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Re: Rules for submitting licenses for review

On Saturday 27 August 2005 04:01 pm, Francesco Poli wrote:
> On Sat, 27 Aug 2005 13:07:37 -0700 Sean Kellogg wrote:
> > 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.
> Sean, I really cannot believe that using the same mathematical formula for
> the same job is copyright infringement.
> What about using the same algorithm (e.g. bubblesort) for the same job
> (e.g. ordering an array of objects)? What about using the same physical
> laws for simulating the same phenomenon (think about simulation and
> scientific calculation programs)?
> Did I misunderstand what you said?

No you're not misunderstanding me, and I'm willing to admit that I'm taking 
this a bit far and pushing a very strong line on what copyrights do and don't 
protect.  As for teh two examples you listed above, they are both methods and 
thus patentable...  but probably not copyrighable (unless they are combined 
with more authorship like things).  

What I have been propoing is a very "content industry friendly" position.  
It's not my personal position, but it is the counterpoint to the position 
that game mechanics are not copyrightable. I believe there are a ton of 
issues that would be wrapped into this discussion that are important...  your 
place in the world and intent is one thing that I would say is important.  

You just directly copy D20 and produce a near identical game and sell it on 
the open market, undercutting WotC's price margins...  the court will do 
whatever is necessary to find infringement.  You model a few ideas in your 
system on things similar to D20 for your own internal use, the court will 
probably find fair use.  It's just not a very black and white issue...  I 
have the luxury of saying that since I don't have to pick a side in the 
issue.  Suffice to say, when you are representing someone, the issue is clear 
as day :)  For the record, everytime I heard the WotC legal people say that 
game mechanics are copyrightable I had to bite my tounge.  I happen to agree 
with you...  but there are legal arguments to the countrary that seem to be 
well excepted among the game industry.

But going back to the larger picture in all of this...  copyrights are not a 
clear cut art, and license drafting is even less so.  Because there is so 
much uncertainty, so many questions as to what is and is not copyrightable, 
fair use, or derivative, so many strange corner cases, its just really hard 
to be 100%.  Which is why licenses are such a popular tool.  It's quite 
possible I could get away with using someones IP in this particular way, but 
why take the risk?  Might as well seek a license and pay some small royalty.  
It's certainly not the way I would design an IP regeime, but it seems to be 
how things work in the United States.


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

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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