Open Game Alternative

One Writer's Walk Through Open Publishing Licenses

by Sandy Antunes
November 2, 2001

Setting out to put a set of alternative mechanics for d20-like behavior without the overhead of the full d20 rules system, I found my project wandered into several odd areas of legal peril. This is what I learned (or didn't learn), and where I plan to go.

Note that I am not a lawyer, and this column is not intended as legal advice. Instead, it's a writer's experiences with the whole schmear (including talks with non-lawyers and off-the-record talks with lawyers), and it's about covering yer rear when it's legally exposed. My short summary, for those who don't want to read the whole thing, is simply "you know, standard copyright isn't that bad."

Basic Open and Closed License Concepts

One issue that has mired this Free/Open20 work is the issue of which Open Gaming (and their ancestors, Open Source) license applies to it. Open source licenses solve a problem that really shouldn't exist anyway. That source is... litigation. What then is a poor writer to do?

If you publish something without an attached license for use, then it is protected by copyright and people have to contact you to use it. If that works also has characteristic things that you use in other ways (such as a unique character), such is potentially your Intellectual Property (IP) and people are restricted in how they can use your IP even in other contexts.

The goal of an license is to clearly state, with the work, what rights you are willing to give to others, and what rights you want to keep. Its structured as a contract, "I have this and you want it, so here are my terms." In a perfect world, having a license means other people know exactly how and when they can use your stuff and thus you don't have to answer questions about 'is it okay for me to do this.'

Really, all works have a license-- the default 'license' is copyright, which means you own the work (a representation of an idea expressed in a specific manner). The common alternative to copyright is called copyleft, the basic principle of which is it provides a way for you to let others freely use your work in a way that they can't restrict others in the process.

Copyleft is often called 'viral', in that it attaches itself to a work and all derivations of that work. If you use my Copyleft-ed work, your work _must_ (under most licenses) also be Copylefted, i.e. what you create is then open for others to build on. This is to prevent someone from taking your freely given thing and then locking it away.

Input In: Using Material

Ryan Dancey of the Open Gaming Foundation has advanced the view (paraphrased) that mechanics are not IP but that representation of mechanics are (of course) copyrightable and specific IP attached with mechanics (characters, settings) are IP. Which is quite reasonable.

But it fails in the real world. Here I repeat my 1st law, that-- right or wrong-- no one in the game industry can afford a lawsuit. There's just not enough revenue in it. And speaking as someone who underwent a 9 month defense against a 2.5 million dollar lawsuit filed against us by a party we'd never even done business with, I can heartily say that lawsuits suck.

So okay. You do your research, consult your lawyers, and create something that does not violate anyone else's IP. This can mean starting from scratch, or just having your lawyer look over an existing license like the Open Gaming License (OGL) and ensure your work complies. However...

...by involving a license, you are opening yourself up to possible legal risk. Why? The license is, effectively, a contract that you are willingly entering with the work's owner. If they feel you are in violation, they can sue, and the burden of defense is upon you.

And hey, in US civil court, you are not innocent until proven guilty; there must simply be a preponderance of evidence against you. Therefore you must refute allegations.

So enter into the license, and you are at risk. What if you, instead, don't use a licensed work? Oh, wait, those are copyrighted, so you need to contact the owner and get permission... another contract. So why not just create mechanics that do what you want (as this project did) that are clearly mechanics, not another's' representation of a system, but which have the desired mathematical properties?

Well, first, if someone wanted to sue over that, in the US, they could. So just by publishing something, you are at risk. With making mechanical systems that are intended as an improvement and/or drop-in replacement for the popular d20[TM] system, therefore, just the concept places any work at risk.

Output Out: Publishing Your Stuff

But let's say you navigate that hurdle. You make some mechanics, write them up, Ryan Dancey of WotC himself says "yep, there's no conflict" (a non-legally binding statement, but still a nice courteously), and you finish it. Your input is clean. Now you have to decide how to release it.

