Knights & Knaves Alehouse

PapersAndPaychecks wrote:Aye, he backpedalled subsequently though.

Basically the issue is that Mr Dancey hadn't read a recent version of OSRIC (and personally I suspect that he hadn't read an old version either). His remarks were based on assumptions about OSRIC that turned out to be incorrect.

PapersAndPaychecks wrote: OSRIC's much less compatible and doesn't support Wizards' products at all really.

order99 wrote:If WOTC had a legal leg to stand on in the first place...they rather kicked it out from under themselves when they allowed an OSRIC add in Dragon!

Mythmere wrote:

order99 wrote:If WOTC had a legal leg to stand on in the first place...they rather kicked it out from under themselves when they allowed an OSRIC add in Dragon!

Wasn't even an ad - that was an independent review. Got my name in Dragon magazine (although it's in a graphic) just under the wire...

Hi, Ryan, I've followed this thread with a lot of interest as the initial designer of OSRIC (before I handed over a big but rough draft to P&P that he turned into an actual, usable resource).

First off, I'd like to say that your comments have been the highest quality (and in most cases the only quality) posts on the legal framework OSRIC moves within. I'm not going to address the OSRIC "answers" to the issues you raise, for obvious reasons. I can tell you that everything you've mentioned went into the mix even at my initial stage of design; the WAY it went into the mix probably isn't obvious to the eye of anyone who's not combing the document fairly carefully. P&P consulted with considerably more legal counsel after I left the document, so I'm not sure what changed. And by the same token I probably couldn't find those changes and surmise their legal effects without a fine tooth comb myself.

I would like to mention a couple of matters that haven't been addressed much. First is the poster who likened tables in an RPG to table data in a computer program, and why that's a very important point as a practical matter as well as a theoretical matter -- and it ties in to your own comment about how courts have shown increasing willingness to protect a broader scope of IP rights than they did before the development of the internet (I choose that as a breakpoint, although I believe the trend was accelerating before that).

I suspect you've smiled a bit during your posts about OSRIC because you've strictly stayed away from the area I suspect you're strongest in - and that is the practical reality of how law interfaces with a company's decision to bring a legal theory to the test. You've focused upon the purely theoretical aspects of law, rather than the parallel practicality of lawsuits. The overarching framework of common law is formed by the litigation of individual lawsuits, but a company, as a business matter, brings a lawsuit based on a cost benefit analysis to actually fighting the legal battle predicted in that lawsuit.

Now, obviously I and the others who have been involved in OSRIC firmly believe that OSRIC violates no laws and no ethics. Otherwise I wouldn't have started the project at all, and P&P wouldn't have completed the project. But I'm going to focus not on the legal backbone of OSRIC's content - I'll focus on the practical matter of whether a lawsuit based on OSRIC would materialize. Because anyone can sue ever if the other party is absolutely in the right; and the party with more money generally wins (not necessarily in court, but beforehand).

The practical dollars and cents risk of OSRIC to WotC (whether OSRIC were legal or illegal) measures in the whopping less-than $50,000 range, and probably closer to $5-10K in actual sales foregone due to OSRIC's existence. Let us assume that WotC's staff is incredibly jumpy, and measures that risk at $50,000, ten times what I'd estimate.

A certain degree of the run-up to a lawsuit could and would be done by WotC's in house legal staff, perhaps going as far as the cease-and-desist letter point. Cease and desist is a risky business, though, because of the chance of the letter's creating the risk for a declaratory judgment being filed by the other party based on the cease and desist letter. If the other party does this, the other party gets to choose the judge and the location. That's a serious problem for suing someone in England, like P&P. Jurisdiction could - and probably would - fall in a British court, because there's no choice of forum clause in the OGL. American law would apply under the Berne Convention, possibly, but interpreted by a British court. British lawyers happen to be a lot more expensive than American ones.

There would be two major risks, as a practical matter, to WotC suing over the "worst case" $50,000 they might foresee. First is that WotC has monopoly power (the ability to move prices) in the FRPG industry. This makes any attempt to shut down a competing product highly risky. If that British (or American, perhaps) court were to deem the lawsuit a harassment lawsuit, WotC would be opened up to a terrible situation. In the USA, an antitrust violation leads to punitive damages. Britain could also apply antitrust remedies.

Second: table data. Who else might want to be involved in a lawsuit about games and table data? The seminal case that might apply the Blue Book rule to games? THe Xbox and PC gaming companies. Because for them, you're not talking thousand-dollar lawsuits, you're talking million-dollar lawsuits. WotC's outside counsel is well aware that EVEN if WotC considered P&P a soft target he wouldn't be alone for longer than it took for the case to be filed. He'd be backed by the law firms of some very, very heavy hitters.

Why? Because the computer RPG industry makes its money by not being sued; they don't make their money by suing each other or being sued for copyright violations. It might appear for a moment that because WotC would be suing for a higher level of protection in game IP that they'd side with WotC.

Not so. The large computer game manufacturers do not want the ability to sue in game IP law to become based on a theory of table data. Mmm, I just deleted my discussion of the details for the same reason I'm not going into specific legal discussions.

But to summarize, you're right that there is no case clarifying the RPG application of tabular data under the law. The precedents leas to an "I don't know." The people with a dog in that fight aren't table top companies, they are computer game companies - and they'd have a very big dog in that fight. The fact of the matter is that regardless of the law (and you and I differ, obviously on that) WotC would not want to ride the tiger of being the plaintiff or declaratory judgment defendant) in the case that clarifies this matter. Their counsel wouldn't proceed without evaluating all the amicus curiae briefs that would hurtle into the courtroom, and the cost of that would be ungodly.

Meanwhile, Stuart can sit back and just keep saying, "blue book prices are based in reality, game tables are not, so stick with the simple interpretation of the law."

Anyway, since you have provided the unbelievably refreshing novelty of a post that actually references the law and the framework correctly, I thought I'd finally break radio silence and contribute to an OSRIC discussion. We disagree in our conclusions, but thank you for the intelligence and knowledge behind your post. I wish I was in a position where you and I could just sit and shoot the **** about the matter. I think I'd persuade you!

Daniel Proctor wrote:Thanks for the interesting post, Myth. This discussion was very helpful to me in my own project. It helped me to dot some Is and cross some Ts.

Mythmere wrote:

Daniel Proctor wrote:Thanks for the interesting post, Myth. This discussion was very helpful to me in my own project. It helped me to dot some Is and cross some Ts.

Keep in mind that as a retired lawyer I don't give legal advice, though. I can only make general observations, never tailor them to a specific person's situation.