I'm only aware of only two instances for certain. An assistant (or vice?) brand manager from WotC contacted Stuart about OSRIC immediately, asking him to take it down while they discussed WotC's concerns. Stuart said no, and there were a couple more emails exchanged, with WotC eventually ceasing to reply in the exchange.

The other instance is different, since it didn't have to do with a retroclone, and it had to do with trademark rather than copyright law. Outside counsel for WotC sent a real C&D letter to an artist who was offering stock art of a creature that looked a bit like a beholder.

I've heard rumors of other contacts, but they have all been secondhand, or not clear if it was actually WotC, etc. WotC's current legal posture on copyright seems to be very open and permissive. Whether that will still be true in 10-20 years, of course, isn't clear.

Hope that's helpful!

Quote from: Mythmere;740230The other instance is different, since it didn't have to do with a retroclone, and it had to do with trademark rather than copyright law. Outside counsel for WotC sent a real C&D letter to an artist who was offering stock art of a creature that looked a bit like a beholder.

I think that case would ultimately under Copyright though.  From what I've seen, WoTC has never trademarked the term "Beholder", at least in the USPTO database.  Visual images and depictions can come under copyright, for instance.  Unless they are just claiming a common law trademark on the visual image--they could do both, but the former would probably apply unless the beholder was actually used in trade...

Well, chaps and chapesses, here's the sequence of events with OSRIC.

1.  It was published, with me accepting legal responsibility for it.
2.  There was a massive thread, and then several other massive threads.  A lot of people got their opinions out and waved them around.
3.  Clark Peterson gave his famous opinion.  Clark's an IP lawyer, but he hadn't spoken to me and (clearly) I wasn't his client.  I do not for one moment believe that Clark Peterson was trying to kill off a business competitor in that way.  I do believe that he wasn't in possession of all the facts.

The important facts that he did not possess at that time were:
(a) my bizarre and unaccountable failure to be an American; and
(b) WOTC's lawyers' failure specify which law applies to the OGL.

In other words, WOTC couldn't sue me in an American court.  US IP law is about as relevant to me as the law of Timbuktoo.  Hang on to that fact, because it's important in making sense of what happened next.

4.  A person unknown referred OSRIC to WOTC's brand manager.    I say "person unknown", but he may not be totally unconnected with a person who wrote on Dragonsfoot that he was going to refer OSRIC to WOTC... that's okay, the concept of a retro-clone was always going to attract WOTC's attention.  We expected this.
5.  WOTC's then brand manager wrote a very polite and respectful email to me saying that his licencees were concerned and asking me to cease distribution of OSRIC.
6.  I corresponded with WOTC's brand manager.  He's a veteran, so I was as polite and respectful to him as he was to me.  (I can be nice.  Occasionally.)  WOTC's guy said some things about WOTC's IP that I found very surprising and remarkable, and I often wish I could bring them out in discussions like this because they would be really illuminating for you all.  But I think that in all the circumstances it's right to keep the details under my hat.  All I feel able to tell you is that more than one of the perfectly reasonable assumptions people on the internet make about WOTC's IP and brand management are dead wrong.
7.  I said to WOTC's brand manager that I didn't think we were going to agree and could he please get WOTC's lawyers to email me directly.  He said he would do that, and that's the last I heard.  This was in midsummer of 2006.
8.  Dan Proctor and I get on very well and have a relationship of trust.  I gave him all the gory details on all this (including key elements of the non-public stuff) at around the time he released Labyrinth Lord.

Moving from facts to my opinion:-  I think that WOTC's lawyers figured out that they can't do much to me in the Law of England and Wales given the representations and commitments they've made.  And I think their business management people may have decided that if the retro-clone cat was going to get out of the bag, then it should be out of the bag for Americans too, and they would treat the OGL/SRD as a lost cause for their ownership.  I think this was the right call.

