Ryan Dancey Answers to OGL questions

[RyanD]

In The Thread That Will Not Be Named, a couple of people asked questions I'd like to try to answer.

Goblinoid Games asked:

Based on your comments above, I assume your quote is directly relevant to a game that seeks to emulate a system using terms without the benefit of those terms being provided by OGC under the OGL. As such, I'm curious about your take on OSRIC and similar efforts?

I have problems with OSRIC. I believe that some of the content in OSRIC is copyrightable, and that it has not been shared by WotC via the OGL. Specifically, I will mention the class charts & the to-hit charts. These charts are copyrightable; they are not simple expressions of a mathematical formula, but contain specific human-selected values in certain areas. The courts have repeatedly found that such tables are protected by copyright.

I think that it is very difficult to "recreate" a pre-existing RPG system without crossing that "invisible iine" between copyright and not-copyrightable. I'm not saying it can't be done, but the more "quirks" that system has - the more it relies on non-intuitive game systems, and less on simple math, the harder it will be to safely clone. I think it would be nice, but not likely, for WotC to add OSRIC to the SRD, which would clearly put it under the OGL, and clear up any potential confusion about the matter.

Yair asked:

Shouldn't that be "Open Game Content means the expression of game mechanics..."?

Since the purpose of the OGL is to remove potential grey areas, we wrote it to be as sweeping as possible. Someone, somewhere, might decide that they feel game mechanics are copyrightable. By specifically including them in the OGL, we remove the potential for future litigation over the matter, no matter what happens to the law itself.

Ryan

 

[Vigilance]

I have problems with OSRIC. I believe that some of the content in OSRIC is copyrightable, and that it has not been shared by WotC via the OGL. Specifically, I will mention the class charts & the to-hit charts.

Hey Ryan, as someone who has done an OSRIC-supporting book (OSRIC Unearthed), I always felt that the fact the tables in OSRIC were different from those in D&D is what made them ok.

Is that a mistake?

Also, on the subject of to-hit tables, isn't a "to-hit" just another term for a base attack bonus?

Your insights on this are interesting to me, as I think the OSRIC model will be used in the future to reverse engineer other things in D&D as OGC (such as a possible 4th edition).

 

[Goblinoid Games]

I have problems with OSRIC. I believe that some of the content in OSRIC is copyrightable, and that it has not been shared by WotC via the OGL. Specifically, I will mention the class charts & the to-hit charts. These charts are copyrightable; they are not simple expressions of a mathematical formula, but contain specific human-selected values in certain areas. The courts have repeatedly found that such tables are protected by copyright.

Thank you for your thoughts, Ryan. It seems that this issue is not new with OSRIC, however. I noticed that experience progression in Castles & Crusades, for instance, are at least as similar to AD&D 1e. I don't know how other companies have handled XPs in OGL-derived complete games (d20-like games), but I wouldn't be too surprised if this phenomenon in common.

 

[Treebore]

I doubt xp tables are copyrightable. If so there are a lot of companies who can be sued, and none have, even though they have been around for decades.

As for OSRIC, if it was so dubious I believe WOTC would have made legal notifications by now. Its been what? Two years?

Plus one of the people behind OSRIC have said he has discussed the legal issues with WOTC's legal department and that he and WOTC are satisfied with OSRIC. Which is why he is careful not to make any money off of OSRIC as a rules set. He sells it at cost.

So anyone who does anything based directly off of copying stuff out of OSRIC and then sells it for profit, may be in trouble.

So anyone who does any product based off of OSRIC better only refer to the OSRIC document, don't copy anything from it. Unless your giving it away for free. Which would be a smart plan if there is a bigger product you want to do, but the rules base isn't in OSRIC itself. So give away the new rules document, or sell at no profit as POD, then sell the big product having it refer to the free rules document at profit making prices.


Still lots of grey areas in copyright law.

 

[JoeGKushner]

Heck, if tables were a real problem, Palladium would've been shut down decades again via Palladium Fantasy no?

 

[Nightfall]

I want you to know Ryan, I still like you.

 

[RyanD]

I always felt that the fact the tables in OSRIC were different from those in D&D is what made them ok.

I can honestly say that after looking at a very early OSRIC draft, I never returned to the material. If the tables in the finished version of OSRIC are materially different than those in AD&D, then they're probably* ok.

