WotC Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

[Morrus]

And one thing I noticed is the part of PI, stating "....designs,...formats...., ...and graphic, ...and other (highlighted by me) visual...representations". So even if Fyrlock would (highlighted by me) enclose the OGL, it would be an infringement of copyright ( I think), since he didn´t enclose any license at all. And even if he would, would the publications of his stat blocks be legal or still be infringing copyright rules? I highly doubt it (personally spoken here)

He's not using the OGL, as you noted, so the terms of the OGL have no application here. However, if he was, he - like all of us OGL publishers - would not be able to copy D&D's trade dress. We have to develop our own stat block appearance. By this, we're talking the font, those fade-out red lines, and so on. It's not an arduous restriction by any means. He also hasn't done that, so even if he were using the OGL, it wouldn't be relevant here.

 

[Deleted member 7015506]

Thanks again Morrus for responding to my post. So the whole thing (for me) boils down to a) WotC says (probably) his "design" is too close to the original = copyright infringement 1, b) Not enclosing any license covering his work = copyright infringement 2 and c) stamping his own copyright tag on the work without any valid basis (personally spoken) = copyright infringement 3.

I really await Fyrlocks other comments covering the OGL and the other mentioned subjects. I may not fully understand everything, but it will be interesting to see how this whole affair is moving along.

 

[MoonSong]

b) Fyrlock did put a own copyright sign/tag for his stat blocks on the published stat blocks, which
implies in my personal view, that he made them up from scratch (at least, that is how I
understand copyright) and thereby infringing/violating copyright laws, since the original stat
blocks were the basis for his own and not his own generic work

There is this thing in copyright law that derivative works -which his statblocks are- are themselves copyrightable in as much as they are original and novel. So even though they could be infringing WotCs copyrights these infringing works are themselves copyrightable as a whole. Think Disney and fairytales. Tales like Aladin are in the public domain, yet Disney owns the specific elements in their adaptations. If I translated the Lord of the Rings to say Mayan, I'd own that translation even if it was unauthorized and I'd get to sign it.

2) If I got things right, then game mechanics and rules in general cannot be copyrighted in any way, no matter what they are, except for content that is considered Product Identity. So integrating monsters like the Mind Flayer, Beholder, Slaad and Kuo-Toa for example is an infringement of copyright, since they are Product Identity of the publishing company (in this case WotC). So my questions are:

These monsters are trademarks, and protected as such. Even if Steamboat Willie is public domain now, only Disney has the trademark rights to do anything commercial with Mickey

a) Why can something be considered/treated as PI, which falls under the copyright rules and
underlying mechanics on the other side can not be copyrighted. As I personally see it, both are
creative (= unique?) works, that are not less subject for copyright protection than a fiction novel
for example.

Copyright can only be attached to expressions of ideas in as much as they are creative.

b) Wouldn´t the original ruleset already be considered unique (= creative), since perhaps not
their different parts but the whole set/combination of them make for a unique product falling
under the copyright law? Personally spoken, if somebody talks about AC, HD and Saving
Throws, I immediately think of D&D. Therefore that is a kind of PI (at least in my opinion).

Rules themselves are ideas. You can copyright a rule book, but not the rules themselves. Some ideas however can be patented, but there is a higher standard there. (Unless we talk about software, patent offices are too lazy to actually check it)

3) Is the visual presentation of game mechanics/content copyrightable or not? If the answer is yes (which I think is here the case, since the creativity behind this presentation process is unique), then a similar (albeit modified version) presentation might lead to confusion about the origin of the product in question. And this might lead unwary people to the assumption, that the product in question published by Frylock is 100% genuine and not the work of WotC in any way. In how far those modifications to the original stat block is sufficient to make it unique (= no infringement of copyright laws) would be interesting to see.

Origin of something is covered under Trademark law. Visual things are copyrightable, but then you own the picture not the idea behind the picture. Trade dress -design elements that identify a source- is also subject to trademark law I think. Frylock's point is that no statblock by itself is copyrightable, just like a phone directory isn't -in juridictions without sweat of the brow doctrine-

5) If a license is published/made public it can be revoked, right? Why is the OGL considered unrevokable? As I understand it, the OGL is only viable in connection with the SRD, which results in the OSR/retro clone products being possible to be published (as long as you don´t violate mentioned PI). So if somebody violates a license in such an open and (IMHO) aggressive way (as is perhaps this case here), couldn´t that lead to the mentioned revoking of the OGL as mentioned by others, since WotC might see a possible threat to their products as a whole? Or is this unrevokable aspect based within the text of the OGL itself by not stating a kind of expiration date or procedure for revoking it in case the license publisher wishes to do so?

