Tuesday 27 December 2011

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?


  1. I've also been weighing my options as to whether I should use the OGL or Creative Commons for the gaming material I plan to share on my blog. I'm planning to share some monsters, house rules, and perhaps a scenario or two. Even though I'm not selling any of it, including a copy of the OGL seems like the right thing to do... or at least the most prudent course of action.
    I'm looking forward to seeing your One Page Rules!

  2. an invulnerability potion versus legal menaces

    If the concern is a large company unfairly filing groundless legal action against a small publisher that wouldn't change with the OGL. If you were legal under copyright law, but they send you a C&D anyways then they could do the same under the OGL. You're just operating under contract law now instead of copyright law.

    There are valid reasons to choose the OGL (you like the semi open source format for sharing your work) but it's certainly not a "potion of invulnerability". :)

  3. I guess I'm confused. Why would you not use the OGL?

  4. What I think is so hilarious is that they created their OGL headache, to adopt Roger's phrase, by issuing the GSL for 4e and trying to bury the OGL. Truly poetic.

  5. If putting your One Page Rules under the OGL makes you feel more at ease with your own situation I understand entirely and can't fault you.

    The problem, as you mention, is everyone's ignorance on the subject and how Joe Blogger will see you doing this and feel he needs to do it too. It's called a "chilling effect," people become afraid to make anything because they're afraid of infringing and the domain of what is considered owned and ownable spreads and spreads.

    But you really didn't answer my question from the previous post. What words or concepts did you use that you feel put you at risk?

    armor class
    magic-user, fighter, et. al.
    gnome, dwarf, et. al.
    hit points
    player character
    non-player character
    saving throw
    d4, d6, et. al.

    The last I'm guessing is trademarked, the rest? Does Wizards of the Coast own these words or the concepts they represent? If not then why are we acting like they do?

    I understand they own the trademark on a few specific monsters like "mindflayer" and "beholder," but I don't remember you using either term.

    @-C: the same reason you shouldn't need to license material from Wotc to write a blog post about orcs. I mean you could, to be safe. Right? Because when people hear orcs they think of D&D and Wotc owns D&D. But that's not how our law works and even if it did it shouldn't work that way (that thinking is based on the assumption that ideas are invented whole cloth and can be kept discrete and distinct from other ideas).

  6. Yeah, ok, so you shouldn't need to. But when I do, I'm not doing it out of fear - I'm doing it because I want people to be using my stuff!

    I don't see the downside of using it.

  7. I haven't read every paragraph and clause of the OGL, but one clear downside that I perceive is the inability to refer freely to D&D (and related products?) specifically by name. Quoting David Kenzer in the article linked in the post, "A world where one could not reference others’ materials in their product would be a dark and sad place."

    I'm planning on releasing Homebrew '82 under Creative Commons, despite the fact that I use most of the terms in Telecanter's above list. I've also written a couple of boilerplate paragraphs for the copyright page, including the following:

    Dungeons & Dragons (D&D) was created by E. Gary Gygax and David L. Arneson, and
    is now a Registered Trademark of Wizards of the Coast, Inc. No challenge or claim to the
    ownership of this or any other trademark is intended or implied. This is a not-for-profit,
    non-commercial fan work that mentions some terms and concepts from D&D in ways
    that are believed to reside within the bounds of “fair use.” This book is not for sale.

    Too naive?

  8. This is where I get in trouble a lot.

    Your decision to use the OGL is a valid one. Yo have access to a massive toolbox and you don't have to sweat every little number and check to make certain it is nothing like anything in the SRD.

    This is as close as one gets to an interpretation of the OGL:


    This document, even more than the OGL itself, really defines when you need to use the OGL.

    These two bits:

    Q: Who is the "Licensee" referred to as "You" by the License?

    A: Any recipient of any material using the Open Game License. In other words, you become a Licensee when you receive Open Game Content, and anyone you distribute that content to (or any derivative works based on that content) also becomes a Licensee. If you want to use the Open Game License in conjunction with some work that is wholly your own original creation, you become a Licensee when you first distribute that work using the OGL.

    Q: What if I distribute material that is Open Game Content, but I don't affix a notice saying that the Open Game Content can only be Used in compliance with the OGL?

    A: You will have breached the terms of the License.

    Keep in mind, the only right to re-use something is if it came from the SRD or from a 3PP that have created a wholly original new work and then licensed it under the OGL.

