Wednesday, April 15, 2009

Doomsday Scenario

This is role-playing, so forgive me if I engage in a bit of fanciful imagination here...

Fight On! (and its ancillary gimmick products designed to influence the results) won the March Lulu author contest, with Swords & Wizardry offerings landing in the top ten as well.

Today is the "download the stuff you already bought - today only!" day at RPGNow and DrivethruRPG. The blogs move quickly but I don't think we need to remind people too strongly about the PDF misjudgment.

Wizards thinks PDF piracy is a threat to their business. Why wouldn't it think the same of the "Old School Renaissance," which is now bigger than God and stock car racing (on Lulu, anyway)? A commenter over on Grognardia got me thinking when he said, "Its not like they can come in and shut down the blogs and other old school community!"

Can't they? Imagine, if you will, if Wizards decided that previous-edition adherents are making them lose business (well... we are), that they are attracting too much attention and could siphon off even more of their customer base, and that it was time to do something about it. Is this realistic? Probably just as realistic as the last adventure I ran, but there were fatalities there as well...

The first strike is the Wizards legal department, or better yet Hasbro's, contacting Google and naming a number of blogs on their Blogger network that are flagrantly and egregiously posting copyrighted content. Technically, we have, all of us, haven't we? Book covers, at least. Would Google examine the blogs first or take them down immediately? What about Lulu? Who would they side with if Wizards came calling with the claim that a great number of books are misusing their OGL and violating their copyrights and trademarks?

The second strike would be sending cease and desist letters to all publishers and online hosts that post content for older edition games. Whether you've just published one thing or a line of supplements, whether you're a real business or just a guy selling stuff out of his bedroom, whether you deal in print or simply host downloads and/or a message board, would you risk Wizards following through on their legal threat?

The third strike would be to actually make an example out of someone. Lawsuits don't have to have any merit to be filed, and I'm thinking that disagreements about the interpretation of the OGL might not even be something that could be seen as meritless. Legal fees add up quick, even if you are completely in the clear. Could you afford it? And how are a judge or jury going to decide on the case. Do you trust them to make a correct judgment on such a thing? Depending on your location and local laws, you might not be the example, but then again Wizards could pick and choose who would be their example. Local, hobbyist publisher with a family (is your wife going to support you in fighting this for your little vanity press project?)... boom!

Now this wouldn't make old edition play, or materials (not even on the net), go away. That's not the idea. But I daresay it would make larger concentrations of online activity, and commercial efforts, go away and make sure it's not so visible to the more casual RPG fan. It could be taken out of the public eye.


  1. Interesting scenario, but I don't think the 137 of us amount to enough money for WotC to do it. The cost for the lawyers is probably better spent elsewhere, in their eyes.

    The idea of going after the pirates was that there were enough people interested in the latest/greatest to pirate it, versus buy it. WotC wants people to buy latest/greatest. We (the 137 of us) are not likely to buy the latest/greatest, so there's no real ROI on going after us.

    I also think that if the "anti-OGL" scenario were plausable, the first strike would be against Paizo, who have real marketing and real market share which affects WotC's latest version sales.

  2. >>I also think that if the "anti-OGL" scenario were plausable, the first strike would be against Paizo

    Actually, I think they wouldn't do this because Paizo would go to court over it. My scenario involves going after people who are likely to fold without going to court.

  3. Except everything that you have mentioned is legal via U.S. copyright law.

    "...including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

    Posting pictures of covers and even providing excerpts of text to critique, comment, and report is completely legal. If WotC did something like this, I would say it would be grounds for a huge lawsuit against them.

    As far as the simulacra are concerned, games rules are not protected by copyright either.

    You did hit on a real issue, the OGL. I haven't marked anything I have done as OGL because I feel I would be opening myself up for more legal entaglement. I think publishers would have more rights under strict fair use, but I think everyone believes its safer to play by the OGL (except maybe Kenzer).

    Personally, I would hire an awesome IP attorney (to be paid by a large % of any judgment) and take it all the way, no settling out of court, no mercy.

    Heh, now you have me fired up and I HOPE WotC would do something foolish like that.

  4. My entire scenario is predicated on the idea that there is no legitimate legal issue to begin with... But being right doesn't stop anyone from incurring legal costs... and if Wizards wanted to push an "improper use of OGL" suit, there's no guarantee how that would end up, and would most likely end with "gracious settlement offers" coming from Wizards which would ask for non-monetary concessions in return for not pressing the lawsuit.

    But of course this is just idle, imaginative speculation, since we both know that Wizards, nor any RPG company for that matter, would take a hardline draconian stance or do anything that would result in much unnecessary bad publicity.

  5. No, it's fun woolgathering, but I put the risk at pretty frakkin' low, especially for the OSR bunch. Big corporations tend to go after the juicy targets, which is why I think Paizo would make the ripest first target. SCO has been trying it for the past umptyump years with their incessant Linux suits.

  6. I think the actual risk is pretty low at the moment. WotC/Hasbro hasn't sunken THAT low, yet. But if they would go after the bloggers, small publishers etc. then those would probably fall very quickly. There are only a few people who would risk to go to court with a corporation like Hasbro.

  7. I am pretty sure that these scenarios are the whole point in the OSRIC project. The idea was that the copyright holders of OSRIC take the risks so that you don't have to.

  8. In the miniscule event that WotC sent me a cease and desist letter over CARCOSA, that would give me one more reason to take my family and move to Chile. From there I'd continue to publish CARCOSA, and I'd compile an OD&D set (thoroughly Carcosa-ized) and start selling that as well.

  9. I wouldn't worry unless WotC plans on releasing a "D&D Classic Edition" sometime in the near future. Then, look to your lawyers, gentlemen.

  10. I lived in Chile for several years. Beautiful country, great wine, amazing food but not much in the way of roleplaying.

  11. The OGL is the key, as long as you use it, and don't include anything from a past edition that can't be found in a older edition, never copy any text verbatim, then your chances of legal problems with Wizards is virtually nil.

    The reason is that it boils down to money. With the permission granted by the OGL, any legal action short of direct copying is going have to face the facts of diminishing payoff.

    As I pointed out on my blog not all retro product share the same legal risks either.

    1) Settings - very little exposure especially if done in with light stats.
    2) Adventures - some more with stat blocks
    3) Rule Supplements - more risk but truly original rule books (like the esoteric creature generator, a book of brand new classes, etc) are not that risky at all.
    4) Retro Clone - the biggest risk.

    Interestingly enough I feel it is far easier and less riskier to support the oldest editions of D&D than the newer ones like AD&D 1st and 2nd.

    The reason is that pretty much of all of the oldest editions can be found in the d20 SRD. This combined with the minimalist presentation makes it pretty easy to stay within the boundaries of the d20 SRD.

    This was the reason that I was happy to do Points of Light and the Wild North.

  12. If WotC took a small publisher to court in hopes of more easily establishing precedent that could threaten the larger publishers, I believe the larger publishers would take notice and provide appropriate legal support.

    I believe my Chaotic Henchmen Productions stuff (which use neither the OGL nor GSL) are done legally and would be deemed acceptable by the courts. I wouldn't have ignored the OGL and GSL if I wasn't confident about it. I have enough financial freedom to fund a bit of a fight over it.