Loremaster Article: To GSL or not to GSL?

[S'mon]

Sure, we CAN publish outside the GSL, but it just doesn't feel RIGHT to do so. In dmccoy1693's words - it feels like I'm not playing nice with WotC by doing that.

Given the generosity of the OGL, I agree it maybe feels a bit 'off' to use it to publish 4e product, that seems arguably a bit unfair, even though legal. Mind you AIR Kenzer published their 4e-compatible Kalamar Guide without either the OGL or GSL, and that doesn't bother me, as long as they stay within copyright law.

 

[pawsplay]

That's par for the course with most licenses. The OGL was a very unusual license, very permissive (almost to a fault in some eyes), and most licensed content has an "end of life" clause.

But part of what makes it unusual is that it licenses a fair number of things that aren't copyrightable. Hence, being "permissive" isn't exactly generous. Of course it's permissive; if it weren't, it wouldn't even be functional.

 

[pawsplay]

Under UK copyright law, short phrases like 'Player's Handbook' or 'Sly Flourish' simply don't meet the substantiality requirement for copyright protection. What you say about 'functionality' and 'transformative use' is interesting, they show a very different approach than in UK copyright law.

The approach under UK or UK-derived copyright would be that the words 'Sly Flourish' or 'Bulette' are not protected, rules mechanics per se are not protected, but the text describing the power or monster can be protected, and I think less regard would be given to whether the WotC text was the only or best way to describe how the power or monster works.

IANAL, but I think the concern over the bulette from the standpoint of US law would be that any description of the bulette creature could be said to have a substantial resemblance to the "soul" of the work, and hence might be derivative even if the exact text isn't copied. I'm pretty sure also that anyone can refer to a "bulette" any time they want to, as the word itself does not embody the "soul" of the text. I would be leery of using the word bulette, however, in any context the describes or represents the bulette in any way.

Also, in the US, the non-copyrightableness of a word does not mean it cannot be a trademark; WotC could still argue the bulette is a trademark of theirs. In court, I might argue that since it's copied from a little plastic toy, it isn't their unique icon, or that people do not associate the bulette specifically with their business... but that could be an expensive $$ discussion to have with them.

 

[S'mon]

A substantial description of a bulette adapted from/derived from a Monster Manual description of a bulette could potentially be a breach of copyright. I can't recall any cases of such minimal copying being found to be infringement of a literary work, but you do get such cases with musical works (recording industry IP lawyers are the most evil IP lawyers of all), and it certainly seems possible. If I wanted to do that I would use the OGL.

But "Two bulettes live here, see MM page 23. They attack on sight" could not possibly be a breach of copyright AFAICS. If it was, I'd be breaching copyright just by writing it.

Edit: The basic idea of a bulette as a big 'land shark' is not protectable IMO. This is why Treants (wise tree men) don't infringe Ents, Halflings (bucolic little people with hairy feet) don't infringe Hobbits, TSR Orcs don't infringe Tolkien Orcs, etc. The particular expression of the land shark idea in a Monster Manual description of the bulette is potentially protectable.

Edit 2: The idea of Dark Elves who live underground is not copyright protectable, nor is the word Drow, but if you take a lot from TSR & WoTC's particular expression of the idea you could potentially infringe copyright. A Drow-centric adventure based on substantial material developed by TSR/WoTC could potentially infringe WoTC copyright IMO, whereas "Two drow spiderblades are here, see MM page 35" would not.

Edit 3: Note BTW that when you consider the 'heart/soul of the work', the "work" here is an actual literary description of the bulette in an actual Monster Manual, not the free-floating Platonic 'idea of the bulette' divorced from its actual expression. I see a lot of confusion among publishers that way, they tend to think in terms of Platonic essences rather than in particular expressions. The 'Platonic essence' approach actually does (potentially) work for Patents and some other IP rights, but not for copyright.

 

[S'mon]

But part of what makes it unusual is that it licenses a fair number of things that aren't copyrightable. Hence, being "permissive" isn't exactly generous. Of course it's permissive; if it weren't, it wouldn't even be functional.

It also prohibits some things to do with WoTC trade marks which would otherwise be permissable under TM law. This makes it a unilateral contract under UK contract law. Which is really a good thing for the licensee, if it were all give and no take by WoTC then it would potentially not be an enforceable contract, due to lack of 'consideration' moving from the licensee.

 

[S'mon]

Also, in the US, the non-copyrightableness of a word does not mean it cannot be a trademark; WotC could still argue the bulette is a trademark of theirs.

In the UK non-registered marks fall under the law of Passing Off, WoTC would have to show a Misrepresentation, eg that the public were being deceived into thinking that the adventure came from WoTC because it had the word bulette in it. Such a claim would be extremely unlikely to succeed IMO (but as noted above, being the target of frivolous litigation can potentially still ruin a small business through lawyers' fees). The kind of thing Passing Off is good for is to stop rival companies dressing up the appearance/packaging of their adventures so they look like WoTC adventures, confusing potential customers.

 

[Frylock]

Hobbits / Not Nice

This is why Treants (wise tree men) don't infringe Ents, Halflings (bucolic little people with hairy feet) don't infringe Hobbits, TSR Orcs don't infringe Tolkien Orcs, etc. The particular expression of the land shark idea in a Monster Manual description of the bulette is potentially protectable.

