Wizards' Fan Site Kit is not a fan site policy

written by d7, on Aug 7, 2009 12:57:11 AM.

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:

You can use the photos and text inside the Fan Site Kit.

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?

You can't use the Kit contents anywhere near non-Wizards products. No using a Kit image to illustrate an article that does a compare and contrast of the 4e PHB with, say, the Pathfinder RPG.
You can't alter the images except to resize them. Well, fair enough. That seems reasonable.
You are not allowed to discuss "non-public information". That is, you're not allowed to talk about leaked materials that Wizards didn't personally leak. This makes more sense for their Magic: the Gathering Fan Kit since they really, really don't like spoilers for their cards, but it's lame that D&D must suffers by association. (This begs the question: if the information has been leaked to the public, how can they sanely call it "non-public"?)
You can't do anything involving money. No links to your eBay listings of 3e books, no mixing a site that sells Encounter Critical novelty zappers with talking about Wizards' material, no daring to have your résumé and contact information for professional services on the same site where you talk about your Warforged Avenger's latest Daily Power. Oh, but it's OK if you have a "donate" or "tip jar" button. That's a tiny, but pleasant, surprise.
You can't confuse your readers into thinking that you are Wizards of the Coast or are endorsed by them. Also, fair enough.
You have to include a bunch of copyright notices on every page and stick ® and ™ after everything. This isn't even required by copyright and trademark law, but thanks to using their image of the PHB to illustrate your article, you too can make your blog look like a corporate press release.
You may not deep link Wizards.com files (but pages are OK). That's a dick thing to do anyway, so fair enough.
You may not make your site look like Wizards.com or like any WotC product. No making your web site look like the cover of the Monster Manual! I guess that's fair? I'm not clear on why they're afraid of this happening.
You can't sell merch with Wizards images and stuff on them. Again, this is totally fair.
You can't remix WotC videos and other non-textual media. Laaame. Don't they understand viral marketing, the grassroots, and how the Internet works in general? Oh, wait, right… (However, this is not unreasonable. It's to their own detriment in this day and age, but it is their foot to shoot.)
You may not mirror or embed their non-video/audio web material. No making a mirror of Wizards.com or embedding the defunct Map-A-Day page in a widget in your blog's sidebar. Strangely (and probably unintentionally), this also means that you may not put any of Wizards' RSS feeds in a sidebar widget on your blog. This is a good example of how being uptight and too legalistic has unintentional yet stupid consequences. Lighten up, Wizards!
You may not say bad things about Wizards and products, nor may you be obscene. Fuck that shit. (Also, you can't libel them or others, which is fair.) But really, fuck that. People swearing in their blogs are not going to do anything other than make themselves look like uncultured boors (hi!) and lose them readers (bye!). WotC is probably concerned that people talking about their products using "low-brow" words will reflect poorly on WotC and "their" community. However, the statement that you cannot "make disparaging [...] statements about Wizards and/or its products" is super-craptacular ass-destroying retardation. So, if you use their images, you cannot say a product sucks. "We know you'll keep it clean." Fuck you, Wizards! (Okay, I'm done swearing to illustrate my point. You can uncover your ears now, delicate and innocent flowers of the wonderland that is the Clean Internet.)

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.

Comments

Shell script to simulate clicking on the "don't accept" button over and over: while true ; do wget -q --referer=http://www.wizards.com/fankit/fantoolkitdnd.html http://ww2.wizards.com/company/press ; sleep 10 ; done

Comment by Fimmtiu — Aug 7, 2009 1:26:40 AM | # - re
Thanks for such a clear and indepth look at the kit.

Comment by Chris Tregenza — Aug 7, 2009 2:14:05 AM | # - re
I amend my earlier remarks. I realize, after reading your post and going back and reading the text of Wizard's "policy" that this is not a "Shoot Ourselves (WotC) in the Foot" policy. It's a license for them to play Marketing Russian Roulette with a full loaded Internet/Customer-Perception pistol. Nice. Must be the same team that came out with GSL v1.0. Except I don't know who inside WotC will carry the fight to make it better. Nice post. Thank you.

Comment by Chgowiz — Aug 7, 2009 4:32:42 AM | # - re
Do the lawyers who write this thing not even take a look at what other companies in the same market are doing? I think when you've got a good chunk of customers who will slavishly buy whatever you're selling without question, you start to get kind of lazy.

Comment by walkerp — Aug 7, 2009 5:38:20 AM | # - re
It all makes far more sense now. Poses a few more questions but at least it should help stop the kneejerk reactions to it's publication.

