Once More for Those in the Back . . . . @delverpg @InsideTheMagic #MCU #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

Note: This post was written almost two weeks ago, but last Thursday night, this topic came up again with my friend, Stephen Radney-MacFarland. It’s an issue that just won’t die, especially in the gaming industry because of WotC’s ridiculous OGL claims.

I read two online posts in as many days making a persistent claim that continues to astound and annoy me. One article here.

Let me make this clear once again: You can’t copyright a single word.

Yeah, that even includes supercalifragilisticexpialidocious. The music can be copyrighted, and the lyrics as a whole can be copyrighted, but not that one word. You may trademark a single word, but the protection for trademarks is different. There’s a lot more flexibility when it comes to using a word that’s trademarked.

I completely understand that you don’t understand copyright law. That’s no crime; it’s complicated. However, if you don’t, you should be asking questions, not making authoritative statements on the issue. I don’t know the first thing about performing brain surgery. I’m not ashamed of that, nor should I be, but the day I give advice on how to perform it, please call me out for those ignorant ramblings.

If you’re making an argument relying on the copyrightability of a single word, name, or title, your argument is legally and logically invalid. If your conclusion is correct anyway, it’s mere coincidence.

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Resets Within the System #RPG #DnD #ADnD

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As I’m continuing my data entry of 1e monsters into my database, I relearned a rule I don’t ever recall from my 1e days: Magic resistance isn’t a constant. A monster’s magic resistance is calculated based on an 11th-level caster, adding/subtracting 5% for each caster level below/above 11th. For example, if a monster’s magic resistance is 50%, then a 10th-level caster has only a 45% chance of piercing it, whereas a 12th-level caster has a 55% chance of piercing it. Once again, this sent me down a rabbit hole, though a shallow one.

First, some obvious context. There are a lot of conditions or effects you can place on an enemy creature. These effects become available at various character levels throughout the game, getting progressively more problematic (interesting) as one progresses in level. If you give a low-level character too powerful of an arsenal, it makes the game boring because 1) it’s too easy at lower levels, or 2) if the monsters also get that same arsenal, you run out of effects to earn, and the game becomes the same for far too long during the adventuring life of your characters. Put another way, your 20-level system could have a sweet spot from levels 1-5, with levels 6-20 being identical. I’m sure this is obvious to everyone. Basic stuff.

Here’s where all of this took me. Going beyond 1e, other editions made it a lot easier, for example, to make saves. Save bonuses continued to go up, but certain abilities screwed with that system. For example, in 4e characters might eventually gain the ability to save at the start of their turn rather than the end. One response that undid the value of that ability was that some high-level characters couldn’t be hit by low-level characters no matter the attacker’s to hit modifier, weapon, or d20 roll. That was simply a feature of the NPC.

Magic resistance is a simple, open, uniform, and thus elegant way to implement this. It was a way of resetting the system when characters got to be a certain level. Monster’s still got saves, but a lot of high level spells didn’t grant saves. No worries. The monsters remained a challenge because they didn’t need a save. Magic resistance gave them a secondary sort of save. Another example that wasn’t developed this way, but should have been, was the hellfire created by 3.5e’s Mestopholes. It was fire that penetrated fire resistance, and it was said to worry Asmodeus greatly (see Fiendish Codex II: Tyrants of the Nine Hells). Something like that could have, again, more elegantly been used to reset the bloated system of resistances while still keeping things interesting. Granted, this would require a subtle touch, but 1e magic resistance didn’t piss off the masses, did it? The tiers of 4e (i.e., heroic, paragon, and epic corresponding to 10-level ranges) were perfect for such periodic adjustments. Unfortunately, the desire of game designers to hide their mechanics prevents such elegant mechanics, resulting in unnecessary bloat and math at the table.

Game designers should focus on their characters, campaign settings, and adventures. Mechanics should be streamlined.

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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, jackasses?)

Balancing the Negatives #RPG #DnD #ADnD

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That’s a weird title, I know, but it relates to something that’s bugged me about what appears to be a universal approach to game design. It manifests in two general ways.

