[ORC] Vision for one or more ORC systems: convert the entire OGC archives from the start, using a massive team of converters

[Yaarel]

I'm pretty sure most of the stuff in the SRD can be, and is, copyrighted, since it's an expression of those game rules; at the very least it's ambiguous, since the line between uncopyrightable rules and copyrightable expressions has never been defined for something as expansive as a tabletop RPG.

Sure but the "expression" here cannot include game rules or "concepts".

So simply rewriting the rules and the concepts in ones own words, is fine usually enough.

In that regard, I suspect that the expansive nature of Pathfinder works against it if it ever came down to a court battle. For instance, having a die roll to avoid a combat effect is probably not copyrightable; calling it a "Fortitude saving throw" probably is.

Rolling a d20 and adding a "Dexterity" modifier to determine the outcome of success, is an example of something that cannot be copyrighted.

Likewise for the issue of real-life mythology and beliefs. Having a monster named a "babau" isn't copyrightable by itself. Having it be a demon that's covered in acid and has a "sneak attack" that deals 2d6 extra dice of damage, telepathy out to 100 feet, etc. probably is.

Yeah, this is stuff that I would doublecheck.

For example, five different kinds of "chromatic dragons": white, red, green, black, and blue, with specific breathweapons (and sometimes appearances) starts to get murky. But then again, almost every culture on the planet has their own system of assigning specific colors to specific elements, and to have dragons embody an element as a breathweapon is public domain.

For example, the Welsh famously have the battle of the Red Dragon versus the White Dragon.

And so on. Consider, "Superman" can fly (Air), is strong as steel (Earth), has laserbeam eyes (Fire), and supercool breath (Ice-Water). One cannot copyright superpowers.

 

[Alzrius]

This seems like a good time to cast summon @pemerton.

 

[pemerton]

I think that @Yaarel is making strong claims without really providing the legal analysis.

For instance, if the history of the composition of the work is (1) WotC-owned SRD => (2) OGL-licensed 3PP-owned OGC=> (3) "serial numbers filed off" 3PP unlicensed material, what liability might that 3PP have to WotC?

I don't think we can answer that question just by saying that "rules can't be copyrighted", or pointing out that it might have been possible for the 3PP to get to the same place via a different pathway (eg drawing from public domain works). The point is that they got to where they are via that actual pathway, which at a certain point involved copying (or something in that neighbourhood) as is more-or-less admitted by the section 15 declaration at the second of the three stages.

If it could be shown that WotC in fact did not enjoy the copyright it asserts, and hence the copying is no infringement, that might help. But would it be relevant to that argument that the 3PP apparently acknowledged WotC's copyright when they entered into the OGL licensing agreement? How easy or hard is it to resile from that?

I can't comment on how significant any of these possible issues is - they're just the ones that occur to me. A serious copyright lawyer (which is not me) would need to chime in to give better answers.

 

[Yaarel]

If it could be shown that WotC in fact did not enjoy the copyright it asserts, and hence the copying is no infringement, that might help.

Correct.

In fact, WotC cannot copyright certain things.

But would it be relevant to that argument that the 3PP apparently acknowledged WotC's copyright when they entered into the OGL licensing agreement? How easy or hard is it to resile from that?

Those who used the OGL never "acknowledged WotC copyright".

What OGL users agree to, is to voluntarily refrain from using specific Product Identity.

(Even gaming products that have zero derivation from D&D would still customarily use the OGL license as a convenient legal framework.)

Indeed, the OGL protected WotC in ways that copyright laws cannot.

This was a successful arrangement for everyone involved, which is why the gaming community relied on it to cut thru legal murkiness.

Hasbro-WotC ruined their own legal protection.



But the copyright isnt all or nothing. There are certain places in the texts of the D&D SRD, where the "expression" seems distinctive enough to enjoy copyright.

For example, the "drow" as Gygax reinvented them from public domain feels "transformative" and unique enough to be a protectable expression.

However, the concept of "dark elves" (døkkalfar, svartalfar) who dwell in the dark underground and master magic are public domain and noncopyrightable.

These are places that require doublechecking.

 

[pemerton]

Those who used the OGL never "acknowledged WotC copyright".

They included copyright acknowledgements in their section15 statements.

Hasbro-WotC ruined their own legal protection.

In what way? They've not purported to withdraw from or terminate any contracts, have they?

 

[Yaarel]

They included copyright acknowledgements in their section15 statements.

First. The things that cannot be copyrighted ... cannot be copyrighted.

Hasbro-WotC can insist they themselves own the Brooklyn Bridge, but that doesnt mean they do.



