Wednesday, August 11, 2010

A Kerfuffle in the Offing?

James over at the Underdark Gazette has posted on a topic several people emailed me about earlier today. Follow the link to get the basic facts of the situation, along with some interesting commentary.

As I see it, Die Cast Games is either extremely brave or extremely stupid. I don't think adopting TSR's mid to late-80s trade dress is that big of a deal. As I recall, others have already done it without any negative consequences. What no one has done, however, is use the name "Advanced Dungeons & Dragons" in order to promote an old school product. It's true that the module doesn't reproduce the AD&D logo from the same era, but it does imitate it, in addition to using the code "TSR1" to identify it.

Taken together, using all these elements in a single cover design strikes me as foolhardy in the extreme, practically daring Wizards of the Coast to take legal action against Die Cast Games. I'm no fan of what WotC has done to D&D in recent years, but I don't think any reasonable person could argue that they can just ignore a product like this.

Honestly, I don't really care what happens to this module or to Die Cast Games. However, I do think there's an off-chance that this foolishness could have negative repercussions for the whole old school scene. Let's face it: on some level, everything we do is at the sufferance of WotC, who, if they wanted to do so, could probably make enough hay of this and other violations or near-violations of their trademarks and/or IP to put a stop to it. That they've never done so to date speaks well of them, regardless of my feelings about other aspects of their business. Die Cast Games might well have just poked a finger into the eye of a sleeping giant that none of us want awakened. There's the potential for great harm here.

Maybe I'm paranoid; I don't know. But I guess, given the great care to which folks like Stuart Marshall, Matt Finch, and Dan Proctor have gone to in order to avoid infringing on WotC's trademarks and IP, I'm more than a little miffed that Die Cast Games seems to have thrown caution -- and common sense -- to the wind with this release. Like I said, I could care less what happens to them, but I don't want to see anyone else suffer as a result of their reckless behavior.

137 comments:

  1. Speaking as an IP professional, I agree that this is vastly more dangerous than anything the OSR has produced so far. I think retro-clones and the like are, in general, more or less safe so long as they stick to the methodology used in OSRIC - that is to say, rely heavily on the OGL's exceptionally liberal permissions on what you are allowed to use, don't copy-paste verbatim from copyright material, and so on.

    This isn't completely without recent precedent. KenzerCo put out a 4E version of their Kingdoms of Kalamar setting and boldly declared it D&D 4E compatible, without buying into the 4E licence at all. They got away with it, as far as I am aware. Then again, Dave Kenzer is an IP lawyer in his day job and presumably has an intuitive sense of where the line is drawn with this sort of thing. (As always, it's a competition between the irritation/damage caused by the infringement and the hassle and expense of actually taking people to court to stop it, in the event that they don't kowtow to a cease and desist.)

    But this time they're not just using the AD&D name, they are using a carbon copy of the old trade dress, as you point out. If that isn't grounds for a passing off case, I don't know what is.

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  2. It really is profoundly stupid. Then again, they also have a giant logo that dominates every page of their website.

    This can't end well, the question is, how wide will the crater be.

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  3. Sorry to double post, I just saw his justifications for his use of the name in the forum posts linked from the Gazette article. Oh dear. It looks like the guy has just enough legal knowledge to dangerously misinterpret the OGL.

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  4. I almost want to buy a copy, just so when the inevitiable happens and it changes, I can have the 'super-rare' version. :/

    Does anyone know if it's any good?

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  5. I wonder if the Easley art was acquired with the appropriate usage rights. That seems like it would be expensive.

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  6. WOTC owns D&D and AD&D - that's that. Whether anyone likes what they do with their property, violating their copyrights and trademarks is wrong. Hopefully these guys won't cause trouble for the rest of us, who just want to publish material for a system we love without breaking the law.

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  7. AD&D has been used on an OSR module as recently as the last two years - along with similar trade dress.

    There's precedent and I'm not in a bunch over it.

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  8. Hopefully these guys won't cause trouble for the rest of us, who just want to publish material for a system we love without breaking the law.

    The rest of the old school scene who work within the bounds of the licence have nothing to worry about, however, if Dice Cast Games do get themselves in trouble there is the possibility the whole scene will be tarred with the same brush, not by WotC, but by those from outside of the scene - and that would be a great shame when so many are trying to bring fresh blood into our niche.

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  9. This should also be a test of the recent Kuntz/Kask vs. Raggi fight, where Kuntz stated that there was no need for retro-clones. If this gets through, I would imagine he is right.

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  10. Based on what I've seen and heard lately, I don't think there's any telling which way WotC is likely to jump. They don't know what to do with their miniatures line, they're manufacturing D&D boardgames, and they're pumping out 4E product like there's no tomorrow. This, to me, says someone in there is desperately trying to hold the line and justify his job against someone at Hasbro who just doesn't understand why D&D doesn't sell as well as all things Transformers.

    This being said, I wouldn't think they'd go so far as to launch an all out assault against the retroclones. There IS such a thing as "not enough lawyers," and I'd think the retroclone movement is just too well entrenched, and our communications are just too good. To stomp out ALL suspected infringement, they'd have to succeed where Lorraine Williams failed back in the eighties, as well as have the resources to do what the RIAA and MPAA is trying to do to the torrent people... and failing to do.

    Considering these are the people who came up with the D20 OGL to begin with, I wouldn't think they'd turn around and go after EVERYONE in the retro movement. There's a difference between confusion and insanity.

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  11. Oh, and Luke: what Kuntz fight are you talking about? This sounds interesting.

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  12. This should also be a test of the recent Kuntz/Kask vs. Raggi fight, where Kuntz stated that there was no need for retro-clones. If this gets through, I would imagine he is right.

    That would be true if Dice Cast Games released their product without using the OGL, but they've gone down the road of using the OGL AND declaring compatibility, which is a very different thing from what Kuntz was saying when he said you don't need the OGL at all.

    AD&D has been used on an OSR module as recently as the last two years - along with similar trade dress.

    @Kiltedyaksman - I can't recall it, what was it and was it an OGL product?

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  13. "This should also be a test of the recent Kuntz/Kask vs. Raggi fight, where Kuntz stated that there was no need for retro-clones. If this gets through, I would imagine he is right."

    Not sure what you mean by that. Even if WotC does sit on its hands, they're not going to let someone get away with publishing the old core rulebooks.

    And thanks for the pointer to my post, James.

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  14. I believe the reference is to Guy Fullerton's Fane of Poisoned Prophecies, which says it is made for Dungeons & Dragons.

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  15. "I believe the reference is to Guy Fullerton's Fane of Poisoned Prophecies, which says it is made for Dungeons & Dragons."

    From what I've been told, that module doesn't use the OGL.

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  17. Rogue Henchmen Games released The Fane of Poisoned Prophecies last year, stating it was "for use with AD&D" and using the old TSR module cover design.

    However, it did not use the OGL, and it didn't place the AD&D logo front and center (or use AD&D as part of any logo at all).

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  18. I think it's dangerous on many levels.

    First of all, IP law really compels the company to vigorously enforce a trademark. Regardless of commercialness or not. And while technically the phrase "Advanced Dungeons & Dragons" is "dead", WoTC can clearly say that any variant of Dungeons and Dragons (such as "Improved D&D") would violate the core trademark. Adding an adjective or adverb to a trademark would really violate one, especially a well-established one, and especially if you are useing it in a confusing fashion. I can't see them just letting this one slide.

    One thing that worries me is that, like James says, a lot of these retro-clones are dependent on the good will of WoTC. Some more conservative types (as in legal interpretation, not political) believe that a retro-clone based on 1/2e D&D is not protected just by sticking on the OGL. I think the legal interpretation justifying OSRIC and others is--games are not copyrightable (only specific interpretations), and the use of the OGL also adds protection to those games. But the simple fact is, the only game WoTC ever released under the OGL was 3rd Edition. Not 1st or 2nd. If WoTC really wanted to make a case, I suspect they could argue that point in a court of law. I suspect they don't because of the bad PR or they think the OSR is not really very big. But that doesn't mean they couldn't change their minds.

