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I’d apologize for beating a dead horse, but it seems none of you can get enough of this stuff, so let’s look at yet another serious issue with the Open Gaming License 1.0(a) (“OGL”). I’ve never commented on this problem directly because it’s purely academic, but here it goes. Section 1(d) identifies the consideration (thing of value required in a contract) supposedly passed to the licensee (you) of the OGL as:
. . . the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and . . . any additional content clearly identified as Open Game Content by the Contributor . . . .”
You know the routine. The problem with this is that it allegedly licenses two things: 1) game mechanics that are subject of patents, and 2) material covered by a statement (which could be oral or written without reference to a “document”). Because Wizards of the Coast doesn’t own any patents, #1 doesn’t state consideration, and because the statement of #2 can change literally on a daily basis, it creates far too much uncertainty as to what’s being licensed on any given day.
So, what if a game designer were to secure a patent on their game system, then use the OGL to license their game? To my knowledge, no game designer has an unexpired (or expired) patent on their role-playing game system, but even if that’s true, it’s at least possible to get one. Ignoring the multitude of problems in the OGL, wouldn’t that remedy the specific issue of consideration for the game designer that holds a patent? Sure, of course it would, but the consequences would be insane. What does the OGL allow the licensee to do with the game mechanics? For that, we go to section 4.
In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
That’s it. There are no restrictions on the use of those patents. You have free rein to do as you please with all the patented subject matter the game designer owns, and you don’t have to pay them a dime for it. If this were a legitimate license and were irrevocable (as many have argued), that would render the game designer’s patents absolutely useless. Patents represent the strongest limited monopoly of any form of intellectual property, and, if commercially viable, the most valuable, and yet the OGL essentially gives them away. Is that what you’d want? I doubt it. The one thing we can all agree is granted by the license is the one thing you wouldn’t want to license to your competitors.
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 tweeted yesterday!
My dad was born 11 years after #Sherlock's creation and died 25 years before it expired. There is nothing good about a #copyright that easily outlives someone who was over a decade late for its creation. "Limited Times"? By whose standard, #Methuselah's? Copyright needs reform. https://t.co/eoYxaFS9aG
— Rob Bodine, gsllc@chirp.enworld.org or @dice.camp (@GSLLC) December 29, 2022
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.
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.
In case the tweets are ever deleted, here’s an image of them.
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’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.
Play What You Want 