Policy Discussion w/ Rob Repp

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james vassilakos

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Apr 8, 1995, 3:00:00 AM4/8/95
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Hi folks. I know it's generally in bad taste to post one's
email correspondence, but I consider TSR to be a special case.
Not only has their netiquette been atrocious, but it has
impacted all of us... stealing from us the vigorous and
expansive community we once shared.

What follows is a short policy discussion between myself and
Rob Repp, TSR's online representaive.

**********************************************************************

From: james vassilakos <jimv>
Subject: policy query
To: tsr...@aol.com
Date: Mon, 3 Apr 1995 08:29:52 -0700 (PDT)

Mr. Repp:

I've been compiling a summary of the debate concerning TSR's
stance on fan-authored AD&D materials (specifically, TSR's policy
of prohibiting the free-distribution of all fan-authored works
related to AD&D, whether they be intended for fanzine publication
or distribution via Internet FTP-sites). In going through my
archives, I've noticed that one question that you've never
answered is how this policy came into being.

As late as 1989, Gary Gygax (one of the founders of TSR as well
as the person most-often credited with the invention of AD&D)
wrote a book which, among other things, encouraged the
publications of fanzines (and prozines). With respect to their
content, he encouraged editors to publish the very materials
which TSR is now (in 1995) purporting are copyright violations.
Gygax writes:

"There is nothing quite so appealing as a good game-scenario for
a popular RPG. A short unique adventure does attract readers (and
play). Expansion materials for a widely played RPG are also
popular. Good new classes of adventures, monsters, spells, and
magic items for the AD&D game are good, for instance." (Master of
the Game, Chapter 12: How to Create Your Own RPG Publication,
pg.139)

This, to me, sounds like explicit authorization to create such
works. Gygax, in 1989, is advocating what TSR, in 1995, seems to
be prohibiting. I would like to know when TSR decided that fan-
authored, fan-distributed works related to the AD&D RPG were no
longer considered desirable and what the motives were for this
apparent reversal in policy.

Best,

ji...@cs.ucr.edu

P.S. It has come to my attention that you have been avoiding
questions with respect to this issue. I hope you will show the
the courtesy and professionalism to respond to this one.

**********************************************************************

From: TSR...@aol.com
Date: Mon, 3 Apr 1995 11:57:33 -0400
To: ji...@cs.ucr.edu
Subject: Re: policy query

The Copyright/Trademark Policy was formalized during the past year in
response to an internal management directive. While fan works are not
considered undesireable in themselves, the fact that many of them infringe on
TSR trademarks and copyrights is unacceptable. Allowing the unchecked use of
TSR properties in non-TSR publications risks TSR ownership of those
properties.

As to what Gygax may or may not have said in the past, I cannot say. I know
for certain that he no longer works here, and that TSR has never given
permission to place the body of it's works in non-TSR publications.

Rob Repp
Manager, Digital Projects Group
TSR, Inc.

**********************************************************************

From: james vassilakos <jimv>
Subject: tsr policy questions
To: tsr...@aol.com
Date: Thu, 6 Apr 1995 09:11:11 -0700 (PDT)

Mr. Repp,

I wrote you a few days ago concerning the apparent reversal of a long-standing
policy of TSR's concerning the free and unconstrained distribution of fan-
authored works related to AD&D. As you will recall, I quoted a written
statement by Gary Gygax (dated 1989) which not only appeared to condone
fanzines as a vehicle for distributing "adventures, monsters, spells, and magic
items for the AD&D game", but which even appeared to encourage the publishing
of fanzines with this sort of material. Your response, dated 03-Apr-95, seemed
to indicate that this policy was overturned only last year (1994).

> The Copyright/Trademark Policy was formalized during the past year in
> response to an internal management directive. While fan works are not
> considered undesirable in themselves, the fact that many of them infringe
> on TSR trademarks and copyrights is unacceptable.

In short, it seems that you are admitting, in effect, that prior to 1994, TSR
was condoning (even advocating) the free and unconstrained publishing of (in
the words of Mr. Gygax) "adventures, monsters, spells, and magic items for the
AD&D game". Then, in 1994, according to your statement, this policy was
reversed due to an "internal management directive".


