Can the OGL and the "rules cannot be copyrighted" mechanic used by OSR systems work side by side?


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Nathanael Love wrote:

Well, I think its obvious that if they could outright rescind the OGL they would-- they discontinued the d20 license and when they redid 4th edition's version it was much stricter, and we still haven't seen if there wil be or what the compatibility license will look like for Next.

But fortunately for us, the genie is out of the bottle.

Quite. That non-revokable clause in the OGL is *very* neat. The whole thing is somewhat of a work of art :)


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Pathfinder Rulebook Subscriber
Steve Geddes wrote:
RJGrady wrote:

Bringing "ethics" into this is a opening a big can of wyrms. Whether or not someone wishes their work to be assimilated into mass culture or not, we are talking about, firstly, legal issues, and second, practical issues. I know how the Candy Crush people [i]felt[/] about other people using the word "candy" in computer games, and frankly, it doesn't matter how they felt. They didn't, and don't, own the word candy.

It is completely legitimate to ask whether something is likely to be infringing (though a lawyer can give you a more bankable, thought not necessarily more correct, answer). Whether or not it's considered "rude" depends on a lot of things, including context and the personal opinions of everyone involved. It can also be considered rude to make use of a lot of OGC while offering little in return. So, rather than dwell on such murky matters, I would suggest we stick with practical comments.

I don't think the issue if including something specifically declared not open content in an OGL product s murky at all, to be frank.

The OGL allows you to use open game content and requires you to specify what is open in your own work and what isn't. I think that's a very clear statement as to how it should be used - what's the point in creating the segregation if both types of content can be used anyway?

Ethics may be difficult, but I still think they're important.

Ethics are important. However, it's a mistake to assume that everyone who is acting ethically is going to come to the same conclusions as to what is ethical. I am going out of my way not to initiate a drag-out discussion of what I think of the "ethics" of modern copyright law.

So, you are of course correct. There is nothing murky at all about trying to get around the fences set up by others. If the OGL is just the words in it, and we need not examine the motives of people who make the declarations in their products, then we also need not weigh the motives of people who take those declarations at face value. If someone makes the argument that what is important is the declarations, that the OGL be taken at face value, and there is no reason to search for ambiguities... then there is absolutely no problem with someone imitating any and all PI, provided they do not actually infringe it.

The purely black-and-white argument in fact sides with anyone looking to look for "loopholes." Anyone who has ever dealt with a rules lawyer should instantly understand the principle that pure lawfulness does not offer any charity. What is good for the goose is good for the gander. If the new publisher simply, and absolutely, cannot infringe the PI, then the previous publisher simply and absolutely cannot object as long as they do not... however much they may feel affronted, personally, by what the new publisher has "gotten away with." They of course "get away with" every right they have ever asserted, whether they deserve them or not.

So to reiterate, the whole thing works better in a friendly atmosphere, and black-and-white, subjective statements of what is ethical or "polite" are potentially out of place. The whole things works according to a process of consensus, not what you or I or anyone else might prefer, though ultimately some determinations come down to the opinion of one or more judges in specific matters. Rather than resorting to judgmentalism and assuming all right-minded folk are on the same side, I think the proper response to a question about the OGL is to answer it truthfully.


RJGrady wrote:


So to reiterate, the whole thing works better in a friendly atmosphere, and black-and-white, subjective statements of what is ethical or "polite" are potentially out of place. The whole things works according to a process of consensus, not what you or I or anyone else might prefer, though ultimately some determinations come down to the opinion of one or more judges in specific matters. Rather than resorting to judgmentalism and assuming all right-minded folk are on the same side, I think the proper response to a question about the OGL is to answer it truthfully.

Something I'd probably add to this:

If I see a product that's basically not much else than a blatant rip-off of non-OGL material, that's going to put me as a customer off buying it. I'd imagine that many others feel the same way, and that in itself is probably why we haven't seen that book of recreated non-OGL spells yet - the average gamer would (hopefully) look down on it somewhat disdainfully.

My point being that customer consensus itself ought to act as a half-decent control here. If someone slips a variant on an "old favorite" monster or spell in here or there, it tends to make us sigh nostalgically. If someone tries to rip off an entire product, we tend to sigh sadly instead ;) (At least, that's how I tend to work...)


RJGrady wrote:

Ethics are important. However, it's a mistake to assume that everyone who is acting ethically is going to come to the same conclusions as to what is ethical. I am going out of my way not to initiate a drag-out discussion of what I think of the "ethics" of modern copyright law.

So, you are of course correct. There is nothing murky at all about trying to get around the fences set up by others. If the OGL is just the words in it, and we need not examine the motives of people who make the declarations in their products, then we also need not weigh the motives of people who take those declarations at face value. If someone makes the argument that what is important is the declarations, that the OGL be taken at face value, and there is no reason to search for ambiguities... then there is absolutely no problem with someone imitating any and all PI, provided they do not actually infringe it.

The purely black-and-white argument in fact sides with anyone looking to look for "loopholes." Anyone who has ever dealt with a rules lawyer should instantly understand the principle that pure lawfulness does not offer any charity. What is good for the goose is good for the gander. If the new publisher simply, and absolutely, cannot infringe the PI, then the previous publisher simply and absolutely cannot object as long as they do not... however much they may feel affronted, personally, by what the new publisher has "gotten away with." They of course "get away with" every right they have ever asserted, whether they deserve them or not.

So to reiterate, the whole thing works better in a friendly atmosphere, and black-and-white, subjective statements of what is ethical or "polite" are potentially out of place. The whole things works according to a process of consensus, not what you or I or anyone else might prefer, though ultimately some determinations come down to the opinion of one or more judges in specific matters. Rather than resorting to judgmentalism and assuming all right-minded folk are on the same side, I think the proper response to a question about the OGL is to answer it truthfully.

Well said. Perhaps I havent been clear in my position. I think there are two issues - what's right and what's legal.

