Can someone explain crippled OGC to me

[BryonD]

Hypothetical Question

Ok, lets see if I get it.
There has been a lot of talk about the expectation that 4E will not be OGL.

Now, lets for simplicity assume that Clark Peterson or some other combination Lawyer and RPG lover wins $500 Million in the lottery the very day a non-OGL 4E comes out. This gamer lawyer decides he loves the Open Gaming Movement and is going to devote his now non-work demanding life and a fair fraction of his funds to making 4E open. (This lawyer has a brain fart and doesn't consider buying D&D outright, because that would make the conversation moot )

He sets out to re-write all of the mechanics of 4E. Every bit of it. He just leaves out proper names and such. He publishes this as the DD4 SRD and releases it under the OGL. He has enough money to stay in the legal fight to the end, if needed.

Would this likely work?

 

[BryonD]

Yeah, the license wasn't really for the rules, the OGL + the d20 license let people publish games which were compatible with D&D, and could advertise themselves as such, without getting sued. That was the real warm fuzzy for publishers, and led directly to the d20 publishing boom.

Well, based on the information here I must agree with you.

However, I know that this is certainly not the perception. I believe that the vast majority think (or thought) as I did. That it made it POSSIBLE to even use the rules at all.

Can you comment on the bad reputation that TSR had for slamming anyone who even put up a fan site? Perhaps most everyone was using "Bigby" spells and such. But it sounds as if this, to a large extent, came down to "you can't handle our legal attack". Is it fair to guess that many of these cases may be people who were pushed out of doing things that were probably ok?

 

[madelf]

Well, there is a difference, even if I won.
Well, just to be a pain ... you could be sued by Bad Axe for sticking too close to their wording too. As far as I can see, Wulf didn't release his text any more than copyright law released the text of Ars Magica.

Some of the introductory "flavor" text may certainly be an exception. But that is A) the kind of stuff that is often PI and no one ever complains about anyway and B) stuff that doesn;t really offer any major value to re-use anyway.
The mechanics that make MH BE MH are what I'm really talking about. So call it 95% instead of 100%. The specific 5% that is being excluded is trivial.

It is certainly possible that I simply made an error in my use of the OGL. But, I'm certain that it COULD be done correctly.

Right, flavor text wasn't even in my thought process. We were talking mechanics.

This stuff is hard to discuss without being vague and general, or else incredibly specific... without digging into both Mythic Heros and your Hero post, I can't really discuss it very specificially. About as far as I can go is to say that (the way I see it - under copyright law, or Wulf's OGC declaration) you could only use the actual mechanics themselves, entirely seperately from any text that describes them. Any of the explanations of when you apply the mechanics, or how they work, would have to be completely re-phrased and any support material (fluff) that was included along the way would have to be entirely new. (Of course there's the idea that says any expression of a mechanic is limited, as a certain point it becomes so concise that it can't be explained any other way. But that may be open to interpretation; there are all the gray areas, how different is different enough, etc)

It would be so much easier on people trying to use open content if the person releasing it would designate it precisely. Put the "Dwarf Racial Traits [CR +0.21]" kind of thing in italics, or a different font, or with a light gray background, or whatever, and designate everything presented in that format as open content, everything not in that format as PI. It eliminates all question, protects everything that needs protecting, and makes it easier for people to use the open content properly, without second guessing. "The mechanics are open, but the text is not," is needlessly vague. There are better ways to do it (although they are, admittedly, more work).

 

[madelf]

Ok, lets see if I get it.
There has been a lot of talk about the expectation that 4E will not be OGL.

Now, lets for simplicity assume that Clark Peterson or some other combination Lawyer and RPG lover wins $500 Million in the lottery the very day a non-OGL 4E comes out. This gamer lawyer decides he loves the Open Gaming Movement and is going to devote his now non-work demanding life and a fair fraction of his funds to making 4E open. (This lawyer has a brain fart and doesn't consider buying D&D outright, because that would make the conversation moot )

He sets out to re-write all of the mechanics of 4E. Every bit of it. He just leaves out proper names and such. He publishes this as the DD4 SRD and releases it under the OGL. He has enough money to stay in the legal fight to the end, if needed.

Would this likely work?

While I think some of the ways you described it are on thin ice (like the DD4 SRD - probably flirting with trademark problems, and he'd have to do far more than change the proper names)... I'll assume that this hypothetical lawyer knows his stuff and will set everything up properly to avoid copyright and trademark violations. In that case, yes. It could be done.
(though note, even though I've taken a pretty close look at copyright issues, I'm not a lawyer - or wealthy enough to back up my opinion even if I was)

Can you comment on the bad reputation that TSR had for slamming anyone who even put up a fan site? Perhaps most everyone was using "Bigby" spells and such. But it sounds as if this, to a large extent, came down to "you can't handle our legal attack". Is it fair to guess that many of these cases may be people who were pushed out of doing things that were probably ok?

