ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/frp/tsr/debate/apol1.txt

Text File | 1995-02-13 | 17KB | 314 lines

From: [e-mail] (Logical Language Group)
Newsgroups: rec.games.frp.dnd
Subject: Re: Response to T$R
Date: 25 Sep 1994 17:11:10 -0400
Organization: The Logical Language Group, Inc.

Disclaimer:  I am not a lawyer, but I have been a principal in a
trademark cancellation lawsuit (which I won), in which I did a lot of
legal research, and in which many of the issues are similar to those
affecting TSR and the role-playing community.

Specifically:  the tolerance and encouragement by an inventor for free
use of his ideas by the community of people interested - his customers -
made it impossible for him to gain trademark later and to use that
trademark to control me and others who rejected his efforts to remain
the sole source of materials.  Because, we are able to legitimately (and
justifiably) call our work by the name he chose, Loglan, his stuff is
less marketable as a result - we distribute our materials in a
shareware-like or freeware-like manner, and our materials are as good or
better than his.  What has happened is GOOD for the community, and BAD
for the inventor and his organization that markets his stuff.

My conclusion from my own experience is that if TSR knowingly allowed
unlimited unlicensed use of their trademarks, in light of their previous
encouragement to people to create new materials, someone could
eventually come along and do to them what I did.  See the end of my post
for quotes from our legal decisions supporting this opinion.

This is not a question of 'right or wrong'.  I believe that what I did
was right and benefitted the community I am trying to serve (I'm not
trying to make a living), and in the long run could have benefitted the
inventor more than his policies (he isn't trying to make a living off
the stuff either).  If someone took advantage of TSR's laxity and made
the game more-or-less public domain, the community might benefit greatly,
but in this case it might destroy TSR.  TSR is right to defend its
interests, and we are right to try to maximize our benefits.

TSR writes:
>"Currently, any other distribution to the general public - in paper form or
>on the net -  of AD&D adventures, other TSR materials and game mechanics,
>or copyrighted materials is considered unauthorized."

[e-mail] (Kynn Bartlett) writes:
>TSR apparently has had no problem with people using material among them-
>selves, or a group of their friends.  However, when you make something
>available to anyone with internet access, you're talking about making it
>available to potentially an enormous number of people around the globe.

One point that has not been made is that trademark law distinguishes
between interstate and intrastate use of trademarks.  TSR's trademarks
are almost certain at the US (and in some cases international) level.

It is probably the case that federal courts would take far more seriously
a publication that crossed state boundaries (like a net posting) than it
would any publication associated with your gaming group.

[e-mail] (Michael A. Chance) writes:
>Why does TSR feel it necessary to control the copyright and
>distributions rights of my derivative work, when SJG doesn't?

Because the law requires that a trademark owner police the trademark or
lose it.  That means that they are required to set conditions such that
they limit and license who may use their marks.  Trademark law is NOT
designed to support communities of users exchanging support materials,
and in fact is rather stacked against such exchange being legal.  The
level of policing required is such that innocent infringers get hurt (if
not, why would they stop), and that means that when the infringers are
also customers, there is going to be a PR problem.  But the courts won't
listen if you say "I didn't stop my customers from infringing my
trademark because it would have been a PR problem and cost me sales."

Under the law, if you distribute something interstate, that is
'interstate commerce', and use of a trademark in interstate commerce
must be licensed by the trademark owner or it is illegal.

If TSR knows about your action, and does not try to stop you, then
someone else - a real commercial competitor - can use that failure to
invalidate the trademark.  TSR has been involved in legal disputes over
the intellectual property rights associated with the game (Judges Guild,
Mayfair, EGG a couple of times) which have shown that there ARE
competitors that would take actions that could cost TSR its trademarks.
Meanwhile TSR has been on the receiving end of lawsuits (Tolkien, etc.)
that have shown it that there is much cost in losing such legal battles.
They are thus JUSTLY paranoid - their legal expenses have probably been
rather large for their size, given the number of such disputes that have
become public.

SJG has little to fear, unlike TSR.  Who is going to bother competing
with SJG with its minuscule market?  Indeed, by opening up exchange
through the net, SJG may have made it LESS likely that someone will
enter the business of trying to make money off their products, and for
them it IS free advertising since it will attract new gamers that would
never have considered SJG games because they have less support material
on the market than TSR does (I doubt that net.stuff will in general
attract new players to TSR games that did not already know of those
games).  SJG's trademark, such as it is, is really not worth much if it
comes to a court case, because they have allowed it to become identified
with an unlicensed source (the net), but if their tactics prevent
competition and expand knowledge of their games, then they win.

