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Is it illegal to create tools based off of some other company's product to enhance it?

Like, Army Builder is a tool for assisting army building, but would they be illegal if they referenced some of Warhammer's stuff?

The best answers you are likely to get are "It depends," and "Maybe."

Your question needs to be broken down into more discrete issues for a discussion to be had about it and for useful information to be dispensed.

For example, according to Title 17 of US code copyright does not extend to "...systems, methods of operation..." In most interpretations of copyright law, rules systems fall squarely within this exemption.

Now, your question also brings up reference to "some of Warhammer's stuff." Here one might presumably tread on copyright and/or trademark law, but it is a square "maybe," and "it depends."

Like if I were to for example include names like furious charge, armorbane, and some unit names I guess, like Kablite Warriors etc...

If I were to include those into my products would there be an issue?

Or so to speak if I were using Warhammer XXXXXX Tool then would that be of a problem?

"Furious Charge" is hardly a unique concept or terminology, neither would be "armorbane".

But that doesn't mean that a C&D order won't be sent and that they won't be able to do anything in court.

Standard disclaimer: While I am a lawyer, I am not your lawyer. I am giving general, not legal, advice.

The best general advice is can give to you is to never rely on anonymously requested and given legal advice.

Also, there are very, very few general rules when it comes to intellectual property laws. Subtle nuances and minor details can dramatically change what is, and is not, legally actionable.

Also, as Melissa points out, what is in or out of the bounds of the law has little to do with what will cause a property holder to attempt to shut you down.

Well, I understand that first of all everybody has a different country and Copyright laws are different, but in a general theme I was just wondering what would be considered infringement.

I just want to understand a legal consensus of to what extent would it rise an issue. Like, I know putting specific details and rules would lead to some issues.

I understand that big companies can go after individuals to sue them regardless of the legality or not since they have money might as well do it.

 Makutsu wrote:
Well, I understand that first of all everybody has a different country and Copyright laws are different, but in a general theme I was just wondering what would be considered infringement.

I just want to understand a legal consensus of to what extent would it rise an issue. Like, I know putting specific details and rules would lead to some issues.

What I'm telling you is that no such legal consensus exists. You are asking for a "Safe Harbor" when no such thing exists.

So then what does the judge base on to have a verdict of whether or not it is an infringement of other's work?

Extensive prior case law, and the exact parameters of the specific case and claimed infringement in front of him.

Can you afford the lawyer fees should be the appropriate question.

Among intellectual property law, copyright law is perhaps the most subjective. It is probably the reason most copyright cases settle out. Most lawsuit settle out, and I have no data on this at hand, but anecdotally it seems to me that copyright cases settle more frequently than patent or trademark cases.

Patents are pretty explicit, but even among patent law there are tons of unknowns. How patent claims are interpreted can vary considerably, and these are claims that have been reviewed and vetted by a government agency.

Hell, in most venues in the US, interpretation of patent claims is a confusingly mixed issue of law and fact. You have the Court interpreting claims approved by the US Patent and Trademark Office, basing those interpretations largely on expert opinions offered adversarially. And then you have the jury not only interpreting the Court's interpretations but then applying those interpretations to a specific set of facts guided again by adversarial expert testimony. None of whom, arguably other than the experts, likely have familiarity or even a working knowledge of the relevant technology.

And when it comes to copyright law, well, you don't even have the force of a body like USPTO. Sure, there is the Copyright Office, but it is a registration body that does not really have the type of force of law that comes with a patent.

And instead of inventions you have "art," which I put in quotes because the word itself is wide open to interpretation.

This is my impression of the law as one who does not have a law degree but works within the trial process: The law is made up of words, lots and lots of words. Words layered upon words. Words that explain what words mean and words that explain what the words that explain other words mean. Words written from a very high level perspective and words written from a perspective as tiny as one particular circumstance.

And yet words are an imperfect method of communicating an idea. I once saw a jury deliberate for an hour about the meaning of the word "derived." It was not a word in a patent claim, but a word in the patent specification if I recall correctly, and a word used in one of the judge's claim constructions. The entirety of this group's opinion seemingly rested on the meaning of the word "derived."

Now, as a professional trial consultant I will tell you that this "derived" discussion was a symptom of understandable processes that also had little enough to do with the patent and product at issue despite their understandable nature.

