Article: Protection from Chaos, Part V: To GSL, or Not to GSL?

[Frylock]

You can view the page at http://www.loremaster.org/content.ph...-or-Not-to-GSL

[Michael Brewer]

Excellent series!

I was wondering about Rob's thoughts on the nominative use of Trademarks in a product. Specifically in a situation where a product or service cannot be readily identified without the use of the trademark. A real world example is aftermarket automotive parts. The manufacturer has to identify the make/model for which the part is for and thus using trademarks like "Ford Fusion" is acceptable (as long as the manufacturer only uses as much of the mark as necessary and endorsement is not implied)

Couldn't this concept also be applied towards Power names in a third party character builder, thus allowing for use of "Sly Flourish" when creating a Rogue?

[gaming tonic]

The more I look this series over the more I think that this is the best continuously running series of useful information broken down out of legalese. Thanks to Matt for putting it on his site and thanks to Rob for writing it.

[Frylock]

Excellent series!

I was wondering about Rob's thoughts on the nominative use of Trademarks in a product. Specifically in a situation where a product or service cannot be readily identified without the use of the trademark. A real world example is aftermarket automotive parts. The manufacturer has to identify the make/model for which the part is for and thus using trademarks like "Ford Fusion" is acceptable (as long as the manufacturer only uses as much of the mark as necessary and endorsement is not implied)

Couldn't this concept also be applied towards Power names in a third party character builder, thus allowing for use of "Sly Flourish" when creating a Rogue?

I edited this post to clear up an ambiguity. See the blue heading towards the top. It would be tough for WotC to claim copyright in the phrase "Sly Flourish" by itself. Since writing this article, a judge in Poland became the first judge to suggest the theoretical possibility of copyrighting a single word. He didn't allow it, and if he did, it would likely be overturned by every single judge in the western world, but that's as close as you're going to get to "Sly Flourish" by itself being copyrightable. There's something to be said, however, for "Sly Flourish" being copyrightable within the context of the entire game, but that's still a tough argument to make because the context in which it's used is functional, which means it isn't copyrightable.

However, let's assume that it is separately copyrightable. Then I have to say that you're comparing apples and oranges. Trademarks and copyrights are grounded in different statutes (the Copyright Act v. the Lanham Act), and while there are similarities, they use different tests for infringement, they have different excuses and justifications for infringement, and there are actually different offenses (i.e., you can't have "copyright dilution"). Their differing nature is part of the reason for their different treatment under the law. So, if you're asking me what the law is, the law wouldn't allow for such an exception in the copyright context. If you're asking me what the law should be, I'd still say such an exception is inapplicable. In the trademark context, it's necessary, and in fact is actually helpful to the trademark owner by making their products more commercially viable. It's also beneficial to the consumer in a way that doesn't create tension with the trademark holder's rights. It's a no-brainer that it's a good exception. In the copyright context, it simply takes away from the copyright holder's ability to profit off of their work. That's not good for the copyright holder, and in the long run not good for the public. In theory, a strong copyright monopoly promotes creative works, and that makes the world worth living in.

All that being said, I like that you're thinking outside the box. That's how progress is made.

---------- Post added at 01:23 AM ---------- Previous post was at 01:23 AM ----------

The more I look this series over the more I think that this is the best continuously running series of useful information broken down out of legalese. Thanks to Matt for putting it on his site and thanks to Rob for writing it.

If you have any other concepts you want me to cover, please let me know.

[Michael Brewer]

All that being said, I like that you're thinking outside the box. That's how progress is made. .

Thanks!

However, I probably should have clarified a little more about the stance I had taken. I am familiar with the Copyright Act(s) and the Lanham Act, but I was coming from the perspective that short titles, phrases, and names are not copyrightable, so therefore the term Sly Flourish could only be protected through Trademark (even though it could be argued that the term is not used to identify their products).

But I see what you mean, the term Sly Flourish might be copyrightable within the context of their expression of the game rules. Still, if you're only making reference to the Power in another work, I would tend to think that use of the word would not be subject to the protections provided by copyright or trademark law.

All that having been said, being morally and legally right does not preclude financially capable entities from strong-arming smaller entities into complying with their own (unfounded in law) vision of intellectual property ownership. With the cost of defending yourself so immense, how can the little guy keep from being bulldozed by expensive litigation?

[Frylock]

. . . I was coming from the perspective that short titles, phrases, and names are not copyrightable, so therefore the term Sly Flourish could only be protected through Trademark (even though it could be argued that the term is not used to identify their products).

I see. The reason I assumed you were referring to Sly Flourish as copyrightable is that WotC isn't using Sly Flourish as a trademark. It's not their brand name. Mike Shea, on the other hand is, and if he doesn't register it as such I'm going to punch him in the knee.

All that having been said, being morally and legally right does not preclude financially capable entities from strong-arming smaller entities into complying with their own (unfounded in law) vision of intellectual property ownership. With the cost of defending yourself so immense, how can the little guy keep from being bulldozed by expensive litigation?

I've dealt with this issue in four of my articles. The answer is that there's no way to avoid being bulldozed. Looking at the Clue Computing case, as of the date I wrote it, one of the owners told me that they're still paying off their legal fees (15 years or so later). If you know you're right, fight, and win, you still lose, and the BBEGs know that. What's really difficult about the Clue Computing case, though, is that Hasbro wasn't a BBEG in that case. They we're a BBGG ("big bad good guy"). They had a reasonable, though wrong, argument, and were actually trying to stop what they saw as an example of a common problem of little guys screwing over big guys by a hole that existed in the law at the time.

