BRP and the OGL

[PK Games]

I was being snarky.

[vagabond]

I was being snarky.

I know

I was pointing out that some of what he said is valid though.

Reviewing the License Agreement posted in the downloads section, it

is my opinion (though IANAL) that it should be possible to use OGC

in a BRP book as long as 1) the OGL is included as required, 2) the

content is clearly identified as OGC, and 3) - and this is the most important

part - no new rules/mechanics are derived from the OGC included. This

is important because doing so would violate the agreement with Chaosium.

New mechanics would fall under Chaosium's umbrella as per the agreement.

However, isolated OGC should not, and the agreement and OGL would be

satisfied.

As always, consult with Charlie and a lawyer.

-V

[King of Old School]

Sorry, but no - you are the one making the mistake.

The key is the last "and" in the sentence below.

"1.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"

Actually, the key part is "to the extent such content does not embody the Product Identity." All that is necessary is to claim that your specific expression of a given mechanic is Product Identity. So long as the mechanic is something original (i.e. not derived from the SRD or another OGC source), it's now closed.

One example would be "Power Points" in Mutants & Masterminds, which are explicitly declared as PI in both the front of the book and in the OGL at the back. You can write your own definition of a Power Points mechanic (including one that was very much like PP in BRP), but using the M&M mechanic as written in an OGL product is verboten and, depending on how closely the rest of your product hewed to M&M, would very possibly get you in hot water with Green Ronin. There are other examples, but M&M is the easiest to use because GR is polite enough to make their PI declaration explicit (unlike, say, Monte Cook...).

KoOS

[peterb]

Actually, the key part is "to the extent such content does not embody the Product Identity." All that is necessary is to claim that your specific expression of a given mechanic is Product Identity. So long as the mechanic is something original (i.e. not derived from the SRD or another OGC source), it's now closed.

One example would be "Power Points" in Mutants & Masterminds, which are explicitly declared as PI in both the front of the book and in the OGL at the back. You can write your own definition of a Power Points mechanic (including one that was very much like PP in BRP), but using the M&M mechanic as written in an OGL product is verboten and, depending on how closely the rest of your product hewed to M&M, would very possibly get you in hot water with Green Ronin. There are other examples, but M&M is the easiest to use because GR is polite enough to make their PI declaration explicit (unlike, say, Monte Cook...).

Well, yes, but... what is allowed as PI is somewhat limited:

"[1.](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;"

It's possible to cripple game mechanics that are related to magic (as you point out) so that people that wants to reuse the OGC must come up with new names for spells and other parts of the magic system. Trying to PI an entire block of magic rules would be an violation of the license.

[peterb]

Hopefully this will put the OGC vs. non-OGC issue to rest.

From the old OGF-L (Open Gaming Foundation mailing list), a post

by none other than Ryan Dancey:

See the whole thread here about having rules that are closed/PI in

conjunction with OGL/OGC material:

Re: [OGF-L] If people are *really* bothered by crippled OGC issued under

So, T20's shipbuilding rules are not OGC, and yet the book was written using the OGL and had other OGC in it. The shipbuilding rules are standalone, and were not designed using previous OGC, so they remain closed per the publisher.

That interpretation doesn't line up with the language of the license.

As written the OGL defines OGC as:

-- all game mechanics that

---- does not embody the Product Identity

---- 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

----but specifically excludes Product Identity

The license kicks in when you (re)use any OGC. If you mix your own rules with OGC from other works, your game mechanics becomes "contaminated" and transforms into OGC. This is how any reasonable objective party (as in a judge) would read the license.

Unfortunately publishers started to act as if only game mechanics clearly labelled as OGC was covered by the license. They did this because the OGL contains a rule (art. 2) that you must attach a notice indicating that the Open Game Content may only be Used under and in terms of this License to the work. Another factor was that WotC allowed it and then everyone just tagged along. This behaviour is not, as I already noted, supported by the language of the license.

Using a license that is not used as written, even by its drafter, is probably best avoided unless one really feel a need to do so.

[King of Old School]

It's possible to cripple game mechanics that are related to magic (as you point out) so that people that wants to reuse the OGC must come up with new names for spells and other parts of the magic system. Trying to PI an entire block of magic rules would be an violation of the license.

It's not just magic, and it's not just the names; it also includes the descriptive or explanatory text for any kind of special ability, effect or equipment. The only part you can't close is the underlying mechanical structure. You can say that a given special ability causes 3d6 of damage or paralyzes the target for 5 turns or whatever, but you will have to rename the ability and rewrite the descriptive text entirely... and at that point, you're more or less in the same boat as you would be without the OGL.

KoOS

[vagabond]

That interpretation doesn't line up with the language of the license.

