Tennis Balls & "They Told Us To"

Let me preface this by saying I'm not a lawyer, and that I'm opening this for discussion only. It is not to be construed as legal advice. That having been said, there is a VERY interesting issue with regard to the use of role-play game material on-line. While it is definitely true that TSR controls their trademarks and can prevent someone else from trading on them, the status of game materials used on-line is not at ALL clear cut. The issue here is that game materials are in actuality NOT literature, but are closer in use to sporting equipment. We buy them in order to use them in the practice of playing a game. A gymnasium, for instance, is perfectly within its rights to buy Spalding tennis balls and charge people for use of the balls and their courts. Similarly, it would seem perfectly reasonable and within the 'fair use doctrine' for a game club to charge for the space used to play the game, or even pay professional judges to run a game. These judges COULD use programs that assist their judging. Now a 'virtual space' such as an on-line system is most inherently like such a gaming club. Just as the Judge can use programs to assist his running the game, the on-line system could have built in support to help the on-line judges. The key issue in 'fair-use' is whether that use meets the normal use of the product, or whether it deprives the authors of revenue that would normally be accrued from such a use. The way it seems to me, as long as the players are not in any way encouraged by the on-line system NOT to buy their own books, automation of the Judging tasks in part or in full would fall under fair use. In practice, it would seem to me one could write a fully automated game that used AD&D rules, as long as the game did no more then a live judge would, and as long as the person writing the game owned the judges materials.

The BIG problem here, i think, is what I alluded to above. RPG materials being printed are typically considered books for Copyright purposes, and this makes sense, but only up to a point. Their use is VASTLY different from the already established categories of books. As we've seen from the Copyright article, the courts have ALREADY drawn a distinction in how Copyright applies to fiction v. non-fiction. Here we have a category that is RADICALLY different from either. As is usual when the law encounters something new (much like a program) it breaks.

You are quite correct that RPG rulebooks are a different category of material to fiction and non-fiction. For a common thrust of these rulebooks, of which the D&D Rules Encyclopedia is an example, is that the purpose of these books is to create derived works. Hence, these authorised works, which I suggest includes character sheets, DM's notes, maps, adventure and campaign detail, are implicitly sanctioned by the game system. Throughout the book it adds to the list of derivative works the GM is instructed to create. In the D&D Rules Encyclopedia it explicitly states the process of creating a character sheet, right down to writing details on paper, details which TSR appears to feel currently are an infringement of their copyright. If a book instructs someone to violate the copyright of the book itself then I would suggest that these elements of the copyright are either surrendered or the publishers are attempting some kind of enticement for the purchaser to commit illegal or unlawful acts.

Probably the latter. Based on the precedent set by 'Steal This Book', Abby Hoffman's book that advocated paying for nothing. I think stealing it was still considered illegal. In any case, so many people did that it was pulled from the shelves! ;) I agree with you otherwise 100%, and i think the examples from the books themselves telling you to derive, along with TSR having actually published derivative materials for other systems themselves in The Dragon, speaks pretty strongly.

Tyler Bannister (tbannist@napier.uwaterloo.ca) wrote: : I find it completely unbelievable that ANY company will sue people for : using their products... If I use one of my TSR games, use it as they describe to produce a piece of writing that is 95% original text, with some references to TSR books and using form-like layouts to express original monsters, then TSR have stated that unless it is placed under their control, albeit via a proxy, then they will sue if it is placed on an FTP site. Therefore their 1994 announcement affects even my 1979 dungeons upon which I cut my teeth as DM using D&D and AD&D1.

What would a legal argument based around the principal of easements do for the on-line *DND question? Easements are based on the principle that because you didn't prevent the use of your material in a certain way from the beginning, your claim to that use is now void. Your "right" was "eased" out from under you. Arguably, TSR did more than just let the derivative/utility right slide out from underneath them. They encouraged the user to create things based on the *DND product. Now TSR did sue, and win/settle, companies distributing similar derivative works. However, they never harassed the individual, not-for-profit efforts of the gamers. So, as individual gamers, who are not producing ideas (derivative or not) for profit, how does distribution affect the status? Individuals have _always_ been allowed to produce and distribute freely. Medium was not an issue. How long have players used computers to create and distribute gaming ideas? Ever since gamers first got computers. Medium was still not an issue. How long has the Internet existed? Arguably since the DARPA days, which predates TSR's existence. So, I think there is a case for easement of TSR's right to claim electronic distribution infringement of individual creations that are not for profit. TSR is making this move too late and against the wrong people. Their own track record shows that they have given these rights to gamers in no profit situations. But, of course, I am not a lawyer.

"License" is the legal word for permission, and "implied license" means the unstated permission that a company gives you by selling you its product. For instance, a publisher that sells you a comic book is not only selling you a physical comic book (which becomes your property), it's giving you an implied license to pass the book around to your friends, sell it to collectors, and so forth, even though distribution of copyrighted material is as much a violation as copying the material. The difference, as a reasonable person might guess, is that the seller has given an "implied license", by selling it, to distribute the material. How does that apply to TSR? Well, it's certainly given an implied license to copy material from its books and use them in gaming, passing it around to your friends, and so on. What the rulebooks don't address, and no TSR/AD&D product has ever addressed or endorsed, is distributing their rules this way over computer networks or the Internet. This is where the issue of implied license comes in: They've implied (and, in fact, almost been explicit) about a license to distribute their info as part of face-to-face gaming; they've /never/ implied that you could distribute the info by way of mass postings to public computer networks accessed by millions of people a day. In fact, even though they don't need to, they've implied /against/ that, since the only time TSR mentions computer networks is when they talk about AOL Neverwinter Nights, GEnie's Official TSR Roundtable and so on. In other words, they've only ever referred to computer network locations that have an explicit license to distribute their copyrighted stuff. Because of that, not only does a license to the general gamer not exist, but one cannot even be implied.