Maybe, just maybe, I can see letting slide the review of the Rifts corebook (http://www.somethingawful.com/d/dungeons-and-dragons/wtf-dnd-rifts.php) and Rifts Japan (http://www.somethingawful.com/d/dungeons-and-dragons/rifts-japan.php), but I don't see how Kevin Siembieda can ignore the Rifts art contest (http://www.somethingawful.com/d/dungeons-and-dragons/wtf-dnd-contest.php). My question for discussion: How long can we go without a Palladium-based installment of Legal Threats (http://www.somethingawful.com/d/legal-threats/) before we can all agree that Mr. Siembieda has no balls?
Every day without a report from SomethingAwful that Siembieda is all up in their grill is another day that adds to my suspicion that the Palladium policy (http://www.palladiumbooks.com/policies.html) vis-a-vis the internet is just a bunch of hot air.
Simbieda claims to own all fan-created Rifts material:
A related policy involves Palladium's use of works created by you using Palladium rules, characters, world settings, etc.
Under the U.S. Copyright Act, these are "Derivative Works" which, legally we have a right to prevent or to own (take a look at Section 106 of the Copyright Act). We are willing, however, to allow the creation of derivatives of our text strictly for limited personal use (though not for financial gain), subject to the following.
Any derivative works that you create are automatically owned by Palladium, under the terms of the U.S. Copyright Act.
He appears to think a "Derivative Work" is "any work making use of the original work". He does not appear to have read the much more limited definition of a derivative work in s 101 of the US Copyright Act:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
That's why I've been expecting him to flip out at SomethingAwful. Where is the earth-shattering kaboom? There was supposed to be an earth-shattering kaboom.
He's kinda broke right now.
Maybe he's writing a new sourcebook even now that's simply going to use all that art. Since it all belongs to him anyway.
Quote from: Abyssal Maw;332305He's kinda broke right now.
Too broke to send a letter? Too broke to get the attorney that vetted his ridiculous net policy to send a letter? That is pretty damn broke, especially since that crazy ass attorney probably accepts currency from Fredonia and Neverneverland.
When I first saw the Rifts articles on Something Awful, the first thing I thought was, "Wow. I'm surprised they haven't been hit with a cease & desist for using art from Palladium books.". I figure the only reason they haven't yet is that maybe Kevin Siembieda is unaware of it. I highly doubt that he'd sit on his hands if he knew about it.
Quote from: jrients;332307Too broke to send a letter? Too broke to get the attorney that vetted his ridiculous net policy to send a letter? That is pretty damn broke, especially since that crazy ass attorney probably accepts currency from Fredonia and Neverneverland.
If I were his attorney (and I teach IP law in the UK) I'd only be vetting his policy for liability issues - anything that could get Simbieda sued. I couldn't care less whether his deranged view of Derivative Work was actually enforceable*.
*Short answer: "It's not". Long answer: "If you were Sylvester Stallone, and someone wrote an unauthorised Rocky sequel, and then tried to sue *you* Mr Stallone for infringing their copyright with your own sequel, then yes, you could sue them and win. That actually happened. However since you are not a major Hollywood celebrity, and no one is suing you for making Rifts stuff, you can forget it".
Quote from: KillingMachine;332311When I first saw the Rifts articles on Something Awful, the first thing I thought was, "Wow. I'm surprised they haven't been hit with a cease & desist for using art from Palladium books.". I figure the only reason they haven't yet is that maybe Kevin Siembieda is unaware of it. I highly doubt that he'd sit on his hands if he knew about it.
There are fair use/fair dealing exemptions from copyright for 'criticism & review'. The US also has a parody exemption, I believe.
S'mon, since you actually have some expertise on this topic I wonder if you can clear up my puzzlement. You seem to be suggesting that a derivative such as an unauthorized sequel, or a module using distinctive characters or concepts derived from a game, wouldn't be a derivative work. Is that right?
Quote from: KillingMachine;332311When I first saw the Rifts articles on Something Awful, the first thing I thought was, "Wow. I'm surprised they haven't been hit with a cease & desist for using art from Palladium books.". I figure the only reason they haven't yet is that maybe Kevin Siembieda is unaware of it. I highly doubt that he'd sit on his hands if he knew about it.