TSR would not reduce the likelihood of competition by freeing up net
usage.

Big companies, or companies that dominate their market, have to defend
and police their trademarks aggressively - even offensively.  Little
companies do not.  Rather than comparing with SJG, compare with Disney,
Microsoft, the Tolkien estate, IBM, Xerox, and Kleenix - companies that
have a special dominating role in their field and who ARE aggressive in
defending their rights.

TSR has probably also been forced to take a strong stand because the
violations of its trademarks on the net have been so rampant for so
long.  Until they were on the net, they could say they didn't know about
it - they no longer can do so, so they must police - probably extra
strongly BECAUSE the usage has been so prejudicial to their trademarks.

>And indeed, this is probably the sole complaint I really have.  I would
>strongly dispute some of the claims T$R makes about what they do and do
>not own the copyright to... but that is irrelevant.  I would be more
>than willing to post a disclaimer to anything that seems likely to irk
>T$R.  But the main problem is distribution.
>
>Why is it that T$R cannot just get a brain and say "Hey, put the
>disclaimer on stuff that uses our games" and leave distribution up to
>the anarchy of the Internet?  Append to the disclaimer posted here some
>mention that T$R does not endorse said work, and if the author offends
>anyone, it's his problem... seems that removes any need to "approve" a
>posting.

I suspect a mere disclaimer is NOT enough to protect TSR's rights (or at
least that TSR is quite sure that this is the case).

There is a use/mention distinction to be considered here.  Mentioning a
trademark in your work and acknowledging its ownership is (probably)
fine and sufficient if what you are producing/distributing would not be
considered goods that would be labelled with the mark.  Talking ABOUT
TSR products especially if you acknowledge who owns them, enhances their
rights.  Distributing non-TSR stuff that could be called a 'product' is
legally competing with TSR, whether you charge money for it or not.

net.books and net.modules are parallels for TSR's materials.  If the net
becomes considered an alternate source for materials under the
trademark, and TSR does not control and license such usage, the
trademark legally ceases to be solely associated with the company (which
is the definition of trademark).  Thus, in short, what the net WANTS -
the right to freely put materials up that could be called "AD&D
materials" without having prior TSR approval is antithetical to what a
trademark is.

Acknowledging someone else's trademark, even as you use it yourself can
dilute the strong association between a trademark and its owner.

If there are sources for something that is labelled by a trademark other
than the owner, then the public gets the idea that the company is not
the SOLE source for authentic materials, which is what a trademark
means.

Licensing needs to be such that TSR is capable of asserting control over
who does and does not use their trademarks, and blanket authorization is
NOT control.

>Any work that threatens T$R rights would have to be so well distributed
>that it would *have* to come to the attention of Rob Repp, right?

Since Rob knows of this group and that it regularly contains stuff that
threatens TSR's rights, in a court of law, all such materials would be
considered 'brought to the attention of TSR'.

>[e-mail] (Kynn Bartlett) writes:
>So, unless they appoint a LegalNetRep in addition to a NetRep,
>they're being contemptuous of us all?

[e-mail] (Rodney Payne) writes:
>How about, a netrep with some legal knowledge, or one who is forwarding
>legal knowledge from the legal department.  Of course it seems
>contemptuous (and remember I wrote `seeming contempt', not contempt),
>especially when that netrep makes claims that are patently untrue (TSR
>has to protect their copyrights or they'll lose them, for example).

I don't think that is what Rob/TSR has said.  They have said that they
are taking this action to "protect the value of their property including
copyrights and trademarks" or similar wording.  If they keep the
copyright but it loses its value because they lose trademark and someone
comes up with a competing (and cheaper or better) version of the game,
then their copyright has lost value.

If they permit someone to post materials in such a way that it
constrains their ability to market a similar product (because you can
sue them for being derivative of YOUR ideas), then their copyrights lose
value.

If someone uses TSR material in a net publication that is listed or
assumed to be 'freeware' or public domain (as some people incorrectly
assume ALL net stuff to be), and does not acknowledge TSR's rights, then
someone else may do something that is derivative of both the poster and
TSR's work, and this derivativeness will be harder to determine and
prove.  (Someone makes a horror movie about a garbage heap with
tentacles, got the idea from a net posting that did not acknowledge TSR
but has never seen TSR's original material - oops, TSR may have just
lost the right to make a movie about a neo-otyugh.)

