Game Mechanics & Product Identity

[Cergorach]

There is a loophole. I can create a game mechanic that has nothing to do with the SRD. (How to simulate a game of poker with die rolls?) Since the rules to poker and the way dice are rolled are not OGC, I can include this "game" in an OGL covered product and PI the rules.

This is highly doubtfull, because the mechanics you use are also used by OGL content. And although you might have come up with the rules without 'leaning' on OGL content, you do include them in a product that contains OGL material. And that implies it's based on OGL content. I think that you could create a game within an OGL product that is PI, but the rules of one shouldn't 'interface'.

'interface' is something different than conversion (guidelines that transform one set of stats into another).

 

[The Sigil]

IANAL, but here's my short answer:

Think of it this way.

1.) "Open Game Content" describes a MINIMUM. The MINIMUM that you MUST open under the Open Game License is the "game mechanic... methods, procedures, process, and routines" - in other words, anything having to do with statistical stuff, die-rolling, or otherwise related to mathematics and/or probability. You are allowed to open MORE, but not LESS. One more thing to consider - if you publish with the d20 logo (and hence bind yourself to the terms of the d20STL), you gain an additional provision as relates to the MINIMUM of OGC: at least 5% of the work must be OGC, which may require you to open more than "just the mechanics."

2.) "Product Identity" describes a MAXIMUM. The MAXMIUM that you can call "Product Identity" is basically stuff you could write as fiction/prose that does not have to do with statistical stuff, die-rolling, or otherwise rlated to mathematics and/or probability. You are allowed to "close" LESS, but not MORE.

3.) The OGL does NOT trump copyright. When publishing under the OGL, you have three ways to "designate" stuff:
a.) OGC - The bare minimum MUST be OGC, though you can designate more. This is, in effect, is "giving permission for others to use your copyrighted writing" - on condition that they do so under the terms of the OGL.
b.) PI - There is a maximum you can designate as PI, though you can designate less. If something that you have specifically designated PI is in a section that is designated as OGC, the PI designation "trumps" the OGC designation. This lets you create Open Game Content that has your Product Identity "mixed in" without having to format the text, et al in ugly and/or obtuse ways and you still keep others from using your Product Identity. This, in effect, is denying permission for others to use those items that you called out as Product Idenity, even though they fall in a section that would otherwise be OGC. In this case, normal copyright law applies (they must get written permission from you to re-use the work).
c.) "None of the Above" - There may be sections of a work that you do not designate as OGC or PI. In this case, normal copyright law applies (the must get written permission from you to re-use the work). This is of course, the "least interesting case" but does bear mentioning. If something is neither OGC nor PI, assume it is "None of the Above."

AFAIK, the normal provisions of copyright law still apply, even to OGC material (e.g., you can make short quotations for purposes of review or scholarly argument without need of using the OGL), but IANAL.

Really, the key things to remember are:
1.) OGC has a MINIMUM
2.) PI has a MAXIMUM
3.) PI lets you "trump" an OGC designation.
4.) If you choose to use the d20 logo, your material must be a MINIMUM of 5% OGC.

Again, IANAL.

--The Sigil

Long Answer:

"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.

I think the easiest thing to do is look at the terms of the OGL (emphases above mine). What you see bolded there is the MINIMUM that you MUST open under the OGL, as well as the phrase, "any additional content..." (IOW, anything else you want to add, you may add).

Let's start by looking at the question of:

What is Product Identity?
<It is> product and product line names,
In other words, the title of your products and/or your product lines. For example, "The Book of Eldritch Might" is a product name and is therefore Product Identity. The "Legends & Lairs" series is the name of a product line and is therefore Product Identity.
logos and identifying marks including trade dress;
In other words, graphic elements such as company logos and related visual things such as sets of graphics, font/color combinations, and so on that make the product identifiable as "yours"
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;
In other words, these specific types of "things" are PI as they are (in theory) unique to your published material. Note that these are basically "classical fiction" free of game mechanics (storylines, for instance, would have a hard time being game mechanics).
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;
Note that it says only "names and descriptions of..." these things. That means that the fiction/prose portions of such things are considered product identity, but the Game Mechanics/Statistics are not. For example, Bob the Fighter's name and backstory are PI, but "Str: 14, Dex: 15" are not.
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;
In other words, your trademarks and registered trademarks. It should be abundantly clear what those are - things followed by "TM" or "R" and made such through appropriate legal channels. These are perhaps the simplest things to recognize. The last phrase points out that if OGC is part of your trademark (for example, "Bob's Fireball Wand" might be your trademark, but "fireball" and "wand" or "fireball wand" can be used as others as they are pre-existing OGC) that the OGC portions cannot be "cut out" from use just because you trademark them (otherwise people might try to trademark "Fireballlightningboltmagicmissileburninghands" and remove those spells from OGC).

This is basically a long, roundabout way of saying that anything that is (a) graphics/artwork, (b) company or product name or trade dress, and/or (c) stuff that could be classified as "fiction devoid of game statistics" is, by default, considered Product Identity. It is important to note that the definition of Product Identity can be considered as a "Maximum" - there is no provision for making more stuff PI than is specifically mentioned above. This is the MAXIMUM that you can designate as Product Identity.

Now, it behooves us to take a look at the next question:

What is Open Game Content?

"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines
In other words, anything that refers to die rolls, game statistics, tables to compare die rolls against, and so forth. In short, the "rules/statistics" portion of the writing (distinct from "fiction/prose").
to the extent such content does not embody the Product Identity and is an enhancement over the prior art
To my untrained eye, this looks like a possible "exception" to the game mechanics are by default OGC rule... but it requires two conditions to make it so. The Game Mechanics must (a) be an enhancement over the prior art - meaning that your stuff must be better than the original mechanics and (b) must embody the Product Identity. I'm not sure exactly how you can get Game Mechanics to "embody" your Product Identity, to be honest, though I'm sure someone can think of something. The best thing I can think of would be the "d20 logo" - obviously, the term d20 is in wide use as a shorthand for "twenty-sided die" but the stylized "d20" embodies the essence of the d20 system - meaning that particular font/color combination CAN be called Product Identity. Maybe not the best example, but I can't think of another applicable one.

and any additional content clearly identified as Open Game Content by the Contributor,
In other words, while the default is "game mechanics only," it is quite possible to add more Open Game Content. In other words, "game mechanics" are the REQUIRED MINIMUM but nothing stops you from benig a nice guy and opening up more than you are required to.

and means any work covered by this License, including translations and derivative works under copyright law,
In other words, if you translate or create derivative works from someone else's Open Game Content, the translation or derivative material is automatically Open Game Content. Rather than trying to define "derivative works" it simply references the definition of "derivative works" as held under copyright law (to avoid re-inventing the wheel).

but specifically excludes Product Identity.
This is mostly done for ease of use, IMO. This exclusion allows you to designate "Bob" as Product Identity and "Chapter 3 except PI" as "Open Game Content" and still have Chapter 3 look nice by not having to boldface the word "Bob" every time it appears (for example). In other words, it lets you create Open Game Content that has your Product Identity "mixed in" without having to format the text, et al in ugly and/or obtuse ways and you still keep others from using your Product Identity.

 

[The Sigil]

There is a loophole. I can create a game mechanic that has nothing to do with the SRD. (How to simulate a game of poker with die rolls?) Since the rules to poker and the way dice are rolled are not OGC, I can include this "game" in an OGL covered product and PI the rules.

Not sure you can... does it satisfy the following phrase?

<Rules-related content is by default OGC> to the extent such content does not embody the Product Identity and is an enhancement over the prior art

In other words, it appears to me that even if you create a game mechanic that does not have anything to do with the SRD, it must be OGC unless it
(a) Embodies your Product Identity
and (b) is an enhancement over the prior art.

If you have created rules as you described above, which do not currently exist in the system, I will grant for sake of argument that you have satisfied "b" - but you still have to satisfy "a."