“Damage Type” Magic Items

What could be cooler than a flaming sword, right? It’s a sword made of metal but is on fire. That’s great. It’s also an appropriate item for a weapon-using character advancing to an appropriate level. Except that it isn’t. It’s actually a curse. If you have a +1 longsword that does 1d8+1 damage, and I have a +1 flaming weapon that does 1d8+1 fire damage, in most cases, we have the same chance of doing the same damage. However, when we face a fire giant, you’re still doing 1d8+1 damage, and I’m doing 0 damage unless I pull out my non-magical dagger. All my fire damage is negated by the fire giant’s resistance. But hey, that’s okay. When we face a frost giant, you’ll still be doing 1d8+1 damage, but I’ll be doing double damage (2d8+2) damage, right? Right? Well, no. Against the frost giant, we’ll both be doing 1d8+1 damage because frost giants inexplicably aren’t vulnerable to fire damage. From a logical perspective (i.e., flavor), it makes sense that they would be, and from a gaming perspective (i.e., having fun), it would be an appropriate trade off considering that fire giants nerf me. However, I rarely see vulnerabilities in monsters when in fact every single resistance a monster has should always be countered by a meaningful vulnerability. That would appeal to both logic (flavor) and game theory (fun).

The pretentious among us (no judgments; that’s me too) may respond that it doesn’t necessarily make you weaker; it just holds you in place. But that’s the same thing for all intents and purposes. In 4e, a +x magic weapon would do an extra xd6 damage, but for a fire weapon, that extra damage would be fire damage. So, the fire weapon wouldn’t make you weaker than you already are, but it would make you weaker than what you should be. At a given level, if you’re expected to have a +2 weapon, then eliminating your extra 2d6 of damage against fire giants is effectively the same thing as weakening you when facing those monsters. You’re weaker than your contemporaries, which means you’re far better off selling the flaming sword than keeping it. In any event, it’s no reward to find one.

I know that curses can be fun, at least for old-school D&D players, but the flaming sword isn’t meant to be a curse, so it shouldn’t be. Yet it is. Consistently. Why? Even in 4e where vulnerabilities were more common than any other game I played, they were still relatively rare, and when they existed, they didn’t balance. That is, a fire giant with resistance to fire of 10 was (of course) vulnerable to cold, but his vulnerability was only 5. Maybe the game was balanced around this discrepancy (not as far as I can tell), but even if so, all this accomplishes is to make the game more frustrating. If you adjust the math so that they could both be 10, people would feel like their found items were actual rewards for a job well done. As I’ve previously discussed, mathematical advantages and disadvantages are illusory. The real money is in doing cool things and telling a good story (the latter not being relevant here). Making yourself useless against fire giants is uncool. Making yourself insignificantly more useful against frost giants is almost as uncool (though it might mathematically come close to balance considering that you can still do a small amount of damage against the fire giant with your non-magical dagger). The boring magic items became better than a lot of the ones that would otherwise be cool.

I should know. I’m the arbiter of what’s cool.

Why do seemingly all game designers do this? It’s maddening.

The 4th Edition Invoker

Here’s another way this manifests itself, though it’s probably far less common. For those of you that never played 4e, the Invoker was a flavorful class. It was the divine equivalent of the sorcerer (c.f., Divine Soul from 3.5). That is, Invokers channeled divine energy not through research or training but through instinct. As a result, they lacked control over those energies, often resulting in self-harming feedback. This meant that, in addition to damaging the enemy, the Invoker’s attacks (usually) dazed the Invoker. Here’s a hypothetical example that demonstrates the problem. Let’s say the Rogue (a.k.a., Thief) has a 3rd-level power (that’s an “attack” in 4e) that does XdY+Z damage and on a hit immobilizes the opponent. The Invoker would also have a 3rd-level power that does XdY+Z damage and on a hit immobilizes the opponent, but then dazes the Invoker. That makes the 3rd-level Invoker weaker than the Rogue. Not just different (which is cool), but weaker (which is not). The class was always behind the curve, but there’s an easy fix for this. Change the Invoker’s power such that it also dazes the enemy in addition to the immobilization. That’s not a perfect solution – PCs are far more sensitive to conditions than NPCs – but it comes close enough for government work. It makes the flavorful self-harm worth it, and thus the class is viable. My experience is anecdotal, but I knew only one person other than myself that played an Invoker. I wouldn’t be surprised if it were among the least popular classes in 4e, and that’s probably a large part as to why.

