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Tuesday, March 10, 2015

OGL - Boon, Bane or Curse?

There was a bit of a kerfuffle last night on G+ regarding the OGL, as one small publisher has taken to republishing another small publishers work word for word - no addition or subtraction, just a copy paste job. Legal under the OGL, but bad form and in and of itself a reason not to leave one's products totally open under the OGL (my suggestion was to ensure each product contained Product Identity and designate that pieces as such.)

Sine Nomine does fine publishing OSR products under copyright - no OGL. Others do the same even though the vast majority do publish under the OGL.

Now that the cat is out of the bag and the OSR is full of clones and such built upon the OGL, how needed is the OGL going forward?




48 comments:

  1. I love Sine Nomine's games a lot, they're completely amazing and they're definitely a cornerstone in how I run my games, I refer to them daily.
    But coming from my own philosophical and political perspective, republishing word for word another publisher's OGL game is completely kosher and I have a lot less problem with that than I have with SN's copyright philosophy.

    They changed the name, right? (OGL doesn't cover trademarks.) I didn't see the discussion beyond what you posted here. As long as they credit everything appropriately and stay within the realm of what the OGL legally allows, I'm 100% cool with republishing. I hope more people embrace the OGL and CC-BY-SA.

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    1. What's being violated here isn't a legal principle, but a social more. He's adding no meaningful content of his own to the pieces, just repackaging them and asking people to pay him money for the resultant file. For a lot of people in the community, that's not behavior they want to reward, and so they're castigating it. Personally, I've got no use for valueless retreading that doesn't even pretend to add any personal creativity. It's contemptible, and the "author" should be ashamed of asking money for this exhibition of his creative incompetence.

      My own philosophy with my material is very simple- I get paid for what I do. If someone else wants to lift the mechanics and ideas from Stars Without Number or one of my other games and just rewrite them in their own words, that's entirely ethical and within their rights as creators, because mechanical ideas cannot and should not be the copyrighted property of any one man. If somebody wants to sit down and write their own world tags or make up their own generation tables, that's laudable and I've gone to substantial effort to make it easier for them with the file templates I've released. But if they want to use my specific words and my specific IP, well, that's where the dollars start to get counted. I stay away from the OGL because it only serves to muddy that basic distinction for me.

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  2. I like the OGL and have been a supporter of it for 15 years.
    I happily publish my OSR/d20 materials as 100% open because I like giving back to the community that has given me these wonderful toys to play with.

    Does that mean someone can take my work and republish it all? Yes and in fact some have. I have seen all my spells in other books. That's just the nature of doing business.

    I also like the safe harbor the OGL provides. I know what the rules are and how to abide by them.

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  3. As Tenkar mentioned, this wasn't really a case of adding or simply using the other person's product. They simply took an existing pdf, changed the art and layout, and republished claiming authorship.

    It might be technically legal but it's shitty behaviour.

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    1. I know. I bought a couple of the offending products and compared them to the originals to see for myself.

      It is tacky and certainly a violation of the spirit of the community, but again part of the risk. For me what I gain is worth that risk.

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    2. I agree here. It is one thing to take a few spells an republish them in a new product. In fact, for example, if I publish spells in "Goldenrod" (or a rule for that matter) that someone likes and wants to incorporate or alter in their own work, I find that to be great and very much in the spirit of the OSR. On the other hand, if someone does a copy and paste of the entire work and turns around, selling it as their own work, that is dirty pool.

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  4. I like the idea of genuinely open licenses. The OGL is not one - it's a license that is very restrictive, and that has overcomplicated the independent RPG publishing scene. People interested in making real open content should be using Creative Commons rather than the OGL? Publishers should stop using the OGL as a "lawsuit shield," which has unintended consequences as we've seen in this latest case.

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    1. I think this is generally sound, but I really would prefer to have an IP lawyer take a good hard look at the OGL and the CC license group and identify what risks there are if any with using them together in a work. Heck, I'd be willing to contribute 500 or so to that. Even if the outcome is "there's no problem here" I think we'd still end up with authoritative guidlines for things like identifying what components are under what license.

