Mearls' Legends and Lore (or, "All Roads Lead to Rome, Redux")

[Saracenus]

I get the flu for 4 days (fever broke this morning finally) and the sniping continues. This makes me a sad Panda.

To all of you still hurting/smarting/seething @ WotC over whatever perceived (real or imagined) slights I hear you. I have heard you for several years now. I acknowledge your right to feel slighted/personally betrayed/angry.

While I acknowledge what you are saying I respectfully do not acquiesce to your point of view.

Having born witness to the boneheaded maneuvers by WotC last year (and their were many) most of them sprang from poor communication and not setting appropriate customer expectations.

They have begun to redeem themselves in this regard in the past few months. They are talking via their website (and most of that talk is outside the paywall) and they are talking at Cons (D&D XP being the latest). When something is not working out, they let us know and why.

There are still hiccups, yes. For instance I know that at last Gen Con they opened up their play area to any edition of D&D published by TSR/WotC (yes, this excludes Paizo and the retro-clones). Was this communicated far and wide, no.

Only time will tell if this leads to a better community around D&D and WotC.

As to the PDF issue, frankly piracy was the biggest reason they yanked them. Yes, I am well aware that this was not their shining moment of greatness. It was an overreaction.

But the deed is done. Don't hold your breath waiting for them to return. Frankly, the opportunity cost of diverting resources for researching a way to deliver the content while dealing with their fears of piracy is too great. The time, manpower and money spent on it would never outpace the revenues generated by newer content created with those same resources.

Goodwill is not enough. Margins on RPGs are too tight to put out a loss leader that doesn't really lead to people buying your new product.

In the end, I cannot apply a balm to your many wounds folks nor can I make your pain go away. That is totally within your control.

The only happy in my control is at the table. Its my hope that eventually I will see some you there and we play a bit of D&D (version negotiable) together. You are all part of the tribe (even Mearls).

My Two Coppers,

 

[Dannager]

I think by easy Dannager is meaning not just inherent complexity but ease of presentation, ease in terms of time, etc.

Exactly.

I have no interest in seeing D&D become a less complex game, and I don't think WotC does either. But clarifying presentation to make that complexity easier to digest is a huge deal, as is lowering the bar to entry and degrading the learning curve.

 

[pemerton]

I am not a lawyer.

I teach law, including private law (in particular, equity and trusts) in a leading Australian law school. That experience informs some of my opinions about the OGL and the GSL.

the original GSL was incredibly stingy. It was in almost every way worse and more legally risky than using no license at all.

Except that it allowed you to market your goods using WotC's trade dress. What is the value of that? I don't know, but given the number of products that marketed themselves using the d20 logo and references to WotC's Player's Handbook, I would guess that the value is non-neglible.

The GSL also permitted use of a range of terms in a context that WotC might argue infringed upon its copyright, without running the risk of a suit for breach of copyright. That is also, perhaps, of non-negligible value.

The OGL+SRD thing was an experiment but not a risky one. From the beginning, the OGL served the interests of WotC, but not simply in establishing market dominance. The OGL protected WotC by decreasing the chances they would end up in a costly legal battle with a third party publisher.

Well, opinions obviously differ, but I would call it risky to give everyone in the world a free irrevocable licence to reprint vast chunks of my text, when the only asset that I own is my text. Which is what the OGL+SRD did.

The risk started to come home to roost with the Mongoose mini-PHBs, and the OGL+SRD games like Conan and Arcana Evolved, and has now been fully realised with Pathfinder.

If these games had been published without the protection of the OGL+SRD, my view is that it would not be WotC which would be running the risk of a costly legal battle, but rather the 3PP publishers who would have found themselves on the loosing end of such a battle. As far as these sorts of publications are concerned, the OGL+SRD doesn't protect WotC but rather disarms it.

Dancey, back in 2000, expressed the view that WotC would continue to do well because sales of the PHB would dominate. He took for granted that no other company would rival WotC for sale of core books. In my view, Dancey has turned out to be wrong about this.

