[ORC] Vision for one or more ORC systems: convert the entire OGC archives from the start, using a massive team of converters

[Yaarel]

Out of curiosity, lets look at things in the 5.1 SRD.

For example, picking at random, here is the Gnome.

Lets look to see what is copyrightable. The actual text itself is, but not the content that it describes.

The SRD removed the content that was copyrightable, as can be found in the Players Handbook. There was specific narrative descriptions relating to descriptions about personality and its place in the default setting, the Forgotten Realms. But this protectable content is absent in the SRD.

Gnome Traits​

Your gnome character has certain characteristics in common with all other gnomes.

Gnomes share certain traits in common. That is almost a nonstatement, a tautology.

Ability Score Increase: Your Intelligence score increases by 2.

Gnomes are Intelligent. There are game rules to measure Intelligence. Not copyrightable. Nobody can own the word "intelligence", just like nobody can own the letter "a". If a game is measuring intelligence, then that is what it is doing, and many games need to do this. The precise mechanics to measure it is the "system" that is explicitly noncopyrightable.

Heh. Personally, I think "ability scores" is a dumb name anyway. "Abilities" is way too vague. I call these stats "aptitudes" and neither is "aptitudes" copyrightable. It just is what the rules refer to.

Note, D&D uses both "scores" and "modifiers". This is strictly redundant, and is a vestige from when rolling 3d6 was a thing. Today, just say "Intelligence 4" (bonus), rather than "Intelligence 18" (score) that equals "+4 Intelligence" (bonus).

Note the phrasing "d6, d20, d100", etcetera is noncopyrightable. It is words that gaming culture generally uses. One cannot own a culture. For example, the Eclipse Phase gaming system uses a percentile system, with the CC only and without the OGL, and uses the terms like "1d10" to roll one ten-sided die.



Not all gnomes are intelligent, but there are enough gnomes and similar earth sprites from reallife folkbeliefs, where clever trickster is a public domain trait.

Age: Gnomes mature at the same rate humans do,

Gnomes are anthropomorphic. Noncopyrightable.

and most are expected to settle down into an adult life by around age 40.

Gnomes can travel from place to place according folkbeliefs, but tend to settle into a specific place.

They can live 350 to almost 500 years.

The same gnome is around for multiple human generations.

Alignment: Gnomes are most often good.

That is the popculture version of a Gnome. Basically Good and loving cows and horses, and other animals.

Those who tend toward law are sages, engineers, researchers, scholars, investigators, or inventors.

Are Gnomes scholars? They are clever. They like mills and machines. They are curious.

Doublecheck but part of the concept Gnomish intelligence.

Those who tend toward chaos are minstrels, tricksters, wanderers,

Tricksters like leprechauns. Minstrels who like and play music. Wanderers.

All of this is from reallife folkbeliefs

or fanciful jewelers.

Leaning into the gnomes who inhabit human mines.

Gnomes are good-hearted, and even the tricksters among them are more playful than vicious.

Noncopyrightable.

Size: Gnomes are between 3 and 4 feet tall and average about 40 pounds. Your size is Small.

Noncopyrightable. There are examples of these sizes and smaller.

Speed: Your base walking speed is 25 feet.
Darkvision: Accustomed to life underground, you have superior vision in dark and dim conditions. You can see in dim light within 60 feet of you as if it were bright light, and in darkness as if it were dim light. You can’t discern color in darkness, only shades of gray.

Some gnomes live under a house, in the ground, where it is dark. They can still sense what is going on. Still "see in the dark".

Gnome Cunning: You have advantage on all Intelligence, Wisdom, and Charisma saving throws against magic.

Doublecheck. "Saving throws" is probably ok, as is a "save", rolling dice to be "saved" from danger. I look twice at being specifically resistant to mental magic. But if they are mental tricksters thus good at recognizing and avoiding mental tricks, that makes inherent sense.

Languages: You can speak, read, and write Common and Gnomish. The Gnomish language, which uses the Dwarvish script, is renowned for its technical treatises and its catalogs of knowledge about the natural world.

Is the "Common" language copyrightable? Note, "the common language" is noncopyrightable. Neither can the "International Language" be copyrightable.

The Norse dwarves are one of the inventors the runic alphabet, so dwarves do have their own script, as per public domain.



Thats it. Thats all there is to a 5.1 SRD "Gnome".

It is noncopyrightable.



Generally, never copy-paste verbatim. Think of your own personal version of a "Gnome", and write it in your own words.

Then, you can use the game rules − the gaming engine − to quantify this concept of a Gnome.

Describe the rules in your own words too.

Most of the SRD is like this. It is void of copyrightable narrative details. Any narrative creations (like Gnomes are scholars? like settling down at the age of 40? like being specifically resistant to mind magic?) are either doubtfully protectable or trivially avoidable.