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  5. Morally, I'd say that this is like cutting into a long line at the grocery store, or parking so close to another car that the other driver can't open the door. Technically you might not be breaking the law, but you're still being an a-hole.

    I think that the OGL has done much more good than harm for the community - the whole OSR would be a lot more risky and precarious without it - but it's not perfect.

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  6. Correct me if I'm wrong, but if someone takes the time to specify what is or isn't OGL in a product, they have protected themselves from this.

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    1. Yes. You can designate content as being Open or Closed. Open, people can use, Closed they can't. I will "Close" the names of things that people have let me use, but leave the crunchy bits Open.

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    2. If you specify content as "Open Game Content" in a product, that content can be reprinted under the OGL. If you specify anything as "Product Identity," that part of the material can't be reprinted or mentioned without a separate license.

      Anything that you want protected should not be made Open Game Content. It should be specified as Product Identity.

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    3. Therefore, while it sucks that it's happened to someone, it's actually extremely easy to avoid this while using the OGL. In other words, what happened is not a flaw of the OGL.

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    4. You are absolutely correct, Bruno.

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  7. I purposely have all the text but name of the game, my name, etc. open game content in Microlite74/78/81/etc. games as I want people to be able to use the content. Yes, someone might republish them changing only the name, my name, and such, but so what? I'm given them away for free -- and even if I wasn't, I refuse to punish everyone by making it harder to reuse my content under the OGL just because 1 person out of hundreds or thousands is going to be a jerk about it.

    Hell, I've been publishing non-gaming stuff under what amounts to an open license since the late 1980s and I've only encountered a few jackasses who really abuse what I've done. I don't let jackasses win.

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  8. We publish everything as 100% OGC including our setting material for Porphyra. We also make out Porphyra maps available as stock art so if someone else wants to publish in Porphyra they can.

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  9. One option that isn't really being discussed here is accept this sort of behavior as an acceptable situation. In other words, if you want to make your content as widely reused as possible, you might choose to place it entirely under the OGL as open content, and know that this is a possible outcome. But even though a smarmy agent is involved, it doesn't harm the goal of your created content being used as widely as possible.

    However, if one of your goals is to make money selling your content, you should probably, for practical purposes, not place all of it under the open content designation. Or you should probably accept that this is outcome is a risk you are taking that you are likely to not be able to do much about.

    None of this excuses the ethical actions of the copier in scenarios where clearly no one was inviting wholesale product duplication. That's different.

    I'm just suggesting there are different positions to put yourself in as a creator where you can make choices about what you're prioritizing, and that allow you to be at peace with the possible outcomes.

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    1. That's the rub... people feel robbed, ie loosing something of value, when value hasn't been lost, it's only being created; unless there was an unstated goal of making money, or getting recognized... in which case, using a different license or specifying OGC and PI should have been done up front.

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    2. To be fair, some harm is done. Trust is lessened. Confusion over product duplication occurs.

      The most surprising thing here is there's NO REAL MONEY to be made in this market. Why bother?

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  10. Back when I was running a small-press game company, I spent a significant amount of money on lawyers to help me understand the OGL. While the word-for-word repackaging is smarmy, it is legal within the OGL since all of the content was declared open.

    The solution would be for the original publisher to declare key parts as Product Identity. So, for instance, with a book of original spells all spell names are declared as Product Identity, but the spell descriptions and mechanics are declared as Open Game Content. That way, the smarmy word-for-word copy "artist" would at least have to provide new names for the spells. Because, really, the OGL was designed to make just the game *mechanics* available for use by other parties.

    To Erik's question of whether the OGL is necessary going forward, well, that's a yes-and-no question. Look at S&W for instance; S&W was written using Open Game Content and was released under the OGL. If someone wants to publish something based on S&W and use content from S&W, they must also release under the OGL. You can't take Open Game Content released under the OGL and close it, or release it under a different license (like CC).