Your question is not a bright line; this is okay this is not okay. It is a question of risk, which should be estimated by you while being informed by the learned experience of a professional in your service. A professional who would almost always communicate about risk and harm. That is the best sort of answer you can get about a specific set of facts. And the framing of your inquiry is of this sort, which is why you received el predicto response from Polonius. (No offense intended to Polonius. It was a very correct, if typical, response from a lawyer.)

The response received indicates Polonius's keen understanding of risk; the risk that, as a professional, anything he says may be taken for advice and cause him trouble. So too, the risk inherent in your question. The risk of looking for a bright line where none exists.

A productive discussion could be had of things like what certain laws say and how those laws have been interpreted through the years. But such a discussion is most productive in the abstract, rather than with respect to a specific set of facts because, at the end of the day, the room for interpretation is broad and many subtleties exist.

1.) Keep in mind that software and tools are different things.
2.) Army builder and similar software have trouble with GW, with GW legal fighting against GW fans and the hobby like there is no tomorrow (like shutting down Bloodbowl fan websites)..
3.) Just to repeat what others have already said: If you are not willing to pay lawyers to defend you against GW in court, better not consider that path. There is a high chance of getting into trouble with no safe route. And what GW tolerates now, can be fought tomorrow.

One nice example of the "GW will sue you regardless of whether it's illegal or not": have you noticed that pretty much every major forum has a "no posting rules or point costs" rule, even though quoting them for purposes of comment ("WTF TACTICAL MARINES ARE ONLY 1 POINT GW YOU SUCK!!!!") should be covered under "fair use". But most forum owners are sensible people and recognize that they have a much smaller legal budget than GW, so they make at least a token effort to "protect GW IP".

Or consider this:

http://www.copyright.gov/fls/fl108.html

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

So here's the US government explicitly telling you that you can't copyright the rules to a game, but do you want to spend a lot of your own money defending your product in court?

From my understanding(and from what AB's legal counsel told the 40k file team) the only parts of the game that are protected are the mechanics and not the individual rules themselves.

Stat lines and USR's are all pointless without the core mechanics rules. Now if AB included the Hit and Wound charts, there'd be an issue as those are direct mechanics of the game.

The description of a rule is moot when seen out of context, and AB files are out of context.


Basically, core mechanics are illegal in this manner, but special rules and such are not.


That said, the AB40k.org team decided(even though they didn't have to) to instead change the files to only reference the rules entry with a page number instead of including it. They called it "compliance", but that term can be misleading, as they were not complying with any outside demands. They did it so that GW had no ground to pursue action rather than chance it(even if they would win). Winning a lawsuit isn't free, and neither is being legally in the right, hence the move to referencing rules instead of citing them.


As for the unit stats and costs, again those are all completely arbitrary numbers outside the context of the core mechanics which are not represented in AB files.


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 Peregrine wrote:
One nice example of the "GW will sue you regardless of whether it's illegal or not": have you noticed that pretty much every major forum has a "no posting rules or point costs" rule, even though quoting them for purposes of comment ("WTF TACTICAL MARINES ARE ONLY 1 POINT GW YOU SUCK!!!!") should be covered under "fair use". But most forum owners are sensible people and recognize that they have a much smaller legal budget than GW, so they make at least a token effort to "protect GW IP".

Or consider this:

http://www.copyright.gov/fls/fl108.html

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

So here's the US government explicitly telling you that you can't copyright the rules to a game, but do you want to spend a lot of your own money defending your product in court?

This is correct. A game cannot be COPYRIGHTED. The core mechanics can however be patented(and patents expire much faster than copyrights).


Theoretically the patents for 40k and WFB will expire, and any game could be created using those exact mechanics.

Fairly well covered the issue - in so much as...there really isn't a specific answer to these questions...at least not a simple one.

If you asked a dozen different lawyers the same questions, you would likely get a dozen different answers - sometimes depending on what answer you actually want to hear (for example - the lawyers who send out takedown orders for GW regarding things like the Armybuilder files technically have to believe that they are right in doing so otherwise it would be a breach of legal ethics).

