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What are the Realistic Limitations of the OGL?

amnuxoll

First Post
So, according to the OGL, I can freely copy and distribute material that is under that license. So, what happens if, for example, I take the Pathfinder ruleset (or any other OGL game) , copy all of the text into a document and resell that document as the "Wayfinder" rule system? (Important Note: I have a deep respect for Paizo in general and Jason Bulmahn in particular and would never ever actually do this.)

What avenues does Paizo have to prevent this? It seems like they are likely to have some sort of reasonable recourse.
 

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Marius Delphus

Adventurer
IIUC, there is no "recourse" available, unless the new product copies Paizo material which is not OGC. However, a new product such as the one contemplated must overcome, at the very least, the following hurdles that occur to me off the top of my head:

(1) Production value. Paizo's books look darn good.
(2) Price. At $10 apiece for the PDFs (Core Rulebook and Bestiary so far, and hopefully GameMastery Guide as well when released), a new product would have to be produced at a very low cost to realistically compete. See item (1).
(3) Word of mouth. Assume it would be almost instantly public that the new product is a copy-paste of Paizo's OGC. This would have a chilling effect on sales. See item (2).
(4) Paizo's generosity. The Pathfinder SRD is online and free. See item (2).
(5) Boring. Losing Paizo's Product Identity -- the artwork and "fluff" -- means the new product either has to replace it or do without it. See items (1) and (2).
 

pawsplay

First Post
There is no "recourse" when people use what you have given away freely. Anything labeled OGC makes you a potential licensee.
 

amnuxoll

First Post
(3) Word of mouth. Assume it would be almost instantly public that the new product is a copy-paste of Paizo's OGC. This would have a chilling effect on sales. See item (2).

I suppose this is at the heart of it. Paizo has to count on the strong customer loyalty that they have to prevent this.

It just seemed like there might be legal angles other than copyright that could be applied.
 

pawsplay

First Post
I think their biggest concern was that making the rules closed content would alienate their fans and third party publishers. If they were concerned about cut-paste jobs, they would simply have made the entire game closed. Do you understand the issue?
 

Gilwen

Explorer
They would not be able to make any rules closed that they derived from OGC from third parties. I haven't seen the product so I can't comment on what parts are derived but from their marketing material I have read it seems that most of it is derived from the original WOTC SRD for 3/3.5.

What you couldn't do as others have mentioned is reuse their PI or indicated compatibility. Depending on what exactly is open there might be room for pocket guides in the vein of what mongoose and others did with the original SRD.Ryan Dancey practically dared publishers to do exactly this when 3.0 was first released in the OGL FAQ and so they did quite successfully, catching WOTC off guard. I am sure Paizo considered this when they developed their business plan and how it would potentially affect them. I found the pocket SRD books thta came out a cheap alternative to purchasing more than one PHB. I certainly bought my "good" set then used the pocket stuff to travel with or to loan out.

How well will something like this be recieved? That really depends on the consumers and how popular the game becomes as it moves forward. There will certainly be backlash from loyal paizo customers.

Their recourse? If the OGL is followed properly then nothing. By releasing under the OGL they ahve given anyone a license to take, modify, or anything else they want to do with their game. If the OGL isn't followed properly then suing the person/company for enforcement of the OGL is their only recourse.


Gil
 

pawsplay

First Post
They would not be able to make any rules closed that they derived from OGC from third parties.

Not true. They can't close anything that's already open, but they can make the slightest changes and call it closed content, if they choose. Anything that is copyrightable can be open or closed.
 

Gilwen

Explorer
Once you derive from open content via the OGL you cannot close it or change the terms for it. If you don't use the OGL but follow normal copyright law then there is no open or closed content since OGC and PI are constructs of the OGL and not copyright law. if you use the OGL and derive from someone's open content then you are agreeing to make your derived stuff open in exchange for using their OGC and you are agreeing not to use their declared PI regardless of what copyright law allows for. This is covered in sections 2 and 7. Modification is covered section 1 and it makes no allowance for degree of modification.


What you can do for example is if you find a feat or spell, you can take the mechanics but give the spell or feat unique fluff and name. That fluff or name could be declared PI. But you can't take the mechanics and change a portion of it and then declare the mechanics PI since the license doesn't allow you to modify the terms of the OGC (section 2 2nd to last sentence).

Maybe I'm misunderstanding what you mean. Could you provide an example?

Gil
 

pawsplay

First Post
You are just completely wrong. You could change magic missile to say it does fire damage and declare that PI, and no one would be able to copy that exact sentence from the modified spell.
 

Gilwen

Explorer
Your example is a far cry from your statements of " If they were concerned about cut-paste jobs, they would simply have made the entire game closed." and "They can't close anything that's already open, but they can make the slightest changes and call it closed content, if they choose."

those statments suggest by changing the smallest part the whole thing becomes closed. That is simply not the case and not allowed by the license. To close the game they could not use the OGL, SRD, or third party OGC as the basis of the game.

As for the example.
Fire damage is already covered as OGC in the SRD but if you were to create a new non-OGC derivitative damage type for the spell then you would be correct on that exact sentence and damage type; you could declare those items PI but nothing more. The rest of the spell is still open and avilable to any to use, minus of course your PI which hardly cripples the spell.



