In theory, I like the idea of open license development of RPGs. I think copyright law is overly restrictive, particularly in terms of time. So I like RPG developers being able to recombine ideas from different sources and put their own spin on things.

However, I've always had problems with the WotC OGL since it's original release as v1.0a. I bring this up particularly as some posters seem to regard the OGL as a great boon that has boosted gaming. But I think the OSR could easily have happened without the OGL. It enabled stuff like Pathfinder, and retro-clones (though those have some shaky ground), but most of the innovative OSR releases could easily have done without it. There were lots of games similar to D&D published long before the OGL.

Legally, there are two points of the WotC OGL 1.0a that have always bugged me. Here's what I wrote about it back in 2002-2003 shortly after the OGL and SRD came out.

QuoteThe WotC written and approved "Open Gaming License" essentially allows copying and modification of game mechanics, but on the condition of not using any "Product Identity": which may include any artwork and creative ideas. Additionally, you may not indicate compatibility with any trademarked game. Thus, it is legal for a third party to use the D20 SRD rules in another open game -- but only if that open game never mentions "D20", "D&D", or other trademarked games. A separate trademark license with additional restrictions allows use of the Wizards of the Coast "D20" trademark.

In practical terms, the WotC "open gaming license" makes games less open in many ways than working under normal copyright and trademark restrictions. For example, I can in theory make a game which is similar in mechanics to a "closed" game and even claim to be compatible with its supplements, as long as I am careful in use of trademarks. Trademark law allows non-deceptive use such as "compatible with Wizards of the Coast's D&D". This is impossible for an OGL project. Similarly, copyright law allows "fair use" of small subsets of copyrighted works, but the OGL demands that absolutely no non-open content be used.

In terms of effect on the market, the OGL has focused more and more development around just D&D, which has enhanced the network effect the boosts D&D sales.

The OGL v1.0a will still be around - but even if there was a loophole to shut it down, that shouldn't be a disaster to old-school gaming. It would shake up publication temporarily, but it would recover and do better, I think.

Quote from: jhkim on December 27, 2022, 02:16:50 AM
It enabled stuff like Pathfinder, and retro-clones (though those have some shaky ground)

Shaky ground? Maybe regarding marketing and claims of compatibility but the games themselves?

My understanding is one could take the D&D srd, combine with the Pathfinder srd to fill in the bits WotC left out, and slap it all together in until you have a complete game, and then publish, and be legally in the clear. Am I wrong?

I believe Osric was created specifically so one could write AD&D modules but claim compatibility with Osric instead of AD&D, allowing a legal side-step of the compatibility issue. I think the Coastal Wizards didn't like that but there was nothing they could do about it.

Quote from: Ruprecht on December 27, 2022, 09:34:24 AM

Quote from: jhkim on December 27, 2022, 02:16:50 AM
It enabled stuff like Pathfinder, and retro-clones (though those have some shaky ground)

Shaky ground? Maybe regarding marketing and claims of compatibility but the games themselves?

My understanding is one could take the D&D srd, combine with the Pathfinder srd to fill in the bits WotC left out, and slap it all together in until you have a complete game, and then publish, and be legally in the clear. Am I wrong?

No, you are correct.  What the OGL allows is the bulk use of terms that otherwise would leave you open to copyright infringement claims.  For example, if you use the term "Strength" to describe one of the attributes in your own original RPG, there's nothing that WotC could do to stop you, as you can't copyright words.  But, if you include six attributes, named exactly the same as in D&D, you have given WotC grounds to argue that you are copying their IP (it's more complex than that, as there are circumstances where even all six attributes wouldn't be enough, but deep pockets win lawsuits, not righteousness).  Then add in d20 rolls, "saving throws", etc. and other terminology common to D&D, and try to explain your case to a seventy year-old judge who's never even heard of RPGs, and you start to see the issue.

