Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[masdog]

Suppose that X, who used to publish RPG material licensed under the OGL v 1.0a and citing a WotC-copyright SRD in its section 15 statement. Now X publishes a RPG in a way that does not conform to the OGL v 1.0a requirements (eg it no longer includes a copy of the OGL v 1.0a together with appropriate OGC, Product Identity and Section 15 notices).

And finally, suppose that WotC commences legal action against X, arguing an infringement of WotC's copyright. It seems that they may not have too much difficulty showing a causal link between X's new publication, and WotC's copyright SRD.

But what part of WotC’s copyright was violated? US Copyright Law does not protect ideas, only the expression of them. And there is case law that states that game rules and mechanics cannot be protected by copyright. DaVinci Editrice vs. Ziko, for example (link is to LexisNexus case summary…DaVinci Editrice S.R.L. v. ZiKo Games, LLC | Case Brief for Law School | LexisNexis) where one company basically copied the rules of a game but not the creative elements.

How would that factor in here?

 

[kjdavies]

Yeah, I was being more than a little facetious. I do wish a real "replacement SRD" would emerge, but I think it's a real longshot for a lot of reasons.

I actually expect to see something as a starting point, probably pretty quickly, once ORC is in place. I expect to see several, in fact.

It would stand to reason that major proponents would release something via ORC as soon as possible to help demonstrate that it's now available and usable. What kind of endorsement would it be if they created the license and then didn't release anything under it themselves?

 

[kjdavies]

My homebrew fantasy world is like that. Orcs are the planet's natives and humans have an extraterrestrial origin. The planet's diety had to curse humans with mortality to keep them from over-running the place, though it led to the invention of Necromancy.

Accordlands from AEG had a similar thing. Elves lost their immortality and turned to necromancy to try to prolong their existence. Instead of 'wood elves' and 'moon elves' and all that it's 'bone elves' and 'blood elves', etc., based on their chosen abominat means of reaching for persistence.

 

[kjdavies]

Your premise is that WOTC, having told X "here's our open license to share our content" in an agreement that both parties agreed was valid at the time X published a product, is going to use that as proof of infringement when X publishes something new in the future without the open license WOTC wants people to stop using?

That would be quite a feat. Not to be confused with Feats, which WOTC is still sharing at the time of this comment under OGL 1.0:

Feats Index :: d20srd.org

d20srd has no connection to WotC I am aware of, beyond hosting certain content (3.5 SRD, 5e SRD, Pathfinder 1e SRD).

Ah yes:

The Hypertext d20 SRDTM is an independent entity and is not affiliated with Wizards of the Coast, Inc.

 

[S'mon]

But what part of WotC’s copyright was violated? US Copyright Law does not protect ideas, only the expression of them. And there is case law that states that game rules and mechanics cannot be protected by copyright. DaVinci Editrice vs. Ziko, for example (link is to LexisNexus case summary…DaVinci Editrice S.R.L. v. ZiKo Games, LLC | Case Brief for Law School | LexisNexis) where one company basically copied the rules of a game but not the creative elements.

How would that factor in here?

The text of the game is expression. That's protected. Text embodying ideas is protected. Text embodying mechanics can be protected - unless that's the only way to express that idea or that mechanic.

So the general idea of a fireball spell is unprotected. The mechanics of a fireball spell is unprotected. But the text is protected - including against non-literal copying, adaptations, and (in the USA) derivative works.

 

[Myrdin Potter]

The text of the game is expression. That's protected. Text embodying ideas is protected. Text embodying mechanics can be protected - unless that's the only way to express that idea or that mechanic.

So the general idea of a fireball spell is unprotected. The mechanics of a fireball spell is unprotected. But the text is protected - including against non-literal copying, adaptations, and (in the USA) derivative works.

And you can go ahead and say “Fireball: a bead of fire shoots from your hand and explodes into a 20’ radius ball of fire at a point the caster can see ….”

And Wizards can still sue saying too close/derivative work and a trial might be the only way to tell if they are right.

 

[Ruin Explorer]

And Wizards can still sue saying too close/derivative work and a trial might be the only way to tell if they are right.

GW v CHS suggests that might not go great for Wizards.