Question #1: Would you agree that this is an accurate description of
events? If not, in what way is it inaccurate?


You may be irritated about being asked this question again, but I'd like to get
the facts down about TSR's view of its own policy. I also appreciate TSR's want
to protect its intellectual property. You wrote:

> Allowing the unchecked use of TSR properties in non-TSR publications risks
> TSR ownership of those properties.

You go on to write:

> TSR has never given permission to place the body of its works in non-TSR
> publications.

I think the key question here, which I am told you have been rather reticent to
respond to, has to do with the exact nature of "TSR properties". Prior to 1994,
it was universally agreed in the fan-press that copying the "body" of any TSR
publication was not only illegal but downright rude. In this instance, the
"body" refers to a substantial portion, such as a paragraph or even a full
sentence, but not to individual words, and more specifically, not to bits of
terminology.

For example, if I were to copy a full sentence, verbatim, from the description
of the "Troll" in the Monster Manual, almost everyone would agree that such an
act would be outside the boundaries of fair use. However, if I were to write,
"Three trolls are living in the cave by the lake (HP:32,33,40, AC4, Thaco:13,
D/A:d4+4,d4+4,2d6, XP:2415, Ref:MMp97)," my guess is that most gamers would
consider that to be a fair use of TSR's intellectual property, particularly
since fanzines had published fan-authored AD&D adventures for many years
without so much as a peep from TSR, and since Gary Gygax, in 1989, encouraged
the publishing of AD&D-related materials by fanzines.


Question #2: Does TSR forbid the publishing of AD&D-related adventures
which access TSR's works in a manner similar to the 2nd "Troll" example?


I ask this question because it is difficult to figure out what TSR's policy is
toward such fan-authored material based solely on the policy statements and
explanations that you have posted to the Internet. In many cases, the jargon
that you use is... nebulous. In a post to the Internet (rec.games.frp.dnd)
which you wrote last year, you seemed to assert that except for MPGN, all
fanzine and ftp distribution of fan-authored works is "unauthorized". To quote
you again:

> Currently, any other distribution to the general public - in paper form or
> on the net - of AD&D adventures, other TSR materials and game mechanics,
> or copyrighted materials is considered unauthorized.


Question #3: When you are referring to "AD&D adventures" and other "TSR
materials", am I to assume that you are actually meaning to refer to fan-
authored adventures related to AD&D, or are you referring to works
published by TSR?


Nearly everyone assumed the former was the case, but I need to be certain, and
it would be very easy for you to clear this up right now. There is another
question with respect to this statement which needs clarification.


Question #4: What exactly do you mean by "unauthorized"? Do you mean
"unauthorized" in the sense that such fan-authored works are to be
considered unofficial, or do you mean "unauthorized" in the sense that
if such fan-authored works are made available in fanzines or on ftp, TSR
will send letters to the fanzines or ftp sites in question, demanding
that such fan-authored works be removed/no-longer-published?


For several months people were arguing over what you meant, and I just want to
get a clear statement on this.

One more thing. In your post of last year, you encourage people to genericize
their AD&D-related works.

> Don't specifically use AD&D statistics.
> Don't use monsters, spells, etc. that were created by TSR.


Question #5: Does TSR consider a fan-authored monster write-up which
uses the term "hitpoints" to be an unlawful infringement of TSR's
copyright and to be, automatically, not covered by fair use?


I don't mean to be a "hero-wizard" (a term your company's lawyer seemed to
like), but I think this is a fair question and deserves a direct answer. If you
disagree, however, please let me know straight out, as I would appreciate
hearing TSR's point of view on this.

I ask this question rather pointedly because on 16-Feb-95 (over a month ago), I
wrote you a similar query which you never responded to. I am including in
below, in its entirety, as I would truly appreciate an answer to this question.

ji...@cs.ucr.edu

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

From: james vassilakos <jimv>
Subject: question regarding net-policy
To: tsr...@aol.com
Date: Thu, 16 Feb 1995 17:00:19 -0800 (PST)

Mr. Repp,

I'm trying to compile information on TSR's policy concerning fan-authored works
relating to AD&D, and I have a few questions which I need you to answer.