I definitely agree that my opinion on what's ethical shouldnt carry any more weight than anyone elses and (although I think I'm right, of course) my statements on ethics are subjective. I was genuinely surprised (and still am) that anyone can try and follow the path outlined in the OP and not consider it an ethical issue. Nonetheless, I dont think that me labelling that behaviour as unethical should be taken as a personal attack. It merely means I think the OP (or anyone who thinks including boneshatter in an OGL work without permission or via some other license) is making an error. Ultimately, if I think you're wrong, I'm going to say so. I'd like to think I can offer criticism in that regard without being unfriendly.

In terms of the proper response to a question about the OGL, I addressed that in my earlier posts. I think the correct response is to refer the questioner to a lawyer. I'm an accountant in Australia and I know for a fact that if someone here asks me what the law is in a certain area and I express an opinion (even qualified by "I'm not a lawyer") then I am guilty of providing unlicensed legal advice.

Grand Lodge

Pathfinder PF Special Edition, Starfinder Roleplaying Game Subscriber
Nathanael Love wrote:

Well, Paizo certainly has the money for legal advice for the character creation rules they made up to fill in what was left out of the OGL.

Also, as I recall Monte Cook's Arcana Unearthed was one of the first complete alternate PHs to come out, anmd I'd guess he knew whether that was something the architects behind the OGL wanted to let happen or not.

White Wolf's Art Haus line had done this several years before Pathfinder, one for Sovereign Stone, and at least two others, Everest OGL, and World of Warcraft OGL.

That's not counting D20 based lines in other genres, such as Mutants and Masterminds supers rpg.


Pathfinder Rulebook Subscriber
Steve Geddes wrote:
I was genuinely surprised (and still am) that anyone can try and follow the path outlined in the OP and not consider it an ethical issue.

Well, it is an ethical issue. But not everyone is operating from the same premises. For instance, if you hold the opinion that a spell name that is a compound of two common English words used literally is not copyrightable, and describing a kind of spell without illegally appropriating any text isn't infringing, then arguably a publisher who would choose to pursue a (in your opinion) baseless lawsuit would take on the character of a bully, and to an extent, a thief.

Bluntly, copyright was intended to prevent you from simply selling another person's work as your own, not to prevent similar works from being produced. In fact, the whole concept of literary genre is founded in the idea that people do "take" ideas developed by others and use them.

I am of course not advocating any particular course of action. And doing something just because you can is the worst reason to do something. But I get annoyed when people cheer for the boogeyman.

To be clear: the OP wasn't setting out to copy or make money off the Ghostwalk product, they were just interested in emulating one little item from an existing work. You know, like:

- A world predominantly populated by humans, elves, dwarves, and halflings, with orcs and trolls lurking in the wilder places
- Ice bears who forge magical armor
- Regenerating green trolls
- Mafia-like "thieves's guilds" controlling populous towns and cities, acting almost as a second government
- Wizards using ancient spells so powerful and arcane they can only encompass the spell matrix for a few at a time in their heads
- "Vorpal" swords that cut off heads
- Elder races living below the Earth, of an ancient and eldritch fashion of life, with strange rites and a diffident hostility toward surface-dwellers
- Werewolves wounded by silver weapons
- Excellent Prismatic Sprays
- IOUN stones


RJGrady wrote:
To be clear: the OP wasn't setting out to copy or make money off the Ghostwalk product, they were just interested in emulating one little item from an existing work.

My objection isnt that.

My objection is that the OP was trying to use the OGL which includes a requirement you only use material designated as open content. Then he wanted to include content specifically called out as not open content. I think it would be very different if he wasnt utilising the OGL. Given that he is seeking the protection offered by the OGL, what's the point in having the distinction between open content and content which isnt open if there isnt any functional difference?

Which boogeyman do you think I'm cheering for, exactly?


Pathfinder Rulebook Subscriber

Well, let me ask you this. How much does this bother you?


Scout Archetype
for rogue


RJGrady wrote:

Well, let me ask you this. How much does this bother you?


Scout Archetype
for rogue

Not much.


Pathfinder Rulebook Subscriber

Ok, so, help me get to where you are. Why does emulating a specific spell bother you more than emulating a character class?


I have no problem with "emulation" (or not much, anyhow) and there's an alternative already presented in this thread of open game content that does give him what he wants without raising any ethical issue in my mind - boneshatter, or whatever it was.

The ethical objection I'm raising (or querying, if you prefer I avoid judgementalism) is specifically referring to the OP's first post:

"This book contains within it a spell called "Bonerattle" which I would quite like to use in my adventure. Although written for 3.5 D&D it hardly needs any conversion. Could I include it in my adventure using the OSR-style copyright exclusion principle and, if so, what should I be careful to do or not do?"

He isnt emulating anything, nor adapting or being inspired. He's speaking of using material specifically called out as not open game content without permission.

To reiterate my question to you:

What was the effect of the publisher declaring Bonerattle to not be open game content? If it can be used in a subsequent OGL product anyway what is the difference between open game content and material which isnt open game content?


Wait, what is up with the Scout Archetype? What is it emulating so egregiously?


The Scout alternate/variant rogue class from 3.5 ?


Is the scout there? I can't see it. :(


The Scout base class from Complete Adventurer who instead of sneak attack got extra damage anytime they moved 10 ft. or more in a round.


Steve Geddes wrote:
Is the scout there? I can't see it. :(

Like Nathanael said. It's also got some options in the PHB II, and most importantly for the purposes of this discussion, is featured in books which have no open content (as is declared in the front of the book).

That having been said- The Scout Archetype is technically not an alternative class (although how they managed the same with the Ninja, I dunno). But can someone really put a copyright on the words 'scout' or 'ninja'? Probably not on the words themselves, nor on the basic ideas behind those persons. But I think 1:1 copying of all relevant mechanics, flavor, etc. would be a no-go. Or maybe they just got some sort of special permission? Without knowing what goes on behind the closed doors, we may never know (unless we ask, and someone is kind enough to give us an answer).

