Re: (TFT) Appropriate use of copyrighted material

["J. McGuire" <jmcguire@wtsoft.com>]

At 09:05 PM 12/28/98 -0500, you wrote:

>That's a good question. Let me add another one along the same lines. Say
>you took an 'encounter table' created for a game - maybe the AD&D one from
>the Dungeon Master's Guide. Say you wrote a computer program that used that
>table to 'roll' encounters.

...gee, sort of like TableMaster? 8-) You've got an example that I'm
extremely familiar with. I *do* write computer programs that roll things up
on tables -- and I use a lot of published material as source material. And
I'm not fond of being sued by anyone, especially WoTSRC.

>Would that be a copyright violation? I think it
>probably would. 

Yes, it would. No question about it. You're taking the exact text, or a
very slightly modified form, of a copyrighted work and adapting it to
another form. Classic definition of "derivative work".

>BUT what if you combined several other encounter tables. Then would it
>simply be research material for your program? What if you then changed the
>states to be say - TFT instead of D&D. 

That's where it gets tricky.

Encounter tables aren't a great example here; they're basically just a
random selection from a list of items. The only way of distinguishing one
from another is just what items are listed, and in what order, so if you
merge several, and there is no other IP issue involved (i.e., including
proprietary critters), you have a new encounter table.

A better example is the AD&D gem value table, which uses a rather odd
method for determining the final price of a random gem. Now, remember the
part about how the method of playing a game -- i.e., the rules -- can't be
copyrighted (though it can be patented). So what TSR has the rights to is
the exact representation of that table, or anything which is a conversion
of that table into another medium.

This one hits close to home, because the TableMaster gems table *is* based
on the AD&D one. It was one of the first tables I wrote for TM, and in the
five years or so since it was created, I always seem to have something more
important to do than rewrite its guts to something which is a) better than
TSR's system, and b) less convoluted than that very, very ancient TBL code.
(i.e., just about anything else) The critical thing is that all I took from
the AD&D table is what dice rolls make the gem value go up, or down, or
remain the same, and in what general range. All the rest of the table --
the actual gem values, the listings of gem names, etc. -- is different, and
there's a lot of the system itself, such as the gem condition variations
(flawed, etc.) are 100% original.

Now, the reason this gem table is so critical is that TableMaster was first
released -- with the gem table -- back when TSR was anal beyond words about
anything that they thought might possibly be some remote infringement on
their copyrights. Posting one's own characters on one's website, for
instance -- or, worse yet, playing AD&D by email! At one point Rob Repp
threatened me, told me I had to pull TableMaster off the market because it
*could* be used to violate TSR's copyrights. My answer, by the way, was "Go
ahead and sue me. I'll be waiting on line behind Xerox, Microsoft, and the
Ticonderoga Pencil Company, all of whose stuff is involved in a lot more
infringements of your copyrights than mine." When all of this was going on,
TSR requested an "evaluation copy" of TableMaster. I don't know exactly
what they did with it, but given their behavior at the time, I would guess
that they took it apart, table by table and line by line, looking for
actionable infringements. Gem table and all. Never said another word to me.
Fired Rob Repp, though. 8-)

So, my general rule of thumb is if I use the *algorithm* from an existing
table (i.e., the gem table) with my own data, or part of the *data* from a
table (i.e., an encounter table) in my own arrangement and with my own
algorithm, I'm most likely in the clear. The fact that there are only a
limited number of ways to write up, say, an encounter table, and most
likely only one best way, is in my favor; that principle has been tested in
court with things like the phone book lawsuits.

Thing is, writing tables is so easy, and source material is so common --
fundamentally, a matter of compiling lists of just about anything, such as
arctic animals, elements of Chinese restaurant names, or types of gems --
that there's really no need to copy anything wholesale. I treat a published
table as a handy list of items I can incorporate, along with similar lists
from everything up to and including the thesaurus, into a table of my own,
or as an idea of how I could structure a similar type of table using
different data.

You know what they say: Copy one source, it's plagarism; copy ten sources,
it's research. That's pretty much true... but, by all the gods, there's no
NEED to rip off anything directly. That gems table is the closest I've come
to that fine line -- and it was passed by TSR at their most paranoid and
aggressive.

>What's the legal difference between doing that and say, turning the text
>from a library book into a computer program.

Turning the text from a library book into a computer program is highly
illegal, actually. That's the difference.

> In other words, what makes
>game material different from legitimate 'research material' when it comes
>to using it for the internal workings of a computer program. 

Nothing, really -- which is exactly the point. Remember that part from the
Copyright Office about game rules explicitly NOT being covered by copyright
-- only the actual text that describes them. The concept of "roll 3d6 vs.
DX to hit" isn't protected by anything other than lawyers and the threat of
lawsuits; the text of, say, a TFT Microquest, IS protected up, down, and
sideways, and well it should be.

Among the things involved in the difference between research and plagarism
are the amount of material taken from the original, what percentage of the
original it constitutes, what percentage of the new work it constitutes,
whether the new work is really new or just a rehash of the source material,
etc. That's as true when I'm writing up a table for TableMaster as it is
when I'm researching a topic for the computer column I write for the local
newspaper. EVERYTHING is derivative, somewhere along the line. There really
is nothing new under the sun. The critcal decision is whether something is
*too* directly derived from something which has current copyright protection.

One of the reasons this doesn't come up as much of a problem for me is that
tables are so EASY to write. Really, there's no reason to lift anyone
else's work. If I was writing it today, I wouldn't even use as much of AD&D
as made it into that gem table.

Now, as for a few possible uses for the TFT rules as related to computers
-- and remember, IANAL:

Writing up a TableMaster version of the outdoor encounter table from ITL --
Bad Thing. It's copyrighted text, you can't have it.

Writing up your own encounter table referring to specific critters from
Cidri -- pushing it. Specific characters and settings can be covered by
copyright or trademark (it gets hairy!) and even if you think you're in the
right, you can be litigated into bankruptcy over it.

Writing up your own encounter table referring to TFT stats -- generally
okay. (remembering the part above about litigation and the cost thereof)
The really hairy part comes in when you start mentioning TFT itself, which
absolutely does get into the hairy trademark stuff.

Writing a computer game based on TFT -- probably a Bad Thing. Y'see, the
only reason for using TFT material in a computer game would be to take
advantage of the TFT name and goodwill, and that is absolutely WRONG. Since
there are many other, and better, ways to handle character stats and
actions in a computer game, there's no defense at all for that one.

It also matters whether you're me, selling the table in question
commercially, or J. Fred Gamer, posting his TFT encounter table on his
website for his friends. Yes, it makes a difference -- part of what I'm
dealing with right now, as I work on suing a guy who was handing out pirate
copies of TableMaster (and every other RPG aid program out there) is the
fact that he wasn't charging for them, which makes it into a slightly
different sort of infringement than if he was selling 'em. J. Fred Gamer
posting his home-grown TFT tables on his website is very likely protected
under fair use -- and even TSR has accepted that. I,  selling a
hypothetical "TFT Table Pack", would not be... but, oddly enough, my
biggest problems would come with TRADEMARK law. Yeah, it's hairy.

There are a lot of people who've believed TSR's version of IP law.
Remember: TSR was *wrong* -- and has subsequently backed down from their
indefensible position.

This has gotten entirely too long and too convoluted, even for me. I need
some more sleep -- I need a holiday to recover from my holidays!

-- Jean McGuire
   Wintertree Software

http://www.wintertree.com

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