How will WOTC's new OGL affect D&D/Pathfinder CRPGs?

[RPK]

Upon a 2nd reading, this seems like more gaslighting than changing course. they try to address the status of 1.0a but really don't and make claims about not trying to claim 3rd party content as their own to publish as they wish which are directly contradicted by what's in the "draft" contracts that were leaked.

 

[rojay]

“As I transition into my new role as CEO of Hasbro later this month, I am excited to partner with Cynthia and Tim, working together to expand our fan base, deliver across the Brand Blueprint and activate our significant investments in the business to become the world’s leading fantasy-inspired gaming publisher on all platforms.”

Love it.

 

[KeighnMcDeath]

“As I transition into my new role as CEO of Hasbro later this month, I am excited to partner with Cynthia and Tim, working together to expand our fan base, deliver across the Brand Blueprint and activate our significant investments in the business to become the world’s leading fantasy-inspired gaming publisher on all platforms.”

Love it.

Oh good god NO!

And we thought it was bad during Satanic Panic.

Spoiler

I see many people dropping the game. A WOTC suicide of sorts.

 

[KeighnMcDeath]

This popped up in my news box:
GamerRant

Spoiler

According to the leak, Dungeons and Dragons would be overhauling the subscription service for D&D Beyond at the behest of Wizards of the Coast digital game vice president Chris Cao. The highest tier would cost $30 a month and would include special content drops. Homebrew would be banned from use in the lower tiers, and Dungeons and Dragons still plans to deauthorize the original OGL in the process. The leak also introduces the idea of AI-DMs, which would use stripped-down gameplay for players who don’t have a dungeon master.

But that's just a rant rumour.

 

[FFTW]

Apparently the bitch slap they received served to wake them up to how stupid they were:
https://kotaku.com/d-d-ogl-dungeons-dragons-wizards-coast-wotc-apology-1850003674

The New Statement

Now, having had time to survey the wreckage, Wizards have acknowledged that they got it wrong. Very wrong. In a blog post published earlier today Kyle Brink, Executive Producer on D&D, said “let me start with an apology. We are sorry. We got it wrong”.

Brink says that going forwards Wizards will be “more open and transparent”, and that future changes to the OGL will be done in consultation with fans. You can read his full statement below:

"Hi. I’m Kyle Brink, the Executive Producer on D&D. It’s my team that makes the game we all play.

D&D has been a huge part of my life long before I worked at Wizards and will be for a long time after I’m done. My mission, and that of the entire D&D team, is to help bring everyone the creative joy and lifelong friendships that D&D has given us.

These past days and weeks have been incredibly tough for everyone. As players, fans, and stewards of the game, we can’t–and we won’t–let things continue like this.

I am here today to talk about a path forward.

First, though, let me start with an apology. We are sorry. We got it wrong.

Our language and requirements in the draft OGL were disruptive to creators and not in support of our core goals of protecting and cultivating an inclusive play environment and limiting the OGL to TTRPGs. Then we compounded things by being silent for too long. We hurt fans and creators, when more frequent and clear communications could have prevented so much of this.

Starting now, we’re going to do this a better way: more open and transparent, with our entire community of creators. With the time to iterate, to get feedback, to improve.

If this sounds familiar, it’s because it’s how we do it for the game itself. So let’s do it that way for the OGL, too.

We’ll listen to you, and then we will share with you what we’ve heard, much like we do in our Unearthed Arcana and One D&D playtests. This will be a robust conversation before we release any future version of the OGL.

Here’s what to expect.

- On or before Friday, January 20th, we’ll share new proposed OGL documentation for your review and feedback, much as we do with playtest materials.

- After you review the proposed OGL, you will be able to fill out a quick survey–much like Unearthed Arcana playtest feedback surveys. It will ask you specific questions about the document and include open form fields to share any other feedback you have.

- The survey will remain open for at least two weeks, and we’ll give you advance notice before it closes so that everyone who wants to participate can complete the survey. Then we will compile, analyze, react to, and present back what we heard from you.

Finally, you deserve some stability and clarity. We are committed to giving creators both input into, and room to prepare for, any update to the OGL. Also, there’s a ton of stuff that isn’t going to be affected by an OGL update. So today, right now, we’ll lay out all the areas that this conversation won’t touch.

Any changes to the OGL will have no impact on at least these creative efforts:

- Your video content. Whether you are a commentator, streamer, podcaster, liveplay cast member, or other video creator on platforms like YouTube and Twitch and TikTok, you have always been covered by the Wizards Fan Content Policy. The OGL doesn’t (and won’t) touch any of this.

