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.
I don't see the purpose of them at all. Copyright law is more than generous to software developers, but still has enough in it that users can get by. If you're doing custom development, you need real contracts anyway, and the software hardly needs more.
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.
Renting software without authorization (other than in certain cases, such as console games) is an infringement of copyright. I haven't seen it at all. Of course, I question why software needs such special treatment. The world gets along fine with rental of virtually everything else, and making copies would still be infringing on its own.
as you pointed out my level of paranoia about trademark use isn't necessary
That, and that they way they've gone about it is actually quite harmful to their trademark rights. Their lawyer doesn't seem to be up to speed with trademark licensing, if that's what they're trying to engage in.
It turns out that the theme wasn't protected by copyright.
Actually there's a continuum. The more abstract the commonalities between two works are, the less likely it is that they infringe. However, courts don't want to permit people to change things just a bit and get away with it, so there is no bright line rule. Nichols v. Universal is a leading case with regards to this.
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.
Yes, but how closely do they draw on the underlying work? For example, if you play the Star Wars rpg, you're very likely to use so many story elements, places, situations, etc. from the films and such that I can see how a court might find it infringing. Fair use would have a good shot, I think, but the existence of a licensing system makes it a little trickier to make that case.
it is the entire *point* behind producing the modules that this performance be done.
Which brings us to theories of estoppel, I guess. But with WW having changed direction here, that might not have much continuing utility.
Only the seventh and eighth circuits subscribe to your views and not even fully themselves.
There has also been agreement in NY and CA districts, and possibly more, though I'd want to hit the books. Additionally, that's under the regular UCC Art. 2. I'm not talking about 2B (and only 4 states have anti-UCITA legislation, so they're not a big factor anyway), though that does bring up enforceability in VA and MD, and then we might start seeing some choice of law clauses.
you see "adhesive contracts" and lack of negotiation as a plus
I don't. I think we ought to ban EULAs altogether, leaving a small exception for adhesive licenses such as the GPL. However, this is wishful thinking. For the time being, we need to accept that there is a good chance that EULAs will be upheld when encountered.
Incidentally, adhesion (i.e. not being negotiated) is not enough on its own to render agreements unenforceable. Most agreements people engage in are adhesive. What kills agreements is more often substantive unconscionability, which is a whole different animal.
However, where you go completely off course is by assuming that playing an RPG is a "performance of a copywritten work".
No, I said that if there is a relevant exclusive right, it's performance. I'm not convinced that there is one, however.
Essentially, your analysis is too limited. I agree -- since rules are not copyrightable, public performance of a game following those rules is not infringing. But that's not what I was thinking about to begin with.
Rather, I'm more interested in the copyrightable portions of the game, such as the setting. If a gaming group obtains a module, for example, and the GM reads verbatim from it, the group engages in the actions directed by the module, etc. then there might be performance of the work, or a derivative.
While this might not be a problem if a group only uses WW's rules, and nothing else, use of additional material could be problematic. Not being familiar with WW's games, I don't know which scenario is more likely. However, many groups do rely on copyrighted material provided by the game developers, so I doubt it'd be that rare.
No, they can't. But they can have a copyright on a specific elf. Or a specific kind of elf. Or a specific, original, and named elven characteristic.
A character, yes. A kind of elf, that's dubious (see e.g. the Hobbit / Halfling thing). A mere characteristic, that's unlikely. Again, you're ignoring the idea/expression dichotomy.
There's no cleverness requirement for copyrightability, AFAIK.
There is a constitutional originality requirement, which requires that copyrighted material possesses a modicum of creativity and that it originates with the author.
Compilations of uncopyrightable material can only be copyrighted themselves where they meet the requirements for a copyrightable work. This means that the selection and arrangement of rules must be at least slightly creative and that it must have stemmed from the author.
This is difficult in rpgs, I think, as there is too much borrowing; too much similarity.
Yes, it would be--except that (1) poker has been around long enough to be public domain even if it had been copyrightable and (2) RPG games are more complex than any other game out there.
No, any game itself is forever uncopyrightable. Only a description of how to play a game could possibly be copyrighted.
So it doesn't matter how new or old the game being described is. The creator has no rights in it, unless they can patent it. Your first point is wrong.
