Licensing, OGL and Getting D&D Compatible Publishers Involved

[pemerton]

after the final rules it may be possible to create stuff using the older ogl compatible rules that are compatible with next

I think that's possible, yes. And I think any new licence from WotC is likely to be authored keeping that possibility in mind.

 

[pemerton]

No, that's not completely true. An IP has no value if people are not willing to pay you for it. Public goodwill, name brand recognition, and the like all have value, though they are harder to measure.

True, although my understanding (admittedly based more on Anglo-Australian than US trademark law) is that goodwill cannot be assigned without assigning other business assets.

I know that you are responding to a point about the GSL but your comment about "unlimited" seems to imply a conflation of the two licenses and the OGL is the license most of us would want, not the GSL

My comment was about trademark licences - I referred to "a royalty-free trademark licence of unlimited duration" - so I'm not sure why you think I'm talking about the OGL. The OGL is a copyright licence, not a trademark licence.

rules are never truly off limits to anyone nor are they able to be trademarked.

I think you mean "rules cannot be copyrighted". Rules absolutely can be trademarked, in the sense that WotC absolutely can sell rulebooks under the trademark "Dungeons & Dragons" and if you attempt to sell RPG rules under the same trademark you will be legally liable to WotC.

Rules, as such, have no real legal protection (which is part of the reason there are so many Monopoly clones), though the copyrighted presentation of them might. What the OGL does, and does well, is make rules and the application of those rules, open and available in a way that allows other companies to expand upon them freely, without having to worry about the finer points of treading the line of violating copyright.

From WotC's point of view, here are two options: (i) release text in which WotC owns the copyright so that other can use it for free; (ii) publish my rules, maintain control over my copyright text, and let others do the work of reproducing my rules without violating my copyrights.

I would think that option (ii) looks more attractive, especially given that I probably don't want other publishers publishing my rules, as opposed to publishing material to be used by those who have bought my rules from me.

publishers are free (indeed obligated under section 8 of the OGL) to delineate which parts of a book are Closed and which are Open.

A publisher who attempts to "close" material which is OGC - whether OGC in virtue of a declaration of such, or OGC in virtue of being derivative of other OGC - is in violation of the license, and perhaps also in violation of other people's IP rights.

Companies can actually publish compatible game material without it, but its simply, imo, going to be a little more of a headache (Judges Guild used to do it for AD&D for instance without a license).

Sure. But if you are suggesting that Paizo could publish PF in its current form without a licence from WotC then I think you're badly mitaken.

 

[Mistwell]

rules are never truly off limits to anyone nor are they able to be trademarked.

Rules however can be part of a trade dress lawsuit, and indirectly copyright as look and feel. That was decided with the Tetris case just last year. "The look and feel of [a game] is copyrightable expression distinguishable from the ideas of the game".

The elements that made up the "look and feel" are similar to any other game rules. For example, the number of playing pieces, the configuration of playing pieces, the size of the playing field, the way pieces moved in the playing field, the behavior of the game when a horizontal line was filled, and the behavior of the game when over, were all held to be both copyrightable look and feel, and trade dress. And yet, those are all part of the rules of Tetris.

So I would not be so sure that rules can no longer play a role in copyright issues. They now definitely can. And I don't think anyone wants to tempt fate with Hasbro.

 

[pemerton]

Rules however can be part of a trade dress lawsuit, and indirectly copyright as look and feel.

<snip>

So I would not be so sure that rules can no longer play a role in copyright issues. They now definitely can.

Another sort of interaction between rules and copyright that I have discussed from time to time with [MENTION=463]S'mon[/MENTION] in relation to OSRIC relates to the old AD&D-style rules for number appearing, number of higher level leaders per base level creature, etc. These are clearly part of the AD&D world-building and encounter-building rules. But they are also part of the story elements of D&D, and therefore perhaps able to attract copyright protection. I also think about a spell like Contact Other Plane, and wonder whether its a non-copyrightable rules element or rather a copyrightable story (about how the mage's spirit wanders to another plane and receives information from entities there, with certain likelihoods of truth, lies or insanity) which also happens to operate as a D&D rules element.

I don't have any strong intuitions about how "look and feel" in a computer game might carry over to copyright over RPG rules text, but WotC clearly thinks (or at least hopes) that they can copyright their 4e layouts/templates for powers, monsters, items etc (part of what the GSL does is authorise use of those templates).

I don't think anyone wants to tempt fate with Hasbro.

And I would also be surprisd if Hasbro wants to tempt fate in the way that it did with the OGL/SRD!

 

[S'mon]

The elements that made up the "look and feel" are similar to any other game rules. For example, the number of playing pieces, the configuration of playing pieces, the size of the playing field, the way pieces moved in the playing field, the behavior of the game when a horizontal line was filled, and the behavior of the game when over, were all held to be both copyrightable look and feel, and trade dress. And yet, those are all part of the rules of Tetris.

You need to distinguish 'rules', as in number of pieces on the board, from rules as in formulae & processes - the latter are not copyrightable.

 

[pemerton]

You need to distinguish 'rules', as in number of pieces on the board, from rules as in formulae & processes

Do you have a view as to what, in D&D or other RPGs, might be analogous to "number of pieces on the board"?

 

[Wicht]

My comment was about trademark licences - I referred to "a royalty-free trademark licence of unlimited duration" - so I'm not sure why you think I'm talking about the OGL. The OGL is a copyright licence, not a trademark licence.