I suppose you might be able to satisfy it if it embodies your product name (since the product name could be "Poker" and the product name can be PI'd - but then, since "Poker" is in common use and is therefore Public Domain, not sure it can - can AEG PI "Evil" and "Good" because they have used them as product names? I don't know...) but IMO the rule of thumb (and IANAL) is this:

You can only PI game mechanics, new or not, if they "embody" something else that is already eligible to be PI. That's a tough row to hoe, IMO.

Not arguing with you because I'm mad, just trying to engage your level 9 esoterica.

--The Sigil

 

[Orcus]

I think I have found the problem to your assumption regarding OGC that anything that is a "game mechanic" must be OGC.

That is true if it is derived from the SRD.

BUT the OGL is not a D&D or SRD specific license. It is a general license. You could use it, theoretically, to release whatever you wanted. For example, SJG could release all the rules from GURPS as OGC. Or WW could release the World of Darkness rules as OGC. If they did so, those rulese did not derive from the SRD. They would not mandatorily be OGC.

One of the first things released under the OGL was a card or dice game, back in the infancy of the OGL by someone on the open gaming lists. Frankly, I dont remember the details. But NONE of that game was REQUIRED to be OGC since it wasnt derived from the SRD.

So, since we are discussing the esoteric, you could certainly release game mechanics that were not derived from the SRD as OGC and you would not have been forced to do so, as long as that content was not derived from SRD content.

As for whetehr normal copyright law still applies to OG/PI content is an interesting questions. It depends. If your "use" of the OGC falls within the "use" defined by the OGL, my answer would be you are then confined by the terms of the OGL. But the "use" in the OGL does not cover all possible uses.

Clark

 

[Mark]

...that implies it's based on OGL content.

I am not a law talking guy but...

I do not believe that this is correct. Conventional wisdom tells us that "Contract Law" is explicit by nature and does not imply anything. It may be interpreted by a court to be inclusive of things that are not expressed directly but on its face, it is what it is.

Someone once told me that to extend the parameters of a written contract you had better be extremely convincing (in court), have extensive precedent or be trying to envelope additional and impossible to foresee (by all parties, and perhaps society) circumstances that are a natural extension of the contract. It would appear that the second two and third parts of that last statement do not contradict one another but, as I said, I am not a law talking guy.

Without citing very specific examples, I do not believe you can deeply discuss whether a particular rule or rules set can or need to be declared OGC. The simple fact of the matter is that the discussion needs to include a test of whether the material is (or is not) derivative of the SRD or SRD-subsequent (and possibly independent) OGC. Unless you discuss specific material, you cannot perform the test.

One aspect of the OGL that has been muddied (IMO as a non-law talking guy) is the declaration of PI. There seems to be a penchant in the industry to press close to the boundry of what is, or will be, acceptable (by courts, which is where such things can ultimately be challenged) as an expression of PI. If I am not mistaken, if such an expression is vague but goes unchallenged for a period of time (and I do not know if there is a limit on that period of time), then it may be possible to cite such an expression as acceptable even if it was not acceptable in the minds of those who framed the original contract.

Does anyone care to comment and help out this non-law talking guy...? (Thanks in advance. )

 

[Cergorach]

Q: What is "Open Game Content"?

A: Open Game Content is any material that is distributed using the Open Game License clearly identified by the publisher as Open Game Content. Furthermore, any material that is derived from Open Game Content automatically becomes Open Game Content as well.

According to the FAQ any material derived from (based on) OGC becomes OGC. Thus according to the FAQ you can make a new OGC magic system but couldn't make non OGC spells for that same magic system (or am i missing something?).