As written the OGL defines OGC as:

-- all game mechanics that

---- does not embody the Product Identity

---- 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

----but specifically excludes Product Identity

The license kicks in when you (re)use any OGC. If you mix your own rules with OGC from other works, your game mechanics becomes "contaminated" and transforms into OGC. This is how any reasonable objective party (as in a judge) would read the license.

Unfortunately publishers started to act as if only game mechanics clearly labelled as OGC was covered by the license. They did this because the OGL contains a rule (art. 2) that you must attach a notice indicating that the Open Game Content may only be Used under and in terms of this License to the work. Another factor was that WotC allowed it and then everyone just tagged along. This behaviour is not, as I already noted, supported by the language of the license.

Using a license that is not used as written, even by its drafter, is probably best avoided unless one really feel a need to do so.

Regardless, Dancey drafted the license, he should know what it means.

But, looking at your "definition" above, let's break it down:

As written the OGL defines OGC as:

-- all game mechanics that

---- does not embody the Product Identity

---- is an enhancement over the prior art

The wording in 1.d) is "the game mechanic", not "all game mechanics".

This is splitting hairs, but it may have been written that way intentionally.

"The mechanic" would refer to the OGL mechanics. So, that chunk would

mean:

-- the d20 core mechanics

----does not embody Product Identity

----AND is an enhancement over the prior art

The "AND" is very important. It's not an either/or, it definitely implies that

there could very well be game mechanics that are not enhancement over

the prior art - T20's ship-building rules for example are not directly derived

from the d20 core.

and

----any additional content clearly identified as Open Game Content by the Contributor

That's pretty clear - no argument here.

and means:

--any work covered by this License

----including translations

----and derivative works

----but specifically excludes Product Identity

Again, none of that is in question. What is in question is exactly what is

covered by the license. And, according to Dancey and the language of

the license, only mechanics derived from prior OGC or otherwise designated

as OGC, are covered. There can certainly be mechanics in the book that

are neither of those, and thus remain closed/PI.

What's odd is that you seem to be arguing against how the OGL has been

implemented and supported since day one. You have been shown numerous

examples of how closed and open content have co-existed in products, how

the person responsible for the license interprets/intended it (and, consequently,

how it is used in practice), and yet you still argue otherwise based upon what

I see as a flawed interpretation. Obviously if a judge would see it the same

way you do, then many relatively large companies have been given poor legal

advice with respect to the license (Mongoose, Green Ronin, WotC/Hasbro).

Therefore, I find it more reasonable that you are misinterpreting it, and that a

judge would not read it the way you think.

-V

Edited September 17, 2008 by vagabond

[peterb]

Regardless, Dancey drafted the license, he should know what it means.

That doesn't mean a thing. "Ambiguitas contra stipulatorem est" and "in dubio contra stipulatorem" are two names for a principle that, while it's commonly used when the text of a legal document is ambiguous, is also commonly applied when the party who wrote a deed, especially a take-it-or-leave-it contracts (or adhesion contract), tries to interpret his own text in a way that does not follow from the text it self. In these cases courts let the text rule. What Dancey may have had in mind when he wrote the text, but failed to implement, is of little importance, it's the text of the license that matters not the drafters interpretation. Otherwise how would anyone know what OGC is? The same goes for the mistake(?) of not using "game mechanics" in plural.

It's an entire different matter that the publishers, in union, has established a praxis among themselves to interpret the license as Dancey does. That sticks among the publishers because a party can be made to stick by how he appears to have interpreted a contract. For example, assume that an insurance company always pays any bicycle theft claims below $ 250, even if all such claims, according to the terms of the insurance contract, should not be paid. The established praxis of the company can be used against it if it, referring to the terms of the insurance, refuses to pay a $ 230 claim for bicycle theft.

[vagabond]

The thing is Ryan did not write the text. Hasbro/WotC lawyers did.

So, I suspect that Ryan explained what he wanted, and the lawyers

wrote it the way he intended. At the very least, he wrote it (or someone

wrote it for him) and the lawyers reviewed it with some sort of input

from Ryan as to what he intended. There is no way Hasbro/WotC would

have let such a monumental license out of the bag without legal review.

Again, I think the singular "mechanic" and the "and is an enhancement over the

prior art" in OGL section 1.d) were intentionally worded that way, and when

interpreted literally, support that OGC is either derivative of prior OGC, or

declared OGC by the publisher, but not all encompassing when it comes to

rules/mechanics.

-V

[DirkD]

Are there any actual rulings on that subject? With the amount of d20-stuff published in the last years, there had to be some conflicts.

Otherwise I would think that a company like Hasbro is able to find the people to draw up a contract that secures their own closed content as much as it is possible (and therefore the license works as intended). It may be interesting for law-students to find potential loopholes, but I doubt that anyone would risk using something declared as closed on those interpretations.

