Question for Scott Rouse re: Retroclones

[Piratecat]

Tell me, Joe, because I'm a little curious; after saying yesterday that someone stealing WotC IP would be "not only hilarious, but sweet sweet karma," why exactly do you expect anyone from WotC to ever respond to you? I don't speak for anyone but myself, but I've got to say, I think that qualifies as burning your bridges.

[joethelawyer]

Originally Posted by Piratecat

Tell me, Joe, because I'm a little curious; after saying yesterday that someone stealing WotC IP would be "not only hilarious, but sweet sweet karma," why exactly do you expect anyone from WotC to ever respond to you? I don't speak for anyone but myself, but I've got to say, I think that qualifies as burning your bridges.

They don't have to like me to respond to posts I make here which others are interested in hearing the answer to. Hell, if the only people here who could respond to my posts were those who liked me or what I said here, I would only get responses from like 2 people and a Mod.

[Ourph]

Originally Posted by joethelawyer

Sometimes stuff like that is a good PR move. If the retroclones are nothing more than a pimple of the ass of the RPG industry, of no real concern to WOTC, with all the bad press they've gotten lately it might be a good play to come out and say it's no big deal, retroclone-publish to your heart's content.

Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.

[Keefe the Thief]

Originally Posted by joethelawyer

They don't have to like me to respond to posts I make here which others are interested in hearing the answer to. Hell, if the only people here who could respond to my posts were those who liked me or what I said here, I would only get responses from like 2 people and a Mod.

But you want them to do something that would be "a good PR move". Don´t you see that - coming from you - this thread looks simply like a setup to eventually be able to say "lol, Wotc don´t care about PR and us fans?"

[Aus_Snow]

Originally Posted by Ourph

Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.

Quite. Not only retroclones themselves, in PDF and print, but supplements, adventures aplenty, and magazines (yes, plural), not to mention blogs, forums, and so on. Lots and lots of product, discussion, visibility. . .

Yep, I'd call it 'pretty clear' as well.

[joethelawyer]

Originally Posted by Keefe the Thief

But you want them to do something that would be "a good PR move". Don´t you see that - coming from you - this thread looks simply like a setup to eventually be able to say "lol, Wotc don´t care about PR and us fans?"

People are saying that anyway, even moreso after the pdf debacle. So if the retroclone movement is inconsequential, and WOTC of showing its acceptance of retroclones by non-action, and yet folks like Clark Peterson of Necro still are reluctant to publish for OSRIC in part because of his opinion of its shaky legal ground, it can't hurt to say Retroclones are fine with WOTC. They can only look good by doing so.

[Remathilis]

Originally Posted by joethelawyer

People are saying that anyway, even moreso after the pdf debacle. So if the retroclone movement is inconsequential, and WOTC of showing its acceptance of retroclones by non-action, and yet folks like Clark Peterson of Necro still are reluctant to publish for OSRIC in part because of his opinion of its shaky legal ground, it can't hurt to say Retroclones are fine with WOTC. They can only look good by doing so.

Perhaps Clark means (and I don't claim to know his mind) that OSRIC is fine as a fan-based community project in which people make back the cost of publishing/printing, but if someone tries to sell OSRIC to Barnes & Noble and make a living off it, WotC will think differently.

Either way, I'll eat my hat if someone from WotC comes through here and says "Retros are fine and dandy, make all you want!" or "Actually, the C&D letters are in the mail, and we're dispensing a virus to replace all copies of Labyrinth Lord on the internet with a link to our Keep on the Shadowfell quickstart."

[Morrus]

[jdrakeh]

Originally Posted by Morrus

Yeah, this. After reaction to other announcements of the past year, I suspect WotC is now smart enough to know that there are simply some people who, no matter what, will never be pleased with any edition of D&D that isn't Their Favorite Edition and, thus, that any time spent trying to woo such people by exercising corporate transparency is time wasted.

[JohnRTroy]

Regarding OSRIC, I can't speak for Clark but I think I can see it like this.

The problem with OSRIC, as opposed to something like, say, C&C, is this.

