White Wolf Applying License to Indie Games

Enigma23 writes "White Wolf, Inc. has decided to enforce a licensing system upon those who run their games in their World of Darkness. Here is the full text of the license. The Licensing process will force those who have not already joined the Camarilla, White Wolf's official fan club, to pay a yearly $20 fee. They're not going to go after games that don't charge money for the event, but the wording is such that they can legally sue those who don't comply even if they only charge enough money to cover costs. The practical upshot is that technically the WW Stormtroopers could raid your house merely if everyone chips in a few quid for pizza. This is evidently doubly so if anyone in your gaming group is under the age of 18, which is against the membership policy of The Camarilla. There is a further discussion on RPG.net about the various issues involved." The BoingBoing discussion is interesting, as well.

Comments

This seems pretty silly

[cpt kangarooski]

It's a dismal failure as a trademark license, given that 1) gamers are likely only engaging in nominative uses, which are perfectly legal and desirable anyway, and 2) there doesn't seem to be a quality control and auditing system, which actually jeopardizes WW's rights. They seem to be engaging in naked licensing, which is pretty bad.

In the copyright realm, it's also pretty lousy. You can't copyright game rules (you need a patent for that), so all they can stand on is the setting. Merely playing the game doesn't involve reproduction, distribution, preparing derivative works, or actionable public display. You could argue public performance based on the setting, but I think it'd be insulated by fair use, if not estoppel.

Personally, I'd ignore the hell out of them. Of course, the d20 license is stupid too -- if you're careful, it's perfectly legal to make unauthorized modules and such for the commercial market.

Re:This seems pretty silly

[cpt kangarooski]

Yes, but it's harder.

It's not significantly harder.

And you don't get the ability to copy at-will from certain of their rulebooks

But you can copy their rules, and given the merger doctrine, you can probably closely approach their expression, at a minimum.

you don't get the feel-good sensation of contriuting to copyleft.

Sure you can -- you can still just GPL the text, or whatever.

And, to be pendatic, you're confusing the d20 System Trademark license with the OGL. The latter is the copyleft-inspired free-to-all one; the former is the one that lets you use the "d20 System" trademark.

To be more pedantic, you misspelled 'pedantic.' Also, I didn't confuse them, I conflated them. They're both pretty useless, IMO. You can write d20 compatable books without agreeing to their license, and you can use the d20 trademark to the degree that you advertise your book's compatability with their system. It's rather akin to how people are allowed to say that their software is Windows compatable, or whatever, without needing permission from MS.

(Not to mention that if you want to do MORE than modules--like, oh, make your own RPG game that's simliar to but different from D&D--the law gets a heck of a lot fuzzier.)

No. Rules are totally uncopyrightable. To protect a game rule, you need a patent. I'm only aware of one patent in the field; it's to do with Magic cards. Given that you cannot patent something 1 year after publishing it, and that there are some other limitations, it'd be difficult to get a patent for anything in the RPG field that was of import. Cost also probably plays a factor.

You can write your own d20 rulebook, or change the rules (though this will affect compatability, and thus your ability to use the d20 mark), at will.

You need only reword the rules yourself, so as to copy their idea, but not their expression of it. And where there are few viable expressions, you can probably even copy that too, due to merger.

The law's not that fuzzy.

Is this like some kind of stupid plague?

[failrate]

So, someone at White Wolf cottoned on to all of the patent and IP lawsuits going around and decided they wanted a piece of the pie. So, like I'm guessing some form of stupidity plague is pandemic in corporate offices (must be that nasty office air), like an airborne form of BSE. Otherwise, their legal department must be just an ordinary bunch of idiots.

Re:And people wonder why I don't play Storyteller.

[cpt kangarooski]

Bah. Real men play GURPS.

First Sale Doctrine

[Detritus]

They might want to look at Bobbs-Merrill Co. v. Straus, a Supreme Court decision that said that a copyright owner can't impose arbitrary restrictions on the purchaser under the guise of a license.

Re:First Sale Doctrine

[cpt kangarooski]

Kudos for referencing Bobbs-Merrill. But that's not what it says.

The Court said that copyright holders can't impose arbitrary restrictions on distribution (in the case it was a requirement that used copies be sold for a high minimum price) by virtue of their copyright.

However, the Court did leave open the possibility that there could be a contract to that effect, and numerous courts have later found that EULAs and other licenses are perfectly enforceable.

I said it before and I'll say it again

[Digital Vomit]

From the article: "In brief, White Wolf is requesting that those who wish to charge players to play White Wolf games (beyond standard fees at a convention) obtain a license to do so from us. We request this both in order to ensure we can provide a consistent level of support and play experience to those fans looking to play our games and in order to protect our rights in terms of trademark and so forth.