    It doesn't mean you can pull something from any other product and use it as is.

    The part of the license that is probably the least understood is covered here:

    Q: What does "Acceptance" mean?

    A: It means that by Using Open Game Content, you agree to be bound by the terms of the Open Game License. In order for a contract to be valid and enforceable, there must be an Offer (in this case, the terms of the License), Acceptance (in this case, your agreement to be bound by the terms of the License), and Consideration (in this case, the right to Use Open Game Content).

    Which boils down to either you create something completely original without a trace of SRD to it or you will be in violation of the OGL. As any Judge will point out, ignorance is not an excuse for breaking the law, or in this case violating a contract which is what the OGL is. Ask the grandmother who was fined when her grandson downloaded music off the internet. I don't think the woman even understood what the internet was. Didn't matter.

    WotC/Hasbro are on the warpath lately. They have issued several c&d's recently and I suspect that will increase.

    The license is very easy to understand if you take time to read it. You don't have to use the license. Just don't use anything that would spring the latches on the rabid lawyers cages and expect not to abide by it.

    As I have said before, I studied the license for 3 months before I decided it was the best move for me.

    I appreciate the fact that you have chosen the OGL. The other major options, Standard and CC, afford you in many cases LESS rights and bottleneck the material to the point that it fades into obscurity.

    Example: Game mechanics can't be copyrighted, but under the OGL you control it's fate. You have opted out of the standard copyright and secured the material inside a contract. This does not mean you have opted out of copyrighting your work, in this case Product Identity, it just means you have more control over it through the license.

    And as always I will state I am not a lawyer but do use the OGL for all my projects and make use of OGC in those projects.

  9. @-Cygnus- I wouldn't bet my house on that and unless you have formed a corporation that can take the hit from a law suit that would be what you are doing.

    Making something for free doesn't matter. If you are using trademarked words in your publication they have to come after you and defend the trademark otherwise they could lose in a future case of infringement.

    The U2 vs Negativland case is one of the most notorious for this. U2 didn't agree with Island Records going after Negativland but they knew the law and by law they had to go after them.

    For what it's worth:


    and I say check with as many sources as possible in cases like this.

    And that is why I use the OGL. I would rather spend my time producing game material than fighting in court.

    Always remember: You can always use vague compatibility statements that can't be attacked:

    For Use With Classic RPG systems

    For Use With Original Edition RPGs

    For Use With Advanced Edition RPG systems


  10. I'm still so confused by this. What do I lose by making my content OGL? Cygnus seems to be saying if I use the OGL I can't refer to D&D by name.

    ADD Grognard, so if I made up an alchemical item and gave it a DC value, I could be given a C&D order unless it was OGL?

    Ok, so why is that bad? Doesn't it make my content usable by other publishers? Isn't that a good thing? They can't use my expression of it.

    Why in a million years would I not want to use the OGL?

  11. From the FAQ:

    Q: Why can't I indicate compatibility with a Trademark or a Registered Trademark?

    A: The Open Game License expands the control a Trademark owner has over your ability to use that Trademark beyond the restrictions normally allowed by trademark law. The explicit reason this clause is included in the Open Game License is to stop people from saying that their Open Game Content is compatible with Dungeons & Dragons, or any other Wizards of the Coast game, without getting permission from Wizards of the Coast first. Of course, the clause is generic, so you can't indicate compatibility with any other company's trademarks either unless you get their permission first.

    And since you are using a mechanic that is specific to the SRD, yes, you would have to use the OGL and designate any other of your original material as Product Identity that you can then , in a separate license, release however you like.

    I know, it sounds complicated, but it's not.

  12. Thanks for the advice, ADD Grognard. I'll definitely do more research.

    FYI, I'm not concerned about advertising compatibility with anything. I just want to honestly talk about my sources of inspiration in the text of an original document. It seems so silly to say that Mechanic X was inspired by Steve Jackson's "The Fantasy Trip" but Mechanic Y was inspired by "the classic basic edition RPG system."

    A semi-related question is: Is WOTC issuing cease-and-desist letters against blog posts (or blog comments?!) that mention trademarked terms like armor class? If not, then what makes putting out a PDF on Google Docs, or dropbox, or a mediafire-type site, so different?

  13. You have many options when using the OGL.

    You can make all your original material OGC, meaning anyone can use it any time as long as they follow the OGL properly.

