Jeff's Book Report

From: jeffpk@netcom.com (Jeff Kesselman) Subject: TSR: Some REAL legal info (and a book report) Date: Sat, 17 Dec 1994 01:40:18 GMT
This is a combination mini book review along with some notes on things I've learned so far: The Copyright Handbook, 2nd Ed. By Attorney Stephen Fishman Published by Nolo Press, Berkeley CA ISBN 0-87337-241-7 This is a AWESOME book. Steve Fishman has a remarkable knack for writing legal information in a simple, straight-forward, highly-informative style. I STRONGLY recommend anyone interested in their intellectual property rights in general, or the TSR issue in specific, read this book! Unfortunately, there is SO much that pertains in this book that I couldn't possibly quote it all without infringing STEVE'S rights, but let me give you some highlights of things I've learned: I) The Purpose of Copyright The Copyright laws were provided for in the constitution for very specific reasons. Contrary to popular belief this has nothing to do with a God given right to make a profit. Understanding where the impetus for the laws comes from helps in understanding the laws themselves. The following quotes are enlightening: (Section 2, page 2, on why a copyright law was created) "The Founding Fathers recognized that everyone would benefit if creative people were encouraged to create new intellectual and artistic works. When the United States Constitution was written in 1787, the framers took care to include a copyright clause (article I, section 8) stating that "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited times to the Authors... the exclusive Right to their... writings." (Note, the ellipses above are part of Steve's writings, NOT inserted by me.) (Section 2, page 4, pertaining to fair use) "To foster the advancement of the arts and sciences, there must be a free flow of information and ideas. If no one could quote from a protected work without the author's permission (which could be withheld or given only upon payment of a fee), the free flow of ideas would be stopped dead. To avoid this a fair use exception to the author's copyright rights was created..." The point to get out of this is that the laws were designed to ENCOURAGE the development and publication of new works. Where they interfere with that, it's worth asking if the laws are being properly interpreted. II) Copyright and New Terminology Not only are individual bits of terminology well below the accepted threshold of significance for infringement, but new terminology IMMEDIATELY becomes part of the English language, and thus public domain: (Section 6, p. 8, "What Copyright doesn't protect") "Individual words are always in the public domain, even if they are invented by a particular person. Names (whether of individuals, products, or business organizations or groups), titles, slogans, or other short phrases (for example. "I'd walk a mile for a Camel" and "No Smoking") are not protected by copyright law even if they are highly creative, novel, or distinctive..." He goes on to say that these things MAY be trademarked, but that's a whole different ball of wax. That seems to definitively KILL the argument that "Hit Points" and such are covered by TSR's copyrights. III) Blank Forms He says that blank forms as such are NOT protected by copyright. HOWEVER, forms that embody copyrightable information (which means text, remember ideas are NOT copyrightable) are. He gives a long list of examples, and I'll just refer you all to his book for the details (Section 6, p. 9, "What copyright does not protect"). The germane issue to us seems to be that a raw character sheet with places to record values is not covered under copyright. HOWEVER one of those sheets that contain rules information, like you see in the back of the Complete 's Handbook series probably are to the extent that you cannot reproduce those snippets of rules text. IV) Derivative Work Steve devotes an entire sub-heading under his Adaptions and Compilations chapter to this issue. To get a REALLY clear understanding of what it REALLY means to be a derivative work, I recommend everyone read this. Some key passages are reproduced below, though, to get you thinking: [In the quote below, all-caps has been substituted in places where Steve uses italics. -- jk] (Section 7, p. 2, "Derivative Works") "Of course, all works are derivative to some extent. As Kipling declared, all authors "take" from each other. Authorship is more often then not a process of translation and recombination of previously existing ideas, facts and other elements. However, a work is derivative for copyright purposes only if its author has taken a SUBSTANTIAL amount of a previously existing work's EXPRESSION. As discussed in detail in Chapter 6, WHAT COPYRIGHT PROTECTS, copyright only protects an author's expression: the words she uses and the selection and arrangement of her material, if original. Thus a new book on the impact of a medium on society would be derivative of THE MEDIUM IS THE MESSAGE only if its author copied or paraphrased substantial portions of the words McLuhan used to express his ideas." He goes on to give many examples of derivative works, all of which are CLEARLY MUCH more directly derived from the original expression then, for example, a module is from the DMG (UNLESS that module copied magic item text straight out of the DMG. THAT would constitute an infringement, most likely.) SUMMATION: IMO it is IMPOSSIBLE to read this book without SERIOUSLY questioning most of TSR's claims against our own works. I STRONGLY recommend that ANYONE who wants to debate these claims first get and read this book. [DISCLAIMER: I am not a lawyer, and none of my comments should be construed as legal advice.] [NOTE: Mr. Fishman, however, IS a lawyer, and I'm sure he'd recommend you read his entire book before taking any actions on the info I've excerpted here.]