From: [jeff p k] at [netcom.com] (Jeff Kesselman)
Subject: TSR: MORE from The Copyright Handbook
Date: Sun, 18 Dec 1994 10:02:10 GMT

You guys REALLY gotta go buy this book.  It's just amazing.  Here's some info 
from the Fair Use section of a chapter called "Using Other Authors' Words"

     [Once again, I've substituted all-caps for italics.]

     (Section 11, P.5, "The Purpose and Character of the Use")
     "First, the purpose and character of your intended use must be
      considered in determining whether it is a fair use.  The test
      here is to see whether the subsequent work merely serves as a
      substitute for the original or "instead adds something new, with
      a further purpose or different character, altering the first with
      new expression, meaning, or message." (CAMPBELL V. ACUFF-ROSE
      MUSIC, INC.)  The Supreme Court calls such a work transformative.

      This is a very significant factor.  The more transformative a work,
      the less important are the other fair use factors, such as 
      commercialism, that may weigh against a finding of fair use.  Why
      should this be?  It is because the goal of copyright to promote
      human knowledge is furthered by the creation of transformative
      works.  "Such works thus lie at the heart of the fair use doctrine's
      guarantee of a breathing space within the confines of copyright."
      (CAMPBELL V. ACUFF-ROSE MUSIC, INC.)

Anyone want to take a guess at HOW transformative a module is of the rules
system?

There are lots of other interesting things in this chapter, such as a 
consideration of the nature of the prior work, the amount and substantiality of
the portion of the work used, and the effect of the use on the market for THE
PRIOR WORK.  (My emphasis added.  This is a point I've been making for weeks,
that how many modules TSR publishes is irrelevant to the issue of how our
modules impact the DMG, if that's all we used to create them.)

I may post another couple of quotes later, but in the spirit of fair use, I
want to encourage all of you to go out and get this book.  You can use my
references as pointers to particularly relevant spots, though I STRONGLY
recommend you read the whole thing. It's a REAL education.....

Come to think of it, maybe I should send a copy to TSR's corporate counsel as a
Christmas present.  :)


From: Slacker01 <[72713 1520] at [CompuServe.COM]>
Date: 18 Dec 1994 18:52:50 GMT

Jeff, your quotations on Fair Use are exactly correct, except that you fail to
mention that Fair Use is only an affirmative defense to infringement -- that
is, it's only something that gets invoked once an infringement has been
established. In other words, after weeks of claiming that TSR has no copyright,
and that net-authors have not infringed them, you're now admitting that TSR
/does/ have a valid copyright, that infringement /has/ occurred,  and that the
net-authors are simply legally excused for what they've done. (Think about it
like Justifiable Homicide; you don't have to justify it unless you're admitting
that you killed someone.)

As to whether it's valid, that's a tough call for a layman, because it's often
a tough call for the courts. There's no hard-and-fast rule on Fair Use, just
several factors that are used as guidelines in weighing the appropriateness of
infringement. As you noted, the effect on the copyright holder's market is one
of them, and in fact, courts often regard this as the most important one (if
you're not really causing a person damage, then it's hardly to claim that the
use is "unfair.") 

So what's TSR's market here? Well, it's got its own fully licensed computer
network sites (AOL's Neverwinter Nights, GEnie's Official TSR Roundtable),
and made it clear in all of its original internet announcements that it plans
on starting its own fully-licensed FTP sites on the Internet. It's pretty
clear that widespread use of its copyrights outside of those areas would
have an adverse effect on the market for those licensed areas, and thus
go a long way toward defeating the notion of Fair Use.


From: [jeff p k] at [netcom.com] (Jeff Kesselman)
Date: Sun, 18 Dec 1994 21:25:33 GMT

Except that in order to be infringing it must have an economic impact ON THE
WORK THAT YOU CLAIM WAS INFRINGED.  That it impacts other activities, like
selling monsters through AOL, is irrelevant.

According to Fishman, the only works that can be considered when considering
economic impact, are the original work and its derivatives.  Really, this goes
back to the same issue: Are modules, monsters, etc. derivative works of the
DMG?  As they copy no EXPRESSION from the DMG, and can in no way be used
INSTEAD of the DMG, it's pretty clear that they aren't.


From: Slacker01 <[72713 1520] at [CompuServe.COM]>
Date: 19 Dec 1994 14:19:20 GMT

Actually, no, you'll want to go back and ask Mr. Fishman about this again. To
be infringing, you must copy someone else's protected work in a substantially
similar way. Whether it has an economic impact is entirely outside the question
of infringement.

What I think you're unsuccessfully trying to say is that for Fair Use to be
disqualified, you need an economic impact. That's not true in two ways: The
first is that Fair Use is an "affirmative defense" -- that means it's up to the
defendant to prove it, not up to the plaintiff to disqualify it. The second is
that economic impact is not the only element of fair use, it's one of four
elements, though it is the most important.

And, again, you're defectively analyzing the facts. As Mr. Fishman notes, "The
only works that can be considered when considering economic impact are the
original work and its derivatives."

For heaven's sake, aren't you talking about the AD&D rulebooks (the "original
work") and its derivatives (electronic versions of those works) right there?
Aren't you arguing against what you're claiming is your most important point?