Considering the OGL

The flurry of questions about my decision to put the One Page system under the Open Game License spurred me to do even more reading and research on this topic. One of the most useful resources I ran into, among a lot of ill-informed posturing, was this post and its predecessors, from someone who knows what he is talking about and has a good discrimination among sources.

Hasbro's OGL headache?

There's a big difference between what actually is covered under copyright law and what can plausibly be taken to court by companies with deep pockets. The practice of copyright is more restrictive than the law allows, due to the intimidation factor. This is how "T$R" menaced companies like Judges' Guild and Mayfair, and smaller fry posting D&D-compatible materials on the Internet, back in the 80's and 90's. It's easy for lawyers to scare someone into taking down their adventure that uses "alignment" and "armor class" or their supplement that mentions "compatibility with D&D (tm)." Today it would be harder to actually defend those concepts as infringement in court, given that:

• Short terms or phrases don't fall under copyright unless they are emblematic of the work in question (like "Play it again, Sam" for Casablanca).
• Precedent supports the making of original "add-ons" and supplements for games without license.
• References to trademarks are allowed under the doctrine of nominative use, provided there is no other commonly recognized way to refer to the trademarked thing, and there is no confusion as to the origin of the product.
• Game mechanics may be subject to patent (as in Wizards' soon-to-expire patent on the concept of a collectible card game) but this is a separate issue.

Nonetheless, a legal injunction can really test the mettle of the small company or individual it's leveled at. Which makes the Open Gaming License so amazing. Ryan Dancey and Wizards gave any creator of works derivative of the D&D game an invulnerability potion versus legal menaces. The promise is that, as long as the strictures of the document are followed, even the most blatant retro-clones are freely licensed product. There is even a way to combine open and proprietary material with the "Product Identity" clauses. Not great from the viewpoints of open source crusaders, but good from a commercial viewpoint.

Well, it seemed like a good idea at the time, but every general is fighting the last war. The OGL was a silver bullet for two problems that had helped drag down TSR in the 1990's: commitment to producing a glut of official products, and bad publicity from infringement policing. In that light it was a brilliant single stroke combining PR and outsourcing.

But over ten years later, as the sales of the OGL product Pathfinder have outstripped those of the official D&D game, there must be bitter regrets indeed in Providence. Certainly, strong signals are being sent that the next Hasbro edition of D&D is going to go back to basics. If that's the case, it's likely that material being sold or given away that is currently not compatible with D&D 4th, but that sticks to the basic elements of D&D that have been very carefully maintained over otherwise seismic changes in the gameplay, will constitute more of a threat to their operations. In particular this would be true of complete games - "heartbreakers" - that let the players dispense with the core product that forms the mainstay of sales. It's also instructive that without exception, every commercial role-playing game that has been released as a clone or derivative of D&D, using that common language of stats and mechanics, has put itself under the OGL. This has decidedly not been the case with supplements.

Now, some people in the OSR (chiefly flagship captain Maliszewski) are extremely careful with their online content, to the point of putting every monster and spell idea under the OGL. My gamble is that this won't be strictly necessary. But something tells me that putting the core derivative work on this site - the One Page Rules modular D&D variant I have been using in games - under OGL rather than Creative Commons is a very good idea. There is enough of D&D's DNA in there that it seems both the prudent and correct thing to do.

That is my position anyway - certainly not legal advice of any qualified kind. If you think differently, won't you speak up in the comments?