- Your accessories for your owned content. No changes to the OGL will affect your ability to sell minis, novels, apparel, dice, and other items related to your creations, characters, and worlds.

- Non-published works, for instance contracted services. You use the OGL if you want to publish your works that reference fifth edition content through the SRD. That means commissioned work, paid DM services, consulting, and so on aren’t affected by the OGL.

- VTT content. Any updates to the OGL will still allow any creator to publish content on VTTs and will still allow VTT publishers to use OGL content on their platform.

- DMs Guild content. The content you release on DMs Guild is published under a Community Content Agreement with Dungeon Masters Guild. This is not changing.

- Your OGL 1.0a content. Nothing will impact any content you have published under OGL 1.0a. That will always be licensed under OGL 1.0a.

- Your revenue. There will be no royalty or financial reporting requirements.

- Your ownership of your content. You will continue to own your content with no license-back requirements.

That’s all from me for now. You will hear again from us on or before Friday as described above, and we look forward to the conversation.

Kyle Brink

Executive Producer, Dungeons & Dragons"

I think the Codex should "Participate" in this survey. Let us give them a piece of our mind guys .

 

[JamesDixon]

The understanding that I would prefer to see at least in the US is one in which it's generally understood that game rules and concepts cannot be subject to copyright. Under the law as it exists now, I don't think anyone has to sign anything to be allowed to use any ruleset that they want to. Where it gets tricky is in how to label those rules or to create associations. Some lawyers would also make arguments that certain ways of expressing rules create an implicit association with the work and trademarks of other companies. I don't think that's a good argument because federal trademark law really looks for unauthorized reproductions released with specific trademarks or marks that have been subtly altered in a way that is likely to cause and/or did in fact cause customer confusion.

DaVinci Editrice S.R.I. v. ZiKo Games in 2016 the judge upheld that game mechanics cannot be copyrighted. He goes into depth on why and even quotes the US Copyright Office on the matter. Here are the relevant bits from the ruling.

"[G]ame mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works." Tetris Holding, LLC v. Xio Interactive, Inc. , 863 F.Supp.2d 394, 404 (D.N.J. 2012) (citations omitted); see also Durham Indus., Inc. v. Tomy Corp. , 630 F.2d 905, 913 (2d Cir.1980) ("[C]opyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work."). Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a cardgame system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 GEO. MASON L. REV. at 466. Instead, the game rules, procedures, and winning conditions create the environment for expression. Id. ; see also Nat'l Basketball Ass'n , 105 F.3d at 846 ("Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.").

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. U.S. COPYRIGHT OFFICE , FL-108, COPYRIGHT REGISTRATION OF GAMES (2011).

A lawyer that wrote up One Stop Stat Blocks was sent a cease and desist letter by Wizards of the Coast in 2019. He took them to task and ended the entire matter on copyright grounds. He ended up writing a series of articles showing that Wizards can't do what they claim under the OGL. That's in part 3 of the series. Here's some snippets.

Turning to paragraph 4:

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

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“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.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Now time for a history lesson on why OGL exists in the first place.

In the 1990s, Lorraine Williams, CEO of TSR, would send lawyers after any fan that dared to publish third party content for AD&D/OD&D abusing the copyright laws. This caused people to boycott TSR and created the nickname They Sue Regularly. How the method of publishing back then was done that TSR would have tens of thousands copies of the books printed then shipped to brick and mortar stores. If a book didn't sell within 6-12 months time the store owner could ship the book back and get credit. The distributer would issue a credit for the books received and charge back the amount to the publisher, in this case TSR. Due to the boycott, TSR was suffering from massive cash flow problems and ended up going bankrupt.

In steps Wizards and buys TSR along with all their assets. Wizards created the OGL purely out of greed to keep their newly acquired property afloat. It was offered as an "olive branch" to the fans to repair the damage that Lorraine Williams did. As you can see from the above quotes on game mechanics and copyright that Wizards was using its status as a monopoly to lock out the competition.

People need to understand that in order to make a viable ecosystem for their rules system is to do what Wizards and the rest are prohibiting which is the use of the trademarks to the products. This way a third party doesn't have to rewrite your core rules and expend the cost for the writing, art, and publication. They can concentrate on making setting books and adventures that are proudly stamped with your trademark, used under license, and it makes your company profitable by requiring players of the third party content to buy your core rules.

