D&D General Frylock on the ‘Ineffectual OGL’

[lowkey13]

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[Morrus]

Knock it off, you two.

 

[Shardstone]

deleting

 

[lowkey13]

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[S'mon]

severe downside, including but not limited to issues like opening you up to discovery

By discovery you mean the other side's lawyers reading your blog?

 

[UngainlyTitan]

I find the commentary here much more amusing than the original topic. My initial thoughts, which have not really changed since originally coming across this, was, "What a cheeky fecker". Claiming to own stuff that he clearly did not.
I am in no position to judge the legal arguments but the commentary here is illuminating.

 

[S'mon]

Re legal arguments - for this post I had to actually read both his argument ,AND reread & parse the OGL clause terms - I never normally do that much work unless I'm being paid!

 

[lowkey13]

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[lowkey13]

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[seebs]

To be fair, there's a ton of copyright cases that basically say that game rules aren't copyrightable, and some of them might be moderately on-point. The argument would then be that the OGL is a trick -- it's offering you special terms under which you're permitted to do something you could have done anyway, etcetera.

I wouldn't want to be the one to argue the case, in general. But there is definitely previous legal history for the notion that the rules of a game can't be protected by copyright, which is why so much attention goes into the brand identity stuff, which is much easier to defend.

Disclaimer: I'm not a lawyer.

 

[S'mon]

If I was opposing counsel, I know what my RFPs and rogs would include. And there's always the possibility of depositions.

For anyone confused by lowkey's terminology, I found this site quite useful.

 

[S'mon]

To be fair, there's a ton of copyright cases that basically say that game rules aren't copyrightable, and some of them might be moderately on-point. The argument would then be that the OGL is a trick -- it's offering you special terms under which you're permitted to do something you could have done anyway, etcetera.

I wouldn't want to be the one to argue the case, in general. But there is definitely previous legal history for the notion that the rules of a game can't be protected by copyright, which is why so much attention goes into the brand identity stuff, which is much easier to defend.

Disclaimer: I'm not a lawyer.

Like I said here, text does not become public domain simply because it incorporates game rules. It's the procedures & processes described by the text that are not copyright protectable. You can't just copy the text of someone else's game rules, that will infringe their copyright. This is so even though in theory you might be able to create a game with identical rules to theirs without infringing their (c).

 

[lowkey13]

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[seebs]

Like I said here, text does not become public domain simply because it incorporates game rules. It's the procedures & processes described by the text that are not copyright protectable. You can't just copy the text of someone else's game rules, that will infringe their copyright. This is so even though in theory you might be able to create a game with identical rules to theirs without infringing their (c).

That is roughly how I assumed it would work, but the rulling in Allen v. Academic Games went significantly further than that. It's not exactly precedent in most circuits, and I don't know whether it would hold up today, but they did pretty directly conclude that you can in fact simply reproduce some of the unaltered text of a game rule in order to describe the game. There's a substantive disputed point.

And of course, when people talk about making D&D modules, they aren't proposing to duplicate the text of the D&D rulebooks; they're talking about using words like "strength", or saying things like "this character is a level 4 fighter", and it's really hard for me to see how that could possibly infringe a copyright on the core books...

 

[Umbran]

To be fair, there's a ton of copyright cases that basically say that game rules aren't copyrightable

My understanding (which someone can correct if they know better) is that you cannot copyright a process, procedure, system, or logical form. You can patent a process or system, but not copyright it.

In fiction, what this means is that the plot of your work is not covered by copyright. If Hamlet were written in the 20th Century, the musical West Side Story would not be violating copyright. You can't copyright star-crossed lovers, families in conflict, and young people acting rashly such that someone ends up dead.

However, the particular expression of your rules, logical form, process, or what have you is covered by copyright. If, in the process of explicating your process in a product, you make up names and terms, those names and terms are covered by copyright.

So, you can't copyright now a young man hears a call to adventure, and learns that his father, thought long dead, is actually the BBEG, and you have to fight him. Call them Luke and Vader, and you may have an issue.

The idea of a numerical value that tracks the health of a fictional character is not covered by copyright. If I call that numerical value the character's "Frommulus," then that becomes part of my particular expression. Take too much of my particular expression - use too many of my made-up terms - and a case is made for infringement.

 

[S'mon]

That is roughly how I assumed it would work, but the rulling in Allen v. Academic Games went significantly further than that. It's not exactly precedent in most circuits, and I don't know whether it would hold up today, but they did pretty directly conclude that you can in fact simply reproduce some of the unaltered text of a game rule in order to describe the game.

A 2-minute Google indicates to me that this was decided mostly on fair use grounds, not saying that game rules text lies outside outside copyright protection?

In Britain/English Law they'd probably talk about equitable licences to use the game in the way it was intended.

Edit: I now see the issue re merger of idea/expression limiting protection afforded to derivative works.

 

[S'mon]

And of course, when people talk about making D&D modules, they aren't proposing to duplicate the text of the D&D rulebooks; they're talking about using words like "strength", or saying things like "this character is a level 4 fighter", and it's really hard for me to see how that could possibly infringe a copyright on the core books...

Oh, sure, I definitely agree with that. The kind of activities TSR tried to stop in the 1990s definitely were not copyright infringing AFAICT. But that is not what Frylock is up to.

 

[lowkey13]

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[S'mon]

In fiction, what this means is that the plot of your work is not covered by copyright. If Hamlet were written in the 20th Century, the musical West Side Story would not be violating copyright.

I expect that's right. But you can have non-literal copyright infringement if you take too much of the detailed plot. I was pretty gobsmacked that Gladiator was not an authorised remake of Decline And Fall of the Roman Empire when it follows the latter's story beats so closely. Definitely sailing close to the wind.

 

[lowkey13]

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