The first installment in this essay is here.
This is a continuing general commentary on intellectual property as it pertains to the OSR (by which here I mean people who are currently distributing materials for out of print D&D or retroclones).
I'd like to address a comment from the first installment, made by Austrodavicus. He makes the point that by not naming names but mentioning products, I could create the potential for a witch hunt and rumors. In a different context I'd have to think more about whether it's better to name names or not, but in this case, since part of the issue raised by the community is legality, I will not create a pointer for a potential litigator to follow. Austrodavicus's point may be valid in other contexts, but I'd have to think it through more and I'll do that if/when it arises.
Something that I mentioned in the last post, and that was expanded by people in the comments is the issue of disclosure. By this I mean the effect of the publisher's telling people in advance about what the product is (in terms of legality and other intellectual property matters). In other words, if I thin I'm getting a pirated version of the real rules and I get a retro-clone, I'd be upset. If I thought I was getting a legal retro-clone and I get a pirated copy of the original rules, I'd be upset. I agree with the commentators on the first post in this series that part of the negative reaction to the rulebook (Holmes one) was that people expected a retro-clone and got something they considered to contain copyright violations. Quite a few of those people, I suspect, wouldn't have minded getting a book with copyright violations if they'd known that was how the book had been done. After all, whether it's legal or not, there is demand for new copies of the old books. I'll get to that in a second. I do think, however, that almost by definition the people who want retro-clones and the people who want copies are two different groups. There's quite a bit of overlap when you're talking about modules, since the product of a retro-clone is supposed to be usable with the regular rules, but when you're talking about buying the actual rulebooks themselves, I think the overlap is much smaller. You either want to use a clone or you want to use the real rules. So, disclosure by a publisher is fairly important in the case of a rulebook.
On the other hand, the obvious problem. Disclosure of a copy would involve someone saying outright, "I am breaking the law." Not a very good strategy for avoiding a lawsuit, and in fact violating copyright is also a criminal offense in the USA as well as grounds for a civil lawsuit.
Which leads to three different approaches with a very, very uncomfortable middle ground in there as well. The first approach is to create a retro-clone (whether using the OGL or not -- it would theoretically be possible to make one without the OGL, but the legal risk would be high). The second approach is to create a simulacrum in which safe-harbor rules are used to mimic the effect of the original but not the methods. The third approach is to go balls-out and copy the original. The uncomfortable middle ground is to copy text or to screw up the copyright issues in other ways, but to avoid mentioning that. In some cases it's possible to fall into that middle ground unintentionally -- there are some subtler issues in copyright law that could be accidentally violated, and the less the author knows about copyright law, the larger these errors might be. I've written about some of these issues on blog comments and in message board posts, so I'm not going to go into them in detail at this point. There's also the risk that while I know a fair amount about copyright law, I'm not an expert qualified to write a treatise about it. There would be gaps.
Approach #3: Deliberate Pirating
It's worth mentioning a practical exception to copyright, and a misconception. First the misconception because it's simple: distributing something for free has nothing to do with whether you're violating the law. Tenkar has pointed this out on his blog, and it's worth repeating since it seems to be a very, very common belief. If you distribute a copyright violation to one single person, you are violating the law. The chance of getting caught at that is obviously very low, and the chance that the copyright holder would care is obviously also quite low (unless it's a personal issue rather than a financial one). But you would be breaking the law.
Now the practical exception. You are generally allowed to make a copy of something for personal use. This allows making backups, as the obvious example. It might (and I think it does, although that's no guarantee) extend to making copies of something for your own gaming group. Why doesn't that fall afoul of the previous paragraph? Because the nature of a cooperative game tends to involve the sharing of baseline information -- the game is designed to do this. If I write a module using mindflayers and the D&D rules, I'm *clearly* not violating copyright because the rules were sold to me for that purpose. A copy of the rules themselves aren't as clear an issue, but if the reason for my copied-rulebook is to incorporate my house rules, it would be pretty hard to argue that this isn't personal use that was contemplated by the original seller.
