Some More Wild Speculation on Margaret Weis, LLC & Tracy Hickman v. Wizards of the Coast, LLC Lawsuit @WeisMargaret @trhickman @Wizards @TheCancerThati1 @daflyondawall #WotC #DnD #RPG #Dragonlance

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I’m one of a wake of attorneys that was asked to comment on the recent filing of the above-referenced lawsuit. I’ve spoken my mind but always included my statements with the stereotypical legal caveat that we don’t have all the facts yet. This caveat exists for good reason and is clearly applicable here. All we have is one side of the story, and we don’t have the licensing agreement on which the entire case turns. Ergo, everything at this point is speculation, and I feel that there are enough people commenting that I don’t need to add to the chorus.

That said, there’s one thing that came up in a Twitter conversation that’s important to me, and I felt it was important to expand on it.

As I’ve written before, I no longer play D&D, but in my 19 years of playing it, I’ve never played anything in the Dragonlance setting, and I’ve certainly never read one of their novels. (I prefer non-fiction.) This suit has no bearing on my life personally, but certainly does so philosophically.

Why Do We Have Intellectual Property (“IP”)?

Many people assume that the goal of IP is to reward the creator, inventor, or producer. That’s incorrect. The reward is the means to achieve the real goal, which is to make sure that the public — you and I — has access to plenty of art (copyrights) and technology (patents); can instantly know whether they want to purchase particular goods or services based on brand names (trademarks); and have access to lots of other products not otherwise protectable (trade secrets). We assure that goal is reached by giving those creators, inventors, and producers a financial incentive to do what they do by granting them a “limited monopoly” on their endeavors. However, in the end, the point is to serve the public interest. If that interest isn’t being served, why grant the limited monopoly in the first place? There are several exceptions to IP that prove my point, but they’re not relevant here.

Campaign Settings Gone AWOL

Wizards of the Coast (“WotC”) owns the rights to several campaign settings that haven’t had anything significant published in years. We know that WotC will be publishing works within three classic campaign settings in the near future, but we don’t know how extensive those efforts will be, or what their nature will be (e.g., novels, campaign settings, living campaigns). However, it’s been a long time coming, and there are still plenty of other campaign settings that won’t be published soon. How long will we have to wait for those?

When I raised that issue via Twitter, someone with a better sense of their profitability pointed out that it made no financial sense for WotC to publish them. I believe him, and in fact it’s hard not to. After all, WotC isn’t publishing them (or is just getting around to doing so). Obviously, despite their popularity, WotC can’t financially justify producing them. A smaller (yet still competent) company could do so, but only if WotC’s contract terms aren’t so draconian as to make it unprofitably even for them. To my knowledge, this licensing is open only for novels anyway, so we’re still looking at the suppression of the IP with respect to the actual game where they belong.

My Philosophical Issue

The entire point of IP is to get that IP to the public. As steward of these properties, WotC should (not must) get that material to the public. However, the situation effectively uses IP to do the very opposite. The limited monopolies are being used to horde the material, so there’s no legal, viable means through which that material can be marketed to the public. That’s a big problem for me. As I asked above, what’s the point of granting the rights if it means the public won’t get access to the material?

Wies/Hickman v. WotC

According to the Complaint, WotC wants to walk away from the deal altogether. If that’s true, then WotC stands to gain nothing from the Dragonlance IP. We’re right back to square one with that property, but the important point is that WotC themselves have nothing to gain from the property, so they have nothing to lose if the property is transferred to Weis and Hickman.

There’s no legal basis of which I’m aware for stripping WotC of their copyrights in these other campaign settings, so I don’t want to see that happen by force. They acquired the property fair and square. However, if WotC is in the wrong here, and this suit gives Weis and Hickman the leverage to take ownership of the Dragonlance IP, WotC breaks even, and everyone else wins. I wouldn’t be upset if that happened. I suspect that if Weis and Hickman did get the license back, then they’d produce a lot more Dragonlance content than WotC ever would. When I suggested that on Twitter, I received this response:

Infer what you will from that. I did.

What are the odds of this happening? Probably slim to none, but wouldn’t that be something else?

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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, guys?)

The Merger Doctrine of Copyright Law #iplaw #law #copyright

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This one’s a little dry, but it’s secretly relevant to the interests of the majority of readers of this blog. Also, it’s short.

A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.

However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

The First Sale Doctrine #iplaw #law #copyright

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A copyright is a bundle of exclusive rights, including the right to make copies of an item, However, once someone purchases a copy of a copyrighted work, the purchaser owns that specific copy of that work. For example, if Ann purchases a copy of Bob’s book, Ann may not make copies of that book, but she may resell the specific copy she purchased without fear of infringement.

This gets a bit more complicated with respect to the resale of software. Most software comes with a “shrinkwrap license,” which is a contract packaged with the software. Under the terms of such a contract, just using the software is considered acceptance of the terms of that contract, and those terms indicate that software is merely licensed to rather than owned by the purchaser. If there isn’t actually a sale, then does the “no transfer” clause in the license prevent resale?

In Vernor v. Autodesk, Inc., Vernor was reselling unused copies of Autodesk’s “Release 14” auto-cad software on eBay. In determining that Vernor was a licensee rather than an owner of a copy, the Court developed and applied a three-part test: (i) whether the copyright owner specifies that a user is granted a license; (ii) whether the copyright owner significantly restricts the user’s ability to transfer the software; and (iii) whether the copyright owner imposes notable use restrictions.

Note that this is an exception applicable to digital works. In the context of nondigital, copyrighted works, the first-sale doctrine still applies but may be limited in cases involving illegally obtained goods. If you steal it, you can’t resell it.

Summary

  1. Once you purchase a copy, the First Sale doctrine allows you to dispose of that particular copy as you see fit.
  2. Most software is licensed, not sold, so the First Sale doctrine doesn’t apply.
  3. You can’t rely on on the First Sale doctrine when selling stolen goods.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Trademark and Laches: Enforcing Your Trademark #trademark #ip

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If trademark holders don’t maintain control over their marks, the law dictates that they’ll lose them. This results in some pretty aggressive behavior by mark holders that is often unfairly criticized by the public. The public needs to understand that businesses often can’t afford to lose that investment.

A trademark or service mark is a right to exclude competitors from using a catch phrase, logo, or other brand identifier (or one that’s confusingly similar) in connection with the competitor’s goods or services. A mark’s distinctiveness is defined by how strongly that association between the mark and the goods or services is to the average consumer. The distinctiveness of a mark can be derived from its very nature (e.g., how catchy it is), but also from its frequent and consistent use. That is, having a constant reminder of the association . Obviously, if a competitor uses that mark (or one confusingly similar), the mark will lose its distinctiveness. Because the purpose of granting the mark is not to reward the mark holder, but rather to provide the general public with a means to tell one brand from another, a mark that has no distinctiveness is useless. Accordingly, it’s well-settled that doctrine of laches applies to marks (unlike copyright). Laches commands that an unreasonable delay in enforcing one’s rights will result in a loss of those rights, so if mark holders don’t send out cease-and-desist letters and/or sue infringers, they’ll lose their investment and possibly have to start over again.

Mark holders are in a catch-22. If they pursue infringers, they’re characterized as heartless, greedy money-grabbers, but if they don’t, they could lose a lot … maybe everything. The truth is often somewhere in between those two extremes. As Mr. Vargas says, have a heart.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Fair Use as an Affirmative Defense #iplaw #law #copyright

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This post is about understanding the risk associated with relying on fair use. A copyright boils down to a “bundle of rights,” and when those rights are violated, it’s said that the copyright is “infringed.” A common defense to infringement is fair use, and I can’t possibly count the number of times someone contemplating making a copy has said, “But this is fair use,” often coupled with the dreaded, “No infringement intended” (as if that’s a proper defense). Everyone seems to think any copying they do is fair use. Well, it’s not me you have to convince.

Fair use is an “affirmative defense,” which creates two problems for you. First, to raise that defense, you’re often admitting that you’re liable (or guilty in a criminal case) of the underlying infringement. Boom! You just admitted you’re the bad guy. As a result, you run into your second problem: The burden of proof now shifts to you to prove that your offense was justified, and even in a criminal case, that shift doesn’t violate the Constitutionally-protected presumption of innocence. Remember, you already admitted you did a bad thing; you’re just trying to say, “Hey, let this slide, okay?”

If we were to apply this to any other crime or tort (civil wrong), it would sound crazy. For example, assuming you’re not someone who enjoys murder, which position feels safer?