Suppose I were to write the following AD&D-compatible monster:


Giant Chicken
Frequency: Rare
# Appearing: 1-10
Armor Class: 7
Move: 15"
Hit Dice: 1+1
% in Lair: 50%
Treasure Type: Nil
# of Attacks: 1
Damage/Attack: 1-4
Intelligence: Animal
Alignment: Neutral
Size: S

The Giant Chicken dwells in Giant Chicken Coops.


Now suppose that I wanted to distribute this monster via ftp, but not via a
site that TSR has licensed to carry AD&D-related materials. Would TSR consider
this monster and/or my distributing it via a non-licensed ftp site to be an
illegal infringement of TSR's trademarks or copyrights?

Also, would you send email to the ftp-site administrator asking for this
monster to be removed from the archive if you found it available for anonymous
ftp at a non-licensed ftp site?

Basically, I'm just trying to clarify whether or not TSR considers this
specific monster to be an example of unlawful infringement.

**********************************************************************

From: TSR...@aol.com
Date: Thu, 6 Apr 1995 13:45:56 -0400
To: ji...@cs.ucr.edu
Subject: Re: tsr policy questions

>>In short, it seems that you are admitting, in effect, that prior to 1994,
TSR was condoning (even advocating) the free and unconstrained publishing of
(in the words of Mr. Gygax) "adventures, monsters, spells, and magic items
for the AD&D game".<<

I am "admitting" nothing. I am in no position to change the policy I have
been asked function under. You may interpret my comments as you see fit. I
strongly suggest you consult a licensed attorney when you need a legal
interpretation of policy statements from TSR.

I am in no position to respond regarding the accuracy of your interpretation.
If you believe that TSR company policy was, at one time, something that it is
not now, fine. I don't know enough about that time in TSR's history to
comment.

As to what the fan press "universally agreed" to, I cannot comment. I have
some guidelines that I am told are based in an accurate legal interpretation,
and that's what I'm going to work with. In my experience, what "most gamers
would consider ... to be a fair use" often has little bearing in legal fact.

If you would like to find out whether anything you may choose to write and
publish may infringe someone's rights, consult an attorney before you
publish, as is standard industry practice.

I can, however, offer you these guidelines. Any published work which uses a
TSR-owned trademark or copyright without authorization from TSR to use those
trademarks or copyrights is an infringement of our rights. Such authorization
comes in the form of license agreements, or distribution agreements such as
are in place at many widely used data file libraries. If you wish to publish
a work which may be used with our game system, you must either make is so
generic that it could be used with any game system, or you must publish it
from a licensed file library.

Rob Repp
Manager, Digital Projects Group
TSR, Inc.

**********************************************************************

From: james vassilakos <jimv>
Subject: Re: tsr policy questions
To: TSR...@aol.com
Date: Thu, 6 Apr 1995 12:29:47 -0700 (PDT)

Question #1: Would you agree that this is an accurate description of
events? If not, in what way is it inaccurate?

> I am in no position to respond regarding the accuracy of your interpretation.
> If you believe that TSR company policy was, at one time, something that it is
> not now, fine. I don't know enough about that time in TSR's history to
> comment.

Thank you for your quick reply regarding question #1. This was the
answer I was looking for.

For some reason, you didn't respond to my other questions directly.
It would be helpful if you would do so now.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

For example, if I were to copy a full sentence, verbatim, from the description
of the "Troll" in the Monster Manual, almost everyone would agree that such an
act would be outside the boundaries of fair use. However, if I were to write,
"Three trolls are living in the cave by the lake (HP:32,33,40, AC4, Thaco:13,
D/A:d4+4,d4+4,2d6, XP:2415, Ref:MMp97)"...


Question #2: Does TSR forbid the publishing of AD&D-related adventures
which access TSR's works in a manner similar to the 2nd "Troll" example?

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

You wrote:
> Currently, any other distribution to the general public - in paper form or
> on the net - of AD&D adventures, other TSR materials and game mechanics,
> or copyrighted materials is considered unauthorized.

Question #3: When you are referring to "AD&D adventures" and other "TSR
materials", am I to assume that you are actually meaning to refer to fan-
authored adventures related to AD&D, or are you referring to works
published by TSR?

