Re: War of the Ring

From: David desJardins <desj@math.berkeley.edu>

Date: Tue, 01 Dec 1998 00:00:00 +0000

craigld@my-dejanews.com writes:
> A clarification: I was speaking as someone who's studied the copyright
> issue (as a library professional).  So I have some idea whereof I
> speak... and I'm absolutely certain that any money-making activity
> with someone else's copyrighted/trademarked IP is right out.

I didn't claim that you hadn't studied the issue.  I just claimed you
are wrong.  With all due respect, I disagree with your characterization
100%.  I can point you to several respected authorities who would
cheerfully declare that every work of authorship relies on, and draws
from, previous works.  Virtually everyone who designs a PBM game draws
from existing IP in doing so.  The line between what is and is not fair
use for that purpose is a fuzzy, not a simple and clear, one.

> Plenty of people may disagree with the theory, but this is the
> generally accepted legal practice, SFAIK.

Let's see what the USPTO White Paper has to say on the subject (a
document generally quite hostile to fair use):

[i]t is reasonable to expect that courts would approach claims
    of fair use in the context of the NII just as they do in
    'traditional' environments. Commercial uses that involve no
    'transformation' by users and harm actual or potential markets
    will likely always be infringing, while non-profit educational
    transformative uses will likely often be fair. Between these two
    extremes, courts will have to engage in the same type of
    fact-intensive analysis that typifies fair use litigation and
    frustrates those who seek a 'bright line' clearly separating the
    lawful from the unlawful.

This doesn't support your concept of "accepted legal practice".  I can
also refer you to many law journal articles which disagree with you.
Every authority I know of, throughout the spectrum of opinion, agrees
that fair use is a complicated legal subject.  Can you give a single
legal reference that supports the notion that there's such a simple rule
as you declare?

> It should also be noted that there are differences between a game
> 'based on' and a game 'derivative of'.  You could have a game in a
> world with the 'feel' of the Wheel of Time series, but no a game set
> within that series.

Well, perhaps this is the reason that I disagree so strongly with your
statements, the ambiguity in your language.  I'm not even sure whether
you are saying that it's better to have your works be "based on"
existing works, or to have it be "derivative of" them?  By definition,
copyright gives the author rights to "derivative works".  However, it's
very complicated, not simple, to determine what is and is not a
"derivative work".

David desJardins

References

Re: War of the Ring
"MindShift Design" <mindshift@usa.net>
Sun, 29 Nov 1998 00:00:00 +0000
Re: War of the Ring
lindahl@pbm.com (Greg Lindahl)
Mon, 30 Nov 1998 00:00:00 +0000
Re: War of the Ring
craigld@my-dejanews.com
Tue, 01 Dec 1998 00:00:00 +0000
Re: War of the Ring
David desJardins <desj@math.berkeley.edu>
Mon, 30 Nov 1998 00:00:00 +0000
Re: War of the Ring
craigld@my-dejanews.com
Tue, 01 Dec 1998 00:00:00 +0000

Referenced By

Re: War of the Ring
"MindShift Design" <mindshift@usa.net>
Sun, 29 Nov 1998 00:00:00 +0000
Re: War of the Ring
lindahl@pbm.com (Greg Lindahl)
Mon, 30 Nov 1998 00:00:00 +0000
Re: War of the Ring
craigld@my-dejanews.com
Tue, 01 Dec 1998 00:00:00 +0000
Re: War of the Ring
David desJardins <desj@math.berkeley.edu>
Mon, 30 Nov 1998 00:00:00 +0000
Re: War of the Ring
craigld@my-dejanews.com
Tue, 01 Dec 1998 00:00:00 +0000