# Question for Scott Rouse re: Retroclones



## joethelawyer (Jun 20, 2009)

Does WOTC have any official position on the question of whether or not OSRIC, Swords and Wizardry, or Labyrinth Lord violates WOTC's intellectual property rights in any way?  How about retroclones in general?

If there is no offical position on this question, is the question still under legal review?  Is the question on the legal department's radar at all?  Might it be in the future?

In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?

Thx.


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## ggroy (Jun 20, 2009)

I would be quite surprised if anybody at WotC would officially answer this type of question, short of a subpoena.


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## joethelawyer (Jun 20, 2009)

ggroy said:


> I would be quite surprised if anybody at WotC would officially answer this type of question, short of a subpoena.




Even that's an answer of sorts, isn't it?  Everybody keeps dancing around the issue. I figured I'd just ask the question many many others want to know the answer to.


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## jdrakeh (Jun 20, 2009)

joethelawyer said:


> Even that's an answer of sorts, isn't it?  Everybody keeps dancing around the issue. I figured I'd just ask the question many many others want to know the answer to.




I'm sure they _do_ have some kind of official position on the issue, though whether they're willing to openly talk about it is another question altogether.


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## Belorin (Jun 20, 2009)

joethelawyer said:
			
		

> Does WOTC have any official position on the question of whether or not OSRIC, Swords and Wizardry, or Labyrinth Lord violates WOTC's intellectual property rights in any way? How about retroclones in general?
> 
> If there is no offical position on this question, is the question still under legal review? Is the question on the legal department's radar at all? Might it be in the future?
> 
> In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?




Aren't these all published under the OGL? 

Bel


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## Lanefan (Jun 20, 2009)

Belorin said:


> Aren't these all published under the OGL?



Ah, but does the OGL cover pre-3e product, or just the 3e/d20 system?

Lanefan


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## Hunter In Darkness (Jun 20, 2009)

well many use d20 structures and terms just kinda rearranged to pre 3e rules


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## Philotomy Jurament (Jun 20, 2009)

Lanefan said:


> Ah, but does the OGL cover pre-3e product, or just the 3e/d20 system?



The OGL covers the use of "open content."  The 3e rules and the d20 system build on top of that, defining some open content (e.g. the SRD).  You can use the OGL (and the open content from the SRD) without using the d20 license.  Using the OGL, by itself, doesn't wed you the d20 system or 3e at all.  (The d20 system license is separate from and much more restrictive than the OGL.)

Given some open content (e.g. stuff from the SRD), the OGL gives you permission to use it (i.e. Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content).  Also, the OGL defines "Derivative Material" as "derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted."

The above use of the OGL is what allows games like Mutants & Masterminds, True 20, Pathfinder, Castles & Crusades (which edges towards retro-clone territory), et cetera.  

The idea behind the retro-clones is that the OGL gives you permission to use open content terms and descriptions (e.g. classes, spell names, monsters, hit points, armor class, etc) and then edit/modify/extend/abridge/adapt/transform/and format them.  The specific form into which the retro-clones modify the open content happens to match the algorithms and such used in other games.  Since copyright does not apply to such game formulas and rules (only to their presentation), and the retro clones present the formulas and rules with a combination of original description and open content, no legal rights are infringed.  (Subsystems or elements which are deemed to be unique expressions, rather than uncopyrightable algorithms/rules are avoided or changed -- this is why there are minor differences between the originals and the retro-clones, in certain areas.)

That's my understanding, anyway.


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## Derulbaskul (Jun 20, 2009)

@OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?

What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.


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## Belorin (Jun 20, 2009)

Derulbaskul said:


> @OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?
> 
> What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.




QFT

Bel


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## S'mon (Jun 20, 2009)

WoTC Legal are probably not going to say whether they think specific elements in specific clones are copyright infringeing unless they are in the process of sending C&D letters/initiating legal action, because there is no advantage in doing so.

For their stated position, read closely the OGL:

(1) You can see that what they're concerned about is use of trade marks (and trade dress).  To comply with the OGL you have to avoid even nominative & descriptive use of their trade marks & trade dress, things that would otherwise be legal.

(2) The OGL has a rectification clause - if WoTC think you're in breach of the contract, they have to send you a notification and give you time to rectify.  They can't just sue you right out.  This is very powerful and explains the popularity of the OGL, rather than jusy relying on the limitations of copyright law.

(3) The WoTC OGL FAQ explains that WoTC accept that game rules per se are not copyrightable.

From this, you can derive a view that it is very unlikely WoTC would sue Retro-Clone makers who are OGL compliant in terms of not using WoTC trade marks to indicate compatibility.   But I think they are not likely to make a "We won't sue" statement because it could impact their ability to sue in edge cases, such as use of the OGL to make & sell 4e materials.

(I teach TM & copyright law in the UK).


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## Piratecat (Jun 20, 2009)

Derulbaskul said:


> @OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?
> 
> What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.



Seriously. Bad form.


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## joethelawyer (Jun 20, 2009)

Piratecat said:


> Seriously. Bad form.




*shrug*  I never really worried much about form.

This was triggered by something Clark said in the other thread regarding his opinion that OSRIC was on shaky ground legally, to paraphrase.  Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D?  Maybe others would?


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## Doug McCrae (Jun 20, 2009)

joethelawyer said:


> Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D?



And if your grandmother was on rollers she'd be a juggernaut.


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## Aus_Snow (Jun 20, 2009)

joethelawyer said:


> Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D?  Maybe others would?



Others _have_. Goodman Games included, to name but one (relatively) high profile publisher.

And I doubt that WotC was involved at any stage along the way, FWIW. Well, maybe the OGL has been used(?). . . but probably not even that, in the case of Goodman Games' stuff. Regardless, using the OGL wouldn't necessitate talks with, or requests made of, WotC anyhow.

Besides, back to Necromancer Games, I get the impression that the leadership there would much rather support the current incarnation(s) of D&D. In the present day, that is 4e and/or Pathfinder, really. It looks to be more weighted to the latter, but *not* due to initial preference.


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## Remathilis (Jun 20, 2009)

Philotomy Jurament said:


> The idea behind the retro-clones is that the OGL gives you permission to use open content terms and descriptions (e.g. classes, spell names, monsters, hit points, armor class, etc) and then edit/modify/extend/abridge/adapt/transform/and format them.  The specific form into which the retro-clones modify the open content happens to match the algorithms and such used in other games.  Since copyright does not apply to such game formulas and rules (only to their presentation), and the retro clones present the formulas and rules with a combination of original description and open content, no legal rights are infringed.  (Subsystems or elements which are deemed to be unique expressions, rather than uncopyrightable algorithms/rules are avoided or changed -- this is why there are minor differences between the originals and the retro-clones, in certain areas.)




You want to know why the GSL was buttoned up tighter than a Victorian-era petticoat? THIS is your answer!

FWIW, a couple-hundred copies of OSRIC or LL sold on Lulu (at little/no profit to the original authors) isn't even the beginning of WotCs headaches. I seriously think (for as much as they do) that Pathfinder of Castles & Crusades are closer competitors than OSRIC is. I just don't think they view them as a problem. 

That said, I applaud Mythmere for playing it safe and keeping some of the rules that don't hew too close to the d20 system (psionics for example) out. Ditto with spells/monsters. I think if someone tried to produce Cravenloft (a 6th level module featuring Todd Von Zeroitch) or produced a setting called Dragonfrance, than I think WotC MIGHT get up in arms. But right now, I don't see WotC thinking the Retros are worth the legal fees to draw up the C&D letters.


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## Mark (Jun 20, 2009)

joethelawyer said:


> This was triggered by something Clark said in the other thread regarding his opinion that OSRIC was on shaky ground legally, to paraphrase.





Peterson has regular communication with WotC.  I doubt he bases his opinions on mere conjecture when he has direct avenues of fact to explore.  He could find other ways to state that he was not interested in supporting any single game system without suggesting there it was possibly not legally sound if he did not have a firm basis for dismissing it on those particular grounds.


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## Morrus (Jun 20, 2009)

joethelawyer said:


> In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?




I think the chances of WotC outlining their legal plans to you on an internet messageboard are somewhat slim....


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## joethelawyer (Jun 20, 2009)

Mark said:


> Peterson has regular communication with WotC.  I doubt he bases his opinions on mere conjecture when he has direct avenues of fact to explore.  He could find other ways to state that he was not interested in supporting any single game system without suggesting there it was possibly not legally sound if he did not have a firm basis for dismissing it on those particular grounds.




Good point.


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## joethelawyer (Jun 20, 2009)

Morrus said:


> I think the chances of WotC outlining their legal plans to you on an internet messageboard are somewhat slim....




