Electronic Freedom Foundation weighs in on the OGL!

[dave2008]

OSRIC

I have seen that acronym, but I don't know what it means.

 

[GreyLord]

I have seen that acronym, but I don't know what it means.

There are wars, and then there are wars.

Some feel the transition to 3e to 4e was a WAR, but those people never saw the War that preceded it, the one where AD&D died and D&D was slain and it's corpse buried as another called itself it's name.

It was by far the largest and most virulent war ever to occur among editions. Emotions ran high. There were many offshoots and outcroppings from it.

One response by one small group was to make a system document that recreated all the rules of AD&D 1e, but without using the copyright stuff from TSR or WotC. They used the mechanics are not copyrighted idea and made a system document so that others could make adventures to run with AD&D without referring it specifically to AD&D per se.

Thus was born OSRIC.

 

[Malmuria]

This, I think, is the most interesting bit:



So, the spell is called invisibility. But it's on the Wizard spell list as just "invisibility", and it's in several monster, NPC, and magic item entries. So the name merges into a game mechanic, because the game uses it as a game term. The same is true for "advantage" and "armor class" and "Strength" so on. Names used as game terms become game mechanics when they're used by other game mechanics. They do that everywhere.

Good lord. I used to think the SRD was 90% unprotected by copyright, but now I think the SRD is basically 99% unprotected by copyright, and the only parts of it that are... are the parts we probably don't care about. Like if you look at the spell description for Invisibility, the most copyrightable element is the description of the material component as an eyelash stuck in gum.

So this should be totally uncopyrightable:



Everything there merges because all the terms used are used as mechanics: Invisibility, 2nd level spell, illusion, spell, casting time, action, range, area, touch, components, verbal, somatic, material, duration, concentration, cast, invisible, target, attack, spell slot, 3rd level spell slot. All you've got left are adverbs, prepositions, and conjunctions.

I don't know how I would even begin to try to explain this to a jury of non-gamers.

 

[see]

So, first thing first. The EFF statement has been updated in a quite important way that addresses my issue with their original statement. They are clarifying that there is a difference between a bare license without consideration, and a contract with obligations on both sides, and insofar as the OGL 1.0a was the latter, it is not revocable at will, whether or not it says it's irrevocable.

That logic applied to the GPL 2 avoids there being any emergency over the GPL 2 lacking the word "irrevocable".

That said, if you're still interested in

Spoiler: what I was writing when I saw the update because I was double-checking my accuracy

No. The rule isn't "without this magic word, it's revokable". It's "without some terms limiting the ability to revoke, it's probably revokable." The GPL v2 doesn't use the word "irrevokable" like GPL v3 does, but there's significant other text that effectively makes any attempt to do so unlikely to succeed. That language or something similar to it is not present in the OGL. The OGL has basically no text to it at all, especially compared to the GPL v2.

The argument you linked makes a distinction between contributors and the original licensor. The problem is that the distinction they make means the GPL 2 is revocable by the original licensor.

Sure, it's going to be pretty difficult for a mere "contributor", in their terms, to revoke their contributions under the GPL 2, because they needed the GPL 2 for the permission to make their derivative work. But the exact same situation applies with regard to contributors under the OGL and its equivalent clauses (sections 2, 3, and 4). If Paizo tried to revoke the OGL 1.0a with regard to, say, Pathfinder 1st edition, they'd have serious trouble, because their rights to use the 3.5 SRD were dependent on the OGL 1.0a to begin with.

The argument does not apply to the original licensor in either case, whether you're talking WotC in the case of SRD text licensed under the OGL 1.0a, or Linus Torvalds licensing Linux and Git code under the GPL 2. They did not need any rights under the license to distribute their work in the first place, so their rights are not dependent on the license, so they can revoke the license without it affecting their rights.

(It is entirely possible there's some subtlety in the GPL 2's text, not present in the OGL 1.0a, that somehow prevents the original licensor from revoking it at will. But the argument linked does not rely on or mention any such; it's based on the contributors being dependent on the license.)

The promissory estoppel argument for the GPL 2 that follows is the exact same one being made for the irrevocability of the OGL 1.0a. If the inability of an original licensor to revoke the GPL 2 is actually dependent on that, then it's a very big deal, and the EFF statement gliding over that whole argument is, well, disappointing.

 

[Reynard]

There are wars, and then there are wars.

