Monday, October 17, 2011

Copyright and the OSR (part 1)

There has been a recent stink in the blogosphere concerning two publications by the same person which are widely being perceived as violations of copyrights; they have both been pulled (I assume by the author). I'm not going to mention the name or provide links, because I don't want to focus on the individual and I don't have enough knowledge of the specific documents to have my own opinion of the specifics -- this is a post about my general feelings and opinions on the question of copyright and how it interacts with the OSR. I'm not scolding or defending anyone on either side for anything that has been said or done, I'm just using this particular event as the example since it created a hot flashpoint.

Introduction to the Situation
The first of the documents was a copy of lots of OSRIC text, and used cover art that was copyright protected and not available for use. The author stated that he'd been told the art was in the public domain. Certainly from the OSRIC side, unless there was something I didn't see, the whole concept of OSRIC allows the reproduction of the rules as long as nothing is changed. The author has been criticized for not adding anything to it, but he wouldn't have been allowed to do that and still call it OSRIC. It's fine for the community to decide that there's no value to a reprint of OSRIC material, but it wasn't against the rules. I'm told it was a clumsy job (about which I have no idea), and certainly it's the task, not just the right, of the community to point this out on a product if it's the case. For a free pdf, I don't think that a very high level of rage over poor editing is appropriate, but on a printed book (even if the author makes no profit), the buyer is still paying money on the assumption that the product is well put together, so I can understand anger at getting something that's got editing errors.

The second document was apparently a retro-clone of Holmes Basic, or if it wasn't a retro-clone it apparently -- and I have only heard this without seeing it -- contained text taken directly from the Holmes Blue Book. It also apparently had editing errors such as using the terms "hobbit" and "halfling" on the same page.

I think what happened here with the first (OSRIC) document involved another factor. Steve, who is a long-time artist in the OSR, had also been putting together a similar document with his own art, and had been working on it for quite some time. What happened, I think, wasn't so much that there was a lot of rage over the use of the copyrighted artwork, I think the community's negative reaction had less to do with the copyright violation than with the combination of what was seen as shoddy work on one product (again, I do NOT know) as contrasted with someone else's project that had clearly seen a lot of work and contained brand-new artwork done specifically for the project. Is that a legitimate reason to flame out against the person who did the faster cut-and-paste job with the mistake about the availability of the art? I think it's legitimate to compare the two products themselves, on their own merits, for sure. I get a bit uncomfortable about hearing terms like "theft" about the art; even though it's technically true, intellectual property is an area where people can make mistakes. This was a mistake that most people wouldn't have made, since it's pretty common knowledge that if you find recent art on the internet it isn't going to be public domain no matter what someone on the internet might tell you. But it could have been a mistake.

Or it could have been done deliberately on the assumption that no one would care, and that's one of the things I'd like to discuss, because it draws in the community's attitudes about copyright in addition to a publisher's own moral code. We've got three different community codes going -- one is moral, one is legal, and one is about quality.

Legal and Moral Codes
What is legal is not necessarily moral. This is the fundamental premise behind the principle of democracy (allowing laws to be changed based on community perceptions of morality) and the principle of civil disobedience (the tactic of breaking the law and accepting the likelihood of being punished as a means of highlighting an immorality in the law). Civil disobedience is not the practice of breaking the law and then complaining about (or trying to avoid) being caught. That's mere lawbreaking. In a moral issue, lawbreaking is acceptable to many people, but it's not the same as the higher principle of civil disobedience and shouldn't cloak itself as such.

In our community, we definitely face the legal issues involved with copyright infringement because we play games that are copyright protected at the same time that they're out of print and sometimes available only at a very high dollar price. Various people in the community weigh in at different places on these issues. Some people are perfectly willing to break the law because they feel that the law is unjust. Some people are willing to break the law because they simply don't care about breaking laws that inconvenience them. Some people are willing to break copyright laws as long as their activities don't measurably hurt anyone (for example, the profits lost by WotC if someone distributes a few copies of an out-of-print TSR publication is certainly pretty small as a practical matter, although it theoretically exists). Some people make a distinction between the copyrights of people as opposed to those of corporations. We've got a broad spectrum of approaches out there.