"Q. All I charge my players is a share of the fee the facility where we play charges us. Do I still need this license?

"A. Yes. Even though you aren't making a profit, you are still collecting and disbursing money -- money earned through the use of White Wolf games and settings."

I said it before and I'll say it again: We need to seriously fix the problems caused by the notions of "Intellectual Property" soon or it will destroy our society faster than we think. Sure something like this is unenforceable and would be laughed out of court, but not until after having financially destroyed some poor gamers.

And sooner or later some idiot judge (it seems like there are no other kinds these days) is going to side against common sense and start giving corporations the power to actually force their customers to do things like this.

I know some people out there are going to somehow take this as a pro-piracy rant, or switch into "IP makes the world go round" mode, but this kind of crap has gone way, way too far for far too long. Intellectual Property laws have to be seriously reworked. If we keep going the way we've been going for the past few decades. We're going to self destruct as not only a nation, but as a society.

Cross posting:

[Godeke]

This is what I posted over there... interested in seeing if it stays:

There are only four things that White Wolf can hang this license: Patent, Copyright, Contract Law and Trademarks.

Note... I'm not a lawyer, but I make a living off of software which means I have to deal with all of these issues all the time. That said, this isn't legal advice (if you plan on taking a legal action may I suggest you talk to your lawyer instead of using random Internet posts as your basis).

Patent: If White Wolf had a patent on the rule system they have total control over the use of the same. A quick search of the patent databases show that they own nothing of the sort, so we can discount this as a "patent license".

Copyright: Copyright covers a very limited (but powerful) set of controls. The long and short of it is that a copyright protects *replication* of a work. If a group were to recite the rulebook and fictional pieces therein, White Wolf would be within their rights to stop this from happening. However, as people in the board game industry painfully know, people *playing* your rules do not trigger copyright. (A similar thing happens in software: technically running software requires copying it into RAM... because this is required as a "fundamental step" to using the copyrighted materials this replication is permitted by law). Only patent can control game *rules* as ideas.

TSR attempted this type of control, claiming that being compatible with or working with a given rule set made something a derived work back in the bad old days. They failed miserably, except at intimidation (you can't *afford* to fight this). To exert this kind of control would be akin to writing a text book on a subject and then saying "using this knowledge is forbidden unless licensed" (assuming the knowledge was not covered by a patent, which is independent). Copyright does not give this sort of control.

In particular, the information at http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._ Straus is interesting because it shows that copyright law does *not* allow any restrictions (beyond replication) after the "first sale" of a work. The software industry has been angry for years about reselling "used" console games and rentals of the same (it cuts into profits *big-time*), but every lawsuit brought on the matter has fallen on the side of "no further restrictions beyond the first sale". The companies have tried the "you don't own this, you just license it" thing in the past will no effect... because of the doctrine of first sale. (Note, this limitation doesn't apply to big corporations who buy software in bulk: they actually sign a contract.)

Contract: That brings us to contract law. When you bought the book, you didn't sign anything, so any claims based on contract law are nonsense. Even printing a contract in the book won't work... only if you *negotiated* a contract *as equals* (i.e., you have the ability to reject terms and negotiate) and then signed the contract would the contract be binding. "Click wrap" licenses in software are on some pretty shoddy legal basis themselves and have been successfully avoided in quite a few lawsuits and this "retrofitting" of a contract onto a book is absurd to contemplate in terms of contract law.

Trademark: So that leaves us with trademark law. This seems to be what prompted the whole nonsense. Note the comment about "rights in terms of trademark and so forth"... trademark is the *only* framework that requires protection of rights to be proactive, so you can just delete "and so forth". (People who use the term "Intellectual Property" are talking about patent, copyright and trademark... there is nothing actually called "Intellectual Property" in law). However, if this is a trademark license then the whole issue can be safely bypassed by not *using* the trademarks in question. You can run a "Modern era live RPG featuring vampires"... even with White Wolf systems as the core

Re:Cross posting:

[cpt kangarooski]

The long and short of it is that a copyright protects *replication* of a work.

It covers more than that. See, e.g. 17 USC 106. If anything, they're looking at public performance, not reproduction.

(A similar thing happens in software: technically running software requires copying it into RAM... because this is required as a "fundamental step" to using the copyrighted materials this replication is permitted by law).

You shouldn't rely so much on 17 USC 117. It only applies when you own a copy of the software. Licensing it dodges the whole thing. This is one of the reasons we need to ban EULAs.