    You can make all your original work Product Identity and then people have to get permission from you to use it and by way of the secondary contract that can be CC, Standard, get paid or just get credit. Whatever you want.

    Yes, OGL is a powerful tool. And if hell ever breaks loose with someone over your content and you know you are right guess who you get to subpoena on your behalf to testify?


  14. When you're doing your research make sure you consider copyright, trademark, patent and contract law separately. They are not interchangeable things.

  15. It's not so much about mentioning something. And in most cases words that have fell into common use, like armor class, unless all ready trade marked are usually not a problem (there is always a chance though-look at Steve Jobs vs The Beatles...Apple...that was a NIGHTMARE).

    It's more like the guy who copied and pasted parts of commercial products together and put it up on Lulu and RPGnow with the OGL attached to it. It was free...and a complete infringement of just about every possible kind. It was yanked within 24 hours.

  16. Stuart is correct on that but I do wish to make notice that I am in the U.S. and Stuart is in Canada, where laws, like many places in the world, can be different. Make certain you are using the correct information for where you live.


    Australia has a different copyright standard, for instance, where many things have fallen into the public domain that are still under copyright in the U.S.

  17. Copyright, trademark, patent and contract law are separate areas of law in most countries including Canada and the US.

  18. Right again Stuart.

    But we aren't talking about the world of law. We are talking about a specific document filled with specific information and the license that covers that. As they clearly state, no one is obligated to ever use the OGL. Just make certain not to use the SRD either.

    And we have had more than a few discussions on this Stuart and I don't recall if you had said why or if anyone ever ask you why not to use the OGL. Is there a specific reason or reasons not to use it?

  19. But we aren't talking about the world of law. We are talking about a specific document filled with specific information and the license that covers that.

    Well, actually you are - you're talking about contract law. Which by the way can't take away many of your legal rights even if it says so in the contract. ;)

    And we have had more than a few discussions on this Stuart and I don't recall if you had said why or if anyone ever ask you why not to use the OGL. Is there a specific reason or reasons not to use it?

    You shouldn't sign a contract unless you understand what it means and you feel it's a good deal for you to do so. "They said they won't file an unfair lawsuit if I sign the contract" certainly isn't a good enough reason for signing IMHO.

    If you want to do something like Pathfinder, where you are cutting and pasting large amounts of content from the SRD, then I can see it making some amount of sense to sign on to the OGL. If you are making new material and not cutting and pasting from the SRD (eg. the example of blog posts about "Orcs") then I don't see the logic in signing the OGL.

    I certainly would question something like the One Page system needing to be under the OGL... particularly when the OGL adds another page and sort of defeats the goal of a One Page system. ;)

  20. Well, actually you are - you're talking about contract law. Which by the way can't take away many of your legal rights even if it says so in the contract. ;)

    Yes, an open arrangement that no one is forced into using can. Leave SRD content out and you don't need the OGL. Put SRD material in and you have to use the OGL. Simple. You are waiving your rights to several things under the OGL. That is correct. Just as any contract can be arranged in such a fashion. But you are also gaining something in return and that is the point and the whole reason for using the OGL.

    Is there a specific reason or reasons not to use it?

    You shouldn't sign a contract unless you understand what it means and you feel it's a good deal for you to do so. "They said they won't file an unfair lawsuit if I sign the contract" certainly isn't a good enough reason for signing IMHO...

    I certainly would question something like the One Page system needing to be under the OGL... particularly when the OGL adds another page and sort of defeats the goal of a One Page system. ;)

    The thing that bothers me about the examples you use you act as if things stand in a vacuum. You throw out one word. Everything is about context. Yes, if you type the word 'Orc' on a piece of paper and hand it out you haven't violated anything. However if you are using material from the SRD or another OGL product to describe, say, Orc culture, then it applies. You have to use the license.

    If you stand before a judge and say I didn't sign anything so the OGL doesn't apply to me and he compares the two documents and sees that you obviously plagiarized at the very least and violated the license if you didn't abide by it then you are screwed. Period.

    The OGL makes it excruciatingly clear that if you use the material then you have accepted the license, signature or not. If you complain the judge will inform you to do a better job next time at due diligence. And if you have released a work without the license and someone else is pulled down because of it then they can sue as well.

    The OGL actually is the perfect choice for most of the one page material like the '36' series. Under standard copyright anyone could use those tables, print them, sell them, anything...because you can't copyright a table, only the artistic content within. Since they are designed using fairly generic words and have no set pattern then they would have no copyright protection. Under the OGL you can lock it down under Product Identity and if someone uses the material then they can be sued due to license violation. Once again, Wizards has to show up and defend you.

