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

[Morrus]

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

Heh - take a look at the top of the first page (the contents page):

 

[Mark]

Heh - take a look at the top of the first page (the contents page):

It would seem to cover your bases...

 

[hudarklord]

1 - The game mechanics themselves are always Open Game Content in a work utilizing the Open Game License.

4 - Any Product Identity that is "mixed in" with Open Game Content is not Open Game Content. This allows you to make "exceptions" in your designation. It essentially allows for more compact designations of OGC and PI.

Actually, Green Ronin and a couple of other publishers have specifically chosen not to agree with #1 above. They have PI'd mechanics. I think the license can be read as to allow for this.

Consider this. A person is allergic to strawberries, but likes many other fruits. They might say, "my grocery list includes fruit, but specifically excludes strawberries."

Got it? So the statement of inclusion does NOT have to be read as specifically including ALL fruit.

Let's look at the OGL:

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.

Note that when something might otherwise OGC but it is specified as PI, then it is NOT OGC. Whenever the methods, procedures, processes, and routines embody PI, then they are NOT OGC.

Most people mistakenly believe that PI is only trademark and art. It isn't.

"Product Identity" means ... thematic elements, ... language, ... formats, ... concepts,... and ...specifically excludes the Open Game Content

If you come up with your very own mechanics and insert them into a work, then you can declare the "language" you explain them with, any "thematic elements" created or embodied by those mechanics, and any "concepts" behind those mechanics as Product Identity.

Mongoose frequently used to open their mechanics but not their language. Green Ronin has, in at least one product, de facto locked down concepts as well, closing off an entire section of new rules as PI.

Under U.S. copyright law (with the OGC definition "reads in"), if you don't demand that I sign over copyrights of my derivative works when you license me to make a derivative work, then I gain a copyright on any newly added materials. You don't get copyright on that stuff. Insofar as it can only exist alongside your material usefully, then it is only useful in a licensed product. But if I can sift out your copyrighted stuff, I could republish my additions separately, since I'm the copyright owner.

As a copyright owner, I have the right to contribute stuff as OGC or to lock it down as PI, but this is most applicable when I can clearly separate my stuff from your stuff (so that I don't inadvertently declare as PI some of your language and concepts).

So, theoretically, I believe you could lock down mechanics under the OGL. However, this is _very_ limited protection. Mechanics, by themselves, without an accompanying presentational framework, are not copyrightable. So, unless you need to cite the product that has the locked down PI mechanic in it in your Section 15, you could borrow the ideas, rewrite your own rules section, and then introduce it into a product as OGC, PI, or whatever. Provided you used your own language and structure for the presentation of that rules subsection, the originator of the concept would have no claim to copyright violation. It should be noted that part of your work sort of steps outside the legal safe harbor of the OGL via this method.

So, I think that PI'ing rules might be do-able, but it's practically pointless. Simpler -- PI the descriptive language (as language), PI the gamespeak terms (as language/concepts), PI your layout of those sections to be protected (as formats), and then OGC the rules. That'll de facto give you about the same level of protection for your product without raising a dust storm over whether or not you had the right to PI your mechanics. It only leaves out one layer of protection -- that, by this method, people could copy all your OGC, rewrite your protected sections, and republish your book, by Section 15'ing the product.

Green Ronin OGC'd so much of their product, that they did NOT want people to be able to both Section 15 the product for OGC use and to adapt the PI concepts.


The weird thing about the Green Ronin product I mentioned, is that they PI'd certain point costs, and PI'd certain "gamespeak" phrases, but they opened up as OGC the method by which you derive the costs. Now that was pretty odd. It almost seems like if you derived the costs via the formula (which they left as OGC to allow you to publish your own lists of powers, provided you didn't use their gamespeak), then you could get the numbers right back without directly deriving them from the protected sections, but rather by deriving them from the unprotected sections. I think this was some bizarre SNAFU and the OGC/PI declaration could thus be much clearer, but that's just an aside. I think I've now seen two different major d20 content publishers slap a PI declaration on rules that they created exogenous of the SRD and/or the d20 system.