Dark Archive

Steve Geddes wrote:

I have no problem with "emulation" (or not much, anyhow) and there's an alternative already presented in this thread of open game content that does give him what he wants without raising any ethical issue in my mind - boneshatter, or whatever it was.

The ethical objection I'm raising (or querying, if you prefer I avoid judgementalism) is specifically referring to the OP's first post:

"This book contains within it a spell called "Bonerattle" which I would quite like to use in my adventure. Although written for 3.5 D&D it hardly needs any conversion. Could I include it in my adventure using the OSR-style copyright exclusion principle and, if so, what should I be careful to do or not do?"

He isnt emulating anything, nor adapting or being inspired. He's speaking of using material specifically called out as not open game content without permission.

To reiterate my question to you:

What was the effect of the publisher declaring Bonerattle to not be open game content? If it can be used in a subsequent OGL product anyway what is the difference between open game content and material which isnt open game content?

On a semantic / ethical point - asking a question or speaking of doing anything is not itself unethical, particularly when the person asking the question (i.e. me) is asking about the ethics and legality of it.

In fact, when you look at those early posts, when people said it might not be a good idea my answer was ok, fine, I wont do it.

Having said that, the legal / ethical position isn't clear to me, which is why this thread is so interesting. I was actually quite surprised both by the legality and the ethics of what OSR did, however given that they paved the way then I think anybody that wants to do something similar should be bound by the same ethical / legal considerations.

The original matter would become ethical if we were to decide that it was unethical to do so and I said screw it, I'm going to do it anyway. Then you could accuse me of being unethical - but not before.

Richard


richard develyn wrote:
On a semantic / ethical point - asking a question or speaking of doing anything is not itself unethical, particularly when the person asking the question (i.e. me) is asking about the ethics and legality of it.

Sure. Semantic point conceded. I was astonished anyone would consider acting as you suggested whilst not considering it an ethical issue (which was, I thought, your position - apologies for misunderstanding).

There's definitely nothing unethical about asking about it. There's only an ethical issue if you actually do it.

I don't think I've actually called you unethical, have I? I didn't mean to. My only ethical claim is that including bonerattle in an OGL product without permission is unethical, regardless of legality.


Changing Man wrote:


That having been said- The Scout Archetype is technically not an alternative class (although how they managed the same with the Ninja, I dunno). But can someone really put a copyright on the words 'scout' or 'ninja'?

Well, the dangers of taking legal advice on the internet aside, it's very difficult to copyright single words, but it's very easy to copyright them in a particular context.

Quote:
Probably not on the words themselves, nor on the basic ideas behind those persons.

The problem is that what you consider to be the "basic ideas" are probably different from what someone else's opinion. Or, perhaps more relevantly, someone else's lawyer's opinion. There's a maxim in IP law that "engineers think everything is obvious; lawyers think nothing is obvious," and from the work I've both seen and done, it's true.

The idea that a "scout" gets some sort of situational bonus damage is not (IMHO) implicit in the ordinary English meaning of the word. The idea that a "scout" should be a type of "rogue" instead of a type of "ranger" is not at all obvious to me. The idea that scouts should be particularly fast-moving (as opposed to stealthy, for example) is not at all obvious to me.

So while one probably couldn't copyright the word "scout," one could certainly copyright the idea of a rogue variant "who [...] got extra damage anytime they moved [a certain distance] or more in a round."

Similarly, a ninja as a vaguely Japanese assassin in black pajamas is well-established. The idea that the ninja uses the mechanics of a rogue and gets bonus damage that scales with level when it strikes from invisibility is not, and almost certainly copyrightable.

And as a rather silly example,.... the idea that a kensai is a kind of magic wielder instead of a really good swordsman like Miyamoto Musashi is absolutely original.

Dark Archive

Steve Geddes wrote:
richard develyn wrote:
On a semantic / ethical point - asking a question or speaking of doing anything is not itself unethical, particularly when the person asking the question (i.e. me) is asking about the ethics and legality of it.

Sure. Semantic point conceded. I was astonished anyone would consider acting as you suggested whilst not considering it an ethical issue (which was, I thought, your position - apologies for misunderstanding).

There's definitely nothing unethical about asking about it. There's only an ethical issue if you actually do it.

I don't think I've actually called you unethical, have I? I didn't mean to. My only ethical claim is that including bonerattle in an OGL product without permission is unethical, regardless of legality.

Fair enough. Fair do's. Let's kiss and make up :-)

My ethics are quite strong, actually, and despite what some people think I am not being the least bit machiavellian in starting these discussions. I actually thought we'd be finished after post #5 !

I do actually think, now, having read all these discussions, that my original question was moot. I think as a 3pp you have three considerations working side by side: your agreement with Paizo governed by the Pathfinder compatibility licence, your agreement with OGL producers / products named in your section 15 which is governed by the OGL, and standard copyright laws for everything else. You don't opt in and out of this - you have it whether you like it or not.

There is clearly, however, some unease about what the OSR crew did and nervousness about seeing these techniques used elsewhere.

Personally I think that there has to be some level of reasonableness about what a creator can protect and what he can't. This is why I keep going on about copyright rules as being this well established dividing line between protecting the current creator without stifling future ones.

In my opinion, anything which is a reasonably obvious use of the rules shouldn't be protected. To be honest with you, I think that Bonerattle falls almost 90% or more in that category. This doesn't mean I think we should walk over the rights of the creators of that spell, it's just that I don't think they, or me, or anyone else, should have the right to protect things like this. Just because you are the first person to write something down doesn't mean you have to the right to prevent anyone else using it. Just imagine if people were allowed to do that sort of thing with names, or plots - pretty soon we'd all be called Zigwifiliwig the 73rd and the fiction publishing industry would consist of 32 books.

