WotC Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

[pemerton]

Fyrlock did put a own copyright sign/tag for his stat blocks on the published stat blocks, which implies in my personal view, that he made them up from scratch (at least, that is how I understand copyright) and thereby infringing/violating copyright laws, since the original stat blocks were the basis for his own and not his own generic work

once he slapped his OWN copyright on it...that starts to be pretty clear cut. He would have had to delineate between what is HIS and what is NOT...but if he included the WotC formats and patterns in his own work and simply said it's copyright to him...well....not a GOOD thing from my viewpoint/opinion.

I'm happy to be corrected by @S'mon, but I don't think very much in this issue turns on Frylock's assertion of copyright over his published work. (As I posted upthread, it's not entirely clear what he is claiming copyright over but his publication certainly includes text that goes beyond the content of MM stat blocks.)

Is the visual presentation of game mechanics/content copyrightable or not? If the answer is yes (which I think is here the case, since the creativity behind this presentation process is unique), then a similar (albeit modified version) presentation might lead to confusion about the origin of the product in question.

Confusion of producers is a concept that pertains to TM law, not copyright law.

But my understanding is that visual design/formatting is a copyrightable work. Although the content may not be.

If a license is published/made public it can be revoked, right? Why is the OGL considered unrevokable?

<snip>

If Frylock wouldn´t have placed his own copyright tag under the product in question and added an approbate license (OGL or 5E, whatever would be approbate here), then as I understand it, the whole affair would not have happened. So my stupid question is here: Why pose something as your own and make a big wind about it when notified about it, when there are possibilities to avoid that and still publish your work?

The OGL is a standing offer by WotC to enter into a conract (in the form of a license of IP rights) on certain terms. WotC can withrdraw that offer at any time (given that no one has paid them to make it),

Anyone who has taken up the offer and entered into the contract has rights which are, according to the terms of the licence, irrevocable. Whether those terms actually govern the agreement or whether there are other legal rules affect the term of the licence is something I don't know. @S'mon?

As far as Frylock is concerned, he has long been a critic of the OGL on the grounds that, under it, WotC asserts IP rights that it does not actually enjoy and gets people to contract away rights that they otherwise would enjoy. So I don't think he is interested in himself becoming a party to it.

 

[lowkey13]

*Deleted by user*

 

[Umbran]

The OGL is a standing offer by WotC to enter into a conract (in the form of a license of IP rights) on certain terms. WotC can withrdraw that offer at any time (given that no one has paid them to make it),

Anyone who has taken up the offer and entered into the contract has rights which are, according to the terms of the licence, irrevocable. Whether those terms actually govern the agreement or whether there are other legal rules affect the term of the licence is something I don't know. @S'mon?

That is, by my understanding, not quite correct. The OGL is a standing offer, yes. But, by the terms of the license, once they make the offer for a particular work, the offer is irrevocable, not just the license once taken up. There is no time they can say, "everyone who previously took up that license is okay, but no new works can be made under this license."

Basically - WotC released 3e under the OGL. There's no backsies on that - WotC can re-release it under some other license too, but the version that was released under OGL is now open to use for all time. In 20 years, if someone wants to do a 3e work under the OGL, they will be able to do so, no matter what WotC wants.

 

[pemerton]

That is, by my understanding, not quite correct. The OGL is a standing offer, yes. But, by the terms of the license, once they make the offer for a particular work, the offer is irrevocable, not just the license once taken up. There is no time they can say, "everyone who previously took up that license is okay, but no new works can be made under this license."

Basically - WotC released 3e under the OGL. There's no backsies on that - WotC can re-release it under some other license too, but the version that was released under OGL is now open to use for all time. In 20 years, if someone wants to do a 3e work under the OGL, they will be able to do so, no matter what WotC wants.

This is not corrrect in my view. WotC can withdraw their offer at any time given that no one has paid them to make the offer. At that point anyone who wants a licence from WotC would need to negotiate with them.

What you may be referring to is the fact that every person who has entered into the OGL with WotC has promised to offer a licence to others on the same terms in respect of the Open Game Content pubished by pursuant to the licence. This includes (by way of contractual definition) any work - such as the SRD - covered by the OGL. So while WotC can withdraw its offer, anyone else who published the SRD pursuant to the OGL is contractually obliged to offer to others the right to publish that material under the OGL.

(Note that WotC is not similalry obliged because, as far as I know, it has never published any works relying on the OGL for the authority to do so.)

By now it would be quite tricky, I think, to identify the web of OGL contractual obligations and hence to determine who might have what contractual rights in relation to the making of those offers.

How anyone might go about revoking those further offers is another question I'll leave to @S'mon - I have intuitive doubts about the vIability of a perpetual contractual obligation to maintain a standing offer to the whole world, but my intuitions may be wrong.

 

[Parmandur]

Well the (non-legal) concept of Plagiarism is not the same as the legal concept of Copyright Infringement.

True, but I'm establishing the minimum level of creativity in court that might be persuasive to judge & jury.

 

[Umbran]

This is not corrrect in my view. WotC can withdraw their offer at any time given that no one has paid them to make the offer. At that point anyone who wants a licence from WotC would need to negotiate with them.

Your view... is not supported by the text of the license, nor the intent of its architect:

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners."
- Ryan Dancey, On the Goals of the OGL

Section 9 of the license clearly states that, should WotC change the license, you are authorized to use the work under ANY PREVIOUSLY AUTHORIZED VERSION of the licence. So, once the game is released with the license attached, that version of the licence cannot be removed from use with that content.

Unless you think Mr. Dancey was incompetent, and the license text doesn't mean what he, and loads of others since, have said about it, then I'm sorry, but you are simply incorrect. Once a game has been issued under the OGL, that license applies to that release in perpetuity.