Comment by Bob — Aug 7, 2009 5:38:35 AM | # - re
This is by far the most fair and informative look at the whole thing. Thanks for that.

Comment by NeoWolf — Aug 7, 2009 6:45:08 AM | # - re
Excellent post. I've retweeted this on several accounts.

Comment by jonathan — Aug 7, 2009 7:24:54 AM | # - re
Very good points. And the link to my post where I specilate on the interpretation of the bit you quote me on is here: http://www.examiner.com/x-7705-Phoenix-RPG-Examiner~y2009m8d6-Wizard-of-the-Coast-releases-fan-site-toolkit-controversy

Comment by Berin Kinsman — Aug 7, 2009 8:16:40 AM | # - re
Thanks for the writeup, I've been under the impression myself that only by agreeing to these various docs do we limit ourselves, but I definitely didn't like the whole no products angle, its ridiculous for websites, particularly webcomics, to give up the right to sell shirts, caps, ebay, whatever just to use some images. >:|

Comment by Richard Mathis — Aug 7, 2009 8:27:31 AM | # - re
Whups! Thanks for the link Berin. I meant to link that after writing that section and obviously forgot. Fixed now. @Fimmtiu: I dunno, wouldn't three people running that make Wizards' server die? I mean, considering how technically inept they seem to be... [/snark] @walkerp: I'm not sure. I do wonder how much of the existing state of the art Wizards is aware of. They did act as if nothing but 3e existed with which to compare 4e when they launched it, and this seems to be similarly blinkered. Thanks, everyone else, for the comments, links, and retweets. My ultimate hope is that Wizards realises that they still need a proper, public, company policy statement about fan sites beyond this license. Maybe that's a hope in vain, but I hope nonetheless! I may not be much of a fan of 4e, but I don't want to see 4e bloggers stifled by an idiot company.

Comment by d7 — Aug 7, 2009 10:00:31 AM | # - re
d7, none of us 4e bloggers feel stifled at all by what you term an "idiot company". I certainly don't. Never once have I said to myself, "Man, I feel so lost without a fan site policy!" What you're looking for simply isn't necessary, and I'm not even sure it's something that is feasible to begin with. There are PRECIOUS few ways that you could create a fan site that isn't protected by fair use, and almost all of them involve stealing large chunks of material wholesale from WotC products. It seems, largely, that the part of the blogosphere most up in arms over the fan site policy are the ones who don't even have cause to care in the first place. The most prevalent negative sentiment seems to be, "Well, I don't like 4th Edition, BUT IF I DID I wouldn't use this license." Meanwhile, the people running 4e fan sites are keeping level heads and going about their business, with or without the license.

Comment by Scott — Aug 7, 2009 12:11:12 PM | # - re
Nice analysis and explanation.

Comment by MJ Harnish — Aug 7, 2009 2:37:01 PM | # - re
I think the kit definitely limits and takes more than it gives. That's a lot of "can'ts" in exchange for one little "can". Great post--I linked to it on several accounts earlier today.

Comment by Zachary — Aug 7, 2009 3:15:09 PM | # - re
Hey, Scott. You can smooth down your hackles. Remember: calling a bodiless legal fiction (a "corporation") names is not a personal attack on you. :) However, I'm going to chuckle at these assertions: "What you’re looking for simply isn’t necessary" Oh good. Mr Rouse will be relieved to know that everyone nagging him for a fan site policy for the last year were figments of his imagination. Also, up is down and black is white. ..."and I’m not even sure it’s something that is feasible to begin with." White Wolf, Paizo, Pinnacle, and every other game company (save Palladium, but they're "special") have a fan site policy. You should inform them of the impossibility of this. See above re: up is down. "There are PRECIOUS few ways that you could create a fan site that isn’t protected by fair use" Of course. I know this, and you are clearly smart enough to know it too. However, you're also smart enough, then, to know that fair use is a reactive defence that can be used in a court after paying through the nose for the privilege of defending yourself from a frivolous lawsuit. Most people don't bother financially ruining themselves when a corporation comes knocking with a C&D over a fan site. Most shut down, or get shut down by surprise if the corp goes straight to the hosting company. Fair use is not enough for everyone to blog with confidence (glad you're an exception), which is why fans have been demanding a policy statement. I'm not saying WotC will issue frivolous lawsuits or C&Ds, but that people will avoid doing things due to concern that WotC might. Go back and read the definition of "chilling effect". You don't personally have to feel it or observe it for it to exist. (In fact, by its nature, selection bias is a built-in misfeature of the chilling effect.) As an example of a game with the opposite of a chilling effect, there is a fan-run Savage Worlds wiki full of homebrew game rules and setting conversions. Is there something like that for 4e, and if so, are the operators going about their business confidently? (To be clear: an honest question.)

