ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/frp/tsr/debate/nolo1.txt

Text File | 1995-03-02 | 12KB | 235 lines

From: [e-mail] (Jeff Kesselman)
Subject: A positive response from NOLO

For anyone who doesn't know them, NOLO Press is a California organization of
lawyers, writers and editors who are dedicated to the idea that the common
American should not be alienated from his or her own legal system.  (I THINK
NOLO stands for something like NO Lawyers Only, but don't quote me on that.)

For those of you not familiar with NOLO, this is a quote from their own
literature:

     "NOLO Press exists because two former Legal Aid lawyers, fed up
      the public's lack of affordable legal information and advice,
      began writing understandable, easy-to-use, self-help law books
      more then 20 years ago."

These days they do books, software, run a web-site, and have an answer-service
on the net, [e-mail].

When this whole thing first broke, I wrote Auntie Nolo a letter asking her if
what TSR was pulling was legal.  As they get a lot of mail, it took some time,
but who should I have a mail message from in my mailbox tonight, but Steve
Fishman, the lawyer who WROTE the NOLO book I'm currently reading!

Anyway, Steve asked for some more details so he could advise us.  I've
reproduced my response for your enjoyment:

From: jeffpk (Jeff Kesselman)
Subject: Re: Copyright or Copywrong?
To: [e-mail]
Date: Thu, 15 Dec 1994 22:46:11 -0800 (PST)

Dear Steve:

Well, to begin with I am a little over-awed, though VERY happy, that you've
taken the time to try to answer our questions.  I'm reading your book right
now, actually (I'm up to chapter 6 so far).

I'm going to try to answer your questions in enough detail so that you can help
us.  That may make this response a touch long, but I figure it's probably
preferable for me to give you all the information up front then to waste your
time with multiple trades of letters.

> I'm afraid I've never played a role-playing game and have no idea how they
> work. For this reason it is not exactly clear to me what you and other
> players create yourself and what you are copying from TSR.
>
> Can you provide me with some additional information? Specifically, are the
> characters, monsters, scenarios, etc. created solely by you or do they
> contain elements provided by TSR? Do your rule-books contain TSR-supplied
> materials? Also, can you explain how these games are played?

I'm going to reverse the order of your questions, as I think understanding how
the game is played will help you to understand how the various rule books and
references are organized.

In terms of how the game is played, let me start with an actual quote of a TSR
statement from a previous legal action in which TSR was involved.

(From TSR v. Mayfair, 17-Mar-93):
 Such a role-playing game is a system of interactive story telling using maps,
 dice and an extensive set of rules (P-D P 7).  "One participant acts as a
 referee narrating the adventure, describing problems and controlling the
 actions of supporting characters and events.  The remaining players play out
 their roles in accordance with the rules."

Okay.  That's a pretty good description.  The rule books can be broken down
into two major categories. Rules and reference materials. The primary rule
books are called "Dungeon Master's Guide", and "Player's Handbook" (Dungeon
Master is another name for the referee TSR referred to above.)

The two rule books explain how to design the characters the player's play and
determine their abilities, as well as how to design the challenges they face,
such as monsters.  These books also explain rules for resolving the
interactions of the players and monsters by the players and referee both
rolling dice.  What is laid out in these books is a rule-system, some invented
terminology, and a few blank forms that use this terminology.

No fully designed monsters or characters appear in these books.  That is left
as either a creative exercise for the judge and player, or something that can
be taken from other reference materials published by TSR.

TSR publishes a number of reference works.  The reference works fall into three
basic categories.  The first are pre-created 'pieces' to make an adventure out
of.  The "Monster Manual", for instance, contains a great many monsters already
worked out using their rules.

The second kind of reference works are 'settings'.  They contain descriptions
of places in a mythical world, along with descriptions of the people and
creatures that inhabit these settings which are again described in terms of the
rules laid out in the rule-books.

I don't know if it's significant to the discussion, but just for completeness,
I ought to mention that TSR also publishes lines of novels associated with
these settings, and that much of the information in terms of places and
characters is shared between these 2 kinds of publications.

As an example, the character "Elminster" is a very important character in their
novels, and is then described in terms of their rules in one of their settings
accessory publications.  The idea is that you can first read about the world,
and then make up your own stories in the same world by using their rules and
settings accessories.

The third kind of reference work is called a "module" or "adventure".  In order
to play the game, the referee first plans out an approximate outline of the
major events in the story and the background behind them.  The players then
react to the various events the referee provides them and together, using the
rules, they create a story.  A "module" is such an outline already written up
for the referee. It includes background information as well as the description
of the various settings and events that the players' characters will encounter.
It may contain some new monsters, settings and such, or it may refer back to
standard reference works like the aforementioned "Monster Manual".

