D&D 4E Interesting Article on OGL and 4E

My thoughts on it:

I generally agree with what Pramas is saying. WotC set up the whole OGL and d20 thing to help them sell D&D product. They largely expected the third parties to do stuff like modules or "plug-and-play" type stuff that had material that DMs or players could just drop into a campaign here or there. Maybe they felt there was an unofficial agreement to this or something.

But the third parties made stuff like splatbooks, which directly competed with WotC's splats. I can imagine people at WotC getting irritated with third parties releasing their own splats earlier and cutting into sales.

Some third parties also did campaign settings, which also cut into WotC's overall plan. They'd already determined that too many settings in 2e was fragmenting their base. Third party settings in 3e probably wasn't helpful either.

Finally, WotC's intent was to promote the D&D/d20 rules. The whole idea was that the RPG market was simply too small to supports too many different rule sets. That's undermined by systems using the OGL that aren't entirely d20, since they're creating new systems.

I'm largely generalizing too, I'm not saying that the third parties are the bad guys, or that they just make crap. I'm unfamiliar with their work. Some of it is praised as good, and I'll assume that praise is deserved. My point is that the OGL sounded good, but didn't work the way it was intended. I can't really blame WotC for trying a new approach with it that will allow third parties to support D&D without prohibitive licencing fees but also not hurt WotC's profits.

Also, for those of you who are saying how sinister WotC's action are with this, I'm reminded of the things that were said 8 years ago when the OGL was first announced. A lot of people thought all WotC was doing was trying to destroy other systems in favor of d20 so they could utterly dominate the market.

Ourph said:

I think you may have misunderstood what I was trying to say above. I'm not understanding how this affects the issue of OGC works derived from another party's OGC.

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I may have misunderstood what it is that you're interested in. But I'll try and restate my points - which may or may not be relevant to your concern!

1) If I want to publish OGC works that derive from another party's OGC, one way to do so is via the OGL. It may not be the only way. For example, if another party's OGC is in the public domain (perhaps because they have waived copyright, or copyright has expired, or the material is, for whatever reason, not copyrightable) then you could publish that OGC, or indeed your own OGC that derived from it, without needing the OGL to license such publication.

2) If I want to publish under the GSL, it seems (from what Pramas is saying) that I may be prohibited from simultaneously publishing OGC. Now, it seems that some people on this thread have interpreted that to mean prohibited from simultaneously relying, in the same work, for authority to publish arising under the OGL. But it seems more likely, to me, that if WoTC wanted to achieve the goal identified by Prams, then they would simply include in the GSL a clause along the lines of "No work published under this licence may include any content which has previously been published under the OGL, and/or distributed as OGC."

As I said, I'm unsure now whether or not these thoughts are relevant to your concerns.

But if I am correct about (2), then the suggestion that ToH would be immune because Necromancer does not need to rely on the OGL to republish its own OGC would be mistaken.

pemerton said:

Are you an IP lawyer? If so, I'll defer to your professional judgement, but would like to hear more about your reasons for the above assertions.

My intuition, in response to your post, is that you may be underestimating both (i) what counts as "derivative" content, for the purposes of copyright law, and (ii) what might count as "passing off", for the purposes of tort law as it pertains to enaging in trade.

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I'm not an IP lawyer, so of course take what I said with a (very large) grain of salt. That said, I'm basing what I said on the current law as stated by the U.S. Copyright Office:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

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Given that, and the understanding that common terms are not copyright (e.g. "minotaur" is not copyright), I think my previous statement is accurate. I'm not speaking regarding "derivative" materials nor "passing off" anything. Making a compatible system, so long as it doesn't use the same expression of that system, is perfectly legal. And that's not even taking the OGL into account. (A good example of this can be found in The Player's Companion, from Technomancer Press. It's a 3.5E-compatible book (with crunch) that doesn't use the OGL at all.)

Alzrius said:

I'm basing what I said on the current law as stated by the U.S. Copyright Office

<snip>

Given that, and the understanding that common terms are not copyright (e.g. "minotaur" is not copyright), I think my previous statement is accurate.

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I think that the notion of "derivative work" might be more expansive than you're allowing for. But maybe not.

