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

[pemerton]

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).

The clause reads "You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License."

So as you say, you would have to have had sufficient rights (presumably, in most cases they would be copyright rights, but I guess might also include patent rights or trademark rights) at the time of distributing the OGC under the OGL. (But see further below.)

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.

OK - makes sense now.

It also made me ask a further question - if OGC becomes public domain at a later date, what are the consequences? If I try to distribute such content under the OGL, then I am engaging in a misrepresentation, as I am representing that I have sufficient rights to bind subsequent users to the OGL, which I in fact do not.

But what would be the remedy for someone suing on that misrepresentation? Perhaps they could get damages for the cost of including the OGL in their own subsequent publications that use the OGC.

And a second question: If I allowed my own OGC to become public domain, would I be breaching my licence obligations to anyone? And if so, what would be the remedy?

 

[pemerton]

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.

I'm not sure what you mean by "the other way around". If B produces Z, which is derivate of work X produced by A, A's continue distribution of X certainly does not infringe on B's copyright in Z!

I quoted the relevant provisions of the statute above. It seems to me to pretty clearly state that (in my scenario) B acquires copyright only in respect of the material that she has contributed to Z, and does not disturb A's copyright in X. The relevant question for someone wanting to distribute an unlicensed version of 4e with the serial numbers filed off is this: in so doing, would s/he be infringing WoTC's copyright in respect of the pre-existing material?

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".

I think you might be being a little optimistic. The key sentence in the judgement you cite is this: "Upon examination the matters embraced in Rule 1 are so straightforward and simple that we find this limiting principle to be applicable." Is this really going to be true of 4e?

And in any event, whatever the copyright situation, there still remains the issue of passing off.

 

[Iku Rex]

(Still NAL.)

I'm not sure what you mean by "the other way around".

Let me rephrase. You may have made a so-called unauthorized derivative work if you've infringed on someone else's copyright. You can't infringe on copyright because you've made an unauthorized derivative work.

First infringement must be proven, then any special "derivative work" issues can be resolved.

Is that clearer?

I quoted the relevant provisions of the statute above. It seems to me to pretty clearly state that (in my scenario) B acquires copyright only in respect of the material that she has contributed to Z, and does not disturb A's copyright in X. The relevant question for someone wanting to distribute an unlicensed version of 4e with the serial numbers filed off is this: in so doing, would s/he be infringing WoTC's copyright in respect of the pre-existing material?

Yes, that is the relevant question and the law on "derivative works" has nothing to do with the answer being "yes" or "no".

I think you might be being a little optimistic. The key sentence in the judgement you cite is this: "Upon examination the matters embraced in Rule 1 are so straightforward and simple that we find this limiting principle to be applicable." Is this really going to be true of 4e?

The explanation in the ruling is that when "the topic necessarily requires, if not only one form of expression, at best only a limited number, ... ... it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression."

I can't think of many, if any, RPG rules that can be clearly and correctly expressed in an unlimited number of ways without sounding "substantially similar" to the original. (Again, verbatim copying is not required for copyright infringement.)

Can you give an example of such a rule from the (current) SRD?

(Maybe the alignment rules?)

And in any event, whatever the copyright situation, there still remains the issue of passing off.

That sounds like trademark law. (?) Shouldn't be a problem with some clear disclaimers.

 

[Fifth Element]

In any case, there's no point in freaking out about anything now because we still don't know the terms of the GSL.

Is he new to the internet?

 

[SteveC]

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.)

It sounds like we are mostly on the same page here. The question of how much to pay for an online reference is a good one. I am more than willing to pay for a reference like you have at d20srd.org, but that is an exceptional site: everything is html, it's easily searchable and I can download it if I want. For me to pay for something, it would have to be at least that good.

If I can pay $1-2 to get downloadable PDFs of products I purchase from WotC I'd consider doing so, because I assume they'll make quality products that are indexed, searchable and portable. If it's significantly more than that, and if the quality is lower, I'm not really interested.

If WotC makes an attempt to stamp out fan created sites with SRD-like material, all they will do is put it on the local gaming group level and take it to P2P. That would be a shame.

I suppose we'll go back to much more of a black market for that sort of thing if the end result isn't palatable to much of the market, which will be exactly what WotC doesn't want.

--Steve

 

[JVisgaitis]

Adventures are hard to make money on, that's why WotC avoided them and why 3rd party publishers evolved out of the adventure niche market.

You think? Tell that to Goodman Games.

 

[Ourph]

It also made me ask a further question - if OGC becomes public domain at a later date, what are the consequences? If I try to distribute such content under the OGL, then I am engaging in a misrepresentation, as I am representing that I have sufficient rights to bind subsequent users to the OGL, which I in fact do not.

But what would be the remedy for someone suing on that misrepresentation? Perhaps they could get damages for the cost of including the OGL in their own subsequent publications that use the OGC.

Well, IANAL, but my understanding is this... Once you were made aware of the mistake, you would have 30 days to correct it (probably by changing the relevant section of the OGL in the product and making some sort of public announcement). But note, that this would only apply if you were to redistribute the material pretty much verbatim. If you made a derivative work of public domain material and "added art" as defined by the license it would still be appropriate to label that material OGC if you wanted it to be OGC. I suppose if someone felt they had suffered a financial loss due to your mistake they might get damages, but that would be up to a court, it's not something that is really covered by the license.

And a second question: If I allowed my own OGC to become public domain, would I be breaching my licence obligations to anyone? And if so, what would be the remedy?

As far as I can tell, your only responsibility in that instance would be to not list that particular material as OGC in any subsequent products or new print runs of the old product. If you were aware of others using that material in their products, I suspect you would bear some responsibility for informing them of the change in status. Ultimately, though, the person distributing a work under the license is responsible for making sure OGC and PI are attributed correctly in their product. So if the status changed and you made some effort to make knowledge of that change available, the responsibility would fall on the people using your OGC (now public domain) material rather than on you to attribute it correctly.