[offtopic rant]
Now i don't really know what all the fuss is about, but it seems that a lot of companies (even big ones) are not following the Liscence correctly (from not clearly designating OGC to not including the Liscence). Why bother with these details, it seems that WotC isn't really enforcing the liscence rules. Thus if you really wanted to, you could do just about anything without any consequences it seems. Now don't get me wrong, i'm not advocating that anyone does such a thing, but when WotC created the Liscence it accepted responsibility for it and is the only entity that can enforce the Liscence. And as far as i can see WotC only enforces the Liscence when it's own products are threathened (electronic game aids for example). Is it really our place to 'enforce' the rules? A person with half a brain can understand the basic liscence without the aid of a lawyer, why all the additional fuss?
[/offtopic rant]

Someone gave the example of creating a card gam that is resolved by dice rolls. Now if you used a D20 for that dice roll and you had to throw higher than a certain number, would that be OGC when included in a D20 product? I think it would, because the rolling a die against a target number is an OGC mechanic (although used by lots of other game systems that aren't OGC) mainly because it is in the same book as the other OGC content. If you for example wrote a book about Clinton and then wrote "A certain politician, i'm not saying who, but we all know who, did..." certainly implies Clinton. The same goes for game mechanics, unless you clearly indentify it as belonging to a different gaming system (such as AEG did with L5R). If one just says anything derived from OGC is OGC then everything not clearly marked as from a different gamesystem would be OGC (if it uses OGC mechanics).

ps. do i really need to state that i'm not a lawyer? And even if i where, that my opinions (because that's what lawyers give) don't mean squat in the courtroom?

pps. happy christmas!

 

[jmucchiello]

According to the FAQ any material derived from (based on) OGC becomes OGC. Thus according to the FAQ you can make a new OGC magic system but couldn't make non OGC spells for that same magic system (or am i missing something?).

The reason your magic system spells will be OGC is because in order to describe the effect they have on the game you have to reference OGC material: hp, AC, attack bonuses, saving throws, skill checks, etc. There are very few useful spells that can be expressed without using SRD material. Dying is an SRD concept. So is transformation, teleportation, gating, planar travel, charm and compulsion, all mind-affecting effects, illusions, semi-substance illusions, mind control, possession, creation of energy from nowhere, alteration of existing energy, etc. As long as your spell has nothing to do with any of this, it can be outside the OGC.

Here is a spell that could be non-OGC. But you have to write it like this:

The 8 people are chanting. After 10 minutes of uninterrupted chanting, the continent they are on and everything on it will sink 1 mile into the oceans leaving only the mountaintops above sea level.

Of course to explain how interruption occurs, you might need the SRD (causing hps of damage to force a Concentration check). Implicit in the spell description is that most people will drown once submerge 1 mile. But if you state it explicitly, you've drawn the drowning rules into your description.

Someone gave the example of creating a card gam that is resolved by dice rolls. Now if you used a D20 for that dice roll and you had to throw higher than a certain number, would that be OGC when included in a D20 product? I think it would, because the rolling a die against a target number is an OGC mechanic (although used by lots of other game systems that aren't OGC) mainly because it is in the same book as the other OGC content.

It would not be hard to prove you developed that mechanic independantly from the SRD as long as you didn't use the term DC. My example involved comparing the sum of 2d20 with another 2d20 roll. That is easily derivable from external sources. Nowhere in d20 do you roll two of them and add them together. I chose 2d20 for a reason.

Still not a lawyer....

 

[jmucchiello]

So, since we are discussing the esoteric, you could certainly release game mechanics that were not derived from the SRD as OGC and you would not have been forced to do so, as long as that content was not derived from SRD content.

As for whetehr normal copyright law still applies to OG/PI content is an interesting questions. It depends. If your "use" of the OGC falls within the "use" defined by the OGL, my answer would be you are then confined by the terms of the OGL. But the "use" in the OGL does not cover all possible uses.

I would guess that quotations as part of a review would still fall safely under fair use. Otherwise Wizards would have to go after review websites and make sure they included copies of the license with any review that quotes the source material. Example:

Relics and Rituals is an early example of the d20 phenomenon. One of the spells therein, Vangal's rage, can "(I don't have the book here so I cannot quote it but pretend this is a direct quotation)." This is typical of the level of understanding of the system at the time it was released. Subsequent books in the series are more such and such....

Such a review would not need to include its own OGL just because it quoted OGC. The author of the article is taking his chances that should S&SS decide to sue him, he'll be able to defend himself safely with "fair use". I would hate to see him lose such a fight. (And I doubt S&SS would go after him.)