Comment by d7 — Aug 7, 2009 3:40:49 PM | # - re
Yeah, I don't buy the "IT'S A TRAP!!!" scenarios - I just think it's lame. No one really needs it and most people won't (shouldn't) use it; it punts to the GSL for meaningful contributions. But the GSL, while not awful, kinda sucks and I'm not sure I want to sign on my website (or, technically, any PDFs I might put on my website) to it.

Comment by mxyzplk — Aug 7, 2009 4:26:52 PM | # - re
d7, Just because people are clamoring for a fan site policy does not mean that one is necessary. I wasn't commenting on the impossibility of a fan site policy. I was commenting on the infeasibility of putting together a policy that actually says something along the lines of "The following is an exhaustive list of things that we will and will not sue you over," especially when dealing with a company as valuable as WotC. And yes, fair use is a defense. So is "But I agreed to this policy!" Policy or not, if ANY company wants to file suit for use of their properties you're going to have to come up with a defense. Furthermore, most of those policies include arbitrary ways in which the company can revoke your use of the policy/license (Paizo, for instance, revokes your privilege if they believe you are in the publishing business, whatever that may mean). In short, this is a lot of people getting up in arms over something that actually matters very little. Keep blogging (with confidence!) and don't use the fan site kit if you don't like it.

Comment by Scott — Aug 7, 2009 5:23:35 PM | # - re
I don't know about unfeasible. A pile of other companies seem to have managed just fine. An exhaustive list isn't nearly as hard as you make it out to be, since we have English constructions called "categories" that are useful for covering large territory. Please, just go read the link about other companies' fan site policies. The point of a fan site policy isn't to trick fans into writing about stuff so that WotC can then sue them. It's an honest expression from the company of what they are and are not concerned about. By definition, they won't sue you over the things they say they won't sue you over, which is worth a lot to fans. (It would also be a public relations nightmare if they sued someone in contradicted of a fan site policy.) The very fact that people are getting up in arms about this, and not just people who don't like 4e, is evidence that such a policy matters quite a bit, and is very much needed. (Where, by "needed", I mean "needed in order to reassure your customers that you won't sue them for doing normal fannish things", of course. I'm not talking Maslow here.)

Comment by d7 — Aug 7, 2009 5:47:18 PM | # - re
"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'." This I'm pretty skeptical about. Would legal actually write "The 'suits' in Wizards' legal department require us to tell you that Wizards Materials in the Tool Kits are for your personal Fan Site use only...", which is both (a) asinine, (b) completely off-tone for any legal agreement, and (c) wierdly refering to themselves? More likely it's WOTC public relations writing this (i.e., S. Rouse), with some random snatches of input from WOTC legal, who really don't give a crap to spend any really time on the project. That's been historically the M.O. for a few years now.

Comment by Delta — Aug 7, 2009 11:41:55 PM | # - re
I think you're right that it's a collaboration between Rouse (or some other PR person) and WotC legal. My impression on reading it was that WotC legal dictated the overall structure while the PR person tried to make it palatable, but I'm guessing as much as you are. So, you could be right that WotC upper management had the more significant role in creating this thing. Given that I'm already shouting and jumping around in the original post, though, I wanted to give them at least that benefit of the doubt. I just don't know for sure either way, and this does read to me more like translated lawyer-ese than anything else.

Comment by d7 — Aug 8, 2009 9:50:28 AM | # - re
I think we're generally on the same page (good work, btw), but I'm not asserting that PR is "WotC upper management". All signs are that this project is so no-one-gives-a-rats-ass that it fell to the very lowest guy on the totem pole to take up in his spare time.

Comment by Delta — Aug 8, 2009 10:29:15 AM | # - re
One more thing: Note that the license can't even decide what its own title is. The title says "Fan Site KIT Policy"; but internal places like paragraph 2 say, "Please note that this Fan Site Policy does not allow you to publish..." That's astonishingly dreadful for a legal document.

Comment by Delta — Aug 8, 2009 6:03:49 PM | # - re
I took it that this was a Fan Site Kit, and the Fan Site Kit Policy was a confusingly named agreement which applied to that Kit. It's not the "Fan Site Policy" bloggers have been waiting for. I believe you can use D&D game terms and trademarks in a blog post as a matter of fair use, or else newspapers wouldn't be permitted to report on companies or products whose names are trademarked. You can also get away with a lot in practice; WotC's not in the habit of suing blogs, forums or fansites, and has turned a blind eye to anything short of PDF piracy.