    Even Ryan Dancey, who created the OGL, stated that he believes someday somebody's gonna go to court and get legal interpretation changed--a judge will look at a large RPG and determine it is more book than game and that "games aren't protected by copyright" won't apply to RPGs.

    (I'm also afraid of retro-clones outside D&D. People are just reverse-engineering rules and then slapping an OGL on it. I know its mostly for out of print dead games--but at some point I see some creator or company taking action against this).

    I'm hoping Wizards wouldn't take that tact, but the key thing is we need to respect WoTC's rights. I'd be afraid if this act pissed off one executive or legal rep and then they decided to take a more aggressive approach in general. That's a real danger.

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  19. Yep that's the one.

    To some degree I've been waiting for this. There will no doubt be others. I love the clones but people want to play AD&D, call it that, and buy product labelled as such.

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  20. " There will no doubt be others. I love the clones but people want to play AD&D, call it that, and buy product labelled as such."

    Likely so. But the approach these guys take is like setting a bag of poop on fire on Hasbro's doorstep, ringing the doorbell, and leaving a business card before hiding.

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  21. The issue here is not copyright but trademark. Both "Dungeons and Dragons" and "Advanced Dungeons and Dragons" remain, I'm sure, trademarks of WOTC, and I expect "TSR," the AD&D logo and the old module trade dress are trademarked as well. The case here is pretty clear-cut, but when it comes to retro-clones WOTC would have to make the case that they (the clones) are profiting by the use of their (WOTC's)trademarks. Not a particularly easy case to make, but not impossible, particularly if you have more money and lawyers than the other guys.

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  22. The case here is pretty clear-cut, but when it comes to retro-clones WOTC would have to make the case that they (the clones) are profiting by the use of their (WOTC's)trademarks. Not a particularly easy case to make...

    Especially when most clone authors have diligently avoided referencing compatibility or the use of trademarks.

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  23. I'm always ready to stir crap up and have a fight, especially on this topic, which I was arguing with Rob Repp from T$R in 1994 on USENET over. I'm also a lawyer, though not an IP lawyer. I have to say, to pick this fight in this way is stupid. If WOTC didn't go after this guy, it would set a bad precedent. They almost HAVE to. It seems to me to clearly violate the OGL.

    Hopefully a C&D letter works. If it has to go to court, then the ripple effects of some idiot judge's opinion might be bad. You never know what a judge is going to say or do. Thankfully, I think WOTC's lawyers know this as well, so they will try to bury this guy fast and get it over with out of court, likely by attacking his means of distribution and payment, if the C&D letter doesn't work.

    I can't believe I'm rooting for WOTC to quickly crush someone legally for a position of theirs for which I despise them.

    But the potential collateral damage could be too great for the rest of the OSR publishers, whether through court decision, or due to some weird internal corporate dynamic, where we wake the sleeping dragon and it lashes out indiscriminately at everyone.

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  24. But the potential collateral damage could be too great for the rest of the OSR publishers, whether through court decision, or due to some weird internal corporate dynamic, where we wake the sleeping dragon and it lashes out indiscriminately at everyone.

    The ol' enemy of my enemy is my friend, eh? Or, the needs of the many outweigh the foolhardiness of the one!

    Ciao!
    GW

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  25. "Or, the needs of the many outweigh the foolhardiness of the one!"

    The perfect is the enemy of the good.

    The current situation seems to be pretty good. While perhaps not as ideal as if the material was all public domain, there's clearly a lot of room for people outside of WOTC to publish.

    At the end of the day, is this the hill the OSR wants to die on? The ability to knock-off 30 year old TSR trade dress? I don't think so.

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  26. This isn't completely without recent precedent. KenzerCo put out a 4E version of their Kingdoms of Kalamar setting and boldly declared it D&D 4E compatible, without buying into the 4E licence at all.

    If the product is not covered a license that forbids it (like the OGL), compatibility statements that cannot be confused with statements of endorsement, or of production by, the trademark holder are legal under trademark law. Thus, if I write a program for Windows 7, I can say it's compatible with Windows 7 without getting Microsoft's advance permission. Same with titling a book "Unofficial Mac OS X 10.6 for Morons". Or, as KenzerCo did, mentioning a non-licensed game product is compatible with D&D, even on the cover.

    Since this product is OGL licensed, it's in violation of the license, which prohibits use of the trademark "Dungeons & Dragons". Since this product uses "Advanced Dungeons & Dragons" as its major title, instead of an incidental compatibility statement, it's in legal violation of the trademark on "Dungeons & Dragons".

    The fact that "Advanced Dungeons & Dragons", "Advanced D&D" and "AD&D" are in expired registration and in disuse does not help at all, because "Dungeons & Dragons" and "D&D" are. It doesn't work any more than trying to call my new car model "Advanced Chevrolet Corvette", or my software "Advanced Microsoft Word".

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  27. My first impression is that this is really, really dumb. They're lucky if registered letter isn't already in the mail.

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  28. This is one of those instances where it's so outrageously blatant that you at least start entertaining the notion that it was WOTC-backed/sponsored in order to set up an easy legal victory/precedent.

    Surely it's not that, but it's equivalently disadvantageous. I mean, using the "TSR1" designation is the dumbest thing I've seen in a long time. Really goddamn idiotic.

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  29. There's precedent and I'm not in a bunch over it.

    There's precedent for using the phrase "For Use with Advanced D&D" or variations thereof, yes, but, unless I'm mistaken, no one has ever implied that their module was an AD&D one in the way that Insidious does. More to the point, the module uses the OGL, which explicitly makes it a no-no to claim compatibility with WotC's trademarks. So, even if it were kosher to call one's module an AD&D one, it's definitely not OK to do it while using the OGL.

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  30. James Smith wrote on his blog: "The product does include the OGL. The copy of the license included, stated that the AD&D Trademark is used with permission. From the author's reply at Dragonsfoot, this means he interpreted the OGL that way."

    Holy F, that's like kissing the third rail! (I'll confirm that the author did say that at Dragonsfoot.)

    This is the worst thing that could possibly be done, and shows that the author is completely legally in the wrong. He would have a better chance of defense with no OGL. The one thing the OGL explicitly has you agreeing not to do is in section 7:

    "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark."

    And indeed you have this whole precedent throughout the d20 era of WOTC's separate agreement for the d20 Trademark License.

    This will get pulped. Good riddance.

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  31. The rest of the old school scene who work within the bounds of the licence have nothing to worry about, however, if Dice Cast Games do get themselves in trouble there is the possibility the whole scene will be tarred with the same brush, not by WotC, but by those from outside of the scene - and that would be a great shame when so many are trying to bring fresh blood into our niche.

    That's a possible concern too.

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  32. If this gets through, I would imagine he is right.

    WotC would be crazy to let this pass without action.

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  33. Final thought: Maybe it's an intentional PR stunt. Who knows.

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  34. I'm hoping Wizards wouldn't take that tact, but the key thing is we need to respect WoTC's rights. I'd be afraid if this act pissed off one executive or legal rep and then they decided to take a more aggressive approach in general. That's a real danger.

    I agree.

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  35. Delta, I'm such a conspiracy nut, I had that thought too. But then again, such a plan would indicate brains on the part of WOTC. Something I'm not willing to concede. :)

    While you can't stop the flow of what's out there, and you can't stop new stuff from being published, WOTC can slow it down and drive it underground.

    My concern is that it becomes more difficult to grow the old school end of the hobby, especially with new gamers, if it's forced to go underground.

