From: "Neal Rogers" <[EMAIL PROTECTED]>
> Yikes!!!! So if you don't release some subsystem into
> the SRD, then anything that approximates it is, in
> WOTC's view, an infringement?
There are three kinds of work embodied by an RPG:
The kind which is clearly unique and proprietary.
The kind which is clearly not unique and based on prior art.
The kind which is some blend of the two.
Copyright law, amoung its many limitations, does not have a way to
differentiate between the various types of material that might be embodied
in one work. It tends to view things either as copyright, or not copyright;
either as infringing or not infringing, either derivative or not derivative.
While it might be possible for a court to parse the contents of a work into
various kinds and types of status, my practical research indicates that the
courts simply refuse to do so and choose to treat works as the whole rather
than as the parts. Therefore it becomes imparative that we construct a
licensing framework which deals with works in the whole, rather than
attempting to parse them atomically.
It would be erroneous of me to say that every word in every book published
for Dungeons & Dragons is a unique, proprietary creation wholly protected by
copyright. It would also be just as erroneous to suggest that the books are
essentially uncopyrightable because they are derived from so many public
sources and prior art. The objective truth lies somewhere in the middle,
while the practical truth says that a court is likely to find the whole work
to be copyright.
Copyright does not apply to ideas. The >idea< of a Flame Strike cannot be
copyright. The title "Flame Strike" itself might be copyrightable, or
trademarkable, depending on a variety of factors. Or it might not. The
stats of the Flame Strike spell might be copyright. Or they might not. The
verbatim text of the spell description certainly is copyright. How many
words would need to be changed to create a non-copyright, non-derivative
version is unknown and unknowable.
If you read through Title 17, you find big gaping holes. There is no legal
proscription for example which defines what a derivative work >is<. There
is no specific recipie which determines when a work crosses over from the
prior art of public domain and takes on the rainment of a new work of unique
content.
At first this may seem like a glaring ommission by Congress. In fact it is
a cunning system designed to make Title 17 able to respond to the changes in
form, format, presentation, performance, recording, etc. as history unfolds
and the world changes. Title 17 essentially leaves these issues up to the
judge in a particular case to determine, guided by precendent, but using
logic and common sense as well. In this way, the law does not have to be
constantly revised to cope with a changing economic, artistic, technical or
other environment. Unfortunately for people like us, who like to know all
the rules before we start playing a game so that we can look for loopholes
and exploit weaknesses in the system, the law does not rest on hard and fast
rules - it rests instead on the whims and human opinions of judges and
juries.
As a commercial publisher, Wizards gains nothing from saying "this is
copyright" and "this is not copyright". Especially since, in many cases, we
don't know for sure either. Thus, as a corporate stance, Wizards says "you
should consider everything between the pages of a Dungeons & Dragons product
to be a copyright unless someone of competent legal authority tells you it
is not". Nobody from WotC, and certainly not myself, can tell you with any
authority which portions of Dungeons & Dragons (or anything else we publish)
is "not copyright"; to do so would be personally foolish, and probably
inaccurate anyway. WotC employs over 1,500 people. Unless there are a few
I'm unaware of, only four of those people are attorneys licensed to practice
law. None of those attorneys is a game designer or a brand manager (or a VP
of Special Projects.) Thus, outside of those four people, nobody at WotC
should venture an opinion on what is, and is not, copyright when it comes to
the material in a published D&D product.
> I honestly wish the OGL had been
> written in such a way as to classify certain things as
> 'game elements' and the rest as story and setting
> content.
If you'd been around a year ago, you could have watched the spectacle of me
flailing around publicly trying to do exactly that. However, the RPG is a
narrative form, not a simple equation, and it cannot be reduced into "rules"
and "non rules". Somewhere between a simple stat block and a fully
described character with a backstory, objectives, friends & allies, visual
depiction, etc. the mechanics of a game transform themselves into a work of
fiction. Picking where that point is proved to be impossible. On the one
hand, that is irritating to the person who wants the "rules of the law" to
be spelled out clearly just like "the rules of the game". On the other
hand, it reveals that the RPG represents a whole new kind of art, just as
derserving of broad copyright protection as sculpture, motion pictures,
software, and architecture.
> I'm sad that WOTC is appearing to take a different
> view of this, and it looks like it will never be
> resolved unless someone actually goes to court over
> it, which _nobody_ wants.
An interesting thing happens when an industry adopts a standard licensing
framework. After a few years, the courts start to give that framework the
force of written law. Ever wonder why insurance contracts are full of
language that makes no sense, terms you see nowhere else, and things that
seem to mean the opposite of what they do in common parlance? It is because
the law of contracts as applied to the business of insurance has formed
itself around the business practices of insurers. The same concepts apply
to real estate, divorce law, and to many other forms of endeavor both
commercial and noncommercial.
There is a very, very good chance that in years to come the OGL will come to
be viewed by the courts as the "way the RPG industry licenses copyrights",
and it could easily become the foundation of a whole standard set of
precedent that will finally shed some light on our little corner of the
Title 17 world. In that fashion the basic work that we are engaged in today
could have lasting implications for many years to come.
The OGL is barely a year old, and has been used in practical application for
less than a year. As time passes, its use will become more and more
codified, with more and more precedent behind it. Publishers will learn and
adopt techniques for using it which prove safe and effacious. And from time
to time there will be suits and those suits will further shape the scope and
nature both of the OGL itself and the copyright laws as they apply to RPGs.
There is no way to speed this process up; no way to simply transition from
the prior state to the evolved state without enduring the many years in
between. You cannot have a baby in one month by getting nine women
pregnant. Likewise, before something becomes a "standard" or a "well
understood mechanism" time must simply be allowed to pass.
Ryan
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