The SRD descriptions of game rules are minimalist, to be as simple and clear and as direct as possible. The stuff that would be protectable in the same way that a "Chronicles of Riddick" novel or movie is, have already been removed.

 

[pemerton]

To clarify. 3PPs whose products have the OGL are stuck with it.

But any future products should avoid the OGL at all costs.

Really? So you think there contractual promise to WotC to not use their Product Identity - a promise which we've all spent the last month or more arguing is irrevocable despite what WotC might want to hint at - no longer binds them?

Here are the terms of Section 7 of the OGL:

You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.​

The second sentence - about indicating compatibility - is limited in its operation to works containing OGC. But the first sentence doesn't seem to be.

 

[pemerton]

Please avoid the ad hominem.

It's not ad hominem to intervene on a thread discussing a technical topic, involving something fairly high stakes to the community, where a poster who (it seems) lacks the relevant technical expertise makes very strong assertions that are, in fact, false.

There is stuff that you said that is simply off − like the photograph case. But I let it slide because it is more important to focus on the issues.

Most of the case is about whether a photograph can be copyrighted in the first place. The conclusion is, it can.

See, this thing that you said about the photograph case is wildly wrong. No one in that case - neither party, nor the judge - had any doubt that copyright can exist in a photograph.

Like I just did, they could Google the UK Copyright, Designs and Patents Act 1988 and read the following sections:

Section 1
(1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a)original literary, dramatic, musical or artistic works,

Section 4
(1)In this Part “artistic work” means—
(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,​

Here is a re-post of what the case is actually about:

here are the relevant passages, based on my quick skim:

40. . . . The defendants do not really have a case of independent design at all. It is not in dispute that Mr Houghton had access to the claimant's work at all material times and that he participated in the creation of the defendants' work in issue in this case. The defendants' work was "for the most part created at his request by Sphere" [paragraph 14(4) of the Defence]. It was created using the photographs Mr Houghton had taken and the iStockphoto image. What is clear is that there is an issue about the extent of the defendants' knowledge of the other publicly available works relied on. . . .

55 On the question of copying, I find that the common elements between the defendants' work and the claimant's work are causally related. In other words, they have been copied. There are two points. First the evidential onus to address a point like that is on the defendants here given the obvious similarities between the claimant's and defendants' work and the undoubted access of the defendants to the claimant's work. Mr Houghton did not refer to any particular element and assert that it came from a source independent of Mr Fielder. Sphere did not give evidence at all.

56. I have referred to the obvious similarities between the works. The defendants went to considerable lengths to point up the differences between the images. They analysed the overall composition which is said to be very different both vertically and horizontally. The balance of foreground, middle ground and far ground features were analysed and said to be different in key respects. The fact the river is absent from the defendants' work was pointed out. These differences all exist but it seems to me that on the question of copying they do not help. In this case it is not a coincidence that both images show Big Ben and the Houses of Parliament in black and white with a bright red bus driving from right to left and a blank white sky. The reason the defendants' image is like that is obviously because Mr Houghton saw the claimant's work. The differences do not negative copying, on the facts of this case they have a bearing on whether a substantial part is taken . . .

57. Second Mr Houghton did not suggest he had seen any of the other similar works relied on above before seeing Mr Fielder's image. The whole point of this case is that Mr Houghton and his company wish lawfully to produce an image which does bear some resemblance to the claimant's work. The inference that I draw is that Mr Houghton sought out this other material after he had decided to produce an image similar to the claimant's. He found examples of common elements in various different places. That does not avoid a causal link. If Mr Houghton had seen Mr Fielder's image, decided he wanted to use a similar one, found the Rodriguez or Getty photographs and put one of those on his boxes of tea, there would be no question of infringement. Those images are not causally related to Mr Fielder's, they are independent works. But that is not what happened. At best the defendants used these other images to show that certain individual elements in Mr Fielder's work can also be found elsewhere. That does not make those different sources the actual origin of an element in the defendants' image. I reject the submission that the other similar works acted as a relevant independent source for the defendants.​

The case is all about the fact that the defendants copied the plaintiff's image. A section 15 statement in an OGL-licensed book is something like an admission of copying, because if you're not copying why put it there!

No doubt there are things that parties licensed under the OGL can do to try and de-OGL-ify their content without being liable for copying, but the assertion that they cannot be liable for literally copying copyrighted text, or that if they turn their copy into loose paraphrase they'll be fine, are simply unwarranted.

That's before we even get to the fact that they've all made contractual promises, which everyone here has spent the last N weeks arguing are irrevocable, not to use WotC's PI. What makes them think they're released from those obligations? I mean, maybe there's an argument but no one's told me what it is yet.

 

[UngeheuerLich]

So. How is it going? Found any volunteers?

 

[Yaarel]

Really? So you think there contractual promise to WotC to not use their Product Identity - a promise which we've all spent the last month or more arguing is irrevocable despite what WotC might want to hint at - no longer binds them?

Your post misrepresents what I said.