    To share a clone game with a few new people at the game table, then tell them they can put out their own stuff, compatible with those clones, but then tell them they have to do it on the sly because the legality of the clones is under attack by WOTC, well, it would put a fear in a new guy I think. They're more reluctant to publish stuff and share their ideas with the rest of the community.

    Its hard enough to attract virgin gamers to the older games. If they have to be virgin gamers, who are also into the underground scene, that makes it harder to grow this corner of the hobby.

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  36. Especially when most clone authors have diligently avoided referencing compatibility or the use of trademarks.

    That's what galls me most about this. When you look at something like OSRIC or Labyrinth Lord or S&W, you can see the great care their creators took in order to avoid violating anyone's IP or trademarks. Watching someone else behave so irresponsibly now shows very little awareness of or respect for the people who got the ball rolling in the first place.

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  37. At the end of the day, is this the hill the OSR wants to die on? The ability to knock-off 30 year old TSR trade dress? I don't think so.

    To be clear, I don't think the OSR will "die" because of this, but I do think it's ability to reach out beyond its current fanbase could potentially be hampered by the fallout from this debacle, depending on how things unfold.

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  38. Final thought: Maybe it's an intentional PR stunt. Who knows.

    You know, if it's a PR stunt, I think I'll be even more miffed than if it's just simple stupidity.

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  39. Its hard enough to attract virgin gamers to the older games. If they have to be virgin gamers, who are also into the underground scene, that makes it harder to grow this corner of the hobby.

    That's the real worry on my end as well.

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  40. First of all, while it has become fashionable to talk in terms of Intellectual Property, in truth, in most jurisdictions it is a case of either trademark, copyright, or patent law. [Although lawyers prefer to confuse these separate laws because it can make them money. And in some jurisdictions there are moves to introduce laws to protect ideas (IP) explicitly (such as the DCMA).]

    In this case the violation is covered by Trademark law, which they are clearly in violation of. And one of the eccentricities of trademark law is that you are legally obligated to do is to defend your trademarks or you lose them. And this would affect not only the "Advanced Dungeon & Dragons" trademark, but the whole family of trademarks. So Hasbro (who actually holds all the trademarks, including "Wizards of the Coast"), is obligated to pursue this matter, or lose any claim to product identity.

    [And @stevenchrbar, whilst one can use a Trademark in common usage as you indicate, one must be careful to both recognise and identify the ownership of the trademark, usually with an "™" symbol, and indicia indicating the ownership. This won't stop the possibility of legal action though, and was the source of Palladium Books court case against a small company called Wizards of the Coast for using their trademarks in their Capsystem™ supplement Primal Order. Which whilst effectively a nuisance suit, still nearly bankrupted the fledgling company. (And yes, technically I should have added the appropriate trademarks to all trademarked terms in this comment to be fully compliant with the laws... <grin>)]

    In most jurisdictions you are safe duplicating the system of a game, unless it has been patented (and you are in a legal jurisdiction that recognises the ability to patent a non-physical system [such as the US]). However in doing so your text ... or design* ... cannot be substantially similar to the original or you will be in direct violation of the product's copyright. This is the basis as to how Greg Stafford (who owns the Trademarks of "Runequest" and "Glorantha" as part of his split from Chaosium), can licence the name to Mongoose, and Mongoose can then produce a game the looks very similar to the basic role-playing system without paying a licence fee to Chaosium for doing so.

    Again, this is contestable in a court of law (provided that it is contested within a certain time of it becoming known by the aggrieved party). Things like the OGL licence are a set of conditions where the issuer of the licence makes an implied contract [and any torts lawyer just shuddered at that comment] whereby they undertake not to engage in legal action if the conditions of the licence are followed.

    [* Design is a trickier subject, since artwork is protected by copyright. This includes taking a piece of established artwork and making changes to it. Whether this applies to a design format depends on the jury's perception of the intent of the author of the work and the skills of the lawyers arguing the case.]

    As with all legal matters it depends on the laws of the jurisdiction you are operating under and if in doubt you should seek qualified legal advice for that jurisdiction. And as @Joethe Lawyer says, establishing a bad precedent in law can have serious ramifications in related areas.

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  41. You guys seem to be saying one company (really, one man) is stronger and more powerful than an entire movement. I don't buy it for a second.

    Besides, this was bound to happen anyway. The idea that someone wasn't going to try to do this at some point is extremely optimistic. Let's see what happens, and at worst, we are all still playing D&D in a year's time (actually, at BEST we are still all playing D&D in a year's time, but we've won the lottery and a Victoria's Secret model is rolling the dice for us....)

    But then again, the recording industry jumped all over those guys who were trading songs online and shut them all down and now are making tons and tons more money than they ever were, so...oh wait.....

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  42. Something many people don't know about certain "landmark" court cases, is that they are carefully chosen for their fact pattern, the jurisdiction it would be heard in, the makeup of the appellate court, and a million other things and factors, studied by legal experts and scholars, sometimes for years, before the case is even brought.

    If the court's decision has the potential to set a precedent, all parties to the matter want to control the outcome and the scope of the decision in every possible way they can.

    That's what I mean when I say it is stupid to pick this fight in this way. It's a loser of a case.

    While the collateral damage may not affect your game or torrents or any of that sort of sharing, in my opinion if it puts a chilling effect on people publishing their own material to share with others, then its a bad play to make.

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  43. Boy, y'all are turning on this guy awful fast.

    Yeah, he screwed up. You can use the OGL or you can proclaim compatibility but you can't do both. So he's in violation of the OGL. It happens.

    But that doesn't mean what other d20 based folks do - from OSRites up to Paizo - only exists and the whim of WotC. All those things exist because they are well within their legal rights to.

    This reaction seems like a bad bellweather to me - it says "if anything significant did happen, this community would be turning on each other like rabid dogs in a hot minute." "I hope they crush him immediately so he doesn't' infect us!" Nice.

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  44. I'm not sure it will mean legal trouble for the whole OSR. Could it tarnish the reuptation of the OSR? I can see that as a possibility, just not that likely. It will be interesting to see how it plays out. Could the guy use the parody defense? I haven't read the module, but the description names the town as "Sheridan Springs," which I believe was the road TSR Inc. was located on, and in one of the posts he mentions the name of th campaign world or continent being a play on TSR. And then, of course, you have the module's title.

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  45. This reaction seems like a bad bellweather to me - it says "if anything significant did happen, this community would be turning on each other like rabid dogs in a hot minute." "I hope they crush him immediately so he doesn't' infect us!" Nice.

    Maybe I've missed it, but I don't see a lot of "turning on [one] another" going on. What I see is some intra-OSR sniping between differing interpretations of the facts while discussing a topic of interest to us all -- pretty much par for the course.

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  46. I can't wait until I download the torrent of this module and read it on my iPad!
    /snark ;)

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  47. @mxyzplk I have nothing against posing the question. I posed it over a year ago here:

    http://www.enworld.org/forum/general-rpg-discussion/257909-question-scott-rouse-re-retroclones.html#post4834549

    I just don't want the answer to come back in some legally binding way which hurts us. Giving WOTC a softball like this which they could take to court for an easy win, allows a clueless judge to add some verbiage to said opinion, which would screw us over.

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  48. @mxyzplk

    I agree with you. I think these posts want to find a reason to set in on these guys. With friends like these...

    I think the module looks great. If they get a cease and desist letter from WOTC, who cares? They may not even get one. But it seems to me they win any way this turns out. It looks cool. People are noticing it.

    More power to Die Cast Games!
    Illegitimi non carborundum!

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  49. I'm not saying there aren't potentially self-interested reasons to stake a fellow OSRer out to avoid the wrath of our evil gods. I'm just saying that seems like a... disappointing reaction.

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  50. Wow, I see alot of hypocracy...