Comment by Jonathan Drain | D20 Source — Aug 9, 2009 9:10:19 AM | # - re
No, it certainly isn't what people have been waiting for. The common wisdom is that people can get by on fair use just fine, but there are some grey zones regarding roleplaying games and some people are operating in or near them (like Candlekeep) and they really need a policy to get WotC's intentions clear.

Comment by d7 — Aug 9, 2009 11:57:53 AM | # - re
"It’s not the 'Fan Site Policy' bloggers have been waiting for." It's not, but it asserts that it is in Paragraph 2 and other places.

Comment by Delta — Aug 10, 2009 7:42:28 AM | # - re
I think the lesson here is don't do any free work for WotC. Vote with your dollars and play another game. Free yourself of WotC. It really is quite refreshing.

Comment by Tetsubo — Aug 10, 2009 2:33:43 PM | # - re
If they just removed the inability to compare stuff to other products, removed the stupid "disparaging" thing which is buried in a random paragraph where most people won't see it (and thus it does little to prevent issues, and is dumb anyway), and removed the inability to mess around with the images, it'd be fine. But seriously, why include such stupid provisions when you have the "we can yank the license at any time for no reason" clause? Mostly, you shouldn't care about the above, and only if what they're saying is getting really bad, they're using your images to seriously promote other products (rather than comparing two things), or making images likely to give a lot of people a bad perception of D&D are you going to care, and in that case, everyone will understand why you yanked it. It seems self-defeating to me.

Comment by Titanium Dragon — Aug 10, 2009 10:18:16 PM | # - re
Important Note: You misspoke yourself when you referred to it as a "contract", d7. Technically, a license is a license -- and not a contract. There is a difference, in that (short of certain limitations regarding "inalienable" rights and other really outre stuff, or anything that a major union has opposed in court) contracts are pretty much ironclad, whereas licenses are mostly a case of "Gee, I hope I don't have to try to enforce this in court." The difference comes from the fact that licenses are distributed without explicit acceptance by the recipient, while contracts are explicitly agreed prior to any terms taking effect. Many major corporate license users (Microsoft, for instance) would certainly like licenses to be regarded as identical to contracts, but there's a greater potential for what amounts to "entrapment" in the nature of a license than that of a contract, as they are differentiated under law. Also, it's worth noting that the term "license" as used here is really shorthand for a "license document", which is (as the terms suggest) documentation of a grant of license. A grant of license, meanwhile, is a grant of privileges predicated upon a legal assumption of rights on the part of the grantor. Such grant of license may or may not be conditional, and it is generally the conditionality of a grant of license that results in a license document of the sort that is colloquially known as a "license". I am not a lawyer, this should not be regarded as legal advice, disclaimers, excuses, et cetera, et alii, ad infinitum, ad nauseam, ad ridiculum, blah, blah, blah. Don't sue me if you do something stupid based on what I said, because my words bear no claim that they're fit for any particular purpose. Argh. I loathe civil law and the disclaimers it demands.

Comment by apotheon — Aug 14, 2009 2:04:36 AM | # - re
Thanks for that correction. I did hesitate when I called it a contract, but I didn't know that there was such a vast legal difference.

Comment by d7 — Aug 14, 2009 6:19:02 PM | # - re
HELLo! I got a small comment for your "Who owns your site" section. Notice that it says "a Site" in the text you've quoted, which isn't referring to any spesific sites. A fact that can only mean that they mean any site which uses their Fan Site Kit license. So, yeah. They would own your site, and everything you put on (or through, whatever that means) it. Happy playin'!

Comment by Hellkeepa — Oct 15, 2009 6:31:36 PM | # - re
Hellkeepa, No, the preamble to the Wizards.com Terms of Use defines its legal scope as "this website", upon which the TOU are posted. Since the TOU are used on multiple different "sites" operated by WotC, in several places they use "a Site" and "the Site" interchangeably. By doing so they make it so that agreeing to the TOU for one WotC site means that you've already agreed to the Terms of Use for any WotC site that uses the same TOU. Everywhere the term "a Site" appears in the Wizards.com TOU, you have to read it as saying "a wizards.com website on which this TOU is posted." Hence, the TOU, even if you sign it to get the Fan Site Kit, does not and cannot apply to your non-WotC site.

Comment by d7 — Oct 15, 2009 8:57:39 PM | # - re
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