EDIT: After discussing this on Facebook with a friend, I want to add that the 5e sorcerer’s Wild Magic in 5e technically has a chance of creating negative feedback, but the chances of that are quite rare, and the bonuses it gives in the vast majority of cases (4d10 lightning damage to up to 3 creatures within 30′!!!) is amazingly beneficial. Clearly, Wild Magic is meant to be a boon, not a bust, and it absolutely is one. No balancing feature is needed, but technically Wild Magic by itself is a balancing act, and it certainly is an exception to the problem I’m addressing. Hence, I’m not surprised that the class remains relatively popular.

I think both of these things come from the same place. Again, I ask, why do game designers seem to take this approach? It seems obvious to me that this is a flaw in game design, but I’ve never seen a game even try to get it right, let alone succeed.

Any ideas as to what they’re (you’re) thinking?

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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, jackasses?)

The Spells of Unearthed Arcana #RPG #DnD #ADnD

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I played 1e Advanced Dungeons & Dragons (“1e“) from 1977 to 1982. I received the “blue box” for Christmas 1977, but by 1982, the Satanic Panic pulled me away. I came back in 2005 (completely missing 2e and 3.0e), but by then I was wrapped up in the current edition, 3.5. Last week (when I wrote this post), the 1e Unearthed Arcana had been generating a lot of chatter over on MeWe, but because it wasn’t published until 1985, I was never aware of its existence until long after I left 1e. With my impending return to 1e, I’m creating a database of all the 1e information I can gather and have just finished the slow process of data entry on 1e Unearthed Arcana spells. Having played the 3rd, 4th, and 5th editions, it’s amazing how much iconic material is in the 1e Unearthed Arcana.

Alarm, Evard’s Black Tentacles, Heroes’ Feast, Melf’s Acid Arrow, Mordenkainen’s Magnificent Mansion, Otiluke’s Resilient Sphere, Stoneskin, and Tasha’s Uncontrollable Hideous Laughter (or their equivalents) are among many spells that are in most (or all) of the first Player’s Handbooks for later editions, but that didn’t enter 1e until Unearthed Arcana. I took those spells for granted as part of the game even though I never used them when I played 1e. So, if for no other reason, there’s no doubt that I’m going to allow Unearthed Arcana in my game.

I’ve said it before, and I’ll say it again: 1e has its problems, but there’s a ton of good in there.

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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, jackasses?)

Character Names, Copyright, and RPGs #RPG #DnD #ADnD #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

I’m designing a database for 1st Edition Dungeons & Dragons and am close to finishing the data entry on spells. This brought a copyright issue to the forefront. Characters can be copyrighted. This isn’t a controversial position. However, the name of a character is not copyrightable, and unless a name is used as a brand for your line of products, it doesn’t even receive the (much weaker) protection of trademark. So why does everyone remove proper names from spell names when referencing D&D spells?

Copyrighting a Single Word or Short Phrase

While there is no “bright line” rule stating a minimum number of words necessary to secure a copyright, it’s well settled that a short phrase is not copyrightable. Either they lack tiny amount of creativity necessary for copyright (thus likely representing independent creation) or the merger doctrine applies. A simple Google search will uncover a multitude of articles supporting this notion.

Only nothing at all is more minimal than a single word, so there’s no doubt (outside of Poland) that a single word can’t be copyrighted. But even a short phrase, such as the name of a spell, can’t be copyrighted, especially where it’s descriptive of the mechanics of the spell (mostly the case).

