Loremaster Article: To GSL or not to GSL?

[Matt James]

...by the way, the premise for his "not nice" comment was directly related to some publishers here that were hinting that it was not nice, nor moral, to choose not to use the GSL. Someone hinted that it was illegal as well, which is what prompted him to draft the article.

 

[Frylock]

Clarifications

I’m the author, and I’d like to clarify a few things.

1. The conclusion of the article was simply this: You can publish 4e material outside the GSL without resorting to legal trickery due to the very nature of copyright law.

2. I’m fully aware of the OGL. I left it out because 1) the article is about the GSL, and 2) the OGL was so expansive that I don’t think anyone really needs to be told that you can publish outside it. There’s almost no difference between publishing inside or outside the OGL considering that it allows you to do so much, so most everyone (if not everyone outside of gamers writing adventures for home games) probably adopted it. Nevertheless, I've amended the article to include its mention because my statement about 'no other licenses' was technically wrong.

3. The details of the GSL are outside the scope of the article. Discussing them would serve only the purpose of helping you decide whether to adopt it. That’s a business decision I’m unqualified to make for you, so with the exception of very general statements of the pros and cons of adoption the GSL (game integrity and marketing power v. encouraging creativity), I have no intention of going through a line-by-line analysis. EDIT: I did identify the three documents that make up the "GSL" because of pervasive confusion I've read/heard from gamers. Of course, if the people call for that article, maybe I have my Part VI topic now.

4. I didn’t denote the SRD, “SRD (4th),” because I didn’t want to confuse the issue. The article is about the GSL, and taken within context, I don’t know how someone could possibly think I was referencing anything but the 4th edition SRD.

5. As Matt pointed out, there seems to be a misconception in this thread that I’m evaluating the GSL (and by extension, WotC) as “nice” v. “not nice.” I’m not. I’m evaluating whether it is fair to say that your choice not to adopt the GSL is “nice” or “not nice.” In other words, the question is: If you publish a 4e supplement without adopting the GSL, are you guilty of finding a legal loophole and inappropriately subverting copyright law or ethical business practices? (The answer is no, no, no, no, no!)

6. I added a “soapbox alert” tag due to the concern that my opinion is sprinkled throughout the article. It clearly is, but it shouldn’t be the focus. My purpose is to objectively discuss the legality of going outside the GSL. For the record, my statement of the purpose of copyright law is not mere opinion. If you read almost any court decision on copyright, you’ll see that the purpose is public in nature. The grant of a private monopoly is merely a mechanism to serve that public interest. I'd give you multiple examples of this, but they're primarily constitutional issues, and I don't want to start any political fights.

Thanks for your comments.

 

[S'mon]

The article says several times that 'names' - single words - are copyright protected. I find this strange, and it's definitely not the case in UK copyright law. I doubt very much it can be the case in US copyright law either. It would mean for instance that book titles were copyright protected and thus no two books could have the same title. He seems to be treating original names as protected inventions, like patents. I can't see any basis where the words "Sly Flourish" could be protected by copyright yet the description of the power is not. And if it were copyright protected, he and I would be breaching that copyright simply by writing 'Sly Flourish'.

I teach copyright for a living in a UK University.

 

[Frylock]

Inferences

You appear to be reading more into what I'm saying, which is probably not your fault. It's a short article.

The article says several times that 'names' - single words - are copyright protected.

Not really. If someone were to create an adventure that take a lot of material from, for example, the Eberron campaign setting, that would be a derivative work if it had any level of detail. That wouldn't be permitted under Copyright law. It's not that the word is copyrightable, but rather the context in which it's used. For a 3PP publication to be meaningful, however, that context would always be present, raising the issue of copyright infringement. As this is not clear, I will edit the article accordingly.

It would mean for instance that book titles were copyright protected and thus no two books could have the same title.

This is a purely academic point, but no, it wouldn't even in the context of what I said. "Player's Handbook" is functional, thus outside the scope of copyright. I also make constant references to a minimum requirement of originality for those materials that otherwise are copyrightable. I don't define 'minimum requirement of originality' because it's outside the scope of the article. For the record, the Copyright Office expressly states that it won't approve copyright applications for the titles of works.

And if it were copyright protected, he and I would be breaching that copyright simply by writing 'Sly Flourish'.

Transformative use would allow this, and my use of the term over and over again suggests very strongly that I feel my use of that phrase was justified. However, transformative uses aside, with respect to power names generally (not "Sly Flourish" specifically), I say,

Whether or not the name of the power has enough creativity or originality to justify copyright is questionable, but the flavor text is certainly copyrightable for almost all powers, unless that text is as simple as, “I will crush you.”

Emphasis added. I also refer to them as, "arguably copoyrightable." I don't give the typical power name much credit for copyrightability.

I can't see any basis where the words "Sly Flourish" could be protected by copyright yet the description of the power is not.

I also can't see any basis where the words "Sly Flourish" are copyrightable, but I can see longer, more creative power names, in theory, rising to the level of copyrightable works, and I make this quite clear.

For a 3PP character builder (the only place where this issue is really relevant*), in the interest of playing it safe, I would advise people not to use power names at all. If WotC believes that certain power names are protected, and considering how much WotC has invested in the DDI, I wouldn't risk incurring a lawsuit from them, which is expensive even if you wind up winning. (See any of my other articles in the Protection from Chaos series for numbers.)

