I really enjoyed the part where they say that they expect they’ll make so much money from this that they’ll just buy MtG fro WOTC.
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Selling your cards is legal. Forking some smart-contract blockchain project to make a card ownership/trade tracking system for your group of friends is also legal. Advertising using WotC’s trademarks or selling the virtual tokens you create that way would not be legal. You can use NFT’s for the accounting, but it needs to be clear that they have no value and are only following the physical card as it changes ownership. That part also means you can’t use any existing defi or public blockchains and would have to roll your own.
It’s an overkill use case, certainly, but it could be used to track card ownership/trading, and as a way to control power creep with arbitrary scarcity. You could also do the same thing with a spreadsheet, but if you want an excuse to play with smart contracts it could be a fun project to implement. Blockchain/NFT tech is just code, it doesn’t have to be energy-intensive or grifty. It just invariably gets there when money is involved.
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Wha…
[snip several minutes of uncontrollable laughter followed by a coughing fit bad enough to cause a nosebleed]
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I think one take away is that it’s likely that the WotC lawyers misunderstand what NFTs really are nearly as bad as the mtgDAO NFT bros misunderstand how IP laws work.
I don’t really blame the WotC lawyers, the entire NFT promoting world keys saying that you buy an NFT and ‘own’ the art it points to, even though there is no contract assigning any meaningful ownership rights in any way.
From the mtgDAO side I feel they have failed to even consider any meaningful challenge to their idea. They make some handwavy clams about how it won’t be copyright infringement, but that is the least of their worries in my not a lawyer opinion. They are attempting to build a business directly on top of another companies trademarks, and arguably doing it in a market that the trade mark owner already operates in. While there are exceptions for descriptive uses. (like Pepsi using the name Coke to say in a commercial that more people in taste tests like Pepsi better than Coke) My understanding is that the exception doesn’t apply if there is an implied endorsement (that doesn’t actually exist) or confusion about origin. Just starting out by calling their currency MTG, and claiming they will control the minting of all cards with MTG, when the abbreviation MTG is commonly known to refer to a WotC trademark and is used in that form on their own site leaves me expecting that they have a good claim that the group is trying to claim ownership of a WotC trademark. I don’t see how WotC could not be forced to challenge this, and have a good chance of winning.
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I think it isn’t impossible to imagine a theoretical system that maps neatly onto their cards, without falling afoul of the interconnected types of IP law in question. I think it would be impossible to achieve in a real world application, because of the comprehensibility issue. Imagine a spectrum. At one end is a perfect 1:1 card copy. This is perfectly easy to understand, up to being able to play the game. It also stomps all over both copyright and trademark law. At the far end is a free floating pseudorandom reference number. This is probably perfectly fine from an IP law perspective, but absolutely impossible to understand. As you move to make it comprehensible, you move closer to infringement. With something like a game based on an auto parts company they might be able to do it, but for a litigous company whose entire existence is grounded in IP, you couldn’t get close enough to comprehensible before they would have sufficient ammo for a lawsuit.
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Well things have come full circle!
Long ago, in the early years of The Century of Despair, a scrappy little unlicensed Magic: The Gathering trading platform known as “MT.Gox” or “Magic : The Gathering Online” tapped the Blighted Agent one too many times and ended up becoming infected with a previously unknown parasitic infovore later identified as “Bitcoin.” Soon there was nothing left but a shell of the original host and MT.Gox was trading 70% of all Bitcoin transactions. Then came the inevitable, terminal collapse.
Now we’ve come full circle and the great-great-grandspawn of Bitcoin is expressing some of its stolen genetic material as predator camouflage. It’s kind of cute, really.
Ah, I missed that you had already posted that reference. Well, our posts are nonfungible, so mine is a uniquely valuable unicorn anyway.
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It would be funny if they sold NFTs that linked to something on an official MTG server and the company responded by just moving that content to a new URL, rendering the NFT (somehow even more) worthless.
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Tell the judge it stands for Marjorie Taylor Greene
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It does make sense that a bunch of Magic players would decide that artificial scarcity is a good thing, as that’s pretty much the whole business idea behind MtG in the first place. They basically tacked a game onto trading cards.
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Anyone can come up with a game based on trading cards and artificial scarcity. The real genius part is changing the rules so thoroughly every couple of years that everyone has to buy a bunch of new cards because their current cards are now useless.
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what happens if you change the technioology in question. What if instead of NFTs the guys were trying to set up a game not in person but using a live stream and the game play involved them showing the physical cards they had to a webcam so the other players could see it. N.b.: i have no idea how MTG gameplay works. But whatever. if you had four players, three of them would not be seeing the actual card. they would be seeing a digital representation of that card mediated by a new technology that was not envisaged by WOTC and was probably not in the TOS from the 90s before the whole internet thing. Would this too be a violation of Copyright? if the system using the NFTs was for a single tournament, even one that involved money (i remember my parents paying a dungeon master when I was a kid as cheap babysitting; was that copyright infringement?) would that be a violation or simply using new technology in a way that is consistent with the original game? is it copyright infringement to play music during a nickel ante poker game with friends? what abbout if the poker game is online? seems like a smart contract and NFTs is a fine if still clunky way to run a game.
Whether or not it’s legal is one issue, but the bigger one I can see is that it’s stupid. You’d have to buy tokens to make NFTs for cards you own? And the benefit of this is that they’ll hold exclusive tournaments for people who paid for their cards twice in this way? Who would want that?
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Generally speaking, trademark and copyright law are designed to protect IP in order to only allow the owners to profit. Anytime someone attempts to make money off some else’s IP, the copyright and trademark law violations begin. Anyone attempting to make money off someone else’s IP should find and hire a lawyer who specializes in IP law. Why? Because it’s a damned complicated area of the law, even more complicated than others. The woman who wrote that email for WotC is an a attorney specializing in IP law. I sincerely doubt what she said is wrong or even misleading.
Actually, she is isn’t referencing personal use. Making copies for personal use is fine. What she’s getting at is making copies for distribution. Which is totally illegal, even if a person doesn’t profit.
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The legal definition of fair use isn’t precise, and whether something is or isn’t often depends on the context and intent. Using zoom or video chat to play MTG or have a socially-distanced tournament is almost certainly fine, because the ‘copies’ are temporary, valueless, and only exist to facilitate the use the cards were intended for at a distance.
For-profit streaming, where someone plays MTG on twitch or unboxes cards on youtube, is a more grey area. Technically it’s “performing for donations”, and WotC could certainly shut down or sue on copyright grounds, but it would be up to the court whether the performance was transformative enough to be considered fair use. Most companies that rely on sales to a fanbase understand that shutting down all the free promotion would be counter-productive, though they will take action on things they think may damage their brand.
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