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

[Matt Thomason]

To my mind, it seems to be "the community" that is killing the OGL, by leaving the safe harbour as soon as the weather has become rough.

That might be the most sensible move - maybe the market for D&D-adjacent RPGs has collapsed - but my point is that it is not WotC who is actually making that move. All they've done is issue a couple of press releases and circulate some draft documents.

As someone wanting to move away from anything WotC-adjacent, I cannot dispute this. I do not feel they made a move, I feel they have scared me into wanting to make one.

 

[Hussar]

While you're right, proving that the OGL is irrevocable will require a legal battle against Hasbro. And while WotC never officially said they're killing the safe harbour, they refused to clarify the situation with deauthorisation despite the community pleading that they do for weeks. For all we now, the deauthorisation is still underway, it's just that the replacement will be a (slightly) sweeter deal.

So given that, isn't it understandable for 3PPs to no longer consider the harbour safe and move to an actually irrevocable license that will be stewarded by a nonprofit group? And even though the ORC cannot be put back in the bottle now, Paizo said they are willing to challenge the irrevocability of the OGL if things get there, so they are going to do what you said anyway.

But, the operative word is "yet". Yes, they have not clarified things. That's true. There are still questions. But, at the end of the day, right now, as we speak, nothing has actually changed. There is no OGL 2.0 (yet). There is no new SRD (yet). And, apparently, WotC is listening and making changes.

As far as pleading for "weeks" go, well, technically, that's true. Two weeks. From the time the leak dropped to now. Two, three weeks? Never minding that one of those weeks was the Christmas holidays.

By the arguments being made that I'm seeing though, you'd think that everything has changed. It hasn't. Nothing has changed as I type this. No one signed anything. No one has published anything yet. Everything is still in discussions.

Yet, apparently, just having discussions is enough to make everyone get out of the water.

I rather hope that cooler heads prevail and no one makes any moves that cannot be undone yet. That includes WotC as well as everyone else.

 

[mamba]

But, the operative word is "yet". Yes, they have not clarified things. That's true. There are still questions. But, at the end of the day, right now, as we speak, nothing has actually changed. There is no OGL 2.0 (yet). There is no new SRD (yet). And, apparently, WotC is listening and making changes.

look who is back

Yes, nothing has changed on the ground yet, but the weather forecast is definitely not looking good.

If the weather service tells you there is a hurricane approaching and it is the biggest one ever, it might change course enough to miss you, but it is not looking likely, you not reacting at all does not seem like a smart move.

As to the changes, they are laughably bad, nothing of importance had been addressed at all.

 

[Matt Thomason]

Yet, apparently, just having discussions is enough to make everyone get out of the water.

Considering the discussions were of the "hey, we're thinking about doing this thing that could totally destroy your business next week" variety, then not wanting to share a pool with WotC any more does not feel like a bad idea.

 

[bmcdaniel]

I think it's time to put this to rest. The OGL and the SRD are dead, and what the courts will say about is of academic interest only.

The world have moved on. There is no chance of putting the genie back into the bottle.

Perhaps. But my own view is that a thorough understanding of the strengths and weaknesses of OGL 1.0a helps avoid repeating mistakes with whatever replaces it.

 

[masdog]

I realize I'm way out of my comfort zone here. This is not an area where I have a lot of knowledge, but I find this conversation fascinating and have learned a lot about the theories at play here by asking questions. It has really peaked my curiosity... If I cross any lines, either in how I come across or in terms of what someone can answer from a professional perspective, please say so.

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.

So I'm going to ask a question for thought experiment purposes and discussion purposes. The SRD is a blending of the game mechanics with some creative expression. In the fireball spell example you site, there are the functional aspects - how long it takes to charge, the distance it travels, how much damage it does, area of effect - along with some creative expression - the descriptive elements of how you cast the spell and how it appears or sounds.

To take another example - the Potion of Water Breathing. It has functional aspects - duration, how its consumed, game effects - and (a very memorable, in my mind) creative expression - the descriptive appearance, how its brewed, etc.

So does the question become "where is the line between functional game system and creative expression?" And based on that line, what enjoys protection and what doesn't? (And that question is posed rhetorically...please do not try to answer that in regards to the current SRD)

That feels like it would be a very fuzzy line...and it would take a lot of time and care to reimplement the functional aspects of the game system described in the SRD under a new license.

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.