The Nichols Case and Copyrighting Characters

The standard for copyrighting characters comes from Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), in which the Court stated:

If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play. . . . It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.

45 F.2d 119, 121 (2d Cir. 1930). This has since become known as the “well delineated character” test.

Can a spy be protected? Of course not. What if that spy uses sex as a tool of the trade? Don’t all spies (at least in fiction) do that? How about if he’s a martini drinker? Hmm, that sounds familiar. “Shaken not stirred”? Well. . . . Eventually, we get to the specific character of James Bond, and he’s certainly a copyrighted character, but it took a bit of detail beyond his name to get there. If I created a fictional character of James Bond who was an accountant, I’d be just fine. In fact, I could even have him joke, “I’m not that James Bond.” I’m not using Ian Fleming’s James Bond, just referencing him, and to the extent James Bond is trademarked, readers will understand from context that I don’t have the endorsement of whoever currently owns the character.

The less common, “story being told” test isn’t relevant here, but in case you’re interested, see Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955) (“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”).

Elsewhere when discussing the precise boundaries of copyright as it related to plays, the Nichols Court went on to add that, “[n]obody has ever been able to fix that boundary, and nobody ever can.” Nichols at 121. That makes copyright hard, but it’s not impossible, and sometimes it’s even easy. A name cannot be protected by copyright, even within the context of a spell name of a few words.

Tenser’s Floating Disc

So why do so many of you seem to think that you’re avoiding copyright infringement by avoiding writing, “Tenser’s Floating Disc,” “Mordenkainen’s Magnificent Mansion,” and “Tasha’s Hideous Laughter”? Based solely on the text of the spell as written, can you tell who Mordenkainen is? Is Mordenkainen the wizard that wrote the spell? The wizard’s significant other, child, or pet? The name of the Wizard’s favorite watering hole anthropomorphized into the owner of a mansion? Even if the original spell as written by TSR contained the answers to such questions in sufficient detail to flesh out the character (it didn’t even try), a reproduction of the spell not including such information, but rather limited to the spell’s mechanical effects, wouldn’t infringe on the character of Mordenkainen just by using the name. The name isn’t what’s copyrighted; the combination of several traits defining the character are, but they’ve been left out.

Seriously? You think WotC can restrict use of the name, Tasha?

This is as ridiculous as, for example, using the word “Forgeborn” for “Warforged” as if WotC owns the word, “Warforged,” and that use of “Forgeborn” relieves the writer of any infringement of WotC’s text describing the species. Such a writer is focusing on the wrong thing. Think of it this way: If you think that dropping the name off of the spell cures your text of copyright infringement, then you concede my point that spell text describing the mechanical effect of a spell within the context of an RPG isn’t usually copyrightable. Great! However, you then must be thinking** that the name itself is where the copyright lies. That can’t possibly be true. It flies in the face of every knowledgeable commentator (again, outside of Poland) that’s ever addressed the issue.

** Unless, of course, you’re still under the mistaken impression that the OGL is somehow a valid contract, and that its terms, if taken seriously, wouldn’t constitute copyright misuse. But if you really want to know why that’s silly, you’ll have to read that long post.

There’s absolutely no legal reason not to use those names in spells, and it doesn’t hurt WotC at all to use them (other than perhaps robbing their arrogant legal department of their hubris). Why is this important? Because there are too many misconceptions about copyright law that have had far reaching consequences to the gaming industry and the gaming community in general. The text of the Open Gaming License and System Reference Document collectively foster this misinterpretation, and I suspect (can’t prove) that’s an intentional scam. If WotC legal gets you to focus on the word, “Tasha,” but does nothing to stop you from copying the text of the spell, then you still may be infringing whatever copyright they arguably have. If you do something that’s 100% legal later down the road, but it’s something they don’t like, they can go after you for that infringement. As I’ve discussed elsewhere, this can often lead to copyright misuse, but most gamers aren’t sophisticated or wealthy enough to hit back on those grounds. More importantly to the community as a whole, while using these names in spells is not creative on your part, your misconceptions eventually lead down the road of stifling your own creativity. The purpose of copyright is to promote creativity. When copyright law stifles creativity, its entire purpose vanishes, in which case we may as well not even have copyright.

