Wednesday, August 11, 2010

I Can't Believe I'm Rooting for WOTC to Quickly Crush Someone Legally...

I'm always ready to stir crap up and have a fight, especially on this topic, which I was arguing with Rob Repp from T$R in 1994 on USENET over. I'm also a lawyer, though not an IP lawyer. I have to say, to pick this fight in this way is stupid. If WOTC didn't go after this guy, it would set a bad precedent. They almost HAVE to. It seems to me to clearly violate the OGL.

Hopefully a C&D letter works. If it has to go to court, then the ripple effects of some idiot judge's opinion might be bad. You never know what a judge is going to say or do. Thankfully, I think WOTC's lawyers know this as well, so they will try to bury this guy fast and get it over with out of court, likely by attacking his means of distribution and payment, if the C&D letter doesn't work.

I can't believe I'm rooting for WOTC to quickly crush someone legally for a position of theirs for which I despise them.

But the potential collateral damage could be too great for the rest of the OSR publishers, whether through court decision, or due to some weird internal corporate dynamic, where we wake the sleeping dragon and it lashes out indiscriminately at everyone.


  1. Yep, it's like pissing on the third rail... nothing good can come of it.

    Of course, it may become a collectible in the future, but I think I'll pass on this one.

  2. I was wondering if you were going to weigh in on this one...

    I had to buy a copy, though; this has the makings of being another Silver Princess.

  3. The collateral damage would be....I can't play D&D anymore? I have all the books I'll ever need right here. You mean we might have to go back to giving our friends photocopied pages, hand drawn maps, and crappily illustrated modules we did ourselves using Microsoft Publisher? No matter what WOTC does, they can't "unmake" Labyrinth Lord, Swords & Wizardry, or Pathfinder anymore than they can "unmake" all those D&D pdfs by stopping distribution of them legally.

    It's kinda funny to see all the old down and dirty old schoolers go "corporate".

  4. BTW I agree with Joesph; see my latest blogpost. Brilliant marketing no matter what the outcome, and as a bonus this could be the next Orange B3....

  5. mike, I don't see it as going corporate, unless following the OGL is going corporate.

    All the games you mention made sure they followed the letter of the law... they'll have no issues.

    Still, who needs negative attention to this corner of the hobby?

  6. Something you may not know about certain "landmark" court cases, is that they are carefully chosen for their fact pattern, the jurisdiction it would be heard in, the makeup of the appellate court, and a million other things and factors, studied by legal experts and scholars, sometimes for years, before the case is even brought.

    If the court's decision has the potential to set a precedent, all parties to the matter want to control the outcome and the scope of the decision in every possible way they can.

    That's what I mean when I say it is stupid to pick this fight in this way. It's a loser of a case.

    While the collateral damage may not affect your game or torrents or any of that sort of sharing, in my opinion if it puts a chilling effect on people publishing their own material to share with others, then its a bad play to make.

  7. "Going corporate" was referring to the idea that we need any sort of formal, by the book, slick publications anyway to call ourselves the OSR and publish home made material. So worrying about what one company (really, just one individual) does seems quite overly dramatic. If ONE guy can bring everything crashing down then it wasn't on a very firm foundation to begin with, was it?

    The point is that "old school" isn't about slick publications and getting your stuff in game stores. It's about homemade crap with hand drawn maps and badly illustrated NPCs. The OSR seems to be rapidly moving away from DIY which is a pity.

  8. This is not going to go well for him. Yeah. Don't beat on a lion's head if your head it in it mouth.

  9. "While the collateral damage may not affect your game or torrents or any of that sort of sharing, in my opinion if it puts a chilling effect on people publishing their own material to share with others, then its a bad play to make."

    I somewhat see your point, but what effect does this have on 36 years of already published material? Nothing. No effect, just like the ludicrous stopping the legal sales of PDFs by WOTC had any effect on anyone wanting to get a pdf of anything ever published by TSR.

    Joe you've been around as long as I have and you know nothing stops people from publishing their own stuff. And it's about one million times easier now than it was during the Repp/T$R crap simply due to the plethora of online social networks, skype gaming, internet forums, share sites, and more. The genie is way, way out of the bottle at this point.

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  11. I do understand what you're saying Mike. My concern is that it becomes more difficult to grow the old school end of the hobby, especially with new gamers, if it's forced to go underground.

    To share a clone game with a few new people at the game table, then tell them they can put out their own stuff, compatible with those clones, but then tell them they have to do it on the sly because the legality of the clones is under attack by WOTC, well, it would put a fear in a new guy I think. They're more reluctant to publish stuff and share their ideas with the rest of the community.

    Its hard enough to attract virgin gamers to the older games. If they have to be virgin gamers, who are also into the underground scene, that makes it harder to grow this corner of the hobby.

    While you're right that you can't stop the flow of what's out there, and you can't stop new stuff from being published, WOTC can slow it down and drive it underground.

  12. Frankly if a guy is "scared" of handing me a photocopied module of his because the all powerful WOTC police are watching, he doesn't have the cajones to be at my table anyway. I'd tell him to get his scardy cat ass out of my gaming room.

    Guys were publishing monsters, treasures, magic items, modules, adventure seeds, fan fiction and more on outlets like the Greytalk Mailing List all during the 90s, with zero repercussions. Nowadays even more outlets exist. Trying to stop them, trying to drive this industry back "underground", would be like any futile task, exhausting and distracting, even to a big company like Hasbro. As a matter of fact, should they even attempt it, hundreds of NEW threats would pop up daily just to shove it in the face of "the man" (kind of like when my favorite bit torrent client has someone post the brand new 4E book with a comment that this is because they have pulled all their legit pdfs). Which is why I personally think they don't give a rat's ass. Pulling all their PDFs had NOTHING to do with anything but the fact some people were pirating brand new 4E books literally the day they were being released. The fact people were pirating books of every other edition for the fifteen years up to that didn't matter to them at all. If it's not making them any money, they don't give a damn.

