RPG Evolution: The Right to Archive

Hasbro's plan to include AI in D&D brings WOTC's controversies over digital rights back into the spotlight, specifically the Dragon Magazine CD-ROM Archive.

Picture courtesy of Pixabay.​

A Simple Idea​

It all started with a simple idea: wouldn't it be great to have all the past issues of Dragon Magazine electronically searchable in one place? For fans, the Dragon Magazine CD-ROM Archive was a dream come true. It was also a nightmare for Wizards of the Coast:

At the time of its release in September 1999, a publisher's rights to electronic reprints of print magazines were the subject of legal dispute. The crisp question: if a company had paid an author a fixed amount for all print rights to a magazine article -- which is how TSR did business -- did those rights automatically include the right to publish an electronic version of the magazine?

(UPDATED: Thanks to See for giving additional context) That "legal dispute" was Greenberg v. National Geographic:

After the National Geographic released a digital archive containing all monthly issues of National Geographic magazine in 1997, photographer Jerry Greenberg took the Society to court over the reproduction of photographs that National Geographic had licensed from him. National Geographic withdrew this archive from the market in 2004 until after litigation was finished. The archive, called "The Complete National Geographic on CD-ROM and DVD", contained image duplicates of the print magazines. National Geographic argued that the archive was a "revision", and thus National Geographic held the license to republish. The plaintiff argued that the archive, which included an introductory sequence set to music and a search feature, was a new work.

Relevant to the decision was another case, New York Times Company, Inc. v. Tasini. LEXIS/NEXIS archived New York Times articles written by freelance authors for various print publishers in a computer database:

The authors filed suit alleging that their copyrights were infringed when the print publishers placed their articles in the electronic publishers' databases, such as LEXIS/NEXIS. In response, the print and electronic publishers raised the privilege accorded collective work copyright owners by section 201(c) of the Copyright Act.

The two cases were intertwined in how the courts viewed if a CD-ROM collection was legally feasible. Various appeals courts traded the issue back and forth over the years through 2008, adding enough confusion that TSR and WOTC were likely unsure as to their legal hurdles to produce a CD-ROM archive.

The question, which was new to electronic databases, was if publishers violated freelance author copyrights by publishing their articles in a database without their permission.

The Gamble​

WOTC took a gamble that, undoubtedly because the process would be onerous and expensive, they didn't need to contact the original authors and artists who contributed to every Dragon Magazine article. Broadly speaking, there were three groups of concern: tabletop game designers (the largest group), fiction writers, and comic artists.

It was a risky bet. The Tasini case was referenced multiple times as the Greenberg vs. National Geographic case bounced around the courts. The Supreme Court decided in the Tasini decision by 7-2 that The New York Times Company did indeed violate author rights:

The publishers are not sheltered by [section 201(c)], we conclude, because the databases reproduce and distribute articles standing alone and not in context, not 'as part of that particular collective work' to which the author contributed, 'as part of...any revision' thereof, or 'as part of...any later collective work in the same series.'

One appellate court ruled against Greenberg v. National Geographic in 2001. In 2005, another appellate court ruled that Greenberg was inconsistent with the Supreme Court ruling in Tasini, and ruled in favor of National Geographic. In 2007, the Eleventh Circuit reversed its prior decision and remanded the case back to the U.S. district court, agreeing with the Second Circuit ruling that Greenberg was inconsistent with the later Tasini decision.

All this confusion was a problem for WOTC. Dragon Magazine included fiction, and many of those authors who contributed to the magazine over the years were members of the Science Fiction & Fantasy Writers Association (SFWA). They turned to the organization for help, who took up the mantle in March 1999:

Wizards of the Coast intends to issue a CD Rom reprinting issues #1-#250 of Dragon magazine, without paying for the rights. SFWA president Rob Sawyer has spoken to the CEO of Wizards, Peter Adkinson, who has said he will investigate the matter. However, if you had a story or an article in the first 250 issues of Dragon, it is worth your while -- and a prudent step in the care of your career -- to write to WoTC and express your concern. The gentleman in charge of the CD project is Anthony Valterra...

The Fallout​

If Valterra sounds familiar, he subsequently left WOTC to form his own company, the Valar Project, which produced The Book of Erotic Fantasy, in response to WOTC's Book of Vile Darkness not going quite far enough. This triggered a "purity clause" in the then D20 license, which caused a migration to the Open Game License, The Book of Erotic Fantasy included.

