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

[LordEntrails]

One thing I think people have missed or forgotten (or maybe I'm wrong in assuming I know what his statblocks contain...) with Frylock's stat blocks is that they contain more than just the numerical values for the creatures. From what I read on his site, he originally created them to include content from both the MM and PHB. In effect he wanted a single location for all information on a creature, including spells that they could cast. i.e. not a link or reference to the spell and then needing to go look it up in the PHB.

So, his original intent was to take data from the MM, i.e. numerical values, and combine it with descriptive text from PHB. So, though the legality of what he has been discussed regarding teh 'data' portions have been discussed extensively, I still see no discussion regarding his copying and distribution of spell text.

I see no justification for his verbatim or paraphrased copying of spell text.

Also of note, Frylocks could have also tried to release his stuff under the Wizard's Fan Use Policy. But of course he didn't use that just like he didn't use the OGL.

 

[Lanefan]

And, before you repeat that an entity cannot make an offer that cannot be rescinded, I have a counter-example: Public Domain - the license that is the complete offering of reproduction of the work, in whole or in part. Once you have released a work into the Public Domain, you cannot recall it, and neither can anyone else. It then follows that other irrevocable licenses may be constructed out of "Public domain, except...," with varying levels and forms of exception, but holding to the same point that the license offer cannot be removed.

Interesting.

At GenCon a few years back (2015?) there was a seminar given about this sort of thing, by a couple of lawyers who (one must assume) knew something of what they spoke. I brought up the question of "What if someone waives copyright from day 1 with the specific intent of releasing [in my example, some original music] into the public domain for anyone to use (but not claim as their own) however they like?"

The answer I got boiled down to, in essence, "You can't do that."

It seems that - at least in the USA as of 2015 or so - you've got copyright on your original work whether you want it or not, and cannot intentionally release something into the public domain before the law puts it there (i.e. you've been dead for 75 years or whatever it is).

 

[Greatwyrm]

You don't need to be surprised. You can look it up. No they haven't.

How on earth do they not have that trademarked? I mean, I understand mechanically how it works, but who the bleep is in charge of this stuff?

 

[pemerton]

Fine, let us set my extremely rudimentary license example aside. Let us concentrate on the examples we have.

The d20STL was revocable, said so explicitly, and included text in the license to cover its revocation.

The OGL was not revocable - it says it is explicitly perpetual, and that for any given reference document, you could use any version of the license that reference had been previously published under.

Pretty clearly, the difference is intentional. There can't be a whole lot of question that WotC didn't know the difference. Why can I believe the d20STL, but not the OGL?

And, before you repeat that an entity cannot make an offer that cannot be rescinded, I have a counter-example: Public Domain - the license that is the complete offering of reproduction of the work, in whole or in part. Once you have released a work into the Public Domain, you cannot recall it, and neither can anyone else. It then follows that other irrevocable licenses may be constructed out of "Public domain, except...," with varying levels and forms of exception, but holding to the same point that the license offer cannot be removed.

Umbran, you've attributed a post to me that is not mine. Could youf ix that please?

As far as the irrevocability of the OGL is concerned, that is a term of the licence granted by someone who takes up the offer and enters into a contract.

It is not a property of the offer.

You are correct that the D20 licence did not create a perpetual licence in the same way.

You seem to be running together two things: the popular use of the phrase OGL to refer to WotC's standing offer to enter into licences; and the existence of a licence, having the terms of the OGL, between WotC and any other individual person/entity. Those latter licences are perpetual. The standing offer is not. And cannot be made so unless someone pays WotC to make it (thus making it a matter of contractual obligation to maintain the offer). No one has done that.

As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.

 

[pemerton]

All I can say is that it doesn't look like something written by an IP lawyer or by someone particularly familiar with IP law.

I just had a quick skim of it.

As I understand the core of the argument, it's that you can't play the game without using/stating/reproducing stat blocks and/or spells, and for many of these there is only a finite and small range of ways of expressing them textually, and there can't be copyright in text that is the mere expression of a game rule, and therefore there can't be copyright in stat blocks and/or spells.

One implication of the argument seems to be that "Run Spot run" type children's books can't be copyrighted. Which seems implausible.

It also seems to rest on what, intuitively, seems an implausible (because overly broad) conception of a non-copyrightable game mechanic.

 

[Greatwyrm]

As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.

We might have a distinction without a difference here. If the first generation licensees are required to continue the offer to all subsequent licensees, then it doesn't matter if WotC ends the offer or not. By your reasoning, once the SRD was reproduced by anyone other than WotC, that publisher would carry the offer forward in perpetuity AND be unable to rescind it. That horse left the barn years ago.

 

[Morrus]

Umbran, you've attributed a post to me that is not mine. Could youf ix that please?

As far as the irrevocability of the OGL is concerned, that is a term of the licence granted by someone who takes up the offer and enters into a contract.

It is not a property of the offer.

You are correct that the D20 licence did not create a perpetual licence in the same way.

You seem to be running together two things: the popular use of the phrase OGL to refer to WotC's standing offer to enter into licences; and the existence of a licence, having the terms of the OGL, between WotC and any other individual person/entity. Those latter licences are perpetual. The standing offer is not. And cannot be made so unless someone pays WotC to make it (thus making it a matter of contractual obligation to maintain the offer). No one has done that.

As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.

The reason it’s irrevocable is because it’s viral. WotC ending the offer has no effect. You just use somebody else’s. Thus the phrase it’s “in the wild”. Doesn’t matter if WotC revokes it.

 

[pemerton]

WotC ending the offer has no effect. You just use somebody else’s. Thus the phrase it’s “in the wild”. Doesn’t matter if WotC revokes it.

We might have a distinction without a difference here. If the first generation licensees are required to continue the offer to all subsequent licensees, then it doesn't matter if WotC ends the offer or not. By your reasoning, once the SRD was reproduced by anyone other than WotC, that publisher would carry the offer forward in perpetuity AND be unable to rescind it.

Both I and @S'mon have already made this point in posts upthread.

But it's not a distinction without a difference. It's about who you have contractual relationships with - who you have rights against and who has rights against you.

 

[S'mon]

How on earth do they not have that trademarked? I mean, I understand mechanically how it works, but who the bleep is in charge of this stuff?

It would not be a valid mark unless they offered goods and services under the marks. It would become revocable for non-use.

Now they could offer goods under the mark every 5 years (in UK/EU TM, I think US is similar) to keep it valid. A few companies do this for marks similar to their primary mark, creating 'ghost marks'. But this takes a fair bit of effort.

Anyway if someone offers goods/services under a mark similar to your registered mark, you may be able to sue them, either for using a confusingly similar mark on similar goods/services, or for taking unfair advantage of the reputation of your famous mark. So use of "DnD" is not necessarily risk-free.

 

[S'mon]

Both I and @S'mon have already made this point in posts upthread.

But it's not a distinction without a difference. It's about who you have contractual relationships with - who you have rights against and who has rights against you.

It is early in the morning for me & I'm still sleepy, but I think if I take material from say The Hypertext d20 SRD (v3.5, 5e & Pathfinder d20 System Reference Document) :: d20srd.org under the OGL I would be held to have a contractual relationship with WoTC, as well as with the d20SRD.org people, and with everyone else whose d20 game material I took. I think this is what Umbran means by calling the licence offer non-revocable.