    I think Die Cast Games has some guts, and I applaud them for it.

    All of the b*tching and moaning since 3E came out ten years ago:

    -How WoTC is messing with the gaming commmunity.

    -Revamping the game where there is no backward-compatability.

    -Putting out inferior product.

    -Disregarding Gygax's and Arneson's legacy.

    etc.

    Basically: us old school gamers view WoTc as a puppet to Hasbro, and don't care about us.

    Which is absolutely true.

    NOW you people are CONDEMNING this fellow?

    Really?

    What is comes down to is this: nobody here is WILLING to make to move like this guy did.

    Die Cast Games picked up the rifle and fired the first REAL shot of the revolution...

    And you folks are ready to turn him in.

    Pathetic.

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  51. ...and I put my money where my mouth is: I BOUGHT a copy.

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  52. "Die Cast Games picked up the rifle and fired the first REAL shot of the revolution..."

    Get a grip. We're talking about a game. They didn't "fire a shot", they staged a cheap publicity stunt by lazily copying 30 year old trade dress instead of making the effort to come up with something original. That's all this is.

    The guy has art from Jeff Easley, who is apparently a friend. The lame cover stunt wasn't necessary in any way, and it didn't accomplish anything useful for gamers - it's just the stupid warmed-over TSR cover.

    Fighting words about a toy company ... that's just pathetic.

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  53. What happens if WotC does nothing?

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  54. @Geoffrey

    Dr. Peter Venkman: Human sacrifice, dogs and cats living together... mass
    hysteria!

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  55. If WOTC does nothing, then they didn't defend their trademark. That puts them at risk of losing it. While their incompetence at running a business never ceases to amaze me, I doubt they're that incompetent.

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  56. I'm just saying that seems like a... disappointing reaction.

    Considering that WotC's reaction to PDF piracy of 4e books was to end the sale of all PDFs, including those of older products, I think it's perfectly reasonable to want to avoid anything that might get the company to turn its attention toward the OSR in an unhappy way.

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  57. @Geoffrey

    Then everyone can start branding their products as 'Advanced Dungeons & Dragons' as WotC will have signaled they won't enforce a claim to the trademark.

    Then Hell will freeze over.

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  58. Die Cast Games picked up the rifle and fired the first REAL shot of the revolution...

    What revolution is that?

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  59. If WOTC does nothing, then they didn't defend their trademark. That puts them at risk of losing it. While their incompetence at running a business never ceases to amaze me, I doubt they're that incompetent.

    Absolutely. WotC is pretty much legally obligated to take action. If they didn't, that'd be BIG news.

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  60. How soon would WotC have to take action before it's too late?

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  61. The perception that we're running scared and hanging someone out in the wind is one I can see people having. I can only speak for myself, when I say that I would rather pick and choose my battles when it comes to stuff like this, to better control the outcome.

    Paizo isn't going to be affected by any of this stuff ever. They have enough money not to be bullied. Bullies don't go for people who can defend themselves. They do have enough power to make waves for the clones if they wanted to though.

    I don't want to see any softballs get before a judge, where a stray sentence by a judge's clerk (who is the person that usually writes the opinions anyhow) who has no clue of its ramifications, can affect all sorts of things in a very negative way.

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  62. How soon would WotC have to take action before it's too late?

    That's a question a lawyer might be able to answer, though I suspect there's no simple answer to the question.

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  63. "Die Cast Games picked up the rifle and fired the first REAL shot of the revolution..."

    ... directly into his own leg. And then shot one straight up in the air just to see where it would land.

    Agreeing to the OGL and then violating one of the provisions you just agreed to is a blatant violation of contract, plain and simple. He's in the running for the Legal Darwin Awards.

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  64. Quick question: Is this a real company that anyone's heard of before this? They have one single product, they guy only has 7 posts to his name on DragonsFoot, the domain was registered Mar-17 of this year. This is who from where, now?

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  65. This is who from where...

    He says so in the DF thread: "My brother and I do most of our posting over at Acaeum.com but I'm sure there are some members here that know us and can vouch for us."

    They've been at Acaeum for 7 years.

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  66. Impact on the old-school scene as whole from this will be nil, even if this one module is forced to change its front cover. "on some level, everything we do is at the sufferance of WotC" is just not true, plain and simple. Game mechanics are *not* subject to copyright. Nobody who isn't using other people's copyrights to profit has a thing to worry about.

    Suggesting that this might somehow endanger Dan Proctor, Jim Raggi, or anyone else in their positions is scaremongering.

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  67. I think that someone need to go and beard the dragon that is WotC/Hasbro but this is like buying a "potion of protection from dragons" from a scaly salesmen outside the dragon's cave before going in.

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  68. "WotC would be crazy to let this pass without action."

    Than again, this might be likened to saying "That elephant would be crazy not to swat that fly."

    Could be this will pass completely under their corporate radar. We'll see...

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  69. He's not reprinting copywrit material...he wrote an adventure using a parody of a name of a company that doesn't exist (tsr1) for a game that isn't made. He's on pretty firm footing. No one who buys this would be fooled into believing that TSR was publishing a new module. Wotc can't stop anyone from writing an adventure, anymore than James' dwimmermount campaign is "illegal" because he's not running a published adventure instead. They own the DMG not this guys adventure.

    I'm dissapointed in all your fear. Osric/LL etc need to be careful because they are rewriting copywrit materials (players handbook, DMG). This guys module uses no ones intellectual property other than his own.

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  70. @UWS

    "a parody of a name of a company that doesn't exist (tsr1) for a game that isn't made"

    "TSR1" Nice catch. I didn't see that.

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  71. I'm dissapointed in all your fear...This guys module uses no ones intellectual property other than his own.

    The OGL licence says:

    "7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication of compatibility...You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark..."

    @UWS guy - which part of the above quote is hard to understand? Plastering "Advanced Dungeons & Dragons" across the top of an OGL product and stating inside that "It was written using rules for the Advanced Dungeons & Dragons game system" seems, to my non-legally trained mind, to clash with the above licence clause just a little bit - don't you think?

    Don't get me wrong, I've bought the pdf and hope that Devon gets away with it, but it seems just a little bit too blatant to me.

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  72. He's not reprinting copywrit material

    So? "I'm not violating copyright" is not remotely a defense against a charge trademark violation, any more than "I'm not shooting anybody" is a defense against a charge of trespass. They're different laws; you can violate one without violating the other.

    The use of the term "Dungeons & Dragons" on that cover is in open, blatant, and indisputable violation of Wizards of the Coast's registered trademark. It makes no efforts to even pretend to nominative or parody use, and expressly violates the terms of the license agreement included in the module itself. If he tries to make a fight of it against Hasbro, he'll get smashed so flat by the judge he'll cover fifty square feet of floor.

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  73. @David: "They've been at Acaeum for 7 years."

    Thanks for that, appreciate it.

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  74. "'on some level, everything we do is at the sufferance of WotC' is just not true, plain and simple. Game mechanics are *not* subject to copyright. Nobody who isn't using other people's copyrights to profit has a thing to worry about."

    Will, on this one we disagree -- and I've held this position for a long time. The question is not, generally, "Is there really, truly copyright violation?" The question is really, "Is there anyone with the money to defend a court case against Hasbro/WOTC?"

    But in this case, the guy also just made a perfect bow-tied package of a contract violation out of the OGL. Small, friendly wager on whether TSR1 gets stopped by the end of the year or not? (Gaming product, charity donate, etc.)

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  75. Well my coming donation to Gaming for a cure can be considered a preemptive loss of a 5 dollar wager of it making it, but really I would like it to because stepping over a line and not having it punished moves the line that much farther towards breaking WotC's hold on the older editions of D&D. But as other have said, this had a better chance if it had not used the OGL.