One of the primary goals of retro-clones is to bring back the legal publication of materials for out-of-print games. One of the real oddities during the initial reaction to OSRIC was seeing the same people who routinely used and even wrote obviously derivative material for OOP games flare out that OSRIC was a copyright violation. The whole point of OSRIC was to give the community a legal avenue for publishing resources. There's a pragmatic side to this as well as a purely legal/moral one. Take OD&D as the best example: if one wants to promote use of the OD&D rules, the rules have to be available for people to find. No problem back when WotC had the rules available as a pdf. Now they don't. Which means that even if you're totally in favor of piracy, there would never be a long-standing location where those rules will be available for people to come and get them. Those sites and locations have to shut down and move from time to time. It's not sustainable. That's a practical problem that can be viewed entirely in isolation from the legal issue, and it's a very significant practical problem.

In the case in point -- and here we're talking about the second document which apparently cut and pasted from the Holmes Blue Book, there is clearly a legal issue. A small number of people would be outraged to buy something and discover that it contains legal violations simply because they want to follow the law. I wouldn't be outraged by this, although I think it would annoy me if I spent money on it, even if there were no profit to the author. It's something I wouldn't use on that basis. I wouldn't feel comfortable. Would I condemn someone else for using it? For using it, no. Would I condemn someone for publishing it if they were very clear about the fact that if I bought it I'd have something illegal (thereby warning me ahead of time that I personally would object to it)?

Interestingly, that would depend. There are, and people might or might not know this, several bootleg copies of OD&D out there that have been reformatted but contain the original text. They are apparently awesome -- I have seen pictures of them and physically paged through one of them. One of them contains lots of pirated Frank Frazetta art, and the other one is illustrated by members of the author-editor-compiler's gaming group.

I'll get to these two "pirate" versions of OD&D in the next part of this post, as well as talking about the code of quality and circling back to the particular two publications (OSRIC book and Holmes clone) that spawned this long post in the first place.

Quick Summary so Far
As a summary of what I intended to say in this part: (1) the community's values might affect a publisher's willingness to go out on a limb legally, (2) it's a complex issue in terms of those community values because they have legal, moral, and quality vectors, (3) the intention of a publisher (as with OSRIC's goal of expanding lawful publications being initially and incorrectly perceived by many as an endorsement of piracy) can be both relevant and misunderstood, (4) the intention of a publisher can also be seen as irrelevant since the product has to be judged for what it ultimately is (example - I'd be irritated if I bought something with copyright violations even if the publisher did it by accident).

And a final reminder -- I'm not trying to call anyone onto the mat with this: I'm focusing on the surrounding issues in a general sense, not giving my opinion on the particular documents or on the commentaries that have been made. This isn't about the particulars.


  1. I don't claim to speak for anyone else, but I generally don't mind if someone were to use my drawings for something that they were not making a profit on providing they would be willing to pull it if I asked (and asking me in the first place is a nice thing). Selling something for a profit, even a tiny one, or selling it 'at cost' to third parties (like through Lulu) makes a difference to me and I would hope people would respect that.
    But if someone likes a picture of mine and wanted to use it in their house rules PDF or on their blog, I would probably be flattered.
    There are a bunch of teenagers somewhere in Denver who used a drawing of mine of an orc's severed head for their metal band --- I hope some day they send me a t-shirt or a CD. I guess if they become famous and the orc head becomes the next product marketing sensation like 'Hello Kitty' I'll be screaming for a lawyer --- hopefully not, though.

