WotC puts a stop to online sales of PDFs

[mach1.9pants]

Here is the entire RPGnow post for those that can't won't go to the WotC boards

Steve Wieck with DriveThruRPG/RPGNow here.
I thought I would respond to a couple items discussed on the thread.

First, there are no "contract negotiations" with Wizards that led to the current situation. We have been doing business with Wizards on downloads for over six years now and always enjoyed a positive and co-operative license relationship. The thread's hypothesis that the situation might be a result of a negotiation issue is a reasonable hypothesis but is incorrect.

On Monday I spoke with Wizards' legal department in a call that I thought would discuss the lawsuits Wizards has filed. We had been co-operating with Wizards to supply information on pirated files for those lawsuits (as allowed under our site privacy policy). Instead I was informed of Wizards' decision to cease all PDF sales at this time. It was a complete surprise to me.

Wizards gave us legal notice to remove their titles. Due to what I'll characterize as a miscommunication on intent, we complied immediately and removed all public access to Wizards' products from DriveThruRPG and RPGNow. In turns out this was not a situation that either we or Wizards desired. I am in discussions with Wizards legal and it looks highly probable that we will be able to offer customers time to come back and re-download prior purchases for their personal archives. We will email and post information on sites once we have final confirmation on this.

I regret that some customers have inferred that our download counts are any guarantee of availability to re-download titles. We really do not like iTunes' approach of "one download, you lose it, pay again" so we do our best to offer perpetual downloads of purchased titles. Our agreements with publishers though do not let us guarantee this - as this situation makes clear. We have learned a lesson here by reading that some customers inferred otherwise, and we will make some changes soon to clarify this on DriveThruRPG and RPGNow.

We are offering full refunds to anyone who purchased a Wizards title from us but never downloaded it. These are extremely rare cases, as most everyone downloaded the goodies as soon as they were originally purchased.

I am otherwise as confused as anyone else here on the rationale behind Wizards' decision. I know there are some smart people at Wizards like Scott who get it, so I can only speculate that there are others who are not as informed and who are making the call on this.

As many other folks on this forum have stated, I also believe that piracy for the foreseeable future is unavoidable for books. So long as printed copies and scanners and torrents exist, rpg books have been and will be pirated. It's sad and fatalistic, but it's true.

Given that rpg books will always be on file-sharing sites, it means that anyone who purchases a legal PDF is doing so because they prefer to make that choice over pirating the file. Thankfully, the number of rpg fans who make that decision are legion and it lets us send payments every month to hundreds of rpg publishers and creators. By making this choice to legally support thier hobby, fans are keeping rpgs alive. I say that without one bit of exaggeration or melodrama. Around seven new rpg titles go live every day at DriveThruRPG and RPGNow. The hobby could not be nearly that prolific if not due to fans choosing to support their hobby.

This makes DRM an extremely poor choice for any publisher. DRM inevitably restricts ease of purchase and ease of use, and anything that tips customer choice from legal purchase toward pirating is a bad business decision. DRM does nothing to prevent pirated files from being available, since the files will already be available anyway from scanned copy.

We already learned lessons on DRM the hard way in the past, so I know the issue intimately. For many years now, we have embraced watermarking as the preferable solution.

The posts by D&D fans across all gaming forums, while angry at times, are ultimately posted out of concern for Wizards and the desire to see Wizards make the best choices. Whether I ever do business with Wizards again or not, Wizards is a big part of the hobby that I love and for that reason alone, I hope that they reconsider. Especially given the ongoing fan feedback on this, I am optimistic that they will.

Steve
www.DriveThruRPG.com
RPGNow.com - The leading source for indie RPGs

Commonsense speaking there IMO!

 

[aboyd]

And if these 8 (or just some of them) are convicted, it becomes clearer to the pirates that there is a real threat of getting caught.

And this matters to pirates? I mean, have we ever seen an illegal filesharing service diminish due to lawsuits? Suing over MP3s, suing over ebooks & PDFs, suing over software, suing over movies & TV shows -- have any of those illegal offerings disappeared or even just noticeably shrunk over the years? Last time I checked, they're all flourishing. And so, to connect the dots for anyone needing it, I'm flat-out stating that suing these 8 people will have absolutely the same effect that lawsuits before have had. That is to say, no effect at all.

