[old and new D&D] OSR fundamentalism (warning: not insulting)

[Ron Edwards]

Hi Troy, no surprise indeed! And I greatly appreciate the content you're bringing to these issues, as I think we're generating a very useful timeline of post-Williams D&D and its context.*

But again: I'm not seeing what everyone fears, that the Big Company will Crush You in Court, either because the law is somehow broken beyond justice or because the costs (of any description) will run you into the ground.

These things certainly apply in many industries and in many other aspects of life. But I've seen nothing that confirms they apply to role-playing publishing. Here, I see a threatened suit which was settled through arbitration, and check out some of the details ... first, the arbitration was not some expensive legal firm, it was Mike Pondsmith. So it wasn't a legal-eagle situation, ever, merely a bunch of guys erecting their crests at one another until someone cooled it down.

This paragraph is absolutely bizarre:

Thus Wizards of the Coast learned a hard lesson, of relevance to any publisher. Whether your lawyers say you're in the right or not on a legal issue, the other side will often have lawyers offering the exact opposite opinion, and the result will usually be a lawsuit that will be won by whoever has the most money (and thus, in an industry our size, will be lost by everyone).

There is no evidence that Palladium (Siembieda) had more money than Wizards (Adkison), or that this alleged financial discrepancy played a role in the decision. And again, I can't tell if the confrontation ever came to actual lawyers presenting actual briefs to an actual judge, not even for the first stage to discover whether this was a court matter. "Sued" is an incredibly vague term. We could be talking about a court case in progress, in which case Pondsmith's arbitration would have had zero relevance once the courts were in motion, or it was a threat to initiate such a case - maybe even a justified one, but merely a threat.

The next paragraph opens with this sentence:

The Palladium lawsuit almost put Wizards of the Coast out of business.

Really? How? Maybe that's true, but we'll never know from the rest of the paragraph, and what it does say seems precisely the opposite: that Siembieda didn't even get the humiliation phrasing he was seeking.

(Gotta love the legalese in the official statement ... apparently Palladium and Siembieda are two different entities each with an opinion of its own ...)

One of these days, I'd love to see the accused publisher say, "Fuck you, bring it," and watch the misconceptions evaporate in court. It might not have in this case - using Palladium's system without permission does seem naive - but in reference to "D&D-like systems," again, I've love to see this happen.

Best, Ron

* Side note: I recently referred to AD&D2 as "reeking of Lorraine Williams' urine." I am sufficiently fond of this spontaneous quip that I didn't want it to vanish into anecdotal history, so I'm recording it here. Immortality!

[Troy_Costisick]

The next paragraph opens with this sentence:

The Palladium lawsuit almost put Wizards of the Coast out of business.

Really? How? Maybe that's true, but we'll never know from the rest of the paragraph, and what it does say seems precisely the opposite: that Siembieda didn't even get the humiliation phrasing he was seeking.

(Gotta love the legalese in the official statement ... apparently Palladium and Siembieda are two different entities each with an opinion of its own ...)

One of these days, I'd love to see the accused publisher say, "Fuck you, bring it," and watch the misconceptions evaporate in court. It might not have in this case - using Palladium's system without permission does seem naive - but in reference to "D&D-like systems," again, I've love to see this happen.

I have to think that the author wrote that sentence to add a sense of drama to his article. 

Here's the reality: Mark Rosewater (my original source) was not just a co-worker with Richard and Peter, he was a personal friend of them, and still his with Richard.  If anyone outside of Richard and Peter would be in a position to know what was happening around the time Magic came out, it would be Mark.  Mark said that Peter was indeed afraid that the lawsuit might put WotC out of business, hence the creation of Garfield Games to protect the ownership of Magic's IP.  However, I don't think it's clear at all anywhere that the actual results of the settlement ever put WotC in jeopardy. Especially since Magic came out during the arbitration!  It was clear from the moment that game was introduced to the public it was going to be a winner.  They sold six month's supply in the first two weeks!  So the financial impact in WotC's case is off the table.

So what does this have to do with the OSR?  WotC got in "trouble" (and I use that word super loosely) because it used Palladium's name and presumably text word-for-for or more likely number-for-number in its own publication without permission.  I guess, if I wanted to give Kevin the benefit of the doubt which I don't, it would be considered plagiarism and copyright infringement at the worst.  It's simple to avoid that, especially in the OSR's case: don't plagiarize- which none of them have done!

So in the end, yes, maybe there have been some copyright lawsuits and/or cease-and-desist letters sent out by a few wackoes in the industry.  But it has never resulted in the sinking of a company nor jail time for any creators.  And the problems are easy to avoid and have been avoided.

[glandis]

But again: I'm not seeing what everyone fears, that the Big Company will Crush You in Court, either because the law is somehow broken beyond justice or because the costs (of any description) will run you into the ground.

Let me grab a bit from one of my links:

"This lawsuit did not cost GDW a dime (contrary to rumor) — our contract contained a hold harmless clause which meant that someone else picked up the tab if we got sued. What was crippling, however, was all of the staff time involved in depositions, and responding to demands for documentation — this took valuable time away from other things, like design and administration, at a critical time when we could have used that time to create and develop products. We were in the process of recovering from this when some of the other factors hit."