Also, on the subject of to-hit tables, isn't a "to-hit" just another term for a base attack bonus?

Yes, and no.

If a table is generated by a simple linear equation, then it cannot be copyright.

The AD&D "THAC0" table is a simple linear equation and can't be copyright.

It's just an expression of a simple formula, and formulas are not subject to copyright (they might be patentable, but that ship has sailed).

The AD&D1 to-hit charts are more complex. They are partially equation driven, and partially driven by Gary's preferences when he designed the system.

If a table is partially an expression of an equation, and partly the editorial choices of a human, it is copyrightable. There is caselaw supporting this conclusion involving the famous Blue Book of car values. Because those values were determined partly by editorial fiat, not by a simple mathematical equation, they have been found to be protected by copyright.

An example of this in the SRD would be the class level charts. The selection, arrangement, and presentation of the class level charts is absolutely copyrightable (i.e. which class gets which combination of save bonuses, to hit bonuses, and class features). How much of the chart would have to be changed to avoid the copyright? Clearly some, but also clearly not all. The answer lies somewhere in the "gray area" that could only be determined in litigation. Nobody can give a definitive answer.

A slightly more esoteric example would be the matrix of spell levels. What makes Fireball a 3rd level spell for Wizards? Editorial fiat. That's copyrightable. That doesn't mean that no other RPG could have 3rd level Fireball spells. That means that Fireball at 3rd level is one of the signposts a court would likely use to determine if a work were a derivative of D&D. The more "similarities" there are, the more likely a court would find the work to be derivative. I think it would be reasonable to say that if a spell list was 85% the same as D&D, that would likely be considered derivative. If it was 15% the same, it likely would not be. But again, I cannot tell you with 100% certainty that my guesses are correct, because only a court can make a final determination.

The word "derivative" has a precise, technical meaning in copyright law, which is confusing with the way it is used in common speech. When I say something is "derivative", I usually mean it in the copyright sense, not the common sense. Understanding when a work becomes "derivative" in the legal sense is difficult, because of all the gray areas, and because the line keeps moving. A work that might have not been considered "derivative" 50 years ago might be considered "derivative" today. Reading old case law thus presents problems -- finding an old case that supports one viewpoint may not indicate the current status of the law depending on more recent litigation, which is a continuous and ongoing process. You have to "stay current" literally daily to understand how the courts are likely to view certain kinds of cases.

To bring this 'round to the original point, figuring out if a table in an RPG is "derivative" (and thus potentially a copyright infringement) requires a lot of careful analysis, and can't be done with simple macro rules. And it can't be done by laypeople without tremendous effort. Good legal advice comes from people who are trained in IP law and practice it on a daily basis; in other words, expensive litigators in the music, publishing, media and software worlds. Everyone else is likely behind the times.

Ryan

* Please do not take this comment out of context to suggest that I think OSRIC has no copyright issues. I have not spent the time required to make a full analysis of OSRIC (nor am I going to), and even then, that analysis would be simply my opinion, and may not be (and would in fact not likely be) shared by Wizards of the Coast or Hasbro.

 

[Fifth Element]

Thank you Ryan for laying that out so clearly. I *thought* my understanding of the copyright issues was fairly good, and assuming you know what you're talking about (and I'm pretty sure that you do), your post confirms it. I appreciate you taking the time to explain this.

 

[PapersAndPaychecks]

The THAC0 tables in OSRIC are clearly reproducible via an algorithmic process.

The saving throw tables, character ability score matrices and experience point charts aren't reproducible in this way; which is why there are variances between the OSRIC versions of those charts, and the 1e ones.

As for the spell "fireball", that's a much simpler case. "Fireball" comes from the SRD, and I'm licensed by the OGL to use it in the sense presented by the SRD or to modify it in any way that makes sense to me.
__________________________

A problem I've constantly encountered with OSRIC is that I keep seeing these very confident pronouncements from people who haven't read the document thoroughly, and I have to say that I really do find that rather frustrating.

There seems to be an assumption that I must be some amateur punk who hasn't taken legal advice, and after a year of these imputations I have to admit that I'm getting a little tired of it. I have taken plenty of legal advice on these subjects and I've produced OSRIC with all due care.

 

[Goblinoid Games]

I certainly wouldn't accuse you of that