Wow, let me see what I can help clarify here because I think you misread the article:
Tortog wrote:
I should say that I'm not a lawyer either, but I did some more research yesterday though I didn't get a chance to post. I discovered that until this Supreme Court decision, as far as copyright is concerned:
a) books are governed by the copyright laws in place at the time of publishing; unless someone has bought up the rights to the information and re-published more recently. Even then, I think it's only the derived work that has the copyright.
Prior to the 1976 copyright act, copyright had to be actively renewed, and the length of time was different. For our purposes here, that is the only significant change. Works in the public domain then are still in the public domain now, and things copyrighted before 1978 had their copyright extended to 75 years if they were not already in the public domain. Works like the Hobbit and Lord of the Rings have never been out of copyright. New works published by an author after 1978 have a new copyright in line with international treaties of the time: life of the author plus 50 years. The Sonny Bono copyright act in 1998 basically extended these numbers to 95 years (to keep corporations happy) and life of the author plus 70 years (to be in line with new international treaties). For practical purposes, everything published before 1923 is in the public domain (at this moment, the new Supreme Court decision makes a few changes, and music publishing has it's own confusing nightmare of copyright laws that are completely different).
Tortog wrote:
b) everything radically changed in 1976... prior to this year, most books are available for others to use as inspiration for derivative works.
Nope. Derivative works were still derivative works, even back then. If they were unauthorized, you could be sued for them. A famous example is
National Comics Publications vs Fawcett Publications. National felt Captain Marvel was derivative of Superman, and filed suit in 1941. The case was decided in their favor. Sometimes rights holders let things slide they could probably win, other times they win when it's questionable something really is a derivative, but the definition has not significantly changed in the last couple of centuries.
Tortog wrote:
What makes this Supreme court decision so interesting is that they have set the precedent that information that was thought to be public domain is no longer "fixed". Someone could come along years later and pull something out of the public domain even if folks have been using it... and they might be liable for years worth of back-dated royalties.
Um, in some ways. I read it as specifically related to things that were still under copyright in other parts of the world but not here. So if the rights holder is in Germany, where the work is still under copyright, but it was in the public domain here, Congress could pass a law declaring it is still protected by copyright. This does not mean they could take say Dracula out of the public domain and award the book rights to someone.
Tortog wrote:
Where this case intersects with Tolkien's work is with the Silmarillion; it was published by Tolkein's son in 1976 after his fathers death... The problem stems from the fact that the 1976 copyright law wasn't actually ratified and signed into law until 1978.
Nope, this doesn't affect any of Tolkien's works at all. His first published work was in 1936 and never went out of copyright, so it is still protected until 2031 under current law.
Tortog wrote:
As far as I can tell, because the concepts of mithril, elf, dwarf, hobbit, and orc were published before 1976, they are in the public domain, but anything published in the Silmarillion is now off limits without paying for permission.
Those terms, aside from hobbit, are not trademarked and are therefore available for anyone to use. Trademark is different than copyright. You can't copyright a name, but you can trademark it to protect it. They did do this for hobbit, which is why Dungeons and Dragons had to switch from Hobbit in the original white box rules released in 1976 to using the term halfling in 1977 during the 6th printing. They also had to remove the term ent, which is also protected by trademark. The other terms/concepts: elf, dwarf, and orc, were all mythological constructs at least a thousand years old, and can't be trademarked or protected by copyright. In fact, elves were used in the same "modern pop culture version" before Tolkien, in works such as "The King of Elfland's Daughter" by Lord Dunsany. Dwarves have been used consistently in fantasy and folklore for just as long, only were more common and used basically identically to how Tolkien used them. You can look at Snow White and the Seven Dwarfs for an example.
Tortog wrote:
The bottom line is this: I think we're all going to need to be much more careful about where we draw our inspiration from.
Not really, people should be just as careful as before, but this really doesn't change anything that affects fantasy roleplaying games.
The Masons started out as a trade guild trying to protect there technical data, look where they ended up. 
