An important notice about proxies

[ELD]

I received a notification from a lawyer representing Wizards of the Coast Friday. Here are some highlights

Re: Infringement of Wizards of the Coast, Inc.'s MAGIC THE GATHERING® Copyrights and Trademarks


We are counsel for Wizards of the Coast, Inc. (“Wizards”), the owner of the copyrights and trademarks for the MAGIC: THE GATHERING® trading card game. We recently became aware that Mr. Dupuis is making, displaying, distributing and selling “ELD Proxies,” http://www.themanadrain.com/index.php?topic=36536.0, which are nothing more than derivative copies of genuine MAGIC: THE GATHERING® trading cards.


Mr. Dupuis’ unauthorized copying of the MAGIC: THE GATHERING® trading cards constitutes copyright infringement in violation of 17 U.S.C. § 501. His unauthorized use of the MAGIC: THE GATHERING® Mana and Tap symbols and other MAGIC: THE GATHERING® trademarks, including the overall look and feel of the trading cards, violates the federal trademark laws, including 15 U.S.C. §§ 1114(1) and 1125(a), by creating a likelihood of confusion with respect to Wizards’ authorization or sponsorship of or association with Mr. Dupuis’ cards and tournament. This unauthorized use is also likely to dilute the distinctive qualities of Wizards’ MAGIC: THE GATHERING® marks in violation of 15 U.S.C. § 1125(c) and the anti-dilution laws of numerous states.


On behalf of Wizards, we therefore demand that Mr. Dupuis immediately cease and desist from any further manufacture, display, distribution or sale of these “ELD Proxies,” destroy any existing ELD Proxies, remove them from themanadrain.com website and from wherever else they may appear, and assure us that Mr. Dupuis and themanadrain.com will make no future unauthorized use of Wizards’ intellectual property.

I have since spoken with their lawyer, and we're working to determine exactly what Wizard's policy is in regards to proxy use and altering cards. It is of note that the lawyer said the only reason they even heard about these proxies was due to someone contacting them about it. I'd be interested if the person who contacted them wanted to express their motivation. It is my hope, with the understanding of the time that goes into them as well as the extremely limited quantity, that Wizards will allow me to continue making proxies to give away to the community. I'll keep the community posted as I get more info.

[Elficidium]

With this and the Magicalter thing it's becoming quite clear: wizards apparently doesn't mind if the altering/proxying unless it's done commercially on a large scale.

[KillemallCFH]

I don't want to turn this into a thread arguing about the necessities of copyright laws and such, but holy crap, that is some bullshit.

I really hope you come out on top of this and are allowed to continue to make your proxies.

[ELD]

With this and the Magicalter thing it's becoming quite clear: wizards apparently doesn't mind if the altering/proxying unless it's done commercially on a large scale.

That's just it, this isn't on a large scale. I'm making a handful of proxies a month to give away to people who attend tournaments.

[Nightmare]

The good news is, if you are forced to C&D, the price on your proxies goes up. So you could theoretically keep making them (on the low-key) and circulate them to make some cash.

Of course, you could probably get sued if you were caught, but that's the risk you run, amirite?

[Bardo]

I don't want to turn this into a thread arguing about the necessities of copyright laws and such, but holy crap, that is some bullshit.
Meh. It's their IP -- they can do what they want. The only way to do this lawfully is to negotiate with WOTC and enter into license agreement to produce derivative works, with WOTC owning all other rights.

Here's a decent license agreement you could modify if they're down with something like that:

http://www.isi.edu/licensed-sw/halogen/

(You'll obviously need to change the recitals ("Whereas..."), names of the parties, subject matter, governing law, etc., but that license is fairly benign as these things go. I can put something together for you if you need. PM me if you're interested).

[Aggro_zombies]

Is it just me, or is the legal side of WoTC getting a lot more militant these days? It's been downhill ever since they sued Rancored_Elf over on MTGS.

Just out of curiosity, is it a copyright violation if I make my own proxies of things, but don't sell them? Technically I'm ripping off Wizards' intellectual property and diluting the brand or distinctive feel or whatever the fuck it is.