Sometimes stuff like that is a good PR move.  If the retroclones are nothing more than a pimple of the ass of the RPG industry, of no real concern to WOTC, with all the bad press they've gotten lately it might be a good play to come out and say it's no big deal, retroclone-publish to your heart's content.


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## Piratecat (Jun 20, 2009)

Tell me, Joe, because I'm a little curious; after saying yesterday that someone stealing WotC IP would be "not only hilarious, but sweet sweet karma," _why_ exactly do you expect anyone from WotC to ever respond to you? I don't speak for anyone but myself, but I've got to say, I think that qualifies as burning your bridges.


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## joethelawyer (Jun 20, 2009)

Piratecat said:


> Tell me, Joe, because I'm a little curious; after saying yesterday that someone stealing WotC IP would be "not only hilarious, but sweet sweet karma," _why_ exactly do you expect anyone from WotC to ever respond to you? I don't speak for anyone but myself, but I've got to say, I think that qualifies as burning your bridges.




They don't have to like me to respond to posts I make here which others are interested in hearing the answer to.  Hell, if the only people here who could respond to my posts were those who liked me or what I said here, I would only get responses from like 2 people and a Mod.


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## Ourph (Jun 20, 2009)

joethelawyer said:


> Sometimes stuff like that is a good PR move.  If the retroclones are nothing more than a pimple of the ass of the RPG industry, of no real concern to WOTC, with all the bad press they've gotten lately it might be a good play to come out and say it's no big deal, retroclone-publish to your heart's content.



Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.


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## Keefe the Thief (Jun 20, 2009)

joethelawyer said:


> They don't have to like me to respond to posts I make here which others are interested in hearing the answer to.  Hell, if the only people here who could respond to my posts were those who liked me or what I said here, I would only get responses from like 2 people and a Mod.




But you want them to do something that would be "a good PR move". Don´t you see that - coming from you - this thread looks simply like a setup to eventually be able to say "lol, Wotc don´t care about PR and us fans?"


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## Aus_Snow (Jun 20, 2009)

Ourph said:


> Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.



Quite. Not only retroclones themselves, in PDF and print, but supplements, adventures aplenty, and magazines (yes, plural), not to mention blogs, forums, and so on. Lots and lots of product, discussion, visibility. . .

Yep, I'd call it 'pretty clear' as well.


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## joethelawyer (Jun 20, 2009)

Keefe the Thief said:


> But you want them to do something that would be "a good PR move". Don´t you see that - coming from you - this thread looks simply like a setup to eventually be able to say "lol, Wotc don´t care about PR and us fans?"




People are saying that anyway, even moreso after the pdf debacle.  So if the retroclone movement is inconsequential, and WOTC of showing its acceptance of retroclones by non-action, and yet folks like Clark Peterson of Necro still are reluctant to publish for OSRIC in part because of his opinion of its shaky legal ground, it can't hurt to say Retroclones are fine with WOTC.  They can only look good by doing so.


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## Remathilis (Jun 20, 2009)

joethelawyer said:


> People are saying that anyway, even moreso after the pdf debacle.  So if the retroclone movement is inconsequential, and WOTC of showing its acceptance of retroclones by non-action, and yet folks like Clark Peterson of Necro still are reluctant to publish for OSRIC in part because of his opinion of its shaky legal ground, it can't hurt to say Retroclones are fine with WOTC.  They can only look good by doing so.




Perhaps Clark means (and I don't claim to know his mind) that OSRIC is fine as a fan-based community project in which people make back the cost of publishing/printing, but if someone tries to sell OSRIC to Barnes & Noble and make a living off it, WotC will think differently. 

Either way, I'll eat my hat if someone from WotC comes through here and says "Retros are fine and dandy, make all you want!" or "Actually, the C&D letters are in the mail, and we're dispensing a virus to replace all copies of Labyrinth Lord on the internet with a link to our Keep on the Shadowfell quickstart."


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## Morrus (Jun 20, 2009)




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## jdrakeh (Jun 20, 2009)

Morrus said:


>




Yeah, this. After reaction to other announcements of the past year, I suspect WotC is now smart enough to know that there are simply some people who, no matter what, will _never_ be pleased with _any_ edition of D&D that isn't _Their Favorite Edition_ and, thus, that any time spent trying to woo such people by exercising corporate transparency is time wasted.


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## JohnRTroy (Jun 20, 2009)

Regarding OSRIC, I can't speak for Clark but I think I can see it like this.

The problem with OSRIC, as opposed to something like, say, C&C, is this.

C&C appears to have been started from the System Reference Document, and then tweaked it so it emulates 1e play without actually being 1e rules--such as adding back level limits, changing the XP rules, etc.  There are a lot of compromises involved here.  You can clearly see the path they took in developing the game.

OSRIC appears to be using the SRD as the rights to use the licensed trademarks and IP to justify creation of a 100% 1e compatible rule-set.  PJ really nailed it.  It doesn't look as derived from the existing SRD base, rather an attempt to reverse engineer 1e D&D fuller instead of just making a lot of variant rules for 3e.

From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this.  But since WoTC has never opened up this property, they could choose to argue this in the court.  Maybe they haven't touched the "retro-clones" because they don't consider it a threat.  I have a feeling the first person who releases a non-underground 4e clone and tries to use the OGL SRD to defend it is gonna get stomped.   

But I can understand why Orcus and others are wary of the use of OSRIC.  I think there are limits to the OGL and what the SRD can be used for.


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## Remathilis (Jun 20, 2009)

JohnRTroy said:


> Regarding OSRIC, I can't speak for Clark but I think I can see it like this.
> 
> The problem with OSRIC, as opposed to something like, say, C&C, is this.
> 
> ...




Agreed, which I think is part of the reason I prefer the "retro-inspired" games like C&C or BFRPG over the "clones" like OSRIC or Labyrinth Lord. The closer you hew to the older rules, the murkier the water gets. 

OSRIC might be a good way to get fan-submitted stuff published, but I doubt it could hold up for a "for profit" entity to exist...


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## joethelawyer (Jun 20, 2009)

JohnRTroy said:


> Regarding OSRIC, I can't speak for Clark but I think I can see it like this.
> 
> The problem with OSRIC, as opposed to something like, say, C&C, is this.
> 
> ...




I think you're right JRT.  It's in such a gray area that WOTC I think would be within their rights to bring a lawsuit to decide the issue. I'm not saying if they would win or lose on the merits of the suit though, because I have no idea.  The thing is, the act of bringing the lawsuit would likely be more than than the publisher could bear fnancially, and it would likely close the publisher down.  As for using the OGL to clone 4e, I don't think that is possible.  The core components, both in function and name, of 4e are so different than the core of 3.x, that it would be difficult to do so.    I think it was a smart business move on WOTC's part to develop 4e like that.  It avoids the effects of the OGL or the future editions of the game.


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## Philotomy Jurament (Jun 20, 2009)

JohnRTroy said:


> From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this.  But since WoTC has never opened up this property, they could choose to argue this in the court.



Such a suit would hinge on the identification of the property being infringed.  You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely).  The most likely place to look for an infringement is in the area of copyright.  The game rules, themselves, aren't protected "property," only the unique presentation of those rules.  So you're looking for something that _isn't_ derived from OGL-defined Open Game Content _and_ that is clearly a copy of the original rules presentation.

Take the OSRIC rules.  Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks).  Remove presentation of rules that is open content or derived from open content.  

What's left?


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## joethelawyer (Jun 20, 2009)

Philotomy Jurament said:


> Such a suit would hinge on the identification of the property being infringed.  You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely).  The most likely place to look for an infringement is in the area of copyright.  The game rules, themselves, aren't protected "property," only the unique presentation of those rules.  So you're looking for something that _isn't_ derived from OGL-defined Open Game Content and that is clearly a copy of the original rules presentation.
> 
> Take the OSRIC rules.  Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks).  Remove presentation of rules that is open content or derived from open content.
> 
> What's left?




You may be right, you may be wrong. The thing is, you're arguing the case based on the truth.  You only get a decision based on the truth if both sides can afford to bring it to court.  My point is, I think the very act of bringing a lawsuit will force the publishers to back down and close up shop, meaning anyone who based their business on publishing for these clones are also out of work.  If we knew WOTC's position regarding the clones, the old school thing might really pick up steam, if they just came out and said clones are ok.  Folks like Clark P. might publish for them.   People might invest more than just their spare time into developing material for the clones.


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## Melan (Jun 20, 2009)

Ourph said:


> Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.



I believe this is the right answer. If there had been a clear case vs. OSRIC when it was released in 2006, it would have been killed in 2006 (and mind you, some people _did_ report it to Wizards specifically to get it killed). Three years later, the probability of action seems slimmer and slimmer, while there has been support from several different publishers (including some very good ones from XRP et al), other simulacrum games have been released, etc. etc.


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## thecasualoblivion (Jun 20, 2009)

Is this thread after an actual answer or trying to make Scott Rouse look bad by asking a question we all know is unlikely to be answered?