I never said, start to "use the Product Identity".

I said, reword that content in the SRD that is game rules, concepts, and public domain terms.

I also said, an agreement to avoid Product Identity doesnt constitute an agreement that a copyright exists. Indeed, in these cases copyright cannot exist.

Here are the terms of Section 7 of the OGL:

You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

The second sentence - about indicating compatibility - is limited in its operation to works containing OGC. But the first sentence doesn't seem to be.

Again, no one said to start using the terms reserved as Product Identity.



However note. The Beholder is an declared a Product Identity. Users of license agree to stay away from the "concept". But without this contractual agreement, the concept of a floating eye is acceptable to describe within the bounds of copyright law. Hasbro-WotC cannot own floating eyes. The contract protected Hasbro-WotC in ways copyright cannot.



When reverse engineering the SRD, I dont recommend going after the Product Identity. Focus on the public domain and the game rules.



It is unethical to debate me while misrepresenting me.

 

[Yaarel]

It's not ad hominem to intervene on a thread discussing a technical topic, involving something fairly high stakes to the community, where a poster who (it seems) lacks the relevant technical expertise makes very strong assertions that are, in fact, false.

See, this thing that you said about the photograph case is wildly wrong. No one in that case - neither party, nor the judge - had any doubt that copyright can exist in a photograph.

Like I just did, they could Google the UK Copyright, Designs and Patents Act 1988 and read the following sections:

Section 1​

(1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—​

(a)original literary, dramatic, musical or artistic works,​

​

Section 4​

(1)In this Part “artistic work” means—​

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,​

Much of the case describes what a photograph is, and why it is copyrightable.

Spoiler

Subsistence of copyright

• Copyright subsists in original artistic works (s1(1)(a) of the Copyright Designs and Patents Act 1988). "Artistic work" means "a graphic work, photograph, sculpture or collage irrespective of artistic quality" (s4(1)(a)). "Photograph" means a "recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film" (s4(2) of the 1988 Act).

• At trial it was common ground that the impact of European Union law meant that the judgment of the CJEU in the Infopaq case (C-5/08 [2010] FSR 20) was such that copyright may subsist in a photograph if it is the author's own "intellectual creation". After trial it was also common ground that the recent judgment of the CJEU in the Painer case (C-145/10, 1st December 2011) was to the same effect and did not necessitate further submissions from the parties.

• Mr Edenborough also referred me to and relied on O (Peter) v F KG ([2006] ECDR 9) decided on 16th December 2003. This is a decision of the Austrian Oberster Gerichtshof (Supreme Court). It is a court which comprises judges with considerable expertise in intellectual property matters. The court there was considering a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator's own intellectual creation. They held (in translation):

In accordance with more recent jurisdiction of the finding Senate, photographs are to be considered photographic works in the sense of s.3(2) UrhG (Copyright Law), if they are the result of the creator's own intellectual creation, with no specific measure of originality being required. What is decisive is that an individual allocation between photograph and photographer is possible in so far as the latter's personality is reflected by the arrangements (motif, visual angle, illumination, etc.) selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness. This criterion of distinctiveness is already met, if it can be said that another photographer may have arranged the photograph differently […]. The two-dimensional reproduction of an object found in nature is considered to have the character of a work in the sense of copyright law, if one's task of achieving a representation as true to nature as possible still leaves ample room for an individual arrangement […].

(Paragraph 2 1. of the judgment. References have been omitted.)

• Although the language used in this judgment differs from the way in which an English court would traditionally express itself in a copyright case, I believe there is no difference in substance between the law as applied here by the Austrian Supreme Court and the law here. A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself.

• The parties also referred to the commentary in the text book Laddie Prescott & Vitoria (4th Ed.) in paragraphs 4.60 and 4.61. There the learned authors discuss some of the special problems with photography in copyright law given that the mere taking of a photograph is a mechanical process involving no skill at all and the labour of merely pressing a button. The authors, with almost but not quite perfect geographical prescience, make the following observation and pose a question: It is obvious that although a man may get a copyright by taking a photograph of some well known object like Westminster Abbey, he does not get a monopoly in representing Westminster Abbey as such any more than an artist who painted or drew the building. What then is the scope of photographic copyright?

• The question is answered by drawing attention to three aspects in which there is room for originality in photography:

i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;

ii) Residing in the creation of the scene to be photographed;

iii) Deriving from being in the right place at the right time.

• Neither side made detailed submissions about aspect (i). There is clearly room for originality there. It relates to the same category as the decision of the Austrian Supreme Court.

