ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/frp/tsr/debate/fish1.txt

Text File | 1995-02-20 | 6KB | 139 lines

From: [e-mail] (Jeff Kesselman)
Subject: TSR: Some REAL legal info (and a book report)
Date: Sat, 17 Dec 1994 01:40:18 GMT

This is a combination mini book review along with some notes on things I've
learned so far:

The Copyright Handbook, 2nd Ed.
By Attorney Stephen Fishman
Published by Nolo Press, Berkeley CA
ISBN 0-87337-241-7

This is a AWESOME book. Steve Fishman has a remarkable knack for writing legal
information in a simple, straight-forward, highly-informative style. I STRONGLY
recommend anyone interested in their intellectual property rights in general,
or the TSR issue in specific, read this book!

Unfortunately, there is SO much that pertains in this book that I couldn't
possibly quote it all without infringing STEVE'S rights, but let me give you
some highlights of things I've learned:


I) The Purpose of Copyright

The Copyright laws were provided for in the constitution for very specific
reasons.  Contrary to popular belief this has nothing to do with a God given
right to make a profit.  Understanding where the impetus for the laws comes
from helps in understanding the laws themselves.  The following quotes are
enlightening:

     (Section 2, page 2, on why a copyright law was created)
     "The Founding Fathers recognized that everyone would benefit
      if creative people were encouraged to create new intellectual
      and artistic works.  When the United States Constitution was
      written in 1787, the framers took care to include a copyright
      clause (article I, section 8) stating that "The Congress shall
      have Power... To promote the Progress of Science and useful Arts,
      by securing for limited times to the Authors... the exclusive
      Right to their... writings."

     (Note, the ellipses above are part of Steve's writings, NOT
      inserted by me.)

     (Section 2, page 4, pertaining to fair use)
     "To foster the advancement of the arts and sciences, there
      must be a free flow of information and ideas.  If no one could
      quote from a protected work without the author's permission
      (which could be withheld or given only upon payment of a fee),
      the free flow of ideas would be stopped dead.  To avoid this
      a fair use exception to the author's copyright rights was created..."

The point to get out of this is that the laws were designed to ENCOURAGE the
development and publication of new works. Where they interfere with that, it's
worth asking if the laws are being properly interpreted.


II) Copyright and New Terminology

Not only are individual bits of terminology well below the accepted threshold
of significance for infringement, but new terminology IMMEDIATELY becomes part
of the English language, and thus public domain:

     (Section 6, p. 8, "What Copyright doesn't protect")
     "Individual words are always in the public domain, even if they
      are invented by a particular person. Names (whether of individuals,
      products, or business organizations or groups), titles,
      slogans, or other short phrases (for example. "I'd walk a mile
      for a Camel" and "No Smoking") are not protected by copyright
      law even if they are highly creative, novel, or distinctive..."

He goes on to say that these things MAY be trademarked, but that's a whole
different ball of wax.

That seems to definitively KILL the argument that "Hit Points" and such are
covered by TSR's copyrights.


III) Blank Forms

He says that blank forms as such are NOT protected by copyright. HOWEVER, forms
that embody copyrightable information (which means text, remember ideas are NOT
copyrightable) are.

He gives a long list of examples, and I'll just refer you all to his book for
the details (Section 6, p. 9, "What copyright does not protect").

The germane issue to us seems to be that a raw character sheet with places to
record values is not covered under copyright. HOWEVER one of those sheets that
contain rules information, like you see in the back of the Complete
<whatever>'s Handbook series probably are to the extent that you cannot
reproduce those snippets of rules text.


IV) Derivative Work

Steve devotes an entire sub-heading under his Adaptions and Compilations
chapter to this issue.  To get a REALLY clear understanding of what it
REALLY means to be a derivative work, I recommend everyone read this.  Some
key passages are reproduced below, though, to get you thinking:

     [In the quote below, all-caps has been substituted in places
      where Steve uses italics. -- jk]

     (Section 7, p. 2, "Derivative Works")
     "Of course, all works are derivative to some extent. As Kipling
      declared, all authors "take" from each other.  Authorship is more
      often then not a process of translation and recombination of
      previously existing ideas, facts and other elements.

      <snip>

      However, a work is derivative for copyright purposes only if its
      author has taken a SUBSTANTIAL amount of a previously existing
      work's EXPRESSION.  As discussed in detail in Chapter 6, WHAT
      COPYRIGHT PROTECTS, copyright only protects an author's
      expression: the words she uses and the selection and arrangement
      of her material, if original.  Thus a new book on the impact of
      a medium on society would be derivative of THE MEDIUM IS THE
      MESSAGE only if its author copied or paraphrased substantial
      portions of the words McLuhan used to express his ideas."

He goes on to give many examples of derivative works, all of which are CLEARLY
MUCH more directly derived from the original expression then, for example, a
module is from the DMG (UNLESS that module copied magic item text straight out
of the DMG.  THAT would constitute an infringement, most likely.)

SUMMATION:

IMO it is IMPOSSIBLE to read this book without SERIOUSLY questioning most of
TSR's claims against our own works.  I STRONGLY recommend that ANYONE who wants
to debate these claims first get and read this book.

[DISCLAIMER: I am not a lawyer, and none of my comments should be construed as
legal advice.]

[NOTE: Mr. Fishman, however, IS a lawyer, and I'm sure he'd recommend you read
his entire book before taking any actions on the info I've excerpted here.]