I'm just wondering because I made these awesome proxies of power that I was going to use for the local Vintage tournaments.

[Swing4Five]

We recently became aware that Mr. Dupuis is making, displaying, distributing and selling “ELD Proxies”

I think the bolded part is what got them calling the lawyers, they probablly are imagining this as a bigger operation than it is.

[Bardo]

Just out of curiosity, is it a copyright violation if I make my own proxies of things, but don't sell them? Technically I'm ripping off Wizards' intellectual property and diluting the brand or distinctive feel or whatever the fuck it is.

As long as you're not selling the proxies and are using them for your own personal use, you could assert "fair use" under the US Copyright law if the copyright owner ordered you to cease & desist making proxies or filed some other menacing-sounding legal order.

[Aggro_zombies]

As long as you're not selling the proxies and are using them for your own personal use, you could assert "fair use" under the US Copyright law if the copyright owner ordered you to cease & desist making proxies or filed some other menacing-sounding legal order.
Ah, okay, thanks. Never really took any law-related classes since U.S. Government in high school, and we didn't cover copyright law there.

Just out of curiosity, what do pirated movies and mp3s fall under?

[m03]

Just out of curiosity, what do pirated movies and mp3s fall under?

Depends on whether you're copying them for personal use or you're distributing them.

[jazzykat]

Hmm...that is the first time I have seen your thread about ELD proxies. I have to say that is very ingenious...create an artificial circumstance with you or some friendly entity so that cards that you print are worth money! My hat is off to you sir!

So why exactly would WoTC be pissed? I assume you know the actual reason but my conjecture is that you are making money (however little or much) by reprinting and then selling things that they have copyrighted.

So, while you may be small potatoes what about if Starcitygames says buy SCG proxies and they don't count towards your proxy limit at one of their big vintage events.

Honestly, let's take it to it's logical conclusion someone prints T2 chase rares and sells them for $5 apiece and allows them in a tournament...

Personally, I don't know how much you sell them for but if they are cheap then I think it is cooler than charging $1 per proxy beyond X but I think it's the principle that WoTC is fighting on.

As to why someone would report you...my conjecture is that there is a perception that you devalue power even more. There are people that think that proxy tournaments shouldn't even exist for Vintage, they are in the minority and suck it up or don't play. Add that group to those who would be pissed about you making money off of proxies (even if it is in fact the same as paying for more proxies) and I am sure someone would report you.

As to those people worried about making proxies for their own use...not speaking as a lawyer I doubt you have anything to worry about. Normally you are proxying P9 and everyone knows what that does so writing its name clearly on the back of a MTG card with a magic marker probably isn't going to piss anyone off.

[Bardo]

Just out of curiosity, what do pirated movies and mp3s fall under?
In the U.S. it's copyright infrigement; i.e. someone owns the rights to a piece of intellectual property, you are using that property without their permission, as you may obtain from purchase, etc.


Depends on whether you're copying them for personal use or you're distributing them.
"Pirated" implies stolen or "wrongfully appropriated," so I don't think you could successfully argue "fair use," though I'm not sure.

Edit - I think case law makes that distinction (distribution vs. personal use), so nevermind.

[yawg07]

As far as I know, music and other digital/televised/etc media is covered under a different set of rules.
That type of thing has its own code/policy.

As far as altered art cards and proxy cards go, that is an entirely different scenario.
Altering states that you have added to, or changed the card through some form of paint/marker/etc.
Proxying means making fake cards for use in place of real ones at specific tournaments.

Changing or adding to what is REAL, or creating what is FAKE and using it as real.
Both may not be totally legal, but the latter seems a lot worse from a company's standpoint.

[Bardo]

As far as I know, music and other digital/televised/etc media is covered under a different set of rules. That type of thing has its own code/policy.

I'm pretty sure things like the No Electronic Theft and Digital Millennium Copyright Acts amended the Copyright Act (http://www4.law.cornell.edu/uscode/17/usc_sup_01_17.html).

Edit - Ah, here you go (http://www4.law.cornell.edu/uscode/17/usc_sec_17_00001101----000-.html).

