it anyway, since WotC doesn't take legal action against its own fanbase.

During their jerk periods, both TSR and Palladium did take legal action against people with homebrew rules content on their personal webpages, though, so it's not totally unheard of.

 

[pemerton]

This has come up in a couple of other threads, and my view is the same as it was on them: the only difference I can see is that there will not be an SRD released under the OGL.

Thus, with respect to any aspects of WoTC publications which were not in the SRD (and that's most of them) nothing will have changed. In particular, it will continue to be a breach of copyright to reproduce WoTC's published text. (Fair use rules might protect fans building their own PC generators which reproduce text of books they own, but my intuition is that this may not extend to distribution of those books to others who don't own those books, and certainly would not extend to any sort of commercial distribution.)

There is one possible exception: the increased use of non-generic names ("Blackwood Dryad" was mentioned in another thread) may increase the scope of trademark protection. But this would not be relevant to any fan site. Whether a commercial publisher could avoid accusations of passing off, if they included a statement acknowledging WoTC's trademarks and making clear that they do not intend, by use of those trademarks, to pass themselves off as WoTC, I will leave for an IP lawyer to judge (I am an academic lawyer, but IP is not my field).

As far as previews and web enhancements go, I'm with Cadfan.

My own opinion that the existence of the SRD, with an open licence to reproduce its text, was a pretty unusual state of affairs for a commercial publisher. I think with the new OGL, which will point to those sections of the rules and those game elements that can be used, but not licence wholescale reproduction of the rules text, will generate all the network synergies that Ryan Dancey wanted, without allowing people to play the game without buying the rules.

 

[erf_beto]

Well, I'm acutally puzzled by all this - I really can't grasp anything law-related

So, what are we talking about here? They've said that there will be a 4E SRD, but it will be less 'generous' than the 3E SRD. What does that mean?

I suppose as long as there's an SRD doc/rtf/pdf file to download on their site, there can be something like d20srd.org... or is there a (legal) way to protect the content (like they do with PDFs today - try to copy text from the new DDM rules) and forbid reproduction elsewhere (like a website)?

Either way, for me, the question is "what will be in the SRD?.

Can they restrict content, like say [ability scores, skills and roll d20 + modifier + half level] is SRD, but every thing else isnt (so NO races, classes, feats or powers...)? Ok, that's stretching a little. Maybe Elf, Dwarf and Halfing will be SRD, but Tiefling and Dragonborn no? Yuan-ti in the SRD, yes, but never the 'yuan-ti swiftscale'? Could they have just one generic "Dragon" to the SRD and leave every other colored or metalic dragon as WoTC's IP? Or even, could they go as far as replace the entire monster section with a table for Brute, Skirmisher, Soldier, Mastermind and other monster roles?

Could it become just an index of rules ("Magic? refer to PHB1 pg. 79")?

As far as homebrew, if 'Red Dragon' isn't SRD, should I add a "refer to MM1, pg 86" line or copy its stats and rename it to Scarlet Dwagon?

Of course, I'm contemplating 'worst case scenarios' here, but I really have no idea... :\

 

[tomBitonti]

Could it become just an index of rules ("Magic? refer to PHB1 pg. 79")?

That is my understanding, although, I'm expecting a little more detail.

To turn around my question a little -- how would the licensing be done to most strongly force folks to use the subscriber section of the DDI?

 

[Cadfan]

Homebrews rarely contain the statistics for homebrewed monsters?

I meant official monsters. Sorry, I should have been more clear. I don't think that homebrews will have a problem posting stats for homebrew monsters. If they type up their homebrew scenario or campaign world into a compendium document, and include in it official monster stat blocks, or reprints of official character classes, then I think that's a problem. But not if the material inside is homebrew that is compatible with 4e.

 

[pemerton]

I suppose as long as there's an SRD doc/rtf/pdf file to download on their site, there can be something like d20srd.org... or is there a (legal) way to protect the content (like they do with PDFs today - try to copy text from the new DDM rules) and forbid reproduction elsewhere (like a website)?

<snip>

Could they have just one generic "Dragon" to the SRD and leave every other colored or metalic dragon as WoTC's IP? Or even, could they go as far as replace the entire monster section with a table for Brute, Skirmisher, Soldier, Mastermind and other monster roles?

WoTC can't have property in the phrase "Red Dragon". It's a generic phrase of English.

They already do have IP in the text of the MM, and will continue to do so when they publish a new one. It's just at present they licence (for free, via the OGL) anyone else to reproduce that text provided they acknowledge WoTC's ownership of it (again, via the terms of the OGL).

In future, I think the SRD will point to little bits of text of which reproduction is permitted (like stat blocks, for example) but will not itself contain the text. Thus (i) to get that text you'll have to buy the book, and (ii) what you can reproduce will be substantially less.

For most 3rd party publishers, however, I think the issues are more likely to involve trademarks and passing off, than copyright. If Mistwell, slaughterj or some one who knows US IP law is listening, can they confirm/deny?

For homebrewers I think most reproduction of small bits of text will not constitute a trademark infringement (because it is not an attempt to engage in commerce passing off as WoTC) and will not constitute copyright infringement (because it is fair use, given the purpose for which the book was sold to you in the first place). But (for example) posting a free PC generator on an advertising-sponsored website might be in a different category.

Again, properly informed legal opinions very welcome.

 

[Cadfan]

pemerton- I'd answer, if I understood your question more clearly.

Third party publishers are unlikely to have much difficulty, because WOTC, whatever their faults may be, seems to be pretty good at explaining what they do and do not consider acceptable practice by third party publishers. And while WOTC might lay claim to a little more than they can legally control, this is one of those situations where good relations keep the money flowing more effectively than would fighting over details.

 

[ThirdWizard]

If you aren't a publisher, and you aren't making money off of what you're making, then you really shouldn't worry too much about what you're putting out there. Homebrewers coming to ENWorld to post up some magic items don't need to worry about what's legal in the OGL because, simply enough, they aren't using the OGL. It's fan works. So, if it exists now, and it doesn't use the OGL, then it will exist under 4e.

Things like d20srd.org are a bit iffy, but has there been anything stating that you can't reprint Open Content in the new OGL? There's no SRD to copy/paste from, sure, but I haven't noticed any quotes saying that Open Content will not actually be Open under the new OGL.

As for previews... well if previews are strictly on a pay-per basis, that would be a pretty poor business decision on WotC's part.