Dec 042013

Creative CommonsCreative Commons and the Open Game License were supposed to herald a new, open, era of gaming in which we see games being released to a broader audience for enjoyment and consumption but also for creation of content. However, one often overlooked fact is that many of these licenses wrongly provide a sense of protection that is not available within certain works, and also cause confusion both about the degree and extent to which content is freely licensed as well as the legal uses for content outside of an explicit general license.

Copyright law explicitly does not protect the means or rules by which a game is played. This does not necessarily mean that the play itself is protected; video games are protected in part because they are software and in part because they are a means for parsing rules, but tabletop games and board games have never really enjoyed this same protection. This does not mean that it is safe to merely copy other peoples’ works, but the idea that a d20-driven system should automatically be placed under Wizards of the Coast’s OGL is fallacious and absurd. Of course, Dungeons and Dragons and its derivatives under the umbrella of the “d20 System” are protected textually, but a clean-room reverse engineered game that is compatible with the play concepts of Dungeons and Dragons as well as the character sheets would likely be entirely legal, barring trademark issues with terms such as “Armor Class”, which isn’t a terribly huge concern in the grand scheme of things.

In addition, these games often have third-party content created for them without any official licensing existing in the first place. This does not necessarily mean that there is a solid legal precedent for doing this, but a case could be made that troves of amateur third-party content is freely available for most games, and in cases where no original content is duplicated there is no case under copyright, patent, or trademark law precedent that would actually count as infringing. Compatible “stat blocks” for games are likely protected only in the most dubious cases, and there is a blank form doctrine that likely applies. On the other hand, this does mean that third-party content is expressly forbidden from even mentioning copyright protected elements (places, things, or events) and has to avoid the use of trademarked terms, but even then the precedent for a lawsuit is not there, especially if the attempt is to supplement rather than supplant the original work. Third party adventures and supplements have existed without official legal recognition for a long time, and we have rarely seen instances where they hurt the original game or bothered the publishers enough for them to take action, especially given the legally dubious nature of suing someone who has created entirely original content that doesn’t actually replicate any copyright protected elements of the work.

As a footnote, means of play can theoretically be patented. I know of one case of this, and one case only, and I’m not sure it was ever invoked. It was likely a defensive action to prevent external legal action, and even then it would be only dubiously useful in the case of infringement; you’d have to do something that clearly violates something someone at the patent office thought was a truly revolutionary method of play and could never have happened before. In short, patent law being applied to shut down games is dubious.

The OGL is a complex, complicated legal framework likely established in order to make Hasbro’s shareholders happy as they divested some of the components of an outdated version of Dungeons and Dragons. Mind you, that’s not to be mean to 3.5, Pathfinder, or any OGL licensed work, but the OGL has several key flaws. First, it’s not human legible. The OGL is about as long as this article, and it’s written in Lawyer’s Cant. It likely applies, ironically, to the dubiously copyrighted parts of text, the rules and mechanics. While the one upside of the OGL is that it does distinguish between individual facets of a roleplaying game (unlike CC licenses, which I’ll get to in a bit), and does allow for a good chunk of the text to be used, including such elements such as a Dwarf with a -2 Charisma and +2 Constitution (accuracy be darned), which would at least have a plausible chance of having a copyright lawsuit filed that doesn’t get laughed out by the judge. However, the fact that Product Identity is included and protected in a non-free manner may be a stumbling block, especially since the line between whether or not certain things constitute your product’s identity can be somewhat blurry. It’s not a very free license in the long run, though third-parties can apply it in a more open manner. Also of interest is the GSL, which allows people to make 4th Edition compatible material, showing that the point of this licensing is more likely to prevent unofficial D&D-setting sequels rather than third-party additions or alternative rulesets, such as [edit…] stuff like what Pathfinder and Spycraft did for the 3.5 ruleset; obviously under the GSL it’s not possible to create stuff that integrates under the old rules, but it’s still possible to integrate third-party content into the 4th Edition system.

Creative Commons is a good license, and a good license, and several bad licenses. The main issue with CC is that it encompasses a dozen or so different license “packages”. Most of these “chain”, meaning that the most restrictive thing morally applies, though legally something without the “share-alike” clause can be licensed under whatever scheme the holder wants. The Attribution clause is really the only true open clause, anything with the non-commercial or non-derivative clauses is far from open in a realistic interpretation of the license. Share-Alike is tricky, since it leads to what’s called viral licensing, where it means that anyone who makes a derivative is forced to license likewise, which is not terribly free. The Creative Commons public domain license likely should be rebranded (Perhaps Public Domain by Creative Commons rather than CC-0) to mitigate the implied relationship between CC and the public domain, though it is a nice tool for such a release.

In short, in order to actually have “Open” tabletop gaming, we need to consider multiple facets, something along the lines of the more open CC licenses with the differentiation provided by the OGL to produce a truly nuanced and unambiguous license that allows for differentiated licensing within individual projects.

