Can you use copyright and the OGL to make a hybrid 3E/4E product?

[Alzrius]

There's been a lot said lately about how several companies (such as Adamant Entertainment, Kenzer Co., and possibly Goodman Games, among others) seem to be using existing copyright law to print 4E-compatible products without actually using the GSL. Likewise, there's a lot of companies staying (in whole or in part) with the OGL.

My question is, if you use the copyright angle to make 4E products, is there any particular reason you couldn't print a book with both 3E stats (under the OGL) and 4E stats (via copyright fair use) in it? I'm not sure how viable such a book would be, but it's an intriguing idea. There doesn't seem to be any particular wording in the OGL that would forbid it. Would it work if only the 3E material was printed under the OGL, or would there be room to include the 4E mechanics also under the OGC declaration?

It's an interesting idea to consider. Imagine a monster book with 3.5 and 4E stats, for example. Or, at the very least, a book that only uses one set of rules and has a conversion file as a web enhancement.

I really hope that's possible.

 

[Foundry of Decay]

I admit that its an intriguing idea. I know I'd be interested as I'm one of those rare weirdos that loves parts of both systems and would still use either.

I can't recall specifically, but I seem to remember something about not being able to have the same line of products under the two different licenses. If you did a book of 'Tumber's Mummies' under 4e, I think it was noted that you couldn't create a 'cross system' 3.5 version of that as well.

Don't take my word for it though. I'm mostly just spitballing from spotty memories of the whole GSL announcement thing. And reading through legal documents is enough to make my head melt.. Hell, I tend to get confused by the instructions for making instant mashed potatoes, and invariably end up with a bucket on my head and my feet in the sink wondering where the steering wheel to this caddy is..

..erm.

Here's hoping it would be possible, though. If anything it might show a good system of converting 3.5 things to 4e and vice versa.

 

[JohnRTroy]

The big problem is that if you are using the copyright does not apply to games, using the OGL weakens your case.

The OGL is a license. By use of the license (assuming you are referencing the SRD), you are tactically admitting through use of the license that WoTC has the copyrights to the game. So it weakens your case to have a dual-stated supplement with 3.5 rules and the OGL and a 4.x ruleset with the claim of "game stats can't be copyrighted".

I could see a judge or lawyer arguing "If that's the case, why did you agree to use the OGL in the first place?".

Same with "reverse engineering" the game. If game stats can't be copyrighted, then trying to create an OGL alternative to 4e doesn't make much sense either. Just argue from the copyright standpoint. (If you're trying to reverse engineer the "fluff", that's a more complex battle and you'll either be violated copyright or have to make your stuff so different it won't serve the purpose).

Plus, I predict WoTC won't care if you go the copyright angle and take care not to cause product confusion, and don't damage the brand. I do think based on the GSL that anybody who actually tries to create an OGL version of D&D 4e ("aka D&D with the serial numbers filed off") will be sued because they probably don't want their product turned into a "generic version" under nobody's control.

The safest bet to me is, if you want dual stats, don't have any license at all. Because that will be safer. If you just want 3.5 stats, use the OGL as it stands and avoid all future editions of D&D compatibility. If you want 4.0, decide if it's worth it to use the GSL--if not, use the copyright argument and take steps to protect yourself.

 

[Wulf Ratbane]

The OGL is a license. By use of the license (assuming you are referencing the SRD), you are tactically admitting through use of the license that WoTC has the copyrights to the game.

No, you are tacitly admitting that WotC has copyrights to copyrighted text, but that you would like to use the copyrighted text, without challenge, as permitted by the license.

I could see a judge or lawyer arguing "If that's the case, why did you agree to use the OGL in the first place?".

"Because the OGL permits me to use the copyrighted description of the game mechanics."

The safest bet to me is, if you want dual stats, don't have any license at all. Because that will be safer.

I agree with that 100%. Since you are already putting yourself in the mindframe to publish the 4e stuff without violating copyright, you might as well do the same thing with the 3e stuff. I would not advise switching gears.

 

[JohnRTroy]

No, you are tacitly admitting that WotC has copyrights to copyrighted text, but that you would like to use the copyrighted text, without challenge, as permitted by the license.

"Because the OGL permits me to use the copyrighted description of the game mechanics."

The first part is still weak in a legal argument, because by using a license and using copyright freedom claims for the other version, it's still sending a mixed message.

And I could see arguments coming back against somebody who did that saying "Wizards has a GSL, the terms expressly forbid using the OGL with the GSL. The new D&D has a completely different ruleset from the old D&D. Aren't you just trying to end-run around the existing restrictions of the license, etc."