If I understand what you're saying correctly, you believe that the case law states that even though game rules don't enjoy copyright protection, a system like what is outlined in the SRD might be on shakier ground because of the interaction between the system and other copyrighted content. And to what I think is @S'mon's point above, the blending of system mechanics and creative expression in the form of flavor text. Correct?

Let me play devil's advocate here...

I think you left out some context from your appellate ruling citation. Here is the full paragraph that you pulled from along with the following paragraph:

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. Making certain roles aligned and others opposed is part of the game's winning conditions, but these determine little about how players will progress through the game. See Boyden, 18 GEO. MASON L. REV. at 466 (copyright does not protect systems that set the stage for expression to occur). Like basketball, Bang! has created a number of roles, defined their alignment with and opposition to other roles, and created rules for their interaction, but has not created a scripted or detailed performance for each game. Using Spry Fox's example of Gone with the Wind , Bang! identifies characters analogous to Scarlett O'Hara's two romantic interests, Ashley Wilkes and Rhett Butler, giving them names and appearances consistent with their setting. Unlike Gone with the Wind , however, Bang! has no specific plot or detailed information about the characters that tells us what these characters will do or how they will interact with other characters.

LOTK's alignment of roles tracks Bang!'s , which in turn was drawn from the general alignment of stock characters in "spaghetti Westerns." See Gaiman v. McFarlane , 360 F.3d 644, 659–60 (7th Cir.2004) (stock characters are not protectable by copyright); Rice v. Fox Broad. Co. , 330 F.3d 1170, 1176 (9th Cir.2003) (same); Williams v. Crichton , 84 F.3d 581, 588 (2d Cir.1996) ; Walker v. Time Life Films, Inc. , 784 F.2d 44, 50 (2d Cir.1986) (same). A cursory review of the spaghetti-Western genre shows sheriffs and deputies, the "good guys," joining forces against outlaws and renegades, the "bad guys." These are stock roles. But the appearances and names of the characters of Bang! , as opposed to the roles themselves, contain expressive qualities, as does the setting. Each Bang! character has a distinctive name and associated color scheme and visual depiction that match Bang!'s wild-West setting. The parties agree that these elements of Bang! and LOTK are dissimilar. The common link between Bang! and LOTK characters is each character's set of abilities and number of life points.
Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F. Supp. 3d 820, 832-33 (S.D. Tex. 2016)

There is a key citation in here that I think could be critical to how any case would proceed. And that is this:

See Boyden, 18 GEO. MASON L. REV. at 466 (copyright does not protect systems that set the stage for expression to occur).

Further down is this:

Assigning a special ability to a Bang! character tells us little about how that character interacts with others. Bang! characters do not have delineated personalities, temperaments, back stories, or other features typical of characters in movies and books that contribute to making those characters' interactions protected. Their feelings about each other are undefined except for the crude boundary set by alignment or opposition. SeeNichols v. Universal Pictures Corp. , 45 F.2d 119, 121 (2d Cir.1930) ("The less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.").

Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F. Supp. 3d 820, 834-35 (S.D. Tex. 2016)

I feel like the SRD might be both a framework for expression and possess some expressive qualities. The framework draws from stock fantasy species and archetypes. It does not provide any specific plot or details on how they will interact with the characters in a gameplay session, just the rules for using dice to resolve those interactions when needed. The plot, characters and interactions are either provided by other materials (such as adventure books), developed by the DM and players, or some combination of the two items. It would be hard to argue otherwise.

Are there items in the SRD that could be considered expressive ideas on their own? Yes, I think there are.

The million dollar questions are: where would a court would draw the line, how similar the expressions of some of the ideas would need to be in order to be infringing, and whether these expressions are common tropes for the setting or something unique. And how much work would one need to do to do a clean-room adaptation of the 5E SRD?

That sounds very messy...

---
Disclaimer: Not a lawyer. Not legal advice. Did not sleep at a Holiday Inn Express last night...

 

[S'mon]

I realize I'm way out of my comfort zone here. This is not an area where I have a lot of knowledge, but I find this conversation fascinating and have learned a lot about the theories at play here by asking questions. It has really peaked my curiosity... If I cross any lines, either in how I come across or in terms of what someone can answer from a professional perspective, please say so.


So I'm going to ask a question for thought experiment purposes and discussion purposes. The SRD is a blending of the game mechanics with some creative expression. In the fireball spell example you site, there are the functional aspects - how long it takes to charge, the distance it travels, how much damage it does, area of effect - along with some creative expression - the descriptive elements of how you cast the spell and how it appears or sounds.

