Licensing, OGL and Getting D&D Compatible Publishers Involved

[pemerton]

Why are you asking the guy in the UK about American IP law when you're talking to an American attorney who represents some of the very RPG companies we're discussing?

Because I know that [MENTION=463]S'mon[/MENTION] is an academic lawyer who specialises in IP law, whereas until the post to which I'm replying all I knew about your profession was that you make academic gowns.

If you want to express a view on my intuitions than by all means do so - I teach Australian private law and publish in constitutional law and theory, but am not an IP lawyer.

 

[pemerton]

A trademark has to be registered and defended.

Anglo-Australian law recognises unregistered trademarks. I would guess that US law does also, but am happy to be corrected on that. My understanding is that civil law jurisdictions do not.

 

[pedr]

Some civil law jurisdictions have stronger prohibitions against "unfair competition" though, which may well amount to or even surpass protection given to unregistered marks, though I don't know the details of that doctrine.

 

[Nellisir]

Anglo-Australian law recognises unregistered trademarks. I would guess that US law does also, but am happy to be corrected on that. My understanding is that civil law jurisdictions do not.

No, I'm sure you're more right than I am. The wikipedia quote I used clearly talks about use, not registration - I just assumed registration was necessary.

 

[S'mon]

Knowing nothing more of the case that was has been posted on this thread, what you have said here give me the impression that the publisher of the infringing game was using different code - and thereby trying to avoid copyright infringement - while delivering an identical play experience to the end user. Is that correct? And if so, is the idea of "look and feel" in the case then related to this contrast - which arises in the computing case - between code and end user experience?

If the Tetris decision is related to peculariaties of computing - and the contrast between code and user experience - then it's not clear to me what, if any, its implications would be for very different modes of gaming in which the end users themselves apply the rules. Hence my question above to S'mon.

Yes. Courts have had to grapple for a long time with the difficulties inherent in applying copyright to computer programs, because you can copy the ideas and the presentation of a program without copying any of the code. In the UK look & feel has been held non-protectable in copyright (eg Navataire v Easyjet, on a flight bookings system). The Tetris decision looks to have gone the other way. I would be very reluctant to draw any conclusions from this area for RPGs.

However if I were representing an RPG company in court I'd be willing to give it a go - to try to stretch the precedent to fit the facts of the case. From an objective perspective it seems an unlikely argument to me but this is what effective lawyers do. If the judge goes along with that argument I've just created new law.

 

[S'mon]

Some civil law jurisdictions have stronger prohibitions against "unfair competition" though, which may well amount to or even surpass protection given to unregistered marks, though I don't know the details of that doctrine.

You are exactly right. Civil law nations usually have a concept of 'good faith in business dealings' which covers stuff like misuse of a competitor's marks.

 

[S'mon]

Didn't Goodman publish for 4e without using the GSL. I don't remember them getting sued, so I am not convinced the danger of litigation is as great as some might think it is.

Yes, Kenzer too. IME the trick to not getting a C&D is is
(a) don't use any registered trade marks
(b) don't use a license (OGL, GSL) and then breach the terms
(c) don't literally copy a significant chunk of text or art.

 

[S'mon]

As for the issue of infringement - I think there's a big difference between publishing an adventure containing original story elements (NPCs, monsters, events etc) and the only reproduction of WotC's material is using certain keywords without defining those keywords, and trying to write something which can be used in place of WotC's rulebooks to deliver the same gaming experience.

The latter is what the retroclones do, and what PF does, and they are reliant on the OGL for doing so. (And I'm personally not 100% sure that all the retroclones are compliant with the OGL, but that's really a matter between those publishers and WotC.)

Yes, I agree.

 

[S'mon]

Why are you asking the guy in the UK about American IP law when you're talking to an American attorney who represents some of the very RPG companies we're discussing?

Maybe your opinion is likely to be more biased? I've seen US IP lawyers say some pretty amazing things, although it's good to see because understanding how US lawyers act so differently from UK lawyers despite the ostensible similarity of the law is very useful when I'm teaching international
commercial law. The heat & passion of the US legal arena is one reason why companies around the world seek to avoid disputes coming under US law. This is very good for English lawyers as it makes us a favoured jurisdiction for commercial disputes.

Edit: If your advice on look & feel is "it's all a big confusing mess", I'm not sure that's the best advice. You should be able to advise your client
(a) whether a specific activity is likely to be actually held infringing in court, and for what, as well as advising
(b) How another company might react to an activity, and thus what the best tactics are re use or non-use of material.

 

[Zireael]

I am claiming that the matter is now so confused as to not be worth risking it for anyone. The difference between "look and feel" and "rules" is so unclear that I don't think a reasonable person can make the distinction reliably. You're claiming the distinction is there - and in theory it is. But, in practice, it's not really something that can be achieved. I see no bright line between what is a rule, and what is a look and feel, when things like "number of game pieces" and " the way pieces moved in the playing field" is a look and feel and also a rule.

If it's on the iconic character sheet of a version of a game, it's likely going to be look/feel. Your ability scores are both rules and look/feel. Hit points are both rules and look/feel. Armor Class is both rules and look/feel. Alignment is both rules and look/feel. Move rate is both rules and look/feel. There is no realistic distinguishing line between being a rule and also being look/feel. And as the later is protected, the claim that rules are not protected becomes a meaningless point. In practice, as a practical matter, they may be protected, and so nobody is going to mess with the issue.

Aye, that is a problem. I've seen various OGL projects heap on rules changes, but the basic mechanics remain unchanged. So are they look/feel or not?