C&C appears to have been started from the System Reference Document, and then tweaked it so it emulates 1e play without actually being 1e rules--such as adding back level limits, changing the XP rules, etc. There are a lot of compromises involved here. You can clearly see the path they took in developing the game.

OSRIC appears to be using the SRD as the rights to use the licensed trademarks and IP to justify creation of a 100% 1e compatible rule-set. PJ really nailed it. It doesn't look as derived from the existing SRD base, rather an attempt to reverse engineer 1e D&D fuller instead of just making a lot of variant rules for 3e.

From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this. But since WoTC has never opened up this property, they could choose to argue this in the court. Maybe they haven't touched the "retro-clones" because they don't consider it a threat. I have a feeling the first person who releases a non-underground 4e clone and tries to use the OGL SRD to defend it is gonna get stomped.

But I can understand why Orcus and others are wary of the use of OSRIC. I think there are limits to the OGL and what the SRD can be used for.

[Remathilis]

Originally Posted by JohnRTroy

Regarding OSRIC, I can't speak for Clark but I think I can see it like this.

The problem with OSRIC, as opposed to something like, say, C&C, is this.

C&C appears to have been started from the System Reference Document, and then tweaked it so it emulates 1e play without actually being 1e rules--such as adding back level limits, changing the XP rules, etc. There are a lot of compromises involved here. You can clearly see the path they took in developing the game.

OSRIC appears to be using the SRD as the rights to use the licensed trademarks and IP to justify creation of a 100% 1e compatible rule-set. PJ really nailed it. It doesn't look as derived from the existing SRD base, rather an attempt to just make a lot of variant rules for 3e.

From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this. But since WoTC has never opened up this property, they could choose to argue this in the court. Maybe they haven't touched the "retro-clones" because they don't consider it a threat. I have a feeling the first person who releases a non-underground 4e clone and tries to use the OGL SRD to defend it is gonna get stomped.

But I can understand why Orcus and others are wary of the use of OSRIC. I think there are limits to the OGL and what the SRD can be used for.

Agreed, which I think is part of the reason I prefer the "retro-inspired" games like C&C or BFRPG over the "clones" like OSRIC or Labyrinth Lord. The closer you hew to the older rules, the murkier the water gets.

OSRIC might be a good way to get fan-submitted stuff published, but I doubt it could hold up for a "for profit" entity to exist...

[joethelawyer]

Originally Posted by JohnRTroy

Regarding OSRIC, I can't speak for Clark but I think I can see it like this.

The problem with OSRIC, as opposed to something like, say, C&C, is this.

C&C appears to have been started from the System Reference Document, and then tweaked it so it emulates 1e play without actually being 1e rules--such as adding back level limits, changing the XP rules, etc. There are a lot of compromises involved here. You can clearly see the path they took in developing the game.

OSRIC appears to be using the SRD as the rights to use the licensed trademarks and IP to justify creation of a 100% 1e compatible rule-set. PJ really nailed it. It doesn't look as derived from the existing SRD base, rather an attempt to just make a lot of variant rules for 3e.

From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this. But since WoTC has never opened up this property, they could choose to argue this in the court. Maybe they haven't touched the "retro-clones" because they don't consider it a threat. I have a feeling the first person who releases a non-underground 4e clone and tries to use the OGL SRD to defend it is gonna get stomped.

But I can understand why Orcus and others are wary of the use of OSRIC. I think there are limits to the OGL and what the SRD can be used for.

I think you're right JRT. It's in such a gray area that WOTC I think would be within their rights to bring a lawsuit to decide the issue. I'm not saying if they would win or lose on the merits of the suit though, because I have no idea. The thing is, the act of bringing the lawsuit would likely be more than than the publisher could bear fnancially, and it would likely close the publisher down. As for using the OGL to clone 4e, I don't think that is possible. The core components, both in function and name, of 4e are so different than the core of 3.x, that it would be difficult to do so. I think it was a smart business move on WOTC's part to develop 4e like that. It avoids the effects of the OGL or the future editions of the game.

