Ryan Dancey Answers to OGL questions

[GQuail]

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.

When the accusations come from random punters or "I'm a lawyer in real life, honest" message board posts, I can accept that: I do think when Mr OGL turns up, you ought to consider it with a little more weight. (Though then again, he freely admits to only having looked at older versions...)

Two monsters and one major book are not "significant amounts of OGC" in my opinion. However, I doubt Wizards will ever heavily adopt anyone else's content. It will always go the other way - people want to use Wizard's content.

Yeah, the primary flow has been from Wizards: observe how things like making Unearthed Arcana open or Psionics were grabbed by people eagerly, whereas we're having to stretch our minds to remember the Scorpionfolk and, um, Razor Boar?

 

[Ourph]

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.

I've seen you reference this case before Ryan, but I've never seen you address the obvious corollary issue which is that the Kelly Blue Book is not specifically excluded from copyright protection by the Bern Convention in the same way that game rules are. Do you believe the court decision in that case would have been the same if the issue were tables related to game rules rather than non-game data?

 

[Dire Bare]

I've seen you reference this case before Ryan, but I've never seen you address the obvious corollary issue which is that the Kelly Blue Book is not specifically excluded from copyright protection by the Bern Convention in the same way that game rules are. Do you believe the court decision in that case would have been the same if the issue were tables related to game rules rather than non-game data?

Obvious corollary issue?

 

[Kem]

I've seen you reference this case before Ryan, but I've never seen you address the obvious corollary issue which is that the Kelly Blue Book is not specifically excluded from copyright protection by the Bern Convention in the same way that game rules are. Do you believe the court decision in that case would have been the same if the issue were tables related to game rules rather than non-game data?

Tables are not specifically Rules. It is "Game Data". It is information used by rules to determine how to play the game. By showing that a simple formula is used to create the table, you can duplicate the table via that formula because you are using a form of a game rule to make it. If the values are chosen to be good, as in the Blue Book example, you have no "Rules" on how to create the table.

This is why the EXP table in D&D is rather easy to duplicate. The same exact table (created by formula) exists in many other games (Might and Magic 6 comes to mind as a game pre-dating D&D 3.0). However a custom built XP table is much harder, if not impossible, to duplicate. As is the chart of what spell at what level.

Now Game Rules are not protected. However the PHB is protected as a work. And its tables, charts, examples, wording of rules, are protected. (IIRC in so far as the wording of the rule is not the most base expression of said rule).

Of course, a bit of what I think about this is due to my opinion on the seperation of Rules and Information. Which I will admit is based more on how programming works as opposed to how OGL/Copyright specifically works as thats where my experience dealing this comes from.

(Look at Open Office vs. Microsoft Office or .Net Framwork vs. Mono or an even better example Cgywin or Wine being used in Linux - You can Patent how something works, but the expression of how it works is the only thing protected)

 

[Ourph]

Obvious corollary issue?

I'm sure it's obvious to someone with Ryan's expertise in this field.

Tables are not specifically Rules.

That's an interesting hypothesis. I'm not familiar with the case that establishes that precedent though.

 

[RyanD]

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.

I think that projects like OSRIC are very interesting, and I wish there were a smoother/easier way to facilitate them within the structure of the OGL, but there is not, barring a massive content release from Wizards of the Coast. Speaking from direct personal experience (as the original creator of the SRD), I know how hard it is to reduce a D&D rulebook to a general set of rules materials; and I wasn't even worried about violating a copyright!

I just want you to know that I hold no bad opinion of you, or of the motives of the project, or even of the final output.

Ryan

 

[Scott_Rouse]

I would like to ask a related question on this point. Is (or do you feel) that the reason this has not happened due to public relations? I could see a lot of foolish negative criticism thrown at WOTC such as 'well, now we see how WOTC views the third party people: free content generators for a lazy corporation who then repackages their work for three times what the original authors charged'. I'm wondering if that's the case.

I know the question was directed at Ryan and he'll likely gives his answer.

I'll add my 2 CP. From time to time WOTC has used open game content in some of it's books (beyond the obvious of what is contained in the SRD). I can't name a title off the top of my head but anytime you see a copy of the OGL text in the back of a D&D book some OGC has been used and it will reference from where it was used.

I can't speak for the game designers at WOTC but my guess would is that from time to time they have been inspired by other game publishers works . When you consider the number of freelancers we use (that also work for other publishers) this is bound to happen. In fact some freelancers end up on staff because previous work was impressive enough that it lead to a full time gig (Rodney and Mearls for example). This is one of the beauties of the OGL. It can inspire designers to try new things and build off the existing system.