[rust]

More than a few companies have a tendency to declare material as protec-

ted that in fact cannot be legally protected.

I see this as an attempt to "frighten off" potential "plagiators", and it may

well impress those who do not consult a lawyer, but at a closer look most

licences and thelike contain lots of "weak spots".

Somewhere on the net is a very interesting legal expertise on Wizard's OGL,

where the author comes to the conclusion that it is "mostly a legal bluff".

This may not be quite true, but it obviously is far from being "watertight".

[peterb]

Are there any actual rulings on that subject? With the amount of d20-stuff published in the last years, there had to be some conflicts.

Otherwise I would think that a company like Hasbro is able to find the people to draw up a contract that secures their own closed content as much as it is possible (and therefore the license works as intended). It may be interesting for law-students to find potential loopholes, but I doubt that anyone would risk using something declared as closed on those interpretations.

There are no rulings on OGL at all.

You don't label anything as closed (but possibly as PI), the notion of closed game mechanics has been created after the release of the OGL by the industry it self. Industry praxis can be used to fill out omitted parts of a contract and can also become binding to new parties but such praxis cannot force upon a party someone else's interpretation of the contract. A legal deed such as the OGL is primarily interpreted by courts based on it's purpose and language. Between two parties where both has a documented history of interpreting the OGL in certain way, a court would use the shared interpretation (obviously). Between two parties where one reads the license as written and the other uses the industry praxis, most courts would go by the language of the license.

So no, this is not just a law-school exercise. I base my arguments on established court practices, which by the way do not differ that much between civil law courts and common law courts...

[DirkD]

You may be right, but as long as there are no rulings on the OGL, that discussion is really more academic in nature.

If you go along and more or less copy stuff that isn't intended as open in nature, you risk a lot and you have additional costs. The writing must be carefully edited to avoid mistakes, lawyer costs, potential loss of print runs, compensation, slower production process, potential of long legal battles against companies with more money...

It just isn't worth it if you are a decisionmaker, even if you see yourself in the right or think you have better chances of winning any potential law suit.

[rust]

It just isn't worth it if you are a decisionmaker, even if you see yourself in the right or think you have better chances of winning any potential law suit.

You are of course right.

There is currently a case where one small German games company sued

another small German games company because of a suspected major pla-

giarism.

It seems likely that the court will not accept the case, as in the court's

opinion the first company until now was unable to prove that any part of

its RPG, except for some proper names, is an original creation and was not

used in previous fantasy RPGs or in fantasy literature.

So, while the second company probably will not in any way be punished for

the suspected (and, in my opinion, very likely) plagiarism, the costs to de-

fend its position could become high enough to put it out of business.

Ironically, the first company that attempted to protect its RPG from plagia-

rism will most probably be told by the court that there was nothing worth

to protect in the first place, and will also have to cover costs that might

put it out of business.

Staying out of courts whenever possible seems to be a prudent decision.

[King of Old School]

it's the text of the license that matters not the drafters interpretation. Otherwise how would anyone know what OGC is?

It's anything that falls under the default description of OGC that isn't declared as Product Identity. The onus is on the publisher to make the declaration upfront.

FTR, I don't dispute that the OGL as written is full of vagaries and legal loopholes. I guess in the end, my point is that using the OGL and the BRP license together is probably a bad idea.

KoOS

[vagabond]

The most important part is section 1.d):

(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.

So, my interpretation (which is backed both Ryan Dancey's interpretation and

what has been published under the OGL) is:

OGC is the game mechanics which do not embody PI, AND are derived from

prior OGC AND any other content declared OGC by the contributor.

PI is specifically excluded, but so are mechanics that are NOT derived

from prior OGC NOR declared OGC by the contributor.

The "AND"s are very important here: OGC must not be PI, must be derived from

prior OGC, or must be declared OGC by the contributor. Anything else is, by

definition, assumed to not be OGC.

-V

[peterb]

If you go along and more or less copy stuff that isn't intended as open in nature, you risk a lot and you have additional costs. The writing must be carefully edited to avoid mistakes, lawyer costs, potential loss of print runs, compensation, slower production process, potential of long legal battles against companies with more money...

The irony is that just about everyone agrees that game mechanics, both the rules as such and the descriptions, more or less lacks any copyright protection. The point with OGL was always that it was tied into the d20-trademark license, opening up a huge potential market. OGL was designed to be a safe harbour from law suits, and even if people knew they fairly easy could go the copyright route (i.e. describe game mechanics in more or less their own words) it was easier to go the OGL route.

It's also interesting to see that now a few companies choose to go the copyright route when producing D&D 4th. ed. compatible material.

