Protecting IP Content
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One of the more interesting pieces of drama at the SERE convention I attended this weekend was the dissolution of the contract between White Wolf and the UK branch of the Camarilla. I don’t have details, the company legally can’t discuss them, but we had a rep from White Wolf at the convention, Kelley Barnes-Hermann, who answered some questions for us. Given the relevancy to what’s going on with Wizards of the Coast and fan sites right now, I thought I’d post something interesting she told us.
First, a little background on what happened: The UK branch and White Wolf had a contract for the game and the LARP in that country so that people could legally be part of the Camarilla fan club. I’m not sure what all is involved in such contracts, but it came up for negotiation last year in November. Last weekend, negotiations officially ended and White Wolf terminated the contract. Players in the UK can transfer to the greater world wide branch of the Club so no one is being left in the cold on this.
However, obviously, everyone wanted to know WHY the process failed. While I don’t know what the crux of the matter was, I do know she told us something I found interesting and that is very important for fans to know: If a company does not protect and defend it’s intellectual property, it loses the rights to that property. Period. White Wolf needed to protect it’s IP because, no matter how much they might like to agree with fans over the use of some of it, if they do NOT do so – they lose it.
WW couldn’t discuss details, while wanting to be as transparent as possible. And it really made me stop and think about the drama over WotC and fan sites that’s been going on the last month or so. Those readers who are all up in arms over WotC should also stop and think for a minute.
WotC may not be able to discuss them legally. WotC may choose not to discuss them based on advice from legal counsel. WotC may have loved the sites in question but had to act to prevent worse legal problems later. We just don’t KNOW. And it really, really disturbs me that people are out there jumping to conclusions about how evil and bad these companies are when all that might be happening is the law is painting them into legal corners that force them to act in ways we may dislike.
So stop and consider, YOU who are complaining so much, who have decided WotC is suddenly the worst thing since Microsoft, you don’t know everything. You probably don’t even know most of it. So chill out and relax. Enjoy the game. And quit judging things from the outside until or unless you’ve been there. Stop acting like the people who have the knee-jerk reactions against gaming and open your minds.
I think a lot of folks really overreacted to the site closings. At the same time, I think WotC is hurting itself by not having a fansite policy written up at the time I write this. Scott Rouse once said it wasn’t that big of a deal. I think its become one, fairly or no.
Amen. All of the sites in question were violating WotC’s IP (one thing I noticed is that, according to the reasons cited by Wizard’s Scott Rouse, all the sites used WotC trade dress in some way when they had no permission to do so, among other things like publishing book content), and I think that’s really all that matters. Would it be nice for them to get some guidelines out about what you can do? Yeah. But that doesn’t mean some of these violations being struck at aren’t really obvious.
Good post. Another case in point, though not really part of the RPG market, is what’s going on between Upperdeck and Konami for the Yugioh card game. Upperdeck shadily hired out other companies to produce counterfeit cards when they’re the only ones licensed to distribute the game in America. So Konami’s pulling the plug on it. The fans are up in arms against Konami for taking legal action that’s going to affect sanctioned play and distribution. I don’t play YGO anymore, but I know people who do and am eerily reminded of the situation with WotC right now.
@Zachary I agree it’s become a problem. I think a policy, if it could be clear and concise, would be a good idea. But there’s so much that can be done online that such could be truly impractical. After all, done wrong, it becomes yet one more thing for people to complain about.
@Wyatt I’m certain Konami will find another publisher and that things will continue even if there needs to be a short hiatus while problems are solved. YGO is just too popular to drop completely. I believe.
@Viriatha – You are right it could be just one more thing to complain about, but I think WotC’s lack for movement or even updates about their Fansite policy is sadly frustrating to those that care (I personally don’t since I don’t care about 4ed). It puts people in a the position that they have no idea if what they doing is going to cause them to get a letter or notification to stop something that they are doing. While I don’t fault WotC for the site closings (that’s what they thought was best for their company), I do think the lack of public disclosure to be problematic. I do get that it likely a legal reason why they didn’t but the lack of straight talk from WotC is really what gets people upset. Bad news is a little easier to take, if you know exactly why someone is doing something.
The summation “If a company does not protect and defend it’s intellectual property, it loses the rights to that property. Period.” is incorrect.
IP law divides into three basic categories, Trademark, Patent (which hardly ever applies to games) and Copyright.
Trademark is quite narrow, and specifically covers the names and logos of products and companies and to some extent their specific appearance (such as the white on red lettering and swirly font of Coca-Cola, known as “trade dress”). The purpose of Trademark law is simply to prevent confusion in the marketplace and give credit and blame where it’s due. You can’t use somebody else’s trademark because it might confuse the consumer into thinking that they’re buying from Joe Reputable Company when they’re actually buying from Frank Fly-by-night, allowing Frank to unfairly get the benefit of Joe’s reputation. And when Frank’s product is defective, they might blame Joe, harming Joe’s reputation. Some things aren’t capable of being trademarked. You can’t trademark Apple as the name of your fruit company, frex, though you can trademark it as the name of your computer company. You can actually lose a trademark if you don’t pursue violators; the word can become a common term for a type of product (this happened to aspirin and cellophane, and Xerox labors mightily to prevent it from happening to copying machines).
On the other hand, it’s well established law that you cannot prevent somebody from merely mentioning your trademark, such as to indicate compatibility between say, their brand of toner cartridges or vacuum-cleaner bags and your product, or for purposes of comparison (12 times stronger than Bounty! –that part of the law changed within our lifetimes, which is why you might remember older commercials using circumlocutions like “than the leading brand” or the old stand-by “Brand X”).
