Question for Scott Rouse re: Retroclones

[joethelawyer]

Does WOTC have any official position on the question of whether or not OSRIC, Swords and Wizardry, or Labyrinth Lord violates WOTC's intellectual property rights in any way? How about retroclones in general?

If there is no offical position on this question, is the question still under legal review? Is the question on the legal department's radar at all? Might it be in the future?

In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?

Thx.

[ggroy]

I would be quite surprised if anybody at WotC would officially answer this type of question, short of a subpoena.

[joethelawyer]

Originally Posted by ggroy

I would be quite surprised if anybody at WotC would officially answer this type of question, short of a subpoena.

Even that's an answer of sorts, isn't it? Everybody keeps dancing around the issue. I figured I'd just ask the question many many others want to know the answer to.

[jdrakeh]

Originally Posted by joethelawyer

Even that's an answer of sorts, isn't it? Everybody keeps dancing around the issue. I figured I'd just ask the question many many others want to know the answer to.

I'm sure they do have some kind of official position on the issue, though whether they're willing to openly talk about it is another question altogether.

[Belorin]

Originally Posted by joethelawyer

Does WOTC have any official position on the question of whether or not OSRIC, Swords and Wizardry, or Labyrinth Lord violates WOTC's intellectual property rights in any way? How about retroclones in general?

If there is no offical position on this question, is the question still under legal review? Is the question on the legal department's radar at all? Might it be in the future?

In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?

Aren't these all published under the OGL?

Bel

[Lanefan]

Originally Posted by Belorin

Aren't these all published under the OGL?

Ah, but does the OGL cover pre-3e product, or just the 3e/d20 system?

Lanefan

[Hunter In Darkness]

well many use d20 structures and terms just kinda rearranged to pre 3e rules

[Philotomy Jurament]

Originally Posted by Lanefan

Ah, but does the OGL cover pre-3e product, or just the 3e/d20 system?

The OGL covers the use of "open content." The 3e rules and the d20 system build on top of that, defining some open content (e.g. the SRD). You can use the OGL (and the open content from the SRD) without using the d20 license. Using the OGL, by itself, doesn't wed you the d20 system or 3e at all. (The d20 system license is separate from and much more restrictive than the OGL.)

Given some open content (e.g. stuff from the SRD), the OGL gives you permission to use it (i.e. Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content). Also, the OGL defines "Derivative Material" as "derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted."

The above use of the OGL is what allows games like Mutants & Masterminds, True 20, Pathfinder, Castles & Crusades (which edges towards retro-clone territory), et cetera.

The idea behind the retro-clones is that the OGL gives you permission to use open content terms and descriptions (e.g. classes, spell names, monsters, hit points, armor class, etc) and then edit/modify/extend/abridge/adapt/transform/and format them. The specific form into which the retro-clones modify the open content happens to match the algorithms and such used in other games. Since copyright does not apply to such game formulas and rules (only to their presentation), and the retro clones present the formulas and rules with a combination of original description and open content, no legal rights are infringed. (Subsystems or elements which are deemed to be unique expressions, rather than uncopyrightable algorithms/rules are avoided or changed -- this is why there are minor differences between the originals and the retro-clones, in certain areas.)

That's my understanding, anyway.

[Derulbaskul]

@OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?

What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.

[Belorin]

Originally Posted by Derulbaskul

@OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?

What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.

QFT

Bel

[S'mon]

WoTC Legal are probably not going to say whether they think specific elements in specific clones are copyright infringeing unless they are in the process of sending C&D letters/initiating legal action, because there is no advantage in doing so.

For their stated position, read closely the OGL:

(1) You can see that what they're concerned about is use of trade marks (and trade dress). To comply with the OGL you have to avoid even nominative & descriptive use of their trade marks & trade dress, things that would otherwise be legal.

(2) The OGL has a rectification clause - if WoTC think you're in breach of the contract, they have to send you a notification and give you time to rectify. They can't just sue you right out. This is very powerful and explains the popularity of the OGL, rather than jusy relying on the limitations of copyright law.

(3) The WoTC OGL FAQ explains that WoTC accept that game rules per se are not copyrightable.

From this, you can derive a view that it is very unlikely WoTC would sue Retro-Clone makers who are OGL compliant in terms of not using WoTC trade marks to indicate compatibility. But I think they are not likely to make a "We won't sue" statement because it could impact their ability to sue in edge cases, such as use of the OGL to make & sell 4e materials.