As for the PR hit of using OGC it would have to be extremely widespread (IMO 20% or more OGC) before we would be accused of milking the OGL publishing community. I will guess most of our game designer would rather try to be original and innovative instead of filling books under their names with large amounts of recycled content.

 

[RyanD]

Has the amount of re-incorporation of 3rd-party OGL material in WOTC products been more, or less than you initially expected? Have you been disappointed by how much that option has been utilized? Do you expect there to be more or less of it in the future?

There's theory, and there's practice.

In theory I would have liked to have seen a much more aggressive use of OGC in D&D products, because I think that feeds the idea "pump" (the more likely someone thinks their work is to become "Dungeons & Dragons", the more likely they may be to make the complete effort required to thoroughly write up and distribute their ideas).

In practice I'm not too surprised at the lack of OGC use in D&D. There are several dozen people paid quite well to design & develop Dungeons & Dragons. You will remember that just after 3.0 shipped, Wizards went through 4 disastrous rounds of layoffs. The "survivors" (many of who also survived the Last Days of TSR) know how to keep their jobs: Do great work, and get it published. So there's an economic (and personal) motive to avoid using a lot of 3rd party OGC in the work that team produces. Nobody in that team wants an upper level manager to think "well hell! Let's just get rid of the RPG R&D group and rely on this talented pool of freelancers instead".

I'll also say that there's a unique thing going on at Wizards of the Coast, and that thing is what I call the "culture of design". At WotC, game designers are constantly challenged to refine their ideas, define them rigorously, and fit them within larger design principles that have been in constant evolution since Richard Garfield kicked off the CCG revolution. Working at WotC is unlike working at any other game company -- not only do you do your game design work, but you're essentially subjected to PhD level game theory instruction on a continuous basis. The result is, in my opinion, a qualitative difference between the WotC produced content and a lot of 3rd party content. They don't bat 1.000, but they get on base far more often than most other sources of content, and occasionally, they smack one out of the park.

As a result of that culture of design, it's hard for outside material to make it through the design inspection and review process and into a Dungeons & Dragons product. ideas may (and probably often do) percolate in the 3rd party OGL community, which then get discussed, and perhaps incorporated in the logic & planning for a D&D product, but the resulting material likely bears little or no textual resemblance to the original source material.

Assuming there is a 4E project underway at WotC, I suspect that part of that project was a thorough review of some of the better OGL content, like Mutants & Masterminds, Castles & Crusades, and Spycraft 2.0. (a clearly not-exhaustive list!) I am pretty sure that if WotC chooses to do a 4E that is a lineal descendant of 3E, some of that review will likely transmogrify into new D&D content. It will be hard to untangle from the new content produced by WotC R&D though, and all that may remain is the intent & the result, not the system or the process. Only time will tell.

Ryan

 

[RyanD]

Do you believe the court decision in that case would have been the same if the issue were tables related to game rules rather than non-game data?

I believe that when, and if, a modern RPG case is ever litigated over copyright issues, that case will write all-new law, creating a whole new category of copyright protections. It will have the same kind of impact that the software copyright litigation did. The courts have never seen anything like a multi-book TRPG, and "simple" rules like "games can't be copyright" will be tossed in favor of a much more nuanced examination.

I even think it is possible that lower level courts would look at a TRPG and essentially say "that's a novel, not a game", and proceed from that basis (the result would be sweeping and massive increases in the protectability of RPG content, but then you'd have to untangle 30 years of publishing history where games are clearly derivative of one another without licenses or intra-publisher agreements, and that could get real messy, real quick.)

The arrow of law points in favor of the publishers on these issues. As intellectual property has become more and more important to the global economy, courts have been increasingly likely to extend broad & strong protections to IP ownership. The odds that RPG content will be found to be protectable increase steadily and there is no reason to suspect a reversal in that trend is likely.

Ryan

 

[RyanD]

Does it bother you when people call the Open Game License the Open Gaming License, or when people call the Open Gaming Foundation the Open Game Foundation? If you could go back would you synch up the nomenclature?

No, not at all.

In 1999, I envisioned the OGF as a resource to push for adoption of the OGL and the overall "concept" of openness as it related to games. I believed at the time that the OGL would be used by a small community of fan publishers mostly writing adventure content, and perhaps alternate class & spell lists (similar to the "netbook" community from NNTP days). If felt that there would need to be an independent advocacy group separate from WotC to push for wider adoption of the concept.

Turns out, I was completely wrong, and adoption of the OGL, and the concept of "open gaming" proceeded quite nicely without any major disruptions.

So I don't think that the precise names of the license or the support structure are all that meaningful.

I do wish that "OGL" hadn't been adopted as a synonym for "D20 without the D20STL" though. That's an improvement I'd make to a 2.0 version of the OGL; some sort of naming protection of its own. May be too late to matter though.

Ryan