As for complexity, that doesn't matter either. The most complex process is still uncopyrightable subject matter.
I think that Baker v. Selden controls:
Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of book, regarding the latter merely as an explanatory work; or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system.
The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he was appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings, given to illustrate the system, are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is, whether the exclusive property in a system of book-keeping can be claimed, under the law or copyright, by means of a book in which that system is explained? The complainant's bill, and the case made under it, are based on the hypothesis that it can be.
...
There is no doubt that a work on the subject of book-keeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of book-keeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of eve
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.
I wouldn't put my money on any court saying that they're not distinct.
I didn't say that they don't have to lack distinctions. I said that compilations of rules in rpgs are without originality, generally. It's like phone books: the arrangement of names in alphabetical order by surname isn't original, and thus is unprotectable. A very creatively designed rpg might be able to avoid this, but I doubt it.
Plus, there's still the point that copyright cannot apply to a system, method, process, etc. The method of playing a specific public domain game demands all the rules. Given that that's a question of law, I think it could be knocked out easily on summary judgment.
To say otherwise would be to say that A cannot derive the rules of poker from B's copyrighted book about poker; he can only derive some of the rules, such as calling, alone. That's just stupid.
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.
Meh. Pen and pencil games aren't a huge profit sector. If you want to make money, there are better ways to do it. And I still wouldn't worry too much about attempted retribution, especially given 17 USC 505.
But the more small uncopyrightable things you add together, the more copyrightable your creation becomes.
Oh? Going for a compilation? I wouldn't be very confident about that. The gaming industry just isn't that creative. At the high level, where we are with compilation copyrights on uncopyrightable subject matter, most games are the same, and thus unlikely to be original: there are character generation rules, weapon damage rules, skill challenge rules, basically. Even within each group, there are too many similarities.
And with the stricter and stricter interpretations of the courts with regards to copyright recently
Those are unrelated to what we're talking about, though.
I think you really don't understand this. I blame licenses. They confuse the hell out of people, and they're pointless.
Look: You cannot own a creative work. No one can. You can, OTOH, own a copy (i.e. a tangible object in which that work is present, such as a book) or a copyright, which is a right pertaining to the work, but is distinct from the work itself.
When you buy a book, you own the book. No one owns the story. Due to your lawful possession of the book, you can read the story. It isn't necessary to have bought the book to do this; you could read it at the library, you could read it in the bookstore, you could read it over someone's shoulder, etc. Owning the book is just a convenient way to have access to what's within.
You can do anything lawful with the story, whether you own a copy of the book or not. During the copyright term, you're limited in your ability to do some things, but not others. For example, you can't make more copies (usually) but you can loan people your copy. When the term runs out, more things become lawful. You don't get more rights; rather, the roadblocks keeping you from exercising rights you inherently have are lifted.
As for whether playing the game constitutes performance of a derivative work, I think that's pretty damn dependant on a number of factors, and subject to a lot of dispute. I think it's also likely a fair use. I don't envy WW. I doubt that they can make their stupid idea work, though then again, I haven't found gamers to be the brightest bunch of people in the world with regards to copyright, trademark, etc.
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 reason for that is that while, as far as I understand, the purchase of a piece of software is being interpreted as buying the right to use it, so to speak, not as buying anything tangible, a book is different: you actually buy the physical book, and there is no license agreement between you and the author or publisher: the only contract is between you and the seller of the book.
No. There's no actual reason to have EULAs. They're totally useless in that they offer no real advantage to developers, overcomplicate transactions, and are a bad practice.
However, there's nothing that limits them to the software field. If you're willing to tolerate them for programs, you had better expect to see them elsewhere. Frankly, I think it'd be better to prohibit virtually all adhesive contracts with regards to creative works. Copyright protection is sufficient for most people. In the rare cases that it's not, real contracts are likely to not be a burden. This makes OSS licenses a little tricky -- we'd need to carve out an exception -- but they're really not that good an idea anyway. I'd rather have copyright law that made them unnecessary.
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.
When I'm talking about goods or services, I don't mean a description of them, I mean the actual goods or services; ditto for the PTO.
If your trademark is Apple, all by itself, and the goods you're branding with the mark are computers, then you can have a valid mark. If the goods were the fruit kind of apples, then you could not, because it is generic.