Let's review a few basics about IP.
1. You can't copyright rules or ideas, only expressions of ideas.
2. You can't copyright or patent prior art or trivial inventions.
3. Not only can you claim compatibility with other people's products, it's restraint of trade for them to unduly interfere with you producing compatible products.

But the laws of copyright still protect WotC's text, including its rules text. And the law of trademarks and of passing off still protect its trade dress. Clark Peterson is on record, for example, as saying that OSRIC is an unlawful infringement of WotC's rights. I'm not enough of an IP lawyer to make a call with the same forcefulness that Clark did, but I can certainly see where he's coming from. And I understand that Kenzer has expressed similar views (although in this latter case I haven't read them, I've only seen second-hand references to them).

Is it possible to write up a module, or even a rulebook, which would deliver a 3E or AD&D experience, without infringing on WotC's rights? Possibly. But that is not what the OGL+SRD games do. They use WotC's text, both to express the rules in such a way as to make it clear that what is being promised is a D&D game, and also as part of a broader strategy of hanging on the coattails of WotC's trade dress and market position.

The OGL+SRD (plus in some cases the d20 licence) is what makes this possible rather than a potentially serious breach of WotC's rights.

4. Fair use covers a lot of things, including a lot of stuff that many corporations wish or think it doesn't. However, there's a big gray area in implementation, and no one wants to go there, unless they just want to spend lots of money and be worse off than they were. That is why big companies resort to IP fraud; if they can intimidate people into staying away from their properties, they can avoid the costs of actually going to court.

There is no exact analogue to US fair use in Australian law, so I'm hesitant to comment too much, but I would be very surprised if fair use extended in the US to protect purely commercial use of large chunks of someone else's copyrighted text, in the absence of some sort of commentary, satire etc.

5. You can't copyright simple lists or information.
6. You can't copyright titles.
7. You can't copyright ordinary phrases.

I don't think that any of this is very relevant to the SRD, which contains much more than simple lists, many non-ordinary phrases, and much more than just titles. Furthermore, the "work", in this case, I think would include the whole mode of organisation and presentation of that content, which is obviously aped by the OGL+SRD games.

Think about how much that covers in a roleplaying game. As long as you don't plagiarize sentences or paragraphs, there's a lot you can do with that. Many people don't realize this, but Kingdoms of Kalamar began as an unauthorized AD&D campaign sourcebook. Not only did they not get sued, early in the 3e lifecycle Kenzer got a license to produce official D&D Kingdoms of Kalamar.

As I understand it, this licence was as part of a settlement agreement pertaining to WotC's breach of Kenzer's copyright in some material reproduced in the Dragon Archive. I don't think that this establishes anything about the legal viability of 3rd party material, and certainly not of OGL+SRD games like Pathfinder and OGL Conan.

Undoubtedly, I can publish a gameworld suitable for use in D&D without breaching any of WotC's rights. For example, Terry Amthors' Shadowworld - published with ICE game stats - is an example of such a thing.

But as soon as I start inlcuding D&D stats, or explaining how the world is to be understood in D&D terms or expressed using D&D mechanics, let alone start using the term "D&D" in my marketing material, the matter gets a lot more complicated. In my view it is non-trivial to do this sort of thing without infringing WotC's rights. Whereas the whole point of the OGL+STD (plus d20 licence in many cases) is to make this lawful - WotC shares its rights in response for (i) a recognition of its rights, defined very expansively, by the party with whom it is sharing, and (ii) a commitment to abide by the terms of the licence.

The GSL does much the same thing, although (i) it offers access to a narrower range of text, (ii) it offers access to a better range of trade dress, and (iii) it is not irrevocable. The revocability of the GSL is what makes it suited to modest individual ventures like the Goodman DDCs, but not to amibitious and ongoing adventures like a Pathfinder rulebook. This is how WotC has "solved", from its point of view, the problem of equipping its own competition.

So, a merely average GSL would grant at a minimum, free and clear, all the things you can already do without a license.