But, you know, I'm not going to act upon this until the debate is over, and then I will do whatever the right thing is. The key point I think now is an examination of how OSR came about, whether it is legally and ethically correct and possibly whether we all currently live with the sword of Wizard-of-the-coast-ocles hanging over our heads and should be careful about saying anything in case their legal department cuts the thread.

Richard


You could always try and ask for special permission from WoTC- maybe they'll even say, 'sure ok, for this one spell, you have our permission'. I mean, they don't necessarily have to be ogres about everything (Shrek variety or otherwise). And if they say, 'thanks for asking, but we'd rather you not', then you just devise your own inspired-by-yet-unique version. And if they don't bother responding at all? Play it safe and assume that no answer is a 'no' answer. And who knows? Maybe they'll even grant permission to use even more stuff from that work for your project! It never hurts to ask :)


Richard, you realize that practically every* OSR rules system out there is published under the OGL, right? Because on a certain level the OGL and "rules can't be copyrighted" standard do work hand in hand. Armor Class can be used under the OGL, but there's nothing in the OGL that demands that AC be ascending, so systems like Labyrinth Lord or Swords and Wizardry aren't getting away with copyright infringement, they're using the material freed up by the OGL to emulate previous editions of D&D. They don't have Displacer Beasts, Carrion Crawlers or Beholders because those are copyrighted by WotC, the same way Paizo has replaced "Mordenkainen" with "Mage's" in various spell names. That's done to work within the OGL by not infringing on WotC's product identity.

If you're so dead set against hiring a lawyer, at some point you have to re-title it Bonerattle as Bonespur, replace all the references to bone rattles in the spell description with references to bone spurs, publish, and hope you don't get sued. But here's the thing: if you're unwilling to hire a lawyer "hope you don't get sued" is as certain as your legal state of affairs is ever going to get. A consensus on these on these boards in completely irrelevant outside these boards, and has no legal weight whatsoever.

*Every one that I'm familiar with at any rate, there have been enough published in the last few years that I can't claim to have seen them all.

Liberty's Edge

A desire to publish other people's works as one's own (as this question indicates) is quite distasteful and would certainly cause me not to purchase your products if I discovered that was what you were doing. Beyond that, I already own ghostwalk, why would I pay for content that I already own.

Instead of trying to figure out what you can get by with legally, create something new and you won't have any worries or any need of lawyers and you won't risk alienating your cliental.

Dark Archive

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ShadowcatX wrote:

A desire to publish other people's works as one's own (as this question indicates) is quite distasteful and would certainly cause me not to purchase your products if I discovered that was what you were doing. Beyond that, I already own ghostwalk, why would I pay for content that I already own.

Instead of trying to figure out what you can get by with legally, create something new and you won't have any worries or any need of lawyers and you won't risk alienating your cliental.

My question does not in any way indicate a desire to publish other people's work as my own. Honestly, I've just been through this. The only thing that asking a question indicates is a desire to get to an answer.

I'm not even that interested in the Bonerattle spell. I just used it as an example.

Can we please try to keep to the issues and not descend into ad-hominem attacks.

Richard


If you're question is really that basic, then, no, you aren't allowed to use anything classified as product identity; if you think that the fact that rules can't be copyrighted would allow use of anything designated product identity, you're confused about the differences between OGL material, Product Identity material and rules systems.

An IP lawyer could explain this to your satisfaction in the smallest increment of billable hours offered, but threads like this are just useless to you. I personally don't have any problem with emulating/re-skinning/whatever the hell you want to call it, but the opinion of Hitdice on the Paizo message boards will be completely irrelevant when WotC files a cease and desist order against you, you see?

Grand Lodge

Pathfinder PF Special Edition, Starfinder Roleplaying Game Subscriber
Thanael wrote:
The Scout alternate/variant rogue class from 3.5 ?

Given that Wizards who as Jacobs describes keeps a VERY CLOSE eye on every book Paizo puts out, sees no reason to object, neither should I.

And yes, they DO pay attention to these things, as the founders of the Legends of the Shining Jewel found out.


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Hitdice wrote:

They don't have Displacer Beasts, Carrion Crawlers or Beholders because those are copyrighted by WotC, the same way Paizo has replaced "Mordenkainen" with "Mage's" in various spell names. That's done to work within the OGL by not infringing on WotC's product identity.

I'm not familiar enough with the OSR products to comment. My understanding is that the "Mage's" spells were released that way in the SRD (the material that was made available via the OGL); WotC intentionally created a generic version that would be available without opening up their PI.

Liberty's Edge

richard develyn wrote:
ShadowcatX wrote:

A desire to publish other people's works as one's own (as this question indicates) is quite distasteful and would certainly cause me not to purchase your products if I discovered that was what you were doing. Beyond that, I already own ghostwalk, why would I pay for content that I already own.

Instead of trying to figure out what you can get by with legally, create something new and you won't have any worries or any need of lawyers and you won't risk alienating your cliental.

My question does not in any way indicate a desire to publish other people's work as my own. Honestly, I've just been through this. The only thing that asking a question indicates is a desire to get to an answer.

Actually, it does, if you do more than just scratch the surface. People very rarely do things without a reason behind it. I could give you dozens of examples, but we both know there's a reason for asking the question you did.

Also, you seem awfully defensive. I said I wouldn't publish your works if that is what you were doing, I never claimed it was what you are doing. So why are you so defensive if your intentions are so honorable?

Finally, if you feel that my post, either the previous one or this one is an attack, please, feel free to use the report feature. If the powers that be believe it to be an attack, such as an ad-hominen I've no doubt that they'll take care of it.


richard develyn wrote:

My ethics are quite strong, actually, and despite what some people think I am not being the least bit machiavellian in starting these discussions. I actually thought we'd be finished after post #5 !

I do actually think, now, having read all these discussions, that my original question was moot. I think as a 3pp you have three considerations working side by side: your agreement with Paizo governed by the Pathfinder compatibility licence, your agreement with OGL producers / products named in your section 15 which is governed by the OGL, and standard copyright laws for everything else. You don't opt in and out of this - you have it whether you like it or not.

