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

Text File | 1995-02-13 | 17KB | 338 lines

First Inklings of Legal Research:
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As the debate concerning TSR's policy grew more heated, it soon became apparent
(as evidenced by the widely divergent perspectives) that very few netters had
any legal expertise whatsoever. What the Internet naturally does in such
debates is say "put up or shut up." In other words, find some facts, research
some legal arguments. But don't post unless you have something intelligent to
add to the discussion.


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What is eligible for copyright protection?
------------------------------------------

From: [e-mail] (Jeff Kesselman)
Date: Thu, 20 Oct 1994 03:36:05 GMT

The following is from The MultiMedia Producer's Legal Survival Guide
by Ian MacIntosh.  It was produced in association with the law firm of
Pillsbury, Madison and Sutro:

Page 10, paragraph 3 (Irrelevant parts of the paragraph have been
replaced with ellipses. No cogent info has been removed.)

"Several categories of material are generally not eligible for statutory
copyright protection.  These include, among others:

     Works that have not been fixed in tangible form of expression.
     For example: choreographic works that have not been notated or
     recorded, or improvisational speeches or performances that have
     not been written or recorded.

     Titles, names, short phrases and slogans; familiar symbols
     ...;mere listings of ingredients or contents.

     Ideas, procedures, methods, systems, processes, concepts,
     principles, discoveries or devices, as distinguished from a
     description, explanation, or illustration."

There are many places the Copyright laws go out of their way to
distinguish between implementations, which are covered, and ideas which
are not.


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Can character sheets be copyrighted?
------------------------------------

From: [e-mail] (S. Keith Graham)
Date: 20 Oct 1994 22:12:23 -0400

One of the things that the copyright book mentioned is that you cannot
even register a copyright on a "form".  They simply aren't copyrightable,
no matter what.  (Directions for filling out the form, or artwork (but
not "blanks" or "fonts" or "separators") may be copyrightable.)  However,
I don't think TSR has a half leg to stand on when claiming that you
can't distribute a blank character sheet. But hey, I don't get paid enough to
be a lawyer, so consult one if you plan on fighting TSR.


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Isn't there such a thing as fair-use?
-------------------------------------

From: [e-mail] (Thomas Farrell)
Date: 6 Sep 1994 21:42:42 -0400
Organization: Division of Academic Computing,
              Northeastern University, Boston, MA. USA

See Nintendo v. Atari, in which it was ruled that if, to produce
software (derivative work requiring usage of knowledge of the
construction of the processing system on which it is to be run), a
developer must infringe on the copyright of the manufacturer of the
system by (in the specific case) acid-stripping the chip and duplicating
copyrighted codes which must be passed back to the console to cause
proper function, this constitutes fair use. Basically, Nintendo had
claimed that nobody could make software for their consoles without their
permission because they owned the copyright to the software of the
processor and they had constructed it such that you had to duplicate
parts of that software to make it work, and the court ruled that that
constituted restraint of free trade.


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Have any other computer companies tried doing what TSR is doing?
----------------------------------------------------------------

From: [e-mail] (Marcus Portmann)
Date: Fri, 21 Oct 1994 08:31:11 GMT
Organization: Virtual Logix

I am not sure how many people are aware of this but the computer company
Borland tried to pull the same stunt a while ago concerning their latest
programming language Borland c++ v4.0. Borland attempted to monopolize the
market by putting a number of incredibly stupid clauses into their license
agreement. They came under fire from all sides for this and in the end had
to back down with in affect a formal apology. Perhaps TSR could learn a
lesson from this.


-------------------------------------------------
Exactly what rights does a copyright holder have?
-------------------------------------------------

From: [e-mail]
(Joel Hahn, a.k.a Aardy R. DeVarque, Kate the Short's SO)
Organization: Valparaiso University

From "Copyright Law of the United States of America (rev. Mar 1 1991)"
[the following exclusive rights are given to holders of copyrights]
"1. to reproduce the copyrighted work in copies or phonorecords.
 2. to prepare derivative works based on the copyrighted material.
 3. to distribute copies of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.
 4. in the case of literary, musical, dramatic, and choreographed work,
pantomimes, and motion pictures and other audiovisual works, to perform the
copyrighted work publicly.
 5. in the case of literary, musical, dramatic, and choreographed works,
pantomimes, and pictoral graphical, or sculptural works, including the
individual images of a motion picture or of the audiovisual work, to display
the copyrighted work publicly."