Should you decide to ask a lawyer - be sure to make certain they are an IP attorney, and find out what sort of retainer they offer. Free advice is worth exactly what you pay for it...it is often better to pay a reasonable fee in exchange for an agreement that the lawyer will in fact stand behind their advice. Responses to C&D letters and the related things which might happen can often be handled by a lawyer for that small retainer agreement and help to stave off small hassles (it doesn't necessarily provide much protection against full blown lawsuits though - they are generally outside the scope).



Anyway...

This particular question is common enough though that there are some general guidelines - the USPTO has even stuck it up there as an FAQ on the official site:

http://www.copyright.gov/fls/fl108.html

Now, what is important there in terms of this question is that the mechanics are not protected. A stat line isn't protected. A word or phrase like "Armorbane" or "Furious Charge" would not be protected. That a skill like backstabbing might inflict double damage isn't protected... Pretty much all the "facts" would not be protected.

However, there are certain things that would possibly be protected. For example, images would be protected (either as parts of the whole or as standalone works of art)...so don't use any of those. Exact descriptions of abilities would likely be protected. Something like "Backstab = 2 x Damage" would be OK, but actually quoting a section of the rules which uses more flourishing text to explain the ability would be covered under a literary copyright.



Again though - being right isn't going to stop them from attempting to shut you down. Because of the various laws relating to digital distribution now - it actually is generally pretty easy for them to shut you down.


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 Aerethan wrote:
From my understanding(and from what AB's legal counsel told the 40k file team) the only parts of the game that are protected are the mechanics and not the individual rules themselves.

Stat lines and USR's are all pointless without the core mechanics rules. Now if AB included the Hit and Wound charts, there'd be an issue as those are direct mechanics of the game.

The description of a rule is moot when seen out of context, and AB files are out of context.


Basically, core mechanics are illegal in this manner, but special rules and such are not.

Technically speaking, you would probably be able to get away with all the rules - tables, core mechanics and everything...though again, they would throw everything at you to shut you down. Again, while the words and sentences used to explain the rules can qualify as a copyrightable work of art - things like tables are excluded on purpose from copyright protections.

A good article which explains some of this in more detail is here:

http://www.publicknowledge.org/blog/settlers-catan-makes-legal-threats-can-it-bac

They would still hit you...probably with more gusto than the Settler's of Catan people went after that guy...or the Hasbro people went after Scrapulous...or...

Something else to keep in mind is that many game companies are cool to people who make useful tools for their games, and handle things with a request for a disclaimer or similar, any maybe even try to be nice to people who make stuff. After all, tools to create army lists are basically advertising...

 Balance wrote:
Something else to keep in mind is that many game companies are cool to people who make useful tools for their games, and handle things with a request for a disclaimer or similar, any maybe even try to be nice to people who make stuff. After all, tools to create army lists are basically advertising...

GW is not one of those companies.

Well, the tool I'm trying to make is somewhat of a software tool to enhance the overall gaming for players.

I just wanted to make sure that I don't get into any trouble because it would be impossible to fight against GW.

Anways, I think I have a good grasp of what to do and what not to do to lower the risk of getting involved with GW.

I'll try using terms and words that are not relevant to GW so that they won't come and bother me.

Thanks for all the advice, I'm gonna save this thread as a reference for when I'm building the tool.

Here's the other big thing. If you try to include a rules reference you're going to probably regret it if it gets beyond the two page reference sheet style.

What's the easiest way to tell someone what a rule is? You read it to them right as it says out of the book. And especially since so many of the popular games depend on exact wordings of rules (RAW's a common acronym for a reason), there's this tremendous temptation to just include the rules verbatim. "You could have explained the rules using different words" is going to be the killer claim. Yet the worst thing that you can possibly do is include an incomplete or misleading summary of a rule.

But verbatim copying is the biggest bulls eye you can possibly paint on product, because that's literal copying. Instant court ordered injunction, just add lawyers. That puts you in the position of needing to disprove that all of the material that you copied doesn't have copyright protection.

People wonder why GW continues to mix fluff and rules together in the same paragraph. If you're trying to follow the "It's functional so it can't be copyrighted" argument and you copy the fluff, you've just ruined your argument.

So you either have your choice of spending a tremendous amount of effort to write, edit, and create your own summary of the rules--a summary that you're going to have to work at to gain people's trust that it's accurate. Or you doom yourself to a legal fight against someone with more money that you do and more lawyers.

