Another thing to remember about the #OGL is how I think it was shaped by two events of the '90s.
First was the start of Wizards of the Coast. The Primal Order, their first product, resulted in a lawsuit from Palladium Games because they included conversion appendixes for a variety of RPG systems. (TPO was a "capsystem" product meant to be added on your game of choice.) This is exactly the sort of thing that people are now claiming is obviously fair use. It was not so obvious, Wizards well knew!
The threat was so grave and existential that a new corporation, Garfield Games, was formed just to publish Magic: The Gathering, so that it could get investment that would not be threatened by the possibility of the whole company being destroyed by the Primal Order litigation.
After the TPO suit was settled out of court, Garfield Games was merged into Wizards of the Coast. The people who ran WotC in 2000, such as Peter Adkison, know personally how much water the "this is fair use!" argument
held in actual pragmatic fact for a publisher. All it took was one game company to decide they disagreed that it was fair and were willing to file suit over it.
The second event was the near bankruptcy of TSR. Again, key people (such as Ryan Dancey) involved in rescuing D&D from the implosion of TSR by facilitating its sale to WotC, had that experience to inform the creation of the OGL. It was not impossible to imagine D&D being owned by some corporate entity that did not care about it;
business owning work for hire had unwound, or no one had saved a paper trail of rights ownership/transfer. (Can you tell if it's work for hire?) As with fair use and game rules, there was a big difference between theorizing about the legal status of some work and putting your financial well being on the line by seeing if anyone will step forward and assert a right to sue you about it.
The OGL was a way to ensure that core RPG mechanics of D&D would be available to future generations --
regardless of whether they already are via fair use (yet to be tested in court), and regardless of what may be the future ownership of related copyrights. Stop the uncertainty.
Make games. Create things. Share them. Know that when you are hit by a bus, your asshole cousin who inherits your copyright will not have grounds to sue the guy who added your novel Prestige Class to his game world for sale as a PDF on DTRPG.
Exactly. There were nightmarish stories in the media about mothers sued into poverty because their tween kids were downloading MP3s on the household PC.
Back in the year 2000 the original Open Gaming License (OGL) was created to support the 3rd edition of Dungeons & Dragons and has gone on to help create hund...
cc-a 1.0 (https://creativecommons.org/licenses/by/1.0/legalcode)
" Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license"
OGL 1.0a (https://opengamingfoundation.org/ogl.html)
"the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license"
EXACTLY the same four terms:
-Perpetual
-Worldwide
-Non-exclusive
-Royalty Free
I disagree that it is revocable, and I don't think any rights are given up because the SRD contains zero product identity. Product identity designation is a carrot to encourage publishers to use the OGL without fearing that they were giving up their original content.
So why do it? Peace of mind. Safe harbor. And a way to pass it forward by designating OGC that others in turn can use.
@mcv But you have to DESIGNATE product identity, to identify specific things inside your Open Game Content that you reserve as proprietary.
So I might say: This game description & stats for Mickey Mouse is Open Game Content. The name "Mickey Mouse" is Product Identity.
Then it is clear that I can rename that character to be Rodney Rodent and put him in my world, but I can't use Mickey Mouse without getting a license.
Could I make Mickey Mouse a character in my game world under fair use?
@mcv "And whatever any of us think about what's legal or not, and whether it's revocable, is ultimately irrelevant."
It's not though, because I am a publisher and I am making decisions of what risks to accept in my business. I am comfortable on the risk of publishing material derivative of clearly labeled Open Game Content. I have decided NOT to publish things that I think are 100% legit Fair Use because I felt the odds of being sued by a known vexatious litigant outweigh the likely profits.
@mcv @Johnnephew You can indeed publish a book about Harry Potter, but it depends on the book; see the material about "The Wind Done Gone" in this essay:
We have a "Mini Mythos" series that parody beloved children's books as retellings of Lovecraft classics (https://atlas-games.com/minimythos)
Ken Hite really wanted to write "And to Think that I Saw It in Unknown Kadath" as a mash up of Dream Quest+Mulberry St but we decided that the Seuss estate was too litigious. That was after the OJ/Seuss parody, but before the Star Trek mash-up (which validates our caution). https://www.reuters.com/legal/transactional/seuss-comicmix-close-book-landmark-copyright-dispute-over-star-trek-mashup-2021-10-05/
@pluralistic @mcv Obviously we firmly believe that the four parodies we have published constitute Fair Use.
However much I think we would be right if we published any Seuss parody, I am not going to, simply because I don't want to waste time and money proving the point by provoking known litigious assholes. We have no shortage of other things to do instead.
@mcv @pluralistic RPGs and fan fiction are the blurry edge of gray areas in this sort of thing. The unofficial policy of most parties is to not watch closely and maintain studied ignorance of noncommercial potentially infringing things as much as possible.
The OGL really jumped in with both feet to say: let's drop the nudge-nudge, wink-wink, compatible with the world's favorite RPG, say no more, business, and just legalize it explicitly.
@mcv Something else maybe to clarify.
Nothing in the SRD was Product Identity. So if you were strictly deriving from the SRD, your chain of copyright only included (1) the OGL itself, (2) the SRD, (3) your Open Game Content.
The ONLY possible Product Identity involved is that which you yourself designate to guide downstream licensees. Anything that COULD be product identity and COULD be covered by Fair Use is NOT Open Game Content in your chain.
Keep in mind too that insurers would be involved, and are almost certainly going to pressure people to settle rather than risk the cost and uncertainty of going to trial.
Basically, anyone can sue anyone for any reason. Even a meritless suit that is thrown out and the court awards fees & expenses to the party wrongly sued, is a cost and disruption that people want to avoid if they can.
@Johnnephew @mcv It is not always wise to remove ambiguity, because the knife can cut the other way. That's assuming the challenger can get a crack legal team. Plus, the rights holder probably won't sue unless they think they can win: they choose the battleground.
"Bad facts make bad law."
That said, I'll repeat my idea balloon: what about an Open TTRPG Legal Defense Fund?
@Johnnephew absolutely, when Chaosium did "Thieves World", they sought permission from each company
When Mark Arsenault wanted conversions for Sengoku 1st ed,vhe asked the companies, and I did one of them for ours
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