IIRC (and I might not), Tolkein's estate sued over use of the term, Hobbit. After that, Gygax changed the term to Halfling. Granted, Hobbit was used in conjunction with a description largely matching that of Tolkein's Hobbit, but the operative point here is that all that changed was "Hobbit," and yet copyright was satisfied by the change. Also note that at that point, D&D was the "little guy." Without a clear recollection of what actually happened, take my point with a grain of salt.

I will say that I agree with dmccoy1693 about the "not nice." Whether or not it's legal, WotC put out the GSL specifically for 4E. . . . In dmccoy1693's words - it feels like I'm not playing nice with WotC by doing that. You may feel differently, and there's nothing wrong with that, but I get where he's coming from.

Actually, dmccoy1693 clarified his position, stating that by “not nice,” he meant “not safe,” so you don’t get where he’s coming from. (Maybe he agrees with "not nice" too. I don't know.)

Sure, we CAN publish outside the GSL, but it just doesn't feel RIGHT to do so.

That’s a very bad position to take. Consider the following two hypotheticals. First, tomorrow I submit a patent application for a toaster. I pay hundreds of dollars to the USPTO, and thousands of dollars to my attorney. About one year later, I receive a letter from the USPTO reading something to the effect,

Are you kidding? A toaster? Patent denied, moron!

Now, word gets out about this, and all of America says,

“Awwww, poor Rob spent all that money and the patent office rejected him simply because toasters have been part of the public domain for decades. It wouldn't be nice not to honor his fake patent. Let’s pay $500 for a toaster and refuse to buy them from anyone else.

Do you see a problem with this rationale? All these competent toaster makers being put out of business just because you want to be nice to me, the idiot that thought he had a claim on the toaster that’s been in the public domain for over 100 years (invented in the UK in 1893). Is that good for the economy?

But wait! There's a better example. At least at some point in the past, the toaster was theoretically patentable. What if Einstein tried to patent the theory of relativity? This is subject matter that may not be patented at all. What if everyone decided to “play nice” and voluntarily grant him the sole right to teach relativity. Wouldn’t that stifle the field of physics? Considering the authority for US patents and copyrights, the Arts and Sciences clause of the Constitution, makes it clear that the purpose of patents and trademarks is to "[t]o promote the Progress of Science and useful Arts," I’d say this cuts against why we have patents and copyrights in the first place.

Intellectual property is possibly the most important legal invention to our economy. Having power over your “arts and sciences” is extremely important. [OPINION ALERT!] While it’s clear the pendulum has swung too far with copyrights towards the owner[\OPINION ALERT!], and while the copyright monopoly is much weaker than the patent monopoly, nevertheless it’s important[\B] that WotC control its property. Nevertheless, it’s important to the economy that they not have control over what they don’t own.

IANAE (I am not an economist), but I bet they'd agree with me.

 

[S'mon]

IIRC (and I might not), Tolkein's estate sued over use of the term, Hobbit. After that, Gygax changed the term to Halfling. Granted, Hobbit was used in conjunction with a description largely matching that of Tolkein's Hobbit, but the operative point here is that all that changed was "Hobbit," and yet copyright was satisfied by the change. Also note that at that point, D&D was the "little guy." Without a clear recollection of what actually happened, take my point with a grain of salt.

Tolkien Estate dropped the lawsuit, their interest seems to lie in monopolising the words "Hobbit" and (apparently) "Ent", rather than in any claim to a monopoly over Tolkien's actual creative contribution. I'm not sure actual copyright law has anything to do with it.

 

[pawsplay]

Tolkien Estate dropped the lawsuit, their interest seems to lie in monopolising the words "Hobbit" and (apparently) "Ent", rather than in any claim to a monopoly over Tolkien's actual creative contribution. I'm not sure actual copyright law has anything to do with it.

At the time of the lawsuit, Tolkien's estate was under the impression he had invented the word "hobbit," along with the description. Hence, they were protecting, essentially, a character. However, it has since come to light that "hobbit" is another one of those obscure, throwaway names for a spirit or sprite, like hobgoblin, bogie, pixie, kobold, and so forth.

An Ent is a giant. The tree person concept is not something that belongs to Tolkien, it's just an idea. But conceiving of an Ent as a tree-person was judged by the Tolkien Estate to be a significant enough act of authorship to be worth protecting. In retrospect, they were probably wrong. The Wizard of Oz and plenty of Silly Symphony cartoons have talking trees. However, by making TSR concede to their ownership of that representation, they did save themselves a more costly and complicated battle, fighting inch by inch against D&D as a potential rival or usurper of the trademarks. As Tolkien himself planted his fortress at a disadvantage (elf, dwarf, and "orc" or orco/ogre already being in the public domain) I don't know if the Estate received bad advice, was simply misguided, or consciously made the decision to slow the rate at which representations from the work entered the common lexicon for a couple more decades of financial gain. If the latter, the strategy seems to have worked, as they made a bundle off Peter Jackson's movie just in time for World of Warcraft to conquer the universe.

 

[TheAuldGrump]

Tolkien Estate dropped the lawsuit, their interest seems to lie in monopolising the words "Hobbit" and (apparently) "Ent", rather than in any claim to a monopoly over Tolkien's actual creative contribution. I'm not sure actual copyright law has anything to do with it.

Your telephone is circular metal banding.

I miss Phil and Dixie.

The Auld Grump, ent is, if I recall properly, just Anglo Saxon for giant. Orc can be found in the story of Roland.