All this rewriting of rules is actually fragmenting the hobby and makes it difficult for people to actual make money for what they love to do. By building an ecosystem you are ensuring that your company and third parties are reaping the benefits your hard work without having to fragment the players.

 

[RPK]

so, here's the draft of the new OGL.

it seems like they're putting the things under creative commons that they know they can't really copyright anyway and magnanimously putting most of the rest under the new OGL. The rest is a mishmash. Still trying to deauthorize OGL 1.0a (won't someone please think of the sensitive people who could be hurt by the bad content!). But, hasbro's stock has finally started to reflect this controversy so maybe they're realizing they're not going to be able to get away with what they wanted to.

It's curious that it says all of this applies to only TTRPG and static electronic content. So, I wonder if that means they're trying to prevent video games or if this is something that's aimed at VTT (their ultimate goal of this whole shit show seems to be to get everyone on their as-yet-unfinished VTT) and video games are getting caught in the crossfire.

https://www.dndbeyond.com/posts/1432-starting-the-ogl-playtest

 

[deuxhero]

If they didn't try to kill OGL and just did a D&D4 style "nothing is SRD and the terms for third parties are shit", I think this would have just flopped. It's trying to kill OGL that ensures this will burn.

 

[JamesDixon]

Reading the new OGL.

As I said above, content more clearly associated with D&D (like the classes, spells, and monsters)

Can't be copyrighted as it is game mechanics. That falls under the public domain.

You'll see that OGL 1.2 lets us act when offensive or hurtful content is published using the covered D&D stuff.

So they're now claiming monopoly status. I wonder how the state attorney generals and the SEC feel about it.

We can't use the protective options in 1.2 if someone can just choose to publish harmful, discriminatory, or illegal content

Unenforceable since in the US there is the First Amendment which means that all speech that doesn't advocate criminal acts is protected speech. Using the US court system to go after third party creators for their expression of the first amendment rights is a monopoly and generally illegal.

We will continue to support VTT usage for both OGL creators and VTT operators.

I guess a lawyer told them that they can't copyright mathematical formulas and steal people's code that is copyrighted.

You own your content. You don't give Wizards any license-back, and for any ownership disputes, you can sue for breach of contract and money damages (versus holding up products other players are waiting for while we sort it out).

This is meaningless since they can't license out public domain items like game mechanics, spells, and monsters. This also means you can't sue them either for breach of contract as this is a non-enforceable contract.

No hateful content or conduct. If you include harmful, discriminatory, or illegal content (or engage in that conduct publicly), we can terminate your OGL 1.2 license to our content.

Unenforceable since this isn't an enforceable license due to them trying to control the copyright of public domain items. The license has no effect.

Now onto the actual OGL 1.2.

The core D&D mechanics, which are located at pages 56-104, 254-260, and 358-359 of this System Reference Document 5.1 (but not the examples used on those pages), are licensed to you under the Creative Commons Attribution 4.0 International (CC BY 4.0). This means that Wizards is not placing any limitations at all on how you use that content.

They can't claim copyright to public domain items like game mechanics. This is unenforceable. You're better off just rewriting the rules in your own words and tell Wizards to fuck right off.

Our copyright rights in the other content included in this System Reference Document are licensed to you under the Open Game License 1.2.

Again this is public domain stuff and they can't license it to you. It's the same as me renting your house to others.

Use of D&D content in virtual tabletops is allowed on the terms of Wizards’ Virtual Tabletop Policy.

Unenforceable due to the law of first sale with books. You can use them in any medium you wish since you physically own it. They can't allow you to use your toilet in your home as they don't own it.

Use of D&D content in streaming, fan art, cosplay, and other fan content is permitted as described in Wizards’ Fan Content Policy.

This is the poison pill. You're better off creating your own shit and telling Wizards to sit on it and rotate at 15,000 rpm.

CREATOR PRODUCT BADGES. For content published under the OGL 1.2, you may use one of following badges in the manner specified in the Creator Product Badge Style Guide. So long as you comply with that guide in using the badges, Wizards licenses you under the OGL 1.2 to use such a badge on any of Your Licensed Works.

Finally something that they can allow you to use which is their trademarks. This is the only thing that is legal in their entire OGL. If you want to use their trademarks then you have to comply with their demands. My response is to tell Wizards to fuck off and die.

You acknowledge that we and our licensees, as content creators ourselves, might independently come up with content similar to something you create. If you have a claim that we breached this provision, or that one of our licensees did in connection with content they licensed from us:

(a) Any such claim will be brought only as a lawsuit for breach of contract, and only for money damages. You expressly agree that money damages are an adequate remedy for such a breach, and that you will not seek or be entitled to injunctive relief.

