CEO, Goblinworks
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Let me begin by saying that the purpose of the OGL is not to say what is copyright and what is not copyright. That issue cannot be resolved by WIzards of the Coast because the law about how a copyright is transmitted through derivative works is unclear when it comes to things like Dungeons & Dragons.
What the OGL does is clearly establish that some content can be used with the license and some content cannot. When you use the OGL, you don't have to have the debate about copyrights and derivative works. The license itself defines the legal regime for the work in question not the copyright law.
The Pathfinder tabletop game is produced using that license so there's no need for Paizo to attempt to parse what is copyright and not copyright and what is a derivative work and what is not a derivative work on materials it is using from 3rd parties - including Wizards of the Coast - in those works. So it doesn't.
The OGL cannot be used for a software project as complex as Pathfinder Online. The OGL has restrictions on the kinds of licensing terms that can be attached to a project that uses the OGL and those terms are incompatible with software projects that combine multiple tools and middleware, and operate as services that require end-user license agreements and Terms of Service agreements.
So Goblinworks, unlike Paizo, has to think about the copyright and derivative work issues.
The biggest problem is named objects that are legacy D&D - spells, magic items and monsters that Wizards could assert a copyright interest in. There are lots of such things in D&D that are derived from the public domain and that stuff is OK for us to use - but we have to decide what that is. Wizards isn't going to tell us. So we err perhaps on the side of caution - Wizards is a big company and they could afford to ties us in knots with litigation if they wished. We want to avoid the appearance of infringing their copyrights.
The second biggest problem is in the description of game mechanics. Game mechanics by themselves cannot be copyright. However, the game mechanics of a roleplaying game are not like the game mechanics of chess or poker. They embody a large amount of material that is likely copyright. Deciding what parts of the game mechanics are thus "safe" to use, and what part could potentially trigger a lawsuit is again a gray area where we have to decide. And we apply the same rule of thumb as before - we want to avoid the appearance of infringement.
Since Lisa and I worked at Wizards on Dungeons & Dragons and were deeply enmeshed in the decisions about how to create the OGL and what material to license with the OGL, I think we're uniquely qualified to have opinions about where those gray areas lie.
I'm comfortable with using things like the good/evil & law/chaos alignment matrix, and hit points and armor class, and various tests that mechanically work like a saving throw or a skill check, and other such low-level mechanics. That's the stuff I'm pretty confident cannot be copyright. I'm much less comfortable with enumerating the specific list of features a character gets for taking levels in specific classes, for example. So we built a game system that has a completely different mechanic for assigning abilities to characters that works nothing like D&D.
We are also going to use a real-time combat mechanic. Much of the combat system in D&D and Pathfinder is defined by the fact that it is not conducted in real-time. Since we are using real-time, we will therefore have a very different combat engine than D&D or Pathfinder tabletop, and thus we avoid another large area of rules that could entangle us in the question of infringement.
And of course the economic system including harvesting, crafting, and retailing in the MMO will be wildly different than that in the tabletop realm. The D&D and Pathfinder "economics" are a thin veneer of hand waving designed to obfuscate the fact that there's no rational market economy underneath them; they're set dressing for heroic adventuring power management, not a way to determine what the market price for a +2 flaming longsword should be in any given locale. The MMO economics absolutely will be.