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## coyote6 (Jun 20, 2009)

joethelawyer said:


> Sometimes stuff like that is a good PR move.  If the retroclones are nothing more than a pimple of the ass of the RPG industry, of no real concern to WOTC, with all the bad press they've gotten lately it might be a good play to come out and say it's no big deal, retroclone-publish to your heart's content.




Your initial post came 17 hours ago, after 9pm Pacific time on a Friday night, on Father's Day weekend. Nobody from WotC can answer this for at least another 42-odd hours. Forget whether or not they're inclined to answer; by the time they roll into the office, this thread might not even be seen by The Powers That Can Answer. 

If they see it on Monday morning, the thread will likely have mutated into a copyright debate/edition war/other topic leading to thread lock, or just diverged into a discussion of whether those mutant bunnies from Gamma World that turned metal into rubber would be an effective 4e monster. 

Timing, sir! Asking questions with the expectation of at least having a chance at getting an actual answer is all about the timing. Have initiative rules taught us nothing?!?


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## joethelawyer (Jun 20, 2009)

thecasualoblivion said:


> Is this thread after an actual answer or trying to make Scott Rouse look bad by asking a question we all know is unlikely to be answered?




Why would it be Scott who looked bad?  Scott is a guy who gets paid to come here and be the eyes and ears and mouth of WOTC.  It's his job. No one should put how they feel about WOTC on Scott.  Even if they do, because of misplaced anger (we've all been guilty of it I bet), Scott gets paid to handle it. It's his job

To your other point, just because it is unlikely to be answered means it doesn't need to be asked?  What is it with society these days where no one asks tough questions anymore?  When did the hunt for truth become an embarrassing thing unless its done within the bounds of proper etiquette and protocol?

I was in lawschool during the OJ Simpson criminal trial.  In my third year, Dr. Henry Lee came to speak to the school.  He was the big-name forensic science superstar of the OJ trial.  Every lawstudent showed up, undergrads, the press, and anyone who was associated with the school (read as Big Donors) also showed up.  Lee did a presentation on forensic medicine.  

After 45 minutes of boring slides on various crimes and international invstigations, he opened it up to the question and answer session.  There was probably 500 people in the room, we were packed like sardines, sitting on the steps in the aisles.  People raised their hands and started asking the polite politically correct guaranteed to offend no one questions like "What's your take on the state of the american eductional system today?"

Who gives a crap?  Not one person would have been there if it wasn't for Lee testifying in the OJ trial.   After 5 ridiculous questions like that, I raised my hand and asked "Do you think OJ killed Nicole Brown?"

Everyone let out nervous laughter.  People started moving away from me.  People were embarrassed.  Even though that's exactly what they all came there to hear.  Lee had just been offered 6 million dollars to write a book on that very topic. Everyone was on the edges of their seats, waiting for the answer, as they looked at me out of the corner of their eyes like I had Bubonic Plague. 

So he said something polite like "Ah, the 6 million dollar question. I make it a policy never to comment on cases I was involved in beyond what I testified to."

The question I asked here is valid, and important in many people's eyes.  It affects the game/hobby we all love to play.  It affects the future of certain aspects of the hobby.  It's a tough question that requires making people uncomfortable, and requires a company to take a position.  So be it.  Heck, many of probably own part of this company through your shares in the ever-dwindling 401(k)'s.

Though it may be in "bad form", it's still valid.  And I guarantee you if WOTC answers it here definitively, one way or another, it WILL BE talked about and read by thousands.  That in itself makes it a valid question.

Feel free to treat me like I am the embarrassing uncle who farts and burps at the formal Thanksgiving dinner, even as you gleefully read the answer to the question, if it comes.


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## Ourph (Jun 20, 2009)

Remathilis said:


> OSRIC might be a good way to get fan-submitted stuff published, but I doubt it could hold up for a "for profit" entity to exist...



Umm... what??? No offense, but you seem to be woefully uninformed about the state of the retro-clone publishing scene.

OSRIC products have been available from publishers like Expeditious Retreat Press, Goblinoid Games, Oone Games and Ronin Arts for the last 2-3 years. These are print products, sold for profit and some (like the XRP Advanced Adventures line) sold in book stores and game stores right alongside WotC products. And that's not even counting the publishers involved in making products for other retro-clones like Labyrinth Lord or BFRPG some of which also have retro-clone products in regular distribution channels.

There are plenty of for profit entities publishing retro-clone products and "holding up" just fine. Not a single one has ever had to pull a product or cancel a line because of legal hassles from WotC.


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## JohnRTroy (Jun 20, 2009)

Philotomy Jurament said:


> Such a suit would hinge on the identification of the property being infringed.  You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely).  The most likely place to look for an infringement is in the area of copyright.  The game rules, themselves, aren't protected "property," only the unique presentation of those rules.  So you're looking for something that _isn't_ derived from OGL-defined Open Game Content _and_ that is clearly a copy of the original rules presentation.
> 
> Take the OSRIC rules.  Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks).  Remove presentation of rules that is open content or derived from open content.
> 
> What's left?




One other thing to keep in mind too is the nebulous state of the RPG as a "game".  Ryan Dancey himself had stated he created the OGL to avoid what he believes is the inevitable future--somebody in the gaming industry makes a successful argument that because an RPG is more book and setting than plain rules (as opposed to a board game), and thus a precedent is set to protect RPG rules under copyright.

There's really not a lot of case law involving RPGs.  People are assuming based on a few cases the judge would rule in favor of any defendants.  That might not be the case.

It may be a slim risk, but it is risky.  Remember, even though WoTC doesn't produce 1st/2ed Edition D&D, they may want to in the future, AND they may also decide to license it, like they did with Hackmaster.

As well as other reasons.  A lot of publishers want to cooperate with WoTC, as they know they are playing in the backyard, and would probably not even want to antagonize them, even if they think they could win.


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## Odhanan (Jun 20, 2009)

Philotomy Jurament said:


> The idea behind the retro-clones is that the OGL gives you permission to use open content terms and descriptions (e.g. classes, spell names, monsters, hit points, armor class, etc) and then edit/modify/extend/abridge/adapt/transform/and format them.  The specific form into which the retro-clones modify the open content happens to match the algorithms and such used in other games.  Since copyright does not apply to such game formulas and rules (only to their presentation), and the retro clones present the formulas and rules with a combination of original description and open content, no legal rights are infringed.  (Subsystems or elements which are deemed to be unique expressions, rather than uncopyrightable algorithms/rules are avoided or changed -- this is why there are minor differences between the originals and the retro-clones, in certain areas.)
> 
> That's my understanding, anyway.




And your understanding is correct, Jason.


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## Morrus (Jun 20, 2009)

joethelawyer said:


> Who gives a crap? Not one person would have been there if it wasn't for Lee testifying in the OJ trial. After 5 ridiculous questions like that, I raised my hand and asked "Do you think OJ killed Nicole Brown?"
> 
> Everyone let out nervous laughter. People started moving away from me. People were embarrassed. Even though that's exactly what they all came there to hear. Lee had just been offered 6 million dollars to write a book on that very topic. Everyone was on the edges of their seats, waiting for the answer, as they looked at me out of the corner of their eyes like I had Bubonic Plague.
> 
> So he said something polite like "Ah, the 6 million dollar question. I make it a policy never to comment on cases I was involved in beyond what I testified to."




Congratulations. So you succeeded in embarassing the poor man for no reason; you_ knew_ he wouldn't answer the question. Well done you; I hope you enjoyed it. I feel for him.  You're right, his embarrassment and discomfort is of no consequence compared to your desire to know what he thinks about something he doesn't want to talk about. 

I don't know what your motives for such things were/are, but when it's *clear* you're not going to get a policy statement in response to someone on the internet who just yesterday said they thought it would be hilarious and karmic if people were to pirate WotC's materials (in fact, if you haven't made Scott's ignore list yet, I'd be amazed!), combined with the fact that you went to law school which suggests a certain level of intelligence and are aware of the above, you'll understand why folks are having trouble assigning good motives to the question.


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## Nikosandros (Jun 21, 2009)

Melan said:


> I believe this is the right answer. If there had been a clear case vs. OSRIC when it was released in 2006, it would have been killed in 2006 (and mind you, some people _did_ report it to Wizards specifically to get it killed). Three years later, the probability of action seems slimmer and slimmer, while there has been support from several different publishers (including some very good ones from XRP et al), other simulacrum games have been released, etc. etc.




Exactly. Besides, Stuart Marshal himself stated that he was in contact with WotC and OSRIC is still there.

It's interesting how the main attacks to OSRIC came from Orcus of NG (1e feel) and from Troll Lords who produce C&C (a modern successor of AD&D in the minds of its proponents).