Copyright is an entirely different kettle of fish, and covers the right to copy (that is, publish and distribute) a particular work. Copyright cannot be abandoned or lost simply because you don’t pursue infringements…for one thing, you can only recover damages if there is, you know, economic damage. (Barring some statutory damages stuff written into the DMCA so that the RIAA can sue people for thousands of dollars for one song; on the other hand, there’s statutory stuff where the record companies get a cut of all blank media sold in return for making it so that personal copies, recording from the radio, mixes and sharing with a friend do not count as infringement…Canadian law, iirc, is even more generous in this regard than US law) For another, why the material is being copied matters, whether it’s for commercial purposes (generally less protected) or educational purposes (more protected) and there’s a whole category of exception called “Fair Use” so that you can’t prevent somebody from quoting a passage from your work in order to review it or comment on it, or parody it…but there’s no hard-and-fast rule about how much you can quote and still have it count as fair use. It would be an enormous waste of resources for the courts and the rest of society if you had to bring suit over every last potential infringement, everybody who quotes you and mails it to a friend, every book reviewer who quotes a paragraph of dialog, and so forth, just to establish whether something was fair use, and if it was causing you to lose money. The upshot is that copyright holders are expected to use their judgment about whether to bother over, or even encourage, certain uses of their work: they are free to sue everybody, nobody, only people they dislike, only people that are moving hundreds of unauthorized copies, etc. all without prejudicing any other action they might bring against a different infringement or even that same infringement at a different time.
Another truth of copyright law, though, is that you cannot copyright the rules of a game. It’s actually called out in the Copyright FAQ the US government maintains. The rules of a game count as an idea, and copyright exists to protect a particular formulation of an idea, the exact words and order that you write in describing the game, but not the principles, moves, scoring and so on of the game itself. WotC knows this, and it’s part of the reason they’ve larded up the rules of 4e with trademark-able terms like “Vicejaw Crocodile(TM)” or whatever to see if they can poison the rules so they can’t be described in different words without treading on the trademarks.
From what I understand, the two sites that have been mentioned were infringing on the copyrights of WotC if they were providing copies of the manuals or power cards, and WotC was perfectly within its rights to tell them to knock it off…but it’s simply not true under current law that WotC would be forced to sue them or lose their rights. They also might have been violating WotC’s trademarks; I’m a bit more dubious about that because in general a reasonable consumer would have to have been confused by the sites into thinking that they were official WotC sites and products.
IP is one topic and I agree, that actions (sadly) have to be taken to defend ‘ones property. On the other hand, it’s like bonemaster stated earlier – they simply have slept for too long a time over the remains of the gsl and any fansite policies. Actually the problem that they would lose IP is only true because there are so many legal terms lacking for the usage of it and this is what bothers me most. Most importantly to me was a site named Emass-web, an italian guy who simply provided the best character sheets available I’ve ever seen and used in my whole time back since I started rpgs. He violated IP of wizards when he started making profit with some stupid 4th edition power cards as far as I’ve read lately, but the whole service went down and I’ve seen a lot complain because of this.
– in this is still over at hasbro, not for defending their property, but for lacking any motivation in setting up licenses and policies in time.
The problem is, WotC hardly do care for what parts of the community they shut down, since they profit a lot from their own subscription service. (And that’s the point why I’m happy not to be a 4th edition monkey and stick with the pathfinder system…)
still, you’re right but there are always two sides to a story and I think the Villain
@Joshua: http://www.rpglibrary.org/articles/faqs/copyright.php Legal issues are complicated things and none of them are as simple as you portray them here.
@Lemming I think we just don’t know everything and trying to judge one side or the other is premature at best.
@Bonemaster I agree but again, we don’t know why they aren’t talking. Without being on the inside, we probably will never know. Tbh, I’m just glad I don’t play the game anyhow lol
@Viriatha: We may not know everything so it makes discussion problematic due to a lack of tangible facts until someone at WoTC; it also makes any kind of publication without litigation similarly problematic if there are no clear guidelines as to why breaches are taking place.
WoTC created the GSL for D&D back in June 2008. Those of you don’t know about it go here. You may find it an interesting read especially as it was updated today.
That Wizards don’t consider notifying the community outside their own forums or DDI about shifts in GSL status is an interesting point – yes it’s their ball; whether this is protection of their IP or inertia is down to individual interpretation and variance in mileage.
Point: Ema’s site was in breach for charging on the powers cards because he charged for an item that contained a significant portion of original documents. It may be prudent therefore for content creators to remember the following two points:
1. If you’re going to charge, make it significantly original.
2. If you’re going to quote significant portions, don’t charge for it.
The GSL FAQ (page 3) specifies that if you’re going to publish something under GSL without a Statement of Acceptance then you’re going to be in breach of the GSL. In order to get a Statement of Acceptance you have to have a company! While websites are currently exempt and without a new fan policy, if you publish something then expect similar interest.
I am sympathetic with people wishing to protect IP – yet my sympathy gets thin when no tangible evidence of a fansite policy exists nine months after the GSL is provided other than it’s in development. The Internet should be no surprise; it’s not like D&D hasn’t been an influence on it and WoTC have no interest in delivering content on it.
I get a bit impatient when Wizards close down sites on one hand and then lament a lack of interest in D&D Insider due to lack of content. Why not offer the creator the opportunity to host the content on their own site and give some recognition while reclaiming the material and IP – closing the site down only if it’s in direct competition?
And it’s not as if they didn’t have this problem two editions ago…
@satyre It is a bad situation all around. I just want people to stop and think instead of condemning the company out of hand over things they don’t even know the details of. I am certain there is sooo much more going on than we’re ever going to know.
Heck, 20-odd years after Gygax left TSR and we still don’t know the details of THAT drama.