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Wizards' Fan Site Kit is not a fan site policy

Posted 2009-08-07 07:57:11

Apparently Wizards of the Coast has finally released something that they're calling a fan site policy. There seems to be a bunch of kerfuffle among the bloggertubes about this event. There also seems to be a lot of confusion about what this means.

My other hobby for the past 10 years has been informing myself about copyright, trade mark, and other so-called "intellectual property" laws. I'm not a lawyer, but some of the things that people find confusing about this fan site kit are pretty clear to me.

Here's the most important one, and I'm going to put it in obnoxious formatting to make it really hard to miss:

WotC has not released a fan site policy.

This thing that WotC is calling a fan site policy is a license, not a policy.

The distinction is so stark that I'm frankly surprised that Wizards has done something so boneheaded. A fan site policy is a document that serves as a statement of company policy: what the company avows to do and not do in relation to fan sites. It is merely a communication of intent, a statement of policy. (Funny that.) A fan site policy is not a legal document, but rather is a means of communicating with the fan community in order to clear up fear, uncertainty, and doubt about what fans can and can't do while they're busy fanning about on the Internet. Such a policy draws some clear lines between what a company will magnanimously allow fans to do beyond the scope of fair use, and what the company will not tolerate and will reserve the right to challenge or issue take-down notices over.

A license is a legal document. It exists to be agreed to in order to exchange rights between two parties. It has terms of acceptance, termination clauses, and explicit descriptions of the rights that the licensee will been granted by the licensor. You are bound by a license only by formally agreeing to it by taking certain actions, such as signing a document or using a particular service. The existence of a license has no meaning or influence over people who do not agree to it, and it does not change what people can legally do already without the license.

If you read the text of the Fan Site Kit, it is a license. Critically, it does not clarify what Wizards will and won't sue over which is the sole reason for having a fan site policy. What it does do is offer you some rights (the use of the copyrighted material in the kit) in exchange for being bound by the terms of the license (not writing about or doing things they forbid, which are otherwise legal).

The so-called Fan Site Kit Policy is a contract, and it bones anyone who agrees to it. Even worse, by calling it a "policy", Wizards is contributing to the confusion about fans' legal rights by making it seem like fans need to agree to this license to operate a fan site. I won't cast aspersions upon the designers and managers at Wizards of the Coast, but their legal department are a bunch of tools who know exactly what kind of deceptive shenanigans they are trying to pull with this so-called "policy".

Other stuff

There are some other confusions around the "policy" that aren't such a big deal as that huge one above.

Who owns your site

Berin Kinsman notes that it requires agreeing to the Wizards.com Term of Use, and wonders if it could be interpreted as signing over all copyright and trademark of your own site to Wizards of the Coast. This is from a reading of Section 1 (User Content), which in part reads:

By posting or submitting any text, images, designs, video, sound, code, data, lists, or other materials or information (such User-submitted content, collectively, "User Content") to or through a Site, including without limitation on any User profile page, you hereby irrevocably grant to Wizards, its affiliates and sublicensees, a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, and fully sub-licensable license, to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (in whole or in part) in any media and to incorporate the User Content into other works in any format or medium now known or later developed.

Yeah, that's pretty alarming to see attached to the terms of using Wizards' fan site kit on your own site, at first glance. However, earlier in the Terms of Use the word "Site" is specifically defined as "this website", which can only mean Wizards.com. Agreeing to the Fan Site Kit "Policy" requires agreeing to the Wizards.com Terms of Use... but I'm not sure to what end.

There's nothing in the Terms of Use that remotely applies to anything done elsewhere than Wizards.com. The only conceivable purpose to tie together the Fan Site Kit "Policy" and the Wizards.com Terms of Use is that anyone who can be construed as violating the Terms of Use while using Wizards.com (such as in the forums) could have the Fan Kit license for their own site revoked. However, they already include in the Kit "Policy" the words:

Also, we reserve the right to revoke this limited use license at any time, for any reason, and at the sole discretion of Wizards.

So they don't need any such excuse to revoke the license. Incidentally, this is the one place where they slip up and use the correct term "license" instead of the misleading and inaccurate term "policy".

Do I need to follow the policy now?

In a word, No. There is nothing in the Fan Site Kit "Policy" that is legally enforceable (or even legally meaningful) to anyone who does not agree to the license. But wait, what if you do want to agree to the license? Well, here's what that gets you:

No, seriously. That's all. The only reason to agree to and be bound by the Fan Site Kit "Policy" is if you want to use (as my wife put it) "their stupid banner" on your site. In fact, that's the only way to agree to the policy: by using their Fan Site Kit. If you don't use their Fan Site Kit, you can completely ignore the "policy".

What does Wizards ask in return for the incredible boon of using their graphics?

So, that's the sum of it.

You agree to not do some obviously bad things, and also agree to bend over backwards to say that WotC products are the bee's knees and that nothing else can be (legally) compared to them, to religiously avoid mixing your business with your fan activities, and to vow to never be a potty mouth while sprinkling fair dust (by which I mean ® and ™) liberally over your writing.

In exchange, you get to use their stupid banner.

The upshot

So… What does all this amount to? Well, Wizards of the Coast is still operating without a clarifying document of their intentions toward the fan community's activities online. They've got this… thing… that doesn't clarify what fans can expect to do without getting sued or having a copyright takedown sent to their ISP or web host.

Fans are still left in the dark as to whether their sites are OK as far as WotC is concerned, or whether the hammer is about to fall on them (and their wallets). The chilling effect of operating without a clear statement about fan sites is still going to give people pause and cause many to self-censor for fear that the wrath of Wizards may descend on them and destroy their little corner of the community in a digital apocalypse. People are still left guessing, and since eliminating that is the entire purpose of a fan site policy, that makes this move a huge fail for Wizards.

There are some good examples of fan site policies out there that we can compare this non-policy-actually-a-license thing to. Geek Related already did a good job of comparing this Thing That Should Not Be to actual, real, honest-to-goodness fansite policies, so I'm not going to duplicate that work. It's already far too late and this Public Service Announcement is already way too long, and I really should have been long since curled up in bed with my wife and my new copy of HackMaster Basic instead of trying to help to keep people informed about their rights online in the face of WotC misinformation. (Seriously, Wizards, fire your legal team. They are your albatross.[1. However, if they're actually Hasbro's legal team… I'm so, so sorry. Sucks to be you.])

Finally, don't take my word for any of this. I'm not a lawyer, right, just some guy who claims to have spent 10 years reading things on the webbernets about copyright and related stuff. Take the claims I make here and go find out about these things for yourself. I've given you a starting point, and maybe introduced some legal concepts and distinctions you weren't familiar with already, so you've got some terms you can start googling.

(Aside to trolls: There's some troll food in the beer fridge, and some nice gift bags in the foyer you can grab on the way out. That's all you're going to get though, so you can save yourself the trouble of posting. Thank you, and have a nice day.)

UPDATE: For comparison, here's how TSR's fan site policy failed back in the day. I forgot to link this yesterday.