[OGL Questions] Is Dungeons and Dragons a game?

[Yair]

I believe it may be considered in the determination of damages, not in the determination of whether there's infringement.

Yeah, I was apparently confusing it with fair use...

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect upon the potential market for or value of the copyrighted work.

...but fair use applies to reviews, education, and so on - not to fun gaming.

 

[TheAuldGrump]

If the Game does not have an author how does WotC know who wrote it and therefore who to go after?

Err, that is awfully close to claiming 'It isn't a crime if I don't get caught'. In a way that only makes it less understandable to me - you are stealing something that is available for free, so why not use it legally?

May I ask why you are so averse to using the OGL? It is free, and has few if any constraints - some OGL games do not even use mechanics based on D20 - Runequest comes to mind. The D20 based systems themselves have been taken to fair extremes in regards to variation - few would claim that either Spycraft or Mutants & Masterminds bears much resemblance to straight from the SRD D20. True 20 goes so far as to remove the 3-18 attributes entirely, relying on only a D20.

The Auld Grump

 

[Chaos Disciple]

Err, that is awfully close to claiming 'It isn't a crime if I don't get caught'. In a way that only makes it less understandable to me - you are stealing something that is available for free, so why not use it legally?

May I ask why you are so averse to using the OGL? It is free, and has few if any constraints - some OGL games do not even use mechanics based on D20 - Runequest comes to mind. The D20 based systems themselves have been taken to fair extremes in regards to variation - few would claim that either Spycraft or Mutants & Masterminds bears much resemblance to straight from the SRD D20. True 20 goes so far as to remove the 3-18 attributes entirely, relying on only a D20.

The Auld Grump

Actually Ive stated that I will not be "stealing" anything.
Game information in the OGL can not be copyrigt protected.

Also I cant copyright the game ive designed.
So what is the purpose of including the OGL info in my product when 100% of my game is intended to be used by everyone for free?

I could understand using the OGL if I intended to copyright some of my material or use any legally copyright or trademarked material from others, but I wont be. Im just saying why use it if I dont need to?

 

[madelf]

Im just saying why use it if I dont need to?

Think of it as the cheapest insurance you'll ever buy.

 

[Chaos Disciple]

First: Let us separate the OGL (which is a license) from the SRD (which is content).

When people publish material using the SRD base, it enhances the value of the D&D brand by increasing the value of the game to all the people who play it. The more "stuff" people have to use with D&D, the more likely they are to play D&D, start playing D&D, and talk friends into playing D&D.

Second, WotC benefits from the expanded pool of designers making content compatible with its own work. It can bring the best of that material into D&D, and it can hire the best of those designers and add them to its staff. Having a large pool of people who do work on the system also means that problems are identified faster, and solutions proposed and tested faster, than WotC could manage with just its own pool of designers.

Those are the overriding business reasons WotC licenses you to use the SRD content.

Your original question boils down to: "If WotC wants people to work on its system, and doesn't charge a fee, or have approval rights, why not just put the SRD in the public domain?"

There are many reasons. Here are a few:

1) Material "in the public domain" will rapidly become contaminated with work that should not be mixed into the "open" content by people who don't know any better (or who are grinding axes, or who are purposefully contaminating it for their own economic or political reasons). Pretty soon, anything you wanted to do with the SRD would become riskier than making new content from scratch, which would actually be a step backwards from the pre-OGL environment.

2) The OGL ensures that the creators of content get full credit, which you could not do with public domain content. Every contributor of new Open Game Content alters the Section 15 declaration, and that declaration gets used in all antecedent works, so the "chain" of creator credit is maintained. This may not seem like a big deal, but to many people, "credit" for their work is more important than compensation for doing the work in the first place.

3) The OGL allows a publisher to mix non-Open work with Open work freely. For example, I can write the statement "Darth Vader has 55 hit points" using the OGL, correctly using the Open Game Content (hit points), and limiting 3rd party use of the closed content (Darth Vader). Considering that a substantial portion of the RPG market consists of licensed IP, this is a huge point of differentiation, and is a key reason the OGL has succeeded. Without this ability, the SRD and the OGL would likely be limited curiosities, and not the market-shaping force they are.

4) The OGL equalizes the market. You can use it, but if you do, some of what you create may need to be freely licensed to other people too; the benefit you got (free content) is therefore transmitted to new users as well. This creates a positive feedback loop wherein everyone gets more and more value the longer the system remains in use. Individually, and in the short term, that may be a negative (you might want to limit other's use of your material to maximize your ability to earn money from it), but collectively, over the long term, it's a net positive (you may get back improvements in your own work you didn't even think about, and can incorporate those into future products with a higher value as a result).

Ryan

Ryan thank you for that beautiful explination but I think the question remains; can you legally require a Licence to use game material that is already available for public use?

