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.

 

[Voadam]

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.

This was a notable change. Dungeon and Dragon switched from standard magazine first print rights to specific contracts for all rights to stuff submitted.

 

[talien]

I feel like it's standard now for most contracts in print magazines to ask for worldwide/perpetual rights. The issue as always is whether these contracts still hold up as new technology is introduced. Print pubs couldn't envision digital archiving, and digital archiving couldn't envision AI farming content. We have much the same issue with the robots.txt file that's supposed to keep web crawlers from reading web sites. Nobody who created robots.txt decades ago ever envisioned (I know, the name is ironic) mass-content farming by web crawlers that went well beyond search engines and were feeding AI.

Always fascinating when legal rights collide with technology. My next article is going to take this use case and overlay over what happens next with AI, game designers/authors/artists, and how Hasbro/WOTC plans to navigate the tension between the two.

 

[Whizbang Dustyboots]

This was a notable change. Dungeon and Dragon switched from standard magazine first print rights to specific contracts for all rights to stuff submitted.

They were behind the curve on this, IMO. I had to sign freelancing contracts for fiction in the 1990s and those contracts were very clear about what rights I was giving up and what rights I retained. (I gave up first North American print publication rights, but retained all others. Even small fiction magazines made it clear my work couldn't be compiled into a CD-ROM compilation, which was a thing in the 1990s, without a separate, later negotiation.)

And I knew all about what I was getting myself into, because the very popular trade magazine Writer's Digest talked about all of this regularly and in great clarity.

I assume the Dragon/Dungeon staff knew all about this, but since TSR had farmed the project out to an outsider, it may well have been that he didn't know (or maybe didn't want to worry about) the rights issues until it was too late.

 

[JEB]

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%.

Agreed. Though I don't have a lot of confidence that Wizards would even handle a partial re-release well, considering some of the gaffes on DM Guild where they (presumably) do have 100% of the reprint rights (poor scans, pages missing, and some historically significant products still absent like the 1977 Basic Rules).

 

[Whizbang Dustyboots]

some historically significant products still absent like the 1977 Basic Rules

That one is a particular headscratcher, since it's hard to imagine they don't have the rights to it, free and clear, and multiple copies of the rules at WotC headquarters and in the home collections of multiple staffers, plus all the ones out there on the marketplace.

 

[Micah Sweet]

Agreed. Though I don't have a lot of confidence that Wizards would even handle a partial re-release well, considering some of the gaffes on DM Guild where they (presumably) do have 100% of the reprint rights (poor scans, pages missing, and some historically significant products still absent like the 1977 Basic Rules).

Yup. This would have to be a "keep circulating the tapes" situation, and likely always will be.

 

[Dire Bare]

They were behind the curve on this, IMO. I had to sign freelancing contracts for fiction in the 1990s and those contracts were very clear about what rights I was giving up and what rights I retained. (I gave up first North American print publication rights, but retained all others. Even small fiction magazines made it clear my work couldn't be compiled into a CD-ROM compilation, which was a thing in the 1990s, without a separate, later negotiation.)

TSR did start issuing more comprehensive work-for-hire contracts, it's just the earliest issues of Dragon where it wasn't standard practice yet. Not sure what year or what issue. A CD-ROM of Dragon issues #23-250 doesn't have the same cache!

And to be fair to TSR, in the early days, they didn't know what they were doing! They were hobbyists, not seasoned industry professionals. That developed over a decade, slowly.

I don't view the contract issue itself as a black mark on TSR, but ignoring it to create the archive, that was foolish.

 

[Whizbang Dustyboots]

I don't view the contract issue itself as a black mark on TSR, but ignoring it to create the archive, that was foolish.

Those are my feelings as well. By the time the CD-ROM rolled around, they should have known (or the person supervising the contractor assembling the CD-ROM should have known) that they would have to either make some effort to contact those earlier contributors or cut out that material.

It's a screw-up, and one that the powers that be more than paid for long ago, but hardly the worst a company has committed. (No one was having to scrub crude oil off of sea birds afterwards, for one.)

 

[Eyes of Nine]

I would like them to reprint in paper.
A set of fat volumes with 25 issues per set

 

[see]

So, a few things of note.

1) National Geographic did its release of "our whole archive on CD-ROM" thing in 1997, so two years before Dragon, which probably made TSR/WotC feel rather confident in the legality of their project.

2) New York Times Company, Inc. v. Tasini (2001) is not, in fact, directly on point, explicitly because of the "standing alone and not in context" thing people mentioned earlier in this thread. Yes, sure, there was a searchable database on the Dragon CD-ROM, but you didn't get the whole articles through that, you got directed to the digital facsimile of the original article in the original context -- matching, as it happens, what National Geographic did with their collection.

3) National Geographic was, in fact sued over their collection, in the cases Greenberg v. National Geographic and Faulkner v. National Geographic. National Geographic initially lost in Greenberg before the Eleventh Circuit, in 2001, before the NYT v. Tasini ruling came out. National Geographic then won in Faulkner before the Second Circuit in 2005, with the Second Circuit saying that the Greenberg ruing was inconsistent with the Supreme Court ruling NYT v. Tasini. In 2008, the Eleventh Circuit agreed with the Second Circuit, and reversed itself, ruling in favor of National Geographic. There are accordingly two US Federal appellate courts (the level directly below the Supreme Court) that say what National Geographic did was perfectly legal after NYT v. Tasini.

4) You'll notice that neither the SFWA* settlement nor the Kenzer settlement involved, at any point, any actual court judgment against WotC. And both the SFWA and Kenzer settlement agreements were, in fact, reached before the NYT v. Tasini ruling† anyway, so that ruling couldn't have had any effect on them.

So, no, the ruling in NYT v. Tasini didn't mean that the Dragon Magazine Archive violated anybody's copyright, and in any case the ruling came along too late to have any effect on the settlements that were reached regarding that product.

---

*While the full name is either the "Science Fiction & Fantasy Writers of America" or the "Science Fiction & Fantasy Writers Association", the correct abbreviation is, formally and officially, "SFWA", with only one "F". (Yes, there's a bit of history behind all that.)

†The licensed-under-settlement-terms version of the Kingdoms of Kalamar had already been released and was subsequently reviewed on RPG.net by April 29, 2001; the ruling in NYT v. Tasini came down on June 25, 2001.