You do NOT need another word in conjunction with the mark. That's not the kind of context I'm talking about.
And since one Apple deals with computers (not the word, but actual computers), and another Apple deals with record production services (or something) (and again, the actual services, not the word), then they're in different classes of commerce, and can co-exist. (I'm avoiding discussing dilution here, which likely has hemmed in Apple Corps by now, since it's not really germane to this discussion.
Also, we're discussing trademarks. You can't patent a word.
Yes you can, because while context matters, the relevant context is the mark in connection with the goods or services the mark pertains to.
I suggest reading the pertinent section of the USPTO's TMEP, here.
In particular:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it.... (e) Consists of a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive... of them....
A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services....
The determination of whether or not a mark is merely descriptive must be made in relation to the goods or services for which registration is sought, not in the abstract. This requires consideration of the context in which the mark is used or intended to be used in connection with those goods or services, and the possible significance that the mark would have to the average purchaser of the goods or services in the marketplace....
Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods or services.... These terms are incapable of functioning as registrable trademarks denoting source, and are not registrable on the Principal Register under 2(f) or on the Supplemental Register.
There is a two-part test used to determine whether a designation is generic: (1) What is the class of goods or services at issue? and (2) Does the relevant public understand the designation primarily to refer to that class of goods or services? The test turns upon the primary significance that the term would have to the relevant public.
Disney could still sue for trademark infringement over certain uses of the name "Mickey Mouse" or its likeness.
Certain, but not all. As I said, trademarks aren't allowed to stand in the way of use of public domain works (including creating derivatives of them). The courts just will not allow trademarks to be an 'old man's copyright,' just as they've done in the patent field.
So if you make a Mickey Mouse t-shirt, you might have trouble, though this actually bears closer scrutiny. If you make a Mickey Mouse cartoon, you'd be ok.
Yes you can. See, e.g. Apple, Sun, and Windows for computers.
Also weird spelling doesn't matter; the PTO typically is more interested in how a word is pronounced. An EZ Chair is considered to be the same as 'Easy Chair.' However, I generally like to see trademarks that are a) made-up words, so as to avoid the possibility of a lack of inherent distinctiveness, and often of prior users, and b) one of a list of possible marks that the client finds acceptable. A client that walks in the door with his heart set on a particular mark is not making life easy for himself.
No, the origins of the word don't matter a great deal. Fanciful marks, such as Xerox for xerography machines, are just as distinctive as arbitrary ones, such as Apple for computers.
What would stop someone starting a totally different business of the same name are anti-dilution laws (which are new, and widely considered a bad idea).
The author of that work CREATED that value beforehand.
Not especially. Marketing is what creates most value. You think that your typical musician, for example, would hit it big without the shameless promotion efforts of the label? That it's all in the music? Please.
At any rate, you're still confusing the value of the work (which is tremendous and long-lasting) with the value of any specific copy or use of the work, which is far, far less. For example, if I write a novel which is of timeless quality, it probably has a huge value. Not only will people buy the novel for centuries to come (long after the copyright expires), but it will inspire other works, and so forth. Someone making one copy illegally doesn't deprive me of the value of the work as a whole. Instead we're dealing with whatever value there might have been wrapped up with the copy, which is probably just a few bucks, tops.
What the author created beforehand was the work. What he spent money and such on was the work. Not the illegally-made copies.
You could say that the author is deprived of the value of a copy when someone pirates one, but again, this would require the author to have already had that value, and to have been deprived of it. This isn't necessarily or even often so. What the author really has is a potential value.
For him to be deprived of it due to piracy is not remarkably different in the end than for him to be deprived of it because someone bought a different book, instead of the author's book. The end result is the same.
There is a good reason to have copyright, but it really has little if anything to do with notions of ownership or authorial entitlement.
From my perspective as an author, artist, and developer, if you copy my work you are stealing the results of my labors, and benefiting unjustly from the value I created.
From my perspective as an author, artist, and copyright lawyer, there is no 'stealing the results of your labors,' and in fact the idea is nonsense. Again, a work is not the same thing as a copy. There is a better argument as to unjust enrichment, but that doesn't go hand in hand with deprivation on your part. It is entirely possible for someone to be unjustly enriched but for you to be just as well off as you would've been otherwise.