  2. Cost and availablity are key issues in this discussion. While the law may or may not make such distinctions, many people certainly do distinguish between a document privately shared at no cost between collegues and a document put up for public sale, particularly when it is understood that said collegues already posses legal versions of the documents or such documents are no longer easily obtainable. Academia routinely (and often illegaly) engages in such practices to facilitate discussion and understanding.

  3. Re: the Halfling thing. The text copied the section in Holmes on swapping ability scores, word for word, except substituted the word "hobbit" for Holmes' "Halfling."

    The Monster write-ups look to be word for word copies as well. Didn't check the spells.

    The issue here, I think, is that the author slapped the OGL on the thing. If he was just writing a "Holmes Expansion" for underground distribution, I don't think anyone would have cared. Instead, he put it on RPGNOW.

  4. I think you're right not to name names and provide links, but it would be interesting to see what some of the legal (and/or) moral violations in the OSR actually look like. Are there any well known examples besides those OD&D private reprints?

    I'm assuming that copying "text" in Holmes actually means prose, and not say, merely rewriting the same list of weapons or the same list of monsters with identical HD, AC, etc, (though with no descriptive text), but perhaps I'm wrong.

    There are many things about the OGL that I don't think I fully understand--especially as it pertains to retro-cloning out-of-print games as opposed to cloning or even copying the retro-clones themselves. Is there a site, PDF or what have you that goes into serious detail about the rules or issues surrounding the OGL that might be helpful?

  5. Let me rephrase: If he was writing an expanded Holmes for private distribution and clearly identified it as such, I don't think anyone would have cared.

  6. "In a moral issue, lawbreaking is acceptable to many people, but it's not the same as the higher principle of civil disobedience and shouldn't cloak itself as such."

    While I'd agree that there is a distinction that can be made between the two, I'd argue that subverting an immoral institution, even while trying to avoid being caught, is of no lower moral stature than civil disobedience. Whether we're talking about freeing slaves by assisting the Underground Railroad, freeing information by acting as a Tor relay, or freeing role-playing games by sharing texts and art, such activities have positive, direct repercussions that civil disobedience cannot. That's not to take away from civil disobedience. Rather, I think both are very helpful in making positive changes.

  7. Okay, so I found a sample of the Holmes redo. It's a page containing a set of magic item lists or tables coupled with short explanatory prose sections. The page itself is identical with the corresponding page in Holmes, except for three things: 1. there's no drawing of a sword in the center as there was in Holmes, 2. the layout is a teeny bit different for one table, and 3. The font is not quite the same (though it's really similar). That certainly looks like a copyright violation to me.

    However, one of the guys that ripped into the author said this in passing, “. . . I really don't know the classic D&D books enough to recognize if the tables were being reused from the sources.” Now, surely reusing tables almost defines the retro-clone movement. I’ve been having a bit of fun comparing the Labyrinth Lord tables with the Moldvay /Cook tables—they’re side by side on my screen. In some cases they appear to me to be absolutely identical except for the layout. In other cases they’re identical except for some teeny change in a title word. In others the die rolls are slightly different—01-39 to get a Sword+1 in Modvay/Cook, 01-40 to get a Sword+1 in LL (or maybe it’s the other way around). In still others, the results matrix of a table is jiggled with ever so slightly. (See the tiny % differences in many of the thief skill progressions, though not, for some reason, in Climb Sheer Surfaces). Lists of spells are in many cases exactly the same. Now, the prose is of course never copied, though sometimes (not always) the structure of a paragraph is the same—with each sentence being paraphrased (compare the sections on those four bears—Black, Cave, Grizzly and Polar). And of course, the general font and layout look are intentionally similar.

    Now, don’t misunderstand: I fully realize that in the one case you have (at least in part) a cut and paste job (which is not to impugn the motives of that author), and in another a restatement of (as well as in some ways improvement on) a set of rules which required a huge amount of thought and effort. But, still, the difference between “A__ Ho__!!!” and “fabulous job, you titan of the OSR movement” seems like it could in principle be weirdly slim. If the “A__Ho__” had taken a few minutes to paraphrase the “how to use these tables” text bits, had made Potion XYZ available on a roll of “9” instead of an “8” and had stuck a few random extra magic items into a few lists (even if they were dumb or unnecessary ones), then it sounds as if the reception would have been quite different.