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  76. Than again, this might be likened to saying "That elephant would be crazy not to swat that fly."

    Could be this will pass completely under their corporate radar. We'll see...


    I suppose it's possible WotC doesn't know about it, but that seems unlikely to me.

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  77. I'm dissapointed in all your fear. Osric/LL etc need to be careful because they are rewriting copywrit materials (players handbook, DMG). This guys module uses no ones intellectual property other than his own.

    He is using someone else's trademarks, though. Referring to "Dungeons & Dragons," advanced or otherwise, in a product that uses the OGL is a no-no.

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  78. The question is not, generally, "Is there really, truly copyright violation?" The question is really, "Is there anyone with the money to defend a court case against Hasbro/WOTC?"

    Exactly. All things considered, WotC's behavior in the years since the OGL was released has been extraordinarily restrained. I would hate to see anyone give them cause to rethink their behavior.

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  79. Why is the community self-policing for WotC? I don't flippin' get it.

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  80. Why is the community self-policing for WotC? I don't flippin' get it.

    Probably because there are many people who are not open hostile to WoTC in general, and because there are many people who understand their side. Regardless of feelings towards what direction they go with D&D, they are still a company and have the same rights as other smaller publishers. And this guy is messing with their lawfully earned trademark. A lot of people have the ethics and moral background to look at what that guy is doing and just say "that is wrong".

    There's a lot of guys who obey the rules and do things legally. Worst case scenario this guy could hurt the efforts of those who do try to stay within the lines. (It's a slim chance that would affect them, but even still).

    To me it's the same as say, a law a person disagrees with. A person may disagree with the a law but not challenge it themselves. A person could dislike the drug restrictions in the US, but would never break those rules themselves and would even report somebody who they catch smoking pot while driving or in a public area in their face.

    The "Stop Snitchin'" attitude is bad. If you see somebody doing something wrong, a lot of people will (or should) try to help.

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  81. From what I see he isn't using the OGL.

    He's putting out his own IP that says "Compatible with ".

    The OGL is irrelevant. Ever see "Stakabriks - Compatible with LEGO", or computer programs that are addons to major systems ("This program works with Microsoft Office!" or "This program adds additional functionality to Adobe Photoshop!")

    You don't need someones permission to release a product compatible with their product. You can even reference their product by name (as this person seems to be).

    Rules cannot be given a copyright remember, hence the kabillion clones of monopoly not endorsed by the Parker Bros.

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  82. Absolutely. WotC is pretty much legally obligated to take action. If they didn't, that'd be BIG news.

    No, it'd be gaming news, and a footnote to gaming news at that.

    Devon has already posted on the Acaeum that the 2nd printing will have a different cover, without the "Advanced Dungeons & Dragons". So basically, WotC no longer needs to send a cease and desist letter.

    If they still choose to do so, the only additional practical effect it would have at this point would be to obligate Die Cast to destroy any remaining unsold copies.

    So if you think the letter is likely to be sent, get your order in now!

    Personally, I don't think WotC gives a rat's petard if someone uses the AD&D trademark. It's a trademark they haven't used in over a decade, with brand recognition approaching zero even in gaming circles. Why waste time defending it, when the opportunity cost of putting even one or two of WotC's lawyers on the matter for a day would outstrip the profit Die Cast will make on it's first printing of 250 copies.

    Get some perspective. This is a petty little matter affecting an insignificant niche of a minor industry.

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  83. Dhowarth, if you are going to insist on coming to these forums being all logical and non-judgemental and non-hysterical, I'm going to have to ask you to turn in your Over Reaching Blog Comments card. Immediately.

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  84. Conflating legality with morality is hardly the act of one with a strong "ethics and moral background."

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  85. You don't need someones permission to release a product compatible with their product. You can even reference their product by name (as this person seems to be).

    This is true, but the OGL, under which this module was released, explicitly forbids the use of another's trademarks or registered trademarks. There have been modules published recently with the phrase "compatible with AD&D" or some variation thereof on their covers but they avoided the use of the OGL, specifically to stay clear of this issue. From the looks of it, Die Cast Games seems to have completely misunderstood the terms of the OGL, which is frankly amazing after a decade of its being used successfully by many others.

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  86. Personally, I don't think WotC gives a rat's petard if someone uses the AD&D trademark. It's a trademark they haven't used in over a decade, with brand recognition approaching zero even in gaming circles.

    If you'd pay attention to the law, the main reason why AD&D isn't used is because it would fall under the subset of D&D or Dungeons & Dragons. They don't need to have a separate trademark because the primary one protects it--they would only register it separately if they were actively going to use it. They still have the protection of Trademark case law, which would allow them to sue (and most likely win) if somebody came out with something like "Improved Dungeons & Dragons", "Enhanced Dungeons & Dragons", etc.

    Conflating legality with morality is hardly the act of one with a strong "ethics and moral background."

    No, because in many cases Legal Code is shaped and part of the Moral and Ethical values of a culture. I'm not sure how you can sit there and say trying to link the two together is "immoral", as you try to imply Will.

    A lot of people know that slapping "Advanced Dungeons & Dragons" in a big huge font on the cover is crossing the line. (Forget the OGL part--that act alone regardless of use of the OGL or not is what's the big danger). Even people critical of IP law in general tend to understand the importance of the Trademarks and enforcement of those.

    Those who believe they are justified because WoTC "doesn't respect D&D" or any of the arguments I see, IMO don't have a good perspective on things.

    (Word verification TORTS--HA!)

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  87. I'm curious, did anything happen to the guy who created a revised, or alternate version of the Unearthed Arcana book a year or so ago. His I believe was free, but it still seemed to be violating copyright, or trademark laws? He had even used the exact same cover as the original.

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  88. It's a trademark they haven't used in over a decade

    Not quite... it seems to have appeared last on the first two Icewind Dale computer game products, which used 2nd edition mechanics. The first shipped in 2000, and an expansion shipped in 2001. (Icewind Dale II used 3rd edition mechanics and presumably dropped the 'Advanced' bit.)

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  89. "No, because in many cases Legal Code is shaped and part of the Moral and Ethical values of a culture. I'm not sure how you can sit there and say trying to link the two together is 'immoral', as you try to imply Will."

    All I can say is that I'm glad the men who forced the Magna Carta, the American revolutionaries, the conductors on the Underground Railroad, M. M. Ghandi, Rosa Parks, and many more weren't of your ilk.

    An uncritical "the law's the law" attitude is a lazy cop-out that aids and abets the worst kinds of corruption and tyranny. The idea, if you can call it that, that legality and illegality map directly to ethical right and wrong respectively is as dangerous as it is inane. And that's saying a lot.

    The only two men with a rightful claim of ownership over the game or its name are dead and so I don't care what the law says in this case. D&D belongs to gamers everywhere now. I applaud these guys for having the guts to tell Hasbro where to shove it.

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  90. Correction: M. K. Ghandi. I had him confused with the chocolaty candy, apparently.

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  91. It is possible (though I think unlikely) that Die Cast Games has permission from Wizards to use the AD&D mark. If so, they're fully compliant with the OGL.

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  92. "The only two men with a rightful claim of ownership over the game or its name are dead and so I don't care what the law says in this case. D&D belongs to gamers everywhere now. I applaud these guys for having the guts to tell Hasbro where to shove it."

    Wow. Just, wow. I can't believe that people are posting comments like this. (And I'm even more baffled by the "I can't see where this guy's done anything illegal"-type comments.)

    Will, do you honestly think a court of law gives a rat's ass who you the rightful owner of the game is? The fact is, this is a blatant - and completely indefensible - breach of IP law (at least here in the US). It's got nothing to do with who you think owns the game - only who legally owns the IP in question.

