Wednesday, October 6, 2010

OD&D and Copyright / Fair Use

With some interest in the blogosphere lately for an OD&D "Clone", the main obstacle to seeing such a thing come to light seems to be copyright law. With later editions, there seems to be enough material that is easy to "recreate" via the D20 SRD, which allows you to "release" an OGL version of your favorite game.

With OD&D, the problem is that it is literally so light on rules, that most of the stuff that makes OD&D different from the later editions is what we normally think up as "fluff" or "flavor text". OD&D has a whole booklet devoted to wilderness and underworld adventuring, which I think most folks will agree is the meat of the set, and this is not an easy thing to reproduce without treading in some very gray waters. Throw in a whole pile of other idiosyncrasies you won't see anywhere else, and you get a package that is fun to reproduce in spirit, but damned hard to reproduce in substance.

So why not just use the real thing?

Well, unless you've got a few hundred bucks to blow, you're not going to get the real thing. True, you may get lucky, if you've got the time, and hunt down one of those collectors reproductions, TSR released later on, for less than a hundred bones. But Hasbro/WotC won't produce any new "legacy" copies (even though game companies crank out "vintage" or "classic" editions of games like Risk and Monopoly every couple of years), and they've shut off the whole .pdf-version tap.

Of course, there are plenty of electronic copies floating around. But is it legal to distribute these? Could you dress up a copy of the booklets and put them up somewhere like Grognardia for free public consumption without drawing the ire of some corporate attorney? And could you reproduce the rules in "retroclone" format so long as it was done non-profit?

To answer that question you have to take a look at the US Copyright Office's qualifiers for what is termed "Fair Use". Basically, Fair Use is the assumption that you're distributing something for criticism, curiosity, research, or educational purposes, as opposed to attempting to use it to turn a profit or hinder the copyright holder's ability to profit. If its "Fair Use", you don't need the copyright holders permission to distribute or reproduce the material. "Fair Use" is typically determined through "four factors to be considered in determining whether or not a particular use is fair:
    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work"
Lets take a look at those, individually.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. Obviously, no one is going to "sell" a free .pdf, so no worries there. Nonprofit, educational purposes? Well, sure. The current owners have made it very clear that what they consider to be "Dungeons and Dragons" bears very little resemblance to what existed in that woodgrain boxed set, so by that measure, any attempt at playing the "original" edition would be a study in the historical development of a game, as well as the culture that grew up around that game. Sounds educational to me - or am I stretching that too far?
2. The Nature of the Copyrighted Work. Its a game. Again, it is also a version, of a game, that the copyright owners consider to be obsolete.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. This, in my opinion, is the trickiest of the rules to consider. If someone shares an electronic copy of D&D with someone else, could it be argued that copy is a copy regardless of edition? Regardless, if you do take D&D "as a whole", it seems to me that the original set (or the text-heavy book 3 in particular) is a very small part of the whole body of published D&D works.
4. The effect of the use upon the potential market for, or value of, the copyrighted work. This, also in my opinion (I'm not a lawyer!), is the least tricky of the qualifiers. If five million copies of OD&D were downloaded or shared tomorrow, the effect on the potential market would be "zero", simply because WotC in no way tries to sell the thing. Strangely, by removing OD&D from the market altogether, in electronic or printed format, it would seem they have removed their ability to claim that say, handing out free copies of the woodgrain box at the next GenCon, could cause the company any financial harm.

Again, I'm no copyright attorney, so my little review here must perforce be taken with a grain of salt. But it could be worthwhile having someone qualified take a serious look at the situation. For you armchair copyright attorneys, here is a good read.


  1. 2.) I don't think the game being considered obsolete works. My understanding is that copyright includes the work itself and permutations of the work. So, like when Stephen King released an expanded version of The Stand, he didn't have to apply for a new copyright.

    3.) I think by the "whole" they mean the individual work itself and not the whole spectrum of published D&D works.

    In other words, if you were writing an article about that particular edition of D&D, you would be free to quote large sections of it without committing any copyright violation. But you couldn't reproduce the work in its entirety.

    4.) Couldn't they claim they were planning to release it? Or your releasing of it is detrimental to their control of the D&D brand?

    And that's not even counting how the issue would spiral into other territory like trademarks.

    In short, WoTC are just dicks.

  2. Sidestepping the idea of copyright a little, because it's so skewed to corporate interests:

    I think it might be possible to capture ambiguities in the original text without quoting the original text. But it is much harder. Because, as we all know, we learn implications about a text over time, through use, through running into problems with it.

    So, to be able to capture the original ambiguities even those unintentional, contradictory, and unhelpful, the "cloner" would need to be very experienced with the rules and feel passionately about preserving the original blemishes and all.

