HOW is this an OGC decleration?

[mythusmage]

Game Mechanic vs. IP

Game Mechanic

Modifying STEEP: On occasion an HP's steep may be modified by circumstances and conditons. How hard it is to use a K/S Area in a situation is known as the Difficulty Rating or, DR. The DR serves to either multiply or divide STEEP, thus making the task easier or harder. The DRs and their multipliers are:

Easy: times 3
Moderate: times 2
Hard: times 1
Difficult: times 0.5
Very Difficult: times 0.25
Extreme: time 0.1

Thus a Persona with a STEEP of 39 in the Alchemy K/S Area would have an effective STEEP of 117 (thus virtually assuring success) in an Easy situtation (making tea on a quiet morning with no distraction), but an effective STEEP of 3 in an Extreme situation (making tea with a hurricane howling outside, bits of the house getting torn off, the neighbors visiting with their preschool kids, and one killer migraine.)

(Note: No doubt somebody could rewrite the above, but I figure it's close enough to the basics (including samples of how to apply DR) that requiring folks to rewrite aint worth it. BTW, if it wasn't for the migraine the DR would be merely Very Difficult.)

IP

Sir Gregane is fairly typical for a cavalier in this milieu. He's rather good with the sword, and fairly good when it comes to maintaining and repairing his equipment. At the same time his knowledge of, and skill with, magic is limited because it's not his main interest.

(Note: Involves a unique character with unique characteristics. It can be rewritten fairly easily to fit another character entirely.)

My take. Yours?

 

[Wulf Ratbane]

Section 1 (g) of the OGL: "Use", "Used" or "Using" means to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content.

Seems pretty clear that it includes copy/paste.

(d) “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.


Quoting the OGL back and forth to each other isn't really helpful. I have read the license, you know.

 

[madelf]

That would be interesting, wouldn't it? By the same token, anyone could do the same thing with the SRD mechanics as the OGL allows them to do with it, and yet folks are not exactly scrambling to test WOTC in court over the matter.

They don't need to. WotC has made it very easy to use their material (including the actual text) under the OGL. Why bother rewriting it all in a different way (which would be a butt-load of work) when you can simply use it, and in it's current form, by following the terms of their license?

Now back before D20 and the OGL, there were companies who produced stuff that was compatible with D&D, without licensing anything from them, and I believe it was tested in court, but on trademark grounds rather than copyright issues (which would tend to indicate that they knew they couldn't make a case for copyright infringement).

It would certainly make for an interesting test of the OGL in court.

Actually it wouldn't. The OGL wouldn't be relevant to any (hypothetical) court case that might come about from such a use. As they aren't using the OGL to access your copyrightable material, the OGL has no bearing. So you would need to try and prove that they had violated your copyright, which I suspect would be difficult to do in the face of established precedent that the stuff we're talking about isn't copyrightable.

The SRD is a separate case for a great many reasons. I have used portions of it verbatim.

No it isn't really a seperate case. It's not even the only SRD. The only thing that makes it different than anyone else's Open Content is scale and timing. It's a big chunk of content, and it was first. But the OGL applies to it in exactly the same way as it does to any other Open Content. It has to, because it's released under the OGL - that makes it the same as anything else that's been released under the OGL.

And that still doesn't explain why, if your interpretation of the proper and responsible use of OGL is correct, they didn't just release the mechanics under the OGL rather than the text. And why don't they tell others to release their Open Content in that manner? Because, Open Content is supposed to be text.

As for other folks OGC, I use it all the time, and I make every effort to restate the material in my own voice whenever the expression of the mechanics allows me to do so.

If you're re-writing it for tone or style, to make it flow better with your own writing elsewhere in the product, then that makes sense. But otherwise you're just wasting time, because (generally speaking - there are the exceptions, like yourself) those people have released the text as Open Content, specifically allowing you to use it verbatim.

I'd even go so far as to say that using the Open Content they released, and then re-writing it to eliminate the text (which they had open in their version) from the Open Content in your own product, is not only pretty damn rude, but rather insulting to the publishers who's content you're using. You're circumventing their intent for your own purposes (taking something they made open and making it, effectively, closed) and that is, bluntly (and IMO only), unethical. I know I'd be pissed if someone were to do that to something I released as Open Content.

 

[The Sigil]

Disclaimer: I am not a lawyer, this is not legal advice.

(d) “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.

Technically, Wulf's expression of Open Game Content is valid and correct per 1.d of the OGL - Open Game Content can take one of two forms (note the joining "and" in the original) - it might be better parsed thusly:

(d) “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.

Since Wulf did not identify additional content beyond the game mechanic, the second part is lopped off, leaving us with:

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

It seems to me, however, that such a designation is entirely unnecessary except in the case where a patent has been granted on the game mechanic, method, procedure, process or routine. Game mechanics themselves cannot be copyrighted, though certain game mechanics might be patentable (e.g., Magic: The Gathering's "card-tapping and associated effects on other cards in play" patent). This means that, absent a patent on the mechanics, anyone is free to use the mechanics with or without the Open Game License, because doing so violates neither patent nor copyright laws.