More the point, there are things in the SRD that do seem copyrightable, like its distinctively transformative version of a "drow". Personally, if concerned about lawsuits, I would avoid using the term "drow" when referring to a "dark elf". However, I would use the term "drow" when referring to a small troll who mines metal in Scotland.

In what way? They've not purported to withdraw from or terminate any contracts, have they?

Hasbro-WotC ruined their own legal protections because, no business would ever use the OGL again. Thereby, no busines will agree to protect IP property again, or more pertinently, never again agree to give Hasbro-WotC free advertising and infomercials for noncopyrightable game rules and public domain content.

Hasbro-WotC recognizes how indefensible their SRD content is, in the court of law. This why, they cynically put this SRD content in the CC.

 

[pemerton]

First. The things that cannot be copyrighted ... cannot be copyrighted.

Hasbro-WotC can insist they themselves own the Brooklyn Bridge, but that doesnt mean they do.

And in US contract and IP law, which takes priority: the fact of ownership, or a contractual acknowledgement of ownership?

To me, your assertions appear to be generalities without detail or genuine legal analysis.

 

[Yaarel]

And in US contract and IP law, which takes priority: the fact of ownership, or a contractual acknowledgement of ownership?

To me, your assertions appear to be generalities without detail or genuine legal analysis.

The court cases that are relevant are few and far between. Something like the OGL and SRD hasnt gone to court yet, and lawyers all agree, the need to see what courts might decide, which would become a precedent for future cases.

Even so, I am confident the court will protect the concept of an "open license" and even punish Hasbro-WotC for attempting to breach it.

Meanwhile, regarding the copyright laws. Public domain is public domain.


Hasbro-WotC knows this! Which is why they abandoned the 5e SRD to the CC. This way, they can still get some public-relations mileage out of a lost cause.

 

[pemerton]

The court cases that are relevant are few and far between.

There is almost certainly well-established law on the point I have raised, namely, the relationship between a contractual acknowledgement of another party's rights and then an attempt to defend a claim to have infringed those rights by denying that they exist.

I'd be surprised if there is not law on the point dealing particularly with the IP context, given that using a licence to gain a head-start and then allowing the licence to lapse but continuing with the enterprise, and at that point denying the licence was ever necessary, seems like something that must have happened in the past.

I am confident the court will protect the concept of an "open license" and even punish Hasbro-WotC for attempting to breach it.

This makes no sense. Apart from anything else, you are arguing that it is the 3PPs and not WotC who should break their licence agreements!

regarding the copyright laws. Public domain is public domain.

I assume that you are not familiar with this UK case: Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 (12 January 2012)

Your claim is false. If you create work X by copying my copyrighted work Y, it is no defence - at least in UK law as expounded in that case - that you might have also created X by copying public domain work.

 

[Yaarel]

There is almost certainly well-established law on the point I have raised, namely, the relationship between a contractual acknowledgement of another party's rights and then an attempt to defend a claim to have infringed those rights by denying that they exist.

There are two separate issues. Contract law. Copyright law.

Hasbro-WotC cannot win the contract law, because the license was and is "open".

Hasbro-WotC cannot win the copyright law, because it is mostly public domain "systems", "concepts", and details from "public domain".

Apart from anything else, you are arguing that it is the 3PPs and not WotC who should break their licence agreements!

To clarify. 3PPs whose products have the OGL are stuck with it.

But any future products should avoid the OGL at all costs.

I assume that you are not familiar with this UK case: Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 (12 January 2012)

Your claim is false. If you create work X by copying my copyrighted work Y, it is no defence - at least in UK law as expounded in that case - that you might have also created X by copying public domain work.

The case you cite refers to a photograph. Copyright law normally protects a specific work of photography (as long as it itself is not an image of a 2d image). The angle of perspective is considered an artists creative choice.

I only quickly skimmed thru the case you cited. But it seems to be the case of a business that modified an artists photo but failed to "transform" it enough.

The case doesnt apply. Because a photo actually is copyright protected. It was the actual photo itself that was modified insufficiently.

In other words, if the business took a new photo of the same bridge, there would be no issue.

Here with regard to the SRD, its open domain content lacks copyright protection in the first place. It is unlike a photograph that has copyright protection.

Anyone can use the same "concepts" and "game rules" − but not copy-paste the actual wording of the SRD.



Put it this way. The photographer owns the photo − but doesnt own the bridge that was photographed. If someone else photos the same bridge, it is fine.

Similarly, Hasbro-WotC owns the SRD. It owns the text. But it cannot own its gamerules and concepts.