And now for something stupid. As of today, it’s been 1701 days since I published Part I of my posts on the copyrightability of stat blocks.
1701 days. Get it? No? Here’s some help.
I wrote this post on February 15, 2023, over one year ago. Here’s some proof.
I told you it was stupid.
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If you think being a lawyer is easy, which at this point you’re a dope if you do, I can assure you that it isn’t. Yesterday was an example of why it isn’t, and in a way that wasn’t obvious.
Here’s something to which many non-lawyers can relate. Is there any time period or specific event in your life that you never want to revisit? Yes? Okay, then imagine if someone started asking you about it, and really dug into the weeds, demanding details. Now imagine that you couldn’t respond to those questions with, “Fuck off. Mind you’re only business.” Instead, you had to answer those questions honestly and thoroughly, and if the questioner forgot to ask about a relevant topic, or if their phrasing allowed you to dodge it without lying, you’d have to volunteer the hidden information.
Yesterday, I had my character fitness interview. I’m joining the bar of an additional state, and that’s part of the application process. So, not only did I complete 185-page application (with attachments) detailing my entire life, but then I had to sit face-to-face with a complete stranger and discuss the ugly, deeply personal parts.
An Example
When I first got the call to schedule the appointment, I asked if I needed to bring anything, and my interviewer responded, “No, I have your bar application here, so I have your entire life in front of me.”
He wasn’t kidding, because bar applications are more detailed than any security clearance application I’ve ever completed. My response to that was a joke: “Well, you don’t have my medical records. Should I bring those?”
I admit, this isn’t a joke Bill Burr would tell, but it elicited a chuckle and an “of course not,” and that was that. However, my medical history came up in the interview. It was tangentially related to a topic we were discussing, and I must be honest and thorough in my responses. What should have remained a joke didn’t, and there’s nothing either of us could do about it. If it’s relevant, then he has an ethical responsibility to ask (even though he clearly didn’t want to), and I have an ethical responsibility to respond.
Believe it or not, that’s not the worst of it. That’s just the one example (from the single example of bar applications) that I’m willing to give you. The medical issue in question was a hernia, and I have no problem admitting to that publicly. But what if your medical issues were far more private? You wouldn’t be pleased discussing them with a stranger, would you? As I said, this is a brutal reality of practicing law. We’re under a constant microscope not only today, but yesterday, last year, and 1990. Everything is open to inspection. As the rise of the internet has shown us, no one is 100% clean. We’ve all got regrets, but those of attorneys are always on display even if capable of being hidden, and sometimes you can’t hide from the ensuing discussion despite the number of wounds it reopens.
On the bright side, I’m all but certain I’m going to be approved for membership. Mission accomplished.
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Today is the 10th anniversary of a terrible crime of theft and my first and only entry in Urban Dictionary: Shitpossum. This requires some explanation.
I was at Erik’s house for the weekly, Friday-night game, and (for whatever reason) he was lamenting about how he was unable to add an entry to Urban Dictionary for a word he coined, shitpossum. I was curious as to why he was having a problem, so I visited the site and, well, one thing led to another, and I entered it in myself.
In fairness, I did come up with my own synonym, chickenshitter, but at some point that synonym disappeared from the entry. What’s up with that, Urban Dictionary? I have the usage quote for that one. “Hey, who’s in that stall? Why don’t you answer? Are you some sort of chickenshitter?”
Words are fun, and I’m a child.
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This is the second of my two planned videos about Paizo’s ORC license. This one summarizes the issues I raised in the last video, follows up on one of those issues, then discusses an entirely different topic. I take a side trek towards shrink wrap licenses, but as long as this video is (41:00), I tried to keep it as brief as possible, so I didn’t mention the mild circuit split on shrink wrap licenses. Basically, sometimes the courts uphold them, and sometimes their skepticism has them strike them down. In other words, the concerns I expressed aren’t merely speculation, but rather based on actual disagreement between different courts. But hey; just watch the video. I wasn’t nearly as fired up in this one.
EDIT: After you watch the video, come back here for point of clarification. I say that shrink wrap licenses are being used in a weird way with respect to RPGs. Here’s another way to phrase it. With software, the licensor places a unilateral contract on their product and says, “This product is paired with this license. Use the product, and you accept the license.” With RPGs, the licensor (e.g., Paizo) isn’t putting their license on their own product, but even if they do, it’s not capable of being accepted at that point anyway, so it means nothing so far. Instead, the licensee (e.g., you) are putting Paizo’s unilateral contract on your own product, and in doing so effective saying, “Yeah, I accept this.” But you never actually say that to the licensor. Moreover, if Paizo accidentally figures out that you used the license on the product, they’re never going to contact you. Everyone is in a contractual relationship with everyone else, but most of us don’t actually know it. That’s weird.