 

[Deleted member 7015506]

@Morrus

Seems like I messed up on correctly identifying IP and PI there. But I think I get the difference now: While IP is a kind of synonym for “genuine creativity”, PI is something more vague (at least I get that impression). I googled PI a bit (not too deep) and found that:

Brand Identity:

How Brand Identity Is Defined and the Role It Plays in Marketing

Brand identity is defined by how you want the consumer to perceive your product. Here is the role it plays in your marketing and why it's important.

www.thebalancesmb.com

Product Identity:
What is Product Identity?

And I found that for defining IP:

What is Intellectual Property (IP)?

An easy-to-read overview of the different forms of IP. Includes patents, trademarks, copyright, industrial designs and more.

www.wipo.int

Not that I am a lawyer in any way or these links may be the final word on the subject, but I believe a halfway good american lawyer can construct out of that a “prove”, that the problem we discuss here is violating copyright in one way or the other.

Now I don´t know how IP/PI/copyright laws and regulations interact with each other, but I have the subjective impression, that Fyrlocks claim is on very thin ice even regarding US courts.

@pemerton

I agree with you, that the basic intention of the whole affair is obscure at least. If I assume, that the copyright tag placed by Fyrlock is aimed for his altered/modified stat block “design”, then I have no clue, if such a modification is legally safe according to US law and justifies the copyright tag he placed underneath it.

Now if I take your remark about Fyrlocks stand against the OGL into account, I have to ask myself what IP rights are asserted this way by WotC and which are denied to the people publishing under that license? AFAIK the SRD is pretty wide spread/covers a great deal of the game and as I understand the OGL it is there to ensure, that the published material is not misused by others for one reason or another (one of the reasons I guess). The only “valid” point I can see is, that once you publish something under the OGL, others also have the right to use that material for their products (which isn´t actually bad IMHO). Or is he really questioning the genuine nature of tons of material TSR/WotC published?

Personally I think Rian Dancey spearheaded for it, since he wanted to ensure that D&D is not going into oblivion if WotC would not be happy with their new purchase and resell it again (just like Umbran said, beat me for that - writing my posts on a texteditor, sorry). Fortunately things went different and the game is bigger than ever.

@Umbran

I hope, that your last statement holds true regarding section 9 of the OGL, but I know how contract laws and legal disputes can come out (had some of those in the past and I always drew the shorter straw despite so called “written law”). Never know what a US court is deciding if WotC would really enforce to withdraw/revoke the OGL. A probable valid argument for a withdrawing of the OGL would be the financial damage WotC is suffering through “lost” sales that went into the OSR market.

Subjectively spoken I fear that you might be right and WotC can pull the plug on the OGL.

Sorry for derailing the discussion with my OGL comments and questions.

 

[Morrus]

@Morrus

Seems like I messed up on correctly identifying IP and PI there. But I think I get the difference now: While IP is a kind of synonym for “genuine creativity”, PI is something more vague (at least I get that impression). I googled PI a bit (not too deep) and found that:

Brand Identity:

How Brand Identity Is Defined and the Role It Plays in Marketing

Brand identity is defined by how you want the consumer to perceive your product. Here is the role it plays in your marketing and why it's important.

www.thebalancesmb.com

Product Identity:
What is Product Identity?

You're definitely confusing terms here. What you've Googled is just a common English usage of the phrase "product identity" akin to "brand identity".

In the context we're discussing this, "Product Identity" is a specific thing created by and defined in the OGL. The OGL specifically lists what is PI in its text. The OGL divides a work into "Open Game Content" and "Product Identity".

1. Definitions: (a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content; (b)"Derivative Material" means copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted; (c) "Distribute" means to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute; (d)"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. (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 clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content; (f) "Trademark" means the logos, names, mark, sign, motto, designs that are used by a Contributor to identify itself or its products or the associated products contributed to the Open Game License by the Contributor (g) "Use", "Used" or "Using" means to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content. (h) "You" or "Your" means the licensee in terms of this agreement.

Subjectively spoken I fear that you might be right and WotC can pull the plug on the OGL.

Again, the OGL itself addresses this in its own text.

"4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

13 Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

It defines the "Consideration" (what you pay) as the act of agreeing to use the license. I don't know if that technically can constutute consideration, but one of the lawyers here can speak to that better than I. But if so, the license is perpetual; it can't be taken back. If I license "EN World" to you perpetually for a dollar, I can't change my mind later if you've paid me the dollar; you have those licensed rights perpetually. The question people might raise here is whether agreeing to a license counts as having 'paid' (consideration), as something of value needs to be exchanged.

 

[Staffan]

This is not corrrect in my view. WotC can withdraw their offer at any time given that no one has paid them to make the offer. At that point anyone who wants a licence from WotC would need to negotiate with them.

I'm not a lawyer, but I think what makes the OGL effectively irrevocable is this:
"9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."

So, since the SRD was originally distributed under the OGL 1.0a, anyone can use the OGL 1.0a (or any revision to it Wizards might offer) to keep distributing or make stuff based on it.

 

[Deleted member 7015506]

Thanks for clarifying this for me Morrus, deeply appreciated.

And one thing I noticed is the part of PI, stating "....designs,...formats...., ...and graphic, ...and other (highlighted by me) visual...representations". So even if Fyrlock would (highlighted by me) enclose the OGL, it would be an infringement of copyright ( I think), since he didn´t enclose any license at all. And even if he would, would the publications of his stat blocks be legal or still be infringing copyright rules? I highly doubt it (personally spoken here)

So to sum it up for me:

The whole affair is perhaps cooking hotter than it should. Fyrlocks case is on very thin ice and hopefully the OGL persists and WotC doesn´t revoke it in some obscure way or the other.

Thanks for taking your time in reading and responding to my posts.

Greetings