  1. “I didn’t kill the guy.”
  2. “I killed the guy — shot him right between the eyes — but I felt threatened.”

Even assuming the truth of #2, #1 seems infinitely preferable (if also true). It’s a better position in which to find yourself. Nevertheless, people tend to infringe first and justify it second, seeing fair use as a quick and easy bailout. Despite a wealth of case law helping to define fair use, it’s still a vague concept, relying not on “bright line” rule that clearly defines it, but instead relying on a series of factors (to be discussed in a later post) that have to be applied to your specific facts. You can’t predict the outcome of your case based on the outcome of another case with an entirely different, complex set of facts. If you miss one critical fact in your analysis, your defense crumbles. Moreover, successfully predicting the outcome of your trial doesn’t guarantee that you’ve successfully predicted the outcome of an appeal of that decision. The copyright holder knows that and is certain to appeal. That will cost you even more money.

Going back to the analogy, you shouldn’t go around bad neighborhoods simply because you suspect that, if you have to shoot someone, you’re likely to be shooting a menacing person, so you won’t go to jail. Similarly, you shouldn’t dive head first into infringement unless you’re willing to accept the consequences, whether they’re a finding of guilt/liability or simply a ton of legal fees.

Fair use is a well-settled defense to infringement, but relying on it is quite risky. If you don’t follow my advice to seek counsel when filing a trademark application, fine, but you better follow that advice if you’re planning to infringe a copyright that’s sure to be brought to the copyright holder’s attention.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Defending Copyrights and the Statute of Limitations #iplaw #law #copyright

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One of the most common mistakes non-lawyers make when considering intellectual property law is confusing the rules that apply to one form of IP with another. A good example of that is the misconception that, like a trademark, a copyright owner must zealously defend the copyright or lose it. That’s not true, but there is a statute of limitations. There’s a subtle difference between how these two ideas play out.

A trademark is any “word, name, symbol, or device, or any combination thereof” used as a way to identify a company’s products or services. If someone infringes a trademark, the owner must take action to protect it. Otherwise, the owner will probably lose the trademark. There’s no such rule for copyright. That is, the statute doesn’t state that the copyright is lost because it isn’t enforced, and the United States Supreme Court expressly held that the “laches cannot be invoked to bar legal relief” in copyright cases. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___, 134 S. Ct. 1962 (2014). (The Doctrine of Laches is a defense to a lawsuit claiming that the plaintiff’s legal right or claim should not be enforced or allowed if there’s too long a long delay in asserting that right or claim, and the delay has prejudiced the defendant.)

Nevertheless, the law does provide a limitation on copyright suits at 17 U.S. Code § 507, which the Supreme Court upheld.

(a)Criminal Proceedings. Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
(b)Civil Actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

There is a statute of limitations of three years for civil cases and five years for criminal cases. This applies to a single instance of copyright infringement. If there’s an infringement on 1/1/2016, and another on 1/1/2017, then as of 1/1/2019, the infringer can’t be sued for the 2016 infringement (from three years ago), but the owner can still recover damages for the 2017 infringement (only two years ago). Therefore, the copyright still has value.

The nature of copyright is such that it’s likely that one infringement will lead to subsequent infringements, so this is no small point. For example, an infringer makes a photocopy of a book and distributes it to friends. Seeing how much this is appreciated, the infringer may decide to continue doing so over the few months (or even years). As long as the copyright is still valid, the owner will be able to get compensation for any relatively recent infringement. That is, even if the first infringement is too old, all the subsequent infringements could still be enforced because the copyright is still valid. With damages potentially being very high, that’s still quite valuable to the copyright owner.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Pinned Post: Looking at My Stats and Revisiting My #RPG #Copyright Posts

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The quarantine has me doing a bit of blogging lately, which means I’m also looking at my stats. With respect to my posts regarding copyright and RPGs:

The posts are broken into two separate issues. Part 1 and part 2 are about the copyrightability of RPG stat blocks, and part 3 (not relevant here) is about the OGL. As to the first issue, to date, part 1 represents ~30% of text by page count and has 17,037 hits (edit 10/20/2020: 17,667 hits), whereas part 2 (70%) has only 704 hits (edit 10/20/2020: 802 hits). Moreover, part 1 spends much of its text on going over basic copyright principles that don’t represent the actual argument. It’s clear by the stats and the basis of the criticism itself (often peppered with personal insults) that the vast majority of (non-lawyer) criticism I’ve received is from people that have read only 30% (at most) of that argument. I know it’s long, convoluted, and at times poorly written (mostly because it targets two very different audiences); and you’re under no obligation to read it (or even care about it). However, it’s all connected, and if you’re going to criticize it, you should probably understand it first.

Or not. Free speech and all that.

Endnotes:

  • Part 3 has only 703 hits (edit 10/20/2020: 849 hits), which is surprising. I thought it would be the most read post.
  • Part 3.5 provides necessary clarification and correction to Part 3.
  • Part 4 answers frequently ask questions and addresses frequently raised issues.
  • Over on a lawyers-only subreddit, the attorneys seemed to want to discuss only my side note on patentability of the Shadow of the Demon Lord initiative system. I guess it’s great that they all agree that my argument is trivially correct, but Rob Schwalb has seriously hijacked my glory. I let him have it when I saw him last February.

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Part 4: FAQ/FRI #DnD #copyright #iplaw #ogl

Part 1 | Part 2 | Part 3 | Part 3.5 | FAQ/FRI

In case it isn’t clear, Wizards of the Coast (“WotC”) does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

Unsurprisingly, these three articles have generated a lot of questions and concerns. This is an attempt to address as many of these as feasible. If you post comments below, I’ll answer even more

Killing WotC

From Twitter: “Wizards of the Coast one day will fall. We are a day closer to that day.”

First, I don’t think that these posts and any litigation that comes from it will significantly damage WotC. They’ll just be forced to adapt, as will the rest of the industry when those other companies realize that WotC’s “leadership” was just self-serving manipulation. Besides, WotC themselves admit that freely distributing some of their material isn’t bad. Setups and misstatements of the law aside, they’ve claimed to have done so with the SRD. They’ve freely given away some class writeups for which copyrightability can be reasonably argued. Ultimately, WotC should be fine.

Second, I’d be greatly disappointed if this did kill WotC, so I don’t agree with the sentiment at all.

Third, we all better hope this doesn’t kill WotC. As I said, the entire industry will be forced to adapt. If that’s not possible for WotC, then it isn’t possible for anyone else. Do you actually want the entire gaming industry to collapse? I don’t.

Assuming a Total Loss for WotC, What Are the Consequences to the Industry?

You’re asking the wrong guy. I have my speculations, but they’re probably no better than your own. However, for the record, here’s what I suspect, which should be addressed by industry professionals.

Gaming companies will be forced to abandon books like the Monster Manual and focus more on books like Volo’s Guide to Monsters. Rather than mass produce monster stat blocks, they need to focus on cultures, backstories, storylines, etc. of those monsters, making sure that whatever stat blocks are provided don’t represent the impetus for buying the book. This in turn means that their game systems will have to be written in a way that players can quickly and intuitively design their own monsters. If they don’t, the game will be unplayable. Many designers have added unnecessary complexity to their mathematical systems in order to assure a market for bestiaries, and convinced the community that this was necessary to make the game fun. Now that this is no longer an option, they’ll need to come clean and prove otherwise.

So, the question to ask any professional game designer you know is this: Can you produce a game subject to the constraints outlined above that’s still fun to play? If the answer is yes, no one’s life or profit margin will change significantly.

Stat Blocks Aren’t Facts

An attorney took me to task for characterizing stat blocks as facts. In the copyright context, facts are things that no human being created, such as the circumference of Saturn. Stat blocks aren’t strictly facts. Instead, they’re human creations that aren’t creative enough to rise to the level of copyrightability. Those are two different things. With facts, there’s no analysis of creativity. They simply aren’t copyrightable from the get-go. With low-creativity creations, you must perform that analysis to determine whether they’re copyrightable. This is 100% true.

However, once you determine that creative works aren’t copyrightable, from that moment forward in the conversation, they’re indistinguishable from facts. The only important aspect to either at that point is that they’re uncopyrightable, so I could fairly use “facts” as shorthand to represent both. Everything I said about one would apply to the other.