There is clearly, however, some unease about what the OSR crew did and nervousness about seeing these techniques used elsewhere.

Personally I think that there has to be some level of reasonableness about what a creator can protect and what he can't. This is why I keep going on about copyright rules as being this well established dividing line between protecting the current creator without stifling future ones.

In my opinion, anything which is a reasonably obvious use of the rules shouldn't be protected. To be honest with you, I think that Bonerattle falls almost 90% or more in that category. This doesn't mean I think we should walk over the rights of the creators of that spell, it's just that I don't think they, or me, or anyone else, should have the right to protect things like this. Just because you are the first person to write something down doesn't mean you have to the right to prevent anyone else using it. Just imagine if people were allowed to do that sort of thing with names, or plots - pretty soon we'd all be called Zigwifiliwig the 73rd and the fiction publishing industry would consist of 32 books.

But, you know, I'm not going to act upon this until the debate is over, and then I will do whatever the right thing is. The key point I think now is an examination of how OSR came about, whether it is legally and ethically correct and possibly whether we all currently live with the sword of Wizard-of-the-coast-ocles hanging over our heads and should be careful about saying anything in case their legal department cuts the thread.

As I said, if you want a legal opinion, you should ask a lawyer. (That's got nothing to do with fear of litigation, it's to do with getting a decent answer).

I think the ethical point is about recognising that you gain something with the OGL and that it imposes conditions on you if you use it. The conclusions one may draw from copyright laws are sidelined in that OGL contributors have said "if you follow these rules, you can use our stuff". You're given a level of certainty and protection that isn't available to you if you publish relying solely on copyright law for protection. You have access to a pretty large amount of stuff other people have created. Pushing the envelope to try and include content those contributors have declared not open is trying to use material they've created and then explicitly asked you not to use.

As I've asked before - what's the point in declaring bonerattle not open content if it can still be used in an OGL compliant work alongside the content they've created which is open?


Wyntr wrote:
Hitdice wrote:

They don't have Displacer Beasts, Carrion Crawlers or Beholders because those are copyrighted by WotC, the same way Paizo has replaced "Mordenkainen" with "Mage's" in various spell names. That's done to work within the OGL by not infringing on WotC's product identity.

I'm not familiar enough with the OSR products to comment. My understanding is that the "Mage's" spells were released that way in the SRD (the material that was made available via the OGL); WotC intentionally created a generic version that would be available without opening up their PI.

You may be right about that, I always forget that the SRD is different from the printed rules. Holey moley, it's almost as if I should consult a lawyer before publishing anything! :P

My point (which I never actually stated in one sentence) is that a spell called mage's magnificent mansion with a B/X style spell listing which uses only terms defined as open content by the OGL is not an example of copyright infringement, whereas a spell called Boneshatter (or any other Product Identity name) which complies with all other aspects of the OGL still has a title that is an example of copyright infringement. (Or something, not a lawyer here.)


It's a clear breach of the OGL, anyhow (presuming bonerattle is IP). You're not allowed to use someone else's IP in an OGL product without a separate license to do so.

Digital Products Assistant

Removed a couple posts, let's dial back the grar here.


Steve Geddes wrote:
Is the scout there? I can't see it. :(

ah yes sorry, it's from Complete Adventurer, and not on the SRD, hence the relevancy to this thread..,

Dark Archive Bella Sara Charter Superscriber

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If you're using the OGL, copyright law is irrelevant. Copyright law comes into play when you have two parties without an agreement between the two of them and you're trying to determine their respective rights. If the parties have an agreement (let's say, for the sake of argument, a license), then the terms of the agreement control. If the agreement contains a provision stating that you won't use a third party's Product Identity without their consent, and you use that third party Product Identity without their consent, the license can be terminated irrespective of whether the use would be okay under copyright law. If the license is terminated, then you're back in the merry old land of copyright law, which is a substantially less safe place to be.

I play a lawyer on the internet, but this isn't legal advice.

Silver Crusade

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Pathfinder Adventure Path Subscriber
Sebastian wrote:


I play a lawyer on the internet

You should refer to yourself as a "legal wrangler" or "purveyor of litigious waters" instead. Safer that way!


Sebastian wrote:

If you're using the OGL, copyright law is irrelevant. Copyright law comes into play when you have two parties without an agreement between the two of them and you're trying to determine their respective rights. If the parties have an agreement (let's say, for the sake of argument, a license), then the terms of the agreement control. If the agreement contains a provision stating that you won't use a third party's Product Identity without their consent, and you use that third party Product Identity without their consent, the license can be terminated irrespective of whether the use would be okay under copyright law. If the license is terminated, then you're back in the merry old land of copyright law, which is a substantially less safe place to be.

I play a lawyer on the internet, but this isn't legal advice.

What I admire most about people who play lawyers on the Internet is their ability to distil complicated situations down to the simple, important elements. This is an excellent illustration of why I think you should consult a lawyer about this stuff.


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So, with all the discussion so far, it's probably time for a summary:

Rules cannot be copyrighted.
An individual expression of the rules can (e.g. the text describing it), but the underlying idea cannot. If I put a rule in a product stating that to move around the board you roll two dice and move that number of squares, copyright only applies to the specific text I write in that rulebook. Anyone else can use the same rule by rewording it.

It's important to remember that "rules" here means the idea of how the rule works, not the descriptive text itself, and especially not "rulebooks" - the latter two are very, very copyrightable.

Terminology is copyrightable
If I refer my rule of rolling two dice and moving that number of squares around the board as "The Cool Movement Track of Doom", then chances are my claim to that specific phrase can hold up in court. There's no real hard and fast rule here, unfortunately, as it's still one of those murky areas where it could go one way or the other depending on exactly how unique a term or phrase I happen to use, and how blatantly someone else tries to copy it. The opinion of the judge on the day matters, as does how well my lawyer puts my case across, and how well your lawyer is able to weedle you out of it.