I think that people running game companies where their own and others livelihood are on the line do (or did) have some real things to fear, especially given the incredibly thin line between staying in business and failing. There's also unnecessary fear, self-serving (for the resistance!) fear, and even self-fulfilling fear, sure. Shannon Appelcline, over at my other link, sums it up as "existing IP law suggests that Wizards does not actually have the right to restrict third-party usage, and their predecessor, TSR, was never willing to bring a court case to completion to prove that they did." But despite his optimism about the post-2008 future, 3rd party 4e support is pretty thin, unless I'm missing something. Many reasons for that of course, and HELL YEAH it'd be great to see a case actually go to court. I'm just reluctant to TOTALLY ignore the possibility of real negative consequences.

Now, in a world where NO game company exists to provide a livelihood to ANYONE - damn the torpedoes, full speed ahead!

[Callan S.]

and watch the misconceptions evaporate in court.

That'll definately happen?

[Ron Edwards]

Obviously not. My phrasing is precise: what I'd love to see. I even specified that the example we were discussing might not have been a candidate.

This thread is in danger of foundering because the topic of copyright law and RPGs is endlessly tempting. I've tried hard to keep it relevant to the OSR topic. Please help with that.

[glandis]

I tried to imply this, but more explicitly - a LOT of the OSR stuff I've seen is clearly produced in the same way as Adept Press/many Forge vets do: usually run seriously as a business, but not a primary source of livelihood for anyone. It would seem that the fear over IP stuff is even MORE likely to be primarily, um, fundamentalism-supporting rather than a realistic concern in that context.

[Miskatonic]

Boy howdy, this blundered into a really interesting cross of topics.

Because I have talked to a number of people about OSR projects, and can't quite put my finger on why anyone participating in a "get back to the roots" movement would give two shits about "doing right" under the D&D3-centric Open Gaming License. But this sort of thing seems to keep coming up.

I mean, I figure you either have a legit fear of something to lose in your business endeavor, and you retain a legal professional anyway because you can't count on a third-party boilerplate thing to cover your ass OR (more likely in the hobby case) you don't really have anything significant to lose and you're within your rights anyway and so you don't have to play at legalese. No?

So if I understand what Ron is suggesting correctly, all these budding game designers with "legal" questions aren't actually attempting to solicit for-real legal advice from unqualified persons on the Internet, but instead there's some sort of weird cultural buy-in going on, where people continue to harbor this peculiar notion that their very right to participate as a creator/publisher in this hobby is a privilege granted by some big scary corporation which OWNS YOUR FUN.

That hadn't quite clicked before. Hmm. I'll have to let that sink in a while.

[Ron Edwards]

Hey Larry, let me qualify your final characterization just a little - add the idea that the big scary corporation has procedurally and ideologically polluted the activity you value so much, twisting its distinctive symbols and terms into something "not original," "not on message," and "not right" - all the while claiming that it's the arbiter of those things! And it controls the means of distribution, access, and pedagogy concerning the activity. The only reason the right way (constructed as "original") exists is because you and people like you refuse to surrender.

So it doesn't own your fun, because it doesn't even know what this fun is, it can't know because it's irrevocably wrong about it in every way. But it can evaporate your fun, in part by socially isolating you from "the hobby," and in part by preventing stuff that would enhance your fun from getting published. (Note that part of your fun comes from using materials with the right name and symbols on it.) Its ownership of those symbols is profound. You know it has crushed others who used them, even unfairly - it sued Gygax for using the word "dragon" in his game, and crushed him! There is no justice, no recourse, no one to stop it even when it's wrong. Its ownership of the word "dragon" (and the six attributes, and levels, and dungeons, and et cetera) is so awful that it can do whatever it likes.

Now, apparently, it's permitting you to use those terms and symbols. Can that be for real? Of course not. It probably wants to draw you out, get you to reveal your stuff, and then snatch it! Of course it will eventually break its own rules, to renege on these agreements, that's what it does. It won't even let you alone! But maybe we can fool it. If we don't go too near its jaws, perhaps by publishing in the context of a foreign country, and avoiding using the symbols and terms that it says we're allowed to (ha!), then we can stay safer.

Grass-roots fundamentalism hates institutional orthodoxy like poison. But it draws much of the fury of its existence as a form of resistance to such a thing.

[RangerEd]

Larry and Ron,

I hear a couple of themes in your last exchanges. Sort of a "covenants without swords are merely words," meets the thesis from Loewen's Lies My Teacher Told Me, paraphrased as Texas textbook committees are ruining education in the United States.

I suspect Ron has a good point that parallels Loewen's. Using publishing power to control a market does affect intellectual freedom and requires a lot of effort to swim against the current. Complementing Ron's point is Larry's point about covenants (legalities) without swords (litigation). Although Gygax's situation demonstrates a particular willingness to litigate, I suspect that the peculiarities of being a well-recognized name in the industry had a lot to do with the desire to litigate.

For the less well known, I think Larry makes a good point that there is still a degree of freedom within RPG publishing, as long as one doesn't want to make too much money. It seems analogous to the situation in which law enforcement keeps the illegal drug business a cottage industry within the United States. Given our willingness to go to court as intimidation in this country, I am astounded by the number of indie-games that exist.

To bring both points together like a decent historian (parsimony in cause), neither point is mutually exclusive nor more correct than the other. I think both causes are important in explaining the state of affairs in gaming.

Ed