• Aspect (iii) is supported by the dissenting judgment of Romer LJ in Bauman v Fussell (1953) [1978] RPC at 493 (CA) but of course that was a dissenting judgment. Mr Davis questioned whether it was correct in law and referred to the judgment of Neuberger J (as he then was) in Antiques Portfolio v Rodney Fitch [2001] FSR 345. The learned judge detected (at p352-353) a difference between the passage I have quoted above from Laddie Prescott & Vitoria (albeit an earlier edition) on the one hand and the text books Copinger and Nimmer in the other in relation to a case about "a purely representational photograph of a two dimensional object such as a photograph or painting". Thus the context in which Neuberger J's problem arose was a long way from the facts of this case. I do not have to resolve that particular legal dispute.

• Mr Davis referred to Krisarts v Briarfine [1977] FSR 557 (Whitford J). That case was an application for an interlocutory injunction concerning paintings of yet more well known views of London such as Big Ben, the Houses of Parliament and Westminster Bridge. At p562 Whitford J said this: When one is considering a view of a very well known subject like the Houses of Parliament with Westminster Bridge and part of the Embankment in the foreground, the features in which copyright is going to subsist are very often the choice of viewpoint, the exact balance of foreground features or features in the middle ground and features in the far ground, the figures which are introduced, possibly in the case of a river scene the craft may be on the river and so forth. It is in choices of this character that the person producing the artistic work makes his original contribution.

• Mr Davis submitted that this served to emphasise that particular attention must be paid to the details in the case of commonplace works. I agree. One does need to be a little careful given that the quoted passage obviously related specifically to the facts of the case Whitford J was considering. The particular details mentioned clearly related to the facts of the case before the learned judge.

• I can take aspects (ii) and (iii) together. The relevant point in this case seems to me to be that the composition of a photograph is capable of being a source of originality. The composition of an image will certainly derive from the "angle of shot" (which Laddie Prescott and Vitoria categorise in sub-paragraph (i)) but also from the field of view, from elements which the photographer may have created and from elements arising from being at the right place at the right time. The resulting composition is capable of being the aggregate result of all these factors which will differ by degrees in different cases. Ultimately however the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and it seems to me that skill and labour/intellectual creation directed to that end can give rise to copyright.

• The present case also illustrates what could be a fourth category which could be added to the three given by Laddie, Prescott & Vitoria. Mr Fielder's manipulations do not easily fall into any of these three headings although they could be regarded as an extended form of type (i). It may be noted on the facts of this case that Mr Fielder's manipulations were not just matters affecting the colouring and contrasts in the image, they also had an effect on the composition itself, since people were removed from the foreground.

• At one point at trial there was a brief discussion about whether the image at Annex 1 was strictly speaking a photograph at all within the terms of the Act. Perhaps it is a form of collage but in any event the defendants did not suggest that the work fell outside s4 of the 1988 Act. In my judgment the work is a photograph since what has been manipulated is still ultimately a recording of light. I suppose one can say that the white sky is not a recording of the light which was there when Mr Fielder opened the shutter in his camera because Mr Fielder cut it out in the computer. If that is of such significance that the work has ceased to be a photograph then it must be a collage.

Meanwhile, earlier I said clearly, a photograph is copyrightable. The case refers to infringing on the copyright of a photograph.

Spoiler

Infringement of copyright

• Copyright is infringed by reproducing the whole or a substantial part of a work in a material form (s16 and s17 of the 1988 Act). It was common ground between the parties that a "substantial part" is a matter of quality not quantity. Mr Edenborough summed up the task here based on Designers Guild [2000] 1 WLR 2416 in the House of Lords. First one asks whether there has been copying and if so which features have been copied, and then asks whether that represents a substantial part of the original. One does not then ask if the alleged infringement looks on the whole similar, because one can reproduce a substantial part without necessarily producing something that looks similar even though of course it may do so.

• Mr Edenborough referred to the United States case Gross v Seligman 212 F 930 (1914) to establish the proposition that copying a photograph does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it. I entirely agree that as a matter of principle photographs, as one species of artistic work in s4 of the Act, are not to be treated differently from other artistic works and one consequence must be that s17(2) cannot be construed as referring only to facsimile reproductions of a photograph itself since it does not mean that for other artistic works. Mr Davis did not suggest otherwise. To say that it is "enough" to recreate a scene puts the matter too high. The point is that it is possible as a matter of principle to infringe copyright in a photograph in an appropriate case by recreating a scene which was photographed. The sort of appropriate case which comes to mind would be when the skill and labour of the author (or in Infopaq terms the author's intellectual creative effort) went into creating the scene which was photographed in the first place.

• The defendants' submissions tended to seek to minimise the effort undertaken by Mr Fielder in creating the work in this case. So the place where he stood was where many tourists stand and Photoshop is a bog standard bit of software which anyone can use. It seems to me that one needs to be careful with arguments of this kind in cases about copyright in artistic works.

• Mr Davis submitted that if all that can be said to have been taken from the claimant's work is too general to be original then there can be no infringement. I think that is probably true in the abstract and may be nothing more than a potted summary of Designer's Guild, especially bearing in mind Infopaq. However the way in which Mr Davis sought to apply that idea to the facts of this case seemed to me to risk confusing what the artist actually did to create the work and what the result of that effort was. The case of Interlego v Tyco [1988] RPC 343 in the Privy Council has a bearing on this point. It was concerned with originality. That case held that the skill and labour which was relevant to the originality of an artistic work was that which was visually significant.