You can’t know what you can’t do unless you also know what you can do.

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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, jackasses?)

Jurisdiction and Common Law Trademark Rights @lukegygax @TSR_games @tsrgames @Gygax_Jr @JaysonElliot @OrcishLaw #trademark #iplaw #DnD #RPG #TSR

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By now, most of you nerds must be aware of the newest incarnation of TSR (“newer TSR”). They exist despite the fact that the new TSR (ummmm, “new TSR”) hasn’t died yet. Among other well-known gaming people, Ernie Gygax serves as Executive Vice President. The idea behind the newer TSR is to recapture the magic (get it?!) of the old days of the original TSR and Advanced Dungeons & Dragons. Unfortunately, Ernie casted Dispel Magic in an interview that ruffled a lot of feathers. I’m not commenting on that. As I’ve said, this is a not a blog for political issues, matters of human rights, or nuclear war. That’s way too heavy for this blog. Besides, do you really need yet another voice in this massive choir of commenters? No, so instead I’m going to discuss an aspect of IP law that’s probably relevant to the case and many of you may not know.

Disclaimer

Okay, you knew this was coming, but it’s especially important here. This is not legal advice. All I’m doing is stating the law in the abstract. If someone, including either or the two TSRs, thinks it applies to their facts, then they can hire an attorney to get legal advice. But isn’t stating the law legal advice? No, it’s not. Anyone can state what the law is (e.g., “The speed limit is 55 mph.”). Only attorneys can apply that law to another person’s fact pattern (e.g., “The speed limit is 55 mph, you’re driving 65 mph, and therefore you’re violating the law.”). No district attorney is going to prosecute you for telling someone they’re speeding, but this is an easily digestible example to define “practice of law.” This is key here because I strongly suspect that I have only a fraction of the facts surrounding this case, so it would be impossible for me to practice law here. So I ain’t. Got it?

I’m My Own Inspiration, aka, The Tweet Heard ’round the World

This blog post was ultimately inspired by, well, me. That is, it was inspired by my response to Luke Gygax’s tweets with which many of you are familiar. Of course I was deflecting from the actual topic to the law. It’s what I do.

Trademarks and the Constitution

Oh, you thought you were going to get through this without any heavy-handed legal philosophy, didn’t you? Here’s some constitutional law, suckers.

The US Constitution defines a government of limited powers. That is, unlike the states, the federal government lacks power unless 1) the US Constitution expressly says it has that power; or 2) the federal government absolutely must have that power in order to use a power that the US Constitution expressly says it has. As for number two, nowhere does the US Constitution say that the feds have the power to enter into employment contracts, yet they must have that power in order to, for example, create the IRS and hire accountants, admin assistants, janitors, etc., because otherwise the power to collect taxes would be rendered useless.

This is not a controversial statement among lawyers, though lawyers are (believe it or not) human, so many of them sometimes ignore this principle as well because . . . okay, no pontificating. The notion that the feds lack the power to act by default seems to be lost on many people, but there it is. Accept it or deny it, but it’s 100% true.

Okay, back on point, the Arts & Sciences Clause grants the federal government the power to grant patents and copyrights, but it doesn’t mention trademarks. That’s left largely to the states. (Weird, huh? When have you ever heard of state trademarks?) However, there’s a back door that gets the feds into that game. The Commerce Clause allows the feds to regulate “interstate commerce” (i.e., business transactions that cross state lines). If a vendor in Arizona sells something to a consumer in Utah, then that sale could open the door to federal regulation even if the feds don’t otherwise have the power to stick their noses into it. So, the Lanham Act provides for federal registration of trademarks with the US Patent and Trademark Office only if the owner is using their trademark in multiple jurisdictions. If you’re using the trademark in only one state, you don’t qualify for a federal trademark. However, if you do qualify for a federal trademark, it applies across the entire United States. (Well, almost, which will be my ultimate point.)