WOTC was in hot water. While details of the settlement to the fiction authors was never publicly shared (by all accounts, the SFWA secured a settlement for a number of authors to clear the way for the archive's release), The Knights of the Dinner Table comics were a different story.

Knights of the Dinner Table saw publication in Dragon Magazine starting in 1996 with issue #226, continuing through issue #250 in the Archive. It was not produced for the magazine as a work-for-hire; the agreement specifically excluded electronic reprint rights. This, coupled with the outcome of the Supreme Court case, made it clear WOTC was in breach of contract. David Kenzer, an IP attorney and founder of Kenzer & Company, wanted compensation for those twenty-five strips. None was forthcoming, resulting in a lawsuit.

As part of a settlement agreement, Kenzer gained a seven-year license to use the Dungeons & Dragons brand on Kingdoms of Kalamar products. The Kingdoms of Kalamar Campaign Setting was published carrying the D&D 3rd Edition logo in 2001, with more than thirty products later released with the D&D through 2007.

Why This Matters​

The final ruling of the appellate courts was that National Geographic's magazine reproduction was privileged under the federal copyright statute. Since that ruling, several publications have produced DVDs or restricted websites for subscribers, including National Geographic, who released a 120-year archive of its magazines in 2009.

The Dragon Magazine Archive was part of the ongoing legal headache WOTC inherited from then parent company of Dungeons & Dragons, TSR. But it has a lot of parallels with how artificial intelligence is being used to farm content, and it provides a guidepost for future conflicts if authors and artists decide to use legal means to defend their rights.

We'll discuss the implications of these lawsuits and settlements and what they mean for AI, authors, and artists in the next article.

 

[Whizbang Dustyboots]

unfortunately, because of the rights issues, we're likely to never see something like this again, and that's a damn shame.

I don't think that's necessarily true.

When WotC wanted to reuse some of TSR's Dungeon and Dragon content for Ghosts of Saltmarsh, they were able to track down the creators and make deals with them.

It's entirely possible that there were other things they wanted to use and either couldn't find the people (@M.T. Black often mentions in his retrospectives that some of the Dragon freelancers are dead or appear to have disappeared off the face of the earth) or they said no at the price WotC was offering.

If WotC wanted to go whole-hog on something like the Dragon archive (and do the same with Dungeon), a lot of these people are findable, if you want to find them. (As our US attorneys in the ENWorld community will attest, almost everyone can be found with a Nexis/Lexis search and a little bit of cold-calling.) And even making a demonstrated good faith effort to find everyone might be enough legal cover to use the works created by freelancers who have gone off to live in a cave with Bigfoot.

The problem was that, as far as we know, TSR/WotC didn't even try to do the right thing, so they justifiably got their hand slapped with a ruler.

 

[Dire Bare]

TSR/WotC could (and should) have made a good faith effort to reach out to the freelancers instead of deciding that the distribution rights they agreed to decades ago gave them a license to reprint the products in perpetuity, which any lawyer they talked to would have told them was a shaky idea at best.

What TSR/WotC did was essentially piracy that they thought they could get away with, by picking on freelancers who aren't much different than fans like you and me. (Except when I submit work I've done to a jam, modern day publishers like Limithron make it very clear that they won't steal my crap.)

They should have. Could they have? Some of those folks would have been hard to find back in the day, and not all of them would have signed a new contract. How much time and money should TSR have put into the project?

Doesn't justify what they did, which was just ignore the issue and hope nobody cared.

I don't think it was malice, or even a lack of concern for artists' rights. I think the idea of a CD-ROM archive was a great one! I certainly loved mine! It's just the typical poor leadership and management at TSR at the time, which WotC inherited.

And, it WAS a legal question that wasn't settled at the time. Still, one of many not-so-bright moves by TSR leadership.

 

[JEB]

How much time and money should TSR have put into the project?

This is the factor @Stormonu was getting at, if I understand correctly. Doing right by creators is obviously the way to go, but it still has the consequence of making some re-releases prohibitively difficult or expensive. And for the corporations that own many old IPs now, that's enough to make it not worth their trouble. Resulting in many things never getting re-releases.

(Though occasionally you will find other workarounds, such as DVD releases of TV shows that leave out songs that would be difficult to license. Which is better than nothing, but can be frustrating to dedicated fans who wanted an archival version.)