This is correct. A game cannot be COPYRIGHTED. The core mechanics can however be patented(and patents expire much faster than copyrights).

What is the definition of "Core Mechanics" and examples of this being patented.

Thanks.

Adam.

From my understanding, the core mechanics are the rules that govern how the game works specifically. Examples would be the Hit and Wound charts, as well as the specific rules that dictate what each stat does.

That is what was explained to me by a member of the AB40K.org team after they had a chat with AB's lawyers, and that is what they were told could NOT be in the files legally. In order to avoid any scrutiny or GW's attention in general, the AB40K.org team decided just to change out all rules in the files to page references. People were arguing that people played the games without the rule books, but really the only rulebook that is patented afaik would be the core rule book as it holds the mechanics of the game. There may be specific mechanics in each rulebook that were patentable, but I doubt any such mechanics were in the AB files.

The point is, that in order to play 40k, you need the information in the core rulebook. Beyond that you could make up your own units and armies and all of those stats would be meaningless out of the context of that core rulebook. Perhaps GW was getting pissy about people not buying books just to fiddle around with army list ideas so they made a stink about it.

The part that gets me, is that if I want to just tinker with lists(as I do before deciding to buy into an army) I need to know the rules of that army. Since GW forced those rules off the AB files, the internet was more than happy to share the rule books with me in order to allow me to tinker. And when I decide to buy into an army, the first thing I do is buy the book for it.

And now with codices being as pricey as they are, it reinforces my decision to find such rules online so that I have the information I need to make an informed decision on whether or not to start X army.

 Adam LongWalker wrote:

This is correct. A game cannot be COPYRIGHTED. The core mechanics can however be patented(and patents expire much faster than copyrights).

What is the definition of "Core Mechanics" and examples of this being patented.

Thanks.

Adam.

Mechanics would refer to the actual method of game play - not any specific tables or things like that.

For example...

Roll a 6 sided dice against an opponents Armor to determine if a hit is scored.

Roll a dice and reference a table (not a specific table...just a table) to determine damage.

The mechanics are really a lot like they sound - how the games get played. You can probably find the patent for Magic the Gathering fairly easily - it is an example (bad though it may be IMO) of a game patent. When you compare the patent to the actual game, you will see that it excludes all the things like stat lines (though it would define what a stat line might contain), tables (though it would define what the table might contain), special rules (though it might list an example of what a special rule might be)... You get the picture.

GW doesn't have any patents that I know of. Even if they did attempt to patent 40K when it first came out, it would have expired by now. Granted, it wouldn't really have qualified for a patent - the mechanics were the same as WHFB...which were the same as any number of wargames from the 1970s and early 1980s.

The issue with a lot of these things is that the lawyers for a company like GW tend to mislead people (and sometimes tell outright falsehoods...though they generally avoid a specific written lie, as that is a bad thing for a lawyer to do). The result is that people are intimidated from doing things which they can legally do - but a company like GW might not want them to do for whatever reason. The threat of legal action will generally get most to fall in line...and a DMC complaint can make it a moot point anyway, as the host for the information (files, software or otherwise) generally doesn't want to get involved.

 Makutsu wrote:
Well, the tool I'm trying to make is somewhat of a software tool to enhance the overall gaming for players.

I just wanted to make sure that I don't get into any trouble because it would be impossible to fight against GW.

That's rather the problem. It doesn't seem like GW are bothered by going after people on spurious grounds though. However cautious you are, there's a risk they'll send a nasty letter all the same which puts you in the position of paying out to fight or just shutting down. This is how they win in a niche hobby where most companies have small finances.

 Sean_OBrien wrote:
and a DMC complaint can make it a moot point anyway, as the host for the information (files, software or otherwise) generally doesn't want to get involved.

Unless that host is a cloud based swedish site that no power on earth has been able to snuff out for more than a few days, and even then the mirrors survive...

Granted sites like that have bigger crusades, but corporate strong arming is a quick way to get their attention.

 Aerethan wrote:
That is what was explained to me by a member of the AB40K.org team after they had a chat with AB's lawyers...

I'm failing to understand how "core mechanics" are protected. As far as I know, GW does not have a patent on the mechanics of any of their game systems, and it would be wildly difficult to obtain such a patent unless they caught the USPTO asleep at the wheel. I am not terribly familiar with the particularities of obtaining patents in the UK, but most patent systems seem to be roughly comparable.