Gil
 

pawsplay

First Post
those statments suggest by changing the smallest part the whole thing becomes closed.

I didn't say that. What I'm saying is that each and every change, however minor, is conceivably closed content, whether "derivative" or not. The OGL allows you to create derivative content that is closed.
 

Gilwen

Explorer
That is not the case even with the most liberal reading of the license. It is also not supported by any of the three dozen books that use the OGL that I have studied. The SRD is really expansive and there really isn't an effective way to produce a closed product when using it and the OGL.

The OGL allows you to close or PI your own original (non-OGC derived) material but not OGC derived material. It is impossible to close content once it is OGC. The license defines what Dervative Material means and the definition includes changes and modifications along with a whole list of other usages. That definition is the only one that applies since it is spelled out in the license. So even if you change everything about some item of OGC that you are using just the mere fact that you derived it makes what you are creating OGC by default. that is why you see tons and tons of similar or straight up copied OGC being reused with the only things being PI or closed are the name, fluff, and possibly original rule additions.

Sections 1 of the OGL d20 System Archive covers the definitions that pertain to the license and its usage.

I'll also point to the D20 license archive at wizards.
On this link Open Game License:Frequently Asked Questions
specifically checkout the follow questoins in that FAQ:
What is "Open Game Content?"
If I identify something as Product Identity that was previously distributed as Open Game Content, does the material become Product Identity?

It sounds like we are going to have to agree to disagree on this topic. As always if somene is going to go into business with this license it's always smart to consult a lawyer.

Gil
 

pawsplay

First Post
So even if you change everything about some item of OGC that you are using just the mere fact that you derived it makes what you are creating OGC by default.

I hope no one reads this and thinks this is true. The license says you must clearly specify what you are making OGC and what you are making PI.

If I identify something as Product Identity that was previously distributed as Open Game Content, does the material become Product Identity?

This answer glosses over some important issues. If I create Beadles & Bunyips and specify basically all of it as OGC, and then I create Beadles & Bunyips Second Edition, I can still declare everything in the Second Edition game to be PI. However the mere fact of its publication in Second Edition does not mean it stops being open in first edition.

In most cases, the conclusions you are drawing would be correct. However, your reasoning is not quite accurate. There is no "default" under the OGL; if material is not specified as being one or the other, the license is violated. If you declare something to be both OGC and PI, it becomes PI because OGC specifically excludes anything that is PI. The license is a license to create derivative works; the derivative works can be either PI or OGC.

To create non-derivative works, there are no copyright issues to even consider. You can always create wholly original works.
 

Gilwen

Explorer
The only declarations required by the OGL is Section 8 that you clearly mark OGC used, if any, in your work and that you use the notice from Section 2.
You are not required to declare anything PI. I think this is a failing of hte license because it creates a defacto third type of content that most call "closed". this sparked a huge debate on the oringal OGL listserv by the participating publishers using the license. Some believed in a default OGC status some belived it fell to normal copyright law for that specific material in these cases. I think the only thing agreed on was that for it to be decided for sure there would need to be a court case. That didn't stop publishers from releasing what was reffered to "crippled" delcarations that effectively cast doubt on reuse for anyone wanting to reuse that content.


I agree that the license is a license to create a derivative work. But it can only declare PI to the extent that you are given authority to release material as PI. Which does not include transforming OGC sourced material into PI. If the work is wholly original then you could release it under the OGL and PI the entire thing. This does limit how others can reuse your material.

Let's look at both wholly originall, non ogc derived works and works that contain original material and OGC (this is the most common useage I have seen).

Wholly original work:

If you created Beadles & Bunyips as a wholly original game and derived nothing from existing OGC, (this means no SRD) then yes you could declare everyting PI or release it as OGC or some mixture of the two types. You could then relicense it later or create a 2nd edition and release it under whatever license you want. The important thing is that it has not derived from any source of OGC. this means that the section 15 is clear except for the WOTC OGL copyright notice. This also means that I could not derive from your work since there is no OGC material to derive from.

If originally released under the OGL as OGC then people could use the OGC in that edition forever no matter how many non-ogl versions you made. I think we agree on that.

Mixed work:

If you were to release B&B under the OGL as PI but you wanted to include my OGC spells from my work you could do that. But anything derived from my OGC must remain OGC no matter how small the changes to the OGC. You could rename the spells and give them new fluff and that could be PI. The only thing left is the mechanics, if you aren't using the mechanics then I don't see why you'd source it and muddy the waters.

So now we have combined work of your B&B system that is PI and my OGC material. If somone wanted to derive from this work their only choice is to derive from the OGC in your work. The only thing OGC is the spells. if they want to derive from your PI then a separate agreement is required.

If you were to release B&B under a different license that was not the OGL then you could not use my OGC spells in those other versions. Assuming the spells are my original work I could give you permission to release them with your non-ogl version. Most likely my spells are based on somoene elses OGC so I only have authority to release them under the OGL as OGC regardless of how I have changed the source OGC.
Such is the viral nature of the OGL.

