“Limited Times” for Copyrights #iplaw #law #copyright

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I tweeted yesterday!

Okay, it was a retweet. Whatever. Don’t be a pedant. That’s my thing.

To what am I referring when I invoke Methuselah? I’ve discussed the term of a copyright before on another blog, linking to a handy flowchart, but none of that is required reading. All you need to know is that the “term” of the copyright is how long it lasts, and I’m here to argue that it lasts far too long.

Constitutional Authority

Congress’s authority to grant copyrights comes from the Arts and Sciences Clause.

[The Congress shall have Power t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Article I, Section 8, Clause 8

The Sciences and Discoveries are the subject of patents, and the Arts and Writings are the subject matter of copyright, though these terms are being used more broadly than you’d ordinarily use them. For example, a sculpture is a “writing” in this context because sculptures can be copyrighted. I’m not going to get into that. You’ll fall asleep before I get to my point.

Limited Times

My focus is on “limited Times.” What does that even mean? From who’s perspective must the term of the copyright be limited? The artist? The general public at the time of creation? Humanity in general? An ant? Depending on your choice of perspective, “limited” could be a few minutes or a few centuries, and who’s to say that one interpretation of that vague phrase is better than another? (Spoiler alert: Me; that’s who.) Unfortunately, a 7-2 majority of the Supreme Court in Eldred v. Ashcroft (2003) seems to think it’s effectively unlimited. (Methuselah; remember?) I’m here to tell you why they’ we’re dead wrong.

By the way, you don’t get to blame this on Republicans or Democrats. Justice Ginsberg wrote the majority opinion, and Justice Scalia joined her. Though the two dissenters, Justice Stevens and Breyer, would be considered “liberal” by a layman’s standard, some conservatives would have joined their dissent. Fortunately, I’m smarter than all of them.

Call me smart, right now!

First, lets dive into some Constitutional text. The clause secures rights to “author[s],” not owners, for a limited time, and that’s an important distinction. Even if you sell your copyright, you’re always its author. Look up “copyright termination” for an example as to how this distinction can play out. So, if we’ve secured rights to authors for a “limited time,” then the perspective should be that of the author, not an ant or humanity in general, and not even a purchaser of the copyright (i.e., the owner). Thus, the term of a copyright shouldn’t be designed to outlive the author itself, even if he or she has sold their copyright. Otherwise, it’s not limited from the author’s perspective.

But that’s a bit philosophical, gets complicated when dealing with corporate authors (i.e., works made for hire), and subject to (barely) reasonable disagreement, so let’s further ground ourselves with history.

The first Copyright Act was passed in 1790, one year after the Constitution was deemed to be in effect. Therefore, the same people that debated and approved of the Arts & Sciences Clause did the same for that Copyright Act, and they granted authors copyrights with a term of 14 years eligible for renewal for another fourteen only “if, at the expiration of the said term, the author or authors, or any of them, be living” (emphasis added). The 1790 legislature was trying to keep copyrights from outliving their authors, and they’re the legislature that wrote the Arts & Sciences Clause. Who better to know what they meant? Of course, you can’t provide a guarantee in this regard, because unless you murder someone, etc., you don’t know when they’ll die. The mechanism that was used was the best way possible to minimize copyrights outliving their authors in a way that could be reasonably expressed in a statute, while recognizing that people’s dependence on a copyright might also outlive the author by a bit.

By 1831, members of Congress had lost sight of the original intent of the Founders. The Copyright Act was amended to grant a term of 28 years extendable for another 14, and in 1909, the term became 28 years extendable for another 28 years. For both of those acts, Congress had dropped the requirement that the renewal couldn’t outlive the author, as their heirs could still renew the copyright. While both of these laws should have been declared unconstitutional, even they show a clear intent to keep the term short enough that most people living during the time of a copyright grant would see the work pass into the public domain. That is, even with the 1909 statute’s possible 56-year term, a copyright born during my father’s lifetime would not have outlived him, and certainly would not have outlived the majority of the general public alive at that time. If someone grew up reading Sherlock Holmes, they should have been able to write fan fiction as adults without fear of getting sued.

Mickey Mouse is a Dick

Then Disney started lobbying Congress for longer copyright terms, and all hell broke loose. The current copyright term for a human author (as opposed to a corporate author) is life of the author plus 70 years, or 70 years beyond the life of the last living author for a joint work. Based on my interpretation, life plus anything is unconstitutional, but now the term is life of the author plus another person’s lifetime. This is insane. Note well that the purpose of intellectual property law isn’t to reward authors and inventors for a job well done. That reward is just a mechanism. It’s the means by which we encourage creation and invention. The purpose, however, is to make sure that the public has access to such subject matter. We employ the mechanism to limit affordability for a while so that creators and inventors have an incentive to create and invent in the first place, but the public must eventually gain full access to it. That’s the entire point of encouraging creation and invention in the first place. However, if I write a song today, no member of the current public, or even their children’s public, will ever see it in the public domain. Again, that’s an insane interpretation of the Arts & Sciences Clause cutting against its very purpose, so it simply cannot be the correct one.