It depends on jurisdiction. Under my country's laws I wouldn't be able to create something like it. But part of the point of Frylock is that you don't need an OGL to begin with because everybody has rights that are beyond it and WotC loses nothing from it, as it allows them to have some control on the way derivatives are made out of D&D.

BTW for me the statement, that the OGL is nonsense/non-valid (no quotation here), is a very drastic statement.

In certain way it isn't that is invalid. It can be said that it is an overreach and a way to have people give up rights they don't know they have. But at least is a promise that you won't be sued for using it.

6) If Frylock wouldn´t have placed his own copyright tag under the product in question and added an approbate license (OGL or 5E, whatever would be approbate here), then as I understand it, the whole affair would not have happened. So my stupid question is here: Why pose something as your own and make a big wind about it when notified about it, when there are possibilities to avoid that and still publish your work? To prove that everything in the gaming industry can be copied for free except for graphics and exact wording perhaps?

Basically this. It could be well the case. However notice that this doesn't apply to storylines, characters and adventures. Just to rules.

 

[pemerton]

Your view... is not supported by the text of the license, nor the intent of its architect:

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners."
- Ryan Dancey, On the Goals of the OGL

Section 9 of the license clearly states that, should WotC change the license, you are authorized to use the work under ANY PREVIOUSLY AUTHORIZED VERSION of the licence. So, once the game is released with the license attached, that version of the licence cannot be removed from use with that content.

Unless you think Mr. Dancey was incompetent, and the license text doesn't mean what he, and loads of others since, have said about it, then I'm sorry, but you are simply incorrect. Once a game has been issued under the OGL, that license applies to that release in perpetuity.

I'm not a lawyer, but I think what makes the OGL effectively irrevocable is this:
"9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."

So, since the SRD was originally distributed under the OGL 1.0a, anyone can use the OGL 1.0a (or any revision to it Wizards might offer) to keep distributing or make stuff based on it.

Gratiutious promises generally aren't binding in common law legal systems. That clause only binds WotC if it becomes a party to a contract, which only occurs when someone takes up the offer.

Ryan Dancey was not incompetent. But there is no simple way in common law legal systems to unilaterally make a standing offer to all the world that is not capable of subsequent retraction.

 

[pemerton]

"4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

13 Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

It defines the "Consideration" (what you pay) as the act of agreeing to use the license. I don't know if that technically can constutute consideration, but one of the lawyers here can speak to that better than I. But if so, the license is perpetual; it can't be taken back. If I license "EN World" to you perpetually for a dollar, I can't change my mind later if you've paid me the dollar; you have those licensed rights perpetually. The question people might raise here is whether agreeing to a license counts as having 'paid' (consideration), as something of value needs to be exchanged.

The consideration given is the promise to WotC (or subsequent licensor) make an offer to the rest of the world, on a standing basis, to enter into an OGL-terms agreement with them for the use of the OGC that you have published. I'll defer to @S'mon's judgement if it contradicts mine, but to my mind that is good consideration.

Whether that makes the licence truly perpetual I'm not sure - for instance, some of the rights that are purportedly licensed (eg some IP rights) lapse pursuant to statutory rules; and in other areas the common law eschews perpetuities. Again this is a topic on which I would defer to @S'mon's judgement.

But I think it is important in these discussions (and I believe that you @Morrus are well aware of this) to distinguish between a licence that obtains between WotC (or other publisher) and a particular licensee and a standing offer to enter into such a licence. The latter is not perpetual and can be retracted by WotC if it changes its mind (given that it is a unilateral and not a contractual promise). But often when people talk about the SRD being released under the OGL they don't distinguish between those two things.

(The distinction is drawn in clause 4 of the OGL that you quoted.)

 

[pemerton]

So the whole thing (for me) boils down to a) WotC says (probably) his "design" is too close to the original = copyright infringement 1, b) Not enclosing any license covering his work = copyright infringement 2

This is a bit confused.