Other points from this thread that I'd like to address are:-

a) K&KA is, as Spinachcat says, a foul and evil den of iniquity that's exactly like Tangency on the Big Purple.  People like Spinachcat should definitely stay here where it's nice and safe.
b) OSRIC isn't ever going to be open source.  The point of OSRIC is (1) to make the 1e system available to anyone who wants to publish for it and (2) to kill off attempts by commercial entities to get a stranglehold on the "closest successor to the game Gary Gygax wrote" market.  It can only achieve these things by doing the most accurate job possible of replicating the non-copyrightable elements of 1e, giving the rules away for free, selling print rulebooks at prices for-profits couldn't match, and using the Product Identity rules to stop people rebranding it for their own purposes.

I realise this is a pain in the neck for reusers, but I'm afraid OSRIC isn't aimed at reusers.  LL/AEC is thataway --->

Quote from: estar;740110I haven't personally heard of anything. My opinion we been lucky for the following reason.

1) OSRIC took lot of heat when first released. A LOT of heat. But if they were contacted officially they effectively handled it and I believe there were IP lawyers on the design team.. OSRIC was deliberately designed to be as close as the line possible.  As such it is a sort of benchmark of how far you can go. Most of the retro-clone I read to back off further than OSRIC.

Not in the design team, but AIR from talking with him (I'm a UK academic IP & contract lawyer, so I'm interested in this stuff) before publishing the UK-based lead author & publisher Stuart Marshall had paid for legal advice from a UK law firm, and in case of dispute they were already contracted to represent him on a no-win no-fee basis. ie OSRIC was lawyered up and ready to fight from the start, if necessary. He was emailed by a WoTC non-legal staffer who objected to what he was doing "this can't be legal!", but the staffer then went off to speak with Hasbro legal, and Stuart never heard anything more from WoTC. No attempt at a C&D letter etc.
So it looks like this established a precedent: where there is no breach of trade marks, and no clear breach of the OGL (eg including Product Identity in your product) Hasbro Legal will be quiescent. This makes good sense from their POV. My fellow law academic Pemerton has pointed out to me a couple elements in OSRIC where you might be able to make a case for copyright infringement despite the OGL, but it's very de minimis stuff - the number of gnolls appearing in their lairs and such seems derived from the 1e MM, and you could maybe make a technical case for derivative* work, but extracting non-OGL from OGL elements and establishing there was substantial infringement would be nightmarishly hard, for little benefit. In multi million dollar infringement cases you might hire a specialist law firm and go to town, but even they might not want to touch it due to the difficulties around the OGL. And because game mechanics are not protected, games companies like Hasbro generally shy away from the possibility of court judgements that may establish just how little protection they have for their games - you could theoretically publish a game that uses AD&D's mechanics even without the OGL.

edit: Ninja'd by P&P himself.

*UK copyright law does not have 'derivative work', it has 'adaptation' which is similar but narrower. Both UK & US allow for non-literal copyright infringement. UK law generally lacks US punitive damages. In case of blatant infringement (eg piracy) a UK court may grant an injunction against continued publication of the infringing work, but it's 99.9% likely they would not do so for anything I've seen in OSRIC.  
The kind of result I'd expect to see, if Hasbro spent a big chunk of money suing in a UK court, and did as well as could reasonably be expected, might be something like:
"OK, elements x y an z are infringing, but de minimis. You have not shown any loss. You receive nominal damages, £1 to the claimant. Respondent's costs are awarded against the claimant."
Hasbro then get stuck having to pay Marshall's lawyers' legal bill. And it could go worse than that - a judge might not be satisfied that any infringement occurred. And there might be a clear statement on the non-protectability of games mechanics, costing Hasbro and other games manufacturers lots and lots of money.

I just want to confirm that S'mon has his facts straight and his view broadly aligns with the advice I've received.  The solicitor I consulted said the case "presents interesting complexities" but went on to mention that she "would not wish to act for the other side".