    Now, theoretically, one could re-write Open Game Content mechanics in their own words and release that under a non-OGL license under the technicality that game mechanics are not protected - only a specific expression of a game mechanic is - but I would really recommend speaking with a lawyer about that first.

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    1. The problem I see with making the names of things like monsters and spells Product Identity so as to thwart people who might otherwise copy the entire product and resell it under a different name is that it also hurts more legitimate use, For example, anyone who wants to make an adventure or setting for your product has to rename all the monsters and spells making the adventure or settings just that much harder to use with your game. This means the adventure or setting looks more like an adventure or setting for some other game that yours. As far as I can tell all the ways I've seen people use product identity to try to make it hard for people who will abuse the OGL also makes it much harder for those who aren't going to abuse it. I'd rather not punish myself and the innocent to slightly inconvenience the guilty.

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    2. The way WotC handled that originally was to create a second, more restrictive license for the d20 trademarks. Matt Finch did that with S&W - there's a separate S&W compatibility license as well as the OGL.

      See, the thing is, if you're going to release all your work as open content under the OGL, you have to accept the ramifications of that action. So if you don't want to "punish" the innocent with product identity and/or a separate trademark license, you can't really complain when someone does something smarmy with your open content. You can't have it both ways under the OGL; it's open content, or it's not.

      Please understand, I'm not advocating the actions of the *ahem* "publisher" whose actions spawned this whole debate. It's smarmy as hell. I'm just saying that you have to be prepared for it, and you can't really complain about it, when you declare ALL your content as open and something like that happens.

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    3. I'm with Randall making the names of spells and monsters product identity that can't be reused without express premission is a pain. It encourages someone to copy everything they want and the ony way anyone would know about a monster or spelll as origniall presented is a by reading a section of the OGL deceraiton Instead of "See Bob's Awesome Mnsterbook for the full description of Klicknocks and other aesome monsters".

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    4. I'm with Randall making the names of spells and monsters product identity that can't be reused without express premission is a pain. It encourages someone to copy everything they want and the ony way anyone would know about a monster or spelll as origniall presented is a by reading a section of the OGL deceraiton Instead of "See Bob's Awesome Mnsterbook for the full description of Klicknocks and other aesome monsters".

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    5. AEG used to include a license in their d20 products authorizing people to use names that were protected as Product Identity, with certain caveats. I thought it was a nice solution. They could still control their IP/PI, but it was also possible to reuse it. It basically ran alongside the OGL.

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  11. Regardless of licenses, copy & pasting someone's work and selling it as your own is kind of a jerk thing to do.

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    1. That kind of stuff gets you kicked out of college

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    2. Yup, plagarism is still plagarism even on copyrght free works.

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  12. So, the products in question were for Labyrinth Lord, so in order to comply with the LL license, they had to be OGL. Victim-blaming "you shouldn't have used the OGL" rhetoric is both uncool and naive.

    In addition, the original products were being sold for $1. Undercutting those products in this way isn't just shady, it's petty and unnecessary.

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    1. Kirt -- Isn't there a stipulation in the OGL in that one can identify open gaming content vs. non-open gaming content in one's product?

      I'm not saying what the other person did isn't dickish, but if one is going to use a gaming license like the OGL, one needs to know how to use it *correctly*.

      There are ways to release a product under the OGL and still identify one's own content as closed.

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  13. So, the products in question were for Labyrinth Lord, so in order to comply with the LL license, they had to be OGL. Victim-blaming "you shouldn't have used the OGL" rhetoric is both uncool and naive.

    In addition, the original products were being sold for $1. Undercutting those products in this way isn't just shady, it's petty and unnecessary.

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  14. We are talking about two things, what's legal and what's ethical. The actions described are unethical, but they are legal. Not much one can do about it.

    For myself, I'm contemplating how to publish Heroic Age. As OGL, I could protect the Tekumel content as Product Identity, and have the game mechanics OGC. You can do the same thing under CC. But I could also publish at as normally copyrighted material -- All rights reserved. It's a question that everyone needs to answer.

    I personally don't think that the OGL is broken..