Frylock has not entered into a licence agreement (neither the OGL nor any other licence) with WotC. Hence they have not conferred permission on him to use their copyrighted material. Hence if he is using that material he is infringing WotC's copyright. This has nothing to do with what WotC says - it is a question about the actual relationship (of copying, similiarity, etc) betwen his work and WotC's work.

stamping his own copyright tag on the work without any valid basis (personally spoken) = copyright infringement 3.

This is not a copyright infringement. It is an assertion of his own IP rights in rerspect of his own work. That's all.

 

[pemerton]

These monsters are trademarks

A trademark is a certain sort of sign used in the course of trade. Mind flayer, beholder, yuan-ti etc are not trademarks - they are not signs used in the course of trade. (Though Ilithiad - I hope I've got that right - would be a trademark.)

But I would think that those names are components of copyrighted works.

 

[MoonSong]

A trademark is a certain sort of sign used in the course of trade. Mind flayer, beholder, yuan-ti etc are not trademarks - they are not signs used in the course of trade. (Though Ilithiad - I hope I've got that right - would be a trademark.)

But I would think that those names are components of copyrighted works.

Wait, they aren't trademarked? (jus checked the monster manual, nothing there related to mindflayers and Illithids) I would have sworn WotC had a trademark on them.

 

[Lanefan]

Again, the OGL itself addresses this in its own text.

"4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

13 Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

It defines the "Consideration" (what you pay) as the act of agreeing to use the license. I don't know if that technically can constutute consideration, but one of the lawyers here can speak to that better than I. But if so, the license is perpetual; it can't be taken back. If I license "EN World" to you perpetually for a dollar, I can't change my mind later if you've paid me the dollar; you have those licensed rights perpetually. The question people might raise here is whether agreeing to a license counts as having 'paid' (consideration), as something of value needs to be exchanged.

For agreements already entered into, this is all fine.

But what would happen if, hypothetically, WotC were to issue a release to the effect of "As of 12:01 a.m. Pacific Daylight Time on August 19 2019* the OGL is withdrawn in all forms and thenceforth becomes null and void; along with all permissions, rights, and obligations thus granted." It's locked in for anything released up until that point due to its own perpetuity clauses, but anything released after that cutoff is hooped - right?

* - author's note: this would be about 5 hours from now as I type this.

Put another way, I don't think WotC have locked themselves into offering the OGL forever.

Sane with your ENWorld example: sure you can license it to someone for a dollar, or to anyone who pays you a dollar within a specified timeframe, but doing so doesn't then force you to forever make the same offer to everyone who asks - you can end the offer at any time (in your actual example, it would end as soon as the person you offered it to paid you a dollar and agreed to it, or declined outright).

I bring this up because in reading the thread I wonder if some people are confusing that while the license works in perpetuity for any products that (currently) have it or had it, that doesn't mean the license itself will be offered in perpetuity in the future to anyone who wants to use it.

 

[Deleted member 7015506]

@MoonSong

My remark was too general. I know, that in the case of D&D for example characters from their settings (DL, GH, FR, etc.) and similar related things can´t be copied without permission by the right holders. So sorry for evoking the emotion, that his probable intention is to have everything on a free not copyright protected basis. But as I perceive the american legal system, the whole affair might create a prime case on which other cases might be based, if Frylock wins a probable court case, resulting perhaps in a dam break concerning copyrights in the gaming industry.

@pemerton

I agree with your statement 100%. The basic line I intended to bring across is, that his work is not published under any cover of any license at all by WotC, making it a copyright infringement (at least for me). And since his work (for me) is based to a large extend (subjective impression here) on the works of others, it is not genuine. So stamping a general copyright tag without any expression on it, what implies (again in my point of view), that the published work is his own work. Now I don´t know in how far you have to explicitly state what is copyrighted of your work when putting the copyright tag on a work. But when done in such a case, I think it is not justified nor legal.

Let me explain: The monster stats are based certainly on a unique/creative design basis. They follow a certain pattern when it comes to determining HP for example. And that pattern is a creative/unique design process, therefore (as I understand it) protected by copyright laws. Simply copying them, bringing them into a new order is probably copyright infringement, since you use this numerical values without permission and no creative alterations were applied beyond the changing of its presentation.

And one basic aspect I think might be important is the question, if stat blocks are falling under the category of being rules. Rules normally state how something is done or not. Now that might apply to the abilities of the monsters turning the stats into rules, but perhaps not. That is for others to decide or determine.