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Ryan Dancey Answers to OGL questions
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<blockquote data-quote="RyanD" data-source="post: 3642121" data-attributes="member: 3312"><p>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 <em>probably</em>* ok.</p><p></p><p></p><p></p><p>Yes, and no.</p><p></p><p>If a table is generated by a simple linear equation, then it cannot be copyright. </p><p></p><p>The AD&D "THAC0" table is a simple linear equation and can't be copyright.</p><p></p><p>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).</p><p></p><p>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.</p><p></p><p>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.</p><p></p><p>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.</p><p></p><p>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.</p><p></p><p>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.</p><p></p><p>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.</p><p></p><p>Ryan</p><p></p><p>* 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 <strong>not</strong> likely be) shared by Wizards of the Coast or Hasbro.</p></blockquote><p></p>
[QUOTE="RyanD, post: 3642121, member: 3312"] 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 [i]probably[/i]* ok. 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 [b]not[/b] likely be) shared by Wizards of the Coast or Hasbro. [/QUOTE]
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