What the attorney didn’t fully appreciate is that I was writing this for two very distinct audiences, attorneys and laymen, each of whom needed to hear different things. However, when in doubt, I favored the laymen. They had to understand what I was saying, and if simplifying my language was helpful in that regard, then that was the best way to write it. It wouldn’t affect an attorney’s understanding of what I was writing because attorneys would still be aware of the distinction.

In fairness to the commenting attorney, at the point that I first referred to stat blocks as “facts,” I hadn’t yet established that they were uncopyrightable. In legal writing, we tend to state our conclusions first so that the reader knows where were going, and then the justification follows. However, my justification had to cover a lot of ground, over half of which was reserved for post #2, so by frontloading my designation of stat blocks as facts, and failing to conclude my argument by the end of the post, it appeared I was missing that distinction. Was that a bad approach to take?

If so, take it up with Justice Sandra Day O’Connor. She did the same thing in Feist. Phone numbers were referred to as facts throughout her opinion, signed onto by seven other justices (Justice Blackman concurred without explanation). Are phone numbers facts? Do you expect to find phone numbers growing in the bushes during your hikes through the wilderness? Of course not. A human (or a human’s software) at the telephone company selects a phone number (subject to area code and exchange constraints) and assigns it to a person. They could choose from a large number of phone numbers but choose one in particular. They’re status as a phone number occurs only after someone at that phone company creatively selected and assigned it as such. While the raw number exists in nature, its status as a “phone number” has some small amount of creativity. It just isn’t creative enough, and because the question of creativity was a side matter in that case, Justice O’Connor chose to use the same shorthand even though her primary audience consisted of attorneys. One could also interpret her opinion as saying telephone numbers “become facts” once assigned, so by the time the phone company places it in a phone book, it becomes a fact. I think this would be a strange interpretation, but assuming that’s the case, it doesn’t reduce the strength of it’s comparison to stat blocks, because one could say the same thing about them. Under the same logic, stat blocks become facts once WotC creates them, so a compilation of stat blocks remains uncopyrightable (despite appearing alongside copyrightable elements in the Monster Manual, etc.).

This isn’t the only time that I played a little loose with copyright law. For example, in the discussion of the slaad, I suggest that the idea of a slaad can be copyrighted. The idea of a spy can’t be copyrighted, but the character of a specific spy, James Bond, can be. What’s a slaad? Is it an idea or a character? To be precise, it’s a species, which seems to make it an idea, but it’s completely make-believe, which one could characterize as a bunch of specific characters. I didn’t want to get into this abstraction/reification debate because it wasn’t important to my point, so as I did in a few other places, I simply assumed WotC had a possible copyright, then asked, “So what?” I then moved onto why that wouldn’t matter. Copyright can be complex, and I certainly covered enough to make the average gamer’s head spin.

To the extent I confused any of the laymen reading this, I apologize, but I have a feeling that this discussion has as much potential to confuse you than what I wrote in my first post.

Complexity and Non-Stock Abilities

It may seem counter-intuitive that the more complex a system gets, the less it enjoys copyright protection. At the extreme end of the complexity spectrum, this actually makes sense, but the explanation gets a little weird.

In science, an “emergent property” refers to a characteristic that a group has that the individuals comprising that group do not have. A looser definition is something that rises from extreme complexity, where the whole becomes greater than the sum of its parts. Consciousness is thought to be an emergent property of the vast number of neural connections in the brain. Civilization is an emergent property of the vast number of human relationships when bound together in a relatively small area. Similarly, the concept of magic is so complex at this point that even truly original combinations are nevertheless contemplated by copyright law, disqualifying them for protection.

I think this is what the DaVinci Court was trying to say with respect to non-stock abilities but couldn’t because the subject matter didn’t lead to the proper argument. Even if there has never existed the fantasy element of an elf that was said to have the power of invisibility, the massive complexity of the concept of magic trivially implies such an element. Dwarves have done it, humans have done it, dragons have done it, oni have done it, fungi have done it, etc. Thus, even if you were literally the first person to create an elf that could turn invisible, while technically creative, it’s not nearly creative enough. You can think of it this way: The DaVinci Court assumes (rather reasonably, I believe) that you must have been considering all of those creatures being able to turn invisible when you decided an elf could too. Ergo, while technically creative, it isn’t creative enough. There’s just been too much done with magic to think that your contribution to art was copyrightable. In this respect, the concept of what magic includes outpaces the ideas that have been literally expressed.

What about a spell that’s never been contemplated before? Let’s say that each of those creatures (except the elf) had the D&D 5e version of invisibility. It lasts until you cast another spell or attack. Let’s also assume that we’ve seen creatures that can fly, charm a person, or push them away, but that doesn’t go away when they cast another spell or attack. How much of a creative leap is it to come up with an elf that can 1) turn invisible, and 2) stay invisible even after it casts a spell or attacks? Considering that we’ve seen all manner of creatures cast all manner of spells, and that we’ve seen all manner of creatures be able to sustain spell effects even after casting another spell or attacking, the leap isn’t great enough. In fact, it naturally follows from how the typical person defines magic. This necessary implication is something akin to an emergent property of the total body of magic as imagined. Perhaps it fits the definition of an emergent property perfectly. I’ll allow the scientists to debate that.

That’s why even non-stock abilities shouldn’t be protected. Even original combinations of abilities are easily contemplated based on the nature of magic and spells, such that those original combinations aren’t creative enough to justify a copyright. If the games in those court cases were RPGs, I’m sure that’s what the courts would have said (in different words).

The Pattern of Bad Behavior and Cultivating Misinformation

I referenced WotC’s pattern of bad behavior without being able to pin down how far back it went. I also claimed that WotC has cultivated a misunderstanding as to what third parties can and cannot publish. These were based purely on my experiences over the years, most of which I expect most readers to have shared, and so I provided little support for them. About four hours after I published the third post, I found some of that evidence.

In 2004, WotC published a FAQ (last visited 8/26/2019) explaining their interpretation of the 3rd Edition OGL. Among other things, the FAQ states that Open Game Content “cannot be something that is in the public domain,” but the 3rd Edition OGL itself defined Open Game Content as including “the game mechanics and includes methods, procedures, processes and routines . . . .” Unless WotC is under the mistaken impression that it was granted a patent in the d20 mechanics without having ever applied for one, how could they possibly think any of those things weren’t in the public domain? In another hypothetical question, WotC was asked if the terms were unfair, and their answer was, “If you don’t like the terms of the Open Game License, don’t publish Open Game Content.” Remember, this includes the game mechanic.

WotC also claimed that a user could identify a character’s name as “Product Identity,” thus prohibiting its distribution. WotC was stating the position that a character name could be deemed copyrightable. I suppose their “out” is that they were contemplating the name being used as a trademark, but the specific example given was that of a character name being used in a stat block. At the very least, WotC was suggesting to laymen that names could be copyrighted as well. In the context of the prior three posts, it appears they were attempting to protect their perceived interest in names of characters and creatures. Again, we’re not inside their heads, but the evidence is strong, and ultimately their actions will be more important than their motives.

Moving forward to the less comprehensive 5th edition FAQ (last visited 8/26/2019), the second frequently asked question provides an answer that shows intent to make the 5th Edition OGL a continuation of the 3rd Edition OGL. Keep in mind that the OGL still applies to 3rd Edition, and it appears that WotC’s general approach to the subject matter has remained unchanged.

In fairness, I will say one thing in their favor (without being too nice about it): They also answer the first question with, “The goal of the SRD is to allow users to create new content, not to replicate the text of the whole game.” This is the noble goal I referred to in part 2. In most cases, do you really need to republish what WotC has already provided? What does that do other than to harm the creators’ market for their IP? If you’re going to publish gaming material, make sure you’re introducing something new that isn’t yet available. Be a help, not a hindrance.

But here’s the not-so-nice part: That’s exactly what the one-stop stat blocks did. They provided a form of the stat block that WotC wouldn’t provide and did so only to the extent necessary to fulfill its mission. In doing so, they made the game more accessible to several DMs. You may personally not have use for them, but everyone is different. I won’t run games without them.

My Intentions

As these posts have circulated, I’ve been accused of bad intent; specifically: 1) I picked a fight; 2) I’m trying to take the easy way out; 3) I’m manipulating the law to do an immoral thing; 4) I’m out to destroy WotC; and 5) that I’m in it for the money and my talk about the public good is empty. Some of those critics were clearly just trolling, but not all. Most of you don’t know me, so you have no way to sense my motives. These are all fair concerns, and all I can do is address them here. Believe it or don’t.

I Picked a Fight

No, I didn’t. WotC threatened me. Based on the context of everything I’ve written, let’s summarize the turn of events leading to us to where we are.