Some feel the transition to 3e to 4e was a WAR, but those people never saw the War that preceded it, the one where AD&D died and D&D was slain and it's corpse buried as another called itself it's name.

It was by far the largest and most virulent war ever to occur among editions. Emotions ran high. There were many offshoots and outcroppings from it.

One response by one small group was to make a system document that recreated all the rules of AD&D 1e, but without using the copyright stuff from TSR or WotC. They used the mechanics are not copyrighted idea and made a system document so that others could make adventures to run with AD&D without referring it specifically to AD&D per se.

Thus was born OSRIC.

OSRIC didn't use the OGL?

 

[Dausuul]

Everything there merges because all the terms used are used as mechanics: Invisibility, 2nd level spell, illusion, spell, casting time, action, range, area, touch, components, verbal, somatic, material, duration, concentration, cast, invisible, target, attack, spell slot, 3rd level spell slot. All you've got left are adverbs, prepositions, and conjunctions.

The logic "X is composed of uncopyrightable pieces, therefore the whole is also uncopyrightable" is absolutely not sound. Literally every copyrightable thing is composed of uncopyrightable pieces.

 

[Composer99]

OSRIC didn't use the OGL?

Based on their wiki, they sure did.

 

[TerraDave]

This, I think, is the most interesting bit:
......

Good lord. I used to think the SRD was 90% unprotected by copyright, but now I think the SRD is basically 99% unprotected by copyright, and the only parts of it that are... are the parts we probably don't care about. ...

That was the big reveal for me. I found it easier to think in terms of non-fiction, and really boring fact based non-fiction, with which I am quite familiar.

For non-fiction, you can't copyright either factual information or common terms and expressions, including technical ones. Even if someone came up with that term--and they probably did.

Game mechanics works like factual information and common terms and expressions. Now apply all this to the SRD.

 

[Cadence]

@Greg Benage noticed it had an important update and posted about it in: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

To check it out yourself, revisit:

Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

The company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of the game.

www.eff.org

Or, here's the update:

 

[Rabulias]

I don't know if I would expect the EFF to take up this banner. They identify themselves on their website as "The leading nonprofit defending digital privacy, free speech, and innovation." I mean, maybe the OGL would fall under free speech and/or innovation?

Many have mentioned the overlap the OGL shares with open source software. Maybe it would be better to bring this to the attention of the Open Source Initiative (or a similar organization):

Open Source Initiative

The steward of the Open Source Definition, setting the foundation for the Open Source Software ecosystem.

opensource.org

Anyone have membership or connections to an open source foundation or the like?

 

[Cadence]

I don't know if I would expect the EFF to take up this banner. They identify themselves on their website as "The leading nonprofit defending digital privacy, free speech, and innovation." I mean, maybe the OGL would fall under free speech and/or innovation?

Many have mentioned the overlap the OGL shares with open source software. Maybe it would be better to bring this to the attention of the Open Source Initiative (or a similar organization):

Open Source Initiative

The steward of the Open Source Definition, setting the foundation for the Open Source Software ecosystem.

opensource.org

Anyone have membership or connections to an open source foundation or the like?

The EFF lawyer who wrote the piece is a Nebula and Ennie winning game designer (with IP litigation experience and more), so I'm kind of hoping... although she didn't seem a fan of what 1.0a offers (at least as of earlier today):

and started looking into it because of other folks at EFF:

She also has a bunch of posts about open license she uses on her feed.
---

As an aside, she also liked this here on ENworld: The Ultra-Mysterious History of D&D's Iconic Monsters

 

[GreyLord]

OSRIC didn't use the OGL?

Not originally if I remember right.

I could be misremembering at my age, but I thought they made it initially and then agreed to use the OGL at a later date so that any question of whether it actually was legal or not would become a non-issue.

PS: If I remember right, it means that they could take up their former stance if 1.0a was taken away, but it also, of course, opens them up again to the original question on how much they could replicate AD&D by using the mechanics cannot be copyrighted excuse.

PPS: for better clarification we could go to Dragonsfoot and ask Stuart, things can get foggy when you get old.

AND PPPS:

Looking at this quote

This document represents a compilation of rules for old school-style fantasy gaming. The book is intended to reproduce underlying rules used in the late 1970s to early 1980s, which being rules are not subject to copyright, without using any of the copyrighted “artistic presentation” originally used to convey those rules. In creating this new “artistic presentation,” we have made use of the System Reference Document produced by Wizards of the Coast (“WOTC”).