There’s a limited exception for those with an “intent to use,” but I’ve given you enough to digest.

So what happens if you don’t register your trademark federally? As long as you’re using the trademark in commerce, you develop “common law trademark rights,” but unlike the federal trademark rights, those rights apply only in the jurisdiction or region where you’ve been using the trademark.

If you’re doing business in a large state, common law trademark rights may arise only in your local region. In that case, registering your trademark with that Secretary of State for that state would grant you trademark rights across the entire state.

Seniority of Trademarks

Okay, I’m finally approaching my point. Imagine a situation where I’m using a trademark, Bodine’s Bovines, on my cow farm in Virginia. Therefore, I have trademark rights only in Virginia. Only I can use that trademark in Virginia.

This probably ends as poorly for me as it did the MacDougals.

Next, Fred Bodine (no relation) opens a couple of cow farms, one in Utah and one in Nevada, both using the same Bodine’s Bovines trademark. He registers the trademark federally based on his use across state lines, so now he has a trademark that applies across the entire United States. Finally, I decide to open a second farm in North Carolina. I try to register my trademark federally, but Fred beat me to it, so my application is denied. Also, Fred sends me a cease-and-desist letter preventing me from using Bodine’s Bovines at all. Does he have a right to do that? In North Carolina, yes, but in Virginia, no. I opened my Virginia farm first, and even though I never registered the trademark with either the feds or even the Commonwealth of Virginia, my use in Virginia was “senior” to Fred’s use (i.e., because I used it in Virginia first). However, Fred can block me from using it outside Virginia because he registered the trademark federally before I opened the North Carolina farm.

What if instead I had a federal trademark based on prior use both in Virginia and North Carolina, let it lapse, and then Fred came along and grabbed it based on his use in Utah and Nevada? I’d still have senior rights in both Virginia and North Carolina.

Hint Hint GIFs | Tenor
Take a hint, people.

So, you can think of a federal registration as having the same effect of using the trademark in every state starting at the time you registered it. Where you got there first, you get to use it, but you’re blocked where you didn’t get there first. In a more complex case, you could imagine a patchwork of multiple, identical trademarks being used by several different companies in several jurisdictions, with one of those companies having a federal trademark covering the unclaimed jurisdictions. So, the company with the federal trademark could nevertheless be blocked from using that trademark in jurisdictions with senior users. This isn’t a far-fetched scenario, but if its mere possibility surprises you, then . . . surprise!

So, what happens next? Well, when the two parties each have something the other wants, they could strike a deal. For example, each could license the other the right to use their trademark in jurisdictions in which they’d otherwise be prevented from marketing. If both parties are on relatively equal footing, the license fee may be, I don’t know, as small as $10 per year. However, if one party doesn’t realize how much of an advantage they have or lack the funds to enforce their advantage, they may make the same deal.

Sound familiar? No? Well, too bad. I’m not getting into specific cases. 🙂

Epilogue

After completing this post, I found a relevant Twitter thread.

There’s a lot of overlap, but Orcish Law makes a few other relevant legal points and peppers in a lot more gifs. I left much of that out because I have a tendency to ramble, so I try to keep my posts as short as possible. We both included disclaimers though. It’s what we do.

If the trademark is valuable, and you can afford a lawyer, get one. Otherwise, you’ll have to either cut a bad deal or find a new trademark.

Follow me on Twitter @gsllc
Follow Luke Gygax @lukegygax
Follow the newer TSR Games @TSR_games
Follow the new TSR @tsrgames
Follow Ernie Gary Gygax, Jr. @Gygax_Jr
Follow Jayson Elliott @JaysonElliot
Follow Orcish Law @OrcishLaw

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

In case the tweets are deleted, here are images of them:

Trademark and Laches: Enforcing Your Trademark #trademark #ip

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

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.

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. Their 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.