He's apparently an IP lawyer. His website doesn't present him as some sort of leader in the field. We have IP lawyers here, too. WotC had IP lawyers when the OGL was created.
D&D General Frylock on the ‘Ineffectual OGL’
- Thread starter DM Magic
- Start date
He's apparently an IP lawyer. His website doesn't present him as some sort of leader in the field. We have IP lawyers here, too. WotC had IP lawyers when the OGL was created.
Sorcerers Apprentice
Hero
If, and I say if it turns out that the OGL is unenforceable, it will be in a way that doesn't allow WotC to restrict how you use the licensed material, since that's the only part of the license that's potentially "enforceable" in the first place. Green Ronin and other downstream users will be fine, possibly even better off if the OGL is overruled.
With respect, the OGL is not restricting use. It is allowing use of material that would otherwise be restricted by copyright.
If the OGL is unenforceable, I think (a lawyer can correct me if I am wrong) the license is apt to be considered null and void, and then normal copyright applies.
Then, while you can't copyright the logic of rules, all the terms used may still fall under copyright, as they are part of the particular expression of the logic. So, terms like "Hit Points" and "Armor Class" and "Saving throw" and "Spell level" are no longer free-and-clear. If you aren't WotC, you may need to move to "Health", "Armor Rating" and "resistance check" and such like.
It wouldn't be pretty.
Sorcerers Apprentice
Hero
It's allowing the use of copyrighted material, in exchange for not doing other things that you would normally have the right to do, such as referring to a monster as a "Beholder".
Certain people like Frylock think that this is not a fair deal, since they believe they already have the right to use the copyrighted material in question under Fair Use, and so the OGL seems like a big scam where you give up your rights for nothing.
So if Frylock were to somehow win this case, the precedent would be that OGL publishers can keep going like they always have, but they would no longer have to abide by WotC's restrictions.
I don't see how you;d have that right. You could call a dragon a dragon. And a zombie a zombie, because those terms existed before the game - there is prior art. But a beholder isn't a thing out of a prior mythology. It was created by people at TSR, out of whole cloth. You don't get to take that as your own.
Sorcerers Apprentice
Hero
The exact boundaries between Trademarks, Copyrights and Fair Use are kinda muddled when it comes to such cases, which is why WotC decided to make obeying their PI restrictions a condition for the OGL, instead of leaving it up to some unpredictable future court decision.
The core of his argument seems to rest on the following definition from the OGL:
"'Open Game Content' means the game mechanic and includes the methods, procedures, processes
and routines to the extent such content does not embody the Product Identity and is an enhancement
over the prior art and any additional content clearly identified as Open Game Content by the Contributor,
and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."
He argues that "the game mechanic [and] methods, procedures, processes and routines" are not copyrightable, therefore the OGL does not offer any consideration to licensees, therefore it is not a valid contract.
I could be wrong, probably am, but my layman's understanding is that "prior art" is a term of patent law, not copyright or trademark. Something which improves upon the prior art is patentable, something which doesn't is not. This makes sense: If game mechanics are patentable (and WotC claims a number of such patents), the OGL would have to cover patent rights. And there is a second part to the definition stating that "Open Game Content" also means "any work covered by this License, including translations and derivative works under copyright law."
So it seems like this definition is basically saying, "You get a license to use mechanics we have patents on, and/or text we hold copyright to." Which sure seems like a valid consideration to offer your licensees. Frylock is focusing on the first few words of the definition and ignoring everything else.
Do I have all that right?
"'Open Game Content' means the game mechanic and includes the methods, procedures, processes
and routines to the extent such content does not embody the Product Identity and is an enhancement
over the prior art and any additional content clearly identified as Open Game Content by the Contributor,
and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."
He argues that "the game mechanic [and] methods, procedures, processes and routines" are not copyrightable, therefore the OGL does not offer any consideration to licensees, therefore it is not a valid contract.
