Biblyon the Great

This zine is dedicated to articles about the fantasy role-playing game Gods & Monsters, and other random musings.

Gods & Monsters Fantasy Role-Playing

Beyond here lie dragons

Three OGLs walk into a bar: The Return of Gruumsh

Jerry Stratton, January 25, 2023

TSR and rights: Larry Smith: I think only when TSR is forced to defend its real and legitimate rights it won’t have time to defend the ones it made up.; TSR; gaming copyright

This quote comes from 1996 or earlier. The TSR/WotC/Hasbro war on gamers is not a new one.

Hasbro’s messing with the OGL has been in the gaming news now for several weeks. I’ve generally stayed out of it. This is not a fun way to celebrate the 49th anniversary of D&D (observed).1

I hope we find a better way to celebrate the fiftieth anniversary next year.

I long ago decided that the OGL was pointless for most of the things people use it for, and certainly for anything that I would use it for. The OGL adds severe restrictions on what you can do with otherwise free content; it gave nothing in return. Its sole purpose seems to have been to dump everything that you can do legally, without permission, under the umbrella of “product identity”.

“Product identity” is not a term in copyright law; it is a made-up term meant to sound like “intellectual property”. If you agree to use the OGL, “product identity” restricts you in ways that don’t normally exist under copyright or other intellectual property laws. The OGL seems designed solely to deny game writers what they would have the legal right to do if they ignored the OGL.

One of the first series I wrote on this blog was on gaming copyright and what makes a good open license for an RPG. The OGL failed on almost every point.2 So I never used it, even for my own D&D-like game which came out about the same time as the OGL—and was a lot more like D&D when I first published it (see below).

Rob Conley recently called for stripping OGL language from your gaming materials:

I would urge everyone involved in D&D design or content creation to strip out all OGL language and ensure your rules/content is open source and fair use or whatever the appropriate terms are for gaming.

Depending on the interpretation, this is what I’ve been saying all along. The OGL has never been necessary to make content for use with D&D, even complete clones. The OGL is, as Michael S/Chgowiz wrote on Bat in the Attic, an illusion of safety, and “there’s a generation or two of publishers that have lived with the OGL illusion.”

Now the illusion has been pulled back, and some people are understandably frightened. Take this from a commenter on the OD&D Workshop:

The adage that you can’t copyright game mechanics is generally taken too far, and if you basically copy a whole game by just re-wording it you’ll almost certainly still be in trouble with (in this case) Hasbro.

This is the fear talking; it is completely untrue. We know it’s untrue. It’s already been adjudicated in games across the spectrum of kinds of games, from Monopoly to consoles. That’s what I discovered when I researched Why do we need open source games? and I’ve found no evidence that it’s changed since.

It is very difficult to break copyright law when writing game materials. Game mechanics—which is to say, anything needed to play the game—absolutely cannot be restricted. The U.S. copyright office stated it very clearly in their old circular 108:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.... Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game.

Courts have been very clear on this. Even in cases where (software) companies have required blatant trademark violations in order to use game mechanics, the courts have said, well, if you require a violation for people to use the game, then it’s no longer a violation.

See, for example, Sega v. Accolade. Sega made it so that any third party making games for the Sega game console would have to make it look like that game was authorized. That’s a clear trademark violation. The courts said, well, Sega, you made this requirement. Any violation is on you, not on the third parties making games for your machine.

Lego as a gaming tool: Legos used to create the villain’s lair in Top Secret with Merle Rasmussen.; Lego; North Texas RPG Con; NTRPG Con

Who owns this? Lego, TSR, or the people who created it using Lego and Top Secret as tools?

In other words, anything required to play the game cannot be restricted material.

Lists and tables (tables are lists) that simply summarize what’s in the text, cannot be copyrighted. You cannot, for example, be forbidden from going through the OD&D or 5E books, compiling a list of equipment, and publishing that list. If your list happens to look like the official list—as it should, given that both are comprehensive lists—that is not a copyright violation. The same is true if you go through the book and compile a list of specific kinds of equipment, such as a list of armor, a list of swords, a list of weapons only usable by fighters, and so on. Your list is very likely to look like any such list already in the book, and making lists cannot be restricted, so those lists cannot be copyrighted.