The license gives you two types of authority:

Declare things PI and to declare things OGC. In section 5 you have to have authority to do this. So your original work can be released as PI because you have authority to do that. You can release someone elses original material as PI only if they have given you authority to do so.

The only authority you are given on OGC is to release it as OGC and this includes derivaties of OGC. The oringal author has given you the authority for this by releasing the content under the OGL. This also means that material derived from OGC material can never be wholly released as PI.

The original question was about Pathfinder:

Section 1 of the OGL defines Derivative Material as: copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted;

Pathfinder, and correct me if I am wrong, uses the SRD and other OGC sources as the backbone. In other words it is a derivative work and is not a wholly original work (section 15 is not clear). The SRD is entirely OGC and barring special permission to PI, so is the other material they have sourced. That being the case anything derived from those OGC sources, no matter how it is changed, must stay OGC.

Anything that Paizo adds that is their original non OGC derived work can be PI'ed. This could be anything from new rules, to names, to fluff and story, etc. And that is the only material that they can withhold permission for reuse.



Gil
 
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amnuxoll

First Post
Anything that Paizo adds that is their original non OGC derived work can be PI'ed. This could be anything from new rules, to names, to fluff and story, etc. And that is the only material that they can withhold permission for reuse.

FYI, in practice, they are more generous than that stating:
Code:
[b]Product Identity:[/b] The following items are hereby identified as 
Product Identity, as defined in the Open Game License version 1.0a, 
Section 1(e), and are not Open Content: All trademarks, registered 
trademarks, proper names (characters, deities, etc.), dialogue, plots, 
storylines, locations, characters, artwork, and trade dress. 

(Elements that have previously been designated as Open Game 
Content are not included in this declaration.)


[b]Open Content:[/b] Except for material designated as Product 
Identity (see above), the game mechanics of this Paizo Publishing 
game product are Open Game Content, as defined in the Open 
Gaming License version 1.0a Section 1(d). No portion of this work 
other than the material designated as Open Game Content may be 
reproduced in any form without written permission.
 

pawsplay

First Post
The only declarations required by the OGL is Section 8 that you clearly mark OGC used, if any, in your work and that you use the notice from Section 2.

What it says is this:

"8. Identification: If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content."

If I can't tell at a glance what is OGC and what is not, you violate the license. If you only make an OGC declaration and not a PI one, then I guess you aren't clearly identifying it and nothing is PI, except those things already specified in the license itself.

Which does not include transforming OGC sourced material into PI.

What you are describing is not a logical possibility. The OGL doesn't "transform" anything. It is a license to produce derivative works. You can't make something PI that is verbatim OGC. However, you can make entirely PI works that are entirely derivative.

1. "(g) "Use", "Used" or "Using" means to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content.

"(d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.

"(e) "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; (f) "

"4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."

The "derivative works" referenced above clearly refers to "any work covered by this License, including ..." There are some thorny issues in the license, but it comes down to this: there is nothing preventing you from taking OGC, altering it, and declaring it PI.

A kosher example would be taking an ordinary +1 longsword and renaming it "Zarg's Blade." A complete non-starter would be to take existing OGC, make trivial changes that are not "enhancement over the prior art" and try to call it PI. In practice, since OGC has to be clearly labeled, a publisher can retain control over original concepts simply by not declaring them OGC (which makes them not). Aside from that, there are many interesting cases.

For instance, Green Ronin did not make power points OGC in their M&M, but it's not clear to me that points used to buy powers and abilities are an enhancement over prior art (making them copyrightable) or if they are, one of the categories of PI (making them protectable through the license). Arguably, they are "special abilities." The best protection for Green Ronin is the inability to declare compability without getting a license from them.
 


Nellisir

Adventurer
I think Gilwen is a little more on the mark here.

You could take a generic +1 longsword and call it "Zarg's Blade", which would be allowed under PI, but the mechanical rules description of what a +1 sword does (adds +1 to your to hit and damage rolls) would still be OGC. I suppose you could write "plus one" and make an argument that you are not copying the text of the OGC source, and "plus one" is PI, but it would be difficult and childish.

Also as someone noted, there are 3 classes of content: open, closed, and PI. Unique characteristics, such as proper names, usually fall into PI, but general descriptions or sentences ("the rusted sword has 4 runes inscribed on it.") are usually left to be closed, rather than the specific protection of PI.

Mechanical rules usually have to be OGC by virtue of deriving from the SRD, unless it's a completely new class of rules. Power points fall into this category, and Void from Rokugan (which are just another sort of power point). The way those rules manifest might still be OGC, however - Void feats are OGC, since feats derive from the SRD.

There's a decent amount of common sense and reasonable interpretation that has to be applied when you get into tiny permutations of OGC vs PI vs closed. There isn't a magical formula that says "this is OGC and this is PI", and some publishers exploit that uncertainty.

And while OGC has to be "clearly designated", that doesn't necessarily equate to "at a glance", which implies one could look at the content, independent of another reference, and determine whether or not it is OGC. It's my personal opinion that "clearly designated" means one ought to be able to figure it out without reference to another product, but at least one very prominent publisher writes their designations to be otherwise.
 

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