(b) In any such lawsuit, you must show that we knowingly and intentionally copied your Licensed Work. Access and substantial similarity will not be enough to prove a breach of this Section 3.

This is them stating that they will steal from your copyrighted original work and you can't do shit about it.

WHAT WE OWN. We own Our Licensed Content and reserve all rights not expressly granted in this license.

They don't own the copyrights to game mechanics and monsters. To claim otherwise is copyright misuse.

YOU CONTROL YOUR CONTENT. You can make your Content available under any terms you choose but you may not change the terms under which we make Our Licensed Content available.

(a) You must clearly indicate that your Licensed Work contains Our Licensed Content under this license either by including the full text of this license in your Licensed Work or by applying the Creator Products badge in compliance with the then-current style guidelines.

(b) You may permit the use of your Content on any terms you want. However, if any license you offer to your Licensed Work is different from the terms of this license, you must include in the Licensed Work the attribution for Our Licensed Content found in the preamble to the applicable SRD, and make clear that Our Licensed Content included in your Licensed Work is made available on the terms of this license.

This is false as they have already stated that they can steal from your content and republish it with modifications. They also said that they own game mechanics in violation of many court cases and US law.

No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.

Another poison pill where you must abide by their political position at all times. They can force you out of their events etc... with this.

(b) Termination

(i) We may immediately terminate your license if you infringe any of our intellectual property; bring an action challenging our ownership of Our Licensed Content, trademarks, or patents; violate any law in relation to your activities under this license; or violate Section 6(f).

(ii) We may terminate your license if you breach any other term in this license, and do not cure that breach within 30 days of notice to you of the breach.

Point 1 is interesting because they are claiming to have copyrights to game mechanics and are classifying it as intellectual property. Yet, the US Copyright Office and the courts have ruled repeatedly that you can't copyright public domain items like game mechanics, spells, and monsters.

Severability. If any part of this license is held to be unenforceable or invalid for any reason, Wizards may declare the entire license void, either as between it and the party that obtained the ruling or in its entirety. Unless Wizards elects to do so, the balance of this license will be enforced as if that part which is unenforceable or invalid did not exist.

This is a fuck you I get out jail free card. Meaning that if someone challenges their claims of copyright over public domain items that they will remove the license to avoid going to court. This tells you that they know this license won't hold up to scrutiny by the US Copyright Office or the federal courts.

Governing Law/Jurisdiction/Class Action Waiver. This license and all matters relating to its interpretation and enforcement will be governed by the laws of the State of Washington, and any disputes arising out of or relating to this license will be resolved solely and exclusively through individual litigation in the state or federal courts located in the county in which Wizards (or any successor) has its headquarters, and the parties expressly consent to the jurisdiction of such courts. Each party hereto irrevocably waives the right to participate in any class, collective, or other joint action with respect to such a dispute.

They actually can't have a state court hear this since under the Constitution of the United States all states agreed that the US federal government handles trademarks, patents, and copyrights. The states do not have jurisdiction there. By mandating the case to be tried there will invoke a hardship for third party creators that live out of the state. I can readily see the US federal court in Seattle agreeing to move the case to a court that is local to the party being sued by Wizards as they have a financial burden imposed on them by a multi-billion dollar corporation.

Review by Counsel. You should seek advice of counsel to make sure you understand this license. You agree that you had the opportunity to do so.

This is the only smart part of the clause. Go to a copyright attorney and let them look this over to watch them laugh.

Now on to the VTT part.

So displaying static SRD content is just fine because it’s just like looking in a sourcebook. You can put the text of Magic Missile up in your VTT and use it to calculate and apply damage to your target. And automating Magic Missile’s damage to replace manually rolling and calculating is also fine. The VTT can apply Magic Missile’s 1d4+1 damage automatically to your target’s hit points. You do not have to manually calculate and track the damage.

Good they couldn't enforce copyright on code that does automation. It's far outside of what they can claim as it is copyrighted code and the mathematical formulas can't be copyrighted without making a monopoly.

What isn’t permitted are features that don’t replicate your dining room table storytelling. If you replace your imagination with an animation of the Magic Missile streaking across the board to strike your target, or your VTT integrates our content into an NFT, that’s not the tabletop experience. That’s more like a video game.