Why would it do that? Apart from anything else, such a licence may fail as a contract if no consideration is flowing from the 3PP to WotC. And who needs a licence to do what is already legal.

The point of the GSL is that the 3PP, in return for getting something from WotC - namely, permission to use WotC copyrighted text and trademarks - gives something to WotC, namely, a commitment to abide by the terms of the licence. Don't like the terms? Don't take up the licence. But then, if you don't want to be sued, don't publish using WotC trademarks either.

In exchange for capitulating, WotC agrees not to frivalously sue you.

In a commercial environment, I don't think that enforcing one's rights in respect of copyrighted text or trademarks is frivolous.

A generous license? We have never seen such a thing from WotC. The GSL was intended for one purpose only: to limit and restrict access to WotC's IP.

No. It's purpose is to regulate access to WotC's IP. The law already restricts such access - that what it means to call it intellectual property.

As for the question of generosity - I think that offering permission to all and sundry to sell products using your trademarks can be fairly described as a generous offer. Which is why I so described it. What other trademark holder with recognition on a level comparable to D&d does this? I don't know one of the top of my head - are there nevertheless many that do so?

 

[pemerton]

Anyone can write an adventure. Not everyone can write an adventure worth buying.

I can't tell you about WotC's internal structure, their politics or what they're willing to pay writers as opposed to Paizo or other companies. But if they can't find quality adventure writers, it's on them.

Asking many of the Paizo employees where they used to work might glean your answer.

I know the history of Paizo and where a lot of its staff came from. I was more thinking that WotC has been able to recruit a great many leading designers of RPGs - Mearls, Heinsoo, Tweet, Laws etc - and its inability to do the same for adventure writers is therefore striking. (I've got not reason to suppose, for example, that adventure writers demand higher pay or refuse to work for WotC on principle.)

To pick up on something Dannyalcatraz alludes to: is there something about the development or editorial culture at WotC that stops good adventures being produced?

 

[pawsplay]

Except that it allowed you to market your goods using WotC's trade dress. What is the value of that? I don't know, but given the number of products that marketed themselves using the d20 logo and references to WotC's Player's Handbook, I would guess that the value is non-neglible.

Non-negligible, perhaps. I personally wouldn't offer a lot in return for it. Consider Green Ronin and Mutants & Masterminds. At one point, it was supposed to be a d20 System game. When the sticking points became too sticky, they ditched the logo and went purely OGL. Obviously, that worked out pretty well for them.

How much value does that logo have over a phrase along the lines of "compatible with the world's most popular fantasy role-playing game?" Good question.

The GSL also permitted use of a range of terms in a context that WotC might argue infringed upon its copyright, without running the risk of a suit for breach of copyright. That is also, perhaps, of non-negligible value.

But it is equally of value to WotC, if not moreso. By offering the license, they spare themselves the expense of taking legal action in legally gray areas.

Well, opinions obviously differ, but I would call it risky to give everyone in the world a free irrevocable licence to reprint vast chunks of my text, when the only asset that I own is my text. Which is what the OGL+SRD did.

Again, if I give it away, I don't have to worry about what to sue people for.

The risk started to come home to roost with the Mongoose mini-PHBs, and the OGL+SRD games like Conan and Arcana Evolved,

What market share did Mongoose capture? I consider that case to be negligible, as WotC boldly predicted it to be, as it turned out, in fact, to be. Regardless of what's in the book, WotC owns the D&D trademark and has a large-scale publishing business with access to distribution. Mongoose was stuck with "Pocket Player's Guide" which is an uninspiring, to say the least, title.

and has now been fully realised with Pathfinder.

There's a big wall of wax. To summarize, though, in the absence of Pathfinder, my response would not have been to play 4e, but probably a more earnest boycott of WotC. Further, the enticement would have been all but irresistible for someone to reverse engineer the OGL material... and then you have no leash on the beast at all. Would WotC rather see a CC-SA version of the 3.5 player's handbook floating around, neatly skirting their copyrighted text but providing you with all the material you need to use existing 3e product?