Matt Finch once remarked that if the copyrightability of game mechanics came to Court, he'd expect it to attract interest from the legal departments of computer game manufacturers, who have deep pockets and an obvious interest in the copyrightability of game engines.  I'm sure Matt's right.

QuoteOSRIC isn't ever going to be open source. The point of OSRIC is (1) to make the 1e system available to anyone who wants to publish for it and (2) to kill off attempts by commercial entities to get a stranglehold on the "closest successor to the game Gary Gygax wrote" market. It can only achieve these things by doing the most accurate job possible of replicating the non-copyrightable elements of 1e, giving the rules away for free, selling print rulebooks at prices for-profits couldn't match, and using the Product Identity rules to stop people rebranding it for their own purposes.

By "open source", that's what I meant.  (Technically it isn't a term applicable since there's no source code).  But your intent was to be a disruptive non-commercial force in the market.  

Personally, I think the big legal precedent about cloning Tabletop RPGs will come not from D&D since they opened themselves up long ago to this, but from somebody who tries to clone a game very closely and release it under and OGL/Creative Commons license where the game was never released under those types of terms.  I suspect it will come by some creative type who would fight on the principle of the matter.

I also think perhaps Hasbro had a different take on games from a legal perspective because as a big game manufacturer they've probably ended up being on the other side of cloning games, and might be more tolerant of it than the narrower view of Tabletop RPGs.  They have gone after clones like Scrabulous but that appears to be more based on how close it was to the original (and the near-name match), since they dropped that lawsuit after the name was changed.

Quote from: JRT;740308By "open source", that's what I meant.  (Technically it isn't a term applicable since there's no source code).  But your intent was to be a disruptive non-commercial force in the market.  

Personally, I think the big legal precedent about cloning Tabletop RPGs will come not from D&D since they opened themselves up long ago to this, but from somebody who tries to clone a game very closely and release it under and OGL/Creative Commons license where the game was never released under those types of terms.  I suspect it will come by some creative type who would fight on the principle of the matter.

Well, there's been a few of those now, but most all of them have been of OOP systems with minimal interest from the IP holder.

The biggest profile game I know of that's been cloned is Marvel Super Heroes, and considering the IP holder is still letting that one's original be given away for free, and not a soul seems to have actually used 4C for anything. So no one's made a peep.

Someone did mention the Squadron UK situation though, and that apparently did get ugly, though now there's yet another clone of it that so far has gone unnoticed, though this is likely because it deliberately avoids even crediting anything in the original. Also because the entire thing is layed out in Comic Sans. So again, low visibility targets.

I've been debating cloning DCH/MEGS for years, but the table is kind of a stumbling block there because it's bespoke enough to be non-obvious, so I fear replicating it exactly would definitely be actionable, and there's a contentious history with the system's previous licensing situation. I think you could change the die mechanic and rebuild the table though, and still keep compatibility, as long as everything else was kosher on the copyright front.

Quote from: JRT;740308I also think perhaps Hasbro had a different take on games from a legal perspective because as a big game manufacturer they've probably ended up being on the other side of cloning games, and might be more tolerant of it than the narrower view of Tabletop RPGs.  They have gone after clones like Scrabulous but that appears to be more based on how close it was to the original (and the near-name match), since they dropped that lawsuit after the name was changed.

More than copyright, companies don't want their brand name diluted or confused. Often something is fine under copyright law but if it winds up causing confusion over whether it is an "official" product then the author/publisher will likely face legal action by the original company. And the chances are that the original company is prevail as this protection is one of the foundations of modern commercial law.

And it makes sense morally. If you put a lot into promoting and building the reputation of JRT Games & Hobbies only for somebody to adopt a similar (but not the same log) and call themselves JRC Games & Hobbies. People would be confused as to which is which. And if the people behind JRC put a shoddy product or provide bad service it will unfairly reflect on you.

Quote from: JRT;740232I think that case would ultimately under Copyright though.  From what I've seen, WoTC has never trademarked the term "Beholder", at least in the USPTO database.

I thought it was done by TSR?