    If anything at all, this drama sure says a lot about how "safe as houses" the retro-clone industry has become since they went "legit". At this point, they are about as "out there" and "cutting edge" as the Dave Matthews band....

  13. Sorry to storm your blog Joe, but I wanted to make a point I don't necessarily agree with what Die Cast did (WOTC/Hasbro is going to make the final call on that one) but I am concerned about the reaction in the OSR. Running scared shouldn't be an option; if ONE guy can bring it all to a screeching halt it's a bit of a joke after all, and I don't think the retro clone movement is that at all. I think it's going to survive this and the next guy who does something asinine like publish "The OSR book of Bitches with Jugs" just to shock and freak out everyone.

  14. No big deal, man. I understand where you're coming from. The perception that we're running scared and hanging someone out in the wind is one I can see people having. I can only speak for myself, when I say that I would rather pick and choose my battles when it comes to stuff like to better control the outcome.

    Paizo isn't going to be affected by any of this shit ever. They have enough money not to be bullied. Bullies don't go for people who can defend themselves. They do have enough power to make waves for the clones if they wanted to though.

    Like I said on Grognardia:

    I have nothing against posing the question. I posed it over a year ago here:

    I just don't want the answer to come back in some legally binding way which hurts us. Giving WOTC a softball like this which they could take to court for an easy win, allows a clueless judge to add some verbiage to said opinion, which would screw us over.

  15. I don't think Joe is talking about people photocopying material and passing it to friends - in fact, I know he's not. He's talking about people producing products for sale using the OGL.

  16. Joe I know you've discussed the negatives if this went to court and some clueless judge writes an uninformed opinion...doesn't that cut both ways? And wouldn't that be a reason for WOTC to just ignore this and hope it goes away? Or simply send a C&D letter and hope that's it? Because it appears to me they have far, far more to lose if by some 1 in a million chance the judge doesn't agree with them, or agrees with them in a way that allows publishing homebrew stuff with lots of loopholes. Just from my tiny knowledge of law firms and big corporations (have worked for both), but you never take anything for granted, and the last thing anyone ever wants to do is go to court and have a judge rule on something he has no knowledge just seems to me WOTC's play here would be to settle this quickly and quietly, or ignore it altogether.

  17. @BadMike:

    "The point is that "old school" isn't about slick publications and getting your stuff in game stores. It's about homemade crap with hand drawn maps and badly illustrated NPCs. The OSR seems to be rapidly moving away from DIY which is a pity."

    Perhaps a side point in all of the serious discussion of legal issues, but I don't buy the conflation of DIY with crappy production values. There's no reason other than lack of skill, talent, or vision that DIY products can't look good and reflect a pride in one's work. Clarity of design reflects clarity of thought, as Tufte says, and when I see ugly drawings, typos, and poor use of vector graphics software, I'm put off. My imagination doesn't want to go into that world, no matter what great ideas may be the substance of that module. DIY and "old school" don't need to be synonymous with crap, and crap doesn't need to be valorized.

  18. Brendan, I agree, and I was just making a point that there were LOTS of generic adventures and games published in the 80s and 90s without the OGL or any official stamp of approval that were perfectly functional. A big example is Rob Kuntz's four volume Maze of Zayene series, which used generic stats and had adequate if not above production values.

  19. My guess: a C&D, they stop producing, they learn from it, and then do another but the right way. They're gamers, I know them. They're creative and smart but they got excited and didn't do their homework. :(

    -- FM

  20. Some agitator you are. :( *

    *Nah, just kidding. This is so weird that I am still having a problem wrapping my brain around why anyone thought that using this IP so blatantly was a good idea.

  21. Well, you know them and I don't Frank, so I'll go with your take on it that it was a mistake rather than a publicity stunt.

    I think and hope that the C&D letter is the way it goes, and no further. If some suit decides that flagging 4e sales can be blamed on legal not doing their job and makes a fuss about it, citing to the clones as an example, someone in legal may decide to make an example of the clones. Perhaps I'm more worried than I would normally be about it, since WOTC is making an obvious play for older gamers with the new Red Box, and the older gamers are the ones most likely to play and spend money on clones and clone-related products. I don't want to see a perfect storm of corporate stupidity happen.

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    As for me, I have to say I fear that TSR can't *not* respond to this. IANAL, but my understanding is that they risk losing copyright status if they don't actively protect it.

  23. Stephan Kinsella, a U.S. IP (intellectual property) attorney, argues that IP is a false concept in his 2000 article "In Defense of Napster and Against the Second Homesteading Rule" and in his other writings.

    Property rights serve to avoid conflict over the necessarily exclusive use of tangible property. Ideas and information are not so constrained, so property rights are inapplicable to them. Information can be created, but it cannot be owned (creation is merely the rearrangment of property). Furthermore, IP laws legally trump and undermine genuine property ownership because they dictate or restrict how a property owner may legally use his property.

    As for the argument that freedom stifles innovation, Kinsella writes: "IP advocates have no proof that the marginal benefit of IP systems is greater than the cost of those systems. In fact they have no proof that there is marginal benefit at all. Studies so far tend to be inconclusive or to conclude that innovation is on net diminished by IP law."


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