I assumed enough overlap between SA forum goons and Palladium forum members that he would hear about it instantaneously. Perhaps I'm wrong.
S'mon, are you saying you don't care whether the policy does what it claims to do so long as it doesn't draw litigation? I think I would want my attorney to say "Hey, your ideas about derivate work is completely nutso."
Quote from: S'mon;332313There are fair use/fair dealing exemptions from copyright for 'criticism & review'. The US also has a parody exemption, I believe.
Parody and educational exemptions got cut in the 2001 and/or 2004 changes... they still exist in precedent. So said my employing school district's lawyer.
With graphic art, there is another specific definition for derivatives which requires a certain amount of changes, expressed as percentages. Most of the fan art is recognizable as derivative, and in the case of a lot of Palladium stuff, it's fairly distinctive, so KS does have a leg to stand upon in suppressing it.
To be able to use a derivative, however, he needs a transfer of ownership... at least as I've been lead to understand both by IP lawyers and by reading the law itself... the derivative is copyright the deriving artist and the original artist... and he needs permission from the deriving artist to use same. If, however, the art is up on a site with the needed disclaimers to avoid a C&D letter from KS, then he's got a pretty good case for the implied transfer of the ownership right there.
Keep in mind:
Licenses are agreements that grant some rights, but take a bunch more away.
Quote from: Elliot Wilen;332317S'mon, since you actually have some expertise on this topic I wonder if you can clear up my puzzlement. You seem to be suggesting that a derivative such as an unauthorized sequel, or a module using distinctive characters or concepts derived from a game, wouldn't be a derivative work. Is that right?
The lawyerly answer is "It's a grey area". If you are J K Rowling and someone writes an unauthorised Harry Potter, your very expensive lawyers will likely be able to get an interim injunction, forcing withdrawal of the book pending decision. Publishers know that, so they don't try. As to whether she'd win in court is harder to say. Some US courts have stretched 'derivative work' beyond the statutory definition.
Contarily, the preliminary finding in The Wind Done Gone case strongly indicated that use of another's characters, setting & plot (Margaret Mitchell's) is not automatically copyright infringing, even without a parody defense.
The general rule for sequels: Rowling or George Lucas may not have a cast iron case against you, but they can make your life sufficiently uncomfortable it's not worth the hassle.
Setting a story in the Star Wars universe, or a module in the Rifts universe, but not using signature characters & plot, is further away again from being a clear derivative work. There is no finding that fictional worlds are protected, only the underlying literary/artistic work. And rules as such are definitely not protected, indeed protecting game rules is effectively forbidden under the Berne copyright convention.
There's an additional Fair Use issue that creating adventures etc is necessary to the play of RPGs. No publisher wants to see a court rule on that, because they could lose a large chunk of IP if it went against them. So you'd have to be crazy to sue someone for eg posting a RIFTs adventure online.
Quote from: jrients;332323S'mon, are you saying you don't care whether the policy does what it claims to do so long as it doesn't draw litigation? I think I would want my attorney to say "Hey, your ideas about derivate work is completely nutso."
If I'm his attorney, and he is asking me to clear his policy, I am not concerned with his PR. I am concerned with his liability - whether he could get sued for this. Also, is he giving away something - some IP rights - he didn't intend? Lots of companies have unenforceable policies, they can be useful tools of intimidation. In this case, I think the policy is stupid because it annoys his potential customers, but as his legal adviser that's not my concern. It would be the same for T$R's lawyers. Their IP policy was legally unenforceable, I think they knew it, but it had the effect Ms Williams wanted.
This may be wrong, but I would enjoy an exchange between Kevin©®™ and Leonard J. Crabs. Oh yes.
Not precisely relevant... but talk of IP and rights to parody always bring this case to mind:
http://en.wikipedia.org/wiki/Air_Pirates
SA's articles have probably been some of the biggest publicity he's had in a while.
What is broke-ass Palladium going to do about fan sites and conversions? What damages or even legal fees would he ever be able to collect on? Would an attorney even take the case if he/she realized that the respondent of the lawsuit would be an under-employed barrista?