You can just use the default copyright. With this, no one else can really build on it easily without negotiating with you. So while your mechanics write-up is handy, it has two flaws:

1. You are the only one who can use it to develop games, as written;
2. Since mechanics aren't copyrightable per se, someone could engineer a similar system as yours and leave you out of the loop

Unless your mechanics are both perfect and complete in all ways, you may want the work to evolve. You might want others to use it for their own games, so they don't have to go and invent "Yet Another Set of Mechanics". And you may want to let others expand on it and develop variants.

If you want your mechanics to be evolving, ubiquitous, and popular, you need to open up your work. The first way you can do this is simply say "Anyone Can Use This In Any Way", rejecting copyright specifically, right?

Well, no. If you do that, without clear terms, you're screwed. Someone can take your work (freely given) and add their own material, then claim copyright (and/or trademark and/or IP ownership) on _their_ derived work. Which is only bad when you go to release 'version 2' of your system and find out they've slapped you with an infringement suit.

Why? You gave up ownership, they assumed it-- so you lost the right to violate their ownership. You give someone a car, you can't then drive it out of their garage anytime you want. Which isn't fair, but is a stance some IP lawyers take. And remember, you don't want to leave yourself that open to a lawsuit.

So that's where Open Gaming (Open Source) licenses come in. They specifically provide conditions that commonly include:

1. Asserting that you created the work, yet
2. Allowing others to freely use it or expand on it, while
3. Ensuring that others do not co-opt or block future work by anyone on it

Which is why Open licenses must be viral. It's the only way to ensure that the original creator doesn't get screwed out of their own work.

And since you have to apply a license, that means you have to make sure it is one that has some legal accuracy to it. This includes clauses like "Agreement not to litigate", where you tell people that "hey, if you use my free stuff, don't sue me over it later." Which sort of sums up the whole problem with licenses-- truly a necessary evil, with a bit more focus on the 'evil' nature of litigation than one wishes were necessary.

Open Gaming License In A Nutshell

So we are left with the ironic existence of Open Gaming licenses, to wit:

1. Mechanics can't be copyrighted, only the expression and IP attached to the mechanics.
2. To promote wide use of your mechanics, an Open Source license is recommended.
3. Therefore, to give away something that anyone could recreate anyway, you need to license it.
4. Said licenses are sufficiently complex that anyone wishing to use the material is recommended to consult a lawyer, therefore...
5. To use freely given stuff, you need to hire a lawyer.

Complicating the matter is that open licenses (software or gaming) haven't yet been tested in court. So they contain legal language, and in some cases agreements have been negotiated over potential violations, but no court has actually made a ruling supporting the terms of any specific open license. In practical terms, this means that even consulting a lawyer or using an existing open license doesn't mean you'll win in court-- no one has tried yet.

The Advantage of Fame

The goal of many open licenses is to truly be viral-- to have their work propagate and evolve and be used by lots of people. For people on the business end, the advantage of using open material is, in part to save time. But no one really pays themselves enough for their time in this industry anyway. The real advantage is in being able to freely use a known brand that retailers like.

Which, in a nutshell, describes d20[TM]. d20[TM] products sell, therefore, distributors and retailers are more likely to carry a d20-marked item. You can use the OGL to access the open parts of the Hasbro d20 system, but in general "OGL" doesn't carry much weight with retailers. Nope, to sell you need d20[TM]. So it appears that, even with the open material of the d20 world, the real value is with the full d20[TM] specification-- which has stronger limits than the OGL material.

So really, if you are starting an independent effort to get a set of mechanics that many people will use, the real value is if you can create and provide a unique trademark (d20, FUDGE, Fuzion, GURPS, BRPS, Free20, Open20, DuJour20, etc) that helps drive sales. And hey, with trademarks, you are in serious legal territory. Not the least of which is that you have to defend your trademark or lose it. Risking dilution of your trademark is an issue.

