No ECL in the SRD. Why are d20 publishers able to use it?

[jmucchiello]

I think you missed my point...{snip}

I get your point. My point can be summed up in three alphanumeric glyphs:

So?

What does your pointing out the differences between copyright law and the OGL matter? Who cares? What does it mean to me?

As I (admittedly flippantly) said before, if you want to put out a game called Dunjons and Draggings, more power to you. But it won't sell. No one will take it seriously. Everyone will know where you nicked the game mechanics from. What benefit is there in not going the OGL route?

Until you can show me a monetary value in diving into the dangerous waters of copyright law without the OGL to watch my back, your statement have no value beyond the academic thought puzzle level.

In the real world, Dunjon and Draggings gets a C&D from Wizards' lawyer so fast it makes your head spin. Even if you eventually prove that not a single phrase is derivative from D&D, you are still going to be out several hundred thousand or even millions of dollars in attorney fees and court costs. Weighing that risk against complying with the one page OGL is hard to justify, especially when you are putting your money on the line.

If you feel Wizards is taking advantage of the d20 publishers, tell the ones making profit off of it how much more profit they'd make without the OGL. Dollars and cents, what are we missing out on?

(Note: I was getting a little flamy in my other responses and I apologize. There are no intended flames in this post. Just solid questions I wish to see your responses to.)

 

[Blacksad]

I think his point is that you can't PI things which are already in the open domain, and that the mechanic of ECL is already in the open domain (the OGL allow you to PI monster, artefact, etc...and restrict the use of trademark, it doesn't superced copyright laws which put the ECL mechanic in the open domain).

That is, if I understand correctly. and IANAL

 

[jmucchiello]

I think his point is that you can't PI things which are already in the open domain, and that the mechanic of ECL is already in the open domain (the OGL allow you to PI monster, artefact, etc...and restrict the use of trademark, it doesn't superced copyright laws which put the ECL mechanic in the open domain).

That is, if I understand correctly. and IANAL

OIf course you can PI things that are open domain. The OGL states what can be PId and it does not say, "except for non-trademarkable things" anywhere or "except for things not protected by copyright."

An obvious counter-example is Zeus. I can PI that name if I want to. Stops only people from referring to my Zeus. It does not stop them from using the name to refer to some other Zeus.

Contracts can and do supercede laws all the time. Have you ever signed an NDA? That contract violates your right to free speech doesn't it? Is it enforceable? You bet. Why? Because in a contract you can say, "we don't want to play by this civil code law" and if you both agree to it, it no long applies. (The same does not apply to criminal law.)

By agreeing to the OGL, you agree to allow any nimrod on the planet say Zeus is his PI and you agree to respect that declaration if you wish to derive material from his OGC. I still don't see the problem.

 

[Mark]

Game mechanics cannot be copyritten only the means of presenting them can be.

Excellent point, Drawmack. This is precisely why the OGL is explicit about saying that the Game Mechanic (the sigma function) must be OGC.

Apples and oranges. I'm not a lawyer but where does it explicitly say that all game mechanics must be OGC? If I create non-derivative game mechanics and include them in an OGL product am I bound to release those non-derivative game mechanics or their expression as OGC? I think not, but granted that is just one interpretation of the OGL and not tested in court where the final ruling on such a stance lies.

Once someone submits to utilizing the OGL they are theoretically bound to a formal contract and theoretically no longer safe in the assumption of how copyright or trademark laws effect their stance, either. I say "theoretically" because there's been no precedent set in court, and further because even if there were, such things can be decided on a case by case basis where one ruling is set and another might very well overturn a previous precedent dependent on the particular circumstances.

Again, I'm not a lawyer, but that's the crux of my understanding of the situation, boiled down for your amusement.

 

[The Sigil]

Apples and oranges. I'm not a lawyer but where does it explicitly say that all game mechanics must be OGC?

Um, in section 1d, I think...

(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. (emphasis mine)

I read that as multiple things, separated by "ands" - Open Game Content is defined by the OGL as:

1.) the game mechanic(s), specifically including methods, procedures, processes and routines

2.) an enhancement over the prior art

3.) any additional content clearly identified as Open Game Content by the Contributor (that one seems glaringly obvious in interpretation)

4.) any work covered by this License... under copyright law (with examples given of translations and derivative works - IOW, any work that copyright law would define as a derivative of pre-existing OGC - this one also seems clear to me).

Granted, there is an exception to #1 - "{if such content embodies} the Product Identity... though I think it would be rather hard to show that your game mechanics "embody" your Product Identity.

If I create non-derivative game mechanics and include them in an OGL product am I bound to release those non-derivative game mechanics or their expression as OGC? I think not, but granted that is just one interpretation of the OGL and not tested in court where the final ruling on such a stance lies.

I happen to interpret that it does, as it does not say, "Derivative game mechanics," but rather "game mechanics" with no mention of whether or not such mechanics are derivative. But you are right - the final ruling would have to come in the courtroom.

Once someone submits to utilizing the OGL they are theoretically bound to a formal contract and theoretically no longer safe in the assumption of how copyright or trademark laws effect (sic) their stance, either.

Actually, I'm not sure I agree that you can't make any assumptions about trademark and copyright laws' applicability. It seems to me that copyright and trademark laws apply as normal with certain exceptions spelled out in the OGL itself - i.e., that you can use certain copyrighted material (OGC) when you ordinarily couldn't, and that you cannot use trademarks and certain other material (PI) even when you normally could.