Spell names, for instance, are pretty easily covered here.

You can make your game with exactly the same rules as mine, written in your own words, and call the above rule "The Amazing Propulsion Range of Death".

Rules can be Patented

.... That is, unless I patented that rule. If I did that, there's no way around it, you just have to write a brand new rule of your own that works differently to mine.

Thankfully, I'm unaware of anyone having patented any RPG rules. There may well be some I'm unaware of, of course.

Terminology can be Trademarked

"Dungeon Master" for example, is a registered trademark of Wizards of the Coast, used here by me right now without permission for purely illustrative purposes (and for the truly curious, I'm able to do that through the nominative usage clause of Fair Use, as I'm only using it to refer to the term and its source and not trying it use it on my own product here.) We can make our own variants that mean the same thing, but we can't use that term. Always check for other trademarked terms in the products you're utilizing for inspiration.

The OGL gives you restrictions as well as rights
As has been mentioned, under the OGL you agree not to use other companies Product Identity, which means checking their product for what exactly they've claimed as Product Identity. Even if copyright law would let you get away with it, by using the OGL to licence parts of a work you've also agreed to some additional restrictions as well. The OGL works two ways - both to protect and sublicence different parts of the licensed work.

Mostly, we tend to use the OGL in order to make use of terminology that would previously make us the subject of a copyright claim. For example, setting up a game in which the attributes are Strength, Intelligence, Dexterity, Wisdom, Constitution, and Charisma, and in which your level of protection is known as an "Armor Class" could quite possibly be treading on somewhat murky legal ground. By using the OGL, we (and the OSR guys especially) are able to use these terms in our works with a degree of protection (and yes, you'll need a lawyer to explain exactly how much of a degree) that we've been licensed the right to do so.

In addition, the OGL also gives us not only terminology but access to 95% of the base rules of the 3/3.5e, as those rules have been declared open content in the respective SRDs. Pathfinder goes a little further and makes it 100% of its base rules (sidenote: if you also use the Pathfinder Compatibility License, you may not produce a complete working game using the Pathfinder rules. If you only use the OGL, however, you can.)

What the OGL doesn't give you
This one's a bit of a pitfall for first-time authors, so I'm adding it in here because I've seen too many people get hurt by it. The OGL doesn't give you the right to reference other products, outside of section 15 obligations. You can't refer your readers to someone else's product without that publisher's permission, even if it would seem like a nice thing to do at the time ("hey, this is a great place to use The Leaping Idiot character class by Hairy Bert Publishing" - sorry, you can't do that, the best you usually can do is reprint the rules to that class they're available to you through the OGL. You can, of course, contact Hairy Bert and request permission, and many 3PPs are more than happy to agree if it results in promotion of their work from within yours.)

What the OSR people did

Here's the nitty-gritty part that answers the OP's original question:

To the best of my understanding.

The OSR people used the terminology available via the 3/3.5 SRDs through the OGL, as it matched the terminology from previous versions of the game (thus avoiding potential trademark/copyright problems with those terms). They then used the rules from those previous versions, rewritten to avoid copyright problems (in some cases they may also have been able to use the OGL'ed 3.5 rule if it matched the original closely enough). Finally, they had to ensure they'd filed off the serial numbers in the case of any terminology not provided through the SRD/OGL.

So, to put it very basically - they used the OGL in order to be able to reference the names of ability scores, hit points, armor class, and saving throws. They then used the fact that "rules cannot be copyrighted" to rewrite the rules from their desired edition of the game in their own words. Then they found certain terms were not granted via the OGL, and had to substitute similar but different terms in a few cases.

And the most important rule:

Don't be a jerk
Bear in mind this is people's livelihoods, and don't try to come out with a product that directly lifts all the content from and then replaces someone else's, unless you're doing so purely through the OGL. Filing the serial numbers off a non-OGL product currently still in print (and I count PDF availability here too) isn't going to make you any friends :)

While doing the same thing with an OGL product does just as much damage to the original publisher, it's seen as somewhat more acceptable due to the fact said publisher knew (or should have known, at least) what they were getting into when they started doing OGL products, and should be prepared for OGL clones of their OGL product to spring up here and there.

Disclaimer and References
I'm not a lawyer, I don't claim to be. I have, however, worked in this industry for enough years (and been poking at the OGL in particular ever since it was publicly available) long enough to be familiar with what I as a writer can and cannot do within the confines of the OGL without getting my publisher into hot water. I still wouldn't want to push those confines myself without getting proper legal advice, but I believe I know enough to know what's absolutely okay within the OGL, what absolutely isn't okay, and what lies in the big grey area of "well, I need to get some proper legal advice on this".


Steve Geddes wrote:
Sebastian wrote:

If you're using the OGL, copyright law is irrelevant. Copyright law comes into play when you have two parties without an agreement between the two of them and you're trying to determine their respective rights. If the parties have an agreement (let's say, for the sake of argument, a license), then the terms of the agreement control. If the agreement contains a provision stating that you won't use a third party's Product Identity without their consent, and you use that third party Product Identity without their consent, the license can be terminated irrespective of whether the use would be okay under copyright law. If the license is terminated, then you're back in the merry old land of copyright law, which is a substantially less safe place to be.

I play a lawyer on the internet, but this isn't legal advice.

What I admire most about people who play lawyers on the Internet is their ability to distil complicated situations down to the simple, important elements. This is an excellent illustration of why I think you should consult a lawyer about this stuff.

Yep :) At the end of the day advice on this thread is only really usable as a shortcut when consulting a lawyer, to cut down on research time. It means it's easier to have a vague idea what you're talking about when you visit said lawyer, and be able to ask more direct questions and spend less time with them than if you turned up with a pile of cash and said "Well, there's these licenses, what precisely can I do with them?"

