D&D General Frylock on the ‘Ineffectual OGL’

[Umbran]

Well he's also claiming to be an authority on the matter.

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]

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.

 

[Dausuul]

I am not a lawyer and cannot judge the merit of his legal claims.

But I am a DM, and that post looks an awful lot like a player talking very fast to try and slide some clearly fallacious argument past me.

 

[Umbran]

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

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]

With respect, the OGL is not restricting use. It is allowing use of material that would otherwise be restricted by copyright.

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.

 

[Umbran]

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".

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]

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.

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.

 

[Dausuul]

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?

 

[lowkey13]

*Deleted by user*

 

[Beleriphon]

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.

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.