They can't do shit about animation of a magic missile that is created by a third party as Wizards does not own the copyrights to it. The creator of the automation does. The NFT bit is smart since it's the sale of jpgs of other people's content, but the NFT has no copyright associated with it. It's just binary on a spreadsheet saying that you own this without actually owning it via copyright.

We’ve never licensed visual depictions of our content under the OGL, just the text of the SRD. That hasn’t changed. You can create a creature called an Owlbear with the stat block from the SRD. You cannot copy any of our Owlbear depictions. But if you’ve drawn your own unique Owlbear, or someone else did, you can use it.

That's them admitting that they don't own the copyrights to game mechanics for a creature that's from folklore. You just can't use their artwork, which is copyrighted, for your games.

If you are a VTT owner or operator who supports OGL products on your platform, you have the same obligations for VTT content that any other website owner or operator has for copyrighted content under the DMCA.

Well to avoid this poison pill just don't support D&D as a VTT. Leave it to the community to handle it. Not like they can do anything about someone putting pdfs into say Tabletop Simulator and never putting them on the workshop. Your uploaded items are protected by Steam.

Well there's my take on this.

 

[copebot]

The understanding that I would prefer to see at least in the US is one in which it's generally understood that game rules and concepts cannot be subject to copyright. Under the law as it exists now, I don't think anyone has to sign anything to be allowed to use any ruleset that they want to. Where it gets tricky is in how to label those rules or to create associations. Some lawyers would also make arguments that certain ways of expressing rules create an implicit association with the work and trademarks of other companies. I don't think that's a good argument because federal trademark law really looks for unauthorized reproductions released with specific trademarks or marks that have been subtly altered in a way that is likely to cause and/or did in fact cause customer confusion.

DaVinci Editrice S.R.I. v. ZiKo Games in 2016 the judge upheld that game mechanics cannot be copyrighted. He goes into depth on why and even quotes the US Copyright Office on the matter. Here are the relevant bits from the ruling.

"[G]ame mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works." Tetris Holding, LLC v. Xio Interactive, Inc. , 863 F.Supp.2d 394, 404 (D.N.J. 2012) (citations omitted); see also Durham Indus., Inc. v. Tomy Corp. , 630 F.2d 905, 913 (2d Cir.1980) ("[C]opyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work."). Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a cardgame system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 GEO. MASON L. REV. at 466. Instead, the game rules, procedures, and winning conditions create the environment for expression. Id. ; see also Nat'l Basketball Ass'n , 105 F.3d at 846 ("Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.").

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. U.S. COPYRIGHT OFFICE , FL-108, COPYRIGHT REGISTRATION OF GAMES (2011).

A lawyer that wrote up One Stop Stat Blocks was sent a cease and desist letter by Wizards of the Coast in 2019. He took them to task and ended the entire matter on copyright grounds. He ended up writing a series of articles showing that Wizards can't do what they claim under the OGL. That's in part 3 of the series. Here's some snippets.

Turning to paragraph 4:

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

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“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.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Now time for a history lesson on why OGL exists in the first place.

In the 1990s, Lorraine Williams, CEO of TSR, would send lawyers after any fan that dared to publish third party content for AD&D/OD&D abusing the copyright laws. This caused people to boycott TSR and created the nickname They Sue Regularly. How the method of publishing back then was done that TSR would have tens of thousands copies of the books printed then shipped to brick and mortar stores. If a book didn't sell within 6-12 months time the store owner could ship the book back and get credit. The distributer would issue a credit for the books received and charge back the amount to the publisher, in this case TSR. Due to the boycott, TSR was suffering from massive cash flow problems and ended up going bankrupt.

In steps Wizards and buys TSR along with all their assets. Wizards created the OGL purely out of greed to keep their newly acquired property afloat. It was offered as an "olive branch" to the fans to repair the damage that Lorraine Williams did. As you can see from the above quotes on game mechanics and copyright that Wizards was using its status as a monopoly to lock out the competition.

People need to understand that in order to make a viable ecosystem for their rules system is to do what Wizards and the rest are prohibiting which is the use of the trademarks to the products. This way a third party doesn't have to rewrite your core rules and expend the cost for the writing, art, and publication. They can concentrate on making setting books and adventures that are proudly stamped with your trademark, used under license, and it makes your company profitable by requiring players of the third party content to buy your core rules.

All this rewriting of rules is actually fragmenting the hobby and makes it difficult for people to actual make money for what they love to do. By building an ecosystem you are ensuring that your company and third parties are reaping the benefits your hard work without having to fragment the players.