Instead, you can turn up to the same lawyer with a substantially smaller pile of cash, a claim that someone in this thread has made ("you can do this...") and ask the far simpler question "Is it true, I can do this without any legal issues?"


And re-reading what I wrote, "Terminology is Copyrightable" - I should have clarified that is the case only where said terminology consists of a string of words lengthy enough to be copyrightable. Otherwise you're in trademark territory for anything shorter.

President, Jon Brazer Enterprises

Sebastian wrote:

If you're using the OGL, copyright law is irrelevant. Copyright law comes into play when you have two parties without an agreement between the two of them and you're trying to determine their respective rights. If the parties have an agreement (let's say, for the sake of argument, a license), then the terms of the agreement control. If the agreement contains a provision stating that you won't use a third party's Product Identity without their consent, and you use that third party Product Identity without their consent, the license can be terminated irrespective of whether the use would be okay under copyright law. If the license is terminated, then you're back in the merry old land of copyright law, which is a substantially less safe place to be.

I play a lawyer on the internet, but this isn't legal advice.

There. Forget everything I said and listen to the pony. This is why getting a laser is a good idea. Some random idiot on the internet (like me) could have really steered you wrong.

Liberty's Edge

Trademark. You trademark names. To quote the US Copyright Office FAQ:

Quote:

How do I copyright a name, title, slogan, or logo?

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, 800-786-9199, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

I don't think that copyright would ever apply to spell names or monster names or anything of the sort, unless you're going ridiculously long. "bonerattle" is not copyrightable, and I believe that the way WotC has not actively used it in a decade and then only as a small part of one book would preclude them from winning on a trademark claim.

Steve Geddes wrote:
What was the effect of the publisher declaring Bonerattle to not be open game content? If it can be used in a subsequent OGL product anyway what is the difference between open game content and material which isnt open game content?

It protects anything that's copyrightable that isn't open game content. Fiction is pretty classic copyrightable material. Games rules are a lot more hairy. There haven't been a lot of precedent, but I would believe if you take what the players do as akin physics rules, and what the books say as akin to (clearly copyrightable) books about physics, you might get the legal distinction. OGC is also basically non-trademarkable, since you have to exert quality control over your licensor to not lose a trademark you license out.

Personally, I don't think bonerattle has much legal protection; the idea of rattling someone's bones is not original in the least, nor calling it magic and adding on a mechanical damage amount doesn't make it more original. I'd rename it, avoid any literal text and play with the numbers, personally, to stay legally clear.

(And, yeah, amateur lawyer who is not giving legal advice, and I'm more familiar with copyright rules then trademark.)


prosfilaes wrote:
Steve Geddes wrote:
What was the effect of the publisher declaring Bonerattle to not be open game content? If it can be used in a subsequent OGL product anyway what is the difference between open game content and material which isnt open game content?

It protects anything that's copyrightable that isn't open game content. Fiction is pretty classic copyrightable material. Games rules are a lot more hairy. There haven't been a lot of precedent, but I would believe if you take what the players do as akin physics rules, and what the books say as akin to (clearly copyrightable) books about physics, you might get the legal distinction. OGC is also basically non-trademarkable, since you have to exert quality control over your licensor to not lose a trademark you license out.

Personally, I don't think bonerattle has much legal protection; the idea of rattling someone's bones is not original in the least, nor calling it magic and adding on a mechanical damage amount doesn't make it more original. I'd rename it, avoid any literal text and play with the numbers, personally, to stay legally clear.

(And, yeah, amateur lawyer who is not giving legal advice, and I'm more familiar with copyright rules then trademark.)

Do you think Bonerattle counts as IP?


Steve Geddes wrote:
prosfilaes wrote:
Steve Geddes wrote:
What was the effect of the publisher declaring Bonerattle to not be open game content? If it can be used in a subsequent OGL product anyway what is the difference between open game content and material which isnt open game content?

It protects anything that's copyrightable that isn't open game content. Fiction is pretty classic copyrightable material. Games rules are a lot more hairy. There haven't been a lot of precedent, but I would believe if you take what the players do as akin physics rules, and what the books say as akin to (clearly copyrightable) books about physics, you might get the legal distinction. OGC is also basically non-trademarkable, since you have to exert quality control over your licensor to not lose a trademark you license out.

Personally, I don't think bonerattle has much legal protection; the idea of rattling someone's bones is not original in the least, nor calling it magic and adding on a mechanical damage amount doesn't make it more original. I'd rename it, avoid any literal text and play with the numbers, personally, to stay legally clear.

(And, yeah, amateur lawyer who is not giving legal advice, and I'm more familiar with copyright rules then trademark.)

Do you think Bonerattle counts as IP?

Bonerattle the spell name I'd put down absolutely as Intellectual Property, and trademarkable under whatever trademark laws exist. Under UK law, it'd mean simply listing it as a trademark wherever you made such a list in your product, although the actual legal defense of it is basically a judgement call at the time of going to court and depends heavily on how and where it is used, and the uniqueness of the name. That said, I'm not familiar with many cases of someone declaring a spell name as their trademark. As far as copyright goes, it'd be very hard to protect as a single word. Being Intellectual Property by itself guarantees no protection whatsoever, though, unless backed up by either copyright or trademark law.

It's also covered as Product Identity by the OGL. By using that spell name in an OGL product you'd be violating your OGL conditions. If it went to court, there's a chance of defence due to ignorance of the preexisting term and declaring you came up with it on your own, but obviously that would depend on how and where you used the term. If it was against a spell that worked incredibly similarly, it'd be very difficult to defend it. If the spell had a wildly different effect, then it'd be somewhat easier to do.

Notably, the OGL clause "You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity." does not mention that said PI has to come from an OGL product, which means it can technically protect all those zero-OGL D&D books.