    This isn't some "shot heard round the world" that's starting a revolution in IP law. It's a flagrant violation, defense of which would have a zero percent chance of success. The concern voiced by myself (elsewhere) and others here is that this - according to IP law - requires the IP owner to defend itself - and we don't want to see Hasbro get pissy with everybody else because it's mad at one guy. (Which they could easily do - regardless of some folks' head-in-the-sand belief that it's not a possibility.)

    This isn't about what's right or wrong. It's about what's legal and what's not. Plenty of OSR publishers respect the law, regardless of their personal feelings toward Hasbro/WotC. Too bad DCG wasn't able to do the same...

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  93. "The only two men with a rightful claim of ownership over the game or its name are dead and so I don't care what the law says in this case. D&D belongs to gamers everywhere now. I applaud these guys for having the guts to tell Hasbro where to shove it."

    That'd be more persuasive if we were talking about a product aping the appearance of the LBB's or Chainmail, rather than a product copying the very slick, corporate trade dress TSR used in the period when Gygax was probably more focused on the cartoon and later was being booted out.

    Point being, what's actually at issue here is very much a product of corporate TSR, not so much Gygax and Arneson.

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  94. All I can say is that I'm glad the men who forced the Magna Carta, the American revolutionaries, the conductors on the Underground Railroad, M. M. Ghandi, Rosa Parks, and many more weren't of your ilk.

    You should include Gary and Dave as part of "that ilk", because both men accepted that they didn't own D&D and moved on.

    Everybody has the right to play D&D or create their own stuff, but you don't have the right to publish anything you want without following certain laws. And I don't see how that is a bad thing.

    And comparing what amounts to, in the grand scheme of things of the achievements of mankind and civilization, a silly little game, to the achievements of Ghandi and Rosa Parks just takes things too far and shows just how warped people's perspective is.

    500 years from now, it's far more likely those two will be remembered but nobody will remember Gygax, Arneson, TSR, Wizards of the Coast, or D&D.

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  95. "Devon has already posted on the Acaeum that the 2nd printing will have a different cover, without the "Advanced Dungeons & Dragons". So basically, WotC no longer needs to send a cease and desist letter. "

    So basically it's just a gimmick, a publicity stunt, and an attempt to create a "collector's item" where that isn't really warranted. (I also noted that their website says all physical copies they sell are "bagged and boarded", as if they were de facto collectibles worth preserving.)

    Lame.

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  96. "500 years from now, it's far more likely those two will be remembered but nobody will remember Gygax, Arneson, TSR, Wizards of the Coast, or D&D."

    That still remains to be seen. There are historians now who make careers (or at least prolific career sidelines) of chronicling the history of games and gaming.

    "This isn't about what's right or wrong. It's about what's legal and what's not."

    You think it's possible to separate the two. I don't. I see some brave (or foolhardy, the only difference is often in the results) individuals challenging the supposed "right" of a faceless corporate entity to exert arbitrary control over a great game loved by millions that they had no part in creating. Good for them. D&D should belong to the world, just like chess, poker, baseball, and all the other great games.

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  97. " the supposed "right" of a faceless corporate entity"

    I see no faces at Die Cast's website either. Looks like a draw.

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  98. "So basically it's just a gimmick, a publicity stunt, and an attempt to create a 'collector's item' where that isn't really warranted."

    Too bad. A serious challenge to the monopoly on the D&D name would have been so great. Oh, well.

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  99. This is two separate arguments colliding into each other. One is debating the legality of it and the other is debating the morality of it which is two completely different things. The facts are that they produced something with a trademark they should not have for a game that is not marketed anymore and in the second printing are not including it. Morally they just wanted to show they had something that worked with something else but legally they walked on the grass where the sign says not too.

    I think that they where in the wrong legally and by changing it in the second printing they admit to that but the real problem behind it all is the law that makes all this arguing valid. Having to walk on glass to say your stuff is compatible to a game that has not made the company any money and not even in fact in print any more is quite crazy if you step back and look at it but because it is the law end of story.(also if it is just a publicity stunt then it worked because we all sure know about it now)

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  100. That still remains to be seen. There are historians now who make careers (or at least prolific career sidelines) of chronicling the history of games and gaming.

    You're still pretty young Will. You'll be surprised how time tends to blunt and erode things. Things you grew up with die off and while there are dedicated scholars to things, what amounts to "pop culture" tends to have limited appeal.

    20 years from now you'll see.

    Too bad. A serious challenge to the monopoly on the D&D name would have been so great. Oh, well.

    They would never have a leg to stand on. Trademark law is designed to both protect the seller and the consumer and even if the trend to limit copyrights and patents occurs, I doubt you'd ever see a huge rescindication of Trademark Law.

    This is just the same as a guy making a sign for their hotel, and saying we are not MOTEL 6, with the MOTEL 6 part 95% larger than the rest and put in a way to be confusing. Most people recognize that stuff is wrong.

    Morally they just wanted to show they had something that worked with something else but legally they walked on the grass where the sign says not too.

    Most moral (or ethical) people respect the laws unless they violate some high principle. ("Give unto Ceasar what is Ceasar's" and all that). They can indicate compatibility without making it look like a logo.

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  101. Someone mentioned that a parody has special "protection".

    There have been blatant breeches of the OGL/d20 License before - what happened to Steve Jackson Games' Munchkin RPG that sported a d20 logo and included character creation rules - explicitly forbidden in a product that wanted to use the d20 logo license? Did they play the "parody card" as well? Did it work for them?

    From the product description over at the Underdark Gazette: "The once peaceful town of Sheridan Springs is in dire trouble." The street address of TSR in Lake Geneva was Sheridan Springs Rd.
    How many parody elements are in that module?

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  102. Akhier wrote: "but legally they walked on the grass where the sign says not too."

    We can hope that's all it is. But there's potential for it to end up more like the cases where someone at a busy airport accidentally goes through the wrong door and every single person in the gate area needs to be re-screened through security, causing massive lines and delays.

    In effect, it's just a person going through a door harmlessly. But hundreds get hassled as a result.

    mondbuchstaben wrote:
    "How many parody elements are in that module?"

    It takes more than just similar names to make something a parody. For instance, *humor*.

    At most the use of "Sheridan Springs" is an obscure cultural reference, perhaps a tip of the hat to TSR.

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  103. If you'd pay attention to the law, the main reason why AD&D isn't used is because it would fall under the subset of D&D or Dungeons & Dragons. They don't need to have a separate trademark because the primary one protects it--they would only register it separately if they were actively going to use it. They still have the protection of Trademark case law, which would allow them to sue (and most likely win) if somebody came out with something like "Improved Dungeons & Dragons", "Enhanced Dungeons & Dragons", etc.

    @JRT - I wasn't making a legal argument. I'm not a lawyer, and have no interest in speculating or debating trademark protection when I have no expertise in that area. What I was saying is that WotC (i.e. Hasbro) couldn't care less whether some boutique outfit prints 250 copies of an adventure module for what they (and the vast majority of consumers) consider an obsolete version of a game that isn't even all that popular or profitable for them in its current incarnation. I'm not sure why you think that the "AD&D" trademark is some sort of subset of the "D&D" trademark; seems to me TSR spent a good amount of time and effort in the late '70s and early '80s arguing just the opposite, when Arneson tried to get a share of the former...
    version of a game which isn't

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  104. "You're still pretty young Will. You'll be surprised how time tends to blunt and erode things. Things you grew up with die off and while there are dedicated scholars to things, what amounts to 'pop culture' tends to have limited appeal."

    Again, we'll see. At one time, those newfangled games played using cards with pictures on them were pop culture, as were those simple wargames played on a gridded board. D&D has been one of the primary influences (if not the *the* primary influence) on not just traditional RPGs, but video, card, and board gaming for the last quarter century. It's all a matter of how long that continues to be the case.

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  105. On the trademark angle, I think it's important to point out that the way the trademark has been used in this case is the worst possible way you could use someone else's trademark.

