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

[Thomas Shey]

As a former software developer I believe that a D&D "aware" VTT could be developed with out copyright issue since one could implement the rules as a mechanical thing.
That is the rules engine in the VTT could be instructed to manage all the dice rolls needed to play D&D.
What get into trouble is the additional modules that automate character creation (as @Enrahim2 states above)

I do wonder that if the VTT did not provide such additional assets but say a rich die roll macro language and a tagging system to identify text boxes so that a user could recreate a character sheet and automate the die rolls to the chat log (or what ever) would that count as fair use on the users part or would the user be exposed to copywrite claims by WoTC.

Personal feeling on that is that its going to be really hard to Hasbro to sue them for, essentially, the digital equivelent of what anyone who puts together a fillable PDF character sheet and tools thereof can, especially if its set up so it applies to a variety of game systems (not that that's easy to do in a way that's actually easy for an end user who isn't familiar with layout to use; I've seen several attempts in various programs and bounced off them hard, and I'm probably better skilled in related areas than the routine user).

 

[Thomas Shey]

I think this is part of the problem, the other is that you essentially copy the entire OGC. The rules are fine, but once you get to the monster stats or spell and item stats, that does become fuzzy, and the more of that is identical / similar, the more this becomes a clear case of copyright infringement.

If you used the rules but built your own monsters, classes, etc. on top, you would probably be fine

Its not entirely clear to me to what degree copyright applies to saying "This monster (of a new name in a few cases) has these numerical values associated with these traits". Of course, its not clear it doesn't, either. I wonder if there's any relevant caselaw?

 

[SoonRaccoon]

IIRC, earlier in the thread someone brought up a Harry Potter encyclopedia, or similar. The book contained facts about the Harry Potter universe, but was not a novel continuing the Harry Potter story. Would that be at all relevant to the idea that monster stats are just facts about the monsters?

 

[S'mon]

IIRC, earlier in the thread someone brought up a Harry Potter encyclopedia, or similar. The book contained facts about the Harry Potter universe, but was not a novel continuing the Harry Potter story. Would that be at all relevant to the idea that monster stats are just facts about the monsters?

Are stats really 'facts'?

My feeling as a copyright guy who did a PhD comparing UK with France & Germany is that in UK copyright law a 5e monster stat block is sufficiently substantial to be a copyright work, but in various European/EU Civil Law jurisdictions it would likely not be due to their emphasis on 'stamp of author's personality' type ideas. In Feist v Rural 1991 the US Supreme Court found that white pages telephone directories were not copyright protected - just a collection of facts - whereas a yellow pages business directory was protected due to selection & arrangement of the data. In the EU I'm pretty sure a yellow pages directory would not be protected, going by ECJ cases like Football DataCo.

 

[SoonRaccoon]

Are stats really 'facts'?

That was my intended question. That may not have been clear from the way I worded it.

 

[pemerton]

"The Open Game Content" is defined outside the license itself. In the 3.5e SRD, there's a legal.rtf file that says:

Spoiler: SRD Legal

Permission to copy, modify and distribute the files collectively known as the System Reference Document (“SRD”) is granted solely through the use of the Open Gaming License, Version 1.0a.

This material is being released using the Open Gaming License Version 1.0a and you should read and understand the terms of that license before using this material.

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Player’s Handbook, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, proper names (including those used in the names of spells or items), places, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, Ever-Changing Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.

All of the rest of the SRD is Open Game Content as described in Section 1(d) of the License. (Emphasis mine)

More information on the Open Game License can be found at www.wizards.com/d20.

(Followed by the actual OGL.)

So the OGL itself doesn't make the SRD Open Game Content. The declaration above does, and it then refers to the OGL for an explanation of what that means.

I had a version of this discussion upthread, with @FrogReaver.

In the post you quoted, I am not puzzled about the notice that WotC have included in their SRD. I am talking about the subject matter of the licensing agreement that a party enters into when they become a party to the OGL with WotC. The subject matter of that licence is (to quote from section 4 of the licence; emphasis added) "the Open Game Content". The reference of this phrase requires interpretation. That interpretation depends on the interplay between sections 2, 3 and 4. It's not straightforward in my view.

I've set out possible interpretations of the phrase in post 2140 upthread. I won't reiterate the reasoning, but here are some possibilities:

*It refers to the OGC that has been included or otherwise used in the licensed work
*It refers to all of the OGC that occurred in the source work at the time the contract was entered into;
*It refers to all of the OGC that occurred in the source work so long as the source work continues to contain an operative notice of the sort referred to in section 2.​

If the third possibility is correct, then when WotC withdraw the notice from the SRD - ie when they revoke their offer to license it to all comers - the subject matter of the permission the WotC has granted by way of section 4 evaporates, even though the contract with WotC remains on foot.

 

[Aspirinsmurf]

*It refers to all of the OGC that occurred in the source work so long as the source work continues to contain an operative notice of the sort referred to in section 2.