To take another example - the Potion of Water Breathing. It has functional aspects - duration, how its consumed, game effects - and (a very memorable, in my mind) creative expression - the descriptive appearance, how its brewed, etc.

So does the question become "where is the line between functional game system and creative expression?" And based on that line, what enjoys protection and what doesn't? (And that question is posed rhetorically...please do not try to answer that in regards to the current SRD)

That feels like it would be a very fuzzy line...and it would take a lot of time and care to reimplement the functional aspects of the game system described in the SRD under a new license.


If I understand what you're saying correctly, you believe that the case law states that even though game rules don't enjoy copyright protection, a system like what is outlined in the SRD might be on shakier ground because of the interaction between the system and other copyrighted content. And to what I think is @S'mon's point above, the blending of system mechanics and creative expression in the form of flavor text. Correct?

Let me play devil's advocate here...

I think you left out some context from your appellate ruling citation. Here is the full paragraph that you pulled from along with the following paragraph:


There is a key citation in here that I think could be critical to how any case would proceed. And that is this:

Further down is this:


I feel like the SRD might be both a framework for expression and possess some expressive qualities. The framework draws from stock fantasy species and archetypes. It does not provide any specific plot or details on how they will interact with the characters in a gameplay session, just the rules for using dice to resolve those interactions when needed. The plot, characters and interactions are either provided by other materials (such as adventure books), developed by the DM and players, or some combination of the two items. It would be hard to argue otherwise.

Are there items in the SRD that could be considered expressive ideas on their own? Yes, I think there are.

The million dollar questions are: where would a court would draw the line, how similar the expressions of some of the ideas would need to be in order to be infringing, and whether these expressions are common tropes for the setting or something unique. And how much work would one need to do to do a clean-room adaptation of the 5E SRD?

That sounds very messy...

---
Disclaimer: Not a lawyer. Not legal advice. Did not sleep at a Holiday Inn Express last night...

You seem to have a very good understanding of the issues in play!

 

[bmcdaniel]

not sure how much persuasive writing goes into a PCA ....

I tend to disagree with this; in my experience, people who are engineers or come from certain other fields struggle when it comes to litigation, not because judicial opinions are persuasive writing, but because litigation necessarily involves a willingness to embrace ambiguities.

To use your example, most engineers don't have to tell their client, "Look, here's the deal. I really like this bridge design. I think this is the best design possible. If we commit to building it, I give it ... well, a 90% chance of not falling down immediately."

I was an engineer at NASA during the 90s, a time when the Challenger disaster left deep impressions, and we were very aware we were putting humans atop barely-controlled explosions and had many discussions about risk, including (in Rumsfield's words) the "known unknowns" and the "unknown unknowns."

Today, I'm often in the position of advising investment manager clients as to the legal consequences of following a proposed course of action. With hundreds of millions of dollars at stake, clients have very little risk tolerance, and rulemakers have been (relatively) kind in giving us rules and guidance. As a result, I feel much more confidence about outcomes today than I did when I was an engineer.

Although I expect it would be the opposite if I was a bridge-building civil engineer in the 90s, and a copyright litigator today.

 

[Steel_Wind]

To my mind, it seems to be "the community" that is killing the OGL, by leaving the safe harbour as soon as the weather has become rough.

That might be the most sensible move - maybe the market for D&D-adjacent RPGs has collapsed - but my point is that it is not WotC who is actually making that move. All they've done is issue a couple of press releases and circulate some draft documents.

Perhaps.

I think it is certainly true that these things have a cadence and cycle to them those of us in the law can ignore as we are frequently distracted by logic, process, doctrine, and minutiae in our analyses. It is what we do, after all; lawyers gonna lawyer.

However, all of these things are driven by commerce and commercial concerns - and consumer driven commerce, in particular, depends upon trust and goodwill and a willingness among the public to buy a product or service for its perceived value-in-use. When you significantly piss off and antagonize a material swath of your consumer base, all of the niceties and conditions in IP agreements matter little and count for less.

Emotion is governing this now, not rationality. That doesn't mean that the emotional response is irrational (it isn't) but once it gets its head, it's going to run for a good long while yet.

We'll come back to the niceties, conditions, and minutiae at some point -- but that point isn't now. For now, the rats are in the corn. Lets see what's left before we plan dinner for the next decade.

 

[Ruin Explorer]

No one signed anything.

Not for want of WotC's attempts to get people to sign, note.

I think that's pretty important there.