Remember, shrink wrap licenses are unproven where it counts, and there are legitimate reasons not to trust them, not the least of which is that they’re unilateral. Now you’re using them in a way unique to an industry that’s rarely subject to litigation of this sort. That’s even more suspect.
References:
Idea v Expression in Tabletop Role-playing Games
The Merger Doctrine
My One-Stop Stat Block Posts
Something Stupid, and Something Odd
Tread lightly.
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This is the first of my two videos about Paizo’s ORC license. This one rehashes (far more than it should have) the idea v. expression dichotomy, and then discusses problems with consideration within the license. I did it off the top of my head, which is never a good idea (over 40 minutes of ums and ahs), so watch it at at least 1.25 speed and expect to take breaks.
My second video on acceptance was just recorded, so that will go up tomorrow. It summarizes the issues I raise in this video, follows up on one of those issues, then discusses an entirely different topic. If you have any other questions on either what I’ve discussed in these two videos or what I haven’t, please let me know. I know there are other issues people are contemplating.
References:
Idea v Expression in Tabletop Role-playing Games
The Merger Doctrine
My One-Stop Stat Block Posts
Something Stupid, and Something Odd
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I’ll be recording a video about Paizo’s ORC license soon. This serves as a prologue to that video. Here, I discuss the distinction between ideas and expressions in copyright law.
I recorded this while procrastinating; I didn’t want to go to the gym. Therefore, I didn’t do any research or write a script, so don’t expect any justification for my statements or structure to my words. I just want to make sure you understand a critical issue about copyright law, in layman’s terms, before dealing with the ORC.
But I’d really like some royalty checks.
References:
The Merger Doctrine
My One-Stop Stat Block Posts
Something Stupid, and Something Odd
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Upper Deck (“UD”) sued a former employee, Ryan Miller (“Miller”) and a competitor, Ravensburger North America, Inc. (“Ravensburger”) over a “stolen game.” If you’ve ever read this blog, you know that game rules can’t be copyrighted. They can be patented, so UD’s claim that their game was “stolen” may prove correct. I’m going to try to answer the questions that people have addressed to me.
Facts
Briefly, UD employs Miller to design a trading card game (“TCG”). Miller sings an employment contract that contains a nondisclosure provision. Miller leaves UD, joins Ravensburger, and designs a similar game there. UD’s game hasn’t been released, but Ravensburger has publicly shared their ruleset for playtesting at conventions and has sold packs of cards for it (or so the complaint alleges).
I’m just going to deal with the intellectual property law issues because the question that everyone seems to be asking (me) is one related to IP: Is this a valid basis complaint in the first place? That’s a question I can answer without knowing both sides of the story. That is, I can’t say who’s right and wrong, but I can opine as to whether or not the philosophical basis of the suit is valid.
Trade Secrets: The Forgotten IP
Part of this case falls under trade secret law, which I address in this post covering all forms of IP. The defendant’s employment contract had a non-disclosure/secrecy provision, and that’s the basis of the suit. Game mechanics can be protected under trade secret law, which basically says, “Don’t tell anyone what we’re doing,” or “Don’t tell anyone how we do what we do.” This is very much unlike copyrights because copyrights often have little to no value unless they’re made publicly available. Trade secrets are valuable because they’re kept secret. One of the most valuable trade secrets in the world is the formula for Coca-Cola. If it were patented, it would be published, and thus have at most 17 years of protection. Instead, they keep it secret, so it has value for as long as it remains so. That’s an important point: Once a trade secret is made public, it can no longer be a trade secret. You can sue someone for publishing it, but you can’t put the genie back in the bottle. Once it’s out there, it’s no longer protectable. Ever.
So, the defendant in this case was (allegedly) bound by contract not to share the mechanics until after they were released by UD. It’s reasonable to infer that Miller must have shared those trade secrets when designing a game that was remarkably similar to what he did with UD. Miller and Ravensburger could argue that the similarities are ones shared by all card games, and so none of them are trade secrets. The complaint details the game mechanics, but I haven’t really read through them, so I can’t evaluate that defense.
Of course, even if those mechanics are identical to other games, this may not get the defendants off the hook. Games have several elements, so the difference between most games is essentially which specific combination of known elements you’ve chosen for your game. That combination may be unique. Even if not patentable, it may be marketable, and thus have value. If, for the reasons stated above, the sharing of that combination hurt UD’s market for the game, there’s still a lawsuit to be had.