• Visual significance must also be relevant to infringement and to the question of whether a substantial part of an artistic work has been taken. What falls to be considered, in order to decide if a substantial part of an artistic work has been reproduced, are elements of the work which have visual significance. What is visually significant in an artistic work is not the skill and labour (or intellectual creative effort) which led up to the work, it is the product of that activity. The fact that the artist may have used commonplace techniques to produce his work is not the issue. What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question. Just because the Act provides for copyright in these original artistic works irrespective of their artistic quality (s4(1)(a)), does not mean that one ignores what they look like and focuses only on the work which went into creating them.

• I will approach this based on Designers Guild itself.

Note. "Visual significance must also be relevant to infringement and to the question of whether a substantial part of an artistic work has been taken. What falls to be considered, in order to decide if a substantial part of an artistic work has been reproduced, are elements of the work which have visual significance. ... What is important is that he or she has used them under the guidance of their own aesthetic sense to create the visual effect in question."

The case is about in what way a copyrighted photograph can be infringed.

The "elements ... which have visual significance" matter.

And so what?

Writing game rules isnt the same thing as imitating a copyrighted image.

No doubt there are things that parties licensed under the OGL can do to try and de-OGL-ify their content without being liable for copying, but the assertion that they cannot be liable for literally copying copyrighted text, or that if they turn their copy into loose paraphrase they'll be fine, are simply unwarranted.

Again. This post misrepresents what I said. I said clearly: Never copy-paste. Your accusation of "literally copying copyrighted text" is false.



Moreover, to loosely describe public content, such as "gnomes are small" is fine!

 

[pemerton]

The Beholder is an declared a Product Identity. Users of license agree to stay away from the "concept".

Product identity is defined, both by a notice - there's a long list on the first page of the SRD that begins "“The following items are designated Product Identity” - and by the terms of the contract:

"Product Identity" means 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, and which specifically excludes the Open Game Content​

What have the licensees agreed not to use? I reckon it's not clear at first blush - for instance, what constitutes the "item" beholder, or Book of Vile Darkness, or Red Wizard of Thay or the Heroic Domains of Ysgard?

Would publishing a story about an unholy book that blasts the mind of good characters who read it violate the promise not to use the Book of Vile Darkness?

What are the "thematic elements" of the Heroic Domains of Ysygard? Would publishing a story about Thor fighting giants violate the promise not to use Ysgard?

I don't think it's entirely straightforward.

 

[mamba]

Paizo (such as Erik Mona) has said, they can de-OGL-ify the P2 RD. But to do it properly, would take alot of work, and they would rather not at this time. But if forced to because of Hasbro-WotC bad faith, they will.

now that SRD 5.1 is under CC, that process should become easier…

 

[Yaarel]

Product identity is defined, both by a notice - there's a long list on the first page of the SRD that begins "“The following items are designated Product Identity” - and by the terms of the contract:

"Product Identity" means 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, and which specifically excludes the Open Game Content​

The post focuses on "Product Identity" as the OGL 1.0a defines it.

Certainly, any reverse engineered game rules would lack "logos" and "identifying marks including trade dress".

Then the "stories, ... dialogue, incidents, artwork", even "poses", are a reasonable list of copyrightable things.

But then "concepts" and "themes" are some of what the OGL contract enforces but the copyright wont.

Then, back too, copyrightable "photographic ... representations, ... personalities, ... names and descriptions, places,"

but adds debatable "creatures, ... supernatural abilities or effects".

Then back to trade dress, "logos, symbols, or graphic designs, and any other trademark, ..."



This is a hodgepodge list. It includes an agreement to protect things that go beyond the scope of a copyright.

If I were to characterize this amalgam, it would be something like:
• Use these rules
• Dont pretend to be us
• Leave our own products for these rules alone

In any case, I feel notable businesses and people who use this OGL license understood this in some way in good faith.

What have the licensees agreed not to use? I reckon it's not clear at first blush - for instance, what constitutes the "item" beholder, or Book of Vile Darkness, or Red Wizard of Thay or the Heroic Domains of Ysgard?

To be clear, I view "stories", and setting details to be strictly copyrightable, especially newly invented names like "Thay" and "Ysgard" (a way to signify Norse-esque while non-Norse).



What makes the D&D Elf different from all other games where one can play an Elf? It isnt the game rules that matter. It is the story and setting. For example, the D&D version of an Elf originates from the celestial realm of Arborea. They sprang from the blood of Corellon, a mercurial shapeshifter who banished these offspring. It was one of these Elves, Lolth, who led the rebellion against Corellon, whence the banishment. She is now a demon in the Chaotic Evil Abyss. The Elves became refugees in the Feywild and from there have migrated to almost every realm in the multiverse.