It's a bit amazing how your perspective changes when it's YOUR work being stolen. And how it differs from those who can't create anything at all...
Which shows us how foolish it is to let our reason be clouded by emotion and attachment, when discussing copyright, which is a cool, utilitarian affair.
At any rate, I doubt I'd be bothered much. I'm working on a public domain book at the moment. And I place a far greater value on the opinions of the public generally (who are more creative than you give them credit for) than of authors, who are not all that important with regards to copyright.
In the copyright field, exclusive rights means the right to exclude others. So you're saying that a person who infringes on a copyright becomes the copyright holder, and can prevent other people from doing things.
That's crazy moon talk.
When you infringe, it is similar to if you trespass. You don't acquire rights, you've merely infringed on someone else's right to keep you out. It's not taking anything.
Downloading is just as illegal as uploading. The former is reproduction, under 17 USC 106(1), the latter is distribution, under 106(3).
This has been well settled in a variety of cases, such as Napster. My personal favorite, for its clarity, is Intellectual Reserve v. Utah Lighthouse Ministry. If you google a bit, you'll find plenty of cases that are on point.
One thing that often trips people up is that they fail to look at the relevant definitions. For example, it's illegal to make a copy of a work. A copy is defined in the law (17 USC 101) as being a material object. Thus a mere computer file isn't a copy -- but the RAM, or hard drive, etc. it's stored on is.
Note that intent is not relevant, as the Intellectual Reserve case discusses. Civil liability for copyright infringement is strict liability. Mental state may affect the amount of damages, but even the most well-intentioned person who infringes can't escape if sued.
As for responsibility, the NAFED case gets into this a bit. Basically, the party that caused the reproduction to occur is liable. In most downloading situations, that's the downloader, as files didn't just magically appear on his machine. He caused it to happen, even if other people's equipment was involved in the process. Perhaps if your computer had been taken over by malware you wouldn't be liable, but this is an unlikely scenario.
And incidentally, copyright infringement is not actionable under stolen property laws. There's been a Supreme Court case to that effect.
Whether that's the case or not, I don't know. But this is not the same situation. The normal rule is that so long as you don't owe a duty to someone, you aren't obligated to help them.
If it's different for hospitals, then I would imagine that that's due to their unique position as hospitals. Mere pharmacuetical companies are totally dissimilar; they don't have to let people infringe on their patents if they don't want to.
Slashdot Mirror
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.
I don't see the purpose of them at all. Copyright law is more than generous to software developers, but still has enough in it that users can get by. If you're doing custom development, you need real contracts anyway, and the software hardly needs more.
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.
Renting software without authorization (other than in certain cases, such as console games) is an infringement of copyright. I haven't seen it at all. Of course, I question why software needs such special treatment. The world gets along fine with rental of virtually everything else, and making copies would still be infringing on its own.
as you pointed out my level of paranoia about trademark use isn't necessary
That, and that they way they've gone about it is actually quite harmful to their trademark rights. Their lawyer doesn't seem to be up to speed with trademark licensing, if that's what they're trying to engage in.
It turns out that the theme wasn't protected by copyright.
Actually there's a continuum. The more abstract the commonalities between two works are, the less likely it is that they infringe. However, courts don't want to permit people to change things just a bit and get away with it, so there is no bright line rule. Nichols v. Universal is a leading case with regards to this.
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.
Yes, but how closely do they draw on the underlying work? For example, if you play the Star Wars rpg, you're very likely to use so many story elements, places, situations, etc. from the films and such that I can see how a court might find it infringing. Fair use would have a good shot, I think, but the existence of a licensing system makes it a little trickier to make that case.
it is the entire *point* behind producing the modules that this performance be done.
Which brings us to theories of estoppel, I guess. But with WW having changed direction here, that might not have much continuing utility.
Only the seventh and eighth circuits subscribe to your views and not even fully themselves.
There has also been agreement in NY and CA districts, and possibly more, though I'd want to hit the books. Additionally, that's under the regular UCC Art. 2. I'm not talking about 2B (and only 4 states have anti-UCITA legislation, so they're not a big factor anyway), though that does bring up enforceability in VA and MD, and then we might start seeing some choice of law clauses.
you see "adhesive contracts" and lack of negotiation as a plus
I don't. I think we ought to ban EULAs altogether, leaving a small exception for adhesive licenses such as the GPL. However, this is wishful thinking. For the time being, we need to accept that there is a good chance that EULAs will be upheld when encountered.
