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.

 

[Nikosandros]

I'll confess that, selfishly, I'm a bit happy that TSR was careless with the project. If they had done their due diligence, I'm afraid that they would have concluded that it was too much of an effort and cancelled the project. As it is, we got the PDFs. Also, Hackmaster "4th Edition" was a nice product line

 

[billd91]

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.

I wouldn’t be surprised if the same is true for other hobby or craft publications over the years. <Specific> Hobbyist isn’t exactly an association or union-organizing role recognized in many industries, unlike fiction writers.

 

[Blue]

In this case wouldn't the writers etc. have been paid already by TSR, when they wrote the articles?

If you read the original post, the content creators that the IP protected were the authors of short stories and those who created comic strips. So when talking about IP protection, the writers of the articles aren't part of this discussion.

But for those, as the Supreme Court ruled, those content creators were not paid for their works in another context. If you have an issue with that, literally you can argue with the SC, otherwise you need to accept it.

 

[Dire Bare]

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.

Yes. They should have.

And they got burned by not doing so. Rightfully so.

We're not talking journalistic magazines being archived for library purposes, but artistic creations . . . fiction, illustration, comics, game design . . . being packaged as a new product for sale.

 

[Dire Bare]

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.

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.

Lexis Nexus?

Maybe for some of the authors and creators, but Dragon was a niche hobby magazine with mostly fans creating the content. TSR didn't work hard at tracking down these folks because it would have been time-consuming, difficult, and likely not even close to 100% successful. Making the project not worth doing financially. So they ignored the potential problems and proceeded anyway.

There are stories from back in the day when TSR, WotC, or somebody actually wanted to track down some of these folks for various reasons . . . and had a lot of difficulty. Dave Trampier, the illustrator and comic artist, comes to mind. Today, we have tools we didn't back then . . . and it can still be hard to track somebody down whose fallen off the grid.

And how do you make an "archival" version of a magazine available if some of the creators give consent but others do not? Is a partial reproduction truly "archival"? Does that change the legality of it all? I remember that being a part of the discussion back in the day. But . . . IANAL.

 

[Dire Bare]

I'll confess that, selfishly, I'm a bit happy that TSR was careless with the project. If they had done their due diligence, I'm afraid that they would have concluded that it was too much of an effort and cancelled the project. As it is, we the PDFs. Also, Hackmaster "4th Edition" was a nice product line

Yeah, hah.

It was a fumble by TSR, but resulted in some cool stuff for sure.

 

[Whizbang Dustyboots]

Lexis Nexus?

Maybe for some of the authors and creators, but Dragon was a niche hobby magazine with mostly fans creating the content. TSR didn't work hard at tracking down these folks because it would have been time-consuming, difficult, and likely not even close to 100% successful. Making the project not worth doing financially. So they ignored the potential problems and proceeded anyway.

There are stories from back in the day when TSR, WotC, or somebody actually wanted to track down some of these folks for various reasons . . . and had a lot of difficulty. Dave Trampier, the illustrator and comic artist, comes to mind. Today, we have tools we didn't back then . . . and it can still be hard to track somebody down whose fallen off the grid.

Lexis/Nexis has been around for a long time. Mostly it's the interface that has changed. I think if TSR had used Lexis/Nexis rather than, I'm guessing, whatever phone books they could have laid their hands on, they would have been more successful. But, as you said, lots of bad business decisions in that era especially.

And how do you make an "archival" version of a magazine available if some of the creators give consent but others do not?

That's the good faith effort part. IANAL, but I've dealt with projects where, at a certain point, the court said 'yeah, this is all the effort that could be reasonably expected to find a person; it's not your fault that you weren't able to do so" and we could move on from there.

Is a partial reproduction truly "archival"?

I think a product that was being sold today that had 70% of all Dragon and Dungeon articles would be vastly preferable to what's legally on sale today, which is 0%.

 

[billd91]

Yes. They should have.

And they got burned by not doing so. Rightfully so.

We're not talking journalistic magazines being archived for library purposes, but artistic creations . . . fiction, illustration, comics, game design . . . being packaged as a new product for sale.

Do you think newspapers give their microfiche archives to libraries for free? Just because the market for the archive is a little different doesn't mean they aren't in it for their bottom line.

 

[billd91]

Lexis/Nexis has been around for a long time. Mostly it's the interface that has changed. I think if TSR had used Lexis/Nexis rather than, I'm guessing, whatever phone books they could have laid their hands on, they would have been more successful. But, as you said, lots of bad business decisions in that era especially.

Back in the 90s, Lexis/Nexis was pretty much the Cadillac of online research tools. Licensing it wasn't cheap so it tended to be most readily available to big corporations and law firms or other business that regularly had to do some fairly intrusive research (it's ability to find people was fairly legendary at the time - rivaled only by the alumni office looking for donations). It was too expensive, for example, for the General Library System on the UW campus in Madison to license for general student research.
I have my doubts TSR would have seen a significant business need for it under normal circumstances.

 

[Whizbang Dustyboots]

Back in the 90s, Lexis/Nexis was pretty much the Cadillac of online research tools. Licensing it wasn't cheap so it tended to be most readily available to big corporations and law firms or other business that regularly had to do some fairly intrusive research (it's ability to find people was fairly legendary at the time - rivaled only by the alumni office looking for donations). It was too expensive, for example, for the General Library System on the UW campus in Madison to license for general student research.
I have my doubts TSR would have seen a significant business need for it under normal circumstances.

My thinking was that if they consulted with a law firm about the legality of the CD-ROM (and it's likely that they never did), the law firm would have told them about Lexis/Nexis and either offered the use of it or to conduct the searches for them.

It's still the Cadillac of finding people, IMO. Even the best internet searchers can't find everything that Lexis/Nexis gets from buying commercial data on customers, etc.

(And I heard a joke years ago that a certain famous fugitive whose name I cannot mention per the politics rule would have been found years earlier if the US government had just contacted his alumni association: Those guys can find anybody.)