In understanding the game, it's worth mentioning that all the reference works,
though now fairly commonly used, were developed AFTER the original version of
the rules was written and published.  In the beginning (if you pardon my
biblical prose) all monsters, settings and modules were developed by the
individual referee (with the exception of a VERY small monster list that WAS
provided in the actual rule-books.)

Many referees still DO create their own monsters, characters, settings and
modules, and this is where the conflict with TSR lies.  Most of us believe
that, as these works are highly creative, and as all we are using of TSR's are
their rules, terminology, and perhaps a published blank form, that we are
creating new works.  It has been common practice among referees to freely share
these creations, and we have had internet FTP sites (a way of making text
available to the entire internet) for that purpose for a long time.  TSR, on
the other hand, has stated that ANY creations using their rules and terminology
are 'derivative works' of their rule-books.

There are a number of potential situations here that I think run from the most
clear to the most iffy legally (not being a lawyer, of course, this is just my
guess from the readings I've done).  For the purpose of discussion, I'd like to
lay them out below:

I) A judge writes up a monster, character or adventure based only on the
   rule books.  No reference materials are used.  It is expressed in
   the TSR terminology and developed using the TSR rules.

II) A referee writes up a module, monster, or character and in its
    background REFERS to some TSR created settings, monsters or
    characters. These are referred to by name and/or a reference to
    a TSR book and page-number.

III) A referee writes up a module in which a TSR monster, setting
     or character plays a major role.  For the rules-details the
     referee's module still refers back to the appropriate TSR
     publication.

IV) A referee writes up a module that takes place in a TSR published
    setting.  The referee copies small sections (say a paragraph or
    two at a time) of TSR's reference materials into his own work.

All of this assumes no approval from TSR.  My gut says that I-III should be
legal, but IV probably is not.  Am I right?

A SEPARATE issue is that TSR is trying to claim that many of their invented
terms are covered by Trademark (I have the Nolo trademark book on order at my
local bookstore).  From what I understand (which I admit is limited) they can
only claim something as a trademark if it is used to identify them, their
product, or one of their product lines.  Is this right?  Most of the terms they
are claiming as trademarks are just terminology used within their manuals.

Additionally, they are claiming that we can't use their trademarks at all
without their approval. Isn't it true that the only time you actually infringe
a trademark is if you either fail to mark it as such or if you use it in such a
way that a customer might confuse you with the holder, or your work with their
product line?

I'm sorry that this is so long, but I am hoping that I have given you enough
info to quickly and easily answer our questions.

Thank you again VERY MUCH for looking at this issue for us.  TSR has
effectively shut down all trade of our own materials (unless we do it through
THEIR licensed site and agree to affix a waiver that says that we recognize our
work to be derivative of theirs).  As the son of professional freelance
authors, I personally think this legal-thuggery borders on being ethically, if
not legally, criminal.

Sincerely
Jeff Kesselman

-------------------------------------------------------------------------------

Date: Sun, 22 Jan 1995 15:57:24 -0800
To: [e-mail]
From: [e-mail] (Stephen Fishman)
Subject: Copyright or Copywrong

Dear Jeff:

I'm sorry it has taken me so long to get back to you. In any event, here is a
statement from the Copyright Office about copyright protection for games:

"The idea for a game is not protected by copyright. The same is true of the
name or title given to the game and of the method or methods for playing it."

"Copyright protects only the particular manner of an author's expression in
literary, artistic, or musical form. Copyright protection does not extend to
any idea, system, method, device, or trademark material involved in the
development, merchandising, or playing of a game. Once a game has been made
public, nothing in the copyright law prevents others from developing another
game based on similar principles."

"Some material prepared in connection with a game may be subject to copyright
if it contains a sufficient amount of literary or pictorial expression. For
example, the text matter describing the rules of the game, or the pictorial
matter appearing on the gameboard or container, may be registrable."

So, it's pretty clear that the idea for a game is not protected, nor are
methods of play--the game rules themselves. A written rulebook is protected,
however.

I think the analysis you sent me at AOL is probably correct. TSR doesn't "own"
their game rules, they are ideas anybody is free to use (copying a rulebook is
a different matter). So I think you are perfectly free to use the rules to
create your own games, monsters, characters, scenarios, etc. These can't
possibly be considered derivative works unless they are based upon, recast from
or employ substantial material from TSR-created monsters, characters,
scenarios, etc.

You are also free to use TSR scenarios, characters, etc. when you play at home.
But posting a TSR scenario online might be a copyright infringement.

I'm not sure what to make of TSR's argument that their game terminology is
protected by trademark law. I'm not a trademark law expert.

You asked whether there is any way to prevent TSR from suing you. The answer is
no. Anybody is free to sue anybody for anything. Even if they have a bad case,
TSR could still sue you. In this event, you'd need to hire a lawyer to defend
the case, which would be very expensive. Even if you win the case, the attorney
fees could be ruinous (although the judge might order TSR to reimburse you for
all or part of your fees).