The OGL is designed to grant additional rights beyond those normally allowed by copyright (and patent) laws - but imposes some restrictions along with those rights. Releasing a game mechanic as OGC only grants additional rights to the "second-generation user" is when the mechanic is patented... otherwise it's a useless exercise, as the second-generation user already had the right to use the material! It should also be noted that a second-generation user can access non-patent game mechanics released under the OGL without following the terms of OGL itself, as he does not breach copyright in doing so.

The only time in which it seems (to me) useful to use the OGL in conjunction with non-patented game mechanics is when you also release "additional material marked as OGC" in the form of your copyrighted description of how the game mechanic works. When someone borrows that description, which IS protected by copyright, they are then forced to work under the OGL. If you don't release it, you do not and in fact cannot force people to work under the OGL.

I am going to assume here that Wulf did not patent his game mechanic. Therefore, his release of the game mechanic under the Open Game License is entirely unnecessary; the game mechanic itself can be accessed without fear of copyright infringement, AND without resorting to the use of the OGL. Without releasing copyrighted material as "Additional OGC above and beyond the game mechanic," Wulf, for all intents and purposes, your book is published without the Open Game License, as there is no material that requires acceptance of the terms of the OGL for re-use.

Short of not understanding the terms and purpose of the OGL or trying to deceive customers that you are supportive of Open Gaming by including the OGL on a product which doesn't need it (neither a motive which I can impute to Wulf), the only reason I can think of for including the OGL with the work is as some sort of statement that "I think open gaming is so important that I include mention of it in all my products, whether I need to or not."

I can find no nitpick on the designation on a legal level (other than it's a completely unnecessary inclusion). On a personal level, it rather annoys me to have a product advertising itself as containing Open Content when in reality it gives me no more re-usable material than *any* other RPG book, including those not published under the OGL.

Unless, of course, Wulf *has* patented his game mechanic, in which case I'm not as annoyed because it DOES give me more usable material than I had before.

I'd still be somewhat annoyed, though, on the contention that those who truly support the Open Gaming philosophy will be asking themselves, "what is the maximum amount of stuff I can designate as Open Game Content" (I understand that usually doesn't include rights to art, etc., and I also understand wanting to protect trademarks, etc., but it should IMO be kept to a minimum - just enough so that you can have a "signature" that identifies you as the person distributing a given piece of work) rather than "what is the minimum amount of stuff" and make designations accordingly.

Of course, I'm probably a bit idealistic in this (and I know I am - though I am not naive enough to work in the real world as though it WAS an idealistic world, I still think the ideal is better than the reality), but that's how I feel about it. There's an old zen proverb to the effect of "that which one cannot live without is not something that is owned, but rather something that owns you" and it bothers me to see just how many writers, publishers, etc. are owned/enslaved by words on a page that they - or even someone else - wrote years ago (this extends beyond the RPG community and into all companies/people that hold copyrights on long-ago written works). It's just not healthy IMO.

--The Sigil

 

[HalWhitewyrm]

Wulf, did this type of OGC designation come about due to the OGC Wiki bru-ha-ha? There's been a few people who have changed/threatened to change their declarations due to this issue and I'm kinda keeping score out of sheer curiosity.

 

[Yair]

Technically, Wulf's expression of Open Game Content is valid and correct per 1.d of the OGL ...

I can find no nitpick on the designation on a legal level (other than it's a completely unnecessary inclusion).

Two questions, The Sigil, if I may.
1) Given that the mechanics are not patented, and that hence no portion of the work is actually distributed as OGC, do you consider the designation as clearly indicating which portions of the work are distributed as OGC? It just seems a very round-about and unclear way to say "none" to me, but perhaps I'm taking "portion" too literally.
2) Given that text in the work builds on prior OGC, such as

you could accept this challenge on a Knowledge (arcana) check when facing a dragon to gain a +1 bonus on your next attack or saving throw

wouldn't at least of some portions of the work be OGC by the "derivative works under copyright law" clause of 1.d, and thus the designation again fails by not identifying parts that are OGC as such?

 

[The Sigil]

Two questions, The Sigil, if I may.
1) Given that the mechanics are not patented, and that hence no portion of the work is actually distributed as OGC, do you consider the designation as clearly indicating which portions of the work are distributed as OGC? It just seems a very round-about and unclear way to say "none" to me, but perhaps I'm taking "portion" too literally.

You're falling into the trap that OGC must equal copyrighted material. It doesn't have to.

OGC in any given document consists of "must be" and "can be."

