Reproduction of copyrighted content by website users [closed]

Question

TL:DR

Do I need to restrict users of my site from contributing RPG content that is copyrighted (non-OGL)? Or is there some way to allow the reproduction of such content by users (or even by the whole site) -- such as by a disclaimer or copyright statements -- without endangering the site? As it now stands, the site itself only provides OGL content, but has no restrictions on user-contributed content. How does a site like D&D Tools not get shut down?

^{(Note from the future: At the time of this question, D&D Tools was a site that comprehensively republished D&D 3.5e's material without license to do so. Ironically, it was shut down in 2014 following legal action by Wizards of the Coast.)}

Full Query

I am designing a website that will offer tools to RPG players. The site will be community-driven, allowing users to share characters, homebrewed classes, and the like. One of the official site features will be OGL-content. The website itself will not provide content that is copyrighted, nor will it have any hand in approving such content that is contributed by users or promote/encourage such activity. But people being people, some users may not think about it while others may not care.

That is, the website will provide things like the D&D 3.5 Core Classes, Pathfinder content, and the like. But some unthinking user may decide to reproduce the Tome of Battle classes (not OGL), and make it publicly accessible (I assume that any user content that is kept private wouldn't even be an issue....).

My questions being:

• What ramifications for the website may such user-contributed content have? If WotC (or whoever) decides to take action, would they be able to threaten to have the entire site shut down? or just force that specific user's content to be removed?
• Is it actually a non-issue? I have seen many Wiki pages, forum posts, and the like that reproduce copyrighted material from D&D, in full or in part. Is that medium of reproduction and distribution more "forgiveable", or just not an issue to big companies like WotC?

• How do sites like D&D Tools get away with providing all that content? Or is it just a matter of time before they DO get shut down? All I can find on their site is a disclaimer which reads:

  If you, by any chance, wonder [sic] on a page from a rulebook you do not OWN (the source material is always referred both in url and in page contents), please, leave that page, buy the book and then return.

  Is that enough to absolve them? Or are they safe because they hail from Europe? because they gain no profits? In an era when a YouTube user can post full-length movies and full albums, and only has to state something along the lines of "This is not my original content", it's becoming unclear to me what can and can't be done.

• Perhaps reproducing the content without qualification would be an issue, but could users simply provide some form of copyright notice / citation (as the D&D Tools site and YouTube users do)? If this is the case, could the website as a whole consider doing the same (thus better ensuring accuracy of content)?

I ask because if the entire site community has to limit itself to OGL content and homebrewed content, then there's really no point in creating the site. I would like to allow users to share what they will, without official endorsement but also without official restriction, and not be afraid that I'll have to start booting users or shut aspects of the site down -- goodbye user base!

Considering that, I'm also willing to consider the likelihood of such a site becoming an issue to WotC and friends, and meeting with unfriendly action. While it may technically be crossing the line, if the likelihood is low for such a site to anger the RPG gods, then it may still be worthwhile....

What say you?

Disclaimer

I am well aware that no answers or comments on this site constitute qualified legal advice, nor do I have any intentions of treating it as such. I merely want to get a general sense of things, in order to decide whether it's even worth my time and money to consult an actual lawyer.

Answer 1

It's a complex issue.

I'm going to use U.S. copyright law, because that's what I'm familiar with. I'm going to go from ultra-basic to our application, so stick with me.

What is copyright?

Copyright is the legally granted exclusive right to publish and redistribute specific content, particularly things that an individual has made. Corporations, however, can hold copyright through either a direct rights transfer (movie rights) or through the creation of a joint "Work Made For Hire", but you're not worried about owning the rights to things.

Creating a copy, even in another medium, of something that is protected under copyright is copyright infringement. Your theoretical site won't win a fair use argument (commercial use aside, reproducing game content directly impacts the market). This doesn't mean content creators will necessarily come after you, but they are within their rights to do so, and you should always assume they will.

