Apology for TSR

Disclaimer: I am not a lawyer, but I have been a principal in a trademark cancellation lawsuit (which I won), in which I did a lot of legal research, and in which many of the issues are similar to those affecting TSR and the role-playing community. Specifically: the tolerance and encouragement by an inventor for free use of his ideas by the community of people interested - his customers - made it impossible for him to gain trademark later and to use that trademark to control me and others who rejected his efforts to remain the sole source of materials. Because, we are able to legitimately (and justifiably) call our work by the name he chose, Loglan, his stuff is less marketable as a result - we distribute our materials in a shareware-like or freeware-like manner, and our materials are as good or better than his. What has happened is GOOD for the community, and BAD for the inventor and his organization that markets his stuff. My conclusion from my own experience is that if TSR knowingly allowed unlimited unlicensed use of their trademarks, in light of their previous encouragement to people to create new materials, someone could eventually come along and do to them what I did. See the end of my post for quotes from our legal decisions supporting this opinion. This is not a question of 'right or wrong'. I believe that what I did was right and benefitted the community I am trying to serve (I'm not trying to make a living), and in the long run could have benefitted the inventor more than his policies (he isn't trying to make a living off the stuff either). If someone took advantage of TSR's laxity and made the game more-or-less public domain, the community might benefit greatly, but in this case it might destroy TSR. TSR is right to defend its interests, and we are right to try to maximize our benefits. TSR writes: >"Currently, any other distribution to the general public - in paper form or >on the net - of AD&D adventures, other TSR materials and game mechanics, >or copyrighted materials is considered unauthorized." kynn@netcom.com (Kynn Bartlett) writes: >TSR apparently has had no problem with people using material among them- >selves, or a group of their friends. However, when you make something >available to anyone with internet access, you're talking about making it >available to potentially an enormous number of people around the globe. One point that has not been made is that trademark law distinguishes between interstate and intrastate use of trademarks. TSR's trademarks are almost certain at the US (and in some cases international) level. It is probably the case that federal courts would take far more seriously a publication that crossed state boundaries (like a net posting) than it would any publication associated with your gaming group. mchance@crl.com (Michael A. Chance) writes: >Why does TSR feel it necessary to control the copyright and >distributions rights of my derivative work, when SJG doesn't? Because the law requires that a trademark owner police the trademark or lose it. That means that they are required to set conditions such that they limit and license who may use their marks. Trademark law is NOT designed to support communities of users exchanging support materials, and in fact is rather stacked against such exchange being legal. The level of policing required is such that innocent infringers get hurt (if not, why would they stop), and that means that when the infringers are also customers, there is going to be a PR problem. But the courts won't listen if you say "I didn't stop my customers from infringing my trademark because it would have been a PR problem and cost me sales." Under the law, if you distribute something interstate, that is 'interstate commerce', and use of a trademark in interstate commerce must be licensed by the trademark owner or it is illegal. If TSR knows about your action, and does not try to stop you, then someone else - a real commercial competitor - can use that failure to invalidate the trademark. TSR has been involved in legal disputes over the intellectual property rights associated with the game (Judges Guild, Mayfair, EGG a couple of times) which have shown that there ARE competitors that would take actions that could cost TSR its trademarks. Meanwhile TSR has been on the receiving end of lawsuits (Tolkien, etc.) that have shown it that there is much cost in losing such legal battles. They are thus JUSTLY paranoid - their legal expenses have probably been rather large for their size, given the number of such disputes that have become public. SJG has little to fear, unlike TSR. Who is going to bother competing with SJG with its minuscule market? Indeed, by opening up exchange through the net, SJG may have made it LESS likely that someone will enter the business of trying to make money off their products, and for them it IS free advertising since it will attract new gamers that would never have considered SJG games because they have less support material on the market than TSR does (I doubt that net.stuff will in general attract new players to TSR games that did not already know of those games). SJG's trademark, such as it is, is really not worth much if it comes to a court case, because they have allowed it to become identified