I could be wrong, probably am, but my layman's understanding is that "prior art" is a term of patent law, not copyright or trademark. Something which improves upon the prior art is patentable, something which doesn't is not. This makes sense: If game mechanics are patentable (and WotC claims a number of such patents), the OGL would have to cover patent rights. And there is a second part to the definition stating that "Open Game Content" also means "any work covered by this License, including translations and derivative works under copyright law."
So it seems like this definition is basically saying, "You get a license to use mechanics we have patents on, and/or text we hold copyright to." Which sure seems like a valid consideration to offer your licensees. Frylock is focusing on the first few words of the definition and ignoring everything else.
Do I have all that right?
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L
lowkey13
Guest
*Deleted by user*
Beleriphon
Totally Awesome Pirate Brain
The argument is you can't copyright a single word, regardless of how unique or original it might be. I can't claim copyright on "flargatargaratbateranterun" as a word. But my post as a whole I could. Frylock's basic argument is effectively that beholder can't be copyrighted (he's right), the block describer how use said monster can't be copyrighted (he's maybe right), so go ahead and reproduce the behold stat block if you want as long as you don't include the underlying descriptive material, which would be original and even using different words would make the description to similar to the WotC copyrightable material. Without the descriptive portion its all "game mechanics" and thus not subject to copyright.
In effective his entire argument, including that the OGL and OGC material is not enforceable, relies on his argument that things like stat blocks and spell descriptions can't be sufficiently separated from the mechanical acts of rolling dice. There's probably a way to separate dice mechanics from the useful non-mechanical, or at least copyrightable expression there of part. If nothing else WotC argument will be that sure, you can reproduce that without infringing: Here's a dozen ways you can do it, stop using the one we chose.
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Sorcerers Apprentice
Hero
Yes exactly! But media companies like to treat them as if they're the same, hence the muddling effect.
" the game rules (a.k.a., “game mechanics”), which are not copyrightable"
He seems to confuse the game process rules such as "roll d20+modifier vs Target Number" with 'rules' in the sense of the actual written text of a game, which is just as copyrightable as any other text. The pure concept of a 'rule' is not copyrightable (though it may occasionally be patentable, eg WoTC's 'card tapping' patent), but that doesn't mean you can just photocopy the rules text of someone else's game and sell it - or create an adaptation or derivative work based on that text.
Edit: To give a closer example - I am pretty sure I can have fireballs that do 8d6 damage in a 20' radius in my self-authored RPG and not infringe WotC copyrights. But if I take the text of the 5e Fireball spell and copy it, literally or, potentially, non-literally (eg by writing a paraphrased version) then I likely infringe WotC's copyright. I can take the idea, even the whole idea, but not any of the particular expression of that idea.
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Yes, I agree. I really don't know why anyone with any knowledge of this stuff would think that "Product Identity" meant "the stuff that is copyright protected" and "Open Content" meant "stuff that is Public Domain".
Obviously 'Product Identity' is stuff WoTC want(ed) to keep control over, for whatever reason. Some of that is stuff that IMO they would probably not be held to have copyright in, the copyright law I'm familiar with (UK & EU), for instance I'd be pretty amazed if they could show they owned the copyright in the original appearances of Charles Stross' Githyanki, Githzerai, Slaads etc in early issues of White Dwarf.
Conversely, much - most - 'Open Game Content' is stuff they clearly do own copyright in, such as the stat blocks and descriptive text in the d20 SRD.
He thinks the OGL does not licence anything not public domain, but I think he has misread 1(E):
(e) "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...
He seems to think this is saying that any of the above material in the SRD (etc) is not OGC and so not licenced under the OGL. But the clause goes on to say
... clearly identified as Product identity by the owner of the
Product Identity, and which specifically excludes the
Open Game Content;
My reading of this is that material described in the first part of the clause is only PI if it is designated (clearly identified as) PI by the 'owner' of the PI. As far as I can see, this is pretty clear language and I can't see how it could be read otherwise by a lawyer?
But if he were right and the OGL is a scam & did not in fact grant anything of value, so no consideration moving from WoTC, so no contract, what then? WoTC would still have all their existing copyrights. And this certainly makes no difference to Frylock, who doesn't use the OGL!