These story and setting colorize the D&D Elf "bright red", sotospeak. These details make the D&D Elf unlike any other Elf in any other game.

An attempt to reverse engineer game rules would not import from this unique and copyrightable content.

Would publishing a story about an unholy book that blasts the mind of good characters who read it violate the promise not to use the Book of Vile Darkness?

I saw the D&D movie, but am less familiar with game rules for this book. The "Necronomicon" does something analogous, in a cosmic horror way.The Tolkien rings do similar corrupting influences. But I dont have a sense of what makes the Book of Vile Darkness unique or how it might be vital for game rules.

But generally, to publish a clear imitation of a story steps into copyright issues and needs navigation. One can repeat an old story in a new way, or draw inspiration from a concept.

Non-OGL game rules do well to stay clear of this as much as possible, and only focus on what is necessary for a gaming engine that independent setting can build from.

What are the "thematic elements" of the Heroic Domains of Ysygard? Would publishing a story about Thor fighting giants violate the promise not to use Ysgard?

I am Norwegian. I will write stories about Thor fighting giants whenever I please!

I don't think it's entirely straightforward.

The goal of this thread is to be practicable.

Gaming engine rules dont need any proprietary D&D setting details.

The goal is a stand-alone version of the game rules.

Other businesses and individuals are interested in creating new content for these rules, including new settings.

 

[Matt Thomason]

now that SRD 5.1 is under CC, that process should become easier…

Not necessarily. They may not want to use the CC license to bring material in. It could be construed as saying "We acknowledge that WotC own these game mechanics". Then there's the issue that it's not even a 100% certainty that someone can't revoke a CC license (we can't know for sure unless someone tests that in court.)

At this point it feels like being able to 100% divorce their game from WotC would be the best move for them. Being reliant on licensed material, even via CC, is probably a bad move psychologically when they're trying to launch the ORC license. They need to show their product can stand alone under that license to give others the confidence to do the same.

 

[pemerton]

At this point it feels like being able to 100% divorce their game from WotC would be the best move for them. Being reliant on licensed material, even via CC, is probably a bad move psychologically when they're trying to launch the ORC license. They need to show their product can stand alone under that license to give others the confidence to do the same.

As you know, I agree that the real issue here is not the legalese, but the fact that a large number of commercial publishers have a business model that is dependent on a smooth relationship with a much larger commercial licensor.

The challenges to changing that dynamic, on the other hand, do perhaps seem to depend on the legalese! (As per some of my posts upthread.)

 

[pemerton]

To be clear, I view "stories", and setting details to be strictly copyrightable, especially newly invented names like "Thay" and "Ysgard" (a way to signify Norse-esque while non-Norse).

<snip>

But generally, to publish a clear imitation of a story steps into copyright issues and needs navigation. One can repeat an old story in a new way, or draw inspiration from a concept.

<snip>

I am Norwegian. I will write stories about Thor fighting giants whenever I please!

<snip>

The goal of this thread is to be practicable.

My understanding of this thread is that it is about existing publishes, who have published material with a licence from WotC under the terms of the OGL can now "de-OGL-ify" that work.

And one aspect of that is their continuing contractual obligation not to use WotC's product identity.

Another is their contractual acknowledgement of WotC's copyright in the SRD, which is also an acknowledgement that their own work is in some sense derivative of WotC's.

A third is the IP rights (as opposed to contractual right) that WotC enjoys.

In my view these are not straightforward matters to unravel.

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

 

[mamba]

Not necessarily. They may not want to use the CC license to bring material in. It could be construed as saying "We acknowledge that WotC own these game mechanics". Then there's the issue that it's not even a 100% certainty that someone can't revoke a CC license (we can't know for sure unless someone tests that in court.)

not sure if it has been tried, so far everyone seems to agree that that would be quite a hurdle to overcome at least (and yes, some time ago we thought the same about the OGL)

At this point it feels like being able to 100% divorce their game from WotC would be the best move for them. Being reliant on licensed material, even via CC, is probably a bad move psychologically when they're trying to launch the ORC license. They need to show their product can stand alone under that license to give others the confidence to do the same.

I agree, it would be desirable to not have to rely on CC at all and have everything under ORC. If WotC wanted to, they could make that process difficult and long however, at a minimum, as there is a lot of gray area between what clearly would fall outside WotC's copyright and what e.g. Pathfinder 2 would then claim to not fall under it / be independent of the OGL.

So from a practical standpoint it would be easier to rely on CC, not that this means anyone within ORC will.

 

[SoonRaccoon]

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

If you publish something derivative of the 5e SRD under the OGL, do the clauses barring you from using things like "beholder" apply to the specific derivative work, or would you be agreeing to never use that anywhere ever?

