Arguments on Fair Use

You guys REALLY gotta go buy this book. It's just amazing. Here's some info from the Fair Use section of a chapter called "Using Other Authors' Words" [Once again, I've substituted all-caps for italics.] (Section 11, P.5, "The Purpose and Character of the Use") "First, the purpose and character of your intended use must be considered in determining whether it is a fair use. The test here is to see whether the subsequent work merely serves as a substitute for the original or "instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." (CAMPBELL V. ACUFF-ROSE MUSIC, INC.) The Supreme Court calls such a work transformative. This is a very significant factor. The more transformative a work, the less important are the other fair use factors, such as commercialism, that may weigh against a finding of fair use. Why should this be? It is because the goal of copyright to promote human knowledge is furthered by the creation of transformative works. "Such works thus lie at the heart of the fair use doctrine's guarantee of a breathing space within the confines of copyright." (CAMPBELL V. ACUFF-ROSE MUSIC, INC.) Anyone want to take a guess at HOW transformative a module is of the rules system? There are lots of other interesting things in this chapter, such as a consideration of the nature of the prior work, the amount and substantiality of the portion of the work used, and the effect of the use on the market for THE PRIOR WORK. (My emphasis added. This is a point I've been making for weeks, that how many modules TSR publishes is irrelevant to the issue of how our modules impact the DMG, if that's all we used to create them.) I may post another couple of quotes later, but in the spirit of fair use, I want to encourage all of you to go out and get this book. You can use my references as pointers to particularly relevant spots, though I STRONGLY recommend you read the whole thing. It's a REAL education..... Come to think of it, maybe I should send a copy to TSR's corporate counsel as a Christmas present. :)

Jeff, your quotations on Fair Use are exactly correct, except that you fail to mention that Fair Use is only an affirmative defense to infringement -- that is, it's only something that gets invoked once an infringement has been established. In other words, after weeks of claiming that TSR has no copyright, and that net-authors have not infringed them, you're now admitting that TSR /does/ have a valid copyright, that infringement /has/ occurred, and that the net-authors are simply legally excused for what they've done. (Think about it like Justifiable Homicide; you don't have to justify it unless you're admitting that you killed someone.) As to whether it's valid, that's a tough call for a layman, because it's often a tough call for the courts. There's no hard-and-fast rule on Fair Use, just several factors that are used as guidelines in weighing the appropriateness of infringement. As you noted, the effect on the copyright holder's market is one of them, and in fact, courts often regard this as the most important one (if you're not really causing a person damage, then it's hardly to claim that the use is "unfair.") So what's TSR's market here? Well, it's got its own fully licensed computer network sites (AOL's Neverwinter Nights, GEnie's Official TSR Roundtable), and made it clear in all of its original internet announcements that it plans on starting its own fully-licensed FTP sites on the Internet. It's pretty clear that widespread use of its copyrights outside of those areas would have an adverse effect on the market for those licensed areas, and thus go a long way toward defeating the notion of Fair Use.

Except that in order to be infringing it must have an economic impact ON THE WORK THAT YOU CLAIM WAS INFRINGED. That it impacts other activities, like selling monsters through AOL, is irrelevant. According to Fishman, the only works that can be considered when considering economic impact, are the original work and its derivatives. Really, this goes back to the same issue: Are modules, monsters, etc. derivative works of the DMG? As they copy no EXPRESSION from the DMG, and can in no way be used INSTEAD of the DMG, it's pretty clear that they aren't.

Actually, no, you'll want to go back and ask Mr. Fishman about this again. To be infringing, you must copy someone else's protected work in a substantially similar way. Whether it has an economic impact is entirely outside the question of infringement. What I think you're unsuccessfully trying to say is that for Fair Use to be disqualified, you need an economic impact. That's not true in two ways: The first is that Fair Use is an "affirmative defense" -- that means it's up to the defendant to prove it, not up to the plaintiff to disqualify it. The second is that economic impact is not the only element of fair use, it's one of four elements, though it is the most important. And, again, you're defectively analyzing the facts. As Mr. Fishman notes, "The only works that can be considered when considering economic impact are the original work and its derivatives." For heaven's sake, aren't you talking about the AD&D rulebooks (the "original work") and its derivatives (electronic versions of those works) right there? Aren't you arguing against what you're claiming is your most important point?