    To me, one of the weird things about the OGL is that you can’t explicitly say what it is that you are doing. You can’t say “I’m paraphrasing the Cook 1981 version of Dungeons and Dragons,” for example. So implying (if anyone has) that the Holmes redo author or anyone in a similar case was trying to hide something or pass something off as something that it was not, might be bit unfair. Perversely, precisely opposite to rules that cover plagiarism situations in other contexts, one is prohibited from being clear and explicit about what one is doing, or at least doing so in any “official” capacity. Or at least, that’s how I understand that part of the OGL. Why that’s the case is something I don’t fully understand.

    I hope I haven’t offended anyone. To sum up, I don’t think the Holmes redo, taken as a package (including the way it was advertised) was a good idea. But as Mythmere might agree, it brings up some questions and issues that in my view are not so easily answered or decided.

    By the way, I don’t know the Holmes redo author personally, and only found out who he was an hour or so ago. But he, in partnership with a few others, has done some great original work for and in support of the OSR--work that I haven’t seen anyone else do with the same flair. Being exposed to that work was one of the things that turned me on to the movement. I’d like to thank him for that.

  8. i never like to see people singled out and publicly chastised. to me it borders on the guy privately.i'm not saying that's what matt is doing, but others are.bottom line is, if it was some joe-blow that really didn't care, they would continue to distribute pirated material. that's not what happened. once the issue was pointed out, the guy pulled the books. i really am not interested in hearing this guy being berated anymore. it gives me more of a bad impression of the community then the act of plagerism or copyright violations. if there are copyright violations, let the publishers or owners of said material handle it. i get the feeling some people think it's their responsibility to police the osr. and thats not an activity that tends to build community.

  9. i never like to see people singled out and publicly chastised. to me it borders on bullying.

    Personally I believe this depends entirely on how it's done. If it's done abusively with name-calling, yep I agree it can amount to bullying. But if it's done objectively and with respect it can achieve positive things all round.

    There are simply some situations where poor or bad behaviour should be publicly outed. For instance, if a bunch of people get ripped off by some vendor but tell no-one (despite having complained privately to the vendor), then you can bet a bunch more people will also get ripped off in the future. And if I was one of the latter and then found out that heaps of people knew but said nothing, I'd be pretty pissed off with those people as well as the dodgy bastard.

    Finally, tip-toeing around an issue by being vague and refusing to state who and what you're talking about will often whip up a storm of conjecture and witch hunting, as people try to work out who, what and why.

  10. Compare the kerfuffle over the recent Holmes redo with the reception of The Gray Book a few years back:

    Also note the Gray Book author's view that a blatant copyright violation is in some sense more honest and preferable than a retro-clone.

    It's true that that author said that because his book was in part a lift he would make his work available only on a Share site and not on RPG Now or LuLu (or the equivalent--did those sites even exist then?). But is making available for free an obscure offering in an obscure niche on Lulu really that much different from putting the offering on a Share site? Blogs will direct you to either, as will googling "Item pdf". To be grumpy for a moment, the obscure niches of Lulu could very well be said to shade into "private distribution."

  11. I'm not interested in giving the author of M&P a hard time and already stated on my blog, my reasons for involving myself in this discussion. But, since the conversation has moved into a general discussion on the subject...

    The Mazes & Perils doc was at least in part taken from another work, R.C. Pinnell's Holmes 77. This is based upon a statement made by the M&P author, where he said he had Mr. Pinnell's ok to do this, as well as my own comparison of the two texts.