Why is this interpretation possible? They can’t remove the notices from other people’s publications. If those distributions contain WotC’s contributed OGC and declares it to be OGC (and that publisher is a Contributor of OGC themselves), what does it matter if WotC themselves currently do not distribute copies that contain such a declaration?

It would still be OGC that "contains a notice indicating that the Open Game Content may only be Used under and in terms of this License". It would even be "content clearly identified as Open Game Content by the Contributor", if you think that part of the definition is important. Anyone contributing OGC is a contributor, not just WotC. The definition isn't "content clearly identified as Open Game Content by the Original Contributor" or anything like that.

 

[pemerton]

Why is this interpretation possible? They can’t remove the notices from other people’s publications. If those distributions contain WotC’s contributed OGC and declares it to be OGC (and that publisher is a Contributor of OGC themselves), what does it matter if WotC themselves currently do not distribute copies that contain such a declaration?

It would still be OGC that "contains a notice indicating that the Open Game Content may only be Used under and in terms of this License". It would even be "content clearly identified as Open Game Content by the Contributor", if you think that part of the definition is important. Anyone contributing OGC is a contributor, not just WotC. The definition isn't "content clearly identified as Open Game Content by the Original Contributor" or anything like that.

Section 1 tells us that "'Contributors' means the copyright and/or trademark owners who have contributed Open Game Content". Not parties who might enjoy a contractual power to sub-license the OGC.

More generally, as I have posted multiple times there are, in my view, various candidate textual interpretations available. Yours may be one. I don't think it's the most natural, though - the power to sub-license is one incident of the permission to use, which is a legal relationship to the owner of the copyright in the OGC; and to me your suggested interpretation makes it more complicated to understand how the content of the sub-licence is established, as that becomes mediated through a notice that is not attached to the whole of the licensed work but rather to some (potentially limited) reproduction of it by a downstream licensee.

I could see an argument that the downstream licensee enjoys some sort of authority to notify on behalf of the licensor who is named in the section 15 statement. But it would be open to argue that if the copyright owner has withdrawn their notice, and that is known to those who read the licensee's notice, then the authority is gone.

I reiterate that I don't have a definite, let alone dogmatic, view about the best textual construction. I also think that a 3PP defendant would almost certainly wish to rely on considerations beyond the text - ie WotC's other conduct and representations.

 

[Aspirinsmurf]

Section 1 tells us that "'Contributors' means the copyright and/or trademark owners who have contributed Open Game Content". Not parties who might enjoy a contractual power to sub-license the OGC.

Yes. But it's the Contributors, in the plural, in section 4. It's not "each Contributor separately". They are somehow acting collectively (or on behalf of each other) when they all, inter alia, grant You the right to Distribute, copy and modify "the Open Game Content." They have previously granted each other those rights, and the definition of Distribute includes a right to license, opening the door for sub-licensing. Indeed, the termination clause in section 13 specifies that these sublicenses survive termination.

More generally, as I have posted multiple times there are, in my view, various candidate textual interpretations available. Yours may be one. I don't think it's the most natural, though - the power to sub-license is one incident of the permission to use, which is a legal relationship to the owner of the copyright in the OGC; and to me your suggested interpretation makes it more complicated to understand how the content of the sub-licence is established, as that becomes mediated through a notice that is not attached to the whole of the licensed work but rather to some (potentially limited) reproduction of it by a downstream licensee.

My interpretation does mean that the declarations of OGC downstream should be inclusive of any material included that is already declared to be OGC, yes. This has generally been the case in professional products tough. Even if it's not necessarily how a court would rule it to work, most OGL users have intended to treat any derived works arising from OGC as OGC by default, thus growing the pool of OGC. That's the copyleft part of it. And it's a feature, not a bug.

There have been few attempts at taking someone's OGC, altering it only slightly and claiming it as Product Identity. Arguably, this isn't allowed. It's certainly not in the spirit of the thing. Everyone wanted a growing pool of rules expressions available under the license. This makes creating new games and mechanics easier and less risky for everyone, since you can copy others verbatim instead of having to do clean room design. Innovations would be shared, not closed off.

Incidentally, these are the same concerns driving the idea of open source programming. It's not unique to the RPG industry at all.

I could see an argument that the downstream licensee enjoys some sort of authority to notify on behalf of the licensor who is named in the section 15 statement. But it would be open to argue that if the copyright owner has withdrawn their notice, and that is known to those who read the licensee's notice, then the authority is gone.

This would almost certainly have to be the case if the license was going to work as originally intended.

I reiterate that I don't have a definite, let alone dogmatic, view about the best textual construction. I also think that a 3PP defendant would almost certainly wish to rely on considerations beyond the text - ie WotC's other conduct and representations.

I agree with your last sentence here.

 

[pemerton]

Yes. But it's the Contributors, in the plural, in section 4. It's not "each Contributor separately".

Whether "the Contributors" should be read collectively or distributively is a matter of construction. I think the distributed reading is more plausible, because a licence flows from each distinctly in respect of their own copyright.