The reason for going back to square one and restating the underlying rules is simple. It allows old school publishers (both commercial and fans) to reference the rules set forth in this document without making reference to any protected trademark. (This document is trademarked, but the use of the trademark is permitted under the terms of the OSRIC Open License—see below). By using this document in tandem with the Open Game License (“OGL”) of WOTC, a publisher should be able to create products for old-school fantasy gaming and clearly refer to this particular rule set without violating the terms of the OGL.


Thus, in many ways, this entire book is nothing more than a tool for old-school writers, a stepping stone to put the original, non-copyrightable portion of the old-school rules into an open license, as permitted by law. Great pains have been taken to ensure that we have used none of the original artistic presentation, for we have the greatest possible respect for the authors who originally created these games.


We considered the non-copyrightable rules to be the numerical algorithms that would be in a computer version of the game (most precedent in the area of game copyrights has come from computer games, not RPGs), and have included these and the relations between the results of the formulae. “To hit” numbers are a clear example. On the other hand, level titles other than “name” level are clearly artistic presentation and are excluded.


When “name” level does not create a numerical effect such as taxes from a stronghold or the ability to improve fighting power with followers, we have not used name level titles, even though the titles themselves are generic words.


In a few cases you may find that rules themselves have been clarified, or are more based on the SRD than on original rules (when it was difficult to separate rules from artistic presentation). The greatest difference is in the inclusion of some random factors into the experience progression.

It appears I was wrong....oh well.

There's always Paladium...

They DO have this though, which IMPLIES that it actually does not NEED the OGL if they so desire, though it WOULD open up the can of worms in regards to whether there would or could be a lawsuit.

Thus, in many ways, the entire OSRICTM book is nothing more than a tool for old-school writers, a stepping stone to put the original, non-copyrightable portion of the old-school rules into an open license, as permitted by law. Great pains have been taken to ensure that we have used none of the original artistic presentation, for we have the greatest possible respect for the authors who originally created these games. We considered the non-copyrightable rules to be the numerical algorithms that would be in a computer version of the game (most precedent in the area of game copyrights has come from computer games, not RPGs), and have included these and the relations between the results of the formulae. "To hit" numbers are a clear example. On the other hand, level titles other than "name" level are clearly artistic presentation and are excluded. When "name" level does not create a numerical effect such as taxes from a stronghold or the ability to improve fighting power with followers, we have not used name level titles, even though the titles themselves are generic words.

 

[S'mon]

True. I do think it is possible to read these threads and come away with a much deeper understanding of the whole thing than you get from that article. However, this requires paying close attention to who appears to be an actual lawyer (or law professor), and ignoring anything said by anyone not on that list.

While I think that's mostly true, I have occasionally gained insights from posts by non-lawyers on the 'clearing up confusion thread'. They certainly sometimes raise questions I've not considered. Conversely the OP post there by a lawyer had a lot of problems and IMO gained a lot more deference than it deserved, simply because it was the OP and he appeared to be speaking with authority. A bit of a Dunning-Krueger effect perhaps, where the lawyers with more expertise in the field are more reluctant to pronounce with certainty.

Not knowing that much about the US litigation environment myself, I found the disagreements between US lawyers interesting too. It seems there to be more a question of different perspectives and outsized personalities.

 

[BMaC]

@Greg Benage noticed it had an important update and posted about it in: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

To check it out yourself, revisit:

Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

The company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of the game.

www.eff.org

Or, here's the update:
View attachment 272121

Wow, so the author is basically saying their initial take was way off. This clarification is much more in line with what the IP lawyers I know (and have read commentary of) have been saying.

 

[ilgatto]

Well, for one thing the EFF article has finally made me understand the OGL.

 

[Nodoze]

Let's get @Hasbro & @Wizards top executives called in front of public Congressional hearings...

Go to Twitter for this article & like the Tweet & like the Tweet Replies that call for investigations & public hearings...

 

[dave2008]

Unfortunately they agree it can be revoked. However, they have a fairly conservative idea of what is actually copyrightable and believe you can probably use most of the D&D game without the OGL, possibly more than you can with it!

Hate to quote myself, but evidently the update the post and clarified it can't be revoked?

 

[Uta-napishti]

It can't be revoked for people who have published something under the OGL 1.0a is the EFF's new position.