"Must be" includes:
a.) any game mechanics that do not "embody the Product Identity" (whatever that means, not having ever found a suitable example of this phrase, I choose to ignore it). As others have noted, game mechanics are not and cannot be copyrighted material, therefore we must assume that this category can include stuff that is NOT "copyrighted material" and is instead ephemeral concepts. As I noted earlier, standard copyright law allows access to this sort of thing anyway, so the only time this should come into play in terms of "needing permission" is if the mechanics are patented.

b.) Material that is derivative material (as defined by copyright laws) of another OGC source; this is material that standard copyright law requires permission to create; the OGL gives you permission to create such material if and only if you make the derivative material OGC. This *IS* always copyrighted material by nature.

If you have no derivative material, the only "must be" is your game mechanics, which are not copyrighted material. Not having access to the original work, I could not tell whether or not he included derivative material. If he does not (and apparently he does, see below), naming only the game mechanics as OGC is in fact a valid OGC declaration, and opens no copyrighted content... though as I noted in my post above, I'm not sure why anyone would bother complying with the OGL "downstream" considering that the OGL exists to allow you to violate regular copyright laws by conforming to the OGL... borrowing "game mechanics only" does not violate copyright laws (at least in the US) and therefore the OGL is unnecessary.

The OGL is, in essence, the "shield" that you have when accused of copyright/patent infringement... you can say, "yes, I infringed, but he gave me permission provided I did X, Y, and Z. As you can see, I have done X, Y, and Z and therefore he has no case." In other words, it is a way to allow people to infringe on your copyrights and possibly patents, provided they play by a set of rules you hand down (or, depending on your perspective, a way for you to infringe on the copyrights and patents of others without the fear of being sued as long as you follow the rules). It is (legally speaking) nothing more than that.

"Can be" is, of course, anything above and beyond the stuff above, and generally consists of copyrighted material (mostly text, occasionally art). This is what most people associate with OGC declarations.

Don't forget, I'm the guy with the "six-year-old with a highlighter rule" who claims that if I can't hand your product - and a highlighter - to a reasonably intelligent six-year-old and come back in a few hours to see that he's highlighted exactly every bit of OGC (nothing highlighted that's not OGC, nothing OGC that's not highlighted) in your product, it is not Clear and in violation of Section 8 of the OGL.

In the case of a product consisting entirely of original material, releasing only the game mechanics as OGC under the OGL, I should expect nothing to be highlighted. This is a clear designation (albeit a spectacularly unhelpful one) in my mind.

2) Given that text in the work builds on prior OGC, such as wouldn't at least of some portions of the work be OGC by the "derivative works under copyright law" clause of 1.d, and thus the designation again fails by not identifying parts that are OGC as such?

Again, not having the work, I couldn't check that. Given your quote, yes, it would be Wulf's responsibility to demarcate anything he derived from another OGC source (the SRD) as Open Game Content and in this instance, his OGC declaration is insufficient. The "must be" portion of the OGC definition tells me that he needs to expand it to cover the derivative material AND Section 8 tells me he must demarcate clearly what is derivative (a blanket "material derived from the SRD" is insufficient in my mind and always has been - it is not the reader's responsibility to judge what a derivative work is; it is the publisher's responsibility to indicate what is derived and therefore OGC and what is original and therefore potentially not OGC, as the reader cannot read the mind of the publisher).

Honestly, if WotC ever wanted "repeal" the OGL, the easiest way for them to do so would be to crack down on every publisher who has an unclear OGC designation and accuse them of breach of the OGL. On the OGF-L boards it was long ago opined that the OGL doesn't apply on a work-for-work basis; rather, if I infringe on WotC's stuff in one work, I have to fix or yank all of my works in 30 days or less.

That action in and of itself would be sufficient to destroy the secondary 3e/3.5e market - with the amount of back catalog most publishers have (with unclear designations), it would take too long to update all the OGC designations on a case-by-case basis; they would be forced to either exit the market entirely or put an extraordinarily generous (instead of stingy) OGC designation into all products to the effect of "everything except this list of PI terms is OGC" (retroactively, in the case of PDF publishers, which is more and more of the print market) simply because they wouldn't be able to make a more specific designation for every product. Such a blanket "opening" of material would in the minds of some publishers (for reasons that are their own) be disastrous and they would choose to exit the market rather than opening up their material in that fashion. Even those who did blanket open their material would see a lot of the "compendium" making others have complained of almost immediately, and this would reduce the value of their back stock.

A few publishers - those who have been extremely careful to be clear with their OGC/PI designations (Green Ronin comes to mind as a good example, and Ronin Arts is another) - would not be faced with that choice because they won't have to clarify their designations.

Most publishers, however, have not been *nearly* so scrupulously careful and if the day does come that WotC wants to yank the carpet out from under the OGL, that's the way they'll be able to do it, and many pubilshers would be crushed due to taking the easy road of fuzzy designations (with the side benefit of de facto protecting their precious IP - yes, that should be read like Gollum - from anyone else actually doing anything with) and relying on WotC's continued good graces not to ever actually enforce the OGL, rather than taking a long view and doing the designation right the first time.

--The Sigil

IANAL, TINLA