Names of monsters, titles of spells, words for aspects of the game cannot be copyrighted. You can use the names of places, creatures, classes, etc. You can use the word “hit points” or “levels”, “strength” or “saving throw”, “cleric” or “magic missile”. They are part of the “idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game.”

It isn’t just the game mechanics (at least as we think of them as gamers). It’s that the game itself cannot be restricted from use by game players and game writers.

Creating a violation of a game copyright is very difficult. You would have to go to the trouble of retyping actual explanatory text at length, or scanning and reusing non-necessary illustrations, to violate copyright. Barring graphic re-use in the manner of the old TSR3, I’m not sure I’ve ever seen any supplement from companies publishing the rulebook the supplement is for, contain content that would count as a copyright violation if they were a third party.

This is true even for complete clones. And this is not something I’m saying, hey, you go first. When I wrote the Gods & Monsters rules, they were explicitly a rewrite of AD&D, and I explicitly made sure that WoTC (in the form, at the time, of Ryan Dancey) saw it. I’d been part of a Usenet discussion with Dancey, and had been publishing adventures and other material online to counter his extremely dangerous interpretation of copyright and trademark law.4

Because I wanted my game to be open source rather than public domain5 I chose to use a real open license; there were fewer available at the time, and I went with the GNU FDL. The OGL was available, but clearly a bad idea even then.

Over time, Gods & Monsters has morphed from being an exact clone, but it’s still compatible with AD&D adventures, and its adventures are still compatible with AD&D rules, in the same sense that OD&D, D&D, AD&D, and AD&D2 are all compatible. I also have published several of my old adventures that remain completely compatible with and specifically designed for AD&D.

None of what I write about here is an edge case. It’s neither a grey area nor a loophole. The law and its purpose is well-established. Everywhere else in U.S. commerce, people make things that are compatible with other things, they say that their products are compatible with those other things, and U.S. law encourages them to do so, to encourage competition. Motorcycles. Automobiles. Kitchen appliances. Snack foods, even. Games are different only insofar as their underlying product has even less restrictive ability than motorcycles and appliances—but not necessarily snack foods, which also have little restrictive ability, being recipes.

The ability of third parties to use and extend copyrighted works—or trademarks, for that matter—is the underlying purpose of copyright and trademark law in the United States.

Being able to create compatible works, to refer to content, to expand on existing products, is the reason we have these laws.

In response to Why do we need open source games?: If game rules cannot be copyrighted, and if compatible supplements require no permission, what is the point of an open content game book? Over the next three installments, I’ll look at how open content licenses can make for better gaming.

  1. Semi-officially, January 29, 1974, is Jon Peterson’s guess for the first sale of Original D&D, which is as good a guess as any, and probably better than most.

  2. I did have to give it props for having a relatively short required text compared to other licenses at the time.

  3. TSR used to reuse graphics commissioned for one book or magazine in other books and magazines. Assuming that the graphics are not necessary to play the game, as they rarely were, images are not something a third party could reuse.

  4. Dancey’s position was that if you wrote an adventure—or anything else—compatible with Dungeons and Dragons, Wizards of the Coast automatically owned that adventure. He further explained that if you write computer software, that software is automatically owned by the computer manufacturer. He claimed there was a vast, invisible conspiracy of EULA’s to allow the writing of computer software, and that every programmer had signed on to this conspiracy whether they wanted to or not. This is so ridiculously and obviously wrong that I’m still not certain he wasn’t just trolling us.

  5. This was the result of a long thought process; I could easily have chosen a public domain release instead. Ultimately, the problem with the public domain is that it relies on the definition of public domain remaining the same over time. I chose to use an open source license so that the lack of restrictions on using the game would be explicit. I explain this further in gaming copyright.