Thanks for sharing that case. I had read a law review article about the Tetris case which had a different interpretation than the judge did here. My interpretation is closer to this judge's interpretation: the expressive elements are protectable, but not the mechanical elements. The plaintiff in the Davinci case also citedTetris trying to stretch the possible conflation between expressive elements and mechanical elements of the game. Conflation of these mechanical and expressive elements only makes sense in certain specific circumstances which made Davinci distinguishable fromTetris.

The defendant's brief in opposition to the plaintiff's motion for summary judgment is worth reading as well. Here's a useful nugget:

"For example, even where it was admitted that a defendant accessed and used a plaintiff's rulebook, it was found that copyright protected only the “arrangement of the rules and the manner of their presentation, and not their content,” such that the defendant did not infringe the copyright when he developed his own, making significant changes that enhanced the clarity of the rules." DAVINCI EDITRICE S.R.L., Plaintiff, v. ZIKO GAMES, LLC, and Yoka Games, Defendants., 2015 WL 3637129 (S.D.Tex.)

 

[JamesDixon]

The understanding that I would prefer to see at least in the US is one in which it's generally understood that game rules and concepts cannot be subject to copyright. Under the law as it exists now, I don't think anyone has to sign anything to be allowed to use any ruleset that they want to. Where it gets tricky is in how to label those rules or to create associations. Some lawyers would also make arguments that certain ways of expressing rules create an implicit association with the work and trademarks of other companies. I don't think that's a good argument because federal trademark law really looks for unauthorized reproductions released with specific trademarks or marks that have been subtly altered in a way that is likely to cause and/or did in fact cause customer confusion.

DaVinci Editrice S.R.I. v. ZiKo Games in 2016 the judge upheld that game mechanics cannot be copyrighted. He goes into depth on why and even quotes the US Copyright Office on the matter. Here are the relevant bits from the ruling.

"[G]ame mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works." Tetris Holding, LLC v. Xio Interactive, Inc. , 863 F.Supp.2d 394, 404 (D.N.J. 2012) (citations omitted); see also Durham Indus., Inc. v. Tomy Corp. , 630 F.2d 905, 913 (2d Cir.1980) ("[C]opyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work."). Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a cardgame system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 GEO. MASON L. REV. at 466. Instead, the game rules, procedures, and winning conditions create the environment for expression. Id. ; see also Nat'l Basketball Ass'n , 105 F.3d at 846 ("Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.").

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. U.S. COPYRIGHT OFFICE , FL-108, COPYRIGHT REGISTRATION OF GAMES (2011).

A lawyer that wrote up One Stop Stat Blocks was sent a cease and desist letter by Wizards of the Coast in 2019. He took them to task and ended the entire matter on copyright grounds. He ended up writing a series of articles showing that Wizards can't do what they claim under the OGL. That's in part 3 of the series. Here's some snippets.

Turning to paragraph 4:

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

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“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.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Now time for a history lesson on why OGL exists in the first place.

In the 1990s, Lorraine Williams, CEO of TSR, would send lawyers after any fan that dared to publish third party content for AD&D/OD&D abusing the copyright laws. This caused people to boycott TSR and created the nickname They Sue Regularly. How the method of publishing back then was done that TSR would have tens of thousands copies of the books printed then shipped to brick and mortar stores. If a book didn't sell within 6-12 months time the store owner could ship the book back and get credit. The distributer would issue a credit for the books received and charge back the amount to the publisher, in this case TSR. Due to the boycott, TSR was suffering from massive cash flow problems and ended up going bankrupt.

In steps Wizards and buys TSR along with all their assets. Wizards created the OGL purely out of greed to keep their newly acquired property afloat. It was offered as an "olive branch" to the fans to repair the damage that Lorraine Williams did. As you can see from the above quotes on game mechanics and copyright that Wizards was using its status as a monopoly to lock out the competition.

People need to understand that in order to make a viable ecosystem for their rules system is to do what Wizards and the rest are prohibiting which is the use of the trademarks to the products. This way a third party doesn't have to rewrite your core rules and expend the cost for the writing, art, and publication. They can concentrate on making setting books and adventures that are proudly stamped with your trademark, used under license, and it makes your company profitable by requiring players of the third party content to buy your core rules.

All this rewriting of rules is actually fragmenting the hobby and makes it difficult for people to actual make money for what they love to do. By building an ecosystem you are ensuring that your company and third parties are reaping the benefits your hard work without having to fragment the players.