with an unlicensed source (the net), but if their tactics prevent competition and expand knowledge of their games, then they win. TSR would not reduce the likelihood of competition by freeing up net usage. Big companies, or companies that dominate their market, have to defend and police their trademarks aggressively - even offensively. Little companies do not. Rather than comparing with SJG, compare with Disney, Microsoft, the Tolkien estate, IBM, Xerox, and Kleenix - companies that have a special dominating role in their field and who ARE aggressive in defending their rights. TSR has probably also been forced to take a strong stand because the violations of its trademarks on the net have been so rampant for so long. Until they were on the net, they could say they didn't know about it - they no longer can do so, so they must police - probably extra strongly BECAUSE the usage has been so prejudicial to their trademarks. >And indeed, this is probably the sole complaint I really have. I would >strongly dispute some of the claims T$R makes about what they do and do >not own the copyright to... but that is irrelevant. I would be more >than willing to post a disclaimer to anything that seems likely to irk >T$R. But the main problem is distribution. > >Why is it that T$R cannot just get a brain and say "Hey, put the >disclaimer on stuff that uses our games" and leave distribution up to >the anarchy of the Internet? Append to the disclaimer posted here some >mention that T$R does not endorse said work, and if the author offends >anyone, it's his problem... seems that removes any need to "approve" a >posting. I suspect a mere disclaimer is NOT enough to protect TSR's rights (or at least that TSR is quite sure that this is the case). There is a use/mention distinction to be considered here. Mentioning a trademark in your work and acknowledging its ownership is (probably) fine and sufficient if what you are producing/distributing would not be considered goods that would be labelled with the mark. Talking ABOUT TSR products especially if you acknowledge who owns them, enhances their rights. Distributing non-TSR stuff that could be called a 'product' is legally competing with TSR, whether you charge money for it or not. net.books and net.modules are parallels for TSR's materials. If the net becomes considered an alternate source for materials under the trademark, and TSR does not control and license such usage, the trademark legally ceases to be solely associated with the company (which is the definition of trademark). Thus, in short, what the net WANTS - the right to freely put materials up that could be called "AD&D materials" without having prior TSR approval is antithetical to what a trademark is. Acknowledging someone else's trademark, even as you use it yourself can dilute the strong association between a trademark and its owner. If there are sources for something that is labelled by a trademark other than the owner, then the public gets the idea that the company is not the SOLE source for authentic materials, which is what a trademark means. Licensing needs to be such that TSR is capable of asserting control over who does and does not use their trademarks, and blanket authorization is NOT control. >Any work that threatens T$R rights would have to be so well distributed >that it would *have* to come to the attention of Rob Repp, right? Since Rob knows of this group and that it regularly contains stuff that threatens TSR's rights, in a court of law, all such materials would be considered 'brought to the attention of TSR'. >kynn@netcom.com (Kynn Bartlett) writes: >So, unless they appoint a LegalNetRep in addition to a NetRep, >they're being contemptuous of us all? spurious@yoyo.cc.monash.edu.au (Rodney Payne) writes: >How about, a netrep with some legal knowledge, or one who is forwarding >legal knowledge from the legal department. Of course it seems >contemptuous (and remember I wrote `seeming contempt', not contempt), >especially when that netrep makes claims that are patently untrue (TSR >has to protect their copyrights or they'll lose them, for example). I don't think that is what Rob/TSR has said. They have said that they are taking this action to "protect the value of their property including copyrights and trademarks" or similar wording. If they keep the copyright but it loses its value because they lose trademark and someone comes up with a competing (and cheaper or better) version of the game, then their copyright has lost value. If they permit someone to post materials in such a way that it constrains their ability to market a similar product (because you can sue them for being derivative of YOUR ideas), then their copyrights lose value. If someone uses TSR material in a net publication that is listed or assumed to be 'freeware' or public domain (as some people incorrectly assume ALL net stuff to be), and does not acknowledge TSR's rights, then someone else may do something that is derivative of both the poster and TSR's work, and this derivativeness will be harder to determine and prove. (Someone makes a horror movie about a garbage heap with tentacles, got the idea from a net posting that did not acknowledge TSR but has never seen TSR's original material - oops, TSR may have just lost the