Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[Myrdin Potter]

Copyright gets down to exact words being used in most of the cases I have seen. There are only so many plot ideas at a top level. So many novels have the same basic plot and probably the same structure. The details of how it is done becomes the story and using the same words is violating copyright.

For a game, if mechanics are not subject to copyright, then that line of where does the expression of the mechanic cross into copyright cross the line the the question that, as noted above, that WoTC really does not want answered.

I think that Matt Finch had an almost perfect example in his live stream. If I had a list of magic spells and the name of each exactly matched D&D and were in the same order, well that is a pattern of same words that I would get worried it crosses the line. Even if the individual spell names are clean. Like a magic missile is a self contained description and I doubt it is subject to copyright on a stand alone basis.

I honestly think that if WoTC tested it, a lot of what they have been threatening with may be more a threat of a lawsuit and those costs than an actual victory for them.

 

[Ruin Explorer]

How is Amazon not a platform company? Two of their huge income sources are as a storefront for other creators, and the AWS platform software creators (that they pay hefty sums to use). Chris Cocks left Microsoft in 2016. Microsoft has essentially been a platform company since it's inception (though it's approach to it has evolved). Without 3PP creators making products for DOS or Windows, who would have used them? And who do you think pay for Azure?

MS has only really leaned into being a platform company in the last decade. Prior to that, particularly outside of Azure, it was very keen on "total domination"-type approaches. For decades they basically tried to acquire, eliminate or force under their thumb 3PPs. I mean, if we go back to the '00s and earlier teens, it's very clear what MS wanted was Windows to become increasingly limited and locked-down, to have fewer and fewer 3PP products, and to force people to only use Microsoft-approved stuff. Windows 10 generally represented a movement away from that, but even then stuff like the Microsoft game store attempted to lock things down in a truly idiotic way - there's a reason we're not using Apple, people!* And elements of this "total domination" approach remain.

Amazon is a whole other discussion. AWS is essentially it's own separate business, and Amazon itself has increasingly become about selling Amazon (and Prime), not products. Specific products are increasingly immaterial. You can see this in how the design of the shop has completely languished for most of a decade.

 

[S'mon]

My understanding is that creative expression is pretty central to literary copyright.

To me, a person having their core abilities rated 3 to 18 in six categories of human ability does not look like a creative expression.

But the idea that a person whose WIS is high above-average is apt to be touched by the gods, and hence as they progress in their ability is able to perform this particular sequence of more and more powerful miracles, looks like it might be creative expression.

As is my wont, I'll call on @S'mon to chime in if he has the time.

Well I don't think the bit I bolded would be protectable in copyright. It's still just an idea.

 

[pemerton]

Well I don't think the bit I bolded would be protectable in copyright. It's still just an idea.

That's good news for all the no-longer-OGLers!

If I move along a spectrum of creative expression and story-telling - particular miracles associated with the storm god, for instance - do you think it's possible to give any sense of what the boundary might look like?

 

[S'mon]

If I move along a spectrum of creative expression and story-telling - particular miracles associated with the storm god, for instance - do you think it's possible to give any sense of what the boundary might look like?

Detailed accounts of events as in The Spear (Herbert v Ravenscroft) may be protectable. You can't really take an idea like the D&D Cleric and protect that via copyright. But a detailed concept or character like Greg Stafford's Storm Bull might enjoy some protection.

The main thing to understand is that the limits are very uncertain. I use the Temple Island Tea case as an example in my teaching - Temple Island Collections Ltd v New English Teas Ltd - Wikipedia - they basically got copyright in an idea, AFAICS. I think most lawyers would not have predicted that outcome.

 

[Enrahim2]

MS has only really leaned into being a platform company in the last decade. Prior to that, particularly outside of Azure, it was very keen on "total domination"-type approaches. For decades they basically tried to acquire, eliminate or force under their thumb 3PPs. I mean, if we go back to the '00s and earlier teens, it's very clear what MS wanted was Windows to become increasingly limited and locked-down, to have fewer and fewer 3PP products, and to force people to only use Microsoft-approved stuff. Windows 10 generally represented a movement away from that, but even then stuff like the Microsoft game store attempted to lock things down in a truly idiotic way - there's a reason we're not using Apple, people!* And elements of this "total domination" approach remain.

Just want to say, I think we use "platform company" slightly differently. Your use seem to be close to what I would call "Open platform company". Microsoft has always depended on 3rd party creators to make stuff they benefit from. DOS is a platform for others to use - Had they wanted they could have made it so that only programs "signed" by them could be run with the OS. Not even requiering any kind of certification is actually quite open compared to for instance nintendo with their NES a couple of years after DOS. Nintendo very much still acted as a platform company, but of the "closed" variety. And that more closed platform strategy didn't exactly flop either.

So I can clarify my point: The theory I refered to abovem that creators are critical for a healthy ecosystem around a platform is completely independent on if the platform is open or closed. I guess there are little doubt that WotC are planning to build out D&D beyond as a platform. Even though it is also quite obvious that those at charge envision a much more closed platform strategy than the 5ed platform the only thing that matters is that they want to build a platform. And these people know a platform without creators are doomed.