Because you said that people were asking for a trademark license of unlimited duration. The thread is about asking WotC to extend the OGL to 5e. The OGL is an unlimited license. I just assumed you were mistakenly conflating the two. My apologies for the error.

I think you mean "rules cannot be copyrighted". Rules absolutely can be trademarked, in the sense that WotC absolutely can sell rulebooks under the trademark "Dungeons & Dragons" and if you attempt to sell RPG rules under the same trademark you will be legally liable to WotC.

No I meant that rules cannot be trademarked or copyrighted. Putting rules under the trademarked name of Dungeons and Dragons is not the same as trademarking those rules anymore than Coke putting the calorie count of their 12 oz. soda on a can with their logo trademarks the number of calories.

From WotC's point of view, here are two options: (i) release text in which WotC owns the copyright so that other can use it for free; (ii) publish my rules, maintain control over my copyright text, and let others do the work of reproducing my rules without violating my copyrights.

I would think that option (ii) looks more attractive, especially given that I probably don't want other publishers publishing my rules, as opposed to publishing material to be used by those who have bought my rules from me.

And of course here is where the major disagreement in business philosophy occurs, but we've already hashed it out, so I won't do more than note that I sincerely hope that is not, contrary to your assertion, WotC's viewpoint or they are indeed going to slowly smother their game. The open market is already here and thriving and I do not believe that a closed market can compete with what I think is clearly a superior model for the consumer over the long haul. Namebrand only gets you so far. Eventually a superior product and superior services are going to win out. Open Gaming provides superior choice to the consumer (and the publisher if they take advantage of it) and is not going to die anytime soon, I do not believe.

A publisher who attempts to "close" material which is OGC - whether OGC in virtue of a declaration of such, or OGC in virtue of being derivative of other OGC - is in violation of the license, and perhaps also in violation of other people's IP rights.

Sure. But if you are suggesting that Paizo could publish PF in its current form without a licence from WotC then I think you're badly mitaken.

Sure, but that's besides the point I made, section 8 still require you to note, in the publication which parts of the publication are closed and which are not. And closed content can be new rules as well as trade dress, IP, and what not.

That being said, I truly believe it is in the best interest of all OGL publishers to make as much of their game Open as they can. Paizo seems to agree seeing as how, in point of fact, they have released quite a few things that did not have to be Open, but they did it anyway.

 

[S'mon]

Do you have a view as to what, in D&D or other RPGs, might be analogous to "number of pieces on the board"?

Well, in the Tetris case they copied the whole game, AFAIK, inasmuch as the end user was concerned. This look & feel of a computer program has been held unprotectable in the UK, but US copyright is broader and more amorphous. This amorphousness makes it hard to know where a US court would set the boundary, but I would think that a completely cloned game sans OGL would probably be held infringing even if the _description_ of the game elements was slightly different than any particular text published by TSR-WoTC. Whereas a particular element such as using 3d6 to generate stats STR DEX CON INT WIS CHA very probably would not be infringing.

A precise reproduction of the 1e AD&D saving throw tables would, I think, likely be infringing; similar tables have been held to attract copyright in US & UK, though generally not in Civil-law nations. The general idea of a saving throw table is not protectable though, nor (AFAICT) are any elements derived from a formula, such as "+1 every 3 levels". So the formula-derived 3e saving throw tables might not be protectable whereas the 'messy' 1e tables probably would be.

 

[S'mon]

Rules however can be part of a trade dress lawsuit, and indirectly copyright as look and feel. That was decided with the Tetris case just last year. "The look and feel of [a game] is copyrightable expression distinguishable from the ideas of the game".

If you're claiming that rules can be protectable as trade dress, I think that's highly misleading. I can claim that you've infringed my trade dress through the look and feel of my game, and I can claim (in the USA) that you've infringed my copyright in the look and feel of my game. But those are actually two completely different claims that the judge needs to deal with separately, if he's doing his job right. One relates to a misrepresentation (passing off/unregistered mark), the other to copyright.

 

[Mistwell]

You need to distinguish 'rules', as in number of pieces on the board, from rules as in formulae & processes - the latter are not copyrightable.

If you're claiming that rules can be protectable as trade dress, I think that's highly misleading. I can claim that you've infringed my trade dress through the look and feel of my game, and I can claim (in the USA) that you've infringed my copyright in the look and feel of my game. But those are actually two completely different claims that the judge needs to deal with separately, if he's doing his job right. One relates to a misrepresentation (passing off/unregistered mark), the other to copyright.

Did you just forget you had already responded to me?

I am claiming that the matter is now so confused as to not be worth risking it for anyone. The difference between "look and feel" and "rules" is so unclear that I don't think a reasonable person can make the distinction reliably. You're claiming the distinction is there - and in theory it is. But, in practice, it's not really something that can be achieved. I see no bright line between what is a rule, and what is a look and feel, when things like "number of game pieces" and " the way pieces moved in the playing field" is a look and feel and also a rule.

If it's on the iconic character sheet of a version of a game, it's likely going to be look/feel. Your ability scores are both rules and look/feel. Hit points are both rules and look/feel. Armor Class is both rules and look/feel. Alignment is both rules and look/feel. Move rate is both rules and look/feel. There is no realistic distinguishing line between being a rule and also being look/feel. And as the later is protected, the claim that rules are not protected becomes a meaningless point. In practice, as a practical matter, they may be protected, and so nobody is going to mess with the issue.