So as usual, IP law gives us murky ground that is probably best avoided entering in the first place. The true legal test of such a thing is to push it as far as being taken to court over it, in order to see whether it stands up or not. Obviously, not many people are willing to push it to that degree, and I'd certainly never want to try it myself.

Changing that name to "Marrowshaker" or something similar, and rewriting the rules text to have the same effect (or better yet, a very similar but not precisely matching one) described differently, and you tend to avoid all of the above.

The thing about copyright law, as opposed to trademark law, is that the degree you've copied another product can matter (in the case of derivative works) as well as there being the issue of the fair use clause, along with the exception that copyright doesn't apply at all to "ideas, procedures, processes, systems, etc."

So yet again, murky ground, enter at thy own risk :)

Dark Archive

Thank you very much for your answers.

I just have a couple of questions left.

1. I said earlier that I thought the OGL only applied between your product and any products you cited in your section 15. Reading what you've written above, however, it sounds like I'm wrong. As a provider of OGL material, are you supposed to comply with the Product Identity of ever OGL product every written?

2. As a follow up to the above, what does it mean when an OGL product states that nothing is open content?

Richard


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Essentially, yes--

Open Game License wrote:
3.Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

Here, by using any OGC you agree to all the terms of the license

Open Game License wrote:
5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

Here you agree that anything you contribute new to it is yours to contribute, i.e. you did not plagiarize it from another source (though modifying something that is OGC is allowed since its open content and you would essentially be contributing the modified version and citing the original in your copyright notice)

Open Game License wrote:
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

And here you agree not to use anyone else's product identity, and that appearing in an OGL product does not remove IP rights from product identity.

Open Game License wrote:
13 Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.

And here is what happens if you violate the terms--the license is terminated and all rights to use it and any OGC from any source revoked-- unless you "cure" or correct the breach of the conditions within 30 days of becoming aware of the breach.

So if you used something, say Bonerattle a spell from a product which contains no OGC and which was not published under the license, Wizard could send you a letter stating such, asking for the offending spell's removal and if you did not comply, they could further press the issue and claim termination of the license and you losing the rights to publish under it at all.


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Again, this discussion is very clear on one thing. IP laws as they are do not function, at least not as intended. As was previously said in the thread, everyone has written stuff that someone else could raise a legal stink about. If that someone else does, and has enough money, the choice is surrendering or going out of business, probably including personal ruin, simply due to legal costs and loss of time. For the accused, the best possible scenario is getting legal costs paid, which is still a net loss due to lost time.

Do not believe you can ever feel certain you are steering clear of IP trouble. Even if you ask lawyers (which is not free), all they can tell you is a probable answer, which may give you some protection, but only if you have the money to back it up, then again, it might not. All in all, the deck is stacked in favour of anyone with money. The IP laws have not matured, they have not brought all the great blessings they intended to from the beginning... Because they are intentionally unclear, kept that way to give jobs to lawyers.


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richard develyn wrote:

Thank you very much for your answers.

I just have a couple of questions left.

1. I said earlier that I thought the OGL only applied between your product and any products you cited in your section 15. Reading what you've written above, however, it sounds like I'm wrong. As a provider of OGL material, are you supposed to comply with the Product Identity of ever OGL product every written?

2. As a follow up to the above, what does it mean when an OGL product states that nothing is open content?

Richard

In answer to question 1), complying with the Product Identity of every OGL product ever written just amounts to not using anyone else's proper nouns, that is, their settings, characters, etc. You don't have to do a single thing aside from not use their PI.

Section 15, on the other hand, applies to OGL material you've used in your work. If you're asking if you can cite PI material (like Bonerattle) in section 15 and magically have that become fair use because you've treated it as OGL when it was designated PI in the first place, the answer is no.


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I think it all goes back to what is considered Product Identity by WOTC. If you use "Lolth" in your product, it is considered so and they have sent out cease and desist in the past.

In the case of the spell "Firewater" from 1e AD&D Unearthed Arcana, I don't think this name is under copyright or trademark, however it could be considered Product Identity under the OGL even though Necromancer Games got away with considering it open in their product Eldritch Sorcery. If you try to name a monster "beholder", they will consider it Product Identity and revolve your license under OGL.

In 2006, when OSRIC was released this was the true test for OSR. Technically, "thief" and "magic-user" could be considered Product Identity from 0e, 1e, B/X, etc. WOTC should have required OSR clones to only use "rogue" or "wizard" per SRD; however, they let it go and decided to not pursue it. From this point on, the line has become blurred, in "Adventures Dark and Deep", they do not use "beholder" in the Bestiary, but it contains a spherical monster of multiple eyes on the sphere (no eyestalks) called a "sphere of many eyes" with same mechanics.

I don't think WOTC would consider "bonerattle" any more important than "firewater". However, if you change it and rewrite the description, you protect yourself from WOTC ever be able to consider it Product Identity.


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Pathfinder Rulebook Subscriber

"Bonerattle" is designated as PI, but it also looks like a phrase you could independently devise. It's certainly not copyrightable (it already exists in English) nor is it likely to have much in the way of trademark protection. However, spell names is a class of Product Identity specified in the OGL.

It is not as clear-cut to me as the Scout/skirmish example, and it would make me nervous to attempt. Further, I would definitely not "use" any material from Ghostwalk, open content or no. It would have to be crystal clear I was not "using" (per the OGL) the phrase Bonerattle from Ghostwalk.

Practically speaking, this is a high-risk, low reward scenario, whether you or I or Hasbro considers the matter actionable or not. The best options, in order, in my non-lawyerly opinion are:
- Use existing open content, free and clear, and modify it for your purpose ("lesser bonewhatever") (BEST)
- Use existing open content and shoehorn it to your purposes (don't reference Ghostwalk at all in your declarations, and rewrite Eyebite or something, replacing the spell name with something bone-related and changing other minor details, making it clear where the text comes from)
- Write something whole cloth
- Dare the vagaries and devils of what is essentially contract law in a field riddled with Intellectual Property land mines (WORST)

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