Yeah, that's defintitely the impression I've gotten. Remember, anyone can threaten (and even undertake) legal action without needing a leg to stand on. Most little guys will fold, because they know they can't put up a fight. I think there were actually only a couple of cases that they ever brought to court (though there may well be some I haven't heard of).

Although chances are many of the fan sites probably were guilty of trademark and copyright violation as well. I think there was also one company that got nailed for a trademark violation against the D&D brand, but I can't recall which one (or even if it was proven rather than being a settlement).

 

[BryonD]

Well, just to be a pain ... you could be sued by Bad Axe for sticking too close to their wording too. As far as I can see, Wulf didn't release his text any more than copyright law released the text of Ars Magica.

OK, you see this gets a bit frustrating. When we talk about AM the theme is how you can re-write it and it is legal. Yes, you might get sued, but it really is legal and its just a question of being able to afford the fight.

When we turn around and talk about MH, suddenly everyone talks like we are on thin ice.

Even understanding everything that has been said, it is exactly the opposite of that.

We talk about re-writing AM and you swallow the camel right down.
We talk about MH and the gnat gets stuck in your throat.

From a purely legal point of view, if you did BOTH, Wulf would have a vastly harder time getting the settlement to go his way. He has clearly made a statement the the material is available for use, it is simply a question of where the ambiguity ends. Further, if things work as you have described it is an ambiguity sitting on top of a moot point. You can do it, end of story.

On the other hand, if there is a chance in hell that Wulf sueing you could cause trouble, then copying AM is going to crush you in a heartbeat.

In order for this to be a controversy, there must be this double standard. That is unreasonable and I think that is telling of where the matter really lies.

Sorry to be bitchy. I know you have been reasonable and helpful.

 

[BryonD]

Although chances are many of the fan sites probably were guilty of trademark and copyright violation as well. I think there was also one company that got nailed for a trademark violation against the D&D brand, but I can't recall which one (or even if it was proven rather than being a settlement).

That is likely true. I'd guess nearly all of them said "Dungeons and Dragons".

 

[madelf]

OK, you see this gets a bit frustrating. When we talk about AM the theme is how you can re-write it and it is legal. Yes, you might get sued, but it really is legal and its just a question of being able to afford the fight.

When we turn around and talk about MH, suddenly everyone talks like we are on thin ice.

Even understanding everything that has been said, it is exactly the opposite of that.

We talk about re-writing AM and you swallow the camel right down.
We talk about MH and the gnat gets stuck in your throat.

From a purely legal point of view, if you did BOTH, Wulf would have a vastly harder time getting the settlement to go his way. He has clearly made a statement the the material is available for use, it is simply a question of where the ambiguity ends. Further, if things work as you have described it is an ambiguity sitting on top of a moot point. You can do it, end of story.

On the other hand, if there is a chance in hell that Wulf sueing you could cause trouble, then copying AM is going to crush you in a heartbeat.

In order for this to be a controversy, there must be this double standard. That is unreasonable and I think that is telling of where the matter really lies.

Sorry to be bitchy. I know you have been reasonable and helpful.

No need to get tetchy... I'm just qualifying my statements so folks hopefully don't get the idea that there's some sort of carte blanche in either situation.

In both cases it's legal (if it's done properly), and in both cases you could get sued (if the publisher decided that you didn't change things enough to suit them). They really aren't any different, and that's the point I'm trying to make. There is absolutely no legal difference, because (based on the wording, not Wulf's intent - which I have no magical way of determining, but which seems to be "you can use the mechanics, but I better not catch you using any of my writing") the thing that has been released as open content is something that cannot be protected by copyright in the first place. The situation is the same, and the ambiguity is the same. The only thing that is not the same is the intent. Wulf intends his mechanics to be re-used, while the Ars Magica guys likely don't intend for their mechanics to be re-used (even if they can't really prevent it under copyright).

There is no (legal) double standard in anything I've been saying (though it could be argued that there's an ethical question in adapting Ars Magica mechanics which isn't present in adapting Grim Tales mechanics).

That is likely true. I'd guess nearly all of them said "Dungeons and Dragons".

It's not quite as simple as that. You actually can refer to someone's trademark, and even claim compatibility with their product, so long as it's done properly. The exact mechanisms are at least as complex as copyright (and I'm not well enough aquainted with the details to expound on them), but the general idea is that the customer should not be able to mistake your product for the other company's.

 

[Yair]

Wow, a lot of talk since last evening.
Since so much has happened, I think it is pointless to continue from where I left off. Suffice it to say that I agree completely with madelf,

In both cases it's legal (if it's done properly), and in both cases you could get sued (if the publisher decided that you didn't change things enough to suit them). They really aren't any different, and that's the point I'm trying to make. There is absolutely no legal difference, because (based on the wording, not Wulf's intent - which I have no magical way of determining, but which seems to be "you can use the mechanics, but I better not catch you using any of my writing") the thing that has been released as open content is something that cannot be protected by copyright in the first place. The situation is the same, and the ambiguity is the same.