 

[billd91]

They should have. Could they have? Some of those folks would have been hard to find back in the day, and not all of them would have signed a new contract. How much time and money should TSR have put into the project?

Doesn't justify what they did, which was just ignore the issue and hope nobody cared.

I don't think it was malice, or even a lack of concern for artists' rights. I think the idea of a CD-ROM archive was a great one! I certainly loved mine! It's just the typical poor leadership and management at TSR at the time, which WotC inherited.

And, it WAS a legal question that wasn't settled at the time. Still, one of many not-so-bright moves by TSR leadership.

Should they have done so? It wasn’t exactly like they were pursuing a notoriously reckless legal gambit. They were engaging in periodical industry standard practices… just like the NYT. It’s not exactly like putting out a CD archive of back issues is that different from producing it on microfiche, in theory.

Their main screw up was not realizing or noticing that Kenzer had negotiated something fairly novel for Dragon, a block on electronic publishing, probably meant to keep the comic strip off TSR’s webpage.

 

[OptionalRule]

It definitely parallels it if they are going to offered an AI search engine. However, there is an easy enough way around it. They will just have AI rewrite it all. WotC owns the IP itself.

To be clear, I'm not for that, but i think that is what they will do

 

[Whizbang Dustyboots]

How much time and money should TSR have put into the project?

Looking up each creator -- whose articles they were looking at anyway when they were formatting the PDFs on the CD-ROMs, which are more processed than merely being scans of magazine pages -- on Lexis/Nexis adds about five minutes per person, assuming we don't know what state they're in.

Picking up the phone and calling the most likely hits is another 10 minutes or so.

So, with everyone on the CD-ROM, that's probably one person working 40 hours or so.

Weighed against the loss of sales and other penalties they paid as a result? Making the effort would have been a pretty good deal.

And, it WAS a legal question that wasn't settled at the time.

It was unsettled but also not exactly a toss-up. It was a 7-2 decision. I suspect most lawyers at the time would have suggested caution or putting the product on hold until there was more legal clarity.

 

[Whizbang Dustyboots]

It definitely parallels it if they are going to offered an AI search engine. However, there is an easy enough way around it. They will just have AI rewrite it all. WotC owns the IP itself.

It depends on what IP we're talking about. Most of the content in Dragon doesn't use protected TSR/WotC IP. Someone who created a monster published in Dragon magazine, which then never reappeared again, probably does still own that monster of theirs and Hasbro shouldn't be feeding it to an AI without permission.

 

[OptionalRule]

It depends on what IP we're talking about. Most of the content in Dragon doesn't use protected TSR/WotC IP. Someone who created a monster published in Dragon magazine, which then never reappeared again, probably does still own that monster of theirs and Hasbro shouldn't be feeding it to an AI without permission.

I think published dnd books, adventures and such is what they are talking about for Ai, not dragon mag. Regardless though, in some cases it will be as you say. Still, I believe this is how they will try to do it.

 

[Ravenheart87]

Actually, it was. They stopped printing Hackmaster when the license ran out, though I think they may have picked it up again (not sure it is still active) using a different engine under the hood.

They started developing a new edition before the AD&D license ran out using their Aces & Eights system as its framework. HackMaster 5e is still available and is the best rpg ever. Alas Kenzer & Co have been very slow in releasing anything other than Knights of the Dinner Table. A revised edition is promised to be coming soon.

 

[talien]

At a guess, it feels less like "WOTC ignored rights of creators" and more "inherited TSR's mess and was hoping TSR had done their legal homework." It's telling that Adkinson is mentioned and when the SSFWA speaks to him, he said he'd look into it (as opposed to clearly stating that rights were resolved, or referring to a lawyer). So it really does seem WOTC thought TSR had this settled and found out after the fact they didn't. At a guess, the CD-ROM fell through the cracks in the transition when WOTC bought TSR's properties.

What's notable, and I will make this point in the next article, is that of the three groups, once is clearly NOT represented and that's game designers. I worry that means that the contracts folks signed with Dragon were either so comprehensive that it covered worldwide, perpetual rights (I wrote for Dragon Magazine later and I'm pretty sure they own all of what I contributed and have the rights to republish it as they see fit) ... or, what seems more likely, game designers simply weren't organized enough to fight something like this the way the SSFWA or Kenzer did. And that's a big problem when we get into AI rights.