[frolll]

Actually, Smemmen is kinda needed here. He's an attorney, right ? ;p

[Pinder]

This is interesting to me, because I used to use my access to high-end copiers at Kinkos to print foil P9 proxies for my friends to use at Vintage tourneys. Of course, I never charged money for them.

Also, I generally only printed cards in foil that couldn't actually have existed in foil (mostly older vintage staples like P9 and Mana Drain), and in the event that a card wasn't foil or could have existed in foil, I printed the face of the card upside down with respect to the back so that there was little chance that it would be confused for a real card.

Just my two cents.

[Cabal-kun]

How long until they go after people using MWS, or things like that?

Or is that relatively safe...for the time being?

[Bardo]

How long until they go after people using MWS, or things like that?

Or is that relatively safe...for the time being?

I wouldn't be surprised if they've gone after the software developer, fearing they were losing money that would have been spent on MODO. But as it's free-ware, they can probably just ignore the c&d order. I mean, someone is going to program new card sets as they're released. One thing is for sure, if MWS was making a lot of money and WOTC wasn't, they'd definitely send their lawyers after them. It'd be like printing Magic cards in your bedroom, wrapping them in cellophane and selling them on the street corner or wherever.

Rancored_Elf was another matter, since the depth of the MTGSal spoilers must have been insanely annoying to WOTC. It was also clear their playtesters were blatantly in breach of their non-disclosure agreements (NDAs).

ELD - For what it's worth, I think what WOTC is trying to pull with you is bullshit. It's not like you're making serious money doing whatever you're doing. It's love for the game.

[Pinder]

I remember that Wizards actually had some sort of agreement with Apprentice back in the day to be officially endorsed by Wizards. This might have been before MODO, though, so things may be different now.

[Aggro_zombies]

What I don't understand is why they're going after someone making proxies of the Power Nine. If he was making proxies of widely played cards in Standard, it would be a "duh" action, but the P9 exists only on the secondary market. I'm 99.99% certain Wizards doesn't have a huge warehouse somewhere with cases of Alpha in it, waiting to be re-released. I suppose that the reason they're doing it is because they want to dissuade people from making proxies of Standard cards by applying blanket C&D orders. That's still kinda lame though, considering cards in Standard are easy to get and never cost $300+ per card.

Part of it probably has something to do with Hasbro riding Wizards' ass. I have the suspicion that a lot of the changes we've seen in the past year, especially mythic rares, have been forced on Wizards by Hasbro in order to milk more money out of the product. Since we're now in a recession, Hasbro (as a luxury item retailer) has to be feeling the pinch, so they're going to try tying up as many loose ends as possible by resorting to game gimmicks and suing potential revenue leechers.

It's only a matter of time before MWS becomes a copyright infringement!

EDIT: Oh, and Bardo, thanks for the clarification.

[Cabal-kun]

Since we're now in a recession, Hasbro (as a luxury item retailer) has to be feeling the pinch, so they're going to try tying up as many loose ends as possible by resorting to game gimmicks and suing potential revenue leechers.

Because every revenue leecher is sitting on hordes of cash. :tongue:

[KillemallCFH]

It's only a matter of time before MWS becomes a copyright infringement!I'm pretty sure it already is; they just haven't actively gone after the developers (probably because there isn't really any money involved).

[kicks_422]

Why does Wizards even care? It's not like they support (or even know) Vintage that much.

[Nihil Credo]

How long until they go after people using MWS, or things like that?

Or is that relatively safe...for the time being?
There's a couple of points worth noting here:

1) Although MWS's primary use is MtG, it is a generic CCG program, and in fact gets used plenty to play VS and WoW systems.
Detonator (the programmer) only sells the core program, which contains zero references to Wizards' products. He could keep selling the non-infringing program and leave the MtG Game Pack to p2p or, perhaps, no-profit "fair use" distribution, like with amateur proxies.

2) Detonator is Russian, and AFAIK lives there. Considering the insane amounts of piracy, hacking, spamming, bot networks, child porn, and other unpleasant stuff that the Russian Internet is notorious for, it might be complicated even for Hasbro to get his website shut down by law enforcement agents.