The whole point is not to send a mixed message to any mediator, arbitrator, court, or jury, IMO. I'd personally see the copyright argument as being a more sympathetic viewpoint since that appears to be more of somebody exercising their rights under the law, but the using of the license for one version and the copyright argument for the other seems more like somebody trying to get around license restrictions--it would seem a tad hypocritical to me.

 

[Fifth Element]

The first part is still weak in a legal argument, because by using a license and using copyright freedom claims for the other version, it's still sending a mixed message.

I don't think so. The OGL allows you to use WotC's specific language, something that you cannot do if you use the copyright approach. That is, by using the OGL you don't have to express existing mechanics in your own words. You can just use theirs, which you would otherwise be barred from doing.

And I could see arguments coming back against somebody who did that saying "Wizards has a GSL, the terms expressly forbid using the OGL with the GSL. The new D&D has a completely different ruleset from the old D&D. Aren't you just trying to end-run around the existing restrictions of the license, etc."

I don't see how that would be relevant. WotC cannot attempt to enforce license to which you are not a party. I think the GSL is irrelevant if you're taking the copyright approach to 4E material.

The whole point is not to send a mixed message to any mediator, arbitrator, court, or jury, IMO. I'd personally see the copyright argument as being a more sympathetic viewpoint since that appears to be more of somebody exercising their rights under the law, but the using of the license for one version and the copyright argument for the other seems more like somebody trying to get around license restrictions--it would seem a tad hypocritical to me.

I don't see that at all. Just because I choose to use one license doesn't mean I'm bound to use another, or to give up rights that are not covered by the existing license.

Don't get me wrong, the copyright approach is frought with perils and one who wishes to undertake it needs some good solid legal advice before proceeding. But I really don't see how choosing to use one license can affect your rights not to use another.

 

[Alzrius]

I don't see that at all. Just because I choose to use one license doesn't mean I'm bound to use another, or to give up rights that are not covered by the existing license.

Don't get me wrong, the copyright approach is frought with perils and one who wishes to undertake it needs some good solid legal advice before proceeding. But I really don't see how choosing to use one license can affect your rights not to use another.

That's what my original post was in regards to. Going the "copyright route" for 4E presents its own legal landmines, yes, but using the OGL in addition to that doesn't seem to add any legal troubles. I don't think that using the OGL for some parts of the book somehow makes you look "guilty of trying to do an end run" around the GSL - that idea does seem irrelevant. You can use the OGL for certain parts of the book, and fair use of copyright for another. It's that simple (which is to say, it's not simple at all, but it is a straightforward idea).

 

[JohnRTroy]

I don't think that using the OGL for some parts of the book somehow makes you look "guilty of trying to do an end run" around the GSL - that idea does seem irrelevant. You can use the OGL for certain parts of the book, and fair use of copyright for another.

My only concern would be how WoTC would react. Technically, at least from what I see, going the "You Can't Copyright Game Stats" (YCCGS), if you use that from a pure perspective for the whole product is a bit more defensible.

WoTC could argue that 4e is not part of the OGL, they don't want it associated with the OGL, the 4e game is seperate and released under the GSL, which a pretty reasonable contract from the perspective of the industry standard of content licensing.

Since the OGL is a form of contract (a license is part of property rights), it sort of admits that you agree that WoTC can restrict their product via licensing. It might send a mixed message to anybody making the decisions of guilt or innocence. When I said "end run", it might look from the perspective of contract law looking for a way out of licensing.

If a Lawyer is listening, I'm wondering what they think of this analysis. Do you think it's better for somebody creating a product with both 3e and 4e stats to use the YCCGS alone, or with the OGL for 3e items.

 

[Fifth Element]

Since the OGL is a form of contract (a license is part of property rights), it sort of admits that you agree that WoTC can restrict their product via licensing.

Of course they can restrict their product via licensing. You couldn't cut and paste the SRD, for example, without using the OGL because they own the copyright on the specific wording used in the SRD. The OGL isn't just about game mechanics, it's about specific descriptions of game mechanics, which normally you would not be allowed to use.

 

[Brown Jenkin]

WoTC could argue that 4e is not part of the OGL, they don't want it associated with the OGL, the 4e game is seperate and released under the GSL, which a pretty reasonable contract from the perspective of the industry standard of content licensing.

I don't agree that the GSL is "a pretty reasonable contract from the perspective of the industry standard of content licensing." I find it hard to believe that in industry standard that the licensing party can revoke the license and insist on destroying all inventory whenever they want. An industry contract is much more likely to involve an exchange of money and a set timeframe which cannot be revoked without without a violation occuring in the existing contract and any changes requiring both parties to agree to the changes.