    Mr. Pinnell's work, clearly stated as a re-organized version of Holmes, with the Holmes blue cover, slightly altered and with Mr. Holmes receiving chief credit for the work, was put on Lulu in Mr. Pinnell's store for a brief period, then pulled. Mr. Pinnell's doc did not use the OGL.

    "But is making available for free an obscure offering in an obscure niche on Lulu really that much different from putting the offering on a Share site?"

    It is when you use the OGL and open the document up to the public. You can't have it both ways. You're either putting out a pirated work, or something legal. I have no problem with either, so long as it's done in the proper spirit. Putting the OGL on a copyr. violation is a bad idea. And just plain bad form if you're further muddying the waters by not making the nature of the document clear.

    "Also note the Gray Book author's view that a blatant copyright violation is in some sense more honest and preferable than a retro-clone."

    If someone feels that way, I would suggest not using the OGL, not being unclear as to the sources you're copying and pasting and not putting the work on RPGNOW.

  12. I pretty much agree with all of what you say above. I do object to the way the thing was elevated by some (not by you) to a moral or even hyper-moral issue with uses of "fooled", "ripped-off", "A__H__!", etc., etc. It seems clear to me that the author was not trying to fool anyone, but either misunderstood the OGL and copyright law or misunderstood the status of Holmes 77 in those contexts. The name "Mazes and Perils" does homage to Holmes, by the way (one of Holmes's fiction books is called "The Maze of Peril") and I believe the author is fairly close with Pinnell. So the implicit accusation that he was trying to "pass off their work as his own" (made by some, though again not you) is quite unfair.

    That he was copying Pinnell and not Holmes makes the reasons for the mistake clearer. The OGL allows you to directly copy current retro-clone stuff, or at least it does under certain conditions. (Compare, say, Ruins and Ronin with Swords and Wizardry Whitebox.) Now, Pinnell didn't use the OGL, admittedly, but he did call his work "Retro-Organized". Holmes 77 is a mix of word for word lifts of prose text, slight paraphrases of text, complex paraphrases of text and also (contra the author's modesty) a fair amount of new stuff. If Pinnell had simply paraphrased ALL of the text--instead of just some of it--and had tweaked his tables a little, then the "retro-clone" status of it would have been pretty close to that of, say, Labyrinth Lord or Swords and Wizardry (though again, perversely and ironically, if he then had wanted to be in full compliance with the OGL, he would have had to take out the bit in his Introduction where he explicitly refers to Holmes!) That Holmes 77 doesn’t quite come up to full legal “retro-clone” status would not necessarily be clear to anyone reading it. Whether it should have been clear to a long-time working member of the OSR community, especially given the history of how Holmes 77 was distributed and made available, as James points out, is a different question. Then again, if Pinnell gave the Mazes and Perils author permission to use his work (which I assume he did) the author may have felt that Pinnell’s failure to use the OGL was moot as far as copying Pinnell’s work was concerned. It’s not moot, as I understand it, but again, one might see how the mistake could have been made.

    I fully agree that if you’re going to base your published work on the work of another, in the context of a legal milieu that allows re-presenting and even directly copying in some cases but not in others, you should try really hard to get things right.

    For what it’s worth: Holmes 77 is still available at Lulu (though not searchable within Lulu). I suppose it’s a glitch with how you remove things.

    There is a ton of great Holmes stuff at the Zenopus Archives site.

    By the way, speaking of possible mistakes, I’ll admit my total ignorance on a legal matter that involves me personally. I have a drawing directly lifted from Men & Magic as part of the header to my blog. From looking at other blogs it appeared to me that this sort of thing was acceptable in the community. Am I wrong?

  13. Oakes, I think it's not just acceptable but pretty much standard that blog headers use "pirated" pictures. Whether it's technically the same issue or not, I think everyone sees that as an homage to the artist rather than as "piracy." It's a matter of how different contexts can have radically different perceptions.

    The only reason my blog has no art at the top is because I can't figure out how to get it there. And because I'm lazy. :)