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## fba827 (Jun 21, 2009)

i was not reading this thread by title alone (it's addressed to someone else)... but the size of it made me at least wonder/read the first post (note, I have not read any other post beyond the OP).

If the title and OP was worded differently to ask if "anyone knows what the stance is on X, Y, Z ..." it would make more sense (to me) but it's clearly worded for Scott Rouse/WotC/Hasbro.

Or if you thought others would be interested in the answer then getting an answer and posting it for discussion is a different thing entirely.


So now I ask (perhaps out of ignorance, and I accept that), this seems like you are directly asking one person (The Rouse) or at least his organization (WotC/Hasbro) a specific question that really only he/that organization can answer.  Would that not be better served as an email to Scott R rather than a thread on a board that is only passivley monitored by their organization?


So, I'm just really confused.  It gives the impression (perhaps wrongly!) that the question and intent are not what they seem - but I do my best not to assume that to ever be the case (still mentioning it so that you know how it's being perceived by me, a random univolved stranger who is reading your post).

So, I just wanted to post and say: perhaps this would be better served in an email, you would get an actual authoritative answer/response/lack of response rather than just 'guesses and assumptions' by people here that have no real say or know-how of WotC's legal department.


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## JohnRTroy (Jun 21, 2009)

Nikosandros said:


> Exactly. Besides, Stuart Marshal himself stated that he was in contact with WotC and OSRIC is still there.
> 
> It's interesting how the main attacks to OSRIC came from Orcus of NG (1e feel) and from Troll Lords who produce C&C (a modern successor of AD&D in the minds of his proponents).




I never saw them "attacking" OSRIC.  Clark is a lawyer and Steve C. is married to one!  They probably did their own legal analysis and erred on the side of caution.  Also remember that both of those gents are businessmen and are running for-profit businesses, while OSRIC is more of a fan based thing, so there is more risk if you're a publisher.  (And yes, other publishers have used them).

Having concerns about OSRIC is not saying "OSRIC" sucks.


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## joethelawyer (Jun 21, 2009)

Morrus said:


> Congratulations. So you succeeded in embarassing the poor man for no reason; you_ knew_ he wouldn't answer the question. Well done you; I hope you enjoyed it. I feel for him.  You're right, his embarrassment and discomfort is of no consequence compared to your desire to know what he thinks about something he doesn't want to talk about.
> 
> I don't know what your motives for such things were/are, but when it's *clear* you're not going to get a policy statement in response to someone on the internet who just yesterday said they thought it would be hilarious and karmic if people were to pirate WotC's materials (in fact, if you haven't made Scott's ignore list yet, I'd be amazed!), combined with the fact that you went to law school which suggests a certain level of intelligence and are aware of the above, you'll understand why folks are having trouble assigning good motives to the question.




Well the guy was paid thousands of dollars to be there.  He was one of the most famous celebrities to come out of the OJ case.  He just withstood grueling days of questions and cross-examination on that very topic from some of the country's best attorneys.  If the guy was put on the spot by a question from a lowly lawstudent, during a seminar to which he owed those thousands of dollars of income to his fame in the case about which the question was asked, then so be it. I have no regrets.

I also have no regrets when at similar events in my undergrad years I asked Jean Kirkpatrick former ambassador to the UN during the first gulf war whether if she thought the war was legal under the US Constitution, nor do I have regrets after asking Faye Vincent, former Commissioner of Major League Baseball about the hypocrisy of kicking Pete Rose out of baseball when keeping guys who used drugs like Howe.  They get paid to be there, big money, because of their connection to the issues I asked questions about.  I state these as examples, and not as a way to bring up taboo topics into the conversation.  If they are inappropriate feel free to delete them.

I have nothing against Scott.  He is a good guy by all reports.  He seems to be on the side of gamers.  He is the only person to ask the question of though.  If you like I could change the title of the thread to replace Rouse with Leeds, but it would still be Rouse who answers.  

Whether the question gets answered or not, its still a valid question that in my mind, and the minds of others, deserves an answer.  I'm sorry if Scott feels uncomfortable answering it, but frankly that's his job. 

WOTC is not just the company that owns the intellectual property called Dungeons and Dragons, they are also the caretakers of a hobby that thousands enjoy every day.  In that regard, they have a different level of responsibility which, to the extent that they are not carrying out that responsibility while paying attention to the bottom line, they seem to land themselves in hot water.   

I'm offering them an opportunity to carry out not just the corporate mission statement to make money, but to help other aspects of the hobby out, which by all accounts has little or no impact on their bottom line.

That's my take on it.  Those are my motives.  To the extent I don't like how WOTC has handled D&D lately, that surely taints my approach as to how touch-feely I am when I ask the questions.  I also admit that at this point I am gradually coming around to the point of view that I don't really care if WOTC fails, due to my feelings of how they have treated thir customers.  I used to think the hobby needed them to survive, but I am not so sure now. I would feel bad about people losing their jobs though.  I know how that feels.  I would also feel bad for people whose version of the game is no longer supported.  I know how that feels too.  As to my comments on the hilarity of their site getting cloned or hacked, so be it. I honestly don't care, and I think it would be karmically fitting. I'm not going to lie about that.  *shrug*

Understand that I have nothing but the utmost respect for the bulk of the creative folks at WOTC.  We're all gamers. It's the business end of the company that I have a problem with. Scott speaks for them.  The question goes to them.  

It's highly likely that this question never gets answered. I know that.  That doesn't mean it doesn't deserve an answer, and therefore someone should pose the question.


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## Charwoman Gene (Jun 21, 2009)

So The SRD lets me talk about Trolls, and how they regenerate, and I can use the algorithm loophole to access rules.

So I add my own Ideas like them feeding off flames instead of being hurt by them, or changing their terrain from "Any Swampland" to "Teh Internet" and maybe give them the At-Will powers of appeal to false authority by putting signs around there neck that directly attempt to make themselves seem more intelligent or matter more by hanging a sign around their neck saying "Bob the Giant", trying to make people respect them, pointing out that These gaming creatures are not worthy of respect, why would they bother pointing out that they were a giant other wise.


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## Nikosandros (Jun 21, 2009)

JohnRTroy said:


> I never saw them "attacking" OSRIC. [...]
> Having concerns about OSRIC is not saying "OSRIC" sucks.




I'm not 100% positive about what Steve said, but I'm certain that Clark used some heavy language against OSRIC in a thread here on ENWorld about one year ago. Being a fan of NG (and to a lesser extent also of TLG) I was somewhat disappointed with this stances, but this hasn't prevented me from still buying product from them that I liked.


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## Shadeydm (Jun 21, 2009)

joethelawyer said:


> Well the guy was paid thousands of dollars to be there.  He was one of the most famous celebrities to come out of the OJ case.  He just withstood grueling days of questions and cross-examination on that very topic from some of the country's best attorneys.  If the guy was put on the spot by a question from a lowly lawstudent, during a seminar to which he owed those thousands of dollars of income to his fame in the case about which the question was asked, then so be it. I have no regrets. ...(snip)




Well said sir, kudos to you, and fwiw I don't think you did anything wrong in this thread but then again I'm not offensive imagery removed. Let's say it meant... hmm.. "biased.".


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## Odhanan (Jun 21, 2009)

joethelawyer said:


> Well the guy was paid thousands of dollars to be there.  He was one of the most famous celebrities to come out of the OJ case.  He just withstood grueling days of questions and cross-examination on that very topic from some of the country's best attorneys.  If the guy was put on the spot by a question from a lowly lawstudent, during a seminar to which he owed those thousands of dollars of income to his fame in the case about which the question was asked, then so be it. I have no regrets.
> 
> I also have no regrets when at similar events in my undergrad years I asked Jean Kirkpatrick former ambassador to the UN during the first gulf war whether if she thought the war was legal under the US Constitution, nor do I have regrets after asking Faye Vincent, former Commissioner of Major League Baseball about the hypocrisy of kicking Pete Rose out of baseball when keeping guys who used drugs like Howe.  They get paid to be there, big money, because of their connection to the issues I asked questions about.  I state these as examples, and not as a way to bring up taboo topics into the conversation.  If they are inappropriate feel free to delete them.
> 
> ...




Kudos to you for this post.


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## joethelawyer (Jun 21, 2009)

Nikosandros said:


> I'm not 100% positive about what Steve said, but I'm certain that Clark used some heavy language against OSRIC in a thread here on ENWorld about one year ago. Being a fan of NG (and to a lesser extent also of TLG) I was somewhat disappointed with this stances, but this hasn't prevented me from still buying product from them that I liked.




The exact quote was:

http://www.enworld.org/forum/genera...-4e-gaming-system-license-13.html#post4317927

Tree, would you quite it please.

OSRIC is, in my view, 100% illegal and infringing. I wouldnt touch it with a 10 foot pole. And doing what you call for is, in my view, similarly illegal. 