But there's a big caveat there -- this would only really apply to your actual, real, gaming group. Not to someone on the net. So this isn't really of much use to someone who wants to distribute copies in general. The reason that I mention it is to distinguish it from the misconception above. Just because you give it away for free doesn't mean that it's personal use. It's obvious that if you're selling it, that's not personal use, but the converse doesn't hold true: the definition of personal use isn't "given away free," it requires more than that.
Obviously I'm not in favor of rulebook-piracy, or I wouldn't have bothered to create any retro-clones in the first place. On a personal level I didn't like the idea that most of the sharing of resources in our community was forced to be based on piracy and that the scarcer rulebooks themselves were increasingly relying on piracy to keep the games going at all.
On the aspirational side, too, I hoped that retro-clones (because of their legality) would make it easier for a publisher to feel comfortable about spending some money to create co-operative modules more easily: hiring a cartographer or artist, as the best examples. I'm one of the people who wants to expand the hobby -- I don't argue with the people who don't care about that as a goal, but it's my goal.
It should also be patently obvious that I'm a fanboy of the original rules, or I wouldn't have bothered with any of this. My personal moral rules don't let me pirate them myself, and I don't see piracy as a viable way of preserving or expanding the game ... but I can't help but cheer quietly when someone comes up with an artistic but piratical labor of love with those rules. I like a rebel. I like to see a work of art. Given the way I view laws and morality, I ought to shake my finger and say "tsk, tsk." But I have a moral/legal failing ... I tend to have an "attaboy" response, even though I think it's wrong.
There are two OD&D copies out there (maybe 3), and I mean copies. I'm not talking about Swords & Spellcraft or Swords & Wizardry: I'm talking about literal copies of WhiteBox OD&D, although I believe both are reorganized to read more smoothly. I'll call one of these the Frazetta copy, and the other the Austin copy. Note: I have paged through one of these, and seen pictures of the other. Comments about the content come from people whose opinions I trust, but other than basic visuals I haven't read these books in depth. I do not know the links to them -- please don't ask, I deliberately avoided making any sort of note about how to access them.
The Frazetta copy includes no house rules, although I'm told that it does contain some of Philotomy Jurament's musings as additional material. It's a beautiful thing; Frazetta art works really well with OD&D. On the other hand, I do have a couple of serious reservations because (a) Frazetta's art is still owned by his estate (ie, his kids), and I make a gut-level distinction between using material that is out of print, blocked from distribution by the owner, and providing no benefit to the creator (OD&D) ... versus material that is still available, provides benefit to the creator's children. I have a bit of a problem with the fact that Frazetta's art is in there, although I can't deny that it's awesome. (b) I would have a real problem if they copied Philotomy's musings without permission, but I don't know if they did or not.
The Austin copy includes house rules, and the art is done by the gaming group that uses these rules. This one is probably not piracy at all -- the copy I saw was in the hands of the guy who wrote it, and this might truly be a "for personal use" book. The art is the opposite of the pirated Frazetta art in the first book I mentioned -- it's unpolished and raw ... and it's full of awesome swords & sorcery energy, with power you can't imagine. It's possibly the best piece of homebrewed creativity I've ever seen. You might be able to find one of the draft copies of this out there somewhere, I don't know. I'm sorry to keep this one vague, and I would really like to point people to it, but I can't do that. I'm not going to "out" anyone.
I'm not sure if there will be a part three to this essay or not. I don't have anything outlined, but I know it's a big enough topic that I've certainly left out lots of interesting thoughts. I just haven't had those interesting thoughts yet. :)
Quick Edit: about the two OD&D versions that I mentioned, I don't know how complete they are. I assume the Frazetta one contains all of the LBB material, but the Austin clone probably doesn't - the book is too thin. So the Austin Clone is probably, like Princess Bride, that group's "good parts" version of OD&D.