[It goes on to say that, due to the Berne Agreement, these rights are valid
internationally as well, in countries which are part of the Berne Agreement.]

All internet related activities (Usenet, and ftp, to name two) are included
under #3, by recent court decisions. Anything we create about/for AD&D(tm)
comes under #2.  Since TSR has the copyright, it has the copyright to any
derivative work you create, unless your work is different enough so as to
relate to rpg's generically.  The disclaimer TSR is asking us to put on the
stuff we create is perfectly legal and correct.  It is their 'blank check'
allowing us to create and distribute electronically our derivative works
without actually going to them for express permission each time; so long as we
follow their rules.

To put all this in simple terms: if you create a derivative work of AD&D(tm),
you do not have the copyright to it. TSR does. Unless it is generic enough to
apply to many game systems.  This includes paper & electronic distribution.


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But are fan-authored works really "derivative" in the legal sense?
Can they really stop us from using terms basic to the game like "hitpoints"?
Does it really make it okay to just change HP to HTK as TSR suggests?
----------------------------------------------------------------------------

From: [e-mail] (Jeff Kesselman)
Date: Fri, 21 Oct 1994 04:15:22 GMT

This is from "Nimmer On Copyright", and the last update to it is 1987,
which is pre-Berne. This book doesn't appear to cover software copyright
at all. So it's a little out of date, however, section 2.12, page 2-171:

Subject Matter of Copyright:  Characters.

"Is more properly framed as relating to the degree of substantial
similarity required to constitute infringement rather than in terms
of copyrightability per se."

"Although there is some conflict... characters per se are entitled to
copyright protection."

This is apparently the grounds on which that actor who portrayed the Lone
Ranger couldn't appear in public as "The Lone Ranger".

Use of name isn't sufficient grounds for violation of copyright, however,
it significantly contributes to "substantial similarity."

If their works fall under "character" copyright, then referring to
several AD&D game mechanics does extremely strongly improve their
position that you are referring to a "similar (or same) character"
as in their books.  (i.e. Tensor, or Nystul, or others who wrote
spells.)  You definitely can't use a published character from their
worlds, although I'm not sure about something named for that character
(like a magic item, place, or spell.)

From reading the section on derivative works, they are full of it.
Derivative works refer purely to adaptations and translations.
Things like movie scripts from novels, etc.

TSR has stretched the concept of 'derivative copyright' to the point of
absurdity, claiming that even the use of such words as ARMOR CLASS or
HIT POINTS violate their copyright.  Not only are these not significant
enough to be considered breaches, but their entire argument is a fallacy,
based as it is around the idea that the rule books and campaign guides
are novels. They are not. They are 'works of utility' as recognized by
the courts as early as 1878.  I have reprinted a quote from some legal
research someone else did for your edification below:

Baker v. Selden, (this is the accounting form someone mentioned
earlier.)  [may be stated as follows:]  where the use of the "art",
i.e. the idea, which a copyrighted work explains (or embodies)
necessarily requires a copying of the work itself, then such copying
will not constitute an infringement of copyright.  However, if such
copying occurs not in using the art, but rather in explaining it, then
such copying will constitute an infringement.

However, this may have been refuted with Berne.

Blank forms are not copyrightable.  As such, I don't believe that
TSR can prohibit distribution of blank character sheets, no matter
what they would like.

Hmm, another good defense;  TSR has claimed that distribution of
generic modules that "say the same thing" is legal, but that ones
that use their game mechanics aren't.  Use "Hits To Kill", not "HP".

In Crume v. Pacific Mut. Ins. Co, one court said:

"To hold that an idea, plan, method or art described in a
copyright is open to the public, but that it can be used only by
the employment of different words and phrases which mean the same
thing, borders on the preposterous.  It is to exalt that accomplishment
of a result by indirect means which could not be done directly."

Seems to me that, while TSR can claim certain character protections for
their novels, they could lose out on the campaign materials due to their
being 'works of utility'.  An interesting question is whether the usage
of their own novel characters in their rule-books puts them into this
lesser area of protection....  ANOTHER interesting question is if they
advertise their novels as role-play supplements ("The Avatar Trilogy: A
real aide to your campaign" or whatever). If they do, then they may be
selling THOSE as 'works of utility' as well....