Please quite holding up the fact that Wizards find OSRIC too irrelevant to take action against as some evdence of its legality.                    


 Clark Peterson
Necromancer Games
Necromancer Games: 3rd Edition Rules, 1st Edition Feel

_______


And thanks for the kudos for my other response, guys.  Sorry about the ranty nature and length of it.


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## Nikosandros (Jun 21, 2009)

joethelawyer said:


> The exact quote was




Yes, there was that post, but also this one. The "worse" part (from my POV, naturally) was


> You just know it is wrong. Its like Napster




Where OSRIC is compared to illegal file sharing.


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## lrsach01 (Jun 21, 2009)

From WotC's point of view, it might be a case of plausible deniability. If they don't know about something, they don't have to act on it. OSRIC might be below the level concern for WotC and if they don't say anything public about it, they might not have to "do" anything about it. By leaving things nebulous, WotC doesn't have to address a flee and BIGGER names will avoid (too much to lose of the giant awakens). Frankly, if you (joe) want to provoke something, you need to do it a way that someone at the company answers the question in a public forum. ENWorld is not that type of forum. It's too easy to ignore this type of discussion... or at least deny reading it. Something like a public QnA session at GenCon WOULD be. Or even better, in a court setting of some sort.


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## Ourph (Jun 21, 2009)

JohnRTroy said:


> Also remember that both of those gents are businessmen and are running for-profit businesses, while OSRIC is more of a fan based thing, so there is more risk if you're a publisher.



Where is this "it's a fan thing" coming from? OSRIC is, and always has been, about people creating and selling 1e compatible adventures and supplements. The very first OSRIC adventure ever published was released by Expeditious Retreat Press, one of the bigger and better known 3PPs in the RPG industry. They remain one of the most active publishers of OSRIC material. Are you seriously suggesting that XRP is a "fan operation"??


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## Oni (Jun 21, 2009)

joethelawyer said:


> I'm offering them an opportunity to carry out not just the corporate mission statement to make money, but to help other aspects of the hobby out, which by all accounts has little or no impact on their bottom line.




Some opportunity this is.  The opportunity to do something they could do anytime they felt like it?  You aren't giving them anything.  And it's not much of an opportunity anyway when any kind of statement could come back to haunt them, and most assuredly no matter what is said will be twisted into more fuel for the disgruntled.  I suspect you know that as well.


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## joethelawyer (Jun 21, 2009)

Oni said:


> Some opportunity this is.  The opportunity to do something they could do anytime they felt like it?  You aren't giving them anything.  And it's not much of an opportunity anyway when any kind of statement could come back to haunt them, and most assuredly no matter what is said will be twisted into more fuel for the disgruntled.  I suspect you know that as well.




Like others have said, they have had a few years to do it and have not yet.  The opportunity cmes through the "uncomfortableness" this thread may cause in them.  They can choose to support the hobby in the uncomfortable moment, or the bottom line.  Hence the opportunity which didn't exist before due to the lack of anyone every asking the question directly.

As to it coming back to haunt them through people being disgruntled---I can't see who would be disgruntled if WOTC said "Go ahead and develop the retroclones, they are hereby declared to be not violative of our IP rights.  You ave a license to sell them and develop for them."


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## Lord Xtheth (Jun 21, 2009)

I'm not anything close to a WoTC fat cat, but with past occurances in mind I can assume the official statement would be to send a "Cease and desist" notice, pending further legal action.

It makes the most sense to me, and enough websites have vanished this way that I think it's been proven.

Though I do agree with you Joe, sometimes it is nice to ask a question just to see if it'll get answered.


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## Bumbles (Jun 21, 2009)

joethelawyer said:


> The opportunity cmes through the "uncomfortableness" this thread may cause in them.




I think you overestimate exactly how much that is.  I'd put it somewhere below zero actually.


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## joethelawyer (Jun 21, 2009)

Bumbles said:


> I think you overestimate exactly how much that is.  I'd put it somewhere below zero actually.




Hey, ya gotta try man.


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## Morrus (Jun 21, 2009)

joethelawyer said:


> Whether the question gets answered or not, its still a valid question that in my mind, and the minds of others, deserves an answer. I'm sorry if Scott feels uncomfortable answering it, but frankly that's his job.




I think you are mistaken as to Scott Rouse's job.  His job isn't to say "how high?" whenever joethelawyer says "jump"!  It isn't to make binding legal statements on the internet in response to random posters who just yesterday were crowing how karmic it was that their products get pirated.



> I'm offering them an opportunity to carry out not just the corporate mission statement to make money, but to help other aspects of the hobby out, which by all accounts has little or no impact on their bottom line.




You aren't "offering" them anything.  If they choose to make any policy statements, they will do so according to their own procedures.  They won't do so on a thread on the internet, and nor should they.   



> I also admit that at this point I am gradually coming around to the point of view that I don't really care if WOTC fails, due to my feelings of how they have treated thir customers.




Yes, Joe.  That's clear.  We all gathered that.



> It's highly likely that this question never gets answered. I know that. That doesn't mean it doesn't deserve an answer, and therefore someone should pose the question.




_IF_ it "deserves" an answer (which is a premise I don't agree with in the first place - they don't owe you an answer), _you_ aren't the person who deserves that answer.  Any legal relationship betwene a company and WotC is a private relationship; you aren't privy to that and, again, nor should you be.

If you produce an OSRIC-like system, then contact WotC directly.  A third party callng them out on a random thread on teh intrawebs?  Not so much.

The thing is, you know this, Joe.   You say you're a lawyer, right?  Does your company make legal policy on random messageboards when someone on the internet posts a thread demanding that they do so?  No, of course not.


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## Bumbles (Jun 21, 2009)

joethelawyer said:


> Hey, ya gotta try man.




Not really, sometimes it can even be counter-productive to try.  Discretion, y'know?


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## joethelawyer (Jun 21, 2009)

Morrus said:


> I think you are mistaken as to Scott Rouse's job.  His job isn't to say "how high?" whenever joethelawyer says "jump"!  It isn't to make binding legal statements on the internet in response to random posters who just yesterday were crowing how karmic it was that their products get pirated.
> 
> You aren't "offering" them anything.  If they choose to make any policy statements, they will do so according to their own procedures.  They won't do so on a thread on the internet, and nor should they.
> 
> ...





If I remember right, Scott came on here in response to questions as to whether or not the d20 license was revoked, as the WOTC boards and web page didn't give a clear answer.  There were a few threads on it.  In other words, there was no clear official policy statement, there were questions as to WOTC's legal position on a matter, and Scott came here to answer those legal questions on behalf of WOTC.   So there is sort of a precedent to my asking these sorts of questions here.    Of course, it was a while ago, and my memory could be off.


I think even Vic Wertz was not absolutely clear on it, as quoted here:

http://www.enworld.org/forum/rpg-le...tl-been-officially-revoked-3.html#post4624415

I think in there it is referenced by peeps that the only real word we got that the d20 license was going to be revoked, and when and how it was to be revoked, was in an interview on another web page with Scott.  So 3pp's treated that as notice of a revoked license. Because of an interview on a webpage.

As to what he thinks of me---that's not really as important as the fact that since I posted the thread a day ago 1500 people read it. Surely a good chunk of those people (some of which are their customers, presumably) are interested in an answer to the question.  So while he may think I'm the world's largest $!#@#$, the question is still valid, and I and many people think it deserves and answer.  That's what these boards are for, right?


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## Piratecat (Jun 21, 2009)

joethelawyer said:


> since I posted the thread a day ago 1500 people read it.



(Don't confuse page views with viewers; every time anyone visits a page that's a page view. Reading the whole thread once will generate 4+ page views, as will hitting refresh or the reload after posting. Repeat visitors generate multiple page views. For a thread this size with today's traffic, it's probably around 200-300 people, some returning to keep reading updates.)


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## joethelawyer (Jun 21, 2009)

Piratecat said:


> (Don't confuse page views with viewers; every time anyone visits a page that's a page view. Reading the whole thread once will generate 4+ page views, as will hitting refresh or the reload after posting. Repeat visitors generate multiple page views. For a thread this size with today's traffic, it's probably around 200-300 people, some returning to keep reading updates.)




 So I'm not famous yet?  

Interesting though, I didn't realize that.  Though the numbers change, the general point remains.


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## xechnao (Jun 21, 2009)

Morrus said:


> The thing is, you know this, Joe.   You say you're a lawyer, right?  Does your company make legal policy on random messageboards when someone on the internet posts a thread demanding that they do so?  No, of course not.