>Either the legal department has failed to brief him, or they've lied to
>him.  Either of these possibilities suggests contempt, because they
>don't appear to care what information reaches the newsgroup.

Far more likely:

1) They don't have the time to educate to the extent that he can talk
like a legal beagle on the subject without supervision, nor to appear on
the net and discuss it themselves;

2) The detailed legal arguments that you want to see are relevant to
ongoing or potential legal cases.  If you are trying to stop a practice
you consider threatening, telling people the extent of your legal case
may only serve to allow people to work around the edges of the law.

3) They may consider the net, whether correctly or not, to represent
an insignificant fraction of their current market, and hence not worthy
of major time commitments - indeed this is likely, since they are trying
to have one person - Rob Repp, handle relationships with all of the
networks at once, both at the business level and at the personal email
level.  A lot of smaller companies who know that the net is important to
their business have much larger presences on newsgroups that are
relevant to their business.

3) is self-correcting BUT TSR may not have felt able to wait until they
had established such a presence before starting to police the rampant
trademark (and copyright) violations that regularly have appeared here.

>As to your question, yes, TSR should (and more or less already are) be
>paying several salaries to this effect.  If they wish to become part of
>the Internet gaming community, then they should be prepared to treat it
>like any other market.  If they simply sat down and in one fell swoop
>answered all our questions (and, in total, there are only about five),
>then they could just about clear this thing up.

No they wouldn't.  They might satisfy YOU, but the bottom line is that
the freedom of the net is not likely to be in TSR's interest as much as
it can potentially hurt TSR.  The vast portion of the people who have
been involved in this discussion will not accept ANY answer from TSR as
justifying its policies.

Furthermore, this issue is not one that will go away.  It is going to
come up again and again, and the same arguments will be made and need to
be refuted.  Net.memory tends to be very short, and the community is
doubling in size every year or two in any event.

[e-mail] (Guy Robinson) writes:
>Do we really want to set a precedent where a company instructs you
>to write in the products it sells and later forbids you to share these
>very same creative efforts?

There is precedent - my own case.  There is NO doubt that the inventor
of Loglan had to prevent the community from sharing freely in order to
keep his trademark.  I will close with quotes from the legal decisions
in my case:

in re Cancellation No. 18,026 US Patent and Trademark Office, Summary
Judgement February, 1991.  Arguably the key sentence in the decision:

   "There is apparently a community of persons interested in the
   development of the language who have conducted very active
   communications with one another and without exception they use the term
   Loglan to refer to the language, not as a trademark for the grammars and
   dictionaries which contain the words which make up, and information
   pertaining to, the construction of the language." (p6)

Replace "language" by "game", and "grammars and dictionaries" by "rule
books" and make corresponding other changes, and you will hopefully see
the parallel with the net situation.

Also

   "... the evidence indicates that it was not until 1985 that
   respondent first expressed the view that LOGLAN was its trademark.
   Prior to that time the term was used by Dr. Brown, respondent and
   others simply as the designation for the developing language, although
   it is reasonable to conclude that Dr. Brown and the Institute may have
   mistakenly believed that such use by others was in recognition of their
   purported proprietary rights." (p7)

From US Court of Appeals for the Federal Circuit 91-1254, Decision dated
28 April 1992.

   "The Institute concedes that the relevant public is 'the small group of
   persons who have written about the language ... as well as those to whom
   the Loglan language has been or is being marketed' (p5)"

   "The fact that the consuming public would write to someone other than
   the Institute regarding the Loglan language indicates that third parties
   understand Loglan to be a generic term; this understanding did not arise
   solely from actions of the Language Group. (p7)"

Note that for trademark purposes "generic" means roughly 'not associated
with a single source - the trademark owner.

The net has probably not reached this level of dilution of the identity
of TSR with its trademarks, but there is clearly risk to TSR if you can
find the kind of stuff normally only available in TSR products on
the net.  This risk is probably heightened by the mass perception that
anything on the net is to some extent public domain.

Note that by my reasoning the net is potentially a major threat to ANY
company's trademarks if they knowingly allow unrestricted discussion of
their products on the net including postings that could be seen as
alternatives for the type of goods in their product line.

lojbab                                                [e-mail]
Bob LeChevalier, President, The Logical Language Group, Inc.
2904 Beau Lane, Fairfax VA 22031-1303 USA                        703-385-0273
 For the artificial language Loglan/Lojban, see ftp.cs.yale.edu  /pub/lojban
    or see Lojban WWW Server: href="http://xiron.pc.helsinki.fi/lojban/"