Kobold Press Releases Black Flag Reference Document

Kobold Press released the System Reference Document for Project Black Flag, the updated version of 5e that Kobold Press announced following the OGL controversy earlier this year. The 138-page document includes character creation rules and the classes of Cleric, Fighter, Rogue, and Wizard plus combat and gameplay rules, equipment and magic items, spellcasting, and monster stat blocks. From the blog post:

It’s been a while since we have had a Black Flag update, but we’re excited to announce that the drought has ended!

Kobold Press is excited to announce our first public Black Flag Roleplaying Reference Document (BFRD). This document is built off the current public Alpha Release and falls under the ORC license. This means that now EVERYONE can freely create using this open rules system!

This is only the first version of the BFRD. As we complete more of the final rules, the Black Flag Reference Document will be updated and re-released to stay current. Make sure to follow us on social media, in our Discord, or through the Courier newsletter so you don’t miss when the next update of the Black Flag Reference Document goes live.

You can download the Black Flag Reference Document from the Kobold Press website.

 

[kenada]

I don't understand the legality here. So much of this is still a straight lift from D&D. Can anybody explain what qualifies as derivative and what doesn't?

It uses the CC-BY SRD 5.1.

 

[Reynard]

I don't understand the legality here. So much of this is still a straight lift from D&D. Can anybody explain what qualifies as derivative and what doesn't?

All open content -- whether by bespoke license or CC -- does is allow you to use the text verbatim. If you completely rewrite a rule, it isn't subject to any of that. The only value of the SRD is "safe harbor" in order to not have to go to court to prove game rules are not subject to copyright.

 

[Morrus]

I don't understand the legality here. So much of this is still a straight lift from D&D. Can anybody explain what qualifies as derivative and what doesn't?

Third parties create 5E products using the Open Gaming License, Creative Commons, or Open RPG Creative License. That’s how every other Kickstarter is a 5E Kickstarter and why there are so many 5E powered RPGs.

The core rules of D&D 5E were released as open gaming content using the OGL about a decade ago, and additionally into Creative Commons earlier this year.

That said, I don’t know how much if any text this SRD re-uses from the 5E SRD.

 

[aramis erak]

All open content -- whether by bespoke license or CC -- does is allow you to use the text verbatim. If you completely rewrite a rule, it isn't subject to any of that. The only value of the SRD is "safe harbor" in order to not have to go to court to prove game rules are not subject to copyright.

It's worth clarifying:
In the US, the rules of a game, being a process, are not protected.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

France and Germany have very different approaches to IP, and as the Jungle Speed case showed; even a retheme and total paraphrase violates creators' rights in France.

 

[Abstruse]

It's worth clarifying:
In the US, the rules of a game, being a process, are not protected.

This is questionable because the legal precedent for that determination is from the court case Baker v. Selden in 1879 and written into law under that interpretation in the Copyright Act of 1976. However, it has not been challenged in court since then to the point it's gone to trial with the far more complicate game rules of modern games. The law was put into place when the most complicated games were chess and Monopoly. So if a company with a lot of money to push the matter in court might be able to contest it under the argument that the rules systems are more complicated and an expression of art within themselves.

That was one of the big sticking points during the whole OGL discussions that people were treating Baker v Selden as established case law that was set in stone when, up until late 2022, the OGL was considered solid under established case law.

 

[aramis erak]

This is questionable because the legal precedent for that determination is from the court case Baker v. Selden in 1879 and written into law under that interpretation in the Copyright Act of 1976. However, it has not been challenged in court since then to the point it's gone to trial with the far more complicate game rules of modern games. The law was put into place when the most complicated games were chess and Monopoly. So if a company with a lot of money to push the matter in court might be able to contest it under the argument that the rules systems are more complicated and an expression of art within themselves.

That was one of the big sticking points during the whole OGL discussions that people were treating Baker v Selden as established case law that was set in stone when, up until late 2022, the OGL was considered solid under established case law.

The US Copyright Office considers it settled enough. Games

The American Bar Association also considers it settled enough...
Note that the article is specifically about video games, but the indtroduction & conclusion shows the basic assertion that games are not copyrightable.

For example, in Affiliated Enterprises, Inc. v. Gruber, the First Circuit held that the rules and overall system for a lottery game “Bank Night” could not be copyrighted, reasoning: “However good and valuable an idea, plan, scheme, or system is, the moment it is disclosed to the public without the protection of a patent, it becomes public property[.]”

Games rules have never been copyrightable, and the idea of a game is just one uncopyrightable aspect of a work. This may be somewhat discomfiting, where the game is comprised almost exclusively of rules—such as in Tetris, but that is no excuse to find otherwise. As explained in detail above, the statutory language and legislative history supporting that language both confirm that neither abstractions nor functional features are copyrightable. Focusing on abstractions only is error. Thus and in conclusion, to determine the uncopyrightable aspects of a video game, a court must not only define the uncopyrightable idea of a game, but also its uncopyrightable rules.

https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2014-15/march-april/its_how_you_play_game_why_videogame_rules_are_not_expression_protected_copyright_law/#:~:text=Games%20rules%20have%20never%20been,no%20excuse%20to%20find%20otherwise.

Note also - UK, French, and German rules differ from the US and each other.