4E OGL Material?

[arscott]

There's necessarily a difference in enforcement strategy when you're targeting 400,000,000 music pirates (each responsible for 25 illegal downloads) instead of 20,000 counterfeiters (each responsible for $1,000,000 in fake money). At some point the numbers overwhelm you.

But the fact that there are 400,000,000 music pirates and only 20,000 counterfeiters is itself a result of the different strategies used by the music industry and the treasury department.

The Music industry is having such a piracy problem because it didn't understand their customers. They stuck with their strategy of bundling songs as $20 albums, and stridently avoided any sort of digital distribution (or even physical singles, for that matter) specifically so they could get their customers to shell out extra cash for things they wouldn't otherwise buy. So Illegal services sprung up to cater to those folks that wanted internet downloads, and things just went downhill from there.

But the Treasury Department understands the incentives that motivate counterfeiters, and plan their products accordingly. Think about it: if people could just go to a 10-cent copy machine and make $100 bills, counterfeiting would be rampant. But instead, they put a lot of effort to ensure that counterfeiting money is difficult--with special paper, special inks, and all sorts of crazy printing methods. Hence our shiny new $5 bill.

Similarly, WotC should probably take customer incentives into account when creating their new Open Gaming policy. If they do it right, they'll insure that they are the best source of products for the vast majority of gamers (just as most consumers are perfectly content to use real US money instead of making their own). If not, they'll cause people to flock to alternatives, legal or otherwise.

 

[xechnao]

No. It's only the characteristics that are important. The fact that all of those things are called "Harry Potter and the Whatever" is irrelevant to copyright. Names are governed by Trademark, which is a whole separate category of IP protection.

If so the case, can you give some examples where the name is a different one but there was a violation?

Because by what you are saying many, many things can be in theory considered derivative but haven't been so in practice.

 

[arscott]

Well, just avoid those things declared as Product Identity in the SRD. It's a fairly short and specific list.

Note the difference between "product identity" and "Product Identity". The latter needs to be explicitly declared and is the thing OGL forbids you to touch.

Depending on your reading of the OGL, Product Identity doesn't need to be specifically declared.

"Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;

You could argue that the phrase "clearly identifies as Product identity by the owner of the Product Identity" refers to the entire list. But based on the punctuation, it's equally valid to say that the declaration requirement only applies to "any other trademark or registered trademark".

Given that the OGL was presumably written by well-paid lawyers, I imagine that the ambiguity is intentional.

 

[arscott]

If so the case, can you give some examples where the name is a different one but there was a violation?

Because by what you are saying many, many things can be in theory considered derivative but haven't been so in practice.

Well, I could, but I'll have to resort to non-Harry-Potter examples.

A Fist Full of Dollars, directed by Sergio Leone was heavily based on the Akira Kurosawa film Yojimbo. The producers of A Fist Full of Dollars hadn't secured the rights, though, and were sued. The case was settled out of court, but it almost certainly would have been decided in Kurosawa's favor.

Star Wars (A new Hope) drew quite a bit of inspiration from "The Iron Tower" and other Kurosawa films. If Lucas's original outline had been turned into a film, then he'd probably have gotten sued too. But the film evolved enough through successive drafts of the screenplay that Star Wars isn't a derivative work, even if the plot remains similar (Wise warrior, farmboys, and comical sidekicks rescue a princess from an Evil Knight).

 

[xechnao]

Well, I could, but I'll have to resort to non-Harry-Potter examples.

A Fist Full of Dollars, directed by Sergio Leone was heavily based on the Akira Kurosawa film Yojimbo. The producers of A Fist Full of Dollars hadn't secured the rights, though, and were sued. The case was settled out of court, but it almost certainly would have been decided in Kurosawa's favor.

Star Wars (A new Hope) drew quite a bit of inspiration from "The Iron Tower" and other Kurosawa films. If Lucas's original outline had been turned into a film, then he'd probably have gotten sued too. But the film evolved enough through successive drafts of the screenplay that Star Wars isn't a derivative work, even if the plot remains similar (Wise warrior, farmboys, and comical sidekicks rescue a princess from an Evil Knight).

Thanks. Now I think I have a better grasp of this.