(I teach TM & copyright law in the UK).

[Piratecat]

Originally Posted by Derulbaskul

@OP: You're a lawyer so why are you asking these things in public? And, more particularly, calling out a specific WotC manager to answer?

What if you provoke one of the WotC's lawyers into issuing a policy that the community doesn't like? Some things are simply best left unasked.

Seriously. Bad form.

[joethelawyer]

Originally Posted by Piratecat

Seriously. Bad form.

*shrug* I never really worried much about form.

This was triggered by something Clark said in the other thread regarding his opinion that OSRIC was on shaky ground legally, to paraphrase. Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D? Maybe others would?

[Doug McCrae]

Originally Posted by joethelawyer

Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D?

And if your grandmother was on rollers she'd be a juggernaut.

[Aus_Snow]

Originally Posted by joethelawyer

Maybe if he got a good answer from WOTC he might publish for OSCRIC/AD&D? Maybe others would?

Others have. Goodman Games included, to name but one (relatively) high profile publisher.

And I doubt that WotC was involved at any stage along the way, FWIW. Well, maybe the OGL has been used(?). . . but probably not even that, in the case of Goodman Games' stuff. Regardless, using the OGL wouldn't necessitate talks with, or requests made of, WotC anyhow.

Besides, back to Necromancer Games, I get the impression that the leadership there would much rather support the current incarnation(s) of D&D. In the present day, that is 4e and/or Pathfinder, really. It looks to be more weighted to the latter, but *not* due to initial preference.

[Remathilis]

Originally Posted by Philotomy Jurament

The idea behind the retro-clones is that the OGL gives you permission to use open content terms and descriptions (e.g. classes, spell names, monsters, hit points, armor class, etc) and then edit/modify/extend/abridge/adapt/transform/and format them. The specific form into which the retro-clones modify the open content happens to match the algorithms and such used in other games. Since copyright does not apply to such game formulas and rules (only to their presentation), and the retro clones present the formulas and rules with a combination of original description and open content, no legal rights are infringed. (Subsystems or elements which are deemed to be unique expressions, rather than uncopyrightable algorithms/rules are avoided or changed -- this is why there are minor differences between the originals and the retro-clones, in certain areas.)

You want to know why the GSL was buttoned up tighter than a Victorian-era petticoat? THIS is your answer!

FWIW, a couple-hundred copies of OSRIC or LL sold on Lulu (at little/no profit to the original authors) isn't even the beginning of WotCs headaches. I seriously think (for as much as they do) that Pathfinder of Castles & Crusades are closer competitors than OSRIC is. I just don't think they view them as a problem.

That said, I applaud Mythmere for playing it safe and keeping some of the rules that don't hew too close to the d20 system (psionics for example) out. Ditto with spells/monsters. I think if someone tried to produce Cravenloft (a 6th level module featuring Todd Von Zeroitch) or produced a setting called Dragonfrance, than I think WotC MIGHT get up in arms. But right now, I don't see WotC thinking the Retros are worth the legal fees to draw up the C&D letters.

[Mark]

Originally Posted by joethelawyer

This was triggered by something Clark said in the other thread regarding his opinion that OSRIC was on shaky ground legally, to paraphrase.

Peterson has regular communication with WotC. I doubt he bases his opinions on mere conjecture when he has direct avenues of fact to explore. He could find other ways to state that he was not interested in supporting any single game system without suggesting there it was possibly not legally sound if he did not have a firm basis for dismissing it on those particular grounds.

[Morrus]

Originally Posted by joethelawyer

In other words, are the developers and sellers of the retroclones and those who produce retroclone compatible material ever going to face the threat of legal action from WOTC/Hasbro for violating WOTC's intellectual property rights for what's already been produced as of now?

I think the chances of WotC outlining their legal plans to you on an internet messageboard are somewhat slim....

[joethelawyer]

Originally Posted by Mark

Peterson has regular communication with WotC. I doubt he bases his opinions on mere conjecture when he has direct avenues of fact to explore. He could find other ways to state that he was not interested in supporting any single game system without suggesting there it was possibly not legally sound if he did not have a firm basis for dismissing it on those particular grounds.

Good point.

[joethelawyer]

Originally Posted by Morrus

I think the chances of WotC outlining their legal plans to you on an internet messageboard are somewhat slim....

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.