You might ask, “How would it hurt the market?” Well, think about it. Games have limited shelf lives. Their first push in the market is often where they make their most money. If someone learns of your game system and publishes a quick-and-dirty version of it first, they’ll grab most, if not all, the market before your more well-designed version even gets there. Maybe you’ll enjoy a secondary push in a few years, but you’ll still have lost that first market. Also, the first game company to get their game to market can always accuse the other company of plagiarism. As for patent infringement, depending on the timing, a game company could actually lose their ability to patent a mechanic because the mechanic was published long before the application was filed. There are time limits on these things, so it’s best to keep your designs secret.
Patents
Of course, as I mentioned above, UD filed for a patent in April, 2023. I have no opinion as to whether that will be granted. Even after I eventually read through the game mechanics, there’s a lot of “prior art” (i.e., existing games) I’d have to analyze to form an opinion, and I’m not going to do that. I don’t play TCGs. Even if I did form an opinion, patent law is a tricky thing. There are very few obviously good or bad patents. My opinion wouldn’t mean squat; we’d have to wait for a judge’s decision, and then an appellate court’s opinion before we get a real answer. Either way, claiming that the game was stolen is at best premature. That’s not to say I don’t understand why UD is saying it. I’m simply acknowledging the basis for your confusion by that claim.
There’s far more to consider here than I could possibly address. I lack information and the desire to dig any deeper at the moment. The takeaway here, though, is that game mechanics can absolutely be protected by trade secret until they’re published. If the trade secrets are deemed valid, their publication by Miller and Ravensburger would constitute a legitimate cause of action for UD. We’ll just have to wait and see whether it sticks.
I’ll continue to go through the complaint and provide more information as I learn it (if it’s interesting). For now, back to work I go.
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In the early 2000s, my paternal grandmother died. Because my father had predeceased her, his share of her property flowed down to his children, leaving me with a 1/12th interest in her home. I was an attorney at the time, but not yet working in real estate, and it simply wasn’t on my radar scope. It never appeared on my radar in part because my crazy uncle just continued to use the home as a storage facility and paid taxes.
Fast forward a bit. My uncle stopped paying taxes at some point, so in 2017, the house was sold in what Pennsylvania calls an “upset sale.” The sales price was ~$8,500 to pay off the tax bill. Of course, I didn’t know any of this was happening because the relevant Tax Claim Bureau didn’t notify any of us of the sale as required by statute. After the upset sale, the purchaser sold to a third party (remember, a house the upset sale purchaser didn’t really own), who then has to get that sale confirmed by the Court. That’s when we all found out about this. We were served papers earlier this month for that second case, but the plaintiff on that second case doesn’t really own the property. The original purchaser at the upset sale didn’t meet the requirements of the statute.
I work primarily in real estate at this point. I know what these plaintiffs are. They prey on unsophisticated and financially insecure families to make a six-figure windfall. I have no sympathy towards them and will happily take the house back if it comes to that.
To give you some perspective, I’ve been told second hand that the house is on the market for $171,000, but it’s worth (depending on who you ask) anywhere between that and $253,000. Let’s assume the plaintiff can provide an appraisal that state’s the house is worth $171,000. This jackass plaintiff stands to gain at least $125,000 from the sale of this home, and I’m sure he’s done that many times prior. My share of that $171,000 is 1/12th, which comes to $14,250***. On the other hand, my cousin’s share is 1/9th, so she’s entitled to $19,000***. She’s on disability and could use the payout, so she contacted me, the only lawyer in the bunch, to see what I could do. She had already mailed her own Answer, but to be blunt, it understandably sucks, and it wouldn’t intimidate the plaintiff into a settlement.
*** Of course, to sell the house, we’d have to first come up with the $8,500 to pay the tax bill, then pay closing costs, etc., so if we did that, we’d get somewhat less than these amounts. However, I think the value of the property is much higher, so let’s ignore that.
I mailed an Answer to the Complaint on Monday, informing the court that proper procedures weren’t followed with respect to notice. However, one of my other affirmative defenses was that, even if Pennsylvania law allowed for such procedures to be ignored for some strange reason, if Pennsylvania law allows discrimination against out-of-state litigants, it violates the Privileges & Immunities Clause of the Federal Constitution, and thus must fail.
Yeah, I cited the fucking United States Constitution on a simple tax sale, and if necessary, it’s going to stick.