Thanks for sharing that case. I had read a law review article about the Tetris case which had a different interpretation than the judge did here. My interpretation is closer to this judge's interpretation: the expressive elements are protectable, but not the mechanical elements. The plaintiff in the Davinci case also citedTetris trying to stretch the possible conflation between expressive elements and mechanical elements of the game. Conflation of these mechanical and expressive elements only makes sense in certain specific circumstances which made Davinci distinguishable fromTetris.

The defendant's brief in opposition to the plaintiff's motion for summary judgment is worth reading as well. Here's a useful nugget:

"For example, even where it was admitted that a defendant accessed and used a plaintiff's rulebook, it was found that copyright protected only the “arrangement of the rules and the manner of their presentation, and not their content,” such that the defendant did not infringe the copyright when he developed his own, making significant changes that enhanced the clarity of the rules." DAVINCI EDITRICE S.R.L., Plaintiff, v. ZIKO GAMES, LLC, and Yoka Games, Defendants., 2015 WL 3637129 (S.D.Tex.)

You're welcome and I agree with you. The rules aren't protected but that exact expression is. The caveat is that you can only reword a sentence so many ways that should be considered when looking at infringement.

 

[FFTW]

So basically, this new version is horseshit too. Hope the D&D community won't be fooled by this crap. "We decide what hateful is and you can't object. Oh, and no big boobies. They are obscene" is the best part lol.

 

[Cryomancer]

US there is the First Amendment which means that all speech that doesn't advocate criminal acts is protected speech. Using the US court system to go after third party creators for their expression of the first amendment rights is a monopoly and generally illegal.

Agreed. But imagine how much money would cost to force them to get rid of such systems.

Also everything is racist nowadays.

Hope the D&D community won't be fooled by this crap. "We decide what hateful is and you can't object. Oh, and no big boobies. They are obscene" is the best part lol.

Agreed. I hope that people stop playing this shit fanfic with the name of D&D and go try the old school TSR games

BTW, look to the shit which they wrote in their old products

"We (Wizards) recognize that some of the legacy content available on this website does not reflect the values of the Dungeons & Dragons franchise today. Some older content may reflect ethnic, racial, and gender prejudice that were commonplace in American society at that time. These depictions were wrong then and are wrong today. This content is presented as it was originally created, because to do otherwise would be the same as claiming these prejudices never existed. Dungeons & Dragons teaches that diversity is a strength, and we strive to make our D&D products as welcoming and inclusive as possible. This part of our work will never end." source https://www.drivethrurpg.com/produc...The-Wizards-of-Athas-2e?filters=44827_0_0_0_0

Just imagine trying to write a Dark Sun module which would't be """problematic""" for modern woke crowd. They see even milk and ok signs as ""problematic""

 

[pat]

The old OGL caused me enough concerns with publishing a game based on D&D. I’m a lawyer in my day job and I still found it horrendously confused but it was uncertain enough that I was willing to risk putting out a free D&D CRPG and I’ve had that on Steam for a few years now.

My interpretation of the new version is that my game is no longer authorised at all, and the chilling effect of that possibility means that I’m likely to remove it from distribution rather than run the risk having to face potential litigation over a free hobby project.

It’s a pretty disappointing outcome when all I’m really doing is providing them with free advertising at my own expense.

 

[RPK]

The old OGL caused me enough concerns with publishing a game based on D&D. I’m a lawyer in my day job and I still found it horrendously confused but it was uncertain enough that I was willing to risk putting out a free D&D CRPG and I’ve had that on Steam for a few years now.

My interpretation of the new version is that my game is no longer authorised at all, and the chilling effect of that possibility means that I’m likely to remove it from distribution rather than run the risk having to face potential litigation over a free hobby project.

It’s a pretty disappointing outcome when all I’m really doing is providing them with free advertising at my own expense.

I'm fairly certain they've said everything released prior to now is fine, haven't they?

 

[pat]

I’ll reread it when they release the final version, but the draft revoked the old licence in its entirety, although I know they’re stepping back from this.

What they have made clear though is that they never intended to license it for anything beyond ordinary tabletop play. I read their explanation of the new amended draft and it went so far as to say that they didn’t approve of an animated magic missile.

The old licence had a bit more wriggle room, and I’m worried that they don’t allow for a CRPG at all under the new version. So at this stage I’m thinking that it’s not worth the hassle and I’ll go work on something else. I’m sure I’m not alone as being a developer turned off in a real way by the whole saga.