  1. I did something that was 100% legal but had the potential to harm WotC;
  2. I carefully crafted that thing to make sure that it didn’t damage WotC’s sales, as it was still necessary to purchase the Sourcebooks in order to play the game;
  3. If I had a broader footprint, what I did had the potential to help WotC’s sales; and then
  4. WotC threw its customary temper tantrum.

As I’ve established, stat blocks as currently written aren’t copyrightable, so I could have copied every single WotC stat block in existence and republished them. In fact, I was asked to do that, which I refused (catching heat in the process from some unappreciative fools). Instead, I released them only as PDFs, and I released only those stat blocks that required the one-stop treatment (i.e., ones with Spellcasting or Innate Spellcasting). This made the game more accessible for people like me, which meant that more people would be willing to play more often, as well as invest in the game. Again, my footprint is too small to be significant, but the point is that I could only help, not hurt.

That said, WotC’s reaction wasn’t thought through at all. I received a mild demand to take down the stat blocks, but based on their history of intimidation, it wasn’t something that could be ignored. It was a short email but somehow managed to make as many factual errors as it had sentences. This is their modus operandi. They see material related to 5th Edition Dungeons & Dragons, they don’t see a copy of the OGL attached, and so they threaten before researching that material.

This is 100% on them. If they had left me alone, I probably wouldn’t have written these posts. If they don’t sue me, there’ll be no lawsuit and no GoFundMe. I just want everyone to be crystal clear about the fact that if they do sue me, I’m prepared to go all in. If no one contributes to the GoFundMe, I still won’t back down.

Taking the Easy Way Out

This project has taken years. I didn’t make photocopies of the Sourcebooks. This was a ton of work, and I’ll never make a dime from selling these OSSBs even if a legal ruling in my favor allows me to do so. There was nothing easy about it.

Legal Manipulation and the Destruction of WotC

I’ve been asked what gives me the right to take down the D&D empire that was built through blood, sweat, tears, a brilliant strategy. Let’s say that WotC, through hard work and intellectual superiority, created and implemented an ingenious business plan to steal money from the elderly’s trust funds, and in doing so built an empire. Would you still be asking that question? Clearly not. If the empire is built on an immoral foundation, there’s absolutely nothing immoral about toppling it.

Of course, WotC isn’t stealing money from the elderly. They aren’t even committing a crime as far as I know. But they’re behaving wrongly and doing so essentially through bullying on a corporate scale, financed (in part) with the fortune they made off a patent that should never have been issued. They absolutely need to be placed in check, and the intangible harm they’re doing, which the average person can’t appreciate, needs to be stopped. Also, as I pointed out in part 2, WotC would be doing themselves a favor by abandoning their copyright misuse. A much larger threat looms over their work, and if they don’t get ahead of it, it could potentially “bankrupt” the marketability of 5th edition.

But they won’t, so what happens if this goes to trial and I get a judgment expressly excluding stat blocks from copyrightability. What then? Does WotC go bankrupt? Does the entire industry go bankrupt? No. What happens is this: WotC must stop misusing their copyrights, and once they stop, they get their copyrights back. Their artistic folk will never have to stop doing the creative work they do, no one will lose their job (except perhaps their lawyers and me for spending too much time on this matter; who can’t get behind that?), Adventurer’s League will keep going, and everyone will be happy.

Does anything else happen?

I’m in It for the Money and I’m Full of It

Again, let’s say this goes to trial, and I earn a 100% victory. What do I win? The judge or jury will give me the whopping award of $0.00. That’s zero dollars. For people overseas, that amounts to zero euros and zero yen. For the privilege of earning that cash reward (I won’t take a personal check), I get to invest in the equivalent of as much as $500,000 in billable legal hours (based on Gary Gygax’s atypical experience representing the upper end of costs).

If I’m not doing this for the community and the industry, I’m not sure who I’m doing it for.

Cognitive Dissonance

A recently published article had a quote in it that’s essentially what’s been bouncing around in my head as I wrote these posts. The article is about the origins of D&D, and the premise of Rob Kuntz is that a significant part of the public has mistakenly believed that Gary Gygax was the single focal point for the origins of role-playing games. In making his case, he said:

“Humans do not like to admit they’ve been hornswoggled, lied to, cheated, or fooled.”

Absent any genuine counterarguments to my piece, and in light of the genuine anger some people have expressed towards me online, I suspect this is the basis of the resistance I’ve seen over the years in my conversations of the OGL. People not only assume that no legal challenges must mean there’s nothing to challenge, but also that they couldn’t possibly have been so very wrong about the OGL for so many years. They can be, and they were.

By all means, if you think I’m wrong challenge me, but don’t assume I’m wrong just because you don’t like it. The consequences to the industry and community are too great for any of us to allow our biases or emotions to guide our approach to this topic.

Consideration in the OGL

I want to add a little more depth to my claim that the OGL lacks consideration. As you may recall, consideration is legalese for something of value that passes between the parties to a contract. If homeowner pays painter $3,000 to paint homeowner’s house, then the painter receives $3,000 as consideration, and homeowner receives a paint job as consideration. Without both parties receiving consideration, the contract isn’t legally enforceable.

The OGL lacks consideration. In a nutshell, the OGL creates two classifications of subject matter: the OGC (defined as the “game mechanic”) and the PI (defined by a list of different elements of the game). The OGL claims to license the OGC but not the PI. This is problematic because the OGC doesn’t contain anything in it that’s copyrightable. That is, it’s well-settled in American copyright law that game mechanics aren’t copyrightable, which means that the entire public already “owns” (so to speak) the game rules, so an attempt by the OGL to license OGC fails to provide the public any consideration.

The issue, however, is that the OGL never specifically mentions, “the specific way in which the game rules are expressed.” That’s something that is copyrightable. For example, on page 197 of the Player’s Handbook, WotC provides several paragraphs of text organized by several subheadings describing what happens when a player’s character drops to 0 hit points. Everyone is welcome to express the 5th edition rules for dropping to 0 hit points, but probably not in that particular way (or any way in which is substantially similar to it). So, does the OGC include “the specific expression” within the definition of “game mechanic”?

I don’t think so. First, it’s clear that the listing in PI is an attempt to grab anything that falls under the realm of either trademark or copyright. Moreover, that list contains several vague terms that clearly are meant as “catchalls” to grab anything copyrightable that isn’t expressly listed. On the other hand, the OGC goes on to define what is meant by game mechanic, and the list consists of terms (and synonyms) that are used for the subject matter of patents (methods, procedures, processes and routines), and then qualifies that to exclude any aspect of the game mechanic that falls under the category of the comprehensive list of copyrightable and trademarkable subject matter. In this case, the layman’s definition of mechanic matches the legal definition, so there’s no reason to believe that the absence of “specific expression” was unintentional. Still not convinced? Here’s an exceprt from the 2004 FAQ, which has never been retracted by WotC:

Q: Is Open Game Content limited to just the “game mechanic”?

A: No [but] Wizards, however, rarely releases Open Content that is not just mechanics.

It seems WotC’s intentions have never been to “license” more than something they have no power to license, the actual mechanic itself. They acknowledge that they could license more than the mere mechanic but state they rarely do that. At the very least, this represents an ambiguity that would be interpreted against WotC.

It’s easily possible that a court would disagree, but that would create a whole host of issues for both WotC and the industry in general (all the fault of WotC). As mentioned in Part 3.5, if the OGL were to contain consideration within it, then the OGL itself represents copyright misuse, without having to look at the SRD or WotC’s other behavior. This means that when WotC intimidated the industry to include the OGL in their products, those other game designers were placed in an impossible position: Get sued by WotC or engage in copyright misuse that prevents them from enforcing their own copyrights.

I’ll never include the OGL in any of my publications.

No More Posts

I don’t plan on a part 5, 6, or 127 for this series, but this is an ongoing conversation. Feel free to comment here or on Twitter.

Part 3.5: A Mild Retraction That Makes Matters Worse for #WotC #DnD #copyright #iplaw #ogl

Part 1 | Part 2 | Part 3 | Part 3.5 | FAQ/FRI

Some excellent commentary on Part 3 from a reader uncovered an error and a weakness that deserve examination. Neither the error nor the weakness significantly detracts from the overall argument and its strength, but instead bolster the case for copyright misuse and, if the weakness proves to be a true flaw in the argument, heighten the damage done by the Open Gaming License (“OGL”) to the gaming industry.