Patent Law

We also see support for my interpretation in patent law. While the term of the patent has changed, it’s still only 17 years and not extendable. Thus, my interpretation is consistent with how patents were, and still are, treated. The fact that patent term is stricter is not because their legal foundations are different — they’re both grounded in the Arts & Science Clause — but rather the fact that patents represent a stronger intellectual property monopoly than copyrights. Still, the copyright monopoly is strong enough to warrant similar treatment.

But, But, But . . . .

What about trademarks? Trademarks are probably the weakest of intellectual property monopolies, so that alone justifies their indefinite term (only as long as you’re using them in commerce). Similarly, trade secrets are indefinite, but only as long as they remain secrets. However, there’s an additional consideration as to why these two forms of IP are treated differently: They originate in state law, and the federal government can regulate them only indirectly through the application of the Commerce Clause. I’m sure you’re dozing off, so I have no intention of digressing into that discussion. Just understand that these two forms of IP aren’t subject to the “limited Times” qualifier because they don’t arise from the Arts & Sciences Clause. If you’re still awake and would like to understand this a bit better, you can read my post on how state and federal law intersect on trademarks.

So that’s it. We have a problem, and there’s nothing any of us can do about it. Nevertheless, I’ll shout it from the rooftops: Copyright needs reform.

Remember me after I’ve been put in a looney bin.

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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.

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The Curious Legality of the Aspirin Trademark @bayer #trademark #ip #aspirin #Bayer #TrademarkTuesday

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I’ve previously dispelled a common misconception between copyrights and trademarks. In summary, the “doctrine of laches” does not apply to copyrights. That is, if a copyright holder doesn’t enforce their copyright, they don’t lose the copyright. The doctrine of laches does apply to trademarks. Bayer’s Aspirin is an example of a trademark that fell prey to the doctrine of laches and was subsequently “genericized.” But there’s a legal twist to this story.

The German company, Bayer, held a patent in acetyl salicylic acid (“ASA”), and a trademark in Aspirin to identify it. The patent expired in 1917, but they continued to sell it under the brand name Aspirin, so the trademark lingered. Due to World War I, Bayer lost all its assets including its intellectual property. A new, company, bought those assets (including the trademarks “Bayer” and “Aspirin”) and continued selling ASA using the Aspirin trademark. Unfortunately, “considerably more than 220 tons” of counterfeit Aspirin flooded the U.S. market. This ASA was sold as “aspirin” throughout the general public, but with perhaps only an insignificant percentage of exceptions, manufacturing chemists, retail druggists, and physicians didn’t use or sell the infringing ASA.

In Bayer Co. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921), Bayer sued to enforce the trademark, and the result was, despite the Honorable Learned Hand’s claim, a first in the law. Here’s the relevant quote, which I’ll next explain.

The case, therefore, presents a situation in which, ignoring sporadic exceptions, the trade is divided into two classes, separated by vital differences. One, the manufacturing chemists, retail druggists, and physicians, has been educated to understand that “Aspirin” means the plaintiff’s manufacture, and has recourse to another and an intelligible name for it, actually in use among them. The other, the consumers, the plaintiff has, consciously I must assume, allowed to acquaint themselves with the drug only by the name “Aspirin,” and has not succeeded in advising that the word means the plaintiff at all. If the defendant is allowed to continue the use of the word of the first class, certainly without any condition, there is a chance that it may get customers away from the plaintiff by deception. On the other hand, if the plaintiff is allowed a monopoly of the word as against consumers, it will deprive the defendant, and the trade in general, of the right effectually to dispose of the drug by the only description which will be understood. It appears to me that the relief granted cannot in justice to either party disregard this division; each party has won, and each has lost.

Id. at 513-14.

What all of this means is that, to the general public, aspirin was no longer a trademark. Anyone could sell ASA to the general public and call it aspirin (with a small A), because to the general public, they were the same thing. However, Aspirin (with a capital A) was still a distinctive mark among manufacturing chemists, retail druggists, and physicians, because they never treated it as a generic term. As professionals in the industry, they weren’t burdened by having to call the generic drug acetyl salicylic acid (or monoaceticacidester of salicylicacid), so they continued to do so. Also, those professionals weren’t willing to trade in infringing goods, so they never did.

The net result was that the trademark was no longer applicable to the general public, but it was still valid when selling to manufacturing chemists, retail druggists, and physicians.

Weird, huh?

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WotC’s New Stat Block Format @Erik_Nowak @Wizards_DnD #copyright #DnD #RPG #5e

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I had a discussion during Winter Vantasy: The Return with Erik with respect to Wizards of the Coast’s (“WotC”) new stat block format. The new stat block has some rearranging of material, but that wasn’t the subject matter of the conversation. We were discussing the removal of spells and spell-like abilities from the new WotC stat block. Erik doesn’t like it and referenced my concerns about the complexity within the current stat block format. Erik referred to my position as “ridiculous,” but WotC’s switch proves that Erik’s view is the minority one. I didn’t have a large enough internet footprint to prove it on my own. More importantly, however, Erik understandably mischaracterized my position. I wasn’t saying that the Monster Manual got it wrong. In fact, quite the opposite. I’ve mentioned before that I think it’s the best RPG bestiary I’ve ever read. My concern is that WotC didn’t supplement it properly, then attempted to shut me down when I did.