    Indicating that your product is compatible with someone else's product, and making it clear that you don't own that product and aren't affiliated with the owner, is one thing - Dave Kenzer did that with Kalamar 4E and WotC didn't touch him.

    You don't actually have that option with the OGL, because that is not a licence to use the D&D trademark - WotC wanted you to use the D20 licence back in the day, and the GSL now, if you want to do that. All the OGL does is give you a heap of 3E rules and say "this stuff? You can copy it all you like so long as you follow the terms of this licence." It's arguable that, so long as your product isn't reproducing any of the text of the D20 SRD, that there's absolutely no point using the OGL at all. Either way, by using the name in this way Die Cast are already breaching the very OGL they're publishing the thing under in the first place.

    But that isn't the worst part. Where it gets really bad is that they aren't just making a declaration of compatibility - they're using the name in such a way that it would appear, to a casual observer, that Die Cast own the trademark. Obviously anyone who's knowledgeable about D&D's publishing history would be able to tell quite quickly that the module is a third party knock-off, but to anyone who doesn't know that much about the history of the game the module might look legit.

    And this strikes against the very reason we have legal protection for trademarks in the first place; the justification behind trademark law, in most jurisdictions, is that it allows consumers to identify that particular goods or services hail from a particular source - it's supposed to avoid a situation where everyone's putting out products using the trade dress of the most respected product in the market, so consumers never know what the hell they're really buying. What Die Cast are doing isn't a clever and awesome thing that trademark law happens to forbid through sheer oversight on the part of the people who wrote the law - it's the very behaviour which trademark law is meant to stop in the first place. That's why they're screwed if WotC notice this.

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  106. Oh, and sorry to double post, but I just wanted to add something: because this is a textbook example of trademark infringement, other OGL producers probably have little to fear. This case isn't going to throw up some daring new precedent which will make retro-clones illegal or whatever, because it's not relating to an even mildly controversial point of law; furthermore, those producers who don't use the term "Dungeons & Dragons" on their trade dress aren't even using the trademark anyway, so there's absolutely no way the case could affect them.

    If WotC's lawyers couldn't be assed to go for the retro-clones earlier, this nonsense won't inspire them to. It doesn't give them any legal ammunition to use against them.

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  107. This comment has been removed by the author.

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  108. What I was saying is that WotC (i.e. Hasbro) couldn't care less whether some boutique outfit prints 250 copies of an adventure module for what they (and the vast majority of consumers) consider an obsolete version of a game that isn't even all that popular or profitable for them in its current incarnation.

    They may not care, but they are almost compelled to act if their trademark is being violated. Disney doesn't like to be in the position of having to sue places like hospitals who violate their trademarks or copyrights, but in the case of Trademark law you really have to be dilligent or else you could lose it.

    I'm not sure why you think that the "AD&D" trademark is some sort of subset of the "D&D" trademark

    If you're not interested in Trademark law, why debate it. Case law and legal precedent counts, not your opinion of what a "subset" is.

    D&D has been one of the primary influences (if not the *the* primary influence) on not just traditional RPGs, but video, card, and board gaming for the last quarter century. It's all a matter of how long that continues to be the case.

    If anything, I think if the RPG survives the genre is so complex it will all merge, but the various editions and their differences will be lost.

    But that still doesn't change the fact that comparing "freeing D&D" (when really there's nothing to free except a product label) to people who fought for civil rights amidst impression is a horrible and vulgar comparison and shows both a shallow view of the values of a subset of the fans and how much a sense of entitlement there is. That comparison reminds me of the "Curb Your Enthusiasm" episode when the guy from "Survivor" was comparing his experience with a person who survived the Holocaust. ("We didn't get Snacks!")

    If anything, I think scholars not gonna look much at D&D, but they are going to look back at our generation and look at how we fought over pretty little distractions or over entitlements instead of rights and ignored the bigger picture of what a society should value.

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  109. Arthur: WOTC doesn't need legal ammunition to go after the retro-clones because if they do, it won't be a matter of having a good case; it'll be a matter of having enough money and lawyers to get the other guy to give up without a fight. If Hasbro/WOTC think the D&D trademarks are in danger, they'll do whatever they have to do to establish that they're still using and defending them.

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  110. The legal system is more of a "who has more money" type of thing for situations like this. If you have enough you just keep bringing the opposition to court till either you win or they have no money left.

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  111. So it WAS a gimmick?

    Hmmm.... Kewl gimmick! ^_^

    Guess we all feel kinda foolish on both sides of the issue (myself included).

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  112. After GenCon, I heard a lot of comments about the lack of an OSR presence or any real buzz for OSR games and products. It's ironic that this train wreck in the making of a product seems to be compensating for that...

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  113. The only people that should be even mildly worried about this are people publishing materials using the OGL. But even they probably shouldn't worry. Odds are that the powers that be at "Hasbro of the Coast" are not going to, say, revoke the OGL (and therefore "destroy" the OSR) because some miniscule "publisher" (DCG has a terrible website and one product) decides to violate the OGL. Some people see the current owners of the D&D brand as being a soulless conglomerate, but come on, people. Let's apply some common sense here.

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  114. @John Hendry: It takes more than just similar names to make something a parody. For instance, *humor*.

    Nope. Parody does not have to be funny. Take, for instance, The Kobold Wizard's Dildo of Enlightenment +2 (an adventure for 3-6 players, levels 2-5, Sense & Sensibility & Seamonsters, or Pride & Prejudice & Zombies or The Adventures of Huckleberry Finn & Zombie Jim: Mark Twain's Classic with Crazy Zombie Goodness or The Wind Done Gone (search for these on Amazon.com, as I'm too lazy to dig up the links myself).

    All of these are parodies, but are not essentially humorous. From my understanding, the legal definition of parody is different from common usage--we commonly think a parody has to be funny in a mocking way (ala SNL or Colbert or Jon Stewart). But in a legal sense, a parody is a work that comments on or criticizes a prior work. This commentary can be funny, but it can also be satiric or ironic.

    The key, however, is that an audience should be readily able to able to recognize the allusions to the original in order to understand the parody--otherwise, we might mistake the parody as "authentic."

    I point you to Chicken, Chicken, Chicken, a PDF file that parodies the typical scholarly work churned out by math professors. Even better, view it here: http://itre.cis.upenn.edu/~myl/languagelog/archives/004496.html

    I doubt you would find this funny, unless you were an academic who has attended academic conference--in which case, you would be the ideal audience because you were in the know.

    So, to make a long post short--I think they are going for the parody defense here. There are enough in-jokes that have already been discussed on the various blogs to safely say this. I will wait for my print copy to arrive to confirm this.

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  115. @Drance, I don't know how things would shake-out if tested in court, but most people operate under the understanding that Wizards can not revoke the OGL (unlike the license to use the d20 mark, which was explicitly revokable.)

    This current kerfuffle will silently vanish after a Wizards C&D letter, leaving the rest of the OSR to carry on as usual.

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  116. "I'm not sure why you think that the "AD&D" trademark is some sort of subset of the "D&D" trademark."

    If you're not interested in Trademark law, why debate it. Case law and legal precedent counts, not your opinion of what a "subset" is.


    I'm not debating trademark law, I'm simply asking why you think this is the case? Educate us. Why do you hold the opinion that the AD&D trademark is a subset of the D&D trademark?

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  117. I'm not debating trademark law, I'm simply asking why you think this is the case? Educate us. Why do you hold the opinion that the AD&D trademark is a subset of the D&D trademark?