Which means you need a way to ensure that someone using your Trademark under an Open License is actually in compliance. If not-- you have to tell them to cease and desist. So earlier we said "under copyright each person using the material has to negotiate with the owner", while open licenses attach 'usage rights' to the work so users don't bother the owner for permission. Well, with trademarks being the real value, it looks like you either have to negotiate with each person anyway, or you have to check if they are in compliance later.

So all the OGL does is shift the timing of the work for you. Publishers save on time-- and thus are more likely to incorporate your work into theirs-- because you are initially giving tacit permission with specific listed terms of use. However, you still have to keep track of people using your stuff to make sure they aren't either a) ruining the brand through misuse or b) diluting your trademark by breaking the license terms. For a publisher creating an Open specification plus Trademark, this is a hassle either way. It's not as easy as it looks.

The Research Model

Prior to the domination of IP concepts in the business-place, scientific research followed an interesting pattern. Person A published something-- say, a neat set of equations that model a physical phenomenon. Let's call those "Mechanics". Person B reads Person A's work, finds neat changes to make, and publishes their own version, citing Person A's work out of politeness. And this goes on and on, and the equations and models and theories get improved. This is how science progresses-- building on the work that was done before.

It would be ideal if this could be done for Game Mechanics. A simple citation and *poof*, my mechanics are yours. And indeed, this was my thought with working on these mechanics. But alas... in the technological arena, the research model is under attack. Currently in the US, people can patent mathematical algorithms. There are laws on the books (DMCA) and being proposed (PATRIOT, formerly SSSSC) that make it illegal to 'reverse-engineer' a system to see how it works. Copyright has been extended past the point of protecting author's rights, and into the realm of protecting corporate assets (the "Sonny Bono Copyright Term Extension" law). The concept of ideas being free speech is being challenged, and in general the concept of being on open research challenged.

The point of this essay isn't to go into politics, but pragmatism. It is risky to assume that a copyright-touchy field like gaming can ignore current IP trends and just toss out new material without a lot of due diligence. Opening yourself to legal risk just for writing some game mechanics is, alas, now becoming the norm.

Do I mean this to be disheartening to the burgeoning open gaming movement? Well, a bit. It's a mess. I still haven't 'solved' how to proceed with this project the way I wish. Below are my current suggestions, though.

Free/Open/Whatever20

For now, this and all related articles are protected by copyright. If you want to reprint it or use it with your own published work, you will have to copy me or the listed author of a given piece. Under "fair use", anyone is always able to use the mechanics for their own games, just as you can do anything you want with a book. It's only if you wish to publish that you need to ask us. And note that is "publish", not "profit"-- free publishing on a website is the same as putting out a book, in the eyes of the law.

Under the concept of research citation, and given that mechanics are not copyrightable, anyone is allowed to use the mechanics given here (even though copying our exact wording is not allowed due to copyright). That's not me granting you this permission, this is me stating what I believe the current legal facts on the case to be. (My lawyer says I'm doomed either way, of course.)

If anyone really wants to label their product as "X compatible", we'll come up with criteria for that. "X" is still to be determined; the nice folks at the Free20 project have already claimed that trademark, "open20" isn't really valid since we may not be really "opening" it in the OGL context, and other short variants aren't really informative. I'm leaning toward "Roleplay20" (or Roleplay20[TM]) as a 'brand' to associate with the core work here.

So folks who want a "Roleplay20" compatible label for their books can, at present, ask. We'll fake professionalism by calling this 'demand-driven licensing', a way of saying "we'll figure it out only if there is demand." There, how's that for educational!

I welcome others to submit articles or mechanics variants. If more than a handful of people are interested, I'll set up a registry so interested parties can make their own variants and splinter development trees from the nuggets presented herein. Contact me at sandy@rpg.net to sign up.

If I can find an open license (the Raptor license schemes look particularly handy) that will open this work while easing the legal barriers for folks to use this work, I'll implement it. The goal remains the same: to provide a well-balanced framework that is heavily compatible with d20 products yet uses a different (and, egotistically, I'd add "simpler") approach.

So in the end, this is just a series of articles meant to inspire. Go figure.