Image used with permission from LuMaxArt.

Kyle Willey

Kyle is a future educator as well as a game design theorist and practitioner, essayist, and reviewer of various, mostly gaming related, things. He can also be found at Kyle's Game Development, which he updates at least four times a week.

  14 Responses to “How “Open” Licenses Harm Tabletop Gaming”

  1. So what you’re actually saying is that you don’t like the commonly used open licenses and would like for someone to come up with a better one, and not that open licenses are a bad thing.
    But even so, how does the existance of open licenses harm games? Who would benefit if those licenses did not exist?

  2. While I am interested in what this article has to say, I find it nearly as difficult to parse as you say the OGL is. It needs to be rewritten to clarify your points, examples of how the various aspects of CC licensing would help that section immensely as would examples of how things have been used in general.

    Also, the end of the fifth paragraph is missing an implied example.

  3. First, thanks for your article.

    As a rules set author, I made an effort to read up on the various “Open” licenses available. The CC license seamed to make the most sense to me and the language did not appear to imposing. Although I have often wondered if other people maybe confused by the share-alike and just what it covers.

    I tried to make a plain English “legal” page to clearly state my license did not cover world settings, only rule changes to the core system. the idea is to get people to use the rules and then offer feedback on what they found to work better. At that time I would either role these changes back into the system or list them as alternate rules.

    But I am not certain this message is getting out….and so your article makes me ponder this yet again.

  4. Sean,

    Ah, sorry, just saw the end of the fifth paragraph; I intended to plug in something mentioning the multitude of setting expansions that gave 3.5 so much life, and then forgot to actually look up and provide an example. Something like Spycraft, for instance, had it been published before d20 went OGL, would have been a suitable example. I’ll fix it in a little while.

    Unfortunately, I tend to write pretty verbosely. I’ll go back and try to clean up some of the worst bits and make it read a little more fluidly.

    Yora and Chris,

    Your comment posted after I started writing this. Basically, my complaints are two-fold:

    The OGL is only dubiously open as far as things go, being sort of the mother of all chaining licenses.

    On the other hand, Creative Commons can satisfy the need for open licenses, but also provides falsely open licenses and -SA content license chaining is a problem.

    To fix this I personally use a solution I call “FAULT” which essentially involves putting everything in separate folders by the CC license used (it’s not OGL compatible) then licensing the final work with the appropriate chaining and distributing the other stuff similarly. It means that my text is available in the CC-0 or CC-BY I prefer, but I can still create a work that meets -SA or -NC requirements.

  5. I am not a gamer but this was actually quite interesting. I had no idea there was that much involved with gaming these days! As opposed to the simple days when you just got online and played with/against other folks.

    Also I want to learn more about Creative Commons as I’ve heard it mentioned and used frequently in the blogging world. Thank you for the post ! 🙂

  6. Hi Kyle, you haven’t established any harm, and you’re also drawing a long bow (pun intended) in your argument that the OGL is faulty.

    • Robert,

      I made an RPG rules set like the d20 system which is what Dungeon and Dragons is based on. These systems are not what would make a complete game. They are really the rules of the game with a selection of premade species. With that a person can make their own gaming world to run your friends through, or if the environment is good enough, sell. There are premade gaming worlds that are also sold by the company that makes the rules, Wizards of the Coast the makers of the d20 system also make the Forgotten Realms setting which has been around for a while now. In the forgotten realms you get the major races, the kingdoms and political powers, the history of the land, and of course the major heroes and villains. These setting are very detailed and it is this that your role playing group will play in. So any roleplaying game has 2 large components for the players; 1 is the rules and 2 is the setting. What I have made and what I am still working on are the rules.

      The amount of time spent designing these systems is great and I have 3 main concerns:
      1) To get someone to use it.
      2) That person gives credit to my effort and not just try to rebrand it for themselves.
      3) The person using the systems offers feed back.

      It’s 2 and 3 that are really at issue here.

      I do not want to limit someone that makes use of my rules while still getting credit for my effort. As I see it there is a clear separation between rules and setting. But since my system includes rules to design custom species and classes (professions) and a user can spend as much or more time designing a setting, at what points does a custom species that is key to the history and or back story the setting becomes an issue in regards to the license and specifically the share alike. This can make a person that is thinking of using my system simply say no, its my work, my effort and I do not want to share. So how do I say to this person, look I am only interested in the changes to rules that you make, not your setting. But for them the rules changes are a part of the setting. My solution was to try to explain it in a “legal” page what the share alike portion covers, but I do not think people read it. They just see a CC-BY-SA.

      I have been thinking of dropping the SA portion of the CC license just to remove any concerns over what they MUST share…and that is were the harm comes in with the SA portion of the CC license. Its a stand off between my wanting others to use my work as a basis for their work and sharing rules changes and them wanting to keep control over their own work. I have not even gone into a third party want to use both my rules and the other persons setting. What if the settings owner did not have a SA on their work and the third party used it anyways because the thought my SA applied to the setting regardless.