The only counteraction I've seen that has worked is for a place like hulu.com to pop up and make it easier for me to view shows legally. I'm willing to endure a few commercials if it's legal and safe. As for PDFs, my account with drivethrustuff.com shows I've made 39 orders over the years. I'm willing to pay for something professionally done and fairly priced. I'm trying to do the right thing. But nobody can do the right thing if the right thing is removed as an option.

 

[Scribble]

Obviously this isn't the place for a challenge over who is better at finding illegally pirated material, and I can't give evidence for this, but I'll stand by what I said.
The protection used by Paizo is a significant hurdle for the most prolific pirating communities.
I'd be very impressed if you could find pirated copies of the last two issues of Second Darkness, for example. You would have to delve very deep indeed to find them, and the files would likely still have identifiers of the purchaser attached.

I didn't mention anything about other 3PP - most of them use the RPGNow watermarking, and their products are just as available as 4E .pdfs are.

Then perhaps Wizards taking down the pdfs is simply what they had to do while they attempt to figure out how to upgrade their protection.

I doubt it's a "simple" thing to do to a catalog as big as they had. Especially for a corporation. (Corps can sometimes move realy slow when fixing problems.)

 

[merelycompetent]

Cool! EnWorld's been Slashdotted!
(Please note that I sincerely hope this does not create any headaches for the excellent Moderators at EnWorld. I just like to see my favorite hobby site get some nerd cred.)

Reasons for pulling the PDFs (please note that the following opinions are US-centric):
1. Stop the bleeding. Standard triage treatment for a business. Somehow, copies of their products are going out for free. The source apparently was tracked back to PDF purchases. Standard reaction: Halt the availability of all PDF purchases while they figure out what to do about it. Not necessarily the most skilled, experienced, or correct troublehsooting, but it is Troubleshooting 101.

2. (I Am Not A Lawyer) Legal requirement: Copyright holder must show that reasonable steps were taken to stop the violations. I expect that the argument could be made that failure to take reasonable steps to stop the violations, once the copyright holder was aware of them, equals complicit agreement with the violations.

3. (IANAL) Legal requirement: Seizure of evidence - all evidence concerning the violations, and distribution of infringing material, must be sealed, secured, and verified.

Court cases are, in my very limited experience (IMVLE), massive chess games, where fine shades of wording and meaning are shaved into fractions of carbon nanotubes. Smart parties hire experts (lawyers) to help them win the chess game. Courts (again, IMVLE) tend to proceed at speeds well below glacial, very conservatively, and in considerable fear of making an incorrect decision that will result in massive expense and/or disruption. The involved lawyers and clients will also proceed very slowly, carefully, and conservatively. That leads to...

4. (IANAL) Professional Legal Advice: If your expensive, bill-by-the-hour, expert who will determine whether or not your passive income stream (PDF sales) may again generate income in the future or turn into a huge, financially crushing, company-destroying screwup, advises you to do something, you do it 99% of the time - even if you think you shouldn't have to. Otherwise, you are wasting your hard-earned money paying for expert advice that you are now ignoring, and will likely lose BIG in court.

Legal issues are strange conflicts, combining elements of privacy, time, secrecy, strategy, tactics, resource management, evidence, discussion, referrals to previous cases, and history of archaic and mind-boggling precedents, that are conducted on a rarefied battlefield laden with pitfalls and traps for the ignorant. I hope no one on this forum ever has to enter that battlefield. Events on that battlefield will determine whether people go to prison, are financially ruined, continue to be employed, or retain ownership of property. Even the cost of merely defending oneself in this theatre of conflict (and yes, that is intended as a pun on multiple levels) can ruin one's bank account and/or reputation. In light of that, I don't think it is unreasonable to go a month, even two, without PDF purchases while WotC tries to straighten this frakked up mess out.

I applaud WotC taking the necessary steps to shut down copyright violators and bring them to the consequences outlined by law. If I had the ability to help them pursue these copyright violators, I would gladly donate my information, skills, and time to the effort. I also don't expect any significant information on the why's and wherefore's of their actions for several weeks, if not several months. Smart lawyers recommend things like that, so that their non-lawyer clients don't muck up the legal proceedings by shooting their mouths off.

Watching the court filings will likely provide more information than anything else.

Short of someone releasing additional verifiable, concrete information, all we have now are a few limited facts (already posted) and lots emotional speculation and guesses.

