From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On Behalf Of Ryan S. Dancey
Sent: Friday, May 26, 2000 4:53 PM
To: [EMAIL PROTECTED]
Subject: Re: [Open_Gaming] Everybody Wins (was: Proposed Change to
License)
Far be it for a non-lawyer like me to get involved in a copyright
discussion, but...
<< The Free Software Foundation, and the Open Source community in general,
chooses to take an extreme and narrow view of the copyright law. In their
eyes, >any< use of >any< copyrighted code, no matter how trivial, creates a
work derived in part from that code >>
And therein lies the rub: "no matter how trivial" is a good statement of
philosophy, but a lousy guideline. After all, if your code contains a
semicolon and mine does as well, I have used the most trivial example of a
functional piece of your code (in C, C++, Java, Pascal, and a host of
others). NOBODY intends to cover that extreme of an example; but that's
about the ONLY definition of "no matter how trivial" that everyone could
find technically (but absurdly) accurate. Beyond that absurd limit, everyone
has a slightly different shading of "no matter how trivial". When in doubt,
assume that someone ELSE will assume it's derivative if it could plausibly
be so. If you enter the world of open development, plan on making your work
open or VERY carefully demonstrating why it's NOT derivative. If you verge
on the absurd in your efforts to delineate open from closed, you should
satisfy the most demanding definitions.
On the other hand... EXPECT that some people WILL cross your lines and then
insist that your closed material "ought to be open". Some may be misguided,
some may be malicious, and some may have a pretty good point; but if your
work reaches a large enough market, it WILL happen.
<< So, the question becomes: "in the context of the rules and materials of
a
roleplaying game system, to what extent does the copyright law cover those
rules and materials?"
Just so you know, there is no clear and definitive answer to this question,
because no significant copyright case has ever been brought to trial and
received a final judgement from a court involving roleplaying games. There
have been several suits filed, all of which have been settled out of court,
and it is generally acknowledged that such settlements have favored the
plantiffs. >>
In the classic sense, the answer seems clear to me: I can't take your
precise words and slap my name on them and call them mine. I can't make
copies of your words and resell or redistribute them except in very defined
circumstances. I can't see how an RPG would differ from any other book in
protecting your precise words.
What is unclear and indefinite to me is whether the mechanics behind the
words are protected. The "can't copyright ideas" doctrine would seem to say
"no"; but the "no derivative works" doctrine might say "yes". To me, a new
expression of the exact same mechanic in different words smells of
derivation. Certainly any character or setting built to conform to those
rules is derivative. If I can't write about Kirk and Spock because I'm
deriving from Paramount's copyright, than it seems sensible that I can't
write about adding Armor Class to 10 to get a DC (except for fair use, such
as this message or a magazine review) without being derivative of D&D3E or
D20, even if I don't use precisely the same words.
I would be interested to know: among the settlements that favored the
plaintiffs, how often was the plaintiff significantly larger than the
defendant? In such cases, a doubter could plausibly argue that the defendant
was cowed by overwhelming financial disparity, not necessarily by facts or
legal standing. The best examples will be the cases where there was a rough
parity. If the settlements in those cases still favored the plaintiffs, it
would be much more telling about where the legal weight rested.
<< We believe a work may reasonably be held by a court to be
infringing/derivative if:
1) The material contains exact quotes longer than a few sentences from a
copyright work and it would not be considered a "fair use" of the work as
described in Title 17. >>
I'm confused. I thought quotes of even a few sentences were legally
infringing (unless qualifying as fair use). Is Wizards being a little more
relaxed than the statute allows?
<< 2) The material would be considered a "translation" under the terms of
Title 17; including a simple "search and replace" on the game terms or
proper nouns used in a copyright work. >>
While I understand (and endorse) your intention here, is has "search and
replace" ever been judged a "translation" in actual case law? It ought to
be; but I thought they meant translation in the more common sense of
translating between languages.
<< Now, you can certainly find any number of people (including a lawyer or
two)
who will tell you that none of the above six tests are valid and that there
is no way to use the copyright laws to protect the use or re-use of game
rules. >>
I would HOPE that even the most partisan lawyer would find test 1
compelling, since it seems like a literal reading of copyright law.
Martin L. Shoemaker
Emerald Software, Inc. -- Custom Software and UML Training
[EMAIL PROTECTED]
www.EmeraldSoftwareInc.com
www.UMLBootCamp.com
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