[Philotomy Jurament]

Originally Posted by JohnRTroy

From a legal standpoint, it could appear that they are trying to take a closed property (the 1e/2e game system), and make it open by combining the "no copyright for games" law, with the OGL's viral nature, using the SRD'd version of D&D to justify this. But since WoTC has never opened up this property, they could choose to argue this in the court.

Such a suit would hinge on the identification of the property being infringed. You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely). The most likely place to look for an infringement is in the area of copyright. The game rules, themselves, aren't protected "property," only the unique presentation of those rules. So you're looking for something that isn't derived from OGL-defined Open Game Content and that is clearly a copy of the original rules presentation.

Take the OSRIC rules. Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks). Remove presentation of rules that is open content or derived from open content.

What's left?

[joethelawyer]

Originally Posted by Philotomy Jurament

Such a suit would hinge on the identification of the property being infringed. You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely). The most likely place to look for an infringement is in the area of copyright. The game rules, themselves, aren't protected "property," only the unique presentation of those rules. So you're looking for something that isn't derived from OGL-defined Open Game Content and that is clearly a copy of the original rules presentation.

Take the OSRIC rules. Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks). Remove presentation of rules that is open content or derived from open content.

What's left?

You may be right, you may be wrong. The thing is, you're arguing the case based on the truth. You only get a decision based on the truth if both sides can afford to bring it to court. My point is, I think the very act of bringing a lawsuit will force the publishers to back down and close up shop, meaning anyone who based their business on publishing for these clones are also out of work. If we knew WOTC's position regarding the clones, the old school thing might really pick up steam, if they just came out and said clones are ok. Folks like Clark P. might publish for them. People might invest more than just their spare time into developing material for the clones.

[Melan]

Originally Posted by Ourph

Considering that retroclones have been around for upwards of 3 years now with no legal challenge of any kind (and only a small but vocal minority of competing publishers with obvious conflicts of interest even raising the question), I'd say WotC have already made a pretty clear statement on the subject.

I believe this is the right answer. If there had been a clear case vs. OSRIC when it was released in 2006, it would have been killed in 2006 (and mind you, some people did report it to Wizards specifically to get it killed). Three years later, the probability of action seems slimmer and slimmer, while there has been support from several different publishers (including some very good ones from XRP et al), other simulacrum games have been released, etc. etc.

[thecasualoblivion]

Is this thread after an actual answer or trying to make Scott Rouse look bad by asking a question we all know is unlikely to be answered?

[coyote6]

Originally Posted by joethelawyer

Sometimes stuff like that is a good PR move. If the retroclones are nothing more than a pimple of the ass of the RPG industry, of no real concern to WOTC, with all the bad press they've gotten lately it might be a good play to come out and say it's no big deal, retroclone-publish to your heart's content.

Your initial post came 17 hours ago, after 9pm Pacific time on a Friday night, on Father's Day weekend. Nobody from WotC can answer this for at least another 42-odd hours. Forget whether or not they're inclined to answer; by the time they roll into the office, this thread might not even be seen by The Powers That Can Answer.

If they see it on Monday morning, the thread will likely have mutated into a copyright debate/edition war/other topic leading to thread lock, or just diverged into a discussion of whether those mutant bunnies from Gamma World that turned metal into rubber would be an effective 4e monster.

Timing, sir! Asking questions with the expectation of at least having a chance at getting an actual answer is all about the timing. Have initiative rules taught us nothing?!?

[joethelawyer]

Originally Posted by thecasualoblivion

Is this thread after an actual answer or trying to make Scott Rouse look bad by asking a question we all know is unlikely to be answered?

Why would it be Scott who looked bad? Scott is a guy who gets paid to come here and be the eyes and ears and mouth of WOTC. It's his job. No one should put how they feel about WOTC on Scott. Even if they do, because of misplaced anger (we've all been guilty of it I bet), Scott gets paid to handle it. It's his job

To your other point, just because it is unlikely to be answered means it doesn't need to be asked? What is it with society these days where no one asks tough questions anymore? When did the hunt for truth become an embarrassing thing unless its done within the bounds of proper etiquette and protocol?