(e) "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...
He seems to think this is saying that any of the above material in the SRD (etc) is not OGC and so not licenced under the OGL. But the clause goes on to say
... clearly identified as Product identity by the owner of the
Product Identity, and which specifically excludes the
Open Game Content;
My reading of this is that material described in the first part of the clause is only PI if it is designated (clearly identified as) PI by the 'owner' of the PI. As far as I can see, this is pretty clear language and I can't see how it could be read otherwise by a lawyer?
But if he were right and the OGL is a scam & did not in fact grant anything of value, so no consideration moving from WoTC, so no contract, what then? WoTC would still have all their existing copyrights. And this certainly makes no difference to Frylock, who doesn't use the OGL!
I have never seen anything like these posts emanate from an "experienced IP attorney!" Maybe he is, but he certainly wouldn't be my first choice for representation. Whereas Hasbro lawyers seem to know their stuff pretty well from everything I've ever seen - remember Hasbro is a BIG company with a lot of IP interests to defend. This is not TSR; they can afford good-quality in-house counsel.
LordEntrails
Hero
This brings to mind a recent discussion I had on legislative processes. The interesting thing that was presented in that discussion is that lawyers approach a problem/issue very differently than how a scientist (engineer, etc) does. And this has significant impact on our judicial system.
For instance, a scientist uses the Scientific Method which (roughly) has them make observations, develop a theory, and then test that theory with experimentation. It strives for a repeatable solution independent of undocumented factors.
Law doesn't work like that. (And hopefully someone with expertise in this fields can correct and expand upon this; @S'mon ?) Instead law is a system based (I think) Argumentation Theory. This is where one person/side/party makes a premise, and then finds support for that. And "fairness" or "justice" is obtained by having each side represented by legal experts and the side with the stronger legal argument (is supposed to) win. (Not that I have a better system, but evidence of the flaws in such a system are abundant.)
What this means is that one side has a view or opinion, something they want to be true, and then they find evidence to support what a scientist would consider a conclusion. Rather than starting with an open mind or an observed issue and then trying to determine what the results should be, the answer is pre-supposed.
I think this should be kept in mind. Assuming Frylock is a lawyer, he has been trained to think in a certain manner and to solve problems in a certain manner. And that is simply to take something he wants (i.e. 'I want to publish my own more useful version of the D&D stat blocks') and then builds a justification for being able to do so.
Perhaps his opposition to WotC, the OGL, etc pre-dates his desire to publish his own version of the stat blocks, but in the end, he wants to do something and is trying to justify it. I doubt he comes from an altruistic origin where instead he saw a wrong (i.e. 'the OGL hurts the RPG community') and has taken to righting it.
Sure - but to win, you must also be able to address and defeat any counter arguments that are raised.
One reason that legal advice is priviliged (kept confidential) is that lawyers need to be able to tell clients about weaknesses in their case, without that discussion giving the other side's lawyers ideas. If a lawyer's advice to his client could be used against his client, he would only ever tell the client what the client wanted to hear. Bad lawyers already do this, since they reckon the client will give them more money that way... no need to give them an excuse.
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Beleriphon
Totally Awesome Pirate Brain
Sure - but to win, you also be able to address and defeat any counter arguments that are raised.
One reason that legal advice is priviliged (kept confidential) is that lawyers need to be able to tell clients about weaknesses in their case, without that discussion giving the other side's lawyers ideas. If a lawyer's advice to his client could be used against his client, he would only ever tell the client what the client wanted to hear. Bad lawyers already do this, since they reckon the client will give them more money that way... no need to give them an excuse.
Thus why my law professor (the one who specialized in criminal law, then later on civil actions) loved clients that would fight on "for principle" rather than settle. He would always get paid no matter what.
My favourite saying saying for trial lawyers, "When the law is against you pound on facts. When the facts are against you pound on the law. When both are against you pound on the table."
Well I say experienced from a strictly "time in practice" perspective. I checked, and he seems to have been practicing from at least 2001.
His actual arguments do seem extremely sloppy, well that or disingenuous, which is worse.