Legal fees are a difficult issue, but the so-called American rule (each side is responsible for their own legal fees) is the best (not perfect) solution. Remember that a little guy can be either a plaintiff or a defendant, and can be right or wrong. Making one side or the other pay for legal fees along each of those spectra could always result in a little guy getting pummeled with legal fees. Requiring everyone to pay their own at least allows the little guy the ability to retain a choice in the extent of their legal expenses.

In most cases, the best advice is to give the other guy what he wants whether he's right or not. It's essentially a perk of being very successful. An unfortunate reality, but a reality nonetheless, and so far, I haven't seen a better solution presented.

[Matt James]

Are the fees primarily based on paying for representation? Meaning, would it cost an attorney (say: you) little when compared to someone like me? This is all assuming that the attorney accepts the resources expenditure of time (because time is a very valuable resource).

[Frylock]

Are the fees primarily based on paying for representation? Meaning, would it cost an attorney (say: you) little when compared to someone like me? This is all assuming that the attorney accepts the resources expenditure of time (because time is a very valuable resource).

I'm not a litigator, but even I can come up with some examples of extra expenses. It all comes down to the fact that BBEG plaintiffs can afford to take risks that little-guy plaintiffs can't afford to take, and that adds to both their own and your expenses.

First and foremost is the filing of the suit itself. A little-guy plaintiff might not even sue you in the first place because they can't afford it. Any suit you face from a BBEG might by its very nature be an "extra cost" you wouldn't face from a little guy.

The next thing you have to worry about is that the BBEG, as plaintiff, will file suit where they want. Let's say they're based in Colorado, millions of miles . . . . . . thousands of miles from where you live. Chances are good that any contract you signed agrees to jurisdiction where they want it, but let's say it doesn't. They may have little chance of getting a home-field court, but it's worth a shot because they have the money to spend. A little guy wouldn't necessarily spend the money on this if there was little chance of success. Also, your attorney might not want to deal with Colorado (not being located or licensed there), so now you have to scramble for a Colorado attorney.

Still not settling the case? Okay then, you go to trial and win. That's great, except a big guy again can afford to take the chance on an appeal even if there's little chance of winning. In fact, if the plaintiff loses that appeal, they might as well petition the Supreme Court (state or federal) to hear the case after that. Moreover, if all of this was done in state court, an appeal from the state supreme court to the US Supreme Court is theoretically possible. (The issues we're discussing here are usually for the federal courts, but not always. The GSL, for example, is a license subject to state law regulation, so if it's a pure license issue, not copyright, you could be in state court.)

Interspersed in all of these are potential interlocutory appeals.* Most appeals aren't properly addressed in the middle of a trial, but again, if you have the money to spend, what the hell. Go for it, especially if you know that other guy can't afford the extra fees.

So long as all of these long shots aren't considered "frivolous," you're not going to be reimbursed for any of these extra steps. A finding of frivolous is relatively rare. The plaintiff (and defendant) are permitted to take reasonable long shots. After all, that's how new law is made.

This is just the tip of the iceberg. A litigator could probably handle your question better. The bottom line, though, is that a BBEG plaintiff has the resources to take a chance on long shots. Little guy plaintiffs don't create these kinds of headaches (including the act of suing itself) because they can't afford the risk, but I'm sure you can see that this is both a royal pain in the ass and expensive.

*This is when you say to an appellate court, "I'm in the middle of a trial, but this issue can't wait until the end of the trial. We need to address it now or I'll get completely screwed." An example of this (for a defendant, anyway) is where the defendant claims the court doesn't have proper jurisdiction or venue, but the trial judge disagrees. If the trial judge is wrong, the defendant would have to fight an entire court case, then appeal, and then be told that the entire court case shouldn't have been brought. Then the trial judge would say, "My bad."

[dodonna]

Sorry that I'm coming to this conversation late. I was looking for some information regarding the OGL, GSL and 4th Edition, and stumbled across your excellent series of blog posts on issues of copyright and product identity.

What I'm wondering is this: under the OGL, is it possible to incorporate rules ideas that were introduced in 4E? I'm not talking about reskinning 4E or creating a compatible clone, just using a few bits and bobs. I know that 4E is officially intended to be covered by the GSL, but given that the OGL appears to be flexible enough for a couple of companies to flat out republish 1E D&D, I was wondering whether it was also forwards-compatible.

I'd been toying with creating a Microlite20 variant that was both a bit retro and a bit modern, nicking a few things that I like from 4E. The example that comes immediately to mind is an all-purpose 10+ saving throw. Obviously, saving throws are in the d20 SRD, and rolling a 10+ on a d20 isn't itself copyrightable. But am I stepping on toes if I publish an OGL game that incorporates a generic 10+ save?

This is really more or a homebrew project than anything, and any publication on my part would be in the form of releasing it into the wild. I know that I can do anything that I want so long as I keep it to myself, but the possibility of eventually sharing it with others has an appeal.

Off-hand (and recognizing that this is not legal advice), do you think that I could, under the auspices of the OGL, publish something that (for example):

*Incorporates spell-like abilities that target specific defenses--say, a Dexterity defense--rather than the old-school method of requiring the target character to make a saving throws against the spell?

*Employs the progression of difficulty class and damage formulas that underlie 4E? (Look at Sly Flourish's DM Master Sheet to see what I'm talking about: http://slyflourish.com/master_dm_sheet.pdf) I'm not necessarily saying that I would publish that table, but rather use those numbers in setting DCs, damage expressions and defenses.

*Uses a phrase like "close burst 2" to describe an area of effect?

*Has a player character race that is a dragon-human hybrid so long as one didn't use the Dragonborn product identity or description?