 

[Alzrius]

Depending on your reading of the OGL, Product Identity doesn't need to be specifically declared.

You could argue that the phrase "clearly identifies as Product identity by the owner of the Product Identity" refers to the entire list. But based on the punctuation, it's equally valid to say that the declaration requirement only applies to "any other trademark or registered trademark".

Given that the OGL was presumably written by well-paid lawyers, I imagine that the ambiguity is intentional.

That list of items isn't ambiguous at all though. The vast majority of those things aren't in the SRD anyway, and for the ones that are, it doesn't matter - everything in the SRD is Open Game Content under the OGL anyway, so it's available to be used without any challenge of it being product identity.

So long as the materials in the SRD are used, no matter how much they're twisted to fit new definitions (which closely mimic 4E's stats) then there's no legal problem with doing so.

 

[2WS-Steve]

Depending on your reading of the OGL, Product Identity doesn't need to be specifically declared.

You could argue that the phrase "clearly identifies as Product identity by the owner of the Product Identity" refers to the entire list. But based on the punctuation, it's equally valid to say that the declaration requirement only applies to "any other trademark or registered trademark".

Given that the OGL was presumably written by well-paid lawyers, I imagine that the ambiguity is intentional.

Generally as used over the last several years the first reading of specifically declared is how it's interpreted. Companies make a point of specifically declaring their PI, or, if they intend to declare everything possible as PI, then they specifically point to that section and say they're declaring everything as PI.

I'd imagine that the courts would look at how it's actually been used when making any decision.

 

[Oldtimer]

I'd imagine that the courts would look at how it's actually been used when making any decision.

Not to mention the explanations of its intent given by the license creator. It's quite clear that the intent of Product Identity was that it be explicitly declared (as with Open Gaming Content).

 

[catsclaw]

Remember, though, that rewriting something in your own words is not, in and of itself, a defense against copyright.

No. But you can't claim copyright over an idea. And the courts have been very, very consistent on that. Ideas, procedures, recipes, prescriptions, and game rules. You can't copyright any of it. Only a particular expression of it.

I did some poking around, and there's only a smattering of case law on this sort of thing. And what is out there is surprisingly supporting of publishing RPG supplements. The most obviously relevant case seems to be Allen vs. Academic Games. Allen wrote four educational games and arranged academic conferences for student to play them. Some disaffected friends bought the games and started organizing competing tournaments. To quote the decision:

At each AGLOA tournament, the subject games were played under rulebooks developed by an AGLOA committee that continuously revised the rules to enable students to play each game under tournament conditions while enhancing student educational value and interest in the games. Tournament rulebooks used at NAGP tournaments were not copyrighted by Allen and were actually developed and revised by a committee of persons that consisted primarily of the individual respondents. While each of the subject games contains a game manual, AGLOA tournament rulebooks do not repeat the rules found in the game manuals, but refer to the rules and elaborate on how each game is to be played in a tournament setting.

Emphasis mine. The U. S. Ninth Circuit ruled this was not a copyright violation:

Here, Allen has not shown that it is possible to distinguish the expression of the rules of his game manuals from the idea of the rules themselves. Thus, the doctrine of merger applies and although Allen may be entitled to copyright protection for the physical form of his games, he is not afforded protection for the premises or ideas underlying those games.

The merger doctrine in copyright law states that if an idea and its expression are so intertwined as to be inseparable, there isn't a copyright violation, because it would necessarily prevent others from expressing that idea.

In other words, it certainly seems like you could make supplements for a role-playing game--even directly referring to the rules for that game--without violating copyright. That wouldn't necessarily prevent you from getting sued over it, but if you were willing to take it all the way to court, you've got a respectible chance of winning.

 

[Orcus]

In other words, it certainly seems like you could make supplements for a role-playing game--even directly referring to the rules for that game--without violating copyright. That wouldn't necessarily prevent you from getting sued over it, but if you were willing to take it all the way to court, you've got a respectible chance of winning.

As a lawyer, let me say that if you are considering this go get yourself some serious legitimate legal advice. DO NOT rely on lay internet interpretations. Dont even rely on what I say. Go hire a lawyer.