 

[pemerton]

I use the Temple Island Tea case as an example in my teaching - Temple Island Collections Ltd v New English Teas Ltd - Wikipedia - they basically got copyright in an idea, AFAICS. I think most lawyers would not have predicted that outcome.

Thanks for the reference - I looked at the Wikipedia entry but haven't read the case (I'm a bad student!).

Two things struck me. One, it's copyright in the context of visual arts and not literary works. Second, this bit from Wikipedia: "there was a causal link between the defendants' desire to use an image like the claimant's image and the production of the offending image, that was not disturbed by the search for similar images". That seems like a true description of the situation for some of the emerging no-longer-OGLers.

 

[Greg Benage]

Thanks for the reference - I looked at the Wikipedia entry but haven't read the case (I'm a bad student!).

Two things struck me. One, it's copyright in the context of visual arts and not literary works. Second, this bit from Wikipedia: "there was a causal link between the defendants' desire to use an image like the claimant's image and the production of the offending image, that was not disturbed by the search for similar images". That seems like a true description of the situation for some of the emerging no-longer-OGLers.

English translation, please. Is the idea that the court could say, "You wanted to use SRD 5 so you produced this PRD 5 without trying to distinguish your work from SRD 5"?

 

[pemerton]

English translation, please. Is the idea that the court could say, "You wanted to use SRD 5 so you produced this PRD 5 without trying to distinguish your work from SRD 5"?

Suppose that X, who used to publish RPG material licensed under the OGL v 1.0a and citing a WotC-copyright SRD in its section 15 statement. Now X publishes a RPG in a way that does not conform to the OGL v 1.0a requirements (eg it no longer includes a copy of the OGL v 1.0a together with appropriate OGC, Product Identity and Section 15 notices).

And finally, suppose that WotC commences legal action against X, arguing an infringement of WotC's copyright. It seems that they may not have too much difficulty showing a causal link between X's new publication, and WotC's copyright SRD.

I should add: I'm quoting Wikipedia, not a judge; and a single-judge decision in a British court will probably not carry much weight in argument in a US court.

But now I add further: you've prompted me to go to the report. It can be found here: Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 (12 January 2012)

And here are the relevant passages, based on my quick skim:

40. . . . The defendants do not really have a case of independent design at all. It is not in dispute that Mr Houghton had access to the claimant's work at all material times and that he participated in the creation of the defendants' work in issue in this case. The defendants' work was "for the most part created at his request by Sphere" [paragraph 14(4) of the Defence]. It was created using the photographs Mr Houghton had taken and the iStockphoto image. What is clear is that there is an issue about the extent of the defendants' knowledge of the other publicly available works relied on. . . .

55 On the question of copying, I find that the common elements between the defendants' work and the claimant's work are causally related. In other words, they have been copied. There are two points. First the evidential onus to address a point like that is on the defendants here given the obvious similarities between the claimant's and defendants' work and the undoubted access of the defendants to the claimant's work. Mr Houghton did not refer to any particular element and assert that it came from a source independent of Mr Fielder. Sphere did not give evidence at all.

56. I have referred to the obvious similarities between the works. The defendants went to considerable lengths to point up the differences between the images. They analysed the overall composition which is said to be very different both vertically and horizontally. The balance of foreground, middle ground and far ground features were analysed and said to be different in key respects. The fact the river is absent from the defendants' work was pointed out. These differences all exist but it seems to me that on the question of copying they do not help. In this case it is not a coincidence that both images show Big Ben and the Houses of Parliament in black and white with a bright red bus driving from right to left and a blank white sky. The reason the defendants' image is like that is obviously because Mr Houghton saw the claimant's work. The differences do not negative copying, on the facts of this case they have a bearing on whether a substantial part is taken . . .

57. Second Mr Houghton did not suggest he had seen any of the other similar works relied on above before seeing Mr Fielder's image. The whole point of this case is that Mr Houghton and his company wish lawfully to produce an image which does bear some resemblance to the claimant's work. The inference that I draw is that Mr Houghton sought out this other material after he had decided to produce an image similar to the claimant's. He found examples of common elements in various different places. That does not avoid a causal link. If Mr Houghton had seen Mr Fielder's image, decided he wanted to use a similar one, found the Rodriguez or Getty photographs and put one of those on his boxes of tea, there would be no question of infringement. Those images are not causally related to Mr Fielder's, they are independent works. But that is not what happened. At best the defendants used these other images to show that certain individual elements in Mr Fielder's work can also be found elsewhere. That does not make those different sources the actual origin of an element in the defendants' image. I reject the submission that the other similar works acted as a relevant independent source for the defendants.​

 

[Greg Benage]

Yikes. I hope these publishers running away from their contractual rights under OGL 1.0a are proceeding with cool heads and the best legal advice. Thanks for the explanation.