    Because of case law in other cases. D&D is considered a "strong trademark", tied to the TSR/WoTC company. There is a specific statement in the USPTO Manual (US Patent and Trademark Office) that discusses this particular item.

    http://tess2.uspto.gov/tmdb/tmep/1200.htm#_T120701biii

    From that section:

    It is a general rule that likelihood of confusion is not avoided between otherwise confusingly similar marks merely by adding or deleting a house mark or matter that is descriptive or suggestive of the named goods or services. Sometimes, the rule is expressed in terms of the dominance of the common term. Therefore, if the dominant portion of both marks is the same, then confusion may be likely notwithstanding peripheral differences. See, e.g., Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005) (VEUVE ROYALE for sparkling wine found likely to be confused with VEUVE CLICQUOT and VEUVE CLICQUOT PONSARDIN for champagne, noting that the presence of the “strong distinctive term [VEUVE] as the first word in both parties’ marks renders the marks similar, especially in light of the largely laudatory (and hence non-source identifying) significance of the word ROYALE”); In re Chatam Int’l Inc., 380 F.3d 1340, 1343, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004) (“Viewed in their entireties with non-dominant features appropriately discounted, the marks [GASPAR’S ALE for beer and ale and JOSE GASPAR GOLD for tequila] become nearly identical”); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002) (even though applicant’s mark PACKARD TECHNOLOGIES (with “TECHNOLOGIES” disclaimed) does not incorporate every feature of opposer’s HEWLETT PACKARD marks, similar overall commercial impression is created); In re Toshiba Medical Systems Corp., 91 USPQ2d 1266 (TTAB 2009) (VANTAGE TITAN for MRI diagnostic equipment held likely to be confused with TITAN for medical ultrasound device, noting that the marks are more similar than they are different and that the addition of applicant’s “product mark” to the registered mark would not avoid confusion); In re SL&E Training Stable, Inc., 88 USPQ2d 1216 (TTAB 2008) (Board found likelihood of confusion between SAM EDELMAN and EDELMAN both for wallets and various types of bags noting that the marks are similar because they share the same surname, and it is the practice in the fashion industry to refer to surnames alone)...

    This goes on for several examples if you follow that link

    So, based on all of that...

    Dungeons & Dragons, because it is a combination word, is a strong, rather than weak, trademark.

    Adding Advanced to it would be considered a violation.

    And just because they abandoned the combined AD&D mark, it does NOT mean that anybody can pick it up. They can successfully argue that any adjective like "Advanced", "Improved", "Enhanced", etc, would violate this particular interpretation of the law.

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  118. Maybe its my old eyes, but I don't see anywhere the AD&D trademark used. All I see is "Dungeons and Dragons", an obvious TM of WOTC. Also, it is preceded by the word "Advanced", which is really irrelevant. The trademarked words which are being used in violation of the OGL are "Dungeons and Dragons." Not AD&D, D&D, or any other abbreviation.

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  119. The most likely, and my most hoped-for outcome to all of this is a C&D letter. I think and hope that the C&D letter is the way it goes, and no further. If some suit decides that flagging 4e sales can be blamed in part on legal not doing their job and makes a fuss about it, citing to the clones as an example, someone in legal may decide to make an example of the clones. Perhaps I'm more worried than I would normally be about it, since WOTC is making an obvious play for older gamers with the new Red Box, and the older gamers are the ones most likely to play and spend money on clones and clone-related products. I don't want to see a perfect storm of corporate stupidity happen.

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  120. > Jon Hendry said...
    > So basically it's just a gimmick, a publicity stunt, and an attempt to create a "collector's item" where that isn't really warranted. (I also noted that their website says all physical copies they sell are "bagged and boarded", as if they were de facto collectibles worth preserving.)

    You've never had USPS leave a package in the rain, try to fold it in two or bounce it repeatedly off the sorting office floor, evidently? :)

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  121. We were about due for a good kerfuffle.

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  122. @Zzarchov: "From what I see he isn't using the OGL."

    Author says otherwise at Dragonsfoot: "It falls under the Open Gaming License v1.0 that WOTC released several years ago. A copy of the license is printed in the module."

    @Paul: "It is possible (though I think unlikely) that Die Cast Games has permission from Wizards to use the AD&D mark. If so, they're fully compliant with the OGL."

    Author says otherwise at Dragonsfoot: "Wizards came up with the OGL v1.0 to let other people release product for their game system (D&D 3.0 at the time)... I cannot for the life of me see why WOTC wouldn't let you mention the game system your product is to be used for."

    http://www.dragonsfoot.org/forums/viewtopic.php?f=21&t=44132&start=15

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  123. @dhowarth333: "Devon has already posted on the Acaeum that the 2nd printing will have a different cover, without the 'Advanced Dungeons & Dragons'. So basically, WotC no longer needs to send a cease and desist letter."

    That is not what I see him saying. I see this: "There will be changes to the cover of the second printing whenever it is done. Just a little asterisk and fine print to cover ones arse Smile I may even totally drop the OGL crap as it seems I really don't need it."

    http://www.acaeum.com/forum/about10369-0-asc-120.html

    So obviously he has practically no informed idea about what he's doing.

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  124. I forgot to mention what an utterly craptacular word (nay, NON-word) "kerfuffle" is...

    Seriously, can we stop saying/typing that non-word?

    I know we play a game as a hobby, but do we really need another reason for the world at large to stereotype us as nerd-pansies?

    Not that I care what the world at large thinks. I don't expect a clutch of bullies to give me a wedgie anytime soon.

    Let's use terms like "issue," "debate," "bone of contention," etc...

    Anything but kerfuffle!

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  127. [sarcasm]What is the kerfuffle wrong with you, you kerfuffle head. Kerfuffle is a kerfuffling wonderful word! I have it in my "Cool Words and Sayings" file.[/sarcasm]

    Blah, silly silly interlags.

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  128. Why is kerfuffle a non-word? Do you have something against english words that came from scottish gaelic?

    "If it ain't Scottish, it's CRAP!"

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  129. if they were against gary gygax using "D&D" for Dungerous Dimensions, i believe they are against all forms of use for D&D

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  130. Except that was TSR, and this is Hasbro.

    Also, Kerfuffle has been used in English since at least the 19th century. I don't know how it is suddenly a non-word.

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  131. @Luke: thats fine, but one can see how some big companies can act when they think someone could step on their toes. their minds were on profit only, not reason

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  132. D&D belongs to gamers everywhere now. I applaud these guys for having the guts to tell Hasbro where to shove it.

    But is that what they were doing? More and more, it seems as if what Die Cast did was a combination of completing misunderstanding what the OGL permitted and marketing.

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  133. Plenty of OSR publishers respect the law, regardless of their personal feelings toward Hasbro/WotC.

    That's the thing for me. It's not about liking WotC or agreeing with what they've done to D&D or any of the other TSR properties they control. It's about a basic respect for the law, especially when dealing with the OGL, which, in my opinion, is the single greatest thing WotC has ever done. It's a gift to gamers everywhere, giving us nearly every bit of our Gygaxo-Arnesonian heritage except the name Dungeons & Dragons. That's a pretty impressive gift.

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  134. So basically it's just a gimmick, a publicity stunt, and an attempt to create a "collector's item" where that isn't really warranted.

    It's kind of sad, isn't it?

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  135. A serious challenge to the monopoly on the D&D name would have been so great. Oh, well.

    A serious challenge would be awesome, but who and on what basis could such a challenge be mounted?

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  136. After GenCon, I heard a lot of comments about the lack of an OSR presence or any real buzz for OSR games and products. It's ironic that this train wreck in the making of a product seems to be compensating for that...

    The thing is "the OSR" is just a bunch of guys who like older games (and their retro-clones) and produce -- and sometimes sell -- stuff to use with them. Some of those products were available at GenCon. If what people are expecting some kind of "OSR" booth, they're likely never going to see that.

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  137. Why is kerfuffle a non-word? Do you have something against english words that came from scottish gaelic?

    Perhaps I should use foofaraw next time.

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