[peterb]

There is currently a case where one small German games company sued another small German games company because of a suspected major plagiarism.

Rust,

Is there any online info on this? It would be very interesting for me to read since Swedish and German copyright legislation are quite similar.

[rust]

One of the companies has put all the material on the web, including the

court's first reaction.

You should be able to download the entire material from the link at the

bottom of this page ("Prozessunterlagen"):

Nackter Stahl verklagt Promtheus Games

If there should be a problem with the link, as the company may be as-

ked to withdraw the material from the Internet, just send me a PM with

your e-mail address, and I will mail you the material.

Edited September 18, 2008 by rust

[peterb]

So, my interpretation (which is backed both Ryan Dancey's interpretation and what has been published under the OGL) is:

OGC is the game mechanics which do not embody PI, AND are derived from prior OGC AND any other content declared OGC by the contributor. PI is specifically excluded, but so are mechanics that are NOT derived from prior OGC NOR declared OGC by the contributor.

The "AND"s are very important here: OGC must not be PI, must be derived from prior OGC, or must be declared OGC by the contributor. Anything else is, by definition, assumed to not be OGC.

There is actually nothing in the license that says that game mechanics become OGC only if it's derived from other OGC. The license says that you must use the license if you derive from OGC (of any kind). But nothing in the language of 1.d limits the "viralness" of OGL regarding game mechanics.

This part makes all game mechanics OGC:

"(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". Except such game mechanics that lack originality (i.e. are un-copyrightable) or such parts of the text that can be made into PI.

This part turns all other content clearly identified as OGC into OGC:

"and any additional content clearly identified as Open Game Content by the Contributor, "

This part turns all derivative works based on OGC into OGC:

"and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity."

There is in fact nothing here that limits "game mechanics" as a concept to such mechanics that is derived from other parties OGC. The license defines game mechanics as "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". Not as "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 is derived from open game content [my addition] ." It would have been very easy to add such a clarifying statement. But on the other hand why would you need to define game mechanics if OGC is only contents that have been clearly designated as OGC? If that was the intention it would have been sufficient to define OGC as:

"Open Game Content" means any 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."

I realise that industry people has an interest of trying to limit the scope of the license. But you really need to go beyond the language of the text itself to make an argument that OGC must be derived from prior OGC.

[King of Old School]

The irony is that just about everyone agrees that game mechanics, both the rules as such and the descriptions, more or less lacks any copyright protection.

Yes on the former, no on the latter. I think you'll find that most people consider descriptive text to fall under copyright unless opened to fair use through some instrument such as the OGL. Descriptions would fall under the "specific expression of an idea" concept that is protected under copyright.

KoOS

[rust]

As far as I know, only the specific text of the description is protected, not

the content of the description - write the same content of the description

in your own words, and you are on the safe side.

[peterb]

Yes on the former, no on the latter. I think you'll find that most people consider descriptive text to fall under copyright unless opened to fair use through some instrument such as the OGL. Descriptions would fall under the "specific expression of an idea" concept that is protected under copyright.

I know of quite few copyright cases regarding the description of game rules. In Europe no one has been able to win such a case. The situation is the same in the US. The reasons are different though. In the US courts have referred to the "merger-doctrine", arguing that the description of the rules was to "close" to the idea for them to be considered original. In Europe courts have dismissed the expressions as being non-original, i.e. not unique enough to warrant protection. Parker for example, lost a case about Monopoly in Norway in the mid-80ies. The case Rust refers to is in fact a point in case here.

The court dismisses the plaintiffs claims that rules or rules systems could be copyright protected. Neither are names, or the names of skills, talents, attributes copyrightable, nor are the individual rules elements as such works in the copyright sense.

Between the lines the court seems to say that "well, yes you can get a copyright to a description of the rules of a game, but such a description must be pretty unique, it cannot be based on standard elements of the genre".

In general descriptive texts that are also functional have a very thin copyright, if it even exists (source code being another good example).

[DirkD]

It's also interesting to see that now a few companies choose to go the copyright route when producing D&D 4th. ed. compatible material.

From what I've read about the (non-revised version of the) GSL, that seems quite reasonable. A company that relies heavily on D&D-products can't let another company dictate their politics in that manner. It's probably easier and safer to pay for a license and avoid all the potential traps that you sign up to with the GSL.

[LivingTriskele]

Sorry guys, I've been trying to follow the arguments here and the legalese is labyrinthine... I'm writing a BRP fantasy Monograph. I'd like to use the basic structure of some of the creatures from the MRQ Monsters book to build my own menagerie. Providing I alter them slightly this shouldn't be a problem (?) I'm also wondering if I can transcribe/rename some of the spells from the The Bronze Grimoire.