How did I miss this thread! My favorite--people arguing about copyright law!
I am a lawyer. And I run Necromancer Games. I have probably written more mainstream products under the OGL/d20 licenses than a good number of folks, and thus have grappled with the issues in a very real world sense a good number of times. So here are just a few thoughts. Take them for what they are worth. I am not pretending to be an expert or the only source of authority on this issue. Note, this is not legal advice. You should also know that this area of intellectual property is relatively unsettled. There are many diverging opinions on the matter. It is a complex area.
"1- You cannot copyright OR trademark a game system."
Partially true. This is an often-cited general proposition by both sides in the OGL discussion. But, as with many generalized statements, it isnt always controlling of the specific issue. You cannot copyright the rules to, say, poker. It has never been established if the full system of a role playing game (which many would argue is different from poker) would be considered the same as poker. Plus, unlike poker, even if the system is not copyrightable, a system as complex as an RPG may likely contain discrete elements that are themselves copyrightable. As for trademarks, it is correct in general that a system of rules cannot be trademarked. That isnt what trademark protects. The name of the system can be.
"2- You could write a book which was compatible with D&D without violating intellectual property law. You would have to be careful of trademarks, but it could be done. (see point D.08 on the link I earlier mentioned)"
This is most likely wrong, since your premise is based on the "you cant copyright a game system" is also rather broad. I do not believe you could write a book (by which I believe you mean a supplement or module or even a novel) which was "compatible" with D&D, unless you meant compatible in a really generic sense.
Most people want to be compatible in a commercially relevant sense--they want purchasers to know or clearly understand that their book can be used with D&D. Once that happens, you do enter into possible legal issues.
You could certainly write a novel where "wizards" are casting "magic missiles" and everyone would get it.
You could not say "this novel is based on the D&D game" without getting into hot water.
Here is the core of the problem: holders of copyright and trademarks have a duty to defend their marks so that they do not fall into the public domain. That means any significant infringement or percieved infringement is going to draw a law suit--the holder of the mark has to do so to protect their intellectual property or mark.
Bottom line: without the OGL/d20 license, Hasbro would be forced to sue infringing products. Small time companies cant handle that. That isnt to say Hasbro would be wrong or malicious to sue. It is a business necessity. Hasbro is as unsure of copyright law as everyone else is at this point. And if there is a percieved violation they can run the risk of not suing and losing their protection. So please dont think Hasbro suing means they are evil or trying to hold people down.
"3- You could then say "This book is compatible with Dungeons and Dragons." As long as "Dungeons and Dragons" was in exactly the same type as everything else, legally that is a statement of fact, just like when you buy Civilization III and it tells you what operating systems it works on. They aren't violating Trademark either unless they use the little four-colored windows icon."
That is not necessarily correct and is a vast oversimplification. This issue is way more complex then "hey, a game says it runs on Windows so I can say my book is compatible with D&D". It would depend quite a bit on the content of your book and what it was attempting to do. I cant summarize in a forum response a book full of copyright law, but suffice it to say that is an oversimplification.
"4- The OGL makes point 2 and point 3 alot easier, but if you wanted to do points 2 and 3 without it and you weren't small enough to just be smothered by WoTC or Hasbro in a court of law, then you could."
Again, incorrect. See above. Plus, please notemy above comments that Hasbro would not be smothering you for some evil motive necessarily, they have their own business interests.
The correct part of this is that you can, in general, do 2 and 3 as you say much easier with the OGL/d20 license. You still cant say "compatible with D&D". I agree that you can say "requires the use of the 3E PHB, published by WotC". In fact, as of the new license changes you MUST say that. But that is not the same as saying "compatible with D&D". It is my hope--and my goal--that the d20 logo comes to mean that. I believe it has. I was really worried early in d20 that non-D&D games would spring up with the d20 logo, diluting that d20=D&D connection.
"5- The next time you post on a thread with the central position that I'm lying don't bother, I'll just be skipping over your posts from now on."
I guess I dont have to address this one.
For more on the copyright issues, you may want to go to the opengaming foundation site and join the relevant discussion groups there. This issue is discussed with great frequency and vigor by many parties--professionals and gamers alike.
What the OGL and d20 licenses do for you (and WotC) is this:
You can make products that you can come as close to compatible as allowable. WotC, in turn, gets supporting products that hopefully drive their core products.
Plus (here is the legal part) WotC can say "here is how you can use my content without me having to worry about me suing you because I would otherwise be required to sue you to protect what I believe is my protectable copyright content."
Hope that helps.
Clark