 

[Chaos Disciple]

As has been said, you may be right about the copyright. However, if you don't fear a legal response, why would you not put your name on it? You've already got the attention of a couple of WotC bigwigs here, so it may be difficult to "fly under the radar", so to speak.

And again, it's not the writing that causes potential problems, it's the distribution.

There is a very straightforward, easy-to-understand way to do this without risking any sort of legal repercussions: the OGL. Think about it.

I dont plan on keeping this game a secret infact this thread is meant to answer these questions before I start the one about the mechanics in my game. (though i may not start that thread here or at all). This depends on weather or not I can release the game without fear of any legal problems.


The point is to get the "bigwigs" attention so they are aware that this could be done. If they dont want this game released without the licence it is their chance explain how it could be stopped.

The idea of free distribution and not giving any credit to the designer of the game would be in a worse case senerio but still very easy to do.

 

[Halivar]

can you legally require a Licence to use game material that is already available for public use?

Only the mechanics are available for public use (because they cannot be copyrighted). The rest is only available by the terms of the OGL. Because while copyright cannot cover the mechanics of a game (only the artistic expression of those mechanics [i.e. "the literal text"]), using the exact same mechanics drastically increases the chance that you will inadvertently violate WotC's copyrights. All they have to do is show one little section to a judge that shows either literal or non-literal copying (a very low threshold of proof) to get an injunction against your distribution, pending a civil trial and awards for damages from you.

OTOH, if you use the OGL you have to worry about none of this.

Unless you mention mindflayers or beholders, of course. Then you're screwed no matter what.

 

[Fifth Element]

Actually Ive stated that I will not be "stealing" anything.
Game information in the OGL can not be copyrigt protected.

There is no game information in the OGL. Do you mean the SRD? Perhaps game mechanics themselves cannot be copyrighted, but the specific expressions of those mechanics in the SRD sure can be. And are.

Also I cant copyright the game ive designed.

Why not? Do you mean you can't copyright the mechanics? Maybe so, but you can copyright the specific expression of those mechanics that you've written. I believe copyright is automatic, unless you release something into the public domain.

So what is the purpose of including the OGL info in my product when 100% of my game is intended to be used by everyone for free?

Because as we've stated, the OGL is insurance against legal trouble. If you distribute this thing that may or may not infringe on WotC's copyright, there's risk there. Use the OGL, and that risk is nil, as long as you abide by the terms of the license, which is nor burdensome.

I could understand using the OGL if I intended to copyright some of my material or use any legally copyright or trademarked material from others, but I wont be. Im just saying why use it if I dont need to?

See above comments. Why would you want to risk not using is when using it would cost you nothing? You obviously haven't consulted a lawyer, so why venture out into those waters when you have a perfectly safe harbour, that doesn't even charge a fee for using it?

 

[Fifth Element]

The point is to get the "bigwigs" attention so they are aware that this could be done. If they dont want this game released without the licence it is their chance explain how it could be stopped.

Methinks the lawyers who drafted the license probably considered this. How can it be stopped? They could sue, knowing they have the resources to go to court and you likely do not. Or you could use the license, and they could not sue you in good faith, so long as you abide by its terms. Simple.

 

[Chaos Disciple]

There is no game information in the OGL. Do you mean the SRD? Perhaps game mechanics themselves cannot be copyrighted, but the specific expressions of those mechanics in the SRD sure can be. And are.


Why not? Do you mean you can't copyright the mechanics? Maybe so, but you can copyright the specific expression of those mechanics that you've written. I believe copyright is automatic, unless you release something into the public domain.


Because as we've stated, the OGL is insurance against legal trouble. If you distribute this thing that may or may not infringe on WotC's copyright, there's risk there. Use the OGL, and that risk is nil, as long as you abide by the terms of the license, which is nor burdensome.


See above comments. Why would you want to risk not using is when using it would cost you nothing? You obviously haven't consulted a lawyer, so why venture out into those waters when you have a perfectly safe harbour, that doesn't even charge a fee for using it?

As Ive stated before my game uses systems and methods of play derived from D&D which are impossible to copyright (it doesnt does not matter if these are also explained in the SRD or anywhere else for that matter)

I thnk that producing my game without the desire to copyright it is just following the intention of copyright laws.(which state this cant be done).

I am a little confused why WotC lawyers did not advise them of this.
I seriously doubt their lawyers would encourage WotC to attempt claiming the D&D game as their own.

The OGL is presented as a gift to the community but I think it just gets in the way; also could be taken as an attempt by WotC to claim something that can not be owned.

I find it hard to understand how this benifits the game community

I am not interested in using the OGL because it requires you advertise the OGL and WotC in your product and I dont want a commercial in my game; especially if its not legaly required.