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So a fan-authored module is not derivative because it is uses ideas
expressed in game-mechanics rather than ideas expressed in fiction?
-------------------------------------------------------------------

From: [e-mail] (Garbett, Shawn)
Newsgroups: rec.games.frp.dnd
Subject: Re: Copyright law revealed
Date: 27 Sep 1994 07:58 EDT
Organization: University of Tennessee

I think the big question all along has been "What constitutes a derivative
work?" This is always the question. One lawyer told me that it states
somewhere that your work must deviate by 10% to not be considered derivative.
He said that in practice however people have won suits with much greater
deviation and it was a very very gray area. It basically always came
down to the whim of the court.

Does writing an adventure and just including stats at the end that
could be used with a game, constitute a derivative work? Do you have
the legal funds or disposable income to find out? TSR has drawn a line
in the sand that would cost a small fortune to find out if it's real.
The fact that it would cost someone to find out how real it is, makes
the line quite real to most everyone. They could arbitrarily draw
these lines anywhere and it would be just too d*mn expensive to cross
them for most of us. That's modern law, that's ancient law, money talks.

Thing is SJ games, Whitewolf games and WotC have left us quite a bit
of their beach to walk on while TSR is putting up "No Trespassing" signs.


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But are game systems copyrightable under current U.S. law?
----------------------------------------------------------

From: [e-mail] (Karl Stiefvater)
Date: 3 Dec 1994 22:16:28 GMT
Organization: Washington University, St. Louis, MO

Copyright law is designed to protect specific works of authorship cast
in a fixed form.  Books.  Artwork.  Designs.  It does _not_ apply to
generalized systems or operations.

For instance, the PHB is copyrightable, but the process of conducting
combat is not.  If you were to completely rewrite the PHB, describing
the same game system, you would _not_ be infringing on TSR's copyright.

A good example of this distinction is the "Anti-Monopoly" game.  It
plays exactly the same way as "Monopoly"... but with a different board
layout, different graphics on the cards, different wording of the rules,
etc.

For further clarification, let me quote the copyright statute:

  "In no case does copyright protection for an original work of authorship
   extend to any idea, procedure, process, system, method of operation,
   concept, principle, or discovery, regardless of the form in which it
   is described, explained, illustrated, or embodied in such a work."

And now, a quote from "Patents, Copyrights, and Trademarks" by Foster and
Shook:

  "Interestingly, the courts have ruled that certain parts of a game
   cannot be copyrighted, including it's rules, concept, and name.  However,
   such things as board graphics, cards, and text explaining the rules
   are copyrightable."

It seems that people are confusing the protection of copyrights and
patents.  If TSR had a patent on their game system then we might be in
hot water.  But they do not... and they are well aware that it is too
late to file for one now.


-----------------------------------------
What about the Law in the United Kingdom?
-----------------------------------------

From: [e-mail] (Chris Bourne)
Date: Fri, 28 Oct 1994 19:17:51 +0000

  UK copyright law will not allow you to produce a version of Krynn with
  the spellings of names slightly changed - this is called 'passing off' and
  would be sat on.

  My experience of UK copyright is based on working as a journalist, not a
  novelist or game designer, but I am sure that TSR would find it impossible
  to claim 'Armour Class' 'Hit Points' and similar short phrases, even if they
  retrospectively tried to trademark them.

  The situation in the US is probably different in one important respect to
  that in Europe, which is nothing to do with laws but everything to do with
  social mores. Basically, we call lawyers 'lawyers', but we don't use them
  with anything like the frequency you guys seem to. A game company suing
  its own customers for infringing copyright by suggesting new ways of playing
  it to other customers is going to look very stupid in the press - they'd
  probably make it to the national press if they tried hard enough <g>

  Awards are liable to be much smaller, and if TSR wanted to sue a private
  individual such as myself for creating a fantasy world as a setting for
  their game and giving out information about it, the negative publicity would
  far outweigh any small benefit they might obtain. It might be a different
  matter if I were publishing material for profit.

  Incidentally, if TSR really want to look like idiots in the UK, they might
  care to have a go at Terry Pratchett, best-selling author of the Discworld
  series. Terry's on record (I should know, I did the interview) as saying
  that Discworld started as an AD&D campaign he played with his friends, and
  then decided to work into a series of novels. There are plenty
  of elements in the novels deriving from his campaign, which in turn TSR
  would claim as a derivative work.