Alzrius said:

I'm not speaking regarding "derivative" materials nor "passing off" anything.

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The US statute defines "derivate works" as including "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted" and also "A work consisting of editorial revisions, annotations, elaborations, or other modifica-tions, which, as a whole, represent an original work of authorship." (section 101)

It then states that "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material." (section 103)

If we have an adaptation of pre-existing work (which is what a 4e with serial numbers filed off would be, presumably) then copyright does not extend to the pre-existing material, and does not disturb the copyright in that pre-existing material. I don't know exactly what constitutes the pre-existing material here - how much can one "adapt" a text (say, a feat description), still have the same rules content, and yet not be violating copyright in the "pre-existing material"? Absent an informed legal opinion, I don't think that the answer is obvious.

As to passing off, I'm neither an IP nor a tort lawyer, but my basic understanding is that it's the civil wrong of engaging in trade while parastically drawing on the goodwill and identity of another. Again, even if there is no copyright infringement and no direct use of any of WoTC's trademarks, I would still want solid legal advice in respect of the tort of passing off before I tried to market a version of 4e with the serial numbers filed off.

A free website might be in a different situation - I'm not sure whether, if one is not engaged in trade, one can still commit the tort of passing off. But such a website would still have the copyright issues to worry about.

Alzrius said:

Making a compatible system, so long as it doesn't use the same expression of that system, is perfectly legal.

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Perhaps, subject to my worries about passing off. But distributing 4e with the serial numbers filed off wouldn't just be putting out a compatible system. You'd be (in effect) reproducing WoTC's work.

Alzrius said:

And that's not even taking the OGL into account.

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The OGL probably won't help if you're violating WoTC's copyright in 4e, because it doesn't licence the use of that copyrighted material.

Orius said:

My point is that the OGL sounded good, but didn't work the way it was intended.

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I really wish the "didn't work the way they intended" crowd would go back and read many of the postings, FAQs, etc, made by the people behind the OGL. It worked *exactly* as they intended, with the possible exception of the D20 logo turning out to have no value. (And that's mostly the fault of WOTC marketing, not the OGL)

I'd say, overall, the OGL worked perfectly. The STL failed. And what is WOTC doing now? Dumping the OGL and using what amounts to a revised STL. Yeah. That makes sense.

pemerton said:

"No work published under this licence may include any content which has previously been published under the OGL, and/or distributed as OGC."
...
But if I am correct about (2), then the suggestion that ToH would be immune because Necromancer does not need to rely on the OGL to republish its own OGC would be mistaken.

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If that's the case, then Necromancer would indeed be ...out of luck. However, all the 3rd-party publishers are going to look to their 3e catalog for material to convert to 4e - it's already written, so why not? (You know WotC is going to do it.) If WotC locks off that material, I'm not sure anyone would be willing to use the GSL. You'd be throwing your back stock out the window.

Right now I'm cautiously open to the idea of using the GSL myself, but that right there would guarantee I wouldn't.

pemerton said:

1) If I want to publish OGC works that derive from another party's OGC, one way to do so is via the OGL. It may not be the only way. For example, if another party's OGC is in the public domain (perhaps because they have waived copyright, or copyright has expired, or the material is, for whatever reason, not copyrightable) then you could publish that OGC, or indeed your own OGC that derived from it, without needing the OGL to license such publication.

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I think this is where I was disconnecting with what you were saying. My understanding of the OGL is that something cannot be both OGC and public domain at the same time. If a work is public domain, it cannot be designated OGC in an OGL product (because of the "right to contribute" clause, among other things). If something that was originally distributed as OGC becomes public domain then it wouldn't be considered OGC anymore. My earlier comments assumed that when we discuss OGC, we are talking about material that is currently only accessible as OGC and thus requires the OGL for a 3rd party to use.

Thanks for the clarification.

SteveC said:

If there is no real official SRD available, and the one available through the DDI is not accessable offline, I suspect there will be large numbers of unofficial such products cropping up in gaming groups around the country quite soon. This is another inexplicable change, frankly.

Having a freely available SRD for the core rules made countless sales for WotC, both in core products (I know many DMs who use online resources but bring their books to game) and in expansion products (I know many players who don't own the core books, but buy supplemental material). I think many of these decisions, as they appear now, are being made by people who don't understand their market.

