D&D General Frylock on the ‘Ineffectual OGL’

[Maestrino]

If I was a lawyer, I'd be arguing that the stat block is a descriptive block of text describing how this specific game-related entity interacts with the player's characters under the game mechanics.

 

[Sorcerers Apprentice]

No, they aren't.

Trademarks and copyrights are completely different things.

Yes exactly! But media companies like to treat them as if they're the same, hence the muddling effect.

 

[S'mon]

Part 3 has been posted: Part 3: The Damage Done by the Otherwise Ineffectual Open Gaming License #DnD #copyright #iplaw #ogl

" 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.

 

[S'mon]

So, his very first paragraphs has an astounding error:

No, the OGL and SRD tell the public what material was protected under normal copyright, and what was usable under the OGL,which does have some restrictions. It says so, right on WotC's SRD page. There is no public domain involved at all.

This phenomenally large error indicates to me... that we really shouldn't be paying attention to this person. Why are we reading what this guy writes?

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.

 

[S'mon]

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!

 

[S'mon]

He's claiming the OGL is an unenforceable document -that bears watching. Especially as he seems to be an experienced IP attorney and looks to be throwing bombs at WoTC.

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]

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.

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.

 

[S'mon]

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.

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.

 

[Beleriphon]

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."

 

[Mort]

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.

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.