If these games had been published without the protection of the OGL+SRD, my view is that it would not be WotC which would be running the risk of a costly legal battle, but rather the 3PP publishers who would have found themselves on the loosing end of such a battle. As far as these sorts of publications are concerned, the OGL+SRD doesn't protect WotC but rather disarms it.

I cannot discern how there is a winning side in such a situation, unless you count the lawyers.

Dancey, back in 2000, expressed the view that WotC would continue to do well because sales of the PHB would dominate. He took for granted that no other company would rival WotC for sale of core books. In my view, Dancey has turned out to be wrong about this.

That's because Dancey thought the OGL would be a going concern for some time. The GSL and WotC's adversarial stance toward an existing 3pp community is what brought about Pathfinder. All Wotc has to do was... nothing. Let 3e languish as a PDF. Move on with whatever they wanted to do with 4e. But somebody, at some point, felt they had to exert control. Control over something they did not understand as well as they thought they did.

But the laws of copyright still protect WotC's text, including its rules text. And the law of trademarks and of passing off still protect its trade dress.

Naturally. And hence they still have something of value to sell.

Clark Peterson is on record, for example, as saying that OSRIC is an unlawful infringement of WotC's rights. I'm not enough of an IP lawyer to make a call with the same forcefulness that Clark did, but I can certainly see where he's coming from. And I understand that Kenzer has expressed similar views (although in this latter case I haven't read them, I've only seen second-hand references to them).

Those are interesting arguments, but it's important to separate the issues surrounding OSRIC versus any given hypothetical reverse-engineered system.

Is it possible to write up a module, or even a rulebook, which would deliver a 3E or AD&D experience, without infringing on WotC's rights? Possibly. But that is not what the OGL+SRD games do. They use WotC's text, both to express the rules in such a way as to make it clear that what is being promised is a D&D game, and also as part of a broader strategy of hanging on the coattails of WotC's trade dress and market position.

Somehow, I was never confused about system those third party books were marketed for in the 80s and 90s.

The OGL+SRD (plus in some cases the d20 licence) is what makes this possible rather than a potentially serious breach of WotC's rights.

It's also what makes it possible without a potentially even more serious weakening of WotC's rights.

There is no exact analogue to US fair use in Australian law, so I'm hesitant to comment too much, but I would be very surprised if fair use extended in the US to protect purely commercial use of large chunks of someone else's copyrighted text, in the absence of some sort of commentary, satire etc.

Who said anything about "large chunks?" In recent years, I think people have gotten bolder about mentioning other IPs in roleplaying books, provided the book itself is not obviously intended to replace a licensed product or infringe on existing core rules. If you don't need to actually reproduce a rules system, the door is pretty wide to comment on other people's works.

I don't think that any of this is very relevant to the SRD, which contains much more than simple lists, many non-ordinary phrases, and much more than just titles. Furthermore, the "work", in this case, I think would include the whole mode of organisation and presentation of that content, which is obviously aped by the OGL+SRD games.

WotC didn't invent the terms longsword, battle ax, or spear. How much control can they exert over those terms being listed on a table, along with public domain expressions like 1d10?

As I understand it, this licence was as part of a settlement agreement pertaining to WotC's breach of Kenzer's copyright in some material reproduced in the Dragon Archive. I don't think that this establishes anything about the legal viability of 3rd party material, and certainly not of OGL+SRD games like Pathfinder and OGL Conan.

I don't know how the license came about. I do know that I purchased a copy of Kingdoms of Kalamar, well before the OGL era, and was slightly disappointed to find out it was not for "any system" so much as for AD&D of some flavor. The legal viability of a campaign sourcebook as been pretty well established.

As for OGL Conan, if you changed a few terms here and there, renamed the feats, and avoiding lifting any blocks of text, I suspect you could present essentially the same game. The fact that it was OGL-friendly was a benefit... definitely to WotC, who had their flavor of RPG reinforced as the dominant system. You don't need a wacky legal notice in the back of a book to sell a game that says "Conan" on the front.