Wotc is an entertainment company and it mostly lives and dies by its fan base. I doubt they are that big into casual market penetration so that message boards are irrelevant. If most fans on message boards get upset with Wotc, Wotc will be in trouble. This is difficult to happen on such a scale but it can happen and it does happen on some measure (see Pathfinder). Why it is difficult to happen? Because a large part of the fan base considers itself invested in the game. Not just from a consumer's point of view but from an investor's point of view. M:tG cards being the clearest example. This does not mean though that Scott's job is not to struggle to entertain opinions on the message boards.


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## Odhanan (Jun 21, 2009)

Morrus said:


> _IF_ it "deserves" an answer (which is a premise I don't agree with in the first place - they don't owe you an answer)



I pity the company which believes its customers do not deserve answers to their questions, no matter how (il)legitimate these end up being. This, I believe, certainly would constitute corporate arrogance at its finest. This is not a stab at WotC's decision to answer or not joe's question. It is, however, a stab at the biased logic behind your argument, Morrus.


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## MichaelSomething (Jun 21, 2009)

Morrus said:


> I think you are mistaken as to Scott Rouse's job. His job isn't to say "how high?" whenever joethelawyer says "jump"! It isn't to make binding legal statements on the internet in response to random posters who just yesterday were crowing how karmic it was that their products get pirated.




Also, It's not part of Scott's job description to hang around Enworld answering questions.  I believe he does so in his free time.  The quote and its link is my source...



Scott_Rouse said:


> I am a salary man so I don't get no stinkin' time sheet but when I post at home there is beer in the fridge




To the OP, did you consider posting this question on the WOTC boards?  You know, the offical company board?  That might help...


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## Oni (Jun 21, 2009)

Odhanan said:


> I pity the company which believes its customers do not deserve answers to their questions, no matter how (il)legitimate these end up being. This, I believe, certainly would constitute corporate arrogance at its finest. This is not a stab at WotC's decision to answer or not joe's question. It is, however, a stab at the biased logic behind your argument, Morrus.




I pity the company that is beleaguered by customers, or worse yet non-customers, who believe they are owed something beyond the product they bought or didn't buy, due to some twisted sense of entitlement born of being a fan.  Fandom has a disturbing darkside that has a tendency to bite the hand that feeds it when things don't go their way.  Frankly not all questions deserve a response, or even acknowledgment, it only encourages bad behavior.  Fans start to think that acting like possessive jerks gets results.


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## Atlatl Jones (Jun 21, 2009)

MichaelSomething said:


> Also, It's not part of Scott's job description to hang around Enworld answering questions.  I believe he does so in his free time.  The quote and its link is my source...



It's also not Scott's job to make legal decisions for Wizards, let alone decide whether the company is going to litigate.  If you recall, Scott could only give answers about the GSL after the legal department set the policy.  He could advocate for certain positions internally, but the final decision was not his.

If WotC's legal legal department gets involved, they will have only answer about the retroclones: "No. Cease and desist immediately."  The best you're going to get is the company intentionally ignoring the issue because it's not worth it to go after something so minor.


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## jdrakeh (Jun 21, 2009)

Odhanan said:


> I pity the company which believes its customers do not deserve answers to their questions, no matter how (il)legitimate these end up being. This, I believe, certainly would constitute corporate arrogance at its finest. This is not a stab at WotC's decision to answer or not joe's question. It is, however, a stab at the biased logic behind your argument, Morrus.




Morrus's logic is perfectly sound. Just because a question is asked does _not_ mean that it deserves an answer. A consumer who believes that he is entitled to have every question that he asks of a company answered, regardless of how reasonable (or unreasonable) those questions are, has a _completely_ distorted (and scary) sense of self-importance. 

Not responding to unreasonable questions or outrageous demands isn't "corporate arrogance," it's how _most businesses are run_. It's why they make those signs that say "Owner retains the right to refuse service." It's why, if you start a fight in a bar, you'll be thrown out. It's why attempting to return stolen merchendise to a department store will gert you arrested. 

The bottome line is that the customer is _not_ always right and, frankly, when a customer makes unreasonable demands or acts in an inappropriate manner, they _shouldn't_ be surprised when the world reacts as if they've acted unreasonably — of course, they almost always are, as their perception is enitirely self-centered, rather than grounded in reality. 

Rewarding socially unacceptable behavior isn't the answer. If people ask an unreasonable question, they shouldn't expect an answer.


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## S'mon (Jun 21, 2009)

WoTC legal are well aware of OSRIC; Stuart Marshall the author has been in conversation with them about it back in 2006.  They didn't threaten to sue him.  Nor did they give him authorisation.

FWIW, I teach copyright and contract law, I have looked at OSRIC, and it seems very tightly designed so as not to infringe copyright or breach the OGL.  Other retroclones may have minor, technical or trivial copyright infringements of non-OGL material (which BTW would not necessarily lead a judge to award damages or injunction, at least in UK law), but OSRIC looks watertight to me.  I don't think Orcus can have looked at it carefully in terms of the OGL and copyright when he made his statement.

My impression is that the author of OSRIC is a serious person, WoTC would be ill advised to bring a lawsuit against him that would probably fail (note he's in the UK and our law is not as plaintiff friendly as US law) and set an unwelcome precedent for him.  And WoTC/Hasbro legal are not idiots like the TSR in-house lawyers, they know this too.  Where they have taken action, it has been for file-sharing or for trademark infringement, both of which are much simpler to litigate than OGL/copyright.  The OGL was specifically designed to prevent WoTC lawyers suing people, IMO no smart lawyer is going to want to go in for an OGL lawsuit except where there has been trade mark use by the OGL licensee.


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## xechnao (Jun 21, 2009)

MichaelSomething said:


> Also, It's not part of Scott's job description to hang around Enworld answering questions.  I believe he does so in his free time.  The quote and its link is my source...




It is part of his job. Interacting with the public on behalf of the image of his company. Same way as it was part of the developers' and designers' job to offer podcasts and blogs for marketing reasons. As for the free time argument? This is nonsense. Scott is not a manual labourer.


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## Keefe the Thief (Jun 21, 2009)

Odhanan said:


> I pity the company which believes its customers do not deserve answers to their questions, no matter how (il)legitimate these end up being. This, I believe, certainly would constitute corporate arrogance at its finest. This is not a stab at WotC's decision to answer or not joe's question. It is, however, a stab at the biased logic behind your argument, Morrus.




Come on. It really depends on the question. This is a question with serious legal implication that no sane businessman would answer on a messageboard. And additionally this thread has serious shades of being a "hey blue!1!!" post at the WoW forums.
Also, Joe, for you not caring about Wotc and their success you sure post a lot of threads about them lately.


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## Mark (Jun 21, 2009)

S'mon said:


> WoTC legal are well aware of OSRIC; Stuart Marshall the author has been in conversation with them about it back in 2006.  They didn't threaten to sue him.  Nor did they give him authorisation.
> 
> FWIW, I teach copyright and contract law, I have looked at OSRIC, and it seems very tightly designed so as not to infringe copyright or breach the OGL.  Other retroclones may have minor, technical or trivial copyright infringements of non-OGL material (which BTW would not necessarily lead a judge to award damages or injunction, at least in UK law), but OSRIC looks watertight to me.  I don't think Orcus can have looked at it carefully in terms of the OGL and copyright when he made his statement.
> 
> My impression is that the author of OSRIC is a serious person, WoTC would be ill advised to bring a lawsuit against him that would probably fail (note he's in the UK and our law is not as plaintiff friendly as US law) and set an unwelcome precedent for him.  And WoTC/Hasbro legal are not idiots like the TSR in-house lawyers, they know this too.  Where they have taken action, it has been for file-sharing or for trademark infringement, both of which are much simpler to litigate than OGL/copyright.  The OGL was specifically designed to prevent WoTC lawyers suing people, IMO no smart lawyer is going to want to go in for an OGL lawsuit except where there has been trade mark use by the OGL licensee.





If someone under the OGL violates a copyright or trademark, (assuming the entity whose IP was violated wanted to clear this up through OGL channels) the first step would be to notify the offender and give them thirty days to fix the problem.  If that did not happen, the interaction during this period might well strengthen any subsequent lawsuit.


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## Morrus (Jun 21, 2009)

Odhanan said:


> I pity the company which believes its customers do not deserve answers to their questions, no matter how (il)legitimate these end up being. This, I believe, certainly would constitute corporate arrogance at its finest. This is not a stab at WotC's decision to answer or not joe's question. It is, however, a stab at the biased logic behind your argument, Morrus.




No; customers "deserve" a certain level of customer service and support regarding their transaction with the company in question. Purchasing a product doesn't entitle you to an answer to any question you desire, and it _especially_ doesn't entitle you to demand that WotC formulate legal policies on an internet messageboard. 

There are some questions which it would be good form for WotC to answer on a board like this (questions about upcoming products, for example); there are other questions, such as this one, where is would be appalling bad business practice for them to do, and completely unprofessional.  They'd have to be i_nsane_ to answer this question here.