right to make a movie about a neo-otyugh.) >Either the legal department has failed to brief him, or they've lied to >him. Either of these possibilities suggests contempt, because they >don't appear to care what information reaches the newsgroup. Far more likely: 1) They don't have the time to educate to the extent that he can talk like a legal beagle on the subject without supervision, nor to appear on the net and discuss it themselves; 2) The detailed legal arguments that you want to see are relevant to ongoing or potential legal cases. If you are trying to stop a practice you consider threatening, telling people the extent of your legal case may only serve to allow people to work around the edges of the law. 3) They may consider the net, whether correctly or not, to represent an insignificant fraction of their current market, and hence not worthy of major time commitments - indeed this is likely, since they are trying to have one person - Rob Repp, handle relationships with all of the networks at once, both at the business level and at the personal email level. A lot of smaller companies who know that the net is important to their business have much larger presences on newsgroups that are relevant to their business. 3) is self-correcting BUT TSR may not have felt able to wait until they had established such a presence before starting to police the rampant trademark (and copyright) violations that regularly have appeared here. >As to your question, yes, TSR should (and more or less already are) be >paying several salaries to this effect. If they wish to become part of >the Internet gaming community, then they should be prepared to treat it >like any other market. If they simply sat down and in one fell swoop >answered all our questions (and, in total, there are only about five), >then they could just about clear this thing up. No they wouldn't. They might satisfy YOU, but the bottom line is that the freedom of the net is not likely to be in TSR's interest as much as it can potentially hurt TSR. The vast portion of the people who have been involved in this discussion will not accept ANY answer from TSR as justifying its policies. Furthermore, this issue is not one that will go away. It is going to come up again and again, and the same arguments will be made and need to be refuted. Net.memory tends to be very short, and the community is doubling in size every year or two in any event. guy.sbd-e@rx.xerox.com (Guy Robinson) writes: >Do we really want to set a precedent where a company instructs you >to write in the products it sells and later forbids you to share these >very same creative efforts? There is precedent - my own case. There is NO doubt that the inventor of Loglan had to prevent the community from sharing freely in order to keep his trademark. I will close with quotes from the legal decisions in my case: in re Cancellation No. 18,026 US Patent and Trademark Office, Summary Judgement February, 1991. Arguably the key sentence in the decision: "There is apparently a community of persons interested in the development of the language who have conducted very active communications with one another and without exception they use the term Loglan to refer to the language, not as a trademark for the grammars and dictionaries which contain the words which make up, and information pertaining to, the construction of the language." (p6) Replace "language" by "game", and "grammars and dictionaries" by "rule books" and make corresponding other changes, and you will hopefully see the parallel with the net situation. Also "... the evidence indicates that it was not until 1985 that respondent first expressed the view that LOGLAN was its trademark. Prior to that time the term was used by Dr. Brown, respondent and others simply as the designation for the developing language, although it is reasonable to conclude that Dr. Brown and the Institute may have mistakenly believed that such use by others was in recognition of their purported proprietary rights." (p7) From US Court of Appeals for the Federal Circuit 91-1254, Decision dated 28 April 1992. "The Institute concedes that the relevant public is 'the small group of persons who have written about the language ... as well as those to whom the Loglan language has been or is being marketed' (p5)" "The fact that the consuming public would write to someone other than the Institute regarding the Loglan language indicates that third parties understand Loglan to be a generic term; this understanding did not arise solely from actions of the Language Group. (p7)" Note that for trademark purposes "generic" means roughly 'not associated with a single source - the trademark owner. The net has probably not reached this level of dilution of the identity of TSR with its trademarks, but there is clearly risk to TSR if you can find the kind of stuff normally only available in TSR products on the net. This risk is probably heightened by the mass perception that anything on the net is to some extent public domain. Note that by my reasoning the net is potentially a major threat to ANY company's trademarks if they knowingly allow unrestricted discussion of their products on the net including postings that could be seen as alternatives for the type of goods in their product line.