Incidentally, adhesion (i.e. not being negotiated) is not enough on its own to render agreements unenforceable. Most agreements people engage in are adhesive. What kills agreements is more often substantive unconscionability, which is a whole different animal.
However, where you go completely off course is by assuming that playing an RPG is a "performance of a copywritten work".
No, I said that if there is a relevant exclusive right, it's performance. I'm not convinced that there is one, however.
Essentially, your analysis is too limited. I agree -- since rules are not copyrightable, public performance of a game following those rules is not infringing. But that's not what I was thinking about to begin with.
Rather, I'm more interested in the copyrightable portions of the game, such as the setting. If a gaming group obtains a module, for example, and the GM reads verbatim from it, the group engages in the actions directed by the module, etc. then there might be performance of the work, or a derivative.
While this might not be a problem if a group only uses WW's rules, and nothing else, use of additional material could be problematic. Not being familiar with WW's games, I don't know which scenario is more likely. However, many groups do rely on copyrighted material provided by the game developers, so I doubt it'd be that rare.
Book 6 takes place during the 96/97 school year, so I think he'll be ok.
No, they can't. But they can have a copyright on a specific elf. Or a specific kind of elf. Or a specific, original, and named elven characteristic.
A character, yes. A kind of elf, that's dubious (see e.g. the Hobbit / Halfling thing). A mere characteristic, that's unlikely. Again, you're ignoring the idea/expression dichotomy.
There is a constitutional originality requirement, which requires that copyrighted material possesses a modicum of creativity and that it originates with the author.
Compilations of uncopyrightable material can only be copyrighted themselves where they meet the requirements for a copyrightable work. This means that the selection and arrangement of rules must be at least slightly creative and that it must have stemmed from the author.
This is difficult in rpgs, I think, as there is too much borrowing; too much similarity.
Yes, it would be--except that (1) poker has been around long enough to be public domain even if it had been copyrightable and (2) RPG games are more complex than any other game out there.
No, any game itself is forever uncopyrightable. Only a description of how to play a game could possibly be copyrighted.
So it doesn't matter how new or old the game being described is. The creator has no rights in it, unless they can patent it. Your first point is wrong.
As for complexity, that doesn't matter either. The most complex process is still uncopyrightable subject matter.
I think that Baker v. Selden controls:
The long and short of it is that a copyright protects *replication* of a work.
_ 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.)
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.
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.
I wouldn't put my money on any court saying that they're not distinct.
I didn't say that they don't have to lack distinctions. I said that compilations of rules in rpgs are without originality, generally. It's like phone books: the arrangement of names in alphabetical order by surname isn't original, and thus is unprotectable. A very creatively designed rpg might be able to avoid this, but I doubt it.
Plus, there's still the point that copyright cannot apply to a system, method, process, etc. The method of playing a specific public domain game demands all the rules. Given that that's a question of law, I think it could be knocked out easily on summary judgment.
To say otherwise would be to say that A cannot derive the rules of poker from B's copyrighted book about poker; he can only derive some of the rules, such as calling, alone. That's just stupid.
I have actually read USC17 ...
Copyright law concerns itself with one, and only one, thing: making copies.
Really? So did I just imagine 17 USC 106(2)-(6), 602, 905, 1101, 1201, 1202, and 1308?
That's refreshing to know.
Or maybe you should read Title 17 again, for real this time.
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.
It's a "get out of court free" card.
Meh. Pen and pencil games aren't a huge profit sector. If you want to make money, there are better ways to do it. And I still wouldn't worry too much about attempted retribution, especially given 17 USC 505.
But the more small uncopyrightable things you add together, the more copyrightable your creation becomes.
Oh? Going for a compilation? I wouldn't be very confident about that. The gaming industry just isn't that creative. At the high level, where we are with compilation copyrights on uncopyrightable subject matter, most games are the same, and thus unlikely to be original: there are character generation rules, weapon damage rules, skill challenge rules, basically. Even within each group, there are too many similarities.
And with the stricter and stricter interpretations of the courts with regards to copyright recently
Those are unrelated to what we're talking about, though.
