GSL vs. no GSL Forked From: Where are all of the campaign settings?

[S'mon]

. And the courts continue to interpret intellectual property law (in my opinion and in the opinion of some commentators) largely based upon a general feel for whether someone is "cheating" within the norms of business and their industry.

For this reason it would be inadvisable to create something like OSRIC without use of the OGL. With the OGL, a defendant can point to the SRD and the OGL's license to make use of its contents.

I'm not saying that some Seattle judge might not say, in regards to something like OSRIC - "Hmm, looks fishy to me - must be infringing!" - far stranger things have happened. Judges make all sorts of rulings. But in this case the legal basis for such a finding within existing law would be extremely weak.

Note BTW that you can write software to have the same mechanical effect as existing software, and not infringe copyright. Copyright subsists in the code, as a literary work, not in the processes the code effectuates.

 

[JohnRTroy]

Therefore any claim would have to be for breach of copyright law for areas not covered by the OGL license. That's an incredibly daunting prospect even for Hasbro legal. And my impression is that Hasbro-WoTC's lawyers, unlike old TSR's, actually know enough copyright law to have a good idea what the legal position is.

Maybe I'm not using the right term. I'm seeing litigation based on arguing that if somebody decides to "reverse engineer" an existing game, then releasing that reverse engineered game under the OGL, that would be seen as trying to subvert the legal protection of copyright by creating a clone and releasing it under an OGL license.

NB The law does not say "Games are not protected", it says "mathematical processes are not protected". And that's Statute law, not something a court can overturn.

1. There's no way a court can stop me using a particular mathematical process in my game, even if another game used it first.

But an RPG is more than mathematical processes. The names and descriptions of monsters, spells, etc. There's a lot more than just mathematical formulas in the rules. That's why I think it's not cut and dried.

And a court can stop you. Courts interpret the law. There is little prior legal precedent for this. The only case I can think of is Mayfair Games vs. TSR. That didn't deal with this OGL situation though and I wonder what would happen if it got to court. We are surprised every day by legal decisions that are made--precedents get set all the time.

And I do think WoTC or Hasbro will make an example of somebody if there is a blatant violation, based on the fact that their GSL forbid the use of OGL content. Which is why I was predicting you won't see anybody use the OGL for 4e products but go by copyright precedents. I think attempting to use the OGL for a 4e compatible product will put a big target on their back. I think they haven't gone after OSRIC and others because it's not worth it, since 4e is their bread and butter.

But if there were more money and there were more cheating, then I think that the current system where games have almost no intellectual property protection whatsoever but no one steals them anyways, would change.

One reason I am concerned is that I've seen some of the player base actively say they want to create an 4e "clone" and release it under the OGL. That could be construed as a deliberate attempt to harm WoTC.

I just don't see the OGL as adding any additional protection--in fact, it could harm rather than hurt. Any lawyer for WoTC will explain that 4e is very different from 3e and they did not license 4e under the OGL. If you're a major publisher, do you want to take that risk?

 

[starwed]

NB The law does not say "Games are not protected", it says "mathematical processes are not protected". And that's Statute law, not something a court can overturn.

Yet at least for now, the official stance is that:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

Of course the last provision applies to a large part of any RPG's content.

I think this aspect of copyright law is why WotC was ever willing to go along with the OGL in the first place. Make it really, really easy for companies to do almost everything they'd want to do, on the condition that they obey a handful of stipulations you otherwise couldn't enforce. (Like the compatibiliy clause.)

The GSL totally fails in this regard.

 

[pawsplay]

No, but as I understand it Kalamar uses no license, OGL or GSL, and sticks with what's clearly allowed under US copyright and TM law.

Well, yeah. they started that way with Kalamar for AD&D, even before all this OGL stuff.

 

[S'mon]

Maybe I'm not using the right term. I'm seeing litigation based on arguing that if somebody decides to "reverse engineer" an existing game, then releasing that reverse engineered game under the OGL, that would be seen as trying to subvert the legal protection of copyright by creating a clone and releasing it under an OGL license.

But it was WoTC that created the OGL that made this possible! You want WoTC to be protected from the consequences of their own actions.

Note that it's not true "games have no legal protection" - the artistic and literary presentation *is* protected (eg the Scrabble/Scrabulous game board), it's the mathematical formulae embodied in the rules that are not protected. But the OGL grants use of a lot of D&D's protected artistic and literary content.

WotC through the OGL created a situation where you can legally make and sell something looking a lot like 4e D&D. That's their responsibility. Even in these days of bail-outs I doubt the courts would be willing to protect WoTC from the inevitable consequence of a contractual license they wrote themselves.

 

[S'mon]

Maybe I'm not using the right term. I'm seeing litigation based on arguing that if somebody decides to "reverse engineer" an existing game, then releasing that reverse engineered game under the OGL, that would be seen as trying to subvert the legal protection of copyright by creating a clone and releasing it under an OGL license.

You're allowed to license use of your own copyright works, as WoTC did with the OGL. If they licensed more than they intended, well under Anglo-American contract law, that's their lookout.

They might have a case under German law, though.

 

[S'mon]

If you're a major publisher, do you want to take that risk?

I agree any publisher needs to assess whether they want to incur the risk of having to fight a case, even if, as here, they are highly likely to win. In the US system you can have a watertight case and still be bankrupted by legal fees.

Here in the UK the loser normally has to pay winner's fees, so the risk of groundless suits is less of an issue.

 

[S'mon]

One reason I am concerned is that I've seen some of the player base actively say they want to create an 4e "clone" and release it under the OGL. That could be construed as a deliberate attempt to harm WoTC.

AFAIK US law does not prohibit a company from seeking to harm a competitor.

In some countries with very broad unfair competition laws, such as Germany, this kind of argument might have legal merit.

TSR vs Mayfair is a good example of one company, TSR, successfully using a contract in a hostile manner against another, Mayfair, to do something they could not have done under copyright law.

 

[S'mon]

BTW if any of you guys are IP lawyers, please let me know.

I teach copyright etc to underrgrads and postgraduate Masters students as a senior lecturer (US - Professor) at a University in London. While I have some familiarity with US copyright law, especially the post-1988 law, I'm sure it doesn't compare to that of US IP specialists, who should have a much better idea how it usually works in practice.

 

[pawsplay]

Yet at least for now, the official stance is that:


Of course the last provision applies to a large part of any RPG's content.

I think this aspect of copyright law is why WotC was ever willing to go along with the OGL in the first place. Make it really, really easy for companies to do almost everything they'd want to do, on the condition that they obey a handful of stipulations you otherwise couldn't enforce. (Like the compatibiliy clause.)

The GSL totally fails in this regard.

Furthermore, the courts have sided time and again with manufacturers of compatible products, whether that's vacuum cleaner bags, destktop software, game controllers or replacement car parts. And not only to manufacture them, but to advertise the fact that they are compatible, provided they do not create confusion with the trademark or try to imply some kind of affiliation.

IP laws in general only apply to the act of original creation, not to a line of products, a concept, a business, a kind of task to be done, etc. So if you patent a a tractor, I can patent a tire for that tractor. You trademark National Doohickeys, I trademark Federal Doohickey Concepts. You write the great American novel, I write a parody of it.