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.