No company operates like this, including WotC.


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## jaerdaph (Jun 21, 2009)

Morrus said:


> Purchasing a product doesn't entitle you to an answer to any question you desire, and it _especially_ doesn't entitle you to demand that WotC formulate legal policies on an internet messageboard.




Speak for yourself, Morrus. If I do not know how much WotC spends on paperclips annually, subtotaled by standard and jumbo sizes, I cannot fully enjoy their products to full potential.


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## PapersAndPaychecks (Jun 21, 2009)

I wasn't going to reply to this thread, since the issues it raises were well and truly thrashed into the ground three years ago, but I just want to add to certain points of fact.



S'mon said:


> WoTC legal are well aware of OSRIC; Stuart Marshall the author has been in conversation with them about it back in 2006.  They didn't threaten to sue him.  Nor did they give him authorisation.




I was, in fact, never in direct correspondence with WOTC legal.

I did receive an email from Rich Redman, then Brand Licensing Manager, but not a lawyer.  He wanted me to cease distribution of OSRIC.  His grounds were that OSRIC was not compliant with the D20 license.

I wrote back to Mr Redman and explained that OSRIC didn't pretend to be compliant with the D20 license, and was in fact entirely reliant on the OGL.

Mr Redman apologised for not adequately doing his homework and then said he wanted me to cease distribution of OSRIC anyway.  His basic point was the duck test: OSRIC looks like 1e, it quacks like 1e, so in his view it must be wrong to distribute it.

I replied highlighting various points of fact and various representations WOTC had already made, both in public and in private correspondence.

Mr Redman said this was beyond him and he would get WOTC legal to contact me.  

This was in August 2006 and I'm still waiting for their email.  I suspect they've figured it out, though, and will never pursue the matter.

The subtext behind OSRIC, and all the other retro-clones, is around computer gaming.  You see, there's a duck test there too:  a lot of computer games are, in their underlying concepts and algorithms, very similar.

Representatives of computer games companies are very interested in the possibility of a precedent that would establish, in US copyright law, exactly what constitutes a "rule" and what constitutes "artistic presentation".  Any lawsuit involving OSRIC and WOTC could establish important precedents.

What that would almost certainly mean is an awful lot of money in amicus curiae.  I don't particularly want to go there, and I think it likely that WOTC don't want to go there either.



S'mon said:


> My impression is that the author of OSRIC is a serious person




OSRIC is Serious Business.  



S'mon said:


> WoTC would be ill advised to bring a lawsuit against him that would probably fail (note he's in the UK and our law is not as plaintiff friendly as US law)




Just to explain that to non-British readers, one key difference is in rules of procedure.  In Britain the loser pays the winner's legal costs, which means you have to win your case on the legal merit of your argument; you can't just spend the other side into submission.


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## Hairfoot (Jun 21, 2009)

Joethelawyer was perhaps a bit presumptuous in calling for Scott Rouse in particular, but I have no truck with this "careful or WotC might hear you" approach.

If the clones are potentially a target for Hasbro's legal department, I want to know now, because the only reason they're not throwing cease-and-desists around is because they don't see a threat to Hasbro profits.

"Big Brother will destroy your game if it becomes popular" is not a reasonable or tolerable situation for people to game under.


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## xechnao (Jun 21, 2009)

> Speak for yourself, Morrus. If I do not know how much WotC spends on paperclips annually, subtotaled by standard and jumbo sizes, I cannot fully enjoy their products to full potential.




Oh come on. This has nothing to do with it and no one is on the right here. The matter or the debate is mostly political and highly relevant. The way I understand it, this has been the interactive forum of the 3pp industry. What matters should rise, on what form and style, how tough the debate should be it is all political and relevant.


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## Piratecat (Jun 21, 2009)

P&P, thanks for that clarification.

If I were going to make a guess - *and that's all this is, a guess* - WotC took a look at this and said "we think it's an infringement, but what does a lawsuit trigger? Disappointed fans and poor PR, all to shut down people who aren't making significant money from the game and who love D&D. Lots of downside, very little upside." So they've chosen to delay legal action in the hopes that it flies under the radar until something changes that forces them to address it.


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## Jack99 (Jun 21, 2009)

Morrus said:


> I think you are mistaken as to Scott Rouse's job.  His job isn't to say "how high?" whenever joethelawyer says "jump"!  It isn't to make binding legal statements on the internet in response to random posters who just yesterday were crowing how karmic it was that their products get pirated.
> 
> 
> 
> ...




You deserve some XP, and not just because you are the boss..



xechnao said:


> It is part of his job. Interacting with the public on behalf of the image of his company. Same way as it was part of the developers' and designers' job to offer podcasts and blogs for marketing reasons. As for the free time argument? This is nonsense. Scott is not a manual labourer.




I doubt it's Scott's job to chase down what their customers think and ask about on random messageboards and interact with them. On WotC's own boards, yes, that's probably part of his job description. But ENworld? Nah...


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## xechnao (Jun 21, 2009)

Piratecat said:


> P&P, thanks for that clarification.
> 
> If I were going to make a guess - *and that's all this is, a guess* - WotC took a look at this and said "we think it's an infringement, but what does a lawsuit trigger? Disappointed fans and poor PR, all to shut down people who aren't making significant money from the game and who love D&D. Lots of downside, very little upside." So they've chosen to delay legal action in the hopes that it flies under the radar until something changes that forces them to address it.




It could be this. Sending C&D letters to OSRIC would not be exactly the same as the C&D letters they sent to character sheets -not the same for the hobby population. But exactly for this reason, I believe more and more OSRIC becomes popular the more difficulty they will have trying to settle this. Most probably what happened is that they tried to stop it first place at its launch, as P&P narrates here, but did not manage to win.


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## xechnao (Jun 21, 2009)

Jack99 said:


> I doubt it's Scott's job to chase down what their customers think and ask about on random messageboards and interact with them. On WotC's own boards, yes, that's probably part of his job description. But ENworld? Nah...




Cause ENWorld is such an irrelevant community to D&D. Especially during 4E's launch. Yeah right..


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## Windjammer (Jun 21, 2009)

Morrus said:


> combined with the fact that you went to law school *which suggests a certain level of intelligence *and are aware of the above, you'll understand why folks are having trouble assigning good motives to the question.




I could be reading this wrong, but this comes off as a veiled insult. 

And whence the preoccupation to detect/impugn "motifs" to the asking of questions instead of wishing to see them answered?

I'm sure you (and, more specifically, PirateCat) remember the other recent thread where Scott did respond to a question asked. It was a headache with all the people chiming in how Scott *shouldn't* go on answering ("please don't answer, you've answered all we* want to know already - don't continue answering, it's a YES/NO TRAP (tM)!!!!!"), and I was glad to see Scott could respond more fully before the thread got locked.

*Read: me and my two buddies.


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## thecasualoblivion (Jun 21, 2009)

xechnao said:


> Cause ENWorld is such an irrelevant community to D&D. Especially during 4E's launch. Yeah right..




I wouldn't call ENWorld an irrelevant community, but it also is the home forum of the general OGL movement and tends to overstate its importance, not unlike how Paizo's forums overstate the importance of that game or even WotCs own forums overstating their own importance.


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## jaerdaph (Jun 21, 2009)

xechnao said:


> Oh come on. This has nothing to do with it and no one is on the right here. The matter or the debate is mostly political and highly relevant. The way I understand it, this has been the interactive forum of the 3pp industry. What matters should rise, on what form and style, how tough the debate should be it is all political and relevant.




*shrugs*

I'd rather just play D&D.


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## thecasualoblivion (Jun 21, 2009)

Windjammer said:


> I could be reading this wrong, but this comes off as a veiled insult.
> 
> And whence the preoccupation to detect/impugn "motifs" to the asking of questions instead of wishing to see them answered?
> 
> ...




Just because these forums have standards doesn't completely absolve you from being called on bad behavior when you are perpetrating bad behavior.


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## xechnao (Jun 21, 2009)

thecasualoblivion said:


> I wouldn't call ENWorld an irrelevant community, but it also is the home forum of the general OGL movement and tends to overstate its importance, not unlike how Paizo's forums overstate the importance of that game or even WotCs own forums overstating their own importance.




You are correct in what you say. But still ENWorld has been one of the biggest customer base targets for D&D. This is what matters for Wotc.


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## jgbrowning (Jun 21, 2009)

Piratecat said:


> P&P, thanks for that clarification.
> 
> If I were going to make a guess - *and that's all this is, a guess* - WotC took a look at this and said "we think it's an infringement, but what does a lawsuit trigger? Disappointed fans and poor PR, all to shut down people who aren't making significant money from the game and who love D&D. Lots of downside, very little upside." So they've chosen to delay legal action in the hopes that it flies under the radar until something changes that forces them to address it.