As I've said before, there may be an attempt to market 4E to an entirely new group, but I certainly haven't seen it yet. It will doubtless be interesting to see how that progresses.

--Steve

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Sorry, this is a little stream-of-consciousness:

I partly agree with your first point (on the creation of unofficial sites with reference material). However, I'm worried that there will be a substantial effort by WotC to prevent any sites that attempt to be comprehensive references.

I agree with the rest. I should say that I'm probably biased, because I've gotten a good value from the online SRD. I should also say that I've purchased nearly every D20 supplement that WotC has produced, so I consider that this is a part of what I'm buying.

That leads to an interesting (IMO) question, which is how much am I willing to pay for an online reference, and do I consider that I should be getting that in the purchase price of the books. That sounds a lot like the PDF, which is OK, but not a wholly effective replacement for cross-indexed web based information. There is also a a question of a subset of the rules being available only as DDI supplements. (I'm not sure about that, but that's what I'm remembering about how this will work.)

What it sounds like I'd want is an extensible "D20 4E Wiki", that would start as a core set of information, available with the purchase of the initial books, and that would have add-ons that I would obtain as I purchased supplements. I'm OK with paying a little extra for that. (So what I'm having the most problem with is being forced to be a DDI member. I'd rather pay up front than have a subscription fee.)

A couple of points (IANAL):

1. Every time RPG copyrights come up people start talking about "derivative works". They're missing the point. A derivative work will contain copyrighted material from another work, but you can't infringe on copyright because you've made an "unauthorized" (if there is such a thing, legally speaking) derivative work. It's the other way around.

2. Another common claim is that you can copy rule mechanics "as long as you rewrite them". In fact, because of the merger doctrine in US copyright law you often don't even need a rewrite. (Case law example: Morrisey v. Procter & Gamble) This is an important point, since copyright infringement doesn't require word-for-word copying, only "substantial similarity".

Rewriting is generally a good idea anyway though, to avoid hidden pitfalls in the text. For example, I vaguely (no cite - it's been years) remember reading about a case where the defendant had copied and sold some sort of self-help [rule] system. He lost (in part) because he'd copied some very basic examples from the original. Those examples were not "ideas" or part of the "system".

Mr. Pramas responds on the whole "Tome of Horrors" thing.

In my essay on the OGL and GSL the other day I said this:

"The thing I'm really interested to find out is whether the GSL will have a clause that forbids its use with the OGL. I think this is entirely possible. It would the mean that you couldn't take previously released OGC and use it in a book released under the GSL. A book like the already announced Tome of Horrors 4th edition would not be possible under this restriction."

From comments here and on EN World, it seems I ought to clarify this statement.

I picked Tome of Horrors as an example for several reasons. First, it's one of the few announced 4E products from third party publishers. More importantly, it's an example of a book that is really going to require the use of the OGL to do right. This is because of the history of the project. Necromancer made a deal with WotC many years ago to update old AD&D monsters that hadn't made it into 3E. Tome of Horrors got those monsters back into the game and opened them up for use by other companies via the OGL.

Many people have asked if companies can take their own copyrighted material and update it to 4E without using the OGL. The answer is that yes, of course, you can do what you like with material you own. The issue with Tome of Horrors is that Necromancer does not own those old D&D monsters. They licensed them from WotC. Now they did also add some of their own monsters and continued to do so in subsequent volumes of the series. So Necro could do a Tome of Horrors that was 4E updates of only their own original monsters and that'd be fine; it just wouldn't have the unique selling point of the original. Now personally I can live without an update of the flumph or the adherer, but they do have their place in the D&D lore.

Should there be a GSL restriction on using the OGL with the new license, the only way those monsters could be done would be for Necro to make a new licensing deal with WotC. I don't see that happening though. The original deal was made with Anthony Valterra, who is long gone from WotC. He made that agreement without really talking to R&D about it, and it was not a popular move at the time. I think it likely that was a one time thing.

In any case, there's no point in freaking out about anything now because we still don't know the terms of the GSL. Hopefully, we'll see it soon and then the speculation can end and the real planning can begin.

From here: http://www.chrispramas.com/