Patents have to be (1) New (2) Useful and (3) Not Obvious in light of the prior art, at least in the US. If somebody did it already, or it is an obvious step to take based on what others have done before, it simply is not patentable. And "prior art" includes anything and everything extant in the public domain at the time of conception, not just other patents. Rules systems by and large just don't cut the mustard for patent protection. At best, they are method patents, which are already problematic.

Wargames use very old, very common, and very well understood mechanics for the most part. Wargames also tend to use incredibly common and well known devices, such as rulers, dice, and templates. That dog don't hunt.

Edit: Sean, I believe the MtG patent relates specifically to the "tapping" mechanic and is a fuzzy mixture of a device and method patent as the claims also cover the layout of the cards if I recall correctly. In any event, it is a weak as crap patent that as far as I know has never been enforced. If it were enforced, I wouldn't be surprised to find that the USPTO rejects it in the inevitable re-exam. For all intents and purposes, the method claimed in the patent is turning a card sideways to indicate use, and I expect that a modicum of effort could produce a pile of prior art from which to argue that the claims are at least obvious if not anticipated. I don't know how much more obvious you get than modifying the appearance of a game piece to convey information about said game piece.

My examples of GW's mechanics may not be what the lawyers meant were capable of patent, I'll readily admit that.

Magic the Gathering is a good example. The mechanic of single card based resources and the "tapping" mechanic are patented as they are both what distinguish the game as unique.

GW may not have anything all that unique that the Patent office would agree to, but the lawyers said that core mechanics are the only real part of games that are protected other than artwork.

weeble1000 wrote:
it would be wildly difficult to obtain such a patent unless they caught the USPTO asleep at the wheel

So... not all that hard, then, considering how often they're caught that way?

weeble1000 wrote:
Edit: Sean, I believe the MtG patent relates specifically to the "tapping" mechanic and is a fuzzy mixture of a device and method patent as the claims also cover the layout of the cards if I recall correctly. In any event, it is a weak as crap patent that as far as I know has never been enforced. If it were enforced, I wouldn't be surprised to find that the USPTO rejects it in the inevitable re-exam. For all intents and purposes, the method claimed in the patent is turning a card sideways to indicate use, and I expect that a modicum of effort could produce a pile of prior art from which to argue that the claims are at least obvious if not anticipated. I don't know how much more obvious you get than modifying the appearance of a game piece to convey information about said game piece.

Forget the game - but there is an old card game my Grandpa taught me when I was a kid that you did something similar with...but yes, it was a weak patent, however it was the only patent I could recall off the top of my head that dealt with a tabletop game and the mechanics of play (probably others to be certain - it was just the one sitting there at the front of the line).

Regarding it being overturned - I would need to double check the dates...but it should be expiring soon as it is. Were that not the case, yes - it probably would be overturned if challenged, I just find the entire issue with having to challenge annoying (not only for patents but the somewhat more difficult copyrights as well).

I agree Sean. Were the government agencies more vigilant, and one can not be too harsh given the workload and budget, the public good would be well served. I wouldn't be, but the public would be .

Game mechanics are just hard to patent, and rightly so. The MtG patent is the only one I can think of as well, aside from Scrabble, but that was a principally a device patent, not a method patent. I'll just do a little poking about on Google Patents.

Well Hell, Eric Johns went and patented the Malifaux game mechanic... what an . MINIATURE MODEL SKIRMISH GAME MECHANIC

The darn thing doesn't even have any prior art references. Way to respect your duty of candor Mr. Johns.

Someone also patented a resource point mechanic in friggin 2004! What is wrong with people? At least that patent references some prior art, including the MtG patent.

There's also this, which is interesting in the extreme in light of the previously mentioned patent.

Of course there is also this gem which is a card-based paper rock scissors game...

Most of the game systems appear to be card or board games. The exception thus far in my quick search being the Malifaux patent. Man, I am soundly disappointed in Eric Johns.

weeble1000 wrote:
Man, I am soundly disappointed in Eric Johns.

Par for the course for them - more recently they applied for (not sure if it was granted) a patent for their World Works Terra Clips things...which are nothing more than overpriced panel clips which have been in use since the 1950s.