Lee

 

[hudarklord]

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).

First, WotC didn't PI the term "ECL", they just didn't release it as OGC. That is VERY VERY different. If they PI it, then unless you can show that you got the term from somewhere else, then you can't use the term in any work which Section 15s the work containing the definition of PI.

If WotC merely didn't release it as OGC, but also didn't release it as PI, then it's merely a concept, subject to U.S. copyright laws, and being an unpatented concept, it has precious few protections.

BTW -- the hitch to all this "unpatented concepts in the public domain" stuff is that the OGL is a license which extends not only to copyrights but to "concepts" (see the definition of PI). So that can create even more complicated scenarios.

 

[hudarklord]

Now if I came along and published a game book with the same format above but used my own words to describe the fireball, even if they end up saying the same thing, though not word for word, I would be ok

Like how in a cookbook its the descriptive part that is copyrightable not the list of ingredients. Also the way its listed is a pretty common format of use just like in a cookbook, baseball cards, real estate listing and so on.

Actually, unless the descriptive part is merely commentary (say, on how good Southern food tastes to the author in the summertime), then even the descriptive parts of the task itself may not be copyrightable.

HOWEVER, one thing that may be copyrightable is the selection of facts. If you went through and rewrote the spells in the PHB by "filing off" the names and the descriptions, but WotC noted that you had included 100% of their spell concepts and gamespeak blocks from those spells, then you could be guilty of copyright infringement still if a court rules (and it would) that some creativity was involved in selecting which types of spell concepts to include in the manuscript.

Similarly, even if spell names are not copyrightable, if you kept all the spell names in the same order, but punted the descriptions and gamespeak blocks entirely and redid them, you'd be guilty of copyright infringement for reusing all the names as a collection.

Just a side comment worth noting. Some things that look copyrightable aren't. You can, in fact, verbatim copy somebody's description of how to employ a game mechanic if there is only one, or a small handful, of ways to describe the mechanic in practice. The doctrine of merger says that when something unprotectable (a concept) merges with otherwise protectable content (a description), and there aren't a lot of different ways to convey the unprotected item, then the whole is unprotected.

Similarly, you can likely not copyright many of the instructions in a recipe.

However, you can copyright the formatting, organization, and selection of otherwise unprotectable items, so long as the formatting, organization, and selection was in some way inobvious, novel, or at the very least, subject to some active decision making on your part as an author.

Lee

 

[hudarklord]

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.
--The Sigil [/B]

Why is this hard at all? Product Identity is not merely limited to trademarks. Since you can protect formatting (used to display the rules), language (used to describe the rules), themes (which represent those intangible "look & feel" things you may trying to convey -- in your game world combat is supposed to be deadly, 'cause the world is gritty), and concepts (which embody the rules) as PI, then if you declare all those things as PI, you've pretty much locked down every approachable angle on access to those rules as OGC.

Mongoose publishing has frequently chosen to lock down their format, language, and themes, choosing to declare their rules as open. That's one example of closing down 3 out of the 4.

Green Ronin has chosen to lock down all 4 and PI some of their rules altogether.

 

[The Sigil]

*shrugs*
I'll simply ask, "show me a case where rules EMBODY Product Identity." Perhaps because I don't speak lawyerese, I can't think of an example where RULES "embody"

product and product line names,
logos and identifying marks including trade dress;
artifacts;
creatures
characters;
stories,
storylines,
plots,
thematic elements,
dialogue,
incidents,
language,
artwork,
symbols,
designs,
depictions,
likenesses,
formats,
poses,
concepts,
themes and
graphic, photographic and other visual or audio representations;
names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities;
places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs;
and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity

I have been trying to think of something where the rules "embody" a character or a creature - and I can't think of one. I can think of instances where new rules might be needed to "describe" a character (e.g., a spellfire wielder) but that to me does not mean the rules "embody" the character.

