From: "Kal Lin" <[EMAIL PROTECTED]>
> How "infectious" is the OGL?
The "infection" in the OGL is the derivative works clause of USC Title 17,
the US Copyright law. If a work based on Open Game Content is considered
"derivative" of that Open Game Content under the terms of that law, that
work must also use the OGL.
This looks clear, but it's really clear as mud. The problem is that
"derivative" is not defined by Title 17; the definition of "derivative" is
left to the courts to determine on a case by case basis. The case law, as
it relates to games and "instructions" is very, very vague.
The Free Software Foundation, and the Open Source community in general,
chooses to take an extreme and narrow view of the copyright law. In their
eyes, >any< use of >any< copyrighted code, no matter how trivial, creates a
work derived in part from that code; and in the case of the GPL, the
derivative work in the whole may be distributed using only the GPL as as
result.
Copyright law covers the specific expression of ideas, not the ideas
themselves. The "idea" of a roleplaying game cannot be copyright. It might
have been eligable for a patent in 1975, but that window closed long ago and
nobody can reopen it.
So, the question becomes: "in the context of the rules and materials of a
roleplaying game system, to what extent does the copyright law cover those
rules and materials?"
Just so you know, there is no clear and definitive answer to this question,
because no significant copyright case has ever been brought to trial and
received a final judgement from a court involving roleplaying games. There
have been several suits filed, all of which have been settled out of court,
and it is generally acknowledged that such settlements have favored the
plantiffs.
Here's the definition that Wizards essentially uses to determine if we
should take action against something we consider infringing. If a work
could be considered "infringing", it can also be considered "derivative".
Thus, these tests provide some guidence as to what the OGL can "infect". A
similar set of tests is probably going to be used by the copyright holders
of Open Game Material in the event that someone tries to break and/or
challenge the OGL.
We believe a work may reasonably be held by a court to be
infringing/derivative if:
1) The material contains exact quotes longer than a few sentences from a
copyright work and it would not be considered a "fair use" of the work as
described in Title 17.
2) The material would be considered a "translation" under the terms of
Title 17; including a simple "search and replace" on the game terms or
proper nouns used in a copyright work.
3) The material contains references (i.e. "names") of characters, spells,
locations, magic items, monsters or gods to copyright material that is not
in the public domain.
4) The material uses the specific expression of the standardized stat
blocks defined by the core game system without altering the order or the
meaning of the items in that stat block.
5) The material claims to be "compatible with" or "designed for use with" a
specific named game system.
6) The material consists of descriptions of characters, spells, location,
magic items, monsters, or gods formatted in the same fashion as the standard
templates used in a copyright work, and using the same descriptive terms for
abilities, skills, and special powers as defined in that copyright work.
Now, you can certainly find any number of people (including a lawyer or two)
who will tell you that none of the above six tests are valid and that there
is no way to use the copyright laws to protect the use or re-use of game
rules.
And, you can certainly find any number of people (including a lawyer or two)
who will tell you that copyright law protection extends even to the merest
reference of game system terms in a work and is a suitable tool to keep such
material out of the market.
Because the OGL is a copyright license and because the copyrights are held
by the contributors, there it will be up to each contributor to determine
when, and if, to pursue someone else for infringement or for violating the
terms of the license.
Ryan
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For more information, please link to www.opengamingfoundation.org