Undoubtedly, I can publish a gameworld suitable for use in D&D without breaching any of WotC's rights. For example, Terry Amthors' Shadowworld - published with ICE game stats - is an example of such a thing.

But as soon as I start inlcuding D&D stats, or explaining how the world is to be understood in D&D terms or expressed using D&D mechanics, let alone start using the term "D&D" in my marketing material, the matter gets a lot more complicated.

Potentially. But you can play it simple.

In my view it is non-trivial to do this sort of thing without infringing WotC's rights. Whereas the whole point of the OGL+STD (plus d20 licence in many cases) is to make this lawful - WotC shares its rights in response for (i) a recognition of its rights, defined very expansively, by the party with whom it is sharing, and (ii) a commitment to abide by the terms of the licence.

I think we have a different view of the relative value of the things being exchanged. I view the OGL as, nevertheless, slightly favorable to WotC.

The GSL does much the same thing, although (i) it offers access to a narrower range of text, (ii) it offers access to a better range of trade dress, and (iii) it is not irrevocable. The revocability of the GSL is what makes it suited to modest individual ventures like the Goodman DDCs, but not to amibitious and ongoing adventures like a Pathfinder rulebook. This is how WotC has "solved", from its point of view, the problem of equipping its own competition.

From a business standpoint, it hardly matters to me whether I am shut down by a cease-and-desist or by a "revocation." Since revocation is pain-free, it sets up WotC in a vastly superior position. OTOH, in the case of a court hearing, they have to use about a pint of blood for evey pint I shed, and it is possible anywhere along the way to find a settlement agreeable to the aims of both parties.

Why would it do that? Apart from anything else, such a licence may fail as a contract if no consideration is flowing from the 3PP to WotC. And who needs a licence to do what is already legal.

To establish a covenant. WotC is not a high dollar Wall Street venture. Ultimately, they are in arts and entertainment, and you can't have people suing each other all the time if you want anything worthwhile to happen. Nor can you have people brazenly ripping each other off.

The point of the GSL is that the 3PP, in return for getting something from WotC - namely, permission to use WotC copyrighted text and trademarks - gives something to WotC, namely, a commitment to abide by the terms of the licence. Don't like the terms? Don't take up the licence. But then, if you don't want to be sued, don't publish using WotC trademarks either.

Well, exactly. The license is not a worthwhile exchange of one thing for the other.

In a commercial environment, I don't think that enforcing one's rights in respect of copyrighted text or trademarks is frivolous.

So do you think it was worthwhile for Hanna Barbara to send Image Comics a C&D over the character Bedrock, for "infringing" their Flintstones trademark?

And what about enforcing rights that may not exist?

No. It's purpose is to regulate access to WotC's IP. The law already restricts such access - that what it means to call it intellectual property.

As for the question of generosity - I think that offering permission to all and sundry to sell products using your trademarks can be fairly described as a generous offer. Which is why I so described it. What other trademark holder with recognition on a level comparable to D&d does this? I don't know one of the top of my head - are there nevertheless many that do so?

If you step outside the tabletop RPG market, it's not hard to find examples of this. "Unofficial" strategy games. "Wii-compatible" controllers. Vacuum bags for "Hoover" vacuum cleaners. Cliff Notes for in-print books.

I can certainly create game software to run on a Windows PC. And yet somehow WotC is going to stop me from writing "software" for their D&D game system. So I don't have a good example to furnish of such a "generous" trademark holder. Similarly, it's hard to find oil companies arguing for greater regulation of carbon dioxide emissions.

 

[Dannyalcatraz]

I know the history of Paizo and where a lot of its staff came from. I was more thinking that WotC has been able to recruit a great many leading designers of RPGs - Mearls, Heinsoo, Tweet, Laws etc - and its inability to do the same for adventure writers is therefore striking.

Great Game Designer ≠ Great Adventure Writer

Look at music. There are lots of smoking guitarists who can't compose a song to save their lives.