In particular, the information at http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._ Straus is interesting because it shows that copyright law does *not* allow any restrictions (beyond replication) after the "first sale" of a work. The software industry has been angry for years about reselling "used" console games and rentals of the same (it cuts into profits *big-time*), but every lawsuit brought on the matter has fallen on the side of "no further restrictions beyond the first sale". The companies have tried the "you don't own this, you just license it" thing in the past will no effect... because of the doctrine of first sale. (Note, this limitation doesn't apply to big corporations who buy software in bulk: they actually sign a contract.)

You are highly misinformed. First, you can read the first sale statute at 17 USC 109. Note the special treatment afforded to software and music. Second, Bobbs-Merrill doesn't say that you can't have EULAs that limit first sale. In fact it leaves that open. It just says that copyright by itself doesn't permit limits on first sale. AFAIK no one's used it to challenge limits built into the statute. Given that first sale was codified a year after the decision, I think it'd be a tough case. And many courts have upheld EULAs as being binding. See e.g. ProCD.

Contract: That brings us to contract law. When you bought the book, you didn't sign anything, so any claims based on contract law are nonsense. Even printing a contract in the book won't work... only if you *negotiated* a contract *as equals* (i.e., you have the ability to reject terms and negotiate) and then signed the contract would the contract be binding. "Click wrap" licenses in software are on some pretty shoddy legal basis themselves and have been successfully avoided in quite a few lawsuits and this "retrofitting" of a contract onto a book is absurd to contemplate in terms of contract law.

Again, you don't grasp the situation. Clickwraps are generally upheld, adhesive contracts are virtually always upheld, equal bargaining positions as a necessity for formation is absurd on its face, and agreement doesn't require a signature. You need to get yourself educated.

People who use the term "Intellectual Property" are talking about patent, copyright and trademark

Actually, you left out the most important one: trade secrets. Copyrights and patents are actually quite unimportant in the big picture. Trade secrets and trademarks are where the money is. And there are other rights regimes as well, e.g. publicity rights.

However, if this is a trademark license then the whole issue can be safely bypassed by not *using* the trademarks in question. You can run a "Modern era live RPG featuring vampires"... even with White Wolf systems as the core, as long as you don't *use* the trademarks (and no, "featuring vampires" won't run afoul of trademark law: normal use of English dictionary words in a sentence won't trigger a trademark claim).

No need. The doctrine of trademark fair use (which is totally different from copyright fair use) includes the concept of nominative uses. If you're playing Vampire, you're allowed to say so. You don't have to talk around it.

Plus, this is the worst trademark license I've seen. It's a great example of naked licensing, and it actually is harmful to WW's trademarks. If they really are doing this, they're going to risk losing this. They need to get a better lawyer.

Re:Cross posting:

[Godeke]

Could you publicly announce what law firm you work for so I can avoid ever accidently employing you?

"Again, you don't grasp the situation. Clickwraps are generally upheld, adhesive contracts are virtually always upheld, equal bargaining positions as a necessity for formation is absurd on its face, and agreement doesn't require a signature. You need to get yourself educated."

My lawyer laughed... and she doesn't find much amusing. Only the seventh and eighth circuits subscribe to your views and not even fully themselves. I presume you are under one of those juridictions and have a vested interest? Are you aware of UCITA "Bomb shelter" laws? (My state has them and specifically targets EULA as done in "clickwrap" as unenforcable... the fact you discount this scares me). This is not decided in either direction fully, but the fact that you see "adhesive contracts" and lack of negotiation as a plus (quick note: a great way to avoid a clause it to prove it adhesive or unnegotiated) tells me you are a danger to anyone who employs you.

However, where you go completely off course is by assuming that playing an RPG is a "performance of a copywritten work". The copywritten work is a ruleset, and rulesets can only be patented to enforce the ideas the rules embody... the corpwrite protects *only* the fixed form of those rules. The board game industry has long hated the fact that the courts rule that a game that has new terms and rewritten rules is not infringing despite the fact they copy the *ideas* within the rules slavishly. People "playing" the game are using the product as intended (not copying *any* of the content), with thier own characters, stories and actions. To claim this activity as "derivation" (or the fact you misunderstood my comment so much as to not comprehend this implication) takes you from "dangerous" to "who licensed you again?".

Re:Cross posting:

[Godeke]

I think we are more in agreement than I initially thought, although my expression of some of the concepts isn't up to par with someone who plies the trade, so to speak.

In regard to EULAs (as someone who has one on the install screens of his own software) I wouldn't want to base my business on the enforcement of one. There have been cases of enforcement, but more because (at least in the cases I have seen) the EULA wasn't the critical aspect of enforcement of rights: copyright law as a whole was the key. In my case, since my software is custom written, the EULA merely reiterates the existing written and signed contract with the client... that I'm willing to base my business on.