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    1. I would go further. A small number of well-understood licenses is a great benefit, since everyone knows their rights and what the terms mean. The current brouhaha is part of our community learning the terms and meaning of the OGL better. We may not like it but ultimately we understand the legal situation better.

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  16. Describing the logical results of choices is neither uncool nor naive. Education is important, since clearly there is a disconnect between the use of open licenses between different groups of people. In the software circles where I first saw open licenses, a license that said “you may copy this exactly and even sell it” means exactly that. When I released Gods & Monsters under the Gnu FDL, that was part of why: so that people could republish it anywhere, changed or unchanged, under the strictures of the license.

    It is neither unethical nor smarmy to assume that when a work is released under a license that says exact duplication is allowed, the creator meant to encourage exactly that. It is part of what the licenses were created for. If there are creators releasing their work under licenses that encourage duplication when that is not what they want, we need to educate them on the proper means to achieve the results they want.

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  17. I see at least one person never heard of copyright before this. Text is copyrighted, in-so-far as it is a unique expression. The mechanics are public domain, because procedures can't be copyrighted.

    That means one thing, the OGL is useless.

    One more thing; has "illithid" been trademarked?

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    1. RE: copyright does not apply under normal terms of the OGL; if material is entered unto the OGC under the terms of the OGL, anyone using the OGL properly can use that material, verbatim, in an OGC product. Such is the nature of contract law. WotC placed certain select text, mechanical and otherwise, into a "limited-open" pool that anyone can play in, If you use that pool, anything derived from that pool is added to it, per the terms of the contract...

      So no, the OGL is not useless, as has been proven time and again over the last 15 years.

      "Illithid" is likely trademarked, though I have not looked lately. It cannot be used under the terms of the OGL, at least, in the fashion it originally relates, as the mind flayer was not added to the OGC under the OGL, and was specifically carved out from that pool of mechanics and terms and forbidden from use (though many similar creatures have been created over the years, much as with the beholder, the displacer beast, the carrion crawler, and others).

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    2. Illithid is WoTC Product Identity under the OGL.
      WotC might claim it as an unregistered mark, but have never offered goods or services under the mark AFAIK so such a claim would be weak.
      It is not a USPTO registered mark:
      http://tmsearch.uspto.gov/bin/showfield?f=toc&state=4804%3Az3ldra.1.1&p_search=searchss&p_L=50&BackReference=&p_plural=yes&p_s_PARA1=&p_tagrepl~%3A=PARA1%24LD&expr=PARA1+AND+PARA2&p_s_PARA2=Illithid&p_tagrepl~%3A=PARA2%24COMB&p_op_ALL=AND&a_default=search&a_search=Submit+Query&a_search=Submit+Query

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    3. Registered trade marks tend to be real badges of origin, such as "Dungeons & Dragons": http://tmsearch.uspto.gov/bin/showfield?f=toc&state=4804%3Az3ldra.1.1&p_search=searchss&p_L=50&BackReference=&p_plural=yes&p_s_PARA1=&p_tagrepl~%3A=PARA1%24LD&expr=PARA1+AND+PARA2&p_s_PARA2=Dungeons+%26+Dragons&p_tagrepl~%3A=PARA2%24COMB&p_op_ALL=AND&a_default=search&a_search=Submit+Query&a_search=Submit+Query

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  18. Wow, 15 years later and we are still debating all this?

    Under the terms of the OGL, what said company did was "legal" (under the terms of the contract... plagiarism/copyright laws do not apply due to the OGL) but certainly not ethical within the community.

    Under the terms of the OGL, that which is OGC or derived from OGC must be released as OGC into the OGL in an OGL product. Thus, anyone downstream can use the OGC in an OGL product, provided they list the source of the OGC in the OGL.

    The intent was to allow people to use the original OGC from WotC and any further developed OGC in a semi-licensed, we-won't-sue-you-like-TSR-often-threatened-to fashion. The hope was that a community of publishers and fans would grow up to provide all the kinds of support that WotC was not interested in providing, yet was necessary for the market to have interest in buying the core products.