Quote from: Christian;332416What is broke-ass Palladium going to do about fan sites and conversions?
Rant like Hitler in a Tarantino film.
Quote from: S'mon;332332The lawyerly answer is "It's a grey area". If you are J K Rowling and someone writes an unauthorised Harry Potter, your very expensive lawyers will likely be able to get an interim injunction, forcing withdrawal of the book pending decision.
Thanks, S'mon. That's very interesting since I've seen such widely differing explanations of what constitutes "derivative".
Quote from: Elliot Wilen;332455Thanks, S'mon. That's very interesting since I've seen such widely differing explanations of what constitutes "derivative".
The US Act's legal definition of a derivative work appears identical to the UK "adaptation", but in plain English the phrase "derivative work" implies something broader than "adaptation", and I think that's where the confusion lies. US claimant's lawyers can try to persuade judges to apply the plain-English meaning rather than the statutory definition. If the respondent does not have good lawyers of his own, they are likely to succeed.
Note that traditionally most copyright cases have been heard in the first instance by generalist judges who know little about copyright and are easy to hoodwink. Plus in the US big corporations (Microsoft, Disney etc) can often get the case heard by friendly home-town judges who are almost guaranteed to find in their favour.
Palladium, of course, is not Disney. It's not even WotC. BTW I've been keeping an eye on WoTC legal's approach over the past nine years and been generally impressed by how they've avoided idle legal threats and focused on easy trademark-infringement claims rather than copyright. I think with 3e the OGL helped greatly with that. Even with 4e when they've threatened people it's been typically over unauthorised use of the 4e D&D logo, not copyright. They've been very wise to lie low over OSRIC, for instance.
Quote from: S'mon;332459Palladium, of course, is not Disney. It's not even WotC. BTW I've been keeping an eye on WoTC legal's approach over the past nine years and been generally impressed by how they've avoided idle legal threats and focused on easy trademark-infringement claims rather than copyright. I think with 3e the OGL helped greatly with that. Even with 4e when they've threatened people it's been typically over unauthorised use of the 4e D&D logo, not copyright. They've been very wise to lie low over OSRIC, for instance.
I think the OGL and the old 3.X D20 licence were pretty much based
entirely on the assumption that the D&D trademark is/was far, far more valuable than the copyright to the actual rules.
I would posit that the behaviour of the market since the release of the licences, the proliferation of OGL-based content in comparison to D20 licence-based content, and the success of the likes of the retro-clones, True20, Mutants & Masterminds, Pathfinder, and so on suggests that this assumption was deeply flawed: gamers genuinely don't seem to care what the game they are playing is called so long as the rules are right. And I would also suggest that both the sweeping changes to the system made for 4E (ensuring that it would be damn difficult, if not impossible, to put together a 4E clone using the OGL) and the significantly more restrictive GSL means that WotC have realised that and are now getting much more concerned about the copyright and less keen to emphasise the trademark stuff. (Though even then, note how they let 4E Kingdoms of Kalamar slide by without a squeak of complaint.)
Quote from: Warthur;332500And I would also suggest that both the sweeping changes to the system made for 4E (ensuring that it would be damn difficult, if not impossible, to put together a 4E clone using the OGL)
I don't think that's really true. The rules mechanics of 4e are not protectable by copyright (and do not gain any protection under the OGL, which of course does not envision 4e), only their expression. I don't see any reason why, with some care, you could not clone 4e just as OSRIC clones 1e. To be careful you could restrict it to classes & monsters covered in the d20 OGL System Reference Document, but that's not strictly necessary - what *is* necessary is that you not include designated WoTC 'Product Identity'.
I guess maybe there is an issue with class Powers, but the mechanics of the powers are not protectable, only their expression. If you put the work in, you could express the same mechanical effects without it being a derivative work.
And most importantly, when using the OGL, if WoTC thinks you're in breach, they have to notify you of the breach and give you time to rectify it. That puts the onus on them to construct a case against you.