In case it isn’t clear, Wizards of the Coast (“WotC”) does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

The Error

Throughout Part 3, the “preamble text” was referenced as part of the OGL. This is incorrect. That text is actually part of the System Reference Document for 5th Edition Dungeons & Dragons (“SRD5”). Therefore, when evaluating the OGL on its own merits, one can’t rely on that “preamble text.”

Mea culpa.

The Weakness

In short, one (of a few) criticisms of the OGL is that it lacks consideration to the alleged licensee, which is something of value that must pass to a party for a contract to be legally enforceable. The basis of this criticism is the assertion that nothing, including the specific expression of the game mechanics, is licensed. Instead, the only subject matter that’s licensed are the game mechanics themselves, but because no one can own game mechanics, the OGL isn’t licensing anything. The assertion that the specific expression of the game mechanics isn’t being licensed is based on the list of elements that are included under Product Identity. That list includes several terms that are vague and can be broadly interpreted as an attempt to cover anything that could conceivably be copyrighted.

All that said, neither “specific expression of the game mechanics” nor “all our copyrights” (or a similar term) is expressly stated, so the chances are nonnegligible (perhaps better than 50%), that a court could find consideration properly stated in the OGL. The contract still fails for lack of a means to accept it, and contains some ambiguity (which generally tips against the favor of the contract’s drafter), but as far as consideration is concerned, the OGL arguably contains it.

Let’s assume this criticism sticks, and the OGL properly states consideration.

The New Interpretation

Without reference to anything else – the SRD5 or WotC’s threatening behavior – the OGL itself contains within it a license for copyrighted subject matter; to-wit: the specific expression of game mechanics. However, recall that Section 1(e) of the OGL defines Product Identity as, among other things, concepts, themes, names, none of which may be copyrighted in theory. It also includes “places, locations, and environments.” What exactly is an environment? The first rule of contractual and statutory interpretation is that if two different words are used, they must mean different things. If locations refer to, for example, specific cities, forests, etc.; and places refers to planes of existence; then all that’s left for the definition of environment are, for example, “a location with mist in it” and “a rocky hillside,” none of which are copyrightable. It also includes “special abilities” and “spells” that, as discussed in earlier posts, contain elements that can’t be copyrighted. Without any caveats such as “to the extent these represent copyrightable subject matter,” the only reasonable interpretation of the OGL is that it includes the complete text for those elements, which extends to noncopyrightable subject matter. Most damning, however, is that “concept” is a synonym for “idea,” and the most fundamental principle of copyright law is that “ideas” can’t be copyrighted. Nevertheless, WotC is claiming ownership of concepts. One cannot assume, without a caveat, that WotC is unambiguoisly limiting itself to an expression, especially in light of the fact that, as a matter of contractual interpretation, “concept” can’t have the same definition as “location,” “storyline,” “character description,” etc.

Thus, if the OGL states consideration in the form of copyrightable expression of game rules, then WotC is attempting to leverage that copyright to prevent the alleged licensee from using public domain material. Whether WotC succeeds in doing so or not, this is the essence of copyright misuse as defined in Assessment Technologies, among others, and it’s inherent to the OGL itself. One doesn’t have to examine the SRD5 or WotC’s behavior to find copyright misuse with respect to the OGL.

The Chilling Effect

Consider what this would mean to a small-time game designer, who may not be using the SRD5 and who may not be sending out illegitimate cease and desist requests. Game designers clearly feel compelled to include the OGL in their work for fear that WotC may sue them, but if they include the OGL in their work, their own copyrights could easily be held unenforceable until they remove it, even assuming no other bad behavior on their part. That’s one hell of a position in which to place game designers, all the result of WotC’s stated position.

Thus, if consideration is properly stated in the OGL, the damage done by the OGL is even worse (or at least more direct) than previously stated.

Note

I’m preparing another post that will serve as a FAQ of sorts based on other commentary. That should go up on Monday morning.

Part 3: The Damage Done by the Otherwise Ineffectual Open Gaming License #DnD #copyright #iplaw #ogl

Part 1 | Part 2 | Part 3 | Part 3.5 | FAQ/FRI

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This is the last in a series of three posts on the copyright misuse of Wizards of the Coast (“WotC”). Much of this post relies on the others for context, so it would be better to read the Copyrightability of Stat Blocks and the Copyrightability of Abilities and Spells before reading this one, but it’s not strictly required.

WotC introduced the OGL and the System Reference Document 5.0 (“SRD5”) for the noble cause of telling the public which of the material they published was, in their opinion, protected work (i.e., work only they could publish), and which was public domain (i.e., freely useable by everyone without restriction). This isn’t sarcasm; their stated intent was noble. Sure, they called it a license when it clearly isn’t, but if that were their only sin, we could all overlook that. The idea was to avoid as many unnecessary disputes as possible. That’s helpful. It has since morphed into an oxymoronic attempt to license public domain material and intimidate members of the industry and community in general, who are fearful, ignorant, or unable to finance a defense against a lawsuit. That’s damaging.

In case it isn’t clear, WotC does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

Credits

Before I begin, I want to thank those that helped review some or all these documents before I published them. They were instrumental in helping me get the wording to where I wanted it, coming from the perspective of lawyers with IP experience, lawyers without IP experience, and nonlawyers. This was not an easy project to write because I was writing for two different audiences, which is why I needed help from people in both of those audiences. I needed to back up my assertions with solid logic and case law but in a way that was understandable to nonlawyers. Most of these people requested that they not be named, but those listed below didn’t mind.

If you’re one of the people who helped and would like credit, I’ll gladly add you name to the list. I do so only so that you get the credit that you’re due, but there’s no need to put yourself in a bad position with industry professionals and friends. Either way, thank you.

Jason Dandy
Donald Dechert
Mike McMullan
Katey Springle Lempka

I also want to thank those that took me to task on various social media platforms. Even though their statements were public, I won’t mention them by name unless they request I do. One friend was particularly instrumental in keeping me emotionally grounded. WotC’s legal department has infuriated me, but on the few occasions that I’ve met and gamed with the creative minds at WotC, they’ve been fantastic. They’re good people, and I’m glad my friend kept me from losing sight of that. Others provided critical legal analysis, resulting in edits prior to publication of parts 2 and 3. My decision to break up the first discussion into two parts (1 and 2) was an unintentionally brilliant strategy, as it gave me the time to process criticisms and strengthen my arguments in part 2. Thanks to all of you.

Some More Law

There are just a few legal concepts relating to contracts that need to be discussed quickly before we can address the Open-Gaming License (“OGL”) and WotC’s copyright misuse. These aren’t difficult and in fact may be intuitive to many. Although contract law varies from state to state, these very basic rules are at least in part universal, applying to all fifty of the United States and probably much of the world.

A Contract is a Legally Enforceable Agreement

Two parties can agree to a lot of things, but such an agreement is a “contract” only if the law deems it enforceable. For example, if a mob boss contracts a hitman to murder someone, and the hitman backs out on the deal, the mob boss couldn’t take the hitman to court and ask the court to force the hitman to go through with the murder. Such a contract is void as a matter of public policy because it is a contract to do an illegal thing, in this case a criminal act.

Offer and Acceptance

In order to be bound to a contract, one party must make an offer, and the other party or parties must accept it. If a party makes an offer, but the other party agrees to accept the offer with certain conditions, then acceptance hasn’t actually occurred. Instead, this is deemed as a counteroffer, which must then be accepted by the first party. A long series of offers and counteroffers is the essence of negotiation.

All Contracts Require Consideration

“Consideration” is defined as something of value passing between the parties. If a painter agrees to paint a homeowner’s house, that’s not enforceable because the painter isn’t getting anything out of the deal. If, on the other hand, a painter agrees to paint a homeowner’s house in exchange for $3,000.00, then the agreement is enforceable as a contract. The homeowner receives consideration in the form of a painted house, and the painter receives consideration in the form of a payment of $3,000.00. Both parties get something of value out of the deal.

License

A license is a contract in which one party (“licensor”) grants another party (“licensee”) permission to do something or use some subject matter (e.g., the right to live in an apartment, the right to hold a rally on another’s property, the right to claim the licensor endorses the licensee’s products or services). The licensor must actually hold the rights to that subject matter, and must have the authority to grant licenses to other people (or entities, such as corporations).

Ambiguity

Any ambiguity in a contract is interpreted against the drafter of that contract. Some attorneys insist that this rule doesn’t apply where all parties are represented by attorneys.