Quote from: P&P;7402396.  I corresponded with WOTC's brand manager.  He's a veteran, so I was as polite and respectful to him as he was to me.  (I can be nice.  Occasionally.)  WOTC's guy said some things about WOTC's IP that I found very surprising and remarkable, and I often wish I could bring them out in discussions like this because they would be really illuminating for you all.

Heh, as an IP lawyer myself I can imagine. Clients have an incredible ability (even large ones) to overestimate the extent and potency of their IP portfolio.

Were I one of WotC's attorneys I'd have been aghast that the brand manager was getting into this discussion with you on that level of detail without keeping the legal people in the loop, because the damage that can be done by an uninformed (or, worse, semi-informed) person running their mouth off about their IP rights can be startling.

Quote from: Mistwell;740318I thought it was done by TSR?

There are few live or dead trademarks for any term containing Beholder, none of them being registered for either or dealing with the Eye Tyrant.  

I was surprised they or SSI never Trademarked the term Eye of the Beholder for the computer game.

Quote from: P&P;740239a) K&KA is, as Spinachcat says, a foul and evil den of iniquity that's exactly like Tangency on the Big Purple.  People like Spinachcat should definitely stay here where it's nice and safe.

I see what you did there.

Quote from: P&P;740239I realise this is a pain in the neck for reusers, but I'm afraid OSRIC isn't aimed at reusers.  LL/AEC is thataway --->

While I am a advocate of open gaming I strongly defend the right of authors to release their material on the terms of they want. Which is I why I haven't raised much of a stink about it.

Likewise I strongly feel that the half open nature of OSRIC is utterly contrary to the spirit of open gaming.  That it unfairly takes advantage to push it own agenda. While you and the team have the right to do what you did it doesn't make it the right way to proceed.

However, I also admit it hasn't had that big of impact either. According to Hordes and Hordes there are 93 Swords & Wizardry products, 138 Labyrinth Lord products, and 132 OSRIC products.

Like all such things, the community didn't do what anyone of us expected. Most of the people that had a strong vision just went out and wrote their own thing. (Adventure Dark and Deep, Lamentation of the Flame Princess, Blood & Treasure, Adventure, Conqueror, King, etc). The rest just used their edition/clone of choice.

So while I have my opinion on the subject it just not that big of deal in 2014. The OSR has grown so diverse, that no one clone, individual, or company is a gatekeepr, or block on the path from anybody with the drive to do what, within reason and the law,  they want with a classic edition.

Quote from: J Arcane;740310I've been debating cloning DCH/MEGS for years, but the table is kind of a stumbling block there because it's bespoke enough to be non-obvious, so I fear replicating it exactly would definitely be actionable, and there's a contentious history with the system's previous licensing situation. I think you could change the die mechanic and rebuild the table though, and still keep compatibility, as long as everything else was kosher on the copyright front.

I have a feeling you would have to change it up (the table, etc.) so much that it wouldn't quite be a "retro-clone" any longer.

Also, I'm sure others have thought about cloning it but perhaps they weren't sure they wanted to test Time Warner's lawyers.

Quote from: Endless Flight;740336I have a feeling you would have to change it up (the table, etc.) so much that it wouldn't quite be a "retro-clone" any longer.

Also, I'm sure others have thought about cloning it but perhaps they weren't sure they wanted to test Time Warner's lawyers.

I don't think you'd have to actually change that much to make it unrecognizable for copyright purposes. Change the stat names if you're going to be cautious, and obviously do the power list from scratch. Even the table is solvable: switch the die type. Change out the 2d10 for a 2d6 or 2d8 or something, and all the numbers will have to be redone anyway, and that's the only part of it that's copyrightable.

Remember, mechanics fall under patent, not copyright, and even patent is tough to get for that kinda thing and expires much more quickly. The idea of a lookup table isn't the problem, it's getting the same basic feel and results with a new table that's the tricky part.

In most jurisdictions game mechanics aren't even patentable.