3) Let's take the absolute worst case scenario: Hasbro's ninjas kill Detonator as well as anyone who tries to host a MWSPlay server. Well, we'd lose the joys of playing randoms on mwsplay.com, but we'd retain our own copies of MWS and we could keep playing arranged matches with little trouble. And creating text spoilers for new sets is trivial.

[SpatulaOfTheAges]

ELD - For what it's worth, I think what WOTC is trying to pull with you is bullshit. It's not like you're making serious money doing whatever you're doing. It's love for the game.


I would imagine the rub is that if you are giving away the proxies as prize support, you are using someone else's IP as promotion for an event that I assume you're making money off of.

[KillemallCFH]

I would imagine the rub is that if you are giving away the proxies as prize support, you are using someone else's IP as promotion for an event that I assume you're making money off of.IIRC, they aren't given away as prizes - anyone who enters one of his tournaments gets one. (ELD can correct me if I'm wrong here.)

EDIT: Though I guess your point sill stands. Still, I think it is fairly obvious that ELD is not using this to make money, but to promote the game.

[Bryant Cook]

This is redonk. Good thing I already have my ELD Twister proxy!

[TrialByFire]

He used to give out the Original ELD proxies with your entry fee into the respective tournament. Now he gives out the custom proxy of the month that people vote on to just the Top 8 and one random door prize. So nine in all each month

[J.V.]

This is redonk. Good thing I already have my ELD Twister proxy!

Your Welcome.

But yeah the power nine and Imperial seal were given out to each person who attended ELD's first 10 tournaments. Since then he has made a special set 1/8 of different cards for top 8. (Mana Drain, Strategic Planning, Time Vault, etc) Also he makes a special ninth as a carpool doorprize and one of the original ten in foil as a preregistration door prize.

[hi-val]

The only issue is selling them. Trying to make a buck on someone else's IP is pretty dangerous. I'm surprised Therese Nielsen hasn't been contacted by DC Comics for her blatant and prolonged piracy of their images on her modified cards.

Giving away "mox jet" proxies isn't a problem, otherwise we'd be going after every 3rd grader who swaps pictures of Mickey Mouse and Calvin & Hobbes with their friends. It's selling someone else's IP that's the issue.



I did some research into ELD's situation when it first came up; there's a couple of civil procedure tactics you can use to make sure this is hard to litigate, but they're not worth going into right now. My general advice to people is that a cease & desist letter means legally nothing and it's a tactic that lawyers use to extort money out of people who are ignorant of what a C&D is.

[Bardo]

My general advice to people is that a cease & desist letter means legally nothing and it's a tactic that lawyers use to extort money out of people who are ignorant of what a C&D is.

Cease and desist orders (when issued by counsel, not by a court) are less "extortion," than "knock it the fuck off or we may get nasty" letters. It's true that you are not obliged to comply with the demand (at this point).

[ELD]

Dear Mr. Dupuis:

Thank you for your emails and telephone calls regarding this matter. I have now had a chance to speak with our client regarding your request for permission to make limited quantities of MAGIC: THE GATHERING® proxies to give away as door prizes at tournaments. Unfortunately, Wizards cannot allow this. As I stated previously, however, Wizards does not have a problem with you making proxies for your own personal use.

Thank you again for contacting us so promptly, removing the proxy images from the web, and for ceasing your distribution and sale of MAGIC: THE GATHERING® proxies. Based on the foregoing, Wizards considers the matter closed.

Sincerely yours,

Carin Reynolds

And so it ends. I had a great time making proxies for the Vintage Community. I will miss all the positive reactions and excitement the proxies created, but I will also no longer be spending so many hours making proxies each month. Thank you to everyone who was a part of this project.

[Swing4Five]

:cry:

[TrialByFire]

Frown Town

[Bardo]

And so it ends. I had a great time making proxies for the Vintage Community. I will miss all the positive reactions and excitement the proxies created, but I will also no longer be spending so many hours making proxies each month. Thank you to everyone who was a part of this project.