Tying These Together

Applying what we have in the definitions above, if a licensee already has the right to that subject matter, then there’s no consideration passing to the licensee, so the license isn’t a license at all, but rather an unenforceable agreement. For example, if two people own a piece of land and each have the rights to occupy it, one of the owners can’t rent the land to the other owner. The other owner already has those rights.

Game Rules

As a reminder, game mechanics are not copyrightable. In part, the reason for this is that the game designers didn’t really create them either. The mechanics have probably been done before in prior games, but even if they’re brand new, they’re often just a collection of mathematical equations. Math describes the way the universe acts, and no one can (or should) own that. I reiterate this point yet again in case some are acting under the misguided notion that it would be “immoral” to copy game rules. It isn’t. It’s immoral to claim ownership over clearly unowned subject matter, especially knowing full well that a large group of people will believe it and self-censor themselves, thus stifling creativity. The public must be free to find a way to express the rules of any game.

What Exactly is Licensed by the OGL?

Open Gaming Content is the content WotC says the public can use, and Product Identity is the content WotC claims the public can’t, but Open Gaming Content can’t be copyrighted because it’s already in the public domain. By its own terms, the 5th edition Dungeons & Dragons OGL (“OGL”) grants to gamers something that the gamers already have the right to use. Thus, no consideration passes to the gamers, and the OGL is a legally null document.

The OGL defines two gaming elements: The “Open Game Content” and the “Product Identity.” Open Game Content (“OGC”) is defined in paragraph 1(d) as

“the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.”

Next is the Product Identity (“PI”). In summary, paragraph 1(e) gives a comprehensive list of everything relevant to the RPG that could possibly be protected under copyright or trademark law and defines that as PI. For the sake of argument, we’ll assume that, except for game mechanics or items specifically excepted below, anything WotC has historically claimed to be copyrighted or trademarked material is indeed protected.

Let’s break down OGC first. It includes the game rules (a.k.a., “game mechanics”), which are not copyrightable, so everyone may distribute them without restriction. The definition goes on to point out that if any game rules are copyrightable, then they’re included in Product Identity. Technically, this is correct, but there are no game rules in PI (as a matter of law), so nothing is transferred into that pool of material. The talk about copyright law in this term is without substance. This means that the OGC is subject matter a gamer may use without WotC’s permission, and thus doesn’t require a license. Compare that to PI, which is everything gamers can’t use unless they have a license from WotC, and we get to the crux of the problem. Turning to paragraph 4:

“Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.”

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Ergo, WotC is licensing nothing with the OGL. They claim to license something they have no right to license (OGC), and anything that requires such a license is explicitly excluded (PI). Moreover, they don’t even want third parties to mention their game system. Once again, in plain English: “We’re licensing to you what we have no right to claim as ours, and not licensing you anything we can claim as ours, and are thus giving you nothing.” Even if a third party signed this agreement (probably no one has; there’s no signature line), or if a court bound the third party to its terms because it was printed in a book as instructed in paragraph 10 (“You MUST include a copy of this License with every copy of the Open Game Content You Distribute.”), there’s no consideration, so there’s no legally enforceable agreement.

Ambiguity

At first glance, there appears to be a back door to using copyrightable material. The preamble of the OGL lists items designated as PI, and then states the following:

“All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.”

The SRD5 is the collection of material that WotC is specifically claiming to license. It includes, among many other things, descriptions of a fraction of the spells, races, and character classes, as well as monster stat blocks, that are included elsewhere in WotC publications. Use of the phrase, “the rest,” necessarily means that the SRD5 includes at least PI within it.

The quoted preamble text seems to allow gamers to distribute all that content, but that’s not true. Returning to the definition of OGC above, an alleged licensee may use OGC

“‘Open Game Content’ means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity . . . .”

(emphasis added). So, if the SRD5 contains copyrightable material (that is, the PI that they admit is in the SRD5), such as the parts of spell descriptions that go beyond mere mechanics, then that copyrightable material is not useable even though it appears in the SRD5. In fact, a reasonable interpretation of this apparent ambiguity is that the one thing WotC could possibly be licensing with this material – the specific means of expressing their game rules – is also not being licensed. This means that, despite the existence of the SRD5, and a strong implication that all SRD5 material may be copied freely, if an alleged licensee copies SRD5 material directly, there’s a breach of license, and WotC holds a potential lawsuit in their back pocket in case they ever decide to sue for unrelated reasons.

This is no small matter. The license’s ambiguity leaves the third party uncertain as to whether WotC has reserved the right to sue for reproduction of any SRD5 material, but they’re encouraging the third party to reproduce it. Assuming WotC genuinely believes the OGL is enforceable, this appears to be a setup. It appears that they’re using ambiguity to encourage third parties to use copyrightable material, only to then use the quoted preamble text to justify claims of infringement or punish other legal behavior they simply don’t like (such as publication of one-stop stat blocks, henceforth “OSSBs”). If WotC realizes that this isn’t an enforceable agreement, then at the very least, the ambiguity is used to confuse and intimidate third parties into not republishing material, self-censoring any use of uncopyrightable material just to avoid a costly lawsuit they’re uncertain they can win. Part 2 cautioned of the dangers of a copyright holder having grounds to sue arising solely from mere use of their product. It appears that WotC is seeking exactly that. (What’s actually going on in WotC’s head is unknown to the general public, but whether or not they realize they’re creating a setup, they’re in fact attempting to do so, and that’s all that’s needed to create a problem regardless of whether they legitimately believe the OGL is a license or not.)

Either way, this is copyright misuse. They’re leveraging copyrightable material to restrict the use of uncopyrightable material. WotC is a bad actor, and until their misuse discontinues, their copyrights in the Monster Manual, Volo’s Guide to Monsters, Tales of the Yawning Portal, Mordenkainen’s Tome of Foes, Guildmaster’s Guide to Ravnica, Ghosts of Saltmarsh, Dragon Heist, Dungeon of the Mad Mage, Tomb of Annihilation, and perhaps others (the “Sourcebooks”) should be deemed unenforceable until they stop the misuse.

Less Than Useless

Let’s revisit the definition of OGC: “the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity.” Claiming that at least some methods, procedures, processes, and routines (all public domain by definition) could embody PI indicates that WotC has every intention of including public domain material in the PI. Elsewhere in the preamble, WotC specifically designated the following creatures as PI: beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti. (The list is much longer than this.) Many have taken this to mean that WotC specifically forbids by contract even the mere mention those creatures, and WotC has cultivated this interpretation. Most likely, WotC realizes they can’t forbid mention of these terms, but instead can forbid reproduction of their creative descriptions of these creatures, places, and items.

Copyright does not permit protection of a single word, and it would be exceptionally difficult to copyright two words, such as “displacer beast.” So, if enforced as a contract, the OGL would place an alleged licensee in a worse position than if never having entered into it. The alleged licensee gains nothing but must give up something in the public domain (i.e., a few single words otherwise in public domain). Sure enough, this appears to be another set up. If third parties change the name of the githyanki to “githkin” but keep the backstory, etc. the same, that third party would still be liable for copyright infringement. Changing the name was unnecessary; it’s the backstory that’s arguably creative. To the unsophisticated, the OGL may seem to be restricting only the name, in which case WotC holds another lawsuit in its back pocket if it doesn’t like something a third party has done that’s otherwise legal. (This has played out many times with, for example, people referring to Warforged as Forgekin and Drow as dark elves, but otherwise publishing those species as written.) This list also appears to be another attempt to snatch ideas from the public domain. The Gray Waste of Hades is no different than the basic concept of Hades from Greek mythology (though some storylines within are possibly copyrightable), but its inclusion in the OGL’s list seems like a vague threat that a third party’s inclusion of Hades in their gaming material will be watched carefully or even litigated. That’s absurd.

Opt Out?

It seems that one solution is not to be a party to the OGL. Unfortunately, if the OGL were deemed enforceable, every player of the game likely already is. Under paragraph 3, acceptance of the OGL requires nothing more than “Using the Open Game Content.” That is, based on paragraph 1(g) (defining use), if a player writes down the game mechanic on a piece of paper (“copy”), or even simply plays the game (“use”), the player has agreed to abide by the OGL. This is true even if the player has never heard of the OGL, Wizards of the Coast, or Dungeons & Dragons. It’s that broad a term, and this is supposedly a valid form of acceptance of the license only because Wizards claims it is. No one has ever agreed to that mechanism in the first place, so it’s likely that everyone has allegedly accepted the OGL without realizing it. Again, that’s absurd. (For those familiar with software licenses, this appears to be WotC’s attempt at a “shrink wrap” license. The legality of those licenses is technically unsettled, but the OGL’s attempt here is even weaker than software licenses because of how broadly a reasonable reader would have to interpret the term, “use.”)