  7. Robert,

    The OGL is not actually reflective of copyright law. Much of its use can be inferred to state that Wizards holds a sole right to the mechanics of the d20 system, which is entirely fallacious. In addition, it is terribly difficult and complex to understand and apply.

    • Kyle,

      So what do they own?

    • Depending on how you want to interpret copyright law, exact text (definitely), certain creatures and features such as spells, religions, and so forth that are entirely original, anything that uses their settings (almost certainly), original statblocks (likely), and not much else. Mechanical compatibility is fair use by precedent, most likely. They hold a lot of trademarks, though some would be difficult to enforce, like “action point”, and someone could make a compatible system that eschews these terms.

      Disclaimer: I’m not a copyright lawyer, so don’t go to court citing me.

  8. I’m still unclear what the “harm” is. People also aren’t explaining any fundamental separation between the “fluff” and the “crunch” that hasn’t always been the case in the RPG industry.

    Also trying to equate it with the software industry is also unhelpful as the software industry has defined processes and tools to fork code bases.

    I also wonder if you’d have a different attitude if you were talking about Savage Worlds and it’s derivatives and not D&D and its.

  9. Robert,

    The distinction between crunch and fluff is important in copyright law; the “fluff” is theoretically subject to protection, while the “means of playing a game” are explicitly not. The harm in the OGL is explicitly that it attempts to expand copyright beyond where it should. CC, on the other hand, is often used in ways that don’t actually accomplish its goals, such as the -SA and -NC licenses, which are fine but not really open.

    Comparing to the software industry is a tool we’re using here because it’s where the precedent in case law stands with regards to stuff like this.

    The reason I let Savage Worlds escape my ire on this is that they don’t really claim to open-license their content, while the OGL is essentially a “we’ll license some things, many of which are not actually protected by copyright, and others of which could be replaced easily with a non-violating creation”.

    • Many software eulas have attempted to extend copyright protection, and have failed. You may dislike OGL but you still haven’t demonstrated any harm.

      I’d also like to see a reference to the case law that you say establishes software code establishes precedence for the RPG industry. The cases I know of have been cast in the context of the wider entertainment industry

    • Copyright law is nuanced. Precedents are cross applicable because the methods of playing a game (i.e. the mechanics and the numbers) are not protected by copyright, as is the actual action of a software. It may be possible to patent means of play (I’ve only seen it done once), but it does not allow the sort of security that many people would want. While there are some specialized copyright laws, such as those for the compulsory license of music, if it’s under copyright it’s usually subject to the same rules as anything else, and the text of tabletop games is protected while the mechanisms are not.

      The good analogy for this would be a drawing of a face. I can draw someone’s face. Then someone else can draw the face. We are both fine. However, if they drew a face based on my drawing, they’d be in trouble, because they’re violating my copyright. If someone decides that attacks should miss if a die comes up below 12, and someone else decides that attacks should miss if a die comes up below 12, the rules are the same.

      The reason why EULAs have failed is that they attempted to expand copyright law. Modern licenses rely on having users sign a contract, and then use the contract for any needs. This is because copyright law doesn’t allow you to not let end users resell stuff (in fact, first-sale doctrine explicitly protects this) or lend it to their buddies. I’ve got a ton of copyrighted books I could mail you a copy of, and I’ve got a ton of copyrighted software I could do the same with. However, I couldn’t give you access to my account. The reason why the software companies wanted to do this is beyond me, because it’s fairly obvious to those that know copyright law. However, this is very different than the OGL; most of these cases would have been obvious, direct, not-a-chance-of-fair-use infringement were it not deemed that operational copies of software don’t typically count toward infringement.

      In OGL, however, we see a lot of fair use or even unprotected elements being stifled between games because people don’t want to risk a lawsuit by Hasbro or WOTC lawyers, but there’s no reason to worry about this.

      The reason OGL harms the industry is because people falsely assume that they have to operate under it if their product could ever be at all conflated for having been taken from d20, so they just use the OGL in conjunction. For instance, if I had a d20 game in which characters have an armor ability that functions unquestionably identical to AC, I’d be fine (barring the fact that Armor Class may or may not be protected under, say, a trademark, which I doubt). If I create a system that is 100% d20 compatible, but I don’t market it as belonging to WOTC, even if most of my mechanics are copied straight from the game with only rewording, I’d be fine under copyright law. Of course, if I copied the text and rewrote it, I’d be in trouble, so I’d be better off if I had clean room reverse engineering, just taking the functions and mechanics and handing it off to someone to write from scratch. It’s a horrible chaining license, only slightly more free than the least free of the CC licenses, and it blends copyright and other IP laws with “product identity” provisions, which are useful for novices but, to be honest, are conceited and pretty dumb.

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