I strongly suspect Wizards are thus not keen to see this all tested in open court. If it comes down to copyright law they WILL lose stuff that is currently regarded as Wizards material, the only question is how much will they lose. GW lost most of what they challenged. The blowback was so bad they had to start renaming stuff and later created Age of Sigmar in part to reinforce their IP (replete with it's terrible Aelves and Duardin and so on).

 

[pemerton]

But what part of WotC’s copyright was violated? US Copyright Law does not protect ideas, only the expression of them. And there is case law that states that game rules and mechanics cannot be protected by copyright. DaVinci Editrice vs. Ziko, for example (link is to LexisNexus case summary…DaVinci Editrice S.R.L. v. ZiKo Games, LLC | Case Brief for Law School | LexisNexis) where one company basically copied the rules of a game but not the creative elements.

How would that factor in here?

I've read that decision, and discussed it in at least a couple of these threads. It doesn't say what you say it does, or at least not as literally/mechanically as you are presenting it.

Here's one of those posts:

The Davinci decision includes the following:

this court agrees that certain games can have a progression of events and a roster of developed characters that make the game expressive, just as the progression of a book or movie plot can be expressive even when the basic elements are common. Many video games, for example, involve lead characters in fictional worlds who embark on a quest to achieve a specific goal, such as saving a princess or avenging a wrong. This lead character progresses down a predictable or even predetermined path and interacts with a series of characters along the way. Many of the characters have back stories and personalities. . . .

But other games have plot progressions and characters who interact in ways that fall short of the expressive character interactions and plot progressions that are protected by copyright law. . .

Bang! is in this second category. In Bang! , the Sheriff and Deputies are pitted against the Outlaws and the Renegade. Other than these alignments, the events in a Bang! game are not predetermined because the interactions between the roles have no underlying script or detail and are not fixed.​

This makes me think that the degree of protection an action economy system might enjoy would depend on the extent to which it combined with characters to produce a prior authorially imagined series of events.

A very railroady resolution framework might be an example!, but also perhaps one where the action economy is expressive of a particular imaginative conception of a particular character or character type. The basic action economy of modern D&D doesn't seem to me to meet this threshold. I'm thinking of something like My Life With Master as perhaps getting closer to protectability.

Your premise is that WOTC, having told X "here's our open license to share our content" in an agreement that both parties agreed was valid at the time X published a product, is going to use that as proof of infringement when X publishes something new in the future without the open license WOTC wants people to stop using?

That would be quite a feat.

It seems fairly straightforward to me, as @S'mon explains in his reply to you. I'm not saying that it's a dead cert - very little is in this area of law - but it seems a long, long way from hopeless.

Yikes. I hope these publishers running away from their contractual rights under OGL 1.0a are proceeding with cool heads and the best legal advice. Thanks for the explanation.

Likewise.

I again emphasise I am not offering anyone - WotC or an 3PP - legal advice, as apart from anything else I'm not licensed to do so in my home jurisdiction or any of theirs.

As I've repeatedly said, I'm an academic lawyer with an interest in analysing private law doctrines and relationships. And I think some of the discussion and calls for action around this OGL controversy have not been based on a really solid understanding of these things.

 

[rcade]

d20srd has no connection to WotC I am aware of, beyond hosting certain content (3.5 SRD, 5e SRD, Pathfinder 1e SRD).

I linked to d20srd because it's a good presentation of what WOTC shared in the SRD.

 

[Jerik]

It would stand to reason that major proponents would release something via ORC as soon as possible to help demonstrate that it's now available and usable. What kind of endorsement would it be if they created the license and then didn't release anything under it themselves?

I noticed Chaosium was listed among the companies that signed on to the ORC. Chaosium already has an SRD for their Basic Roleplaying system, currently released under an open license clearly inspired by but distinct from the WotC OGL. So all Chaosium has to do—and what it seems likely it's going to do, having signed on to the ORC—is relicense its existing SRD (which does not derive in any way from the WotC SRDs and will not need to be changed to remove WotC-SRD content) under the new license. So that's at least one SRD that's already good to go, and will probably be released under the ORC as soon as the license is ready.