Paragraph 14 is a reformation clause, stating in boilerplate language that “[i]f any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.” However, it seems that the only way to make sense of this tangled mess would be for a court to write a completely new contract. Even if the court could somehow strike bad terms from the OGL, it wouldn’t change the purpose of the OGL, which was, at best to misuse copyright, and at worst set up gamers for infringement claims. However, even reasonable rewrites would solidify the unenforceability of the OGL. Revisiting the text discussed earlier: “All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.” This text makes itself subservient to Section 1(d), expressly pointing the reader to Section 1(d) for clarification of what parts of the SRD5 are considered OGC. Remember that Section 1(d) states that nothing copyrightable is being licensed. If the tension between the two terms is interpreted in the only reasonable way available, the result is an unenforceable contract with no consideration, and because WotC drafted this contract, a court would be inclined to interpret it in a way against WotC’s interests.

The OGL is a brazen statement by WotC that they don’t want you using material that’s in the public domain, and they give you nothing in return after dictating you not use that material whether you agree or not.

A Pattern of Bad Behavior

In assessing whether WotC has engaged in copyright misuse, the courts will have a difficult time ignoring the fact that this is part of a pattern of misuse in which WotC has engaged for at least 15 years. This doesn’t appear to be an accident.

Third edition Dungeons and Dragons also had an OGL. There’s no need to go through an identical analysis of it. It’s important to note that, more or less, the broad strokes were the same, and that the 3rd edition OGL demonstrates that this bad behavior dates back to its publication in 2000. Between 2008 and 2016 WotC published the legally legitimate Gaming System License for 4th edition Dungeons and Dragons, but the 3rd Edition OGL was still enforced.

Why Would WotC Expose Itself Like This?

This is a very bold move by WotC. Why would they do such a thing? The “Hand Formula” is a legal concept referring to the fact that deterrence occurs only where punishment is both sure and severe. That is, if jaywalking carries a 20-year prison sentence, but a jaywalker knows they’ll never get caught, the sentence doesn’t scare them. On the other hand, if the punishment for stealing $1,000,000 is nothing more than getting yelled at for 30 seconds, the thief won’t think twice of stealing the money. A criminal must know that the punishment will be bad, but also that they’ll likely have to face that punishment.

Let’s examine the potential plaintiffs against WotC. The only entities that could be harmed directly by this misuse are game designers and “little guys” (like me). Game designers won’t sue because, even if they win, they may lose. Depending on their own circumstances, they may be exposed to the same claims from others. On the other hand, both game designers and the little guys have no desire to spend up to $500,000.00 to sue a company backed by Hasbro just to win the right to create a PDF with limited sale potential or just to post to a blog. No one in a legal position to sue has the incentive or funds to do so, WotC knows that, and this has been confirmed over the 19 years that an OGL has existed in one form or another.

Why is This Such a Big Deal?

If the OGL isn’t enforceable, WotC couldn’t really sue anyone, so there no harm to it, right?

Wrong. Belief that this license is enforceable gives WotC control over the believer, who voluntarily agrees to do what WotC says and gets nothing in return. A cease and desist letter from a company ultimately backed by Hasbro will terrify the average person, which is precisely why Lasercomb didn’t require that a defendant be a party to a license in order to raise the claim of copyright misuse. The result is self-censorship and a lost opportunity for further creativity. It’s especially frustrating that this community allows this to happen. When it comes up in conversation, many say they’re upset that the copyright monopoly has grown too strong, yet they’re encouraging it to grow even stronger, at least with respect to the role-playing game industry, by voluntarily ceding to WotC public domain material. “Using” the OGL and SRD5 by agreeing to publish and abide by it in other games feeds a culture of ignorance and stifles creativity. It’s a shame anyone does that.

The loss of creativity is hard to see, because it’s impossible to quantify that loss. With such an ethereal concept, how does one prove that something would have been there if not for someone else’s actions? That’s why the doctrines of copyright misuse, patent misuse, and antitrust rules exist. They’re designed to assure no such losses, even if several owners don’t get as much value from their works. This is the reason the public good always outweighs the rights of the copyright holder; those rights exist solely to serve the public good.

Remember, I’m not saying nothing is copyrightable in the various Dungeons & Dragons books published by WotC. If that were true, there’d be no copyright to misuse. WotC would just be engaged in bad behavior that we should ignore. Rather, I’m saying that WotC has a history of leveraging their legitimate copyrights to threaten those that that republish material that is not copyrightable, inappropriately claiming ownership of that uncopyrightable material.

How Will This Play Out for All Game Designers?

If WotC is held to be committing copyright misuse based on the OGL, then the period of copyright misuse could stretch back as far as 19 years to the creation of the 3rd edition OGL. Any copyrights being misused will be unenforceable during that entire period. Moreover, the copyrights won’t be enforceable until the misuse ends. More importantly, game designers would be forced to allow republication of their stat blocks that aren’t copyrightable, which means certain types of crunch books won’t be nearly as profitable.

But this would be good for the gaming community.

By affirming that clearly uncopyrightable material can’t be withheld through the misuse of valid copyrights, the courts will force game designers to focus on what they do best: creative work. Most people with decent math skills can design a balanced game system if they’re willing and able to put in the time. Those that say otherwise are lying to protect their position in the industry. What’s hard for most people to do is to create a game world filled with people and places, entwined in complex storylines, and clearly expressed in an artistic, fun, and interesting way. Game designers will focus on, and as a result produce more, unique characters, campaign settings, and adventures. Ironically, with 5th Edition D&D, WotC has already shifted their focus in that direction, which has apparently worked out well for them because that’s what most gamers want. However, their continued insistence on threatening those who republish uncopyrightable material deserves condemnation.

WotC’s copyright misuse has spread through the industry like a poison. Even professional game designers have toed the line. They’re working with the hand they’ve been dealt, and the profit margin on games is too low for even an established company to risk a lawsuit. Other companies have created their own licenses, with some having received criticism for their efforts. Even worse, it’s extended beyond the gaming industry. When Old Spice created a harmless, whimsical Gentleman class, they received a request they include the OGL with it, which they eventually did. WotC has extended its stranglehold on the gaming industry beyond the gaming industry itself. Furthermore, WotC’s misuse could serve as inspiration to other companies to do the same in other industries, so this is even bigger than gaming.

I had a Twitter conversation recently that was helpful. My friend pointed out “Isn’t it good for RPG companies to not have fans be able to repost all their stuff? I feel like this doesn’t help the industry at all…. I am just a fan of [RPG] companies. It’s a hard business. I am all for them protecting their stuff in such a rough market.” I responded, “I agree, but the key is ‘companies,’ as opposed to ‘company.’ WotC hasn’t hurt my feelings [much]; they’ve hurt the community and the industry.” Putting aside the public interest for a moment, the industry is larger than just one company. All game designers should have an equal opportunity to carve out their own space, but WotC is preventing the industry from realizing that potential.

Will this significantly harm WotC individually? No, and WotC admits that. With the OGL and SRD5, WotC purports to give away far more material than the OSSB project does. For example, WotC gives away the goblin stat block. The OSSB project as originally written didn’t do that. WotC also gives away the creative text for the Fly spell. The OSSB project never will simply for reasons of brevity. The problem rests in the fact that WotC demands that it retain sole publication rights to material that they can’t claim, but the point is that, by WotC’s own admission, losing control of the goblin stat block or even legitimately creative text won’t hurt their market considerably. They (claim to) voluntarily do so. Moreover, their basic rules give away actual copyrightable material that appears in the Player’s Handbook, allowing players to play a full version of the game having bought absolutely nothing from WotC, yet WotC’s market for 5th edition seems to be enhanced by that, not diminished. Other RPG companies do a similar thing, even tiny ones. It’s clear from these implicit admissions that any losses suffered by WotC from the OSSB project couldn’t possibly outweigh the public’s losses (i.e., stifled creativity) if WotC’s copyright misuse goes unchecked, but also can enhance their market.