I don’t technically represent my cousin because I can’t. I’m not barred in Pennsylvania. However, if I get a settlement for myself, require that I be permitted to share that settlement information with my cousin, and (of course) actually share that information with my cousin, then my cousin will know what to demand ($19,000). In other words, she and I will be getting our payout. I don’t want a dime of inheritance from my family, so I’ll probably donate my settlement amount to charity. Maybe I’ll buy something worth $100 or so just for my trouble. However, I’m getting to stick it to the bad guys and help a cousin. That’s worthwhile.
The United States Constitution, bitches!
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Here’s something kind of funny. As you know, Wizards of the Coast (“WotC”) has continuously laid claim to copyright over monster names (which is impossible; let me repeat: impossible) or has leveraged their legitimate copyrights to restrict their use (which is copyright misuse). However lacking in legal force as either position is, that’s been their position. Now WotC has released the SRD 5.1 using the Creative Commons licensed, CC-BY-4.0. As Mike Myler pointed out to me, in doing so, many of these names are now expressly licensed even from WotC’s warped perspective. They’re telling you that you may once again state that beauty is in the eye of the beholder because they’re now licensing you the right to use “beholder.”
Seriously. Do you not see how stupid this sounds?
All of this can be found on page 254 of the SRD 5.1. Both pages 97 and 254 include use of “mind flayer,” so that’s now eligible for use. Or is it? Christian Lindke pointed me to a United States federal trademark registration for “Mind Flayer.”
So, by WotC’s arguments that continuously blur copyright and trademark, they can’t even use mind flayer in a sentence. It belongs to a Chinese dude(tte).
Seriously. Do you not see how stupid this sounds?
WotC legal is stupid, or they think you are. Probably both.
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Before my quick return to obscurity is complete, I provide my thoughts on the latest announcement from Wizards of the Coast (“WotC”). In short, they’ve decided to allow continued use of the make-believe OGL 1.0 or the Creative Commons license (CC-BY-4.0).
Who Deserves the Credit?
Matt Colville echoed sentiments similar to my own as to why Hasbro “surrendered.”
I don’t want to diminish the effect rabid gamers had on causing WotC’s about face, but I do want to provide what I suspect is the proper perspective. The lifeblood of any company is acquiring new customers. Existing customers get older, which means they have less disposable income, and eventually die. You need new blood, and that should always be your primary focus. WotC continues to do exceptionally well gaining new customers, and all your rants (and mine) will not impact that one bit. I doubt we have middle-school children reading our blogs and watching our vlogs. If we do, someone needs to call the police.
So, if we all abandoned WotC, in the long run, they’d survive, and they know that. That’s at least part of why they continued to resist actual change for so long before their surrender. So, why did they surrender? Because we do have a short-term impact on them, and more to the point, on their partners. The creators of the Dungeons & Dragons (“D&D“) movie(s) and television show were probably overwhelming WotC’s telephone and email systems. Their investments in licensing the brand are short term, and I’m sure those investments were substantial. They demanded this change, and their demands could not be ignored.
Again, I don’t want to diminish your efforts. You made those partners aware of your concerns, and you were going to inflict a lot of damage, but if not for these partnerships, WotC would have stayed the course.
Once Again, a Prediction Sure to Come True
Those relationships won’t last forever, and when they dissolve, we’re sure to be in the same position we are now, but with even less of us complaining due to the attrition I described above. What if WotC creates its own movie and/or television studio? Then they won’t need Paramount+, will they? What then? Will we run to Paizo? As I said in a previous post, Mattel could decide to compete with its chief rival, Hasbro, in the role-playing gaming market. What’s the quickest way to accomplish that? My guess would be they’d buy WotC’s chief rival, Paizo, or perhaps one of the second-tier companies with a proven track record. Whatever open-gaming “license” that acquired company used will be just as vulnerable to revocation, de-authorization, or whatever contract principle you choose to misapply to that non-contract. We may be delaying the inevitable by not actually solving the underlying problem.
So, Is the Problem Solved?
No, but I think it’s close enough. I advise cautious optimism.
You may recall that I demanded that they dedicate their material to the public domain. They didn’t do that, but they’re slapping the CC-BY-4.0 directly onto their SRD 5.1, which is almost what I suggested. Dedication to the public domain is probably no more than a grant of a perpetual, irrevocable, royalty-free license with no restrictions, and that’s almost what CC-BY-4.0 purports to be.
Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
Section 2 – Scope.
1. reproduce and Share the Licensed Material, in whole or in part; and
2. produce, reproduce, and Share Adapted Material.
