The Revolution Begins

The entire gaming industry was underwhelmed by the new D&D Fourth Edition Game System License (GSL), which is restrictive and frankly dangerous to the licensee, not to mention being a very disappointing step back from the open licensing push of the previous edition.

Paizo Publishing has already forked D&D in response, saying “poo on 4e” and going ahead with the 3.5e system, turning it into their new Pathfinder RPG. But now there’s a more meaningful strike back at Wizards’ ill-considered and backwards business practices – Kenzer & Co. is putting out a book for 4e (Kingdoms of Kalamar) without using the GSL at all. (Thanks to Lamentations of the Flame Princess for the news!)

A quick primer on intellectual property issues. There’s copyright and trademark concerns, but courts have held consistently that any kind of game rules – from baseball to Monopoly – may not be restricted via IP. This should mean that as long as you avoid direct text plagarism (copyright) and trade dress (trademark, though this gets harder as companies abuse the trademark laws to “own” simple words and concepts) you can make compatible programs just fine – this is how companies have made third party games and addons for game consoles, etc. (Though as you can see from history, some consoles have succeeded on blocking this more effectively than others.) (If you need more of a primer on the game industry’s licensing history, the OGL, GSL, etc. see my old post Open Gaming for Dummies.)

Unfortunately Hasbro (Wizards of the Coast’s corporate masters) has been aggressive in suing anyone who touches any of their properties, whether the use is legal or not – two good examples are the recent Scrabulous suit, and the RADGames Monopoly suit. And even before Hasbro was in the picture, TSR and then Wizards had a history of being litigious; TSR suing Mayfair for publishing AD&D 1e adventures is one example, as is the infamous Magic “tapping” lawsuit.

Note that Hasbro lost the RADGames suit and that company happily puts out award-winning add-on games for Monopoly, even saying “Monopoly” and terms like “Community Chest” which are trademarked! And the old Mayfair suit wasn’t decided on IP grounds but because Mayfair had entered into a specific contractual agreement with WotC that said they couldn’t do that. This is the reason gaming companies shouldn’t uptake the GSL – it is actually more restrictive than what your normal legal rights grant you, and by signing up you are giving up rights basically for a piece of paper saying “Wizards won’t sue us.”

In my opinion, this is pure extortion. But it’s effective. Most roleplaying game companies are small one or two person shops or just part-time gigs. Even a groundless suit from Hasbro would take more money than one of these entities has just to show up in court (in whatever shopped venue Hasbro chooses, most likely one of the infamous IP venues like the Eastern District of Texas) to contest it. So whenever this discussion came up in the recent GSL flap, there was a general air of fatalism and people saying snidely “why don’t you rest your own livelihood on some legal theory!?!” Because admittedly, figuring out the complex legal mess of trademark vs copyright vs rules vs contracts is a bit much for most freelance writer types, and there’s a huge risk of getting sued whether or not you do it right.

Well, it turns out that David Kenzer of Kenzer & Co, a major third party RPG publisher, creator of the Knights of the Dinner Table comic, the Hackmaster RPG, and the Kingdoms of Kalamar setting, is an IP lawyer “in real life.” So in defiance of the GSL and their “no 4e products may be sold until after Gen Con” rule, his company has put together the first third party D&D 4e supplement and is selling it at Gen Con. Apparently he’s confident in his ability to “do it right” and to thwart any ill-considered legal action from Wizards/Hasbro.

And I don’t think this is a bad bet. RADGames was two guys in a basement and they won. People like to say “Oh, the US legal system is about who can throw the most money at it” but in reality, the law wins out pretty reliably.

So I want to say “Yay!” to Kenzer & Company. By pretty much volunteering to be the test case for this they’re going to lead the entire hobby games industry into realizing their legal rights and not living in FUD of Wizards and their “licensing” any more.