Important Note: I’m not 100% certain that WotC’s stat blocks have been changed in the way we’re all assuming they were. I’ve seen a sample of the new format (below), but it was for a low level creature whose stat block would be simple anyway. Thus, this discussion comes from a place of partial ignorance, and I may get some things wrong. Take this all with a grain of salt.

When you look at a complex stat block (e.g., Mummy Lord), unless you have a truly eidetic or nearly eidetic memory, there’s no way you can effectively run that stat block as written, especially if the encounter is a combat encounter. There’s too much going on, and what we’ve all seen (and I actually got Erik to admit to an extent!) is that every DM just gives up and resorts to using the common spells they all know: Magic Missile, Hold Person, Fireball, Counterspell, etc., even for higher spell slots. Why? Well, first you must figure out which sourcebook contains the spell in order to look it up. If it isn’t a Player’s Handbook spell, you may not know, so you wind up searching through a couple of books before finding the correct one. Second, you must read the spell, which could take a while if it’s not one like Fly. If it were a spell like Fly, you may not have to look it up at all, which is why Fly is one of the spells to which DMs eventually resort. Something like Control Weather has far too much going on for most people to memorize. Erik is sometimes willing to do that, but there are very few players whose eyes don’t glaze over with boredom during that long process. Moreover, if you’re playing with a real-world time limit (e.g., convention play), that’s certainly not time you have to waste. At the table, the spell’s details should be right in front of your face. I don’t understand why anyone would disagree, and those with eidetic memories shouldn’t care one way or the other.

That said, in theory these stat blocks provide a framework for the culture of that creature. (In my second stat block/copyright post, I mathematically proved that WotC fails to do so, but that’s not relevant here.) So, the Monster Manual itself shouldn’t eliminate that complexity (I know; WotC can’t win with me), but rather use it as a framework for creating specific monsters within that cultural framework but suited to the encounter at hand. That last sentence is a tough read, so here’s an example. (I’m going from my memory, which is not eidetic.) The Couatl has both offensive and divination spells. If your encounter involved the Couatl using Detect Thoughts to aid in an interrogation, then you wouldn’t need the Couatl to have Shield. On the other hand, that position would be reversed if the Couatl were to engage in combat against the PCs (i.e., it would need Shield but I don’t think, from memory, Detect Thoughts would have value). The Monster Manual stat block provides you the spells a Couatl needs for all situations, but not every Couatl will appear in all situations. In fact, I doubt any will unless the Couatl is a PC, but a Couatl PC is clearly not what I’m talking about. For NPCs at the table, you need only the spells that that specific NPC will need in that specific encounter. Everything else muddies the water. However, it’s good that all situations are covered by the general stat block in the Monster Manual, because that’s what you use to build such table-based stat blocks.

So, in my ideal world, this is how WotC (or any game designer with sufficient resources) should approach their stat blocks. Make them as complex as WotC did in the Monster Manual, using only spell names as shorthand to make the stat block printable, but modify their online tools with check boxes allowing DMs to pick which spells and spell-like abilities appear on a final stat block at the table (whether in hard or soft copy). For that final stat block at the table, make sure that the spell descriptions are presented fully so that there’s no need to resort to multiple hardcopy resources to know details that are relevant to the combat, but at the same time make sure that the stat block isn’t cluttered with irrelevant details. If there are no online tools, provide one-stop stat blocks for all NPCs (as I did) as a PDF. They could also provide PDFs containing generic spell entries with coded placeholders such as, “Magic Missile, Atk: [L]+3+IntMod, . . . .” (or whatever it is), so that DMs could copy and paste them into their own stat blocks as needed. All my project did was the one part of that process that I could, which is something WotC didn’t do.

I fully appreciate that some (most?) game designers can’t do this. Online tools are a huge investment of time and resources they may not have, but some in the gaming community do. Game designers simply need to stay out of the way and allow the community to do that heavy lifting for them. On the other hand, WotC has both the time and resources to create this ideal that appeals to the most people, but they’re still getting it wrong, probably because there’s more profit in selling a new hardcopy (which I suspect will be very good nonetheless).

So yeah, WotC can’t win with me, but only because they’re choosing to lose. We’ll see how the final product shakes out.

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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 Merger Doctrine of Copyright Law #iplaw #law #copyright

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This one’s a little dry, but it’s also short.

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

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

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

The First Sale Doctrine #iplaw #law #copyright

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

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

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

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

Summary

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

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

Trademark and Laches: Enforcing Your Trademark #trademark #ip

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.