 

[Cryomancer]

and I’m worried that they don’t allow for a CRPG at all under the new version

What about existing RPG's? Like can Low Magic Age and KotC2 be updated? Can I make another PF1e adaptation with Paizo's approval?

 

[pat]

Here’s the parts of the new draft which I’m concerned about. Video games are excluded from the new licence:

“This license only applies to printed media and static electronic files (such as epubs or pdfs) you create for use in or as tabletop roleplaying games and supplements (“TTRPGs”) and in virtual tabletops in accordance with our Virtual Tabletop Policy (“VTTs”).”

And a video game like mine doesn’t fall within their definition of a virtual table top:

“What isn’t permitted are features that don’t replicate your dining room table storytelling. If you replace your imagination with an animation of the Magic Missile streaking across the board to strike your target, or your VTT integrates our content into an NFT, that’s not the tabletop experience. That’s more like a video game.”

 

[pat]

and I’m worried that they don’t allow for a CRPG at all under the new version

What about existing RPG's? Like can Low Magic Age and KotC2 be updated? Can I make another PF1e adaptation with Paizo's approval?

I don’t know for sure, but I suspect that it’s not authorised. You can always run the gauntlet and argue that their licence doesn’t apply, but it’s a significant risk with a massive chilling effect on game developers.

 

[Cryomancer]

I hope that more devs will try to adapt retroclones and less the SRD content. Would this be legally possible? Just imagine playing Lamentations of flame princess...

 

[RPK]

I’ll reread it when they release the final version, but the draft revoked the old licence in its entirety, although I know they’re stepping back from this.

What they have made clear though is that they never intended to license it for anything beyond ordinary tabletop play. I read their explanation of the new amended draft and it went so far as to say that they didn’t approve of an animated magic missile.

The old licence had a bit more wriggle room, and I’m worried that they don’t allow for a CRPG at all under the new version. So at this stage I’m thinking that it’s not worth the hassle and I’ll go work on something else. I’m sure I’m not alone as being a developer turned off in a real way by the whole saga.

you're not alone in that. I'm working on rewriting the rules engine of my game to excise everything that refers to anything that could be construed as coming from the OGL.

However, since you've already published your game, you should be ok. this section should cover you if I'm correctly understanding that you've already published your game:

NOTICE OF DEAUTHORIZATION OF OGL 1.0a. The Open Game License 1.0a is no longer an authorized license. This means that you may not use that version of the OGL, or any prior version, to publish SRD content after (effective date). It does not mean that any content previously published under that version needs to update to this license. Any previously published content remains licensed under whichever version of the OGL was in effect when you published that content.

 

[pat]

That’s probably right but there’s still unanswered questions. What if I publish a minor update? That’s probably ok, or at least you’d hope so, but what if I publish an entirely new campaign within the current game? The unknown is a real obstacle to continued development.

The reality is that I doubt they’re interested in small fish like me anyway. I’ll wait to see the final version of the new licence before I decide whether to keep the game up for download, but I can’t see how I’ll be motivated to keep working on it in a big way.

 

[Orud]

I hope these fuckers try to go after someone with the assumption that they'll just give into their empty legal threats, but instead WOTRC gets a legal slapping so hard they'll shit themselves like Games Workshop did, when those fuckers found out they can't copyright dwarves.

 

[Cryomancer]

I’ll wait to see the final version of the new licence before I decide whether to keep the game up for download

A suggestion. Make a game based in a retroclone. I think that retroclone owners would't have any problem if you ask permission.

I hope these fuckers try to go after someone with the assumption that they'll just give into their empty legal threats, but instead WOTRC gets a legal slapping so hard they'll shit themselves like Games Workshop did, when those fuckers found out they can't copyright dwarves.

Lawsuits in USA are extremely expensive. Most 3rd party publishers would't be able to fight woketards in the courts.

 

[FFTW]

That’s probably right but there’s still unanswered questions. What if I publish a minor update? That’s probably ok, or at least you’d hope so, but what if I publish an entirely new campaign within the current game? The unknown is a real obstacle to continued development.

The reality is that I doubt they’re interested in small fish like me anyway. I’ll wait to see the final version of the new licence before I decide whether to keep the game up for download, but I can’t see how I’ll be motivated to keep working on it in a big way.

Considering that "previously published content" quote,I think it is pretty clear that you are safe if you didn't add anything major. So at the very least you can leave it on steam and only do updates and bug fixes and you will be completely fine. The fact that your game is free makes that even more so.
Link to the game btw? I would like to check it out .