 

[ProfessorCirno]

I think what's bothering me the most right now is the group of posters going around saying "Well, I don't use any .pdfs, so clearly there's no problem at all here. Furthermore, if you have a problem, you're obviously just a WotC hater and your opinion doesn't matter in the first place."

It's like people were waiting for something to wake up the edition wars, and seeing this, they're plowing straight ahead.

 

[joethelawyer]

The more I think about this...

The more I think about this, the more I am driven to a simple conclusion. If you know that:

1. It's a stupid business decision to pull the pdf's---which is something any 12 yr. old can tell you; and

2. It's a PR debacle of legendary proportions; then

3. It must be the fault of the lawyers.


I can imagine a situation where, for whatever reason, the illegal pdf's got onto the radar of some executive at WOTC or Hasbro. Who knows, maybe he saw his kid downloaded a torrent of AD&D stuff onto the family computer. He decided to make a big deal of it and calls a "Come to Jesus Meeting" of all involved.

A directive is given to make a stand and sue to put the fear of the law into these pirates.

The lawyers get involved. They start to consider the legal aspects of the case. They see its a clear-cut win for them, assuming they can find the people that shared files. However, they immediately see that the issue of damages is going to be a pain in the arse to prove. In other words, how do you prove your losses? How do you prove that every download was a lost sale? Or was made by someone who didn't already have a copy of the book?

Also, since the plaintiff, WOTC, has the duty to all they can to mitigate damages, could it be an offset to the damages awardd to WOTC if it is proven that WOTC's actions in making downloads available for download actually added to the illegal downloading of the files?

So if I'm the legal dept., the first thing I do is report up the chain of command that in order to mitigate damages, we need to stop selling the pdf's, so we can't be held to be at least partly at fault. We need to make it look like we did all we could do to stop the illegal downloading of files. That incudes not making high quality copies available for distribution.

Otherwise, someone might be able to argue that prior to WOTC's making available high quality pdf's for download, the illegal pdf market was small. Sure, you could find files out there, but the scan quality sucked. Only after WOTC started making these high quality scans available did the illegal pdf download market explode. Therefore, a lot of the blame for the illegal downloads lies with WOTC themselves.

Makes sense, right?

The thing that is interesting is that the mitigation measures won't affect the pending lawsuit. They only affect suits going forward...which would mean there are more to come.

Just a theory.

 

[Scribble]

The more I think about this, the more I am driven to a simple conclusion. If you know that:

1. It's a stupid business decision to pull the pdf's---which is something any 12 yr. old can tell you

It might not be. It might just appear to be to anyone without the numbers.

Would you still think the 12 year old was correct if you knew that:

The damage being caused by allowing the pdfs to continue being sold was greater then the damage caused by not having the income from pdfs + angry customers?

 

[merelycompetent]

Makes sense, right?

The thing that is interesting is that the mitigation measures won't affect the pending lawsuit. They only affect suits going forward...which would mean there are more to come.

Just a theory.

I apologize for adding to the pure speculation. But since I just failed the Will save...

Except for the degree of PR debacle and responsibility for it, this matches pretty close to one of my theories.

Add to it that it may not just be a matter of protecting copyrights, the trademarks involved (please, nobody confuse those two!!) for 4E, and their online business model; and I can well understand why WotC is taking this course of action.

I think, though, that there is significantly more to the story than the above speculative fiction.

 

[xechnao]

Makes sense, right?

The thing that is interesting is that the mitigation measures won't affect the pending lawsuit. They only affect suits going forward...which would mean there are more to come.

Just a theory.

How are they going to find the people they are going to sue regarding those "more to come" you are talking about? It has been said so far that it were the watermarks that lead them to the suits this time around.

Also the fact that you sell pdfs yourself or not I think is irrelevant regarding damages or any lack of necessary security measures.

 

[joethelawyer]

It might not be. It might just appear to be to anyone without the numbers.

Would you still think the 12 year old was correct if you knew that:

The damage being caused by allowing the pdfs to continue being sold was greater then the damage caused by not having the income from pdfs + angry customers?

The thing is, I have no idea how they can prove that by the numbers at hand at the time they killed the pdf market. How can a person possibly calculate such a thing? The only certainty at the time of the decision was that you would piss people off. Since pissing your customers off usually leads to lower sales, I would have decided it wasn't worth the risk to find out if the calculation you outlined above was accurate. Then again, who am I?