Question #4: What exactly do you mean by "unauthorized"? Do you mean
"unauthorized" in the sense that such fan-authored works are to be
considered unofficial, or do you mean "unauthorized" in the sense that
if such fan-authored works are made available in fanzines or on ftp, TSR
will send letters to the fanzines or ftp sites in question, demanding
that such fan-authored works be removed/no-longer-published?

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

You wrote:
> Don't specifically use AD&D statistics.
> Don't use monsters, spells, etc. that were created by TSR.

Question #5: Does TSR consider a fan-authored monster write-up which
uses the term "hitpoints" to be an unlawful infringement of TSR's
copyright and to be, automatically, not covered by fair use?

ji...@cs.ucr.edu

P.S. The reason I am asking these questions is that it has been
brought to my attention that TSR has been unwilling to get down
to specifics with respect to its policy. I hope you will dispel
that rumor right now by answering these questions directly.

**********************************************************************

Rob hasn't responded to this last email yet, and for some odd reason,
I doubt that he will. It seems that TSR doesn't like answering any
questions which involve specific examples. I can only surmise that
there is some reason for this. Perhaps, as some have suggested, they
prefer to keep us (the fans) in the dark about what is legal and
what isn't. I tend to think, and this is just a guess, that the
reason they don't like responding to such questions is that if they
draw and very specific line in the sand, somebody will step over,
make it very public that they have stepped over, and TSR will be
forced to either sue or shut-up. Either way, they could end up
looking even dumber than they look right now.

So far we haven't succeeded in getting Rob Miracle to close MPGN
to TSR, but I wonder if AOL or other services might be receptive
to the notion of closing their doors to a company which the fans
themselves (by petition) say they don't want online. This is
something those of you on AOL and Genie (who are concerned about
TSR's behavior) may want to consider organizing.

ji...@cs.ucr.edu


Eric C. Putnam

unread,
Apr 10, 1995, 3:00:00 AM4/10/95
to
On 8 Apr 1995, james vassilakos wrote:

[Discussion clipped]

> Rob hasn't responded to this last email yet, and for some odd reason,
> I doubt that he will. It seems that TSR doesn't like answering any
> questions which involve specific examples. I can only surmise that
> there is some reason for this.

[SNIP]

I promised myself I wouldn't get into this, but you know what they say about
promises....

It's possible, you must admit, that Rob Repp is not authorized to take a
legal stance on behalf of TSR because he is not a lawyer; and that
therefore, he CAN'T answer James's questions.

Corporations can be very picky about this kind of thing because if
someone who represents the company says "yeah, you can do that," that
person's statement might be seen by a court as a waiver of their right to
sue should you do something that they CAN sue you for. TSR's lawyers
won't answer you either, for exactly the same reason.

Whether that's good, bad, appropriate, or whatever, I won't debate. The
fact is TSR is perfectly within its rights to disallow the publication
without license of articles containing TSR's properties.*

* TSR trademarks are, however, publishable under certain circumstances,
like in reviews of TSR games, as long as there is a disclaimer along the
lines of those TSR uses in DRAGON Magazine when reviewing products of
companies other than TSR. In other situations, TSR must defend its
trademarks aggressively, or they become "public domain" terms. TSR's
copyrights are protected by federal law.**

** This is a loaded sentence. The $64,000 question is, what does TSR's
copyright cover? The answer to that question can really only come from
litigation, since it's bound to be fact-dependent. And that's why neither
James nor anyone else is going to get any answers, because only a judge
will be able to say (and make it stick) where one piece crosses the line
and why. All TSR can say is what they'll sue over, and they've pretty
much drawn that line.***

*** Anything you**** publish for profit that contains AD&D game mechanics,
used without a license or waiver. Anything you**** distribute for free over
the Internet that contains AD&D game mechanics, used without a license or
waiver.

**** TSR is NOT going to sue any gamers; they're going to go after other
corporations (the "you" above has got to be the party RESPONSIBLE for
the publication/distribution). That's why TSR MUST see Usenet and
E-mail as ephemeral, because they can't go suing gamers; most of us
are poor :) , so they'll lose money (and, not so incidentally,
integrity, which translates to profits) if they try.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
ERIC PUTNAM epu...@osf1.gmu.edu No clever .sig
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

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