Of course, this doesn’t mean that a third party should be permitted to take bits and pieces of copyrightable material, such as the specific text of the elf racial write up in the basic rules, and publish it freely just because WotC does. WotC needs to maintain control over its intellectual property so that it can still withhold enough material to protect the marketability of its products. Multiple third parties publishing small pieces eventually adds up to the whole. Also, as discussed, the OSSB project will likely force WotC and other game designers to adapt how they produce bestiaries, and maybe how they design games. However, the OSSB isn’t taking any intellectual property that WotC owns except maybe a small amount that is inseparable from the mechanics, and WotC admits that it can adapt to that; it’s already doing so quite successfully. Their inevitable pleas for sympathy regarding my alleged immoral assault on their market share will ring hollow. In any event, it’s WotC’s own fault for being too arrogant and too greedy for too long. If they had left the OSSB project alone, parts 1 and 2 would probably never have been written, and perhaps part 3 would never have been finished and published. Moreover, the only possible impact the OSSB project could have had was a positive one. Considering the OSSB project’s footprint in the community prior to these posts, it’s unlikely even that would have been significant.

With WotC being told to stop misusing their copyrights, the damage they’ve inflicted will slowly fade away, and future damage won’t materialize. It may even save WotC’s 5th edition market from legitimate threats to their intellectual property.

This Can Also Help WotC Avoid Greater Threats

Whether the OSSB project results in litigation or not, WotC’s copyright misuse will become an issue in the near future. There’s a certain website that I won’t mention, because I don’t want them to gain any traffic. They seem to have every single RPG sourcebook in PDF format – including WotC’s – for free download. My understanding is that there are at least two other such websites, as well as some other well-known entities that are involved in alleged infringement on smaller levels. For anyone with the slightest respect for copyright law, stockpiling that many sourcebooks for that many RPGs represents a horrendous and shameless theft of RPG properties that may even be criminal. Eventually, WotC will figure out they exist, and when they sue for copyright infringement, they’ll lose. As in Lasercomb, even though this site is run by “bad guys” who are clearly infringing valid copyrights, WotC’s copyright misuse will prevent WotC from being able to enforce those copyrights. If WotC’s attorneys drop their arrogance and do as I suggest quickly, maybe they’ll be able to recover some damages from the website. Sadly, I don’t think that’s in the cards, which would be disastrous for them. Once the website wins, everyone will flock there, immediately download the PDFs before WotC can change their policies, and no one will be liable for that infringement. This could potentially “bankrupt” (so to speak) the marketability of 5th edition, causing a need to immediately publish a 6th edition far ahead of schedule. It’s critical that WotC not waste its time quibbling with me, and instead right the ship and beat these entities to the punch.

Conclusion

Since I returned to the game in 2005 after a 24-year absence, I’ve been a WotC apologist. I briefly ran a gaming convention and organized (with others) a large gaming club in the Washington, DC area. At one point, I was personally organizing events in six different gaming stores during every weekend of the month and introducing new players to the game weekly. I’m directly responsible for a relatively tiny but non-negligible number of sales of their products, having brought hundreds of new players to the game. I’ve consistently been on WotC’s side, but the OGL has always given me pause. Most of the material in this third blog post has been on my hard drive for over a decade as I’ve mulled over whether to publish it, knowing that WotC, a company that’s been a part of my life for quite a while, would be harmed by it. Some of the few people that knew this post existed as a draft have begged me to finish and publish it, but I could never bring myself to do it.

Part of the reason is that WotC was producing material that I loved, which I purchased like it was a necessity of life. The other part is that, with one exception, I’ve never met a person at WotC I didn’t like. They all have different personalities, but there’s a common thread of approachability and kindness. They’re very down to Earth and talented. I was at Winter Fantasy a few years back, and Mike Mearls, Jeremy Crawford, Greg Bilsland, and a friend of mine were getting ready to play the brand-new game, Lords of Waterdeep. Jeremy just grabbed me from the crowd and asked me if I wanted to play. I joined in, and, needless to say, got destroyed by four professional game designers, three of whom (I think) were involved in its playtesting. I was treated like an old friend for the whole game. These are good folks undeserving of ire. Their legal department, on the other hand, is a problem, and perhaps WotC’s owners are aware of that and turn a blind eye. I don’t know. All I know is that the entity known as “Wizards of the Coast, LLC” is responsible for bad behavior.

Considering that only a single attorney among many nationwide has approached me with a significant challenge to even a portion of my argument, I suspect that WotC’s attorneys understood what they were doing was copyright misuse. They must also have known that the day would eventually come when they’d poke the wrong bear. The smart thing to do would be to admit their error, apologize to the public, right the ship, and get ahead of a much more serious threat than I could ever be. The question is whether their arrogance and stubbornness will outweigh their intelligence. The ball is in their court, and I hope by now that both they and you realize this is a lot bigger than the ability to publish a few stat blocks.

WotC has threatened me, and I expect them to do so again, meaning I, and anyone interested in the OSSBs, and many others in other contexts, have suffered tangible harm. The question now is what I’m going to do about it. I have several options:

  1. Walk away. Don’t republish and instead allow WotC to continue their practices. Never once have I considered this possibility.
  2. Republish the OSSBs as they were originally intended to be published. That is, publish only those stat blocks that needed the one-stop treatment, providing the mechanics for spells that the monsters could cast, innately or otherwise. This was all the project was ever intended to be, and because it made the game more accessible, it’s impact on the game could only be a net positive.
  3. Republish the OSSBs but include all WotC stat blocks, including an Access database with all that data within it so that anyone can create stat blocks as they see fit (as well as verify my math from part 2). Such publication is legal but doing so in a way that hurts WotC’s sales would be just deserts for a company that responded to my legal behavior with an arrogant threat.
  4. Sue WotC. Two of the five federal appellate courts that have recognized copyright misuse as a defense also allow it as an affirmative cause of action. At least one person online claimed that I had an obligation to incur as much as $500,000 in billable legal hours because otherwise I was a “cop out.” While that accusation is unfair, it would fix the problem once and for all, and I’m already getting some help from experienced litigators in that regard.

The following paragraph has been rewritten multiple times over for each of those options except the first one. I wasn’t sure how I wanted to proceed, so I was prepared in any of these scenarios.

I’m going with option #2. I’m republishing the one-stop stat blocks as they were originally intended: An expansion of a subset of the stat blocks designed solely to make the game more accessible to certain DMs. I’m choosing this over the other options because my intent has always been to help all parties involved, not hurt any of them, and that’s what option #2 will do. I’m not seeking revenge or some notion of “justice”; I just want to publish public domain material that will help the community by filling a gap that, for some odd reason, WotC won’t fill themselves. If WotC’s legal department arrogantly and stupidly wants to sue me, that’s their call. They know my arguments, so they know what they’re getting into, and if they shoot themselves in the feet, that’s on them. I don’t need to make an example of them, but nothing will change unless I’m serious about the public’s rights, so I’m fully prepared to make these arguments in court (as well as arguments for cancellation of two of their trademarks for non-enforcement), and will scorch the Earth on which they stand if forced to do so. This is a rare opportunity for the courts to correct a problem in the industry, and it would have positive effects on other industries as well. I have a feeling that the court will jump at the chance to rule in my favor. However, there’s no pot of gold at the end of this rainbow. If I win, I won’t even see a $20 judgment, which is why no one ever pursues such a case. Accordingly, I’ve set up a GoFundMe campaign to finance the process. It’s still not in any search engines, not even GoFundMe’s search routine itself, so you can’t find it unless I point you to it or you take a remarkably good guess. If WotC sues me***, I’ll make the GoFundMe visible, place a litigator on retainer to monitor my legal work (I haven’t litigated in a while) or actually do the work (depending on how much I raise), and then switch to option #3, legally republishing all WotC stat blocks and the database. It shouldn’t have to come to this, but that’s not my call.

As expansive an industry as gaming is, it could be a whole lot better, and it’s WotC’s fault that it isn’t.

Thank you for taking the time to read and criticize these posts. I’m making some changes to the OSSBs that have nothing to do with legal issues. Once they’re ready, I’ll publish them as a separate blog post. This should give WotC plenty of time to decide if and how they want to respond.

*** If you’re interested in helping with any lawsuit that may occur, please share your negative interactions with WotC via email. This should include threats of any sort from WotC for publication of any of their work, though most likely only threats related to 3rd and 5th edition Dungeons & Dragons will be relevant. Also consider contributing to my GoFundMe to finance the suit, which I will publish if and when needed. Intellectual property-based litigation can easily carry a six-figure price tag. My own work will mitigate those costs to a large extent, but I’d prefer to retain litigation counsel to assist. You all know what they say about an attorney who represents himself.