[Open_Gaming] Reply to Clark

[Githianki]

First off let me say that my posts are meant as theoretical explorations not necessarily positions I have, thus I truly appreciate your rsponses and more importantly the mature respect you show in crafting those responses. Onward: 1) True, I pointed out you can run afoul of copyright and trademark law.  I think I should clariffy though that I am not talking about reprinting or packaging the "D&D" rules somehow. I am not even talking about changing those rules (though perhaps suggesting optional rules to use WITH my material would not be out of what I suggest). I am strictly refering, I suppose, to original settings and scenarios (in as much as they can be original) and content derived from the domain of public ideas.  So to clarify 1. and answer your question - I don't believe in carte blanche but I don't see why you shouldn't be able to market your own creations just because they are in fact compatible with a rules sytem freely sold for the purpose of creating such material.  In fact such creations might be adaptable to many systems. 2) I do not believe that there are restrictions above what the law allows, which, as I understand it, allows for a person to fairly put statements such as "This product can be used with *, This product is compatible with the * system, and For use with *", so long as the trademarks are recognized.  I.e. * is a trademark of so-and-so and is used without permission or some such.   Furthermore, it hasn't been demonstrated that I know of, that the use of terms from any particular system, which might be generic in nature or even specific to a system, constitutes either creation of a derivative of that system or a violation of that system's copyright over its particular expression.  By this I mean, terms that aren't specifically trademarked (I think TSR used to claim that many RPG terms were actually their tradmarks but I could be wrong) and I also mean not copying the text describing such terms except where such text ! ! may not enjoy copyright protection. Many such generic adventures and supplements were produced in the past and made mention of the D&D trademarks in the manner I have outlined.  Whether or not TSR threatened them into stoppping has nothing to do with the issue of whether such "use" is legal or not.  That is what I am getting at with this exploration.   I think we are on a similar page here.  I am trying to figure out or test whether supplements/adventures/settings, which are meant to be used with a copyrighted rules system are necessarily derivative works of that system.   What protections or not do they enjoy? What rights or not do you have in creating them?  It seems to me that a fair and unbiased assesment of the OGL can only occur if you are aware of these issues before you adopt a legal instrument that could have unforseen consequences.  The benfits can only be weighed against what you might be giving up. 3) I think I clarified that above. 4) I must respectfully disagree on one point here.  The reality is that you do have increased liability. You can't be sued if there is no violation under either scenario (actually you could be no matter what but I mean legitamately).  A violation of copyright, trademark, or (PI under the OGL) would have the same effect in either scenario but under the OGL you are at incresed risk of being sucessfully sued.  The hypothetical is that the risk is offset by the other protections.   The fact that many products now exist in no way decreases the fact that IF you are in violation you are under increased liability.  The OGL may make it easier for you to avoid violation, but I don't think that is clear cut either.   As for the proof-in-pudding concept, I think we would have seen the same proliferation had TSR simply said we aren't going to pursue litigation except in clear cases of copyright/trademark violation (ie not chase down every lousy mention of a fantasy related thing).  Recall, that until the d20STL+G and SRD are final that is essentially what Wizards has said and look at the result.  There are many things out there which are holding to the "gentleman's agreement"  rather than concrete legal paperwork. I do think the OGL is a boon, but I am talking about the theoretical necessity of it (for the material I referred to above)  One definitely get sthe feeling that Wizards will sue anyone who tries to release "compatible" products who isn't using the OGL.  Is this good? 5) The only D&D "access" I mean (and I mean that as an example only)  is as I have mentioned: modules and the like.  The access theory could apply to any system sold which encourages people to create material that can be used WITH the rules system not material sold to specifically replace it or duplicate it (ie. no Bludgeons and Flagons rules! Completely compatible substitute for D& D! Woohee!) 6) More power to Wizards, but I think that the OGL should be just as useful to everyone else, so the issue at heart is whether it offer benefits that we could not get otherwise.  I am convinced it does for certain applications, but I remain unconvinced that we should be forced to use it to access the RPG market that was created in large part by fans. The OGL is part of a larger strategy to have the d20 system dominate the market, so using the OGL means agreeing to that plan.  At least it appears that way.   I feel a better model is the free creation/sale of material as long as it is original (no Drizzt modules or Greyhawk supplements but all the "adventure for use with D&D" you can handle. [See my PS for another perspective on this.]. To continue: 7) It may be a simple reality that you get sued but is it legal to be sued for the type of situation I am trying to outline? Moreover, agreeing to a legally binding license because you are forced to by threat of frivolous lawsuits designed to drain rather than enforce claims is questionable.  I think everyone would agree that the OGL is a good thing, if there wasn't the undercurrent that "we are gonna sue you if you don't use it".  The rest of the industry may be C&D happy as Wizards claims, but the market that matters (to twist Ryan's argument a bit :) ) is the "D&D"  one, which means that they are the threat to publishers.  Who is going to sue you over "D&D" compatible material? Wizards.  So they are the one you are buying protection from no matter how much they point the finger at the industry as a whole. Hope that helps you understand what I am getting at Clark :). -Alex Silva PS> I think that what Wizards is doing (which is very different from the public perception of D&D) is to position D&D as a brand that identifies not a game system but the particular settings (Greyhawk and the Forgotten Realms) under that system.  This is too bad because it restricts the imagination IMO that D&D was meant to foster.  d20 has become the new means to identify the system behind D&D but to protect that and D&D we have the OGL mechanic and the d20STL+G.  My references  to D&D above are not to the brand as it exists now or even to the system, but are meant (as most players use it I think) to encompass the whole spectrum of fantasy thought that was a part of D&D.  Your own motto of "1st Edition feel" seems to refer to that limitless vision of D& D, as opposed to the more specific D&D of today.  I realize that this is Wizards way of protecting the brand b! ! ut they have isolated it so much from the fan base visions that really created it that it looks somewhat greedy.