The potential problem is that the Creative Commons licenses are similar to (though enormously better than) the OGL with respect to acceptance, and they haven’t been tested in US courts. In fact, they’ve barely been tested in international courts. So, we should still be worried?
For now, no. In order for a licensor (that’s WotC in this case) to win a case for infringement, they’d have to argue that license they provided was horseshit. That’s one hell of an argument to have to make.
WotC: “The defendant infringed our copyright.”
Court: “How can you say that? You licensed them the works.”
WotC: “Oh, that license is complete bullshit, your honor.”
Court: “The license you forced them to use?”
WotC: “Yep. Complete bullshit. We suckered them in.”
Warning: Gratuitous use of the word, “asshole,” follows.
This, by the way, is exactly what WotC would have had to do if they were taken to court over the OGL, and they would have succeeded by simply reading my posts to the Court. However, as I said, how CC-BY-4.0 is applied is a little bit better than the OGL. It avoids some of my concerns, and for all we know, it could be upheld by courts for that reason. It could also be upheld because it’s been used successfully in other industries almost since its first publication. Everyone’s been cool about its use. No one’s been an asshole. Therefore, the CC-BY-4.0 gives the gaming community time to adjust and diminish WotC’s stranglehold on the industry.
Of course, their stranglehold will remain unless you’re willing to broaden your horizons and not make matters worse for yourselves.
Not Being Assholes
It’s really easy to allow inertia to take over. We’ve spent so much energy in the past few weeks calling WotC assholes that we could go too far. Many years ago, my cousin, Kessel Junkie, once called me out for a nastygram I wrote to a company that had pissed me off. In it, I informed the company that I was no longer doing business with them. If that were the case, why write the letter? If you want to go, just go. The only proper purpose of the letter should be to get them to change their ways, but if they know I’m a lost cause, my letter will do nothing to effect that change. If you enjoy WotC’s products, then don’t let the inertia put you in that same position.
WotC corporate and legal have behaved as assholes through this entire process. They kept having to go back to the well and make edits because doing the right thing doesn’t come natural to them. They’re definitely not our friends, but we shouldn’t be assholes either. Whatever brought us to this point, this is where we are, and it’s exactly what you wanted, and pretty close to what I wanted. So, there’s no reason to engage in the overstatement that plagues American discourse. There’s no reason to continue to criticize companies for doing what they exist to do: Make money. There’s no reason to continue calling for boycotts at the expense of good people who are the creatives at WotC, or even just the bench warmers so to speak. Those people probably agree with you about their employers’ behavior, but their ability to pay their rent depends on their continued employment. You’ve won, so don’t be a sore winner, but also . . . .
Don’t be Naïve
Whether you realize it or not, your “victory” keeps you in a morass of uncertainty. If you’re okay with that, I’m in no place to stop you. If you choose to ignore the status quo and defer having the rug pulled out from underneath the community, that’s your business. It probably won’t take another 20 years for that to happen, but that still may not necessarily be a bad position for you, just those that follow you. This mirrors our approach to the environment and the economy, passing off future ills to future generations, but the consequences aren’t nearly as dire. They’re just games, and you’ll find others to play if you’re still playing them when this happens again. However, if you want to play the next iteration of D&D, it may affect you as well. All of this applies to 5th Edition, not to “One D&D“. There’s no guarantee that OneD&D will use either CC-BY-4.0 or OGL 1.0. OGL 2.0 may be in the near future after all.
Not My Problem
I don’t really have a dog in this hunt. I don’t play 5th Edition anymore, I own every WotC/TSR product I’ll ever want, and I’m not creating content for others. With my 1st Edition Dungeons & Dragons Character Builder functional, that could change if I get it into a suitable form for publication, but the last time WotC threatened me, I told them to pound sand, and they immediately blinked. They can’t harm me because I know they’re full of shit (as are their licenses). I know what I can and can’t do, and I don’t care whether they acknowledge that publicly. But mark my words: This will happen again. Most of you didn’t listen to me the first time, so I don’t expect you to listen to me now, because even those of you that did listen seem happy living in the “open gaming license” hole they’ve dug for you.
But it will happen again, and next time, WotC will have prepared itself to be able to tell you to pound sand. Even if CC-BY-4.0 is used for One D&D and is ultimately deemed legally enforceable, it’ll be another scary time for small-time third-party publishers. I’ll reserve my “I told you so” for that day. Now, I’m off to obscurity and some much-needed rest from meaningful blogging.
I’ll still blog about stupid stuff.
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