After doing a search for "Carin Reynolds" and "Hasbro," she's outside counsel (Patterson Belknap Webb & Tyler LLP) for Hasbro on copyright infringement cases.

- http://mtgrares.blogspot.com/2007/12/hi-all.html
- http://riskwars.com/forums/viewtopic.php?f=7&t=652&start=0&st=0&sk=t&sd=a
- http://mtgrares.blogspot.com/2007/11/cease-and-desist.html

You are not the first (http://www.google.com/search?hl=en&client=safari&rls=en&sa=X&oi=spell&resnum=0&ct=result&cd=1&q=hasbro+copyright+infringement&spell=1) to receive a c&d letter from Hasbro.

[ELD]

After doing a search for "Carin Reynolds" and "Hasbro," she's outside counsel (Patterson Belknap Webb & Tyler LLP) for Hasbro on copyright infringement cases.

- http://mtgrares.blogspot.com/2007/12/hi-all.html
- http://riskwars.com/forums/viewtopic...st=0&sk=t&sd=a
- http://mtgrares.blogspot.com/2007/11...nd-desist.html

You are not the first to receive a c&d letter from Hasbro.

No, of course not. Wizards just shut down that Magic Alter website too. I had no intentions of harming Wizards at all. They claim my actions are harming them. I have no issue stopping. Issues go deeper than people realize. For instance, the letter was sent to TMD, where I have posted for many years. The owners of TMD contacted me and were going to delete my account to remove this issue. I assured them Wizards would be happy with the resolution, and there was no need to delete my account. Had I ignored the C & D letter, the community would have lost far more that it would gain.

[Mantis]

Man seriously, that is some weird shit. I feel sorry for you ELD, I don't know you in person but know you from TMD and from what I can tell you are a standup guy. Keep us informed on this matter, good luck man!

[Bardo]

The owners of TMD contacted me and were going to delete my account to remove this issue.

TMD is owned by StarCityGames (Pete Hoefling), and I'm sure Pete doesn't need the hassle or the possibility of mucking up their relationship with the manufacturer of their products (Hasbro) over something like this. As for their claim that you're "harming" WOTC, I agree it sounds pretty absurd but it's just their claim and that's what courts are for (though, if this were go down that path, the matter would be settled outside of court).

Presumably, TMD inherits the SCG Site T&Cs (http://sales.starcitygames.com/FAQ.php?ID=91), and they provide pretty broad account termination rights (or your "right to use"):

"Star City may terminate or suspend your right to use the Site at any time. Your right to use the Site shall terminate immediately and automatically if you should breach any of these Terms and Conditions. You agree that the following actions shall constitute a breach of these Terms and Conditions:

... 2. Using material that infringes on the intellectual property rights of others or on the privacy or publicity rights of others..."

Anyway, the whole thing sucks. Sorry to hear about it.

[georgjorge]

It might be argued that giving away much-wanted proxies as door prizes is helping Wizards more than harming them, by providing incentives to participate in tournaments (for which you need, you know, real Magic cards).

[Bardo]

It might be argued that giving away much-wanted proxies as door prizes is helping Wizards more than harming them, by providing incentives to participate in tournaments (for which you need, you know, real Magic cards).

You can find other incentives for participating in tournaments that don't involve copyright infringement. And as far as proxies go, a Revised basic Plains and a fine-point Sharpie work just as well.

[Mr.C]

I'm pretty sure it already is; they just haven't actively gone after the developers (probably because there isn't really any money involved).

And because they're in Russia, and it would be a complete waste of money and time?

[Papillon]

I'm pretty sure it already is; they just haven't actively gone after the developers (probably because there isn't really any money involved).

The program itself isn't copyright infringement -- it's a pretty generic card game simulator. You can also play WoW TCG, for example.

The more grey area is the card lists -- the card images are most certainly copyright, the flavor text is possibly copyright, card names and card (rules) text are probably not copyright since game rules and words or short phrases generally aren't copyrightable. The card names may be trademark, although there's no (TM), so maybe not.