    That succeeded, very well. Then, the OSR developed; some used to OGC through the OGL, others did not. Of those who use the OGL, the main two lines of derivation are Labyrinth Lord and Swords & Wizardry. Many subsequent OSR games use the cores of these, often wholesale, as the core of their mechanics, with their changes and bits and bobs here and there making up the differentiation. ACKS, for example, uses Labyrinth Lord; Crypts & Things uses S&W; and so forth.

    But in each case, each game added significant new elements or changed some significant existing elements.

    In the case of what is being discussed, however, the publisher apparently did nothing of the sort. He apparently cut and paste the classes from their original sources, with no changes, not even minor ones, though he did add some art and provided his own graphic design and layout.

    I cannot personally say if they were exact copies, but publishers who checked said that they were directly lifted from their products.

    In the five classes I downloaded before I heard about this, I checked the OGL, and his attributions all seem to be in order. He does list himself as the "author" of the version he published, though he apparently added nothing to the classes...

    While under the terms of the OGL, it is all perfectly legal, provided he does not include any Product Identity, it is a crummy move.

    In any case, I can no longer find the company at issue on OBS; though the five PDFs remain in my library, when I go to the company link the company and all of its products have disappeared. So either OBS dealt with the issue (as is their right, if they do not like the company's practices), or the company self-selected to remove themselves from OBS (this is likely the case, as the items purchased by a customer are still available).


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    1. You have to declare what is Open Game Content, and you can declare what is Product Identity. Between those two sets of declarations, is a third set that is still covered by traditional copyright.... meaning that if you do not claim content as OGC, but it isn't declared PI, it is still covered by copyright, so those parts cannot be copy-pasted.

      The mistake OGL publishers often make is their entire product (except for PI) is designated OGC. If they specfy only certain parts are OGC, those parts not declared as such are not legally allowed to be copied verbatim.

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    2. I don't think that's quite the case. You are publishing the work under the terms of the OGL. That means the whole thing is subject to the terms of the OGL - so something is either open or product identity.

      I mean, otherwise, there is no point in Product Identity, which is meant to cover the parts of the work that isn't open content.

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  19. This really isn't new. One of the people on your blogroll )Louis Porter) used to do it all the time back in the 3.5 era. Mongoose did it. There's one recent guy reselling the open content from the d20pfsrd site. Heck, WOTC sort of did it with Unearthed Arcana, they published the sanity rules from Call of Cthulhu (which they had licensed, true, but Chaosium was pissed)

    Is it tacky? Sure, but to an extent, the whole OSR movement is largely built on copying stuff that isn't open content - specifically the old versions of D&D (and Gamma World). I've seen retro-clones directly copy tables from the Rules Cyclopedia and the Gazetteers, which most certainly isn't open content, or can be derived, however tangled, from the SRD.

    And what about those retro-clones that claim to be what Gygax and Arneson would have done? They were trading on those people's names/brand in order to make a buck.

    Can anyone in the OSR really judge? I think we need to be a lot less sanctimonious. If you don't like a product, don't buy it. Better yet, buy the products of the company being ripped off (Barrel Rider's stuff is pretty good actually). But spare the moral outrage

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    1. I think it's completely reasonable to be pissed off by plagiarism. Even when the work being plagiarized is itself a deliberate legal clone of an existing game that is not under open content.

      Both of these situations are not really fully respecting the owner/creator of the original content. That's true. However in the plagiarism case, nothing is contributed at all, only confusion is added. In the cloning case, the no-longer-available game that the owner has taken off the market is being made more available to continue to enjoy. One action is destructive, one action is constructive.

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    2. I don't know. "Basic Fantasy" -- free pdf, print sold at cost, etc. seems to be defensible to me as a way to keep a classic available. Turning out a clone as a product for profit is another thing. It's not like the guys "creating" clones are paying royalties to the actual creators' widows or heirs.

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  20. I think it's ironic when guys who are rewriting D&d claim to be "creators."

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