 

[pemerton]

If you publish something derivative of the 5e SRD under the OGL, do the clauses barring you from using things like "beholder" apply to the specific derivative work, or would you be agreeing to never use that anywhere ever?

On a plain reading, the first sentence of section 7 of the OGL looks like an open-ended promise: "You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity."

And we all agree that the contract can't be unilaterally revoked!

Maybe there's an argument for a non-plain reading, but it's not obvious (at least to me): an irrevocable promise to forebear from using material X doesn't seem outrageous consideration in the context of a royalty-free licence to use material Y.

And the second sentence does qualify the promise - "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark." Which reinforces the open-ended character of the first sentence.

Product identity has to be identified as such by its "owner" (section 1), which makes me think that the first sentence is a promise never to use the product identity identified as such by its owner in the context of them being the other party to the contract. Whereas the second sentence seems to be a promise with a narrower field of operation - only works containing OGC - but with a wider preclusion of use - any trademark whatsoever, whether or not belonging to the other contracting party.

The above is my take on having a first go at a close reading. There are probably other constructions available, and maybe some are more legally plausible and/or more favourable to WotC's licensees.

 

[Yaarel]

My understanding of this thread is that it is about existing publishes, who have published material with a licence from WotC under the terms of the OGL can now "de-OGL-ify" that work.

And one aspect of that is their continuing contractual obligation not to use WotC's product identity. ...

A third is the IP rights (as opposed to contractual right) that WotC enjoys.

In my view these are not straightforward matters to unravel.

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

Because Hasbro-WotC hasnt gone thru with breaching the OGL 1.0a (yet), I agree, this license remains obligatory.

The OGL 1.0a license only refers to the product, not to the publisher of the product. It is the product that must meet the terms of the OGL.

What is certain is, anyone else can continue to use and modify the OGL product under the terms of the OGL.



(Note. Switching from the OGL 1.0a to the new CC-BY 4.0 seems not a transfer. What happens is, the product has two licenses. Other users of the product can choose which license to use. If choosing, the benefit of the OGL is the ability to declare ones own Product Identity. The benefit of the CC is to draw inspiration from other Hasbro-WotC products under the terms of copyright rather than under the terms of the stricter OGL Product Identity agreement. I prefer the terms of the OGL, but unfortunately its author Hasbro-WotC has shown bad faith toward it. I view Hasbro-WotC offering the SRD to the CC as a constructive gesture. But it is a less ideal solution for an independent publisher, whether professional or amateur.)



I expect the ORC license will be excellent.



I see less difficulty with products that were released under the OGL 1.0a. If they were faithful to its terms, the fact their product AVOIDED Hasbro-WotC Product Identity, will protect them now when using a new license for the product, since there will be fewer copyright entanglements.

The question is, how dependent on the SRD is the product, really.



Now. To reverse-engineer the SRD solves most problems.

This new game rules system focuses on: public domain "names", abstract "concepts", and a clean "game rules" system.

Perhaps we call this new game rules system the Open RPG Engine: ORE.



Most of the time, it is possible to update an OGL product to the new ORC license and instead use the new ORE rules. This normally requires rewriting the product, but with little or no information loss.

I cant think of a case where a product cant update. Most of the changes would be trivial, like using the term underworld rather than shadowfell, or cambion rather than tiefling. Maybe the dragonborn are distinctive enough to need to doublecheck, essentially a dragon head on a human body. I am unsure an Egypt-esque crocodile head or a Norse-esque draconic snake with arms, or even a humansize dragon, would satisfy a dragonborn fan. Even so, these approximate equivalents have appeal in their own right.

Most of the time, to update an OGL product for the ORC license using the ORE system is a good solution.

In this solution, the old OGL product remains in place. But the new ORC update is carefully free from the Hasbro-WotC SRD and no longer derivative of it.

(The situation resembles publishing the same product for two different systems, such as one version for Pathfinder 2 and an other version for D&D 5e. The ORC update means there is one version using the OGL such as for 5e and an other version using the ORC for ORE.)

Another is their contractual acknowledgement of WotC's copyright in the SRD, which is also an acknowledgement that their own work is in some sense derivative of WotC's.

Many products that have zero connection to Hasbro-WotC products, used the license anyway because the license itself was a useful license. The use of the license in no way implies that a work is derivative. It only is a statement of agreeing to avoid Hasbro-WotC Product Identity, which is normally a trivial compliance, when the product is nonderivative in the first place.

 

[pemerton]

The OGL 1.0a license only refers to the product, not to the publisher of the product. It is the product that must meet the terms of the OGL.

This is wrong.

Here is the opening clause of section 7: "You agree not to Use any Product Identity".

Here is the definition of "You": "'You' or 'Your' means the licensee in terms of this agreement."

(Note. Switching from the OGL 1.0a to the new CC-BY 4.0 seems not a transfer. What happens is, the product has two licenses. Other users of the product can choose which license to use.

This is also wrong, or misleading at best.