Whether this would be worth doing, currently, is another issue. You're not allowed to call it D&D. 4e is already in-print. I guess it might be worth doing for a 'pocket player's handbook' or 'pocket monster manual' type product.
Quote from: Warthur;332500(Though even then, note how they let 4E Kingdoms of Kalamar slide by without a squeak of complaint.)
There was nothing they could do - Kenzer were only using their mark descriptively (nominative use), from what I could see, and were careful not to infringe WoTC copyright. Plus you don't want to sue a company where the boss is a copyright lawyer defending his own livelihood. :)
Quote from: S'mon;332512There was nothing they could do - Kenzer were only using their mark descriptively (nominative use), from what I could see, and were careful not to infringe WoTC copyright. Plus you don't want to sue a company where the boss is a copyright lawyer defending his own livelihood. :)
Plus, what would have been the point?
Seanchai
Quote from: S'mon;332510I don't think that's really true. The rules mechanics of 4e are not protectable by copyright (and do not gain any protection under the OGL, which of course does not envision 4e), only their expression. I don't see any reason why, with some care, you could not clone 4e just as OSRIC clones 1e. To be careful you could restrict it to classes & monsters covered in the d20 OGL System Reference Document, but that's not strictly necessary - what *is* necessary is that you not include designated WoTC 'Product Identity'.
You and I know that, but most of the RPG world does not, and those publishers who do understand it also understand that WotC is much bigger than them and that fighting a legal battle with them would be expensive, expensive enough that for most publishers it simply would not be worth it.
The whole point of the OGL was to a) confuse the issue as to whether game mechanics are actually protected by copyright, and b) explicitly hand over the copyright to the expression provided in the OGL.
The big question is: how much do you have to change 4E before you end up with a "different expression"? This is something nobody's really tried to do, and as far as I am aware hasn't really been tested in the courts, at least not in the field of RPG rules. And as any real lawyer knows, until something's tested in the courts (especially in common law systems) then all you're relying on is guesswork...
Quote from: Seanchai;332540Plus, what would have been the point?
Well, that hinges on what WotC's actual aims are.
The GSL certainly seems to be an attempt to at least partially control what sort of product makes it onto the market - or at least, what sort of product makes it under the GSL. 4E Kalamar stuck two fingers up to that, and in doing so sneakily provides a model for how other people could do the same. By not challenging it, Wizards is effectively conceding that they can't stop people making similar products, so long as they take all the precautions that Kenzer did.
Quote from: Warthur;332796The big question is: how much do you have to change 4E before you end up with a "different expression"? This is something nobody's really tried to do, and as far as I am aware hasn't really been tested in the courts, at least not in the field of RPG rules.
There was a circular from the USCO that was available in 1992 that listed the fair use definitions for musicians. It specified 8 bars of music (in either piece's count, use smaller), without transposition not being a countable difference. It specified also that the text of 8 bars worth was the limit. (Which, depending upon the piece, is one to 4 sentences.)
The plagiarism checker at U. Phoenix checks for any unquoth duplication of more than 15 words; It zinged on a 15 word passage that was purely coincidental; the passage had been created by amalgamating two sentences to trim word count!
ISTR that 20 identical words in a contiguous chunk was the working level for 1992, but I can't be certain, for text. (We spent 3 weeks on copyright in Music Theory III at UAA... including the court upholding that a work submitted for grade was in fact work for hire, and thus the copyright transferred... but AFAIK, that hasn't been challenged since the 2000 change to make unpublished works covered for full copyright term from moment of creation, rather than for only 2 years.)
Quote from: jrients;332290the Rifts corebook (http://www.somethingawful.com/d/dungeons-and-dragons/wtf-dnd-rifts.php)
Tits AND robots? Wow. I really want to play that! ;)
Quote from: Mark Plemmons;333593Tits AND robots? Wow. I really want to play that! ;)
That's pretty much why my group does.
RPGPundit
Quote from: Mark Plemmons;333593Tits AND robots? Wow. I really want to play that! ;)
I bought a bunch of 25 cent covers at the Palladium Open House and I have used them as promos/advertising for my events at cons.
If I put up Tits & Robots, I always get new players coming to the game!
I have always liked that cover.