Actually, I take it back - I can think of exactly one instance where you could have rules that embody one of the above - a language -e.g., Tolkien's grammatical and pronunciation rules for speaking Quenya. The functional concept of the Quenya language cannot be accurately created without these rules.

But again, it may because I don't speak lawyer... perhaps embody means something else in lawyerese, but to me "embody" means, "the very concept cannot exist without the rules." The concept of a spellfire wielder - one who wields raw magical energy - can exist without the accompanying rules. The concept of Quenya - other than the too gross concept, "it's a language spoken by elves" cannot exist without rules.

*shrugs* Chalk it up to me not being "down" with lawyerese.

I just feel - and I deleted a rant I was going to put here - that to me, Open Gaming means making as much stuff as possible OGC, not making as much stuff as possible Closed. So why worry about "what can I close?" Instead, let's worry about, "what can I open?"

--The Sigil

 

[rpgHQ]

HEres a break down of what I was trying to get at here and int he monster PI threads:

The guy in thge monster name as PI thread mentions only using the monster names. Well if the only thing he is taking from that resource is the monster names he doesnt need to include an OGC/OGL referance statement about said product. He doesnt have to use the OGL period just to use the monster name. The only thing he has to worry about is if the monster name is a specific entities name, like 'Dritzz Do'Urden'.

However if he is reprinting the descriptive text of the monsters or using anything else from that resource that is copyrightable/trademarkable he needs to use the OGC/OGL and is then limited in what he can use without getting specific permission.


As for this thread and ECL. One does not need to use the OGL for any of thne game system stuff. You dont need to make a OGC/OGL referance statement to the SRD if your not using any of the descriptive text. Doesnt matter if the term ECL or Armor Class or whatever is in the SRD or not, its part of the definition under copyright law that defines what makes up a game and has such it is public domain, derivative work and such things dont come into play for anything dealing with the game mechanics or the terms/concepts used.

If you reprinted any of the descriptive text and explanations from the SRD then you would have to include a OGC/OGL statement.


We ended up hijacking the original posters thread here but I think the talk here in the end though as led to clarifying many things. You dont need the OGL to publilsh a d20 based game resource, you do need it to reprint descriptive text from the SRD or another publishers work (if they OGC'd it that is) and of course theres the d20stl and if you use it then you have to abide by it, the d20 system guide and OGL, which means by default the only pre-existing WotC d20 game rules you are going to use come from the two SRD's.

 

[hudarklord]

*shrugs*
I'll simply ask, "show me a case where rules EMBODY Product Identity." Perhaps because I don't speak lawyerese, I can't think of an example where RULES "embody"

Are you saying that you think rules don't embody a "concept". That's an acceptable type of PI. It's not limited to characters and creatures. I'd say that rules are by definition concepts. The statement of rules is "language". The display of rules is "formatting".

Where a concept is written out in specific language and formatted it is now covered by 3 types of potential product identity. A number of publishers use two of these types of coverage (to open up their rules, but to disallow verbatim copying of the test and/or photocopying of their pages). Green Ronin and I think one other publisher lock everything down on a page or two of some books (presumably with these categories of PI).


Lee

 

[MThibault]

*shrugs*
I'll simply ask, "show me a case where rules EMBODY Product Identity." Perhaps because I don't speak lawyerese, I can't think of an example where RULES "embody"

Off the top of my head, I would say that Call of Cthulu's sanity rules embody the game. It would be a generic, low-heroism game without it. Everything else in Call of Cthulu can be removed and the system will still support Call of Cthulu adventures -- but you can't remove the Sanity Rules and still say you are playing CoC.

The specific sanity rules are as arbitrary as choosing to call an NPC Bob or Teriaxis, but that is sort of beside the point. (Just bringing it up to head off a foreseeable red-herring due to the two different CoC systems in circulation.)

Cheers