Frylock's Final(?) Post on the OGL

[Ancalagon]

@lowkey13 what do you mean by "leverage" in the contract sense?

 

[Jer]

Ok - I think I have my head wrapped around what's going on here, but I feel like I'm getting something wrong:

1. Frylocke is first suggesting that WotC has no claim at all on their stats because you can't copyright stats. So far, so good - that's basically the argument that I thought he was making at first.

2. But his screed is actually about Wizards engaging in "copyright misuse" because they're using the OGL to sew Fear, Uncertainty and Doubt to bully people into accepting Wizards claim that stats are copyrightable or at least act as if they are and keep themselves within the bounds of the OGL's guardrails.

Is that right? And if it is I still don't see how 2 helps him or how it enters into the picture at all. If the court disagrees with 1. then 2. is just wrong as far as I can see - if stats are copyrightable then Wizards is providing a legit license and not doing what he says. It seems like either stats aren't copyrightable or he's got nothing.

 

[Umbran]

Is that right? And if it is I still don't see how 2 helps him or how it enters into the picture at all.

That was, in essence, my question. Here's what I gather from what lowkey gave me, and he can tell me if I am correct:

There are cases where a publisher can act so badly that they lose their right to control content.

 

[lowkey13]

*Deleted by user*

 

[Urriak Uruk]

Ok - I think I have my head wrapped around what's going on here, but I feel like I'm getting something wrong:

1. Frylocke is first suggesting that WotC has no claim at all on their stats because you can't copyright stats. So far, so good - that's basically the argument that I thought he was making at first.

I don't think he stands on anything here either. He uses this as an example;

"In 1991, the Supreme Court shot down the notion that a collection of uncopyrightable material somehow transforms into a copyrighted work. For example, if an author compiles a spreadsheet of the mass, size, and distance of various planets and stars in the known universe, that collection isn’t copyrightable because none of those individual pieces of data are copyrightable. They can’t be copyrighted because they’re not creative; they didn’t originate from the author. The author of the spreadsheet can’t report Jupiter’s mass as something it isn’t. Doing so would render the spreadsheet factually inaccurate and thus useless. Copyright is about choosing one thing over many other options. Without having the opportunity to choose anything else, one can’t say that it was original, copyrightable work. Choice is always key."

He also uses an example of a phone book for phone numbers, using the Supreme Court decision that says you can't copyright a collection of un-copyright-able material.

He's fixating on saying that if something is a collection of something else, it's inherently something you can't copyright. That's NOT what the case says; it says you can't copyright a collection of pieces that independently can't be copyrighted.

And as far as I can see, Wizard's can copyright an individual statblock if they wanted to (they made it, why not?). So copyrighting a book of individual statblocks is also ok.

 

[lowkey13]

*Deleted by user*

 

[S'mon]

Feist v Rural found that Yellow Pages business directories were copyrightable, right? Because of the skill that went into the selection & arrangement of the information by business category, unlike the white pages alphabetical telephone listings. And there is a good deal more creativity in monster stat blocks than in a yellow pages directory. So his own case cite is against him!

Like I said a couple threads ago, I think you can write "Orc AC 13 hp 15 ATT +5/d12+3" in your adventure and not infringe WoTC copyright in the Orc stat block - either the court will hold info taken is not copyrightable, or that it's a de minimis borrowing, or that it's a Fair Dealing/Fair Use of the work (eg in English Law, that my use here would at worst be a fair dealing for purpose of criticism under the UK's CDPA). But that is a far cry from reproducing the entirety of the MM in slightly altered form.

 

[MoonSong]

Wow, and I thought this was all over... Why isn't it over yet T-T

 

[Beleriphon]

He's fixating on saying that if something is a collection of something else, it's inherently something you can't copyright. That's NOT what the case says; it says you can't copyright a collection of pieces that independently can't be copyrighted.

And as far as I can see, Wizard's can copyright an individual statblock if they wanted to (they made it, why not?). So copyrighting a book of individual statblocks is also ok.

He's working on the basis that the blocks of text that represent the fictional creatures in a presentable way aren't able to be copyrighted as 1) they are the "only" way to present the information in a useful format (they aren't, I can think of at least three other ways to present the same information), and 2) stat blocks are purely mechanical functions and operations rather than creative expressions of the mechanics and thus do not fall under copyright.

He extends this to spell names Fireball can't be copyrighted by itself. Fireball, with the attendant information about how to use said thing in game however does fall under copyright. So if I was writing a novel about wizards and they use Fireball, WotC can't sue me. If however, my wizard casts Fireball using bat poop, sulphur and the other components described in the spell WotC probably has a good case to win a copyright suit.

At a certain point you can't copyright even the description of the rules, at least at their most basic level. So I can write game with the basic operation of: Roll at d20 and add your modifiers. At its heart D&D works that way, WotC probably has sentence in multiple PHBs that matches that almost exactly. However it is a operative process rather than a creative description of how to complete that process. What becomes part of copyright is the entire block of text surrounding that sentence that describes why we roll, what a d20 actually is, and other stuff.

Frylock is conflating something as straightforward as "Roll at d20 and add your modifiers" with the stat block for an orc, or a Cyclops, or a Mummy Lord. His complaint about the OGL might work in absence of the SRD, but he's forgetting that the SRD is Open Game Content, the whole damn thing. So, sure the mechanics don't work for copyright, but I'm pretty sure a 600 page document that WotC is basically saying "hey here's a big old copy of our game, except for a few bits we don't want to share, feel free to copy the whole thing as much as you want, hell go ahead and sell it, just make sure to slap the OGL on the end" is consideration from them, and in exchange you're giving up and possible fair use copyright claims you have in exchange for using the OGL and WotC OGC content.

 

[FrogReaver]

I think I understood what argument he was making but I know nothing about legal matters to be able to really judge it.

He offers a few different approaches of arriving at his belief that stat block information can't be copyrighted. The ultimate basis is below:

1. A real world fact can't be copyrighted. (His argument is essentially that a fictional world fact can't be copyrighted). I don't know if it can or not, but I'd tend to think that logically any fictional world fact can be turned into a real world fact rather easily by referencing the work: "in D&D 5e an ogre has X hp." Personally I see some merit in this claim, but legally I'm as clueless as the next.

1b. Just in case that isn't enough to convince you, consider that the courts have already ruled that game rules can't be copyrighted and the ogre stat blocks are essentially game rules for the ogre. (if this were a rook in chess then the rules governing how to use it would not be copyrightable and that's all the ogre's stat block essentially is).

1c. Just incase anyone thinks a collection of facts is copyrightable when the individual facts aren't, it's settled law that this can't be copyrighted

On Misuse

2. From what I understand this would be the next step, again no legal expertise for me Step 2 in the lawsuit after winning the first part on the arguments in 1 above: WOTC has copyrighted uncopyrightable material and then set up an agreement such that people have voluntarily been giving away their rights to use material that they could have used without the agreement in the first place. This is copyright misuse and thus their whole copyright should be thrown out.

In my opinion, the goal is to win on the facts listed in 1 and then after winning counter that the whole copyright should be thrown out.

My analysis: The idea of misuse throwing out a copyright even if it's a longshot to win that part presents a very big risk to WOTC. I'm impressed by the leverage produced from that argument. On the initial argument, Tying stat blocks to basic undisputable facts and/or game rules seems like a decent argument to the layperson (no idea what the lawyers think).