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Re: Rules for submitting licenses for review

On Saturday 27 August 2005 12:27 pm, Ricardo Gladwell wrote:
> On Sat, 2005-08-27 at 12:01 -0700, Sean Kellogg wrote:
> > But the text is an embodiment of the expression of the game...
> Is it? If I take, for example, the experience progression tables from
> the d20 system I can easily determine that they use a simple
> mathematical formula. I can extract this formula and then use to it
> produce my own tables for experience. Clearly, in this case, the text is
> not the embodiment of the game. I would imagine it depends on what you
> define a game mechanic to be.

Sure, there is an underlying mathmatical formula.  And you are free to use any 
mathmatical formula to create charts to your heart's content.  But the D&D 
people chose a particular formula and have created tangible works of 
authorship with that formula.  When you use their underlying formula to 
create your own new tables, you are copying their expression.  It may not be 
"literal copying" but my spidy-sense says a court would quickly find 
"substantial similarity."  There is this famous copyright's concept called 
"anylitic disection" where you take two works, split them into their various 
components, remove the stuff from the PD, and see what you have left.  If 
there are identical things on both sides of the column, then one of the works 
is infringing on the other...  UNLESS, the infringing author can prove 
independent creation.

> > Well, the industry is very much of the opinion that it is
> > copyrightable...  so absent case law or clear statutory language to the
> > contrary, I'm having a tough time believing they are not copyrightable. 
> > In these instances, industry custom carries a lot of weight.
> I would point you to games such as Tunnels and Trolls, Warhammer FRP and
> others which closely mimic the rules of Dungeons and Dragons and have
> been published for years within the industry. The industry has a long
> history of copying rules from other games and, is in fact reliant on the
> sharing of game mechanics and concepts (dice pools, alignment,
> attributes, etc). Wizard's of the Coast do not constitute the industry.

You're absolutely right.  Microsoft and IBM violate eachother's patents all 
the time, but I assure you they both believe patents cover software.  Just 
because industry players violate eachother's IP does not mean the industry 
does not believe the IP exists.  Lots of reasons not to sue...  and a bit one 
is the chance the court may totally disagree with the argument and end IP on 
games all togehter. But for the record, WoTC's market share in the game 
industry is of good size, and when you remember they are actually owned by 
Hasbro, it is nearly 80% of the game market.

> > But a math formula is not original expression, nor is it an original idea
> > (which is why it's not protectable under patent law either).  As for
> > recipes, yes, they are copyrighted.
> I understood mere lists of ingredients were not copyrightable unless
> "accompanied by substantial literary expression in the form of an
> explanation or directions, or when there is a combination of recipes, as
> in a cookbook."[1]

Sure, a list is just a list.  Nothing creative about that.  But once you add 
directions to the list, directions necessary to make the list become a 
recipie, it is copyrighted.  The charts in the D&D players books are not just 
a list of numbers.  They are a list of numbers combinded with extensive 
instructions (wow, extensive...  I've been learning them again in preperation 
for starting a campaing...  the stuff is as complicated as case law).  One 
migth even call it "substantial literary expression in the form of 
explanation or directions."

> > As a broader point...  the line that distinguishes ideas from expression
> > (and thus copyright law from patent law) is anything but clear.
> I would agree there is no clear legal precedent here, one way or the
> other.

Yay!  Agreement.

Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://www.probonogeek.org

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