I do still see the fact that used and rental software are available as a red flag that EULAs are not the silver bullet that the large software companies want them to be.

There has been a continuum of results here: console game makers have lost every important battle when they try to prevent resale or rental. Ironically, the biggest hurdle they faced in these cases was the copy protection they used was actually effective, which meant that the "people will illegally copy it" argument which *was* successfully used by the personal computer software companies against rentals didn't fly. However even that argument seems to have lost its luster as I see all the major game stores carry used PC games alongside the used console games, and two of the local used book stores (one a huge chain that exists state wide... not operating under the radar) also sells used application software. All that renting and resale are typically prohibited by the EULA, but the big companies somehow seem to be unable to enforce those clauses.

Turning this back to White Wolf's "license" (which they really seem to be proposing as some "after the fact, retrofitted to books you already own EULA" on their own website, which is just odd), as you pointed out my level of paranoia about trademark use isn't necessary (although considering how sue happy companies have become over pretty imaginary infringement, I'm not all that sure it isn't prudent). That really does leave them with copyright law as the leg they are trying to stand on. White Wolf tried to sue Sony regarding the movie Underworld (which in all honesty couldn't have been *more* of a thematic ripoff) and they lost. It turns out that the theme wasn't protected by copyright. Most of what White Wolf provides is two things: rule sets and theme. Yes, there are characters described and places and events, but in most games these things are the creations of the group. Each player creates a character, the game master creates the scenarios, the world at large, etc. Reading directly from the book would be considered poor form, to say the least and I doubt it happens.

Note that this would be untrue of many of the modules produced by Wizards of the Coast for the Dungeons and Dragons line. That product line is played at a table and often a poorer quality game master *will* read verbatim passages. Since there are multiple players present (as many as 8 or 9) I guess it could be considered a "performance" of the work, but here is where another anomaly appears... it is the entire *point* behind producing the modules that this performance be done. Yes, nowhere have I ever seen permission granted to do so. Curious as what you think of this, as your comments have been very thought provoking for me.

Re:Cross posting:

[Godeke]

I think that brings me up to speed on the issue. As a last question: this change has been published on a website. Owners of the books who don't frequent the web would seem to be enjoying the original rights (the implied right to actually play the game as published, even if no actual license was included in the book). Since the books are sold at retail, it would appear that "the cat is out of the bag" as far as attempting to append a license to the product.

They can wrap future books in packaging that requires accepting a physical EULA to use the materials (although it would also seem off-putting to future sales to do so), but the existing users --- since the books were published at retail, how would they go about applying the licensing to those who are not part of the debate and are unaware of such changes? (There is nothing in the books such as "see our website for licensing information, you must accept any changed licenses, etc.")

I don't mean that they couldn't just sue a group, but since they have not communicated the changes (at it would be nearly impossible to do so in a meaningful way... anyone could claim not to have see the website) it appears that the first recourse would be a requirement of offer the license. Since they ofter it for $20 per "user" with minimal restrictions, it would seem that such a suit would net... $20 per user? I find it hard to believe that a judge would impose anything more onerous upon a group considering the circumstances of this change (i.e., lack of notification, no other such licenses in the entire industry, license granted indiscriminately to all based on a minimal fee.) It would appear the the "harm" such a group presents is merely an unpaid license fee, not the usual infringement penalties.

BTW, thanks for taking the time to answer my inane questions. I didn't think this issue was quite this deep.

(And on the topic of software rental: no... not used PC software for rental, but it is ubiquitously available for purchase in large bookstore chains I mentioned. Not just games, but applications, graphics suites, etc. I have always avoided it, but mostly because the upgrade path becomes questionable for anything I would want.)

Easy Solution:

[Anonymous Coward]

"The practical upshot is that technically the WW Stormtroopers could raid your house merely if everyone chips in a few quid for pizza."

"We don't need to pay you royalty fees."

WHITE WOLF STORMTROOPER: "We don't need to collect their royalty fees."

"These aren't the sourcebooks you're looking for."

WHITE WOLF STORMTROOPER: "These aren't the sourcebooks we're looking for."

"We can go about our roleplaying."

WHITE WOLF STORMTROOPER: "You can go about your roleplaying."

"Move along."

WHITE WOLF STORMTROOPER: "Move along. Move along."

RPGer: "I thought we were dead."

"The Kindred hold many powers over assholes and the weak-minded."

No-one told me ...

[NewStarRising]

Is this licence going to be printed in the front of each rule book/suppliemnt?
If I buy a rulebook without this licence in it, and they come after me for fees, where do I stand?
Can a company distribute a product with no restrictions noted in it, and then come after me for not abiding by a licence I never agreed to, never saw and was not even aware of?