I will have to compare Bryon's HERO to the Mythic Heroes text to comment on it, but the main point is that

Mythic Heroes, Copyright 2005, Benjamin R. Durbin, published by Bad Axe Games, LLC.

isn't needed in Section 8, you didn't Use any OGC, you only used ideas. (Possibly; I'll get back to you once I've reviewed the file.)

About the perception and content of the OGL, see this:

Q: Can game rules be copyright?

A: In the United States, the rules of games cannot be copyright. The law may be different in other countries, but most countries are signatures to the Bern Convention on Copyrights, and under the terms of the BCC, the rules of games cannot be copyright. If you have questions about your ability to apply the copyright law to a game, consult your legal counsel.

Q: Why does every RPG product I own claim a copyright for the publisher?

A: RPGs are more complex than just rules for games. A typical RPG includes substantial material that is not "rules for a game". The line between the copyrightable portion and uncopyrightable portion of a particular product is very blurry and under U.S. copyright law, is left to a court to interpret in the event of a lawsuit.

Q: What good is a copyright license for Open Games then?

A: Even though portions of an RPG may not be copyrightable as an idea or as a rule, the actual text used to describe those rules is copyrightable. In addition, all the material surrounding the non-copyright portion is protected by the copyright law as well. The copyright licenses used by Open Games ensure that no matter where an individual judge might draw the line between copyright and non-copyright, you can be sure that you have the freedom to copy, modify and distribute the work. Removing this gray area creates a "safe harbor" that publishers can use to shield themselves from litigation. The safe harbor is an important component to the commercial viability of Open Games. Without it, most rational publishers would not attempt to use a shared rules system out of fear that someone somewhere would sue them for copyright infringement.

Another very valuable right you gain from an Open Game is the right to make a derivative work based on someone else's copyright. Without that right, you cannot legally make and distribute a derivative work. Since RPGs are often self-referencing (meaning, you use one part of the RPG to indicate how another part works or interacts with players during the game), RPGs are essentially chains of linked, derivative works. By giving you the right to make a derivative work, an Open Game license allows you to extend or modify these chains as you see fit.

This has been there since the inception. If someone has other ideas, he must have either not gone over and read what WotC itself says about the license, or disagrees with its legal stand.

Whether or not the practice of releasing no copyrighted text as OGC is "crippled OGC" or not, which if I remember correctly started this whole debate off - I think it is, but that's just how I use the term. YMMV. As Psion noted, this was certainly not the original meaning.

 

[Yair]

You know, when I think of the places where people have tried to make new machanics and call them PI. Or used PI names to cover OGC, creating the dis-incentive as BardStephenFox described. I think those are pretty lame things to do.
Regardless of the legal minutia, (and I think this is a tempest in a really small teapot) to lump this practice in with those is a real shame.

May I ask you, do you agree that a wiki would motivate Phil Reed, Wulf, and other to stop publishing?

By not releasing the text as OGC he is preventing me from referring and utilizing it in just the same way as PI names prevent me from using the related mechanics. Say I wanted to release a work based on Action Points, but the term Action Points was PI; I can't interact with it, I can't build on it. Say I wanted to release a work based on Mythic Levels, but the term Mythic Levels is PI; I can't interact with it, I can't build on it.
If rewording isn't a hinderance, you can simply not use the OGL entirely. Instead of referring to Ability Scores, refer to Attributes; instead of referring to Feats, refer to Gifts, and so on. Why didn't Mythic Heroes do that, instead of relying on the precise phrasing and text of prior OGC? Because it would not be compatible, which is much of the point of having the OGL in the first place. Building on the precise wording of others while not allowing others to do the same with yours is, pretty much, what crippled OGC means.

In my very first post in this thread I noted the economical incentive to use crippled OGC. If I want to use Mythic Levels, I have to reach an agreement with Wulf. Bereft of the safe harbor of the OGL, I am forced to revert to copyright law. This does indeed make it much more difficult for some hypothetical wiki to collect the content from the work, and to be clear - I think that is a positive effect as I am not supportive of an all-inclusive OGC Wiki. But this good effect comes at the price of making responsible use of the work just as impossible*, and IMHO breaking the OGL entirely, which I think is too high a price.
I understand the motivation to protect your work. I just think you mostly can't if you're using the OGL in good faith, and you should either accept that or not use the OGL.

* Impossible under the OGL; you can use the work by using only the ideas regardless of the OGL just like any other work, but that has nothing to do with responsible use of OGC.

 

[BryonD]

By not releasing the text as OGC he is preventing me from referring and utilizing it in just the same way as PI names prevent me from using the related mechanics.

This is where we disagree. I consider one to force you to contact the author and the other to force you to choose between just a little work and contacting the author.

I'll admit that my minimal past experience with and interaction with Wulf may enhance my perception. But I understand what the point of this effort is. In the other thread you refered to Wulf as an OGL "bad guy". I know you are wrong there, and that is not going to change. His declarations have evolved. And I will expect them to continue to evolve. But anyone who has been paying attention would not disparage his motivation.