I say "theoretically" because there's been no precedent set in court, and further because even if there were, such things can be decided on a case by case basis where one ruling is set and another might very well overturn a previous precedent dependent on the particular circumstances.

I can't argue about that point!

Again, I'm not a lawyer, but that's the crux of my understanding of the situation, boiled down for your amusement.

Nicely done. I may not completely agree with the particular interpretation of the OGL you hold, but I think you've boiled it down to the major points of interpretive difference as respects this issue... and anyone interested in a definitive answer to questions such as the one above is much better served hiring and consulting with qualified and licensed legal counsel instead of asking armchair lawyers like us. This is all IMO and is not to be construed as legal advice, of course. LOL.

--The Sigil

 

[Mark]

Well put but my caveat would be...

OGL section 1d
(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. (emphasis mine)

To whit it covers material already designated and might include additional material by a subsequent contributor if such material is an enhancement or deriative of previous material, though does not specifically state that all such material must be declared if not deriative or an enhancement. Any work covered referring to previously designated content but not stipulating that original new game mechanics be automatically designated. Again, not a lawyer...

 

[The Sigil]

I think what we're quibbling about here is matters of semantics... semantics which DO change the meaning of the passage, but semantics nonetheless.

My view is that the "and"s are used the conjunctive sense; i.e., like bullet points on a list. I read it as, "if any of these criteria separated by 'ands' are met, the subject matter is of necessity Open Game Content."

Your view is that the "and"s are used in the sense of listing *all* criteria that must be met.

The difference in approach is easy to illustrate with a simpler example; the "ColorOGL" in effect says:

Open Game Content" means that which is red and blue and green, and orange, including burnt orange, but not anything "melon orange."

My argument hinges upon reading "and" as "and/or" or "any of the following"- the English Language equivalent of the "inclusive or" - so a blue shirt with no red or green or orange would be OGC under my reading of the OGL. I do this because in the English Language, we do not have a single word for the inclusive or - we use "and/or" or sometimes simply "and" to approximate it when using a single word and not a clunky construction such as "and/or".

By your reading, where the "and" is a list of quantities, ALL of which must be true - in other words, rather than an "inclusive or" you read it as a strict "all of these" instead of "any of these" - the shirt would have to be blue with red stripes, green polka-dots, and an orange label to qualify.

*shrugs* I think my way is the more conservative reading as far as compliance, to be sure, as it ensures that nothing is Closed that should be Open - at the cost of making Open that which might otherwise be Close-able.

But as you said, there's no way to tell for sure which it DOES mean until we get a court to tell us. We can argue the point all day, but I think we understand each other and can agree to disagree - until a court ruling tells us who is right. And I'm sure neither of us is exactly chomping at the bit to be the guinea pig! LOL

--The Sigil

 

[Mark]

the "ColorOGL" in effect says:

Open Game Content" means that which is red and blue and green, and orange, including burnt orange, but not anything "melon orange."

Perhaps more apropos to say that the "ColorOGL" in effect says:

Open Game Content" means that the colors red and yellow and orange are OGC. If I then include burnt orange it could be argued that it is derivative of orange but if I include blue (it's a gritty setting ), which is not mentioned, is it included automatically as OGC? While one might argue it is a color, and therefore included implicitly, there is little in contract law, from my understanding that can hold up based on implicity. Contracts are written to avoid implicity and based on explicty.

I may have mentioned that I am not a lawyer but it's my understanding that when a disputed contract goes to court the intent of the contract, the understanding of the contract (by each party involved), and the broadest interpretation of the semantics are taken into account prior to rendering of a ruling.

At the end of the day, contracts are no more than words and they must stand on their own in the determination of the validity and meaning of a contract (they must defend themselves, to an extent).

Further, I do not believe that WotC's intent was to force all game mechnics to be OGC (they've purposefully left some of their own game mechanics out of the SRD, but not out of their own works), but rather that all game mechanics that are OGC remain as such (inclusive of future derivative mechanics) and that it is encouraged that anyone joining into the contract be encouraged to contribute additional OGC and new mechanics (thus making the OGL more attractive to a continually growing field of contributors).

I might be wrong but the actions of WotC ("they've purposefully left some of their own out of the SRD, but not out of their works") speaks as much to their intent as any words that might be proffered in court to bolster your interpretation, if indeed yours is the one that would be put forth. That contradiction leaves us then with the words of the contract itself to guide us and the words of the contract leave it open to my own interpretation as much as yours, IMO.

Additionally, my interpretation does not eliminate your ability to contribute, whereas your interpretation eliminates my ability to preserve some material. If a court needed to determine if someone was in their right to preserve and there is room within the semantics of the contract or potential interpretation of that contract to allow for that preservation a court might be inclined to not be more restrictive than the letter of the contract bolstered by contradictory displays of intent in spite of whatever testimony was proffered to support a more restrictive interpretation. *shrug*

...still not a lawyer...

 

[Morrus]

Goodness me!

I'm halfway through writing the d20 Publisher's Guide, which goes into detail on things like this. Hopefully this thread indicates that some people will be at least interested in reading the book!

{Even if they end up disagreeing with me! That said, Andy Smith at WotC has looked over what I have so far and given an informal thumbs up and has offered any assistance I may need, so I'm confident that the final product will be as accurate as it is possible to be}

 

[Mark]

{Even if they end up disagreeing with me! That said, Andy Smith at WotC has looked over what I have so far and given an informal thumbs up and has offered any assistance I may need, so I'm confident that the final product will be as accurate as it is possible to be}

Will it include as many disclaimers of not being actual legal advice as used in this thread?