The only thing known positively is that the legal department of WotC has known about OSRIC for years and done nothing. Ascribing a motive to that inaction is pure speculation.

I suspect, however, if OSRIC has *already been deemed 100% legal *by WotC, the only thing we can count on with certainty is continued inaction without comment, similar to what has already occurred. I don't think we will *ever* see confirmation about this - there is nothing to gain, only things to lose.

And for those who consider OSRIC infringing, I would appreciate pointing out the specific textual examples that makes one believe such. I've looked and I can't find any, but I'm assuming those who think it infringing have found something I'm missing, or else they wouldn't hold that opinion. (EDIT: and if you don't want to discuss it publicly, my e-mail is josephbrowning@gmail.com)

joe b.


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## Nikosandros (Jun 21, 2009)

Piratecat said:


> P&P, thanks for that clarification.
> 
> If I were going to make a guess - *and that's all this is, a guess* - WotC took a look at this and said "we think it's an infringement, but what does a lawsuit trigger? Disappointed fans and poor PR, all to shut down people who aren't making significant money from the game and who love D&D. Lots of downside, very little upside." So they've chosen to delay legal action in the hopes that it flies under the radar until something changes that forces them to address it.




That's not how I read it. It seems to me that the brand license manager asked for the distribution of OSRIC to be interrupted without having a clear view of the situation. Later, WotC legal found that they had no case and they dropped the issue.


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## thecasualoblivion (Jun 21, 2009)

Nikosandros said:


> That's not how I read it. It seems to me that the brand license manager asked for the distribution of OSRIC to be interrupted without having a clear view of the situation. Later, WotC legal found that they had no case and they dropped the issue.




Splitting hairs, I'd say there is a difference between there being no case and there being a case that wouldn't be worth pursuing. Both to WotC, and interested 3rd parties.

The reality being in that limbo generally results in silence, which is what we have.


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## Piratecat (Jun 21, 2009)

jgbrowning said:


> The only thing known positively is that the legal department of WotC has known about OSRIC for years and done nothing. Ascribing a motive to that inaction is pure speculation.



 It sure is! That's why my post had a bolded "this is only a guess!" line. Hey, at least I'm explicit about it.


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## Halivar (Jun 21, 2009)

Well, if it's any consolation to WotC, I just purchased the $30 OSRIC hardcover off Lulu.com, and WotC isn't losing one cent of revenue off the purchase; I'm still buying Divine Power when it comes out.


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## Remathilis (Jun 21, 2009)

xechnao said:


> It could be this. Sending C&D letters to OSRIC would not be exactly the same as the C&D letters they sent to character sheets -not the same for the hobby population. *But exactly for this reason, I believe more and more OSRIC becomes popular the more difficulty they will have trying to settle this.* Most probably what happened is that they tried to stop it first place at its launch, as P&P narrates here, but did not manage to win.




I'm sorry, but if ANYONE thinks any retro-clone is going to become so big as to actually challenge WotC's sales numbers, I think they're a bit too optimistic. The Retros have their place; they cater to the segment of D&D players who never left the 1980s and haven't been WotC's demographic for years. And aside from a small group of players who will get into the games from more recent editions (the "throwback" players, named after the Pepsi products) I don't see the movement expanding enough to challenge WotC, or even Paizo, in total sales.


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## Mark (Jun 21, 2009)

thecasualoblivion said:


> The reality being in that limbo generally results in silence, which is what we have.





Ergo, my not having heard from WotC in regard to my 3.5 SRD Revised* OGL product, and someone having once erroneously posted that they didn't understand why it was legal, means WotC are considering suing me?  I hope not.



* There's the link, Halivar.


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## xechnao (Jun 21, 2009)

Remathilis said:


> I'm sorry, but if ANYONE thinks any retro-clone is going to become so big as to actually challenge WotC's sales numbers, I think they're a bit too optimistic. The Retros have their place; they cater to the segment of D&D players who never left the 1980s. And aside from a small group of players who will get into the games from more recent editions (the "throwback" players, named after the Pepsi products) I don't see the movement expanding enough to challenge WotC, or even Paizo, in total sales.




Yep, it is mostly a matter of trend to the D&D hardcore fan base. Not of direct sales. I guess it is not a challenge because there is nothing that they can do about it that would be worthing the price they would have to pay. Certainly it is not threatening by any means Wotc existence, as you put it.


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## Jack99 (Jun 21, 2009)

xechnao said:


> Cause ENWorld is such an irrelevant community to D&D. Especially during 4E's launch. Yeah right..




I never said it was irrelevant. Of course it isn't.


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## xechnao (Jun 21, 2009)

Jack99 said:


> I never said it was irrelevant. Of course it isn't.



I am pretty sure you did. Regarding Scott's job. But I guess it doesn't matter to discuss about it. We are making more noise than any sense here. All of us. Except Hairfoot.
I want to requote him for truth



> If the clones are potentially a target for Hasbro's legal department, I want to know now, because the only reason they're not throwing cease-and-desists around is because they don't see a threat to Hasbro profits.
> 
> "Big Brother will destroy your game if it becomes popular" is not a reasonable or tolerable situation for people to game under.


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## Mallus (Jun 21, 2009)

Hairfoot said:


> If the clones are potentially a target for Hasbro's legal department, I want to know now, because the only reason they're not throwing cease-and-desists around is because they don't see a threat to Hasbro profits.



Why does it matter to you? Just play the game, officially sanctioned or not, that entertains you.

If one was inclined to be charitable, one could consider WotC's stance on the retroclones to be a kind of 'fair use'. They're allowing these fan creations so long as they don't develop into serious competitor products. For the life of me I can't see the malevolence in that. In fact, they're turning a blind eye towards fan creations that have left the realm of 'fan creation' behind and are, in fact, commercial products.

It seems rather nice for corporate behavior. It's certainly nothing like TSR trying to trademark the word 'elf'.

And seeing as the retroclones aren't likely to become serious competitor products --which shouldn't be construed as a knock against them-- I don't what the fuss is about.



> "Big Brother will destroy your game if it becomes popular" is not a reasonable or tolerable situation for people to game under.



The 1984 reference is doubleplusungood.

Will the secret police drag you away to Minigame for reeducation if you continue playing OSRIC after a hypothetical cease-and-desist is issued?


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## xechnao (Jun 21, 2009)

Mallus said:


> Why does it matter to you?



It is a principle to consider or debate about. How much power should businesses have. How should they operate. How should the economy operate. Cause you know even the games that get developed and how we play and entertain ourselves are subject to this parameter.


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## Mallus (Jun 21, 2009)

Windjammer said:


> I could be reading this wrong, but this comes off as a veiled insult.
> 
> And whence the preoccupation to detect/impugn "motifs" to the asking of questions instead of wishing to see them answered?



Joe is a lawyer.

Joe asked an employee of WotC, whose been helpful and friendly to the ENWorld community, to make legally inadvisable statements in a public forum.

What do you make of this?

(And it's 'motives', not 'motifs'. Impugning a person's motifs is something done in art, music, or literary criticism .)


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## Imaro (Jun 21, 2009)

Mallus said:


> Joe is a lawyer.
> 
> Joe asked an employee of WotC, whose been helpful and friendly to the ENWorld community, to make legally inadvisable statements in a public forum.
> 
> ...





That Joe wants to know...


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## joethelawyer (Jun 21, 2009)

xechnao said:


> It is a principle to consider or debate about. How much power should businesses have. How should they operate. How should the economy operate. Cause you know even the games that get developed and how we play and entertain ourselves are subject to this parameter.




Here's a guy who gets me. We're on the same wavelength man.


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## Mallus (Jun 21, 2009)

xechnao said:


> It is a principle to consider or debate about. How much power should businesses have. How should they operate. How should the economy operate.



Funny, I thought we came here to discuss pretending to be an elf. 

(also, considering that no company has the power to stop Hairfoot, or anyone else, for that matter, from playing the game of their choosing, I'm not really clear on what your point is)


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## Mallus (Jun 21, 2009)

joethelawyer said:


> Here's a guy who gets me. We're on the same wavelength man.



I'll give you this, Joe, I'm a guy who's pretty hard-left on issues of copyright and IP law, and you have me siding with the corporation!


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## Mallus (Jun 21, 2009)

Imaro said:


> That Joe wants to know...



Huh... I was shooting for 'Joe should know _better_


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## Piratecat (Jun 21, 2009)

I am so very tired of babysitting a very small number of threads, and this thread is one of them. 

EDIT: More explanation is probably needed. We normally get 2, maybe 3 reported posts a day. We've gotten 31 since yesterday, with vastly the lion's share from this thread and the other one or two I closed. I don't know what it is, but people on both sides of the issue were being repeatedly rude. As always, we don't have a lot of interest in micromanaging threads like that, so closed it goes.

Klunk.


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