I was in lawschool during the OJ Simpson criminal trial. In my third year, Dr. Henry Lee came to speak to the school. He was the big-name forensic science superstar of the OJ trial. Every lawstudent showed up, undergrads, the press, and anyone who was associated with the school (read as Big Donors) also showed up. Lee did a presentation on forensic medicine.

After 45 minutes of boring slides on various crimes and international invstigations, he opened it up to the question and answer session. There was probably 500 people in the room, we were packed like sardines, sitting on the steps in the aisles. People raised their hands and started asking the polite politically correct guaranteed to offend no one questions like "What's your take on the state of the american eductional system today?"

Who gives a crap? Not one person would have been there if it wasn't for Lee testifying in the OJ trial. After 5 ridiculous questions like that, I raised my hand and asked "Do you think OJ killed Nicole Brown?"

Everyone let out nervous laughter. People started moving away from me. People were embarrassed. Even though that's exactly what they all came there to hear. Lee had just been offered 6 million dollars to write a book on that very topic. Everyone was on the edges of their seats, waiting for the answer, as they looked at me out of the corner of their eyes like I had Bubonic Plague.

So he said something polite like "Ah, the 6 million dollar question. I make it a policy never to comment on cases I was involved in beyond what I testified to."

The question I asked here is valid, and important in many people's eyes. It affects the game/hobby we all love to play. It affects the future of certain aspects of the hobby. It's a tough question that requires making people uncomfortable, and requires a company to take a position. So be it. Heck, many of probably own part of this company through your shares in the ever-dwindling 401(k)'s.

Though it may be in "bad form", it's still valid. And I guarantee you if WOTC answers it here definitively, one way or another, it WILL BE talked about and read by thousands. That in itself makes it a valid question.

Feel free to treat me like I am the embarrassing uncle who farts and burps at the formal Thanksgiving dinner, even as you gleefully read the answer to the question, if it comes.

[Ourph]

Originally Posted by Remathilis

OSRIC might be a good way to get fan-submitted stuff published, but I doubt it could hold up for a "for profit" entity to exist...

Umm... what??? No offense, but you seem to be woefully uninformed about the state of the retro-clone publishing scene.

OSRIC products have been available from publishers like Expeditious Retreat Press, Goblinoid Games, Oone Games and Ronin Arts for the last 2-3 years. These are print products, sold for profit and some (like the XRP Advanced Adventures line) sold in book stores and game stores right alongside WotC products. And that's not even counting the publishers involved in making products for other retro-clones like Labyrinth Lord or BFRPG some of which also have retro-clone products in regular distribution channels.

There are plenty of for profit entities publishing retro-clone products and "holding up" just fine. Not a single one has ever had to pull a product or cancel a line because of legal hassles from WotC.

[JohnRTroy]

Originally Posted by Philotomy Jurament

Such a suit would hinge on the identification of the property being infringed. You're looking for a patent infringement (unlikely), or a trademark infringement (unlikely), or an OGL-defined Product Identity infringement (unlikely). The most likely place to look for an infringement is in the area of copyright. The game rules, themselves, aren't protected "property," only the unique presentation of those rules. So you're looking for something that isn't derived from OGL-defined Open Game Content and that is clearly a copy of the original rules presentation.

Take the OSRIC rules. Remove from consideration everything that is unprotected game rule/algorithms that are not protected property (i.e. not covered by copyright or patents or trademarks). Remove presentation of rules that is open content or derived from open content.

What's left?

One other thing to keep in mind too is the nebulous state of the RPG as a "game". Ryan Dancey himself had stated he created the OGL to avoid what he believes is the inevitable future--somebody in the gaming industry makes a successful argument that because an RPG is more book and setting than plain rules (as opposed to a board game), and thus a precedent is set to protect RPG rules under copyright.

There's really not a lot of case law involving RPGs. People are assuming based on a few cases the judge would rule in favor of any defendants. That might not be the case.

It may be a slim risk, but it is risky. Remember, even though WoTC doesn't produce 1st/2ed Edition D&D, they may want to in the future, AND they may also decide to license it, like they did with Hackmaster.

As well as other reasons. A lot of publishers want to cooperate with WoTC, as they know they are playing in the backyard, and would probably not even want to antagonize them, even if they think they could win.