Bah. Real men play GURPS.
I think you really don't understand this. I blame licenses. They confuse the hell out of people, and they're pointless.
Look: You cannot own a creative work. No one can. You can, OTOH, own a copy (i.e. a tangible object in which that work is present, such as a book) or a copyright, which is a right pertaining to the work, but is distinct from the work itself.
When you buy a book, you own the book. No one owns the story. Due to your lawful possession of the book, you can read the story. It isn't necessary to have bought the book to do this; you could read it at the library, you could read it in the bookstore, you could read it over someone's shoulder, etc. Owning the book is just a convenient way to have access to what's within.
You can do anything lawful with the story, whether you own a copy of the book or not. During the copyright term, you're limited in your ability to do some things, but not others. For example, you can't make more copies (usually) but you can loan people your copy. When the term runs out, more things become lawful. You don't get more rights; rather, the roadblocks keeping you from exercising rights you inherently have are lifted.
As for whether playing the game constitutes performance of a derivative work, I think that's pretty damn dependant on a number of factors, and subject to a lot of dispute. I think it's also likely a fair use. I don't envy WW. I doubt that they can make their stupid idea work, though then again, I haven't found gamers to be the brightest bunch of people in the world with regards to copyright, trademark, etc.
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.
The reason for that is that while, as far as I understand, the purchase of a piece of software is being interpreted as buying the right to use it, so to speak, not as buying anything tangible, a book is different: you actually buy the physical book, and there is no license agreement between you and the author or publisher: the only contract is between you and the seller of the book.
No. There's no actual reason to have EULAs. They're totally useless in that they offer no real advantage to developers, overcomplicate transactions, and are a bad practice.
However, there's nothing that limits them to the software field. If you're willing to tolerate them for programs, you had better expect to see them elsewhere. Frankly, I think it'd be better to prohibit virtually all adhesive contracts with regards to creative works. Copyright protection is sufficient for most people. In the rare cases that it's not, real contracts are likely to not be a burden. This makes OSS licenses a little tricky -- we'd need to carve out an exception -- but they're really not that good an idea anyway. I'd rather have copyright law that made them unnecessary.
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.
You've misunderstood.
When I'm talking about goods or services, I don't mean a description of them, I mean the actual goods or services; ditto for the PTO.
If your trademark is Apple, all by itself, and the goods you're branding with the mark are computers, then you can have a valid mark. If the goods were the fruit kind of apples, then you could not, because it is generic.
You do NOT need another word in conjunction with the mark. That's not the kind of context I'm talking about.
And since one Apple deals with computers (not the word, but actual computers), and another Apple deals with record production services (or something) (and again, the actual services, not the word), then they're in different classes of commerce, and can co-exist. (I'm avoiding discussing dilution here, which likely has hemmed in Apple Corps by now, since it's not really germane to this discussion.
Also, we're discussing trademarks. You can't patent a word.
Yes you can, because while context matters, the relevant context is the mark in connection with the goods or services the mark pertains to.
I suggest reading the pertinent section of the USPTO's TMEP, here.
In particular:
Disney could still sue for trademark infringement over certain uses of the name "Mickey Mouse" or its likeness.
Certain, but not all. As I said, trademarks aren't allowed to stand in the way of use of public domain works (including creating derivatives of them). The courts just will not allow trademarks to be an 'old man's copyright,' just as they've done in the patent field.
So if you make a Mickey Mouse t-shirt, you might have trouble, though this actually bears closer scrutiny. If you make a Mickey Mouse cartoon, you'd be ok.
Yes you can. See, e.g. Apple, Sun, and Windows for computers.
Also weird spelling doesn't matter; the PTO typically is more interested in how a word is pronounced. An EZ Chair is considered to be the same as 'Easy Chair.' However, I generally like to see trademarks that are a) made-up words, so as to avoid the possibility of a lack of inherent distinctiveness, and often of prior users, and b) one of a list of possible marks that the client finds acceptable. A client that walks in the door with his heart set on a particular mark is not making life easy for himself.
No, the origins of the word don't matter a great deal. Fanciful marks, such as Xerox for xerography machines, are just as distinctive as arbitrary ones, such as Apple for computers.
What would stop someone starting a totally different business of the same name are anti-dilution laws (which are new, and widely considered a bad idea).