Example: Smashing Pumpkins had 2 good guitarists, Billy Corgan and James Iha. Iha did most of the solos and lead work that most people remember, while Corgan mainly played rhythm...and was the primary songwriter.

When the Pumpkins broke up, Iha was among the first to release a solo album. Love his work with the Pumpkins though I do, the solo album was somewhat of a dud. The man can play, but he's not much of a composer.

 

[pawsplay]

Trademarks can be used denotatively. For instance

Playboy Enterprises, Inc. v. Welles - Wikipedia, the free encyclopedia

And I can show you an example of someone referring to WotC's trademark right now. Keep in mind that even commercial ventures have certain rights to refer to other people's IP.

 

[pemerton]

Pawsplay, just a few things in your reply that I wanted to pick up on - I think the rest speaks for itself as an alternative view to mine on the character of the OGL/SRD/GSL.

Somehow, I was never confused about system those third party books were marketed for in the 80s and 90s.

My impression is that marketing under trade dress is at least seen by those in the industry as making a difference. Whether this is seen as important at the level of distribution or retail (ie who has to be told that this no-frills supplement is just like a D&D supplement?) I don't know.

WotC didn't invent the terms longsword, battle ax, or spear. How much control can they exert over those terms being listed on a table, along with public domain expressions like 1d10?

That's true. But the authors of the Holy Blood and the Holy Grail probably didn't invent many of the words in their book either, yet they still had a coherent (if ultimately unsuccessful) suit against Dan Brown. Copyright doesn't reside in the invidual words but in the work, which may be a distinctive concatenation of those individual words. Table design and layout would also count. I'm not enough of an IP lawyer to have a view as to when copyrightability would emerge, but I don't think it's absurd to imagine that WotC has a prima facie claim to copyright in its equipment tables, and particularly in those tables as an element of a bigger work which is itself distinguished by further unique characteristics.

If you step outside the tabletop RPG market, it's not hard to find examples of this. "Unofficial" strategy games. "Wii-compatible" controllers. Vacuum bags for "Hoover" vacuum cleaners. Cliff Notes for in-print books.

With the vacuum bags there is no issue of copyright, only trademark. For the wii-compatible controllers I can't comment, as I don't know enough about how they work and how much copyrighted software (if any) they replicate. For Cliffs Notes there is fair use, and probably also permission from the copyright holder for any substantial reproductions of text (admittedly I don't have any Cliffs Notes handy, but it is the norm in academic publishing at least to get permissions for such reproductions).

I think that RPG material is somewhat distinctive in combining copyright issues (reproduction of text) with trademark issues (the product, in order to sell, must hang on the coattails of someother product). And unlike a hoover bag, from the point of view of WotC it is a product in competition with its sales rather than complementary to them. (And this difference in market status is itself of relevance to the legal characterisation of any potential IP infringement - that is, IP law is not indifferent to the market characteristics of an alleged infringement.)

I can certainly create game software to run on a Windows PC.

Again, I don't know enough about the software issues. My understanding is also that Microsoft is governed by various anti-monopoly considerations, although perhaps I am wrong about that, or at least about its implications for authoring the Windows game.

And yet somehow WotC is going to stop me from writing "software" for their D&D game system.

Well, the first thing that WotC would do is deny that your module - let alone your OGL+SRD clone - is software for their system at all. They would allege that, so far from being a complementary product, it is a competing product. And that allegation wouldn't be obviously fanciful.

 

[BryonD]

But clarifying presentation to make that complexity easier to digest is a huge deal, as is lowering the bar to entry and degrading the learning curve.

I think "clarifying presentation" is , at best, a red herring as there are plenty of clearly presented options for various game systems already available.

"Lowering the bar to entry and degrading the learning curve" just get back to the same root insult to new players.

 

[Raven Crowking]

I am sure that WotC has good reasons to avoid making earlier editions of D&D available.

I am equally sure that WotC has good reasons to want us to accept WotC as a bunch of "big tent" kinda guys.

They just have to decide which reasons are more important, because they cannot have it both ways. Regardless of how much they, or others, might wish that they could.



RC