What is a General License

You reference the OGL. The OGL is one of many "General License" agreements, including Creative Commons licenses, that are used in tabletop games. You occasionally see a software-oriented general license pop up its head, but you're looking at OGL or CC most of the time. OGL is very permissive, but has limitations on what it impacts. I don't like it personally, because it's somewhat counter-intuitive and uber lawyer-y without a human readable form, but if something is under the OGL you can certainly reproduce the text of OGL-licensed parts without much worry, so long as you make it clear that it's under the OGL. Note the emphasis: WOTC's material is not all OGL, and much of other OGL users' content is differently licensed throughout.

Creative Commons licenses are more difficult to fall afoul of. Typically, CC-licensed content in the context of tabletop games is fine to redistribute so long as you give credit and don't make money off its redistribution, though both the former and latter can look different in their interpretations. Typically, each piece of content has its own restrictions, and the CC licenses have human-readable licenses that are very simple to understand. Most people who use CC are fine with their games being redistributed to fellow players, though note that in rare occasions people put on a No Derivatives license, which is very restrictive.

If a game is not released under a general license, it is a violation to reproduce any of its parts outside of a legally licensed copy of the game. Note that what we do here counts as fair use because of the value of its commentary, but presumably users of your game assistance tools will be using it for reference, which is not a fair use (especially if people in the public can find it).

Homebrew

Homebrew is almost certainly okay 90% of the time. Even if it uses borrowed mechanics (but not flavor/explanation text) from other content, it's fine. Mechanics, such as a class's hit die, can't be copyrighted, though feat description text might fall under copyright. It's a gray area, but means of playing a game are explicitly excluded from copyright (note that this applies strictly to rules).

Characters

Characters are almost certainly fine to redistribute. Heck, barring the use of logos and the like, character sheets aren't even traditional copyright protected material (blank form doctrine plus the fact that they're a means of playing a game both weigh against protection). There can be copyright issues if characters are directly stolen from a copyright-protected setting, however (i.e. someone decides to make Superman).

The DMCA And You

The DMCA is kind of a dirty word in most copyleft circles, and there are good reasons for this. Fortunately, ninety percent of the bad stuff doesn't worry you. Rather, your concerns are going to be about taking advantage of the safe harbor laws it includes (What's that? Copyright legislation that actually helps people? I know, it sounds a little absurd.)

You need to implement three major systems in order to fall under safe haven laws:

1. Automatic content submission (this is likely a core feature anyway)
2. Content flagging systems
3. Content review and removal systems

First, you need to make sure that you and your site administrators don't have to manually validate content. If you manually validate copyright infringing content you lose protection. So, long story short, if someone decides to upload the entirety of Shadowrun's Fifth Edition, and you approve it by accident, you just violated copyright. If they do it without running it by you, you're still in the safe harbor.

Second, you need to make sure that content can be flagged. Theoretically, the responsibility lies in the hands of copyright holders to file a takedown notice, which is actually pretty intimidating, but you don't want to play games about this. If the copyright owner can't figure out how to contact you, the lawsuit could be against you.

Third, you need content review and removal systems. You can just remove content that gets a lot of flags, but that has a potential for abuse. You can give content submitters a chance to dispute the claim after something they post is flagged, which means you take it down first and let them claim innocence later. You don't need to remove things as soon as it is flagged, but it is considered to have been raised to your attention. You should respond quickly, though the legal definition of "quick" can be somewhat dubious (2 weeks off the top of my head, but I wouldn't count on that).

Part of removal and review involves banning users who repeatedly upload infringing content. They can still use the site, but cannot be allowed to submit content (or their content must be manually approved, which I don't recommend for liability's sake).

Don't go to court.

It's better to be safe than sorry. Typically you'll get notice prior to legal action being taken, but you need to be proactive and it's better to be careful. Definitely walk through drills of what to do with copyright infringing content and figure out an efficient takedown pipeline.

Speaking of which, a brief disclaimer:

I am not a lawyer. I am not licensed to practice law. This does not constitute legal advice. Use this information at your own risk. If there is any doubt, constitute a legal expert.

Answer 2

Risking a copyright lawsuit over gaming material based on things somebody you don't know said on a public internet forum is naive at best. You are not talking about peanuts here. A wrong decision can seriously impact your whole life.

Get a lawyer.

This is the only answer you should get. Even if he tells you the same you read here.