 

[pemerton]

(Still NAL.)

As I said above, I am not an IP lawyer. In the interests of disclosure, I should make it clear that I am an academic lawyer.

You may have made a so-called unauthorized derivative work if you've infringed on someone else's copyright. You can't infringe on copyright because you've made an unauthorized derivative work.

First infringement must be proven, then any special "derivative work" issues can be resolved.

Is that clearer?

I'm still not really following. The statutory definition of "derivative work" does not make any reference to infringement or non-infringement (that I noticed), so I can work out whether or not a work is a derivative one without working out whether or not it infringes. And I would have thought that part of what might be involved in proving infringement, where a work is a derivative one, would be proving that certain parts of the work are not the author's own contribution, but are in fact material protected by the copyright of the other author, whose work the derivative work derives from.

(Yes, that is the relevant question and the law on "derivative works" has nothing to do with the answer being "yes" or "no".

I don't agree with this, just on my reading of the statute. The law on "derivative works" tells me where copyright in the derivative work comes to an end (namely, the author's own contribution, and not the pre-existing material) and on its face that strikes me as relevant to working out whether or not the derivative work is an infringing one.

Maybe your point is simply that (as a matter of law) there is nothing special about derivative works that makes them more or less likely to infringe than any other work. That is true. But as a matter of practice, I would think that many of the features of a work that make it a derivative one (eg adapting an earlier work) are also likely to be features that are problematic from the point of view of copyright infringement (eg distributing what is, in effect, someone else's material). Hence the reason, I imagine, that many translations and adaptations are licensed.

The explanation in the ruling is that when "the topic necessarily requires, if not only one form of expression, at best only a limited number, ... ... it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression."

I can't think of many, if any, RPG rules that can be clearly and correctly expressed in an unlimited number of ways without sounding "substantially similar" to the original. (Again, verbatim copying is not required for copyright infringement.)

Can you give an example of such a rule from the (current) SRD?

There are so many issues here I'm not sure where to start! Let's look at Weapon Focus:
that feat description says something along the lines of "you receive a +1 to hit bonus". It therefore, by implication, brings in the rule about to hit bonuses. This rule, again by implication, brings in the rule about BAB, about AC, about rolling d20s to hit, etc.

Now, we cannot treat a statement from a case as if it were a statute - but ignoring that caution, let's look at the passage and ask, What is meant by "the topic"? If "the topic" of Weapon Focus is in fact all the rules I've mentioned above, then I'm not at all persuaded that there are a necessarily limited number of ways to express it.

RPG rules are nothing like the lottery-type instructions that the case was actually concerned on - they are complex, detailed, integrated rulesets that fill volumes tens or hundreds of pages long. Without hearing the opinion of an IP lawyer on the matter, the finding in that case is not one I would want to try and run with very far away from its facts - especially when you consider the degree of hesitation that seems to accompany the reasoning and the conclusion.

That sounds like trademark law. (?)

Yes, I think so. But trading on someone else's good will would also be involved, I think.

Shouldn't be a problem with some clear disclaimers.

Again, I want to hear what an IP lawyer thinks (Mistwell, are you out there?). A version of 4e with the serial numbers filed off would seem to me to be trading almost exclusively on WoTC's goodwill, which might be a problem. It would be quite different from (for example) the old Mayfair Games supplements for D&D, which actually did something different from any AD&D book publishsed by TSR, and lived or died on their own reputation (and that of Mayfair Games).

 

[pemerton]

Well, IANAL, but my understanding is this... Once you were made aware of the mistake, you would have 30 days to correct it (probably by changing the relevant section of the OGL in the product and making some sort of public announcement).

<snip>

I suppose if someone felt they had suffered a financial loss due to your mistake they might get damages, but that would be up to a court, it's not something that is really covered by the license.

I don't think the 30 days under clause 13 would have any application in this situation.

The licence comes into force by way of clauses 3 and 4. So if I distribute what I represent as OGC, but is in fact public domain, what happens when person X tries to use that pseudo-OGC?

Under clause 3, X accepts my offer (which I have made by distributing my stuff and labelling it as OGC within the meaning of the OGL).

Under clause 4, X gives consideration by agreeing to abide by the terms of the OGL, and I give consideration by granting them a licence. Except I can't do any such thing, as the material is in fact public domain. Therefore no contract arises, and the terms of the OGL become irrelevant.

Whatever rights X has against me do not arise under the OGL. They arise out of the general law of misrepresentation (which I imagine is overwhelmingly statutory in most parts of the US). I was envisaging that X might get damages against me for the cost of including a page in their book citing the OGL, when they didn't need to (thus, my misrepresentation cost them printing costs they need not have incurred).

As far as I can tell, your only responsibility in that instance would be to not list that particular material as OGC in any subsequent products or new print runs of the old product.

<snip>

Ultimately, though, the person distributing a work under the license is responsible for making sure OGC and PI are attributed correctly in their product.

What intrigued me about this case was that, if the OGC becomes public domain, then future distributors who put it out under the OGL would lack the capacity to grant the rights necessary to bring the OGL into force in respect of them and other users. But I think you're probably right that it's their lookout, and not the responsibility of the initial author of the OGC.

 

[Maggan]

You think? Tell that to Goodman Games.

"Hard" does not equal "impossible".


Just because Goodman Games makes money from adventures, doesn't mean that doing so is not hard to do. It just means that Goodman is a good man when it comes to running an adventure publishing business.

Or I might be mistaken, and Goodman Games is laughing all the way to the bank, since everyone else in the industry is missing out on such a sweet and easy deal.

/M