    It's like you are saying since you didn't sign a piece of paper stating that you would drive the speed limit then speed limits don't apply to you. Yet when you obtained a motor vehicle license that is exactly what you were doing. Agreeing to abide by all the traffic laws. The card in your wallet wasn't issued just to be able to start the car.

    I hate for us to be on opposite sides of this Stuart. We agree on a lot more than you know, but this is one that just doesn't ever sink in.

    Think about how it is when you join the U.S. military. You are agreeing to become a soldier and do what you are told. Even die if necessary. You can't pick and choose what you do in the military and you can't just walk away from it. You signed a contract basically giving up all your human rights. That's how contracts work. They can supersede common laws because you voluntarily waived those rights by agreeing, in writing or by action, your right to them.

    And if the OGL is such a bad idea why does every major publisher in the OSR use it?

  21. My advice is to talk to a lawyer about the specifics of contract law, whether or not you can be drawn into a contract against your will, and what methods you have to exit out of a contract you previously agreed to but have changed your mind about at a later date.

    And if the OGL is such a bad idea why does every major publisher in the OSR use it?

    What's the criteria for a major publisher? This sounds like it would be a very short list.

  22. Well hell, man, start with Pathfinder...you know...the #1 selling RPG for the year. OGL.

    And do I really need to go into that list?


    If so then I need to see some I.D. sir because I think you have been drinking...could you please step out of the car :)

    And what is this 'against your will' business? Nobody held a gun to my head or anybody else I've ever spoken with. This conversation is purely about SRD/OGL. You enter it with full knowledge if you do your due diligence. It's one whole page...one...the FAQ answers any questions. Make decision. Use or not use. Simple. You keep trying to imply this is some kind of 1.000 page trick contract.

    And please don't make another case for a one word document.

    There are plenty of indie publishers who build everything from the ground up. Nobody forced them to do that. It's all about what you design and who it's for.

    3.x / SRD is the most played game system on earth at this point. I want the most amount of gamers to be able to use and understand what I create so I choose the SRD as a base to work from. The boogey man isn't going to jump out and devour my work all of a sudden or anybody elses.

    And like I said, I really like the idea of having Wizards testify on my behalf if somebody wants to get uppity about something.

  23. Oh, and this:


    Top 10 Most Wish Listed Fantasy RPG Items At Amazon - 8/10 Pathfinder.

  24. Paizo is an example of an OSR publisher?

    _And what is this 'against your will' business?_


    _However if you are using material from the SRD or another OGL product to describe, say, Orc culture, then it applies. You have to use the license._

    Let's turn this around... why does it threaten you that a blogger or indie publisher might choose to publish their fantasy RPG material under regular copyright or creative commons and indicate compatibility with D&D rather than publish things under the OGL? What do you gain by discouraging people from considering the range of options that are legally available to them?

  25. Stuart, I'm not going to spend another day doing this. You are obviously posting without reading my posts so I will wrap this up with this:

    To anyone looking at this and wondering wtf? I will say this. Don't let Stuart scare you away from a viable license with boogey man tactics that he doesn't back up with any substantial information.

    Don't take my word for it. Look at the biggest publisher in the industry and the major OSR publishers. Check the last page and see how many use the OGL.

    Now check CC. Standard is already there from the moment of creation and actually is there when you use the OGL. By placing your original content under Product Identity you are free to drop the OGL (along with any material you may have used from the SRD) any time you like. You maintain 100% control of your IP. I will now ask for Stuart to provide viable and verifiable information of how someone has suffered for using the OGL.

    And I will finish by asking this: It seems like you only show up and post at these types of topics Stuart so for legal purposes I have to ask the following:

    Are you now or have you ever worked for Hasbro or Wizards of the Coast in any capacity as an employee or contracted help?

  26. I'm not going to spend another day doing this.

    You already are.

  27. Ok, that proves my point.

    From this point forth I would consider anything posted by Stuart to be based on a biased opinion that he is being paid to post these comments.

  28. Yes, by the CIA. :)

    Take your meds dude.

  29. So which is it? Failed employee? Paid 'media consultant'? Is there any real money in it?

    Stuart posts now need to come with a disclaimer:

    The above post was paid for by WotC/Hasbro-doing their best to put the genie back in the bottle.