Of course, a premise of the article is that this "playing it safe" has gone too far, resulting in people thinking they must use the GSL to publish 4e material. All I've done here is 1) stated generally why that isn't true, and 2) given people a starting point for the process of making their business decision. As always, a 3PP should present their specific text/software to their own attorney before making a decision.

Thanks for your critique. There is an obvious ambiguity in what I've said that is relevant to the topic, so I'll edit the article. However, I want to make note of the fact that it's unfair to hold an internet article to the standard you appear to be creating. Only a treatise can plug all holes, but articles like this are quite useful for people. You shouldn't discourage them by raising complexities irrelevant to the subject.

* I say that the issue of power names is really relevant only with respect to a 3PP character builder because where else would someone realistically publish an existing WotC power? If a 3PP created its own sourcebook, it would probably create new powers. Otherwise, it's unlikely it would sell any copies. I can imagine some master compendiums where 3PPs might do that, but otherwise the material is likely to be original. A 3PP CB, though, would have the purpose of reproducing existing material, so the issue would almost certainly arise there.

 

[S'mon]

This is a purely academic point, but no, it wouldn't even in the context of what I said. "Player's Handbook" is functional, thus outside the scope of copyright.

Under UK copyright law, short phrases like 'Player's Handbook' or 'Sly Flourish' simply don't meet the substantiality requirement for copyright protection. What you say about 'functionality' and 'transformative use' is interesting, they show a very different approach than in UK copyright law.

The approach under UK or UK-derived copyright would be that the words 'Sly Flourish' or 'Bulette' are not protected, rules mechanics per se are not protected, but the text describing the power or monster can be protected, and I think less regard would be given to whether the WotC text was the only or best way to describe how the power or monster works.

Re monster stat blocks; the monster's in-game statistics would probably not be protected, but the formatting of the WoTC stat block probably would be protected against copying, even if it is the 'best' way to present the monster.

Another difference from US law is that the UK does not protect vs 'derivative works', we protect vs 'adaptations' - US "derivative work" doctrine has extended beyond adaptations at least in some states. In the UK it would be hard to use copyright to prevent somebody publishing a work set in the same fictional setting as your fantasy universe (Eberron, Greyhawk etc); Trade Mark and Passing Off law would be better bets unless the work made it very clear it was unauthorised. You'd have to show the new work 'took the heart' of your work (Herbert vs Ravenscroft) which is not easy.

Finally, I do agree with you that it's certainly possible to publish 4e-compatible material without using the GSL, without infringing copyright, and without doing anything questionable. The pre-GSL 4e Kalamar (Kenzer) or Goodman Games' DCCs are good examples; although in the latter case they also did several things they didn't need to such as using different words for game-terms like Bloodied; that has no legal effect AFAICS.

Anyway thanks for your interesting article and response.

 

[Frylock]

Can you point me to a good link on "adaptations" and "passing off" under UK law? Thanks.

EDIT: Never mind. I found the a decent site to get me started (http://www.copyrightservice.co.uk/).

 

[pemerton]

I teach in an Australian law school, but not in IP (the closest I get is teaching breach of confidence as part of an Equity course).

I enjoyed the article. And it's good to see some sensible discussion of these issues on a message board.

 

[Matt James]

I agree, it's good to dig down deep to help clear up a lot of the incorrect assumptions and assertions that get toss around. Sadly, it appears some small publishers are eating up the incorrect information as well.

 

[dmccoy1693]

For those that are not aware, I am the publisher that the blogger referred to when he said "not playing nice." First I want to state that the blogger appears to be unaware of gaming history. I direct your attention to This Article. It was written by a woman who is probably the closest the gaming industry has to a historian. He has a book coming out later this year detailing that gaming history. I will point you to the section titled Twenty-Five Years of Lawsuits. Read that. Take particular note of how many cases TSR filed as law suits and lost because of the very copyright laws that the blogger referenced and were sued none the less are went out of business because of the legal expenses paid in those law suits.

I would now like to direct your attention to this article. Its called The Most Dangerous Column in Gaming
Open Gaming Interview With Ryan Dancey This article is published by Wizards of the Coast on their website when the OGL was coming out. The one thing that Ryan never says here but is implied and stated elsewhere in places I can't find right now that the OGL is Wizards' answer to TSR's neverending lawsuits. The OGL was the "safe harbor" that as long as publishers abided by these rules they will not be sued by Wizards and you can publish whatever you want. The GSL was suppose to follow in that tradition. Its success is debatable but it follows along those lines.

So when I say that my company is playing nice, I mean that we are playing it safe. We are not taking the possibility of being sued. We play by the rules laid out by whoever publishes the core game. If the company does not release any kind of license, we do not publish there. It is their game afterall and if they do not want anyone else playing in their sandbox, that is their decision and we will respect that.

In short, we cannot afford a law suit, whether the suing company has a legal leg to stand on or not. While the blogger is right legally speaking, he appears to be rather naive on the real word financial impact of law suits from a large company to a few person operation and the history of why the open licenses of today are around.

EDIT: I rolled a 5. That's about right.

 

[Matt James]

Jon, can you explain why companies such as Goodman Games and Open Design (Kobold Quarterly) have not been sued by WotC? They chose not to adopt the GSL, and have been publishing 4e content since it came out. As for the legal side, I'm sure Rob will respond, however it is more than unfair (and a cheap shot) to call him naive. He's been in the community for years--not as a publisher--but an active volunteer in major conventions and events (to include running his own convention in recent years). I thought his unique education and experience as an IP lawyer would add significantly to this discussion. He also stated that he is not providing legal advice, and that you should seek your own conclusion to his content.