The author of that work CREATED that value beforehand.
Not especially. Marketing is what creates most value. You think that your typical musician, for example, would hit it big without the shameless promotion efforts of the label? That it's all in the music? Please.
At any rate, you're still confusing the value of the work (which is tremendous and long-lasting) with the value of any specific copy or use of the work, which is far, far less. For example, if I write a novel which is of timeless quality, it probably has a huge value. Not only will people buy the novel for centuries to come (long after the copyright expires), but it will inspire other works, and so forth. Someone making one copy illegally doesn't deprive me of the value of the work as a whole. Instead we're dealing with whatever value there might have been wrapped up with the copy, which is probably just a few bucks, tops.
What the author created beforehand was the work. What he spent money and such on was the work. Not the illegally-made copies.
You could say that the author is deprived of the value of a copy when someone pirates one, but again, this would require the author to have already had that value, and to have been deprived of it. This isn't necessarily or even often so. What the author really has is a potential value.
For him to be deprived of it due to piracy is not remarkably different in the end than for him to be deprived of it because someone bought a different book, instead of the author's book. The end result is the same.
There is a good reason to have copyright, but it really has little if anything to do with notions of ownership or authorial entitlement.
From my perspective as an author, artist, and developer, if you copy my work you are stealing the results of my labors, and benefiting unjustly from the value I created.
From my perspective as an author, artist, and copyright lawyer, there is no 'stealing the results of your labors,' and in fact the idea is nonsense. Again, a work is not the same thing as a copy. There is a better argument as to unjust enrichment, but that doesn't go hand in hand with deprivation on your part. It is entirely possible for someone to be unjustly enriched but for you to be just as well off as you would've been otherwise.
It's a bit amazing how your perspective changes when it's YOUR work being stolen. And how it differs from those who can't create anything at all...
Which shows us how foolish it is to let our reason be clouded by emotion and attachment, when discussing copyright, which is a cool, utilitarian affair.
At any rate, I doubt I'd be bothered much. I'm working on a public domain book at the moment. And I place a far greater value on the opinions of the public generally (who are more creative than you give them credit for) than of authors, who are not all that important with regards to copyright.
No, at most it's the value of a copy or some use with the work. Not the overall value of the work, which could be extraordinarily great.
And it's still not a taking, since that would mean that the copyright holder had that value beforehand.
I dare you to make less sense.
In the copyright field, exclusive rights means the right to exclude others. So you're saying that a person who infringes on a copyright becomes the copyright holder, and can prevent other people from doing things.
That's crazy moon talk.
When you infringe, it is similar to if you trespass. You don't acquire rights, you've merely infringed on someone else's right to keep you out. It's not taking anything.
Downloading is just as illegal as uploading. The former is reproduction, under 17 USC 106(1), the latter is distribution, under 106(3).
This has been well settled in a variety of cases, such as Napster. My personal favorite, for its clarity, is Intellectual Reserve v. Utah Lighthouse Ministry. If you google a bit, you'll find plenty of cases that are on point.
One thing that often trips people up is that they fail to look at the relevant definitions. For example, it's illegal to make a copy of a work. A copy is defined in the law (17 USC 101) as being a material object. Thus a mere computer file isn't a copy -- but the RAM, or hard drive, etc. it's stored on is.
Note that intent is not relevant, as the Intellectual Reserve case discusses. Civil liability for copyright infringement is strict liability. Mental state may affect the amount of damages, but even the most well-intentioned person who infringes can't escape if sued.
As for responsibility, the NAFED case gets into this a bit. Basically, the party that caused the reproduction to occur is liable. In most downloading situations, that's the downloader, as files didn't just magically appear on his machine. He caused it to happen, even if other people's equipment was involved in the process. Perhaps if your computer had been taken over by malware you wouldn't be liable, but this is an unlikely scenario.
And incidentally, copyright infringement is not actionable under stolen property laws. There's been a Supreme Court case to that effect.
Whether that's the case or not, I don't know. But this is not the same situation. The normal rule is that so long as you don't owe a duty to someone, you aren't obligated to help them.
If it's different for hospitals, then I would imagine that that's due to their unique position as hospitals. Mere pharmacuetical companies are totally dissimilar; they don't have to let people infringe on their patents if they don't want to.