Scenario: A has published work under the OGL that includes, or is derivative of, licensed material from WotC's SRD. B has subsequently published work the includes material licensed by A under the terms of the OGL (ie Open Game Content), and then C wishes to publish work that contains B's material.

B has made a contractual promise to A that B will offer to license A's OGC, plus B's work that is derivative of A's OGC, under and only under the terms of the OGL. The fact that W has now offered to license its SRD on different terms (ie CC-BY) does not change the terms of the contract between A and B. It does not give C any new permissions in relation to A and B's work.

There may be an argument that A has been impliedly released of its obligation to W under their previous licence agreement.

To reverse-engineer the SRD solves most problems.

I don't know what this means. In this context, as best I can tell, "reverse engineering" means some sort of paraphrase of the SRD. That tends to look like a type of suspect copying to me.

Many products that have zero connection to Hasbro-WotC products, used the license anyway because the license itself was a useful license. The use of the license in no way implies that a work is derivative.

I am aware that some people have used the OGL to enter into licensing arrangements to which WotC is not a party. I've made many posts about this over the past several weeks.

As I have made clear, I am talking about products which acknowledge WotC's SRD in their section 15 statement. That quite strongly implies that the work is derivative of the SRD: if it were not, why would the acknowledgement be there?

 

[Yaarel]

This is wrong.

Here is the opening clause of section 7: "You agree not to Use any Product Identity".

Here is the definition of "You": "'You' or 'Your' means the licensee in terms of this agreement."

LOL! The argument seems absurd. Is it suggesting that by publishing a product using the OGL, "you" can never work for Hasbro-WotC ... because "you" agreed to never use Product Identity?



Rather, "You agree to not use any product identity" in the product itself that is actually using the license.

"You" can publish other products that dont use the OGL license.



But in any case.

By switching to the ORC and non-Hasbro-WotC game rules. No one is using Product Identity anyway.

Scenario:
A has published work under the OGL that includes, or is derivative of, licensed material from WotC's SRD.

B has subsequently published work the includes material licensed by A under the terms of the OGL (ie Open Game Content),

and then C wishes to publish work that contains B's material.

B has made a contractual promise to A that B will offer to license A's OGC,

plus B's work that is derivative of A's OGC, under and only under the terms of the OGL.

The fact that W has now offered to license its SRD on different terms (ie CC-BY) does not change the terms of the contract between A and B. It does not give C any new permissions in relation to A and B's work.

Here I agree with you. As things stand now, the OGL remains in place.

Even so, anyone "upstream" can abandon the OGL.

A can create a new version of the product, using the new ORC and new Open RPG Engine.

Then B can now choose whether to stick with the old OGL version from A, or use the new ORC version from A.

The point is, all OGL products remain in place.

To update to the ORC means there are now two versions in place, one for the ORC and the old one for the OGL.

I don't know what this means. In this context, as best I can tell, "reverse engineering" means some sort of paraphrase of the SRD. That tends to look like a type of suspect copying to me.

The point is, Hasbro-WotC cannot own what it cannot own.

For example, an earlier question somehow implied that Hasbro-WotC owns "Thor" and "giants". Obviously no. Hasbro-WotC is unable to own someone elses cultural heritage.

Likewise, Hasbro-WotC cannot own game rules.

I am aware that some people have used the OGL to enter into licensing arrangements to which WotC is not a party. I've made many posts about this over the past several weeks.

As I have made clear, I am talking about products which acknowledge WotC's SRD in their section 15 statement. That quite strongly implies that the work is derivative of the SRD: if it were not, why would the acknowledgement be there?

By creating a product that uses ORC and the Open RPG Engine, that product has nothing to do with Hasbro-WotC, just like the ORC product has nothing to do with Coca Cola or Levis Jeans.

 

[mamba]

Even so, anyone "upstream" can abandon the OGL.

A can create a new version of the product, using the new ORC and new Open RPG Engine.

Then B can now choose whether to stick with the old OGL version from A, or use the new ORC version from A.

but you need to keep this chain intact, B cannot (easily) switch over before A has done so

 

[pemerton]

LOL! The argument seems absurd. Is it suggesting that by publishing a product using the OGL, "you" can never work for Hasbro-WotC ... because "you" agreed to never use Product Identity?



Rather, "You agree to not use any product identity" in the product itself that is actually using the license.

"You" can publish other products that dont use the OGL license.

What theory or method of contractual interpretation are you applying?

I told you which one I'm applying: plain meaning, reinforced by the contrast with the second sentence which confines the scope of the promise to works containing OGC.

What is actually absurd is reading weeks of posts arguing how outrageous it is that WotC should try to avoid its contractual obligations by way of strained interpretation, only to now have one of those posters arguing that the contract is not binding on the other parties to it.

The OGL isn't a gift. It's a contract. WotC have conferred permissions in relation to their material. In exchange they have extracted promises in relation to their material. It's not that complicated, at its core.