    I personally think we'd be better served as a community by a wiki of possible approaches, if making it our own and house ruling is the goal, after all. So, for example, what are the possible ways of dealing with demi-humans in a level-based system, lay them out and let DMs choose. A wiki wouldn't require one passionate author, would be communal, and expansive.

    Sorry for the long post, but with our technology, this is something we can do now that Gygax and Arneson couldn't.

  3. The waters wouldn't be so grey if Wizards of the Coast had to pay 30 years in back Copyright taxes for the game.

    If the Government charged a tax to keep something in copyright beyond 5 years, which went up arithmetically or geometrically every year, and then charged BACK TAXES, Wizards would have no choice but to let OD&D fall into the public domain. I prefer Arithmetic progression of the Copyright Tax! (which would progress as the item gets older).

    That is my little solution to this whole Copyright vs. Internet thing.

  4. @Chad - "I think by the "whole" they mean the individual work itself and not the whole spectrum of published D&D works."

    An interesting clarification - it makes one wonder if you couldn't include the Underworld text (properly attributed) along with SW White Box rules as one "example" of how someone ran such details.

  5. @Telecanter - I like the idea of an OD&D wiki!

  6. There was an OD&D study wiki, but it doesn't seem to have gotten off the ground.

    What I'd really like to see is an OD&D Annotated Edition (like those New Annotated Sherlock Holmes volumes published a few years ago).

  7. What Paul said. OD&D annotated edition ftw.

  8. I'm not a lawyer either, but as a librarian, I spend some of my time thinking about this kind of thing.

    I'm afraid that I can't think of any way that distributing copies of the OD&D rules could be considered Fair Use. My understanding of the first factor is that use that is "transformative"--where the use is creative beyond simply reprinting the original--counts in the user's favor. The kind of use you are suggesting (if I understand you correctly) would not be transformative, and likely would count in the owner's favor.

    Factor two favors Free Use when the work in question is more factual than creative. Factor three is entirely against you, since (again if I understand) you are talking about scanning and distributing the entire rules.

    I don't know how a judge would interpret factor four. Obviously there is no market for OD&D rules now, as there are no legit new copies being produced by the copyright owner. OTOH, I wonder if WOTC couldn't argue that free copies now hurt potential future revenues of an as-yet-unprodced Throwback D&D rules box set?

  9. I have trouble imagining WotC actually taking legal action against an OD&D clone, particularly a free one. Even if it would indeed violate enough copyright law gray area to make legal action conceivable, I don't think doing so would be practical. Nobody who wants an OD&D clone is likely to be buying WotC products, and nobody who buys WotC products is likely to want an OD&D clone.

    Taking anyone to court over this would be a colossal waste of money, unless WotC could be sure of a fast verdict in their favor -- in which case it would be a moderate waste of money.

  10. That site with image scans of the pages of the OD&D books keeps getting shut down and popping up elsewhere. That's likely due to WotC IP lawyers, which is their job.

    They may not care about direct revenue lost to old school gamers who won't buy 4e, but they will care about IP and trademarks. Legal action over the former may not be worth it, but legal action over the latter could be.

    If people really want to do it (violate copyright and infringe on trademarks), I say go ahead and do it. Just do with eyes open and don't try to convince yourself and others that it's "really okay."

  11. Well, they'd probably sue a group of people enmass.

    The whole thing is, however, just ultimately ridiculous. In this day and age, nothing should ever have to go "out of print". There is still a viable market for these older editions, WoTC could easily still be making money. How difficult would it be to create .pdf files of these editions and sell them for 5 to 10 dollars? But I suppose they have some notion that might cut into sales of 4E?

    The thing of it is, nothing will ever be "theft" proof. I mean nothing. You can make it more difficult, but never impossible. But sometimes systems like this, I think, they just encourage copyright violations, encourage "theft", when there is a whole group willing to pay a fair price.

  12. My (non-lawyer) understanding is that releasing OD&D by that name would reduce the value of Wizards' trademark 'Dungeons & Dragons' - for example by consumers confusing one with the other - and that there's no 'grey area' or 'fair use' wiggle room.

  13. Chad got it.

    I think it may be profitable to lobby WotC to produce a collector's edition of older games. I know they desperately want people to play 4E, but I'm sure they care more about money than a principle. But maybe they believe the "low quality" of older editions of D&D undermines the brand marketing they're doing with D&D now. In that case, I'm afraid they would never release collectors' editions.

  14. This site has been around forever, and seems to indicate that without reproducing the original, you can still re-create the rules and share them without raising the ire of WotC.



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