Sure, you can create a game that is functionally the same as D&D, but using completely different terms for all of the processes (and that didn't even save E.G.G. from TSR back in the day).  So if you want to use the familiar terminology in the familiar ways in your games, the OGL is by far the safest way  to do so.  Could you, with constant legal consultation, do something very similar, at the risk of expensive lawsuits that you might win, but that will certainly cost you a bunch to defend?  Sure, but why?  It's not like most folks are going to get rich in RPGs anyway ("How do you make a small fortune in RPGs?  Start with a large fortune..."), so why risk part of your potential profit?

You also need to recognize who is posting this as well.  Understand that jhkim has been defending WotC's new "monetization" strategies on other threads, and has pretty much been smacked down for trying to defend the direction/effects on the consumers.  So, having little effect on the board's opinions, he's now attacking the old OGL.  It's just another avenue to shill the new WotC announcements.  Why start this thread now,  otherwise?  He's heavily underselling the difficulty of making a D&D adjacent product without the OGL because he'd like to claim the new OGL 1.1 is "no big deal."  You don't need it.  Except it makes retro-clones and compatible products much easier and safer, which is why it was so influential when it was initiated (look at the flood of 3rd party and OSR products after, compared to before).  Your first mistake is taking this thread at face value, and not the continuation of the already established argument..l

Quote from: Ruprecht on December 27, 2022, 09:34:24 AM

Quote from: jhkim on December 27, 2022, 02:16:50 AM
It enabled stuff like Pathfinder, and retro-clones (though those have some shaky ground)

Shaky ground? Maybe regarding marketing and claims of compatibility but the games themselves?

My understanding is one could take the D&D srd, combine with the Pathfinder srd to fill in the bits WotC left out, and slap it all together in until you have a complete game, and then publish, and be legally in the clear. Am I wrong?

You could publish pretty much exactly 3rd edition D&D and be in the clear. The problem with retro-clones is that prior editions (1E, 2E, BX) are *not* open content, and they often copy distinctive parts of those games. The OGL doesn't give you permission to copy things that aren't in the SRD, so it doesn't let you copy from Star Frontiers, or Alternity, or other former TSR properties - including 1E, 2E, and BX.

I suspect WotC isn't suing over this simply because they don't think that its worth the PR hit it would cause them.

Quote from: Eirikrautha on December 27, 2022, 10:06:21 AM
No, you are correct.  What the OGL allows is the bulk use of terms that otherwise would leave you open to copyright infringement claims.  For example, if you use the term "Strength" to describe one of the attributes in your own original RPG, there's nothing that WotC could do to stop you, as you can't copyright words.  But, if you include six attributes, named exactly the same as in D&D, you have given WotC grounds to argue that you are copying their IP (it's more complex than that, as there are circumstances where even all six attributes wouldn't be enough, but deep pockets win lawsuits, not righteousness).  Then add in d20 rolls, "saving throws", etc. and other terminology common to D&D, and try to explain your case to a seventy year-old judge who's never even heard of RPGs, and you start to see the issue.

Sure, you can create a game that is functionally the same as D&D, but using completely different terms for all of the processes (and that didn't even save E.G.G. from TSR back in the day).  So if you want to use the familiar terminology in the familiar ways in your games, the OGL is by far the safest way  to do so. Could you, with constant legal consultation, do something very similar, at the risk of expensive lawsuits that you might win, but that will certainly cost you a bunch to defend?  Sure, but why?

If your goal is to be as close as possible to 3E D&D, then yes, the OGL is the safest way. But if you're trying to make a game that has new and interesting features, then it isn't necessary. Dozens of games were published prior to 2000 that used similar terminology like saving throws, character class, armor class, and so forth. Tunnels & Trolls, Palladium Fantasy, Chivalry & Sorcery, Arduin, Adventures in Fantasy, etc. All of these were well within the old school philosophy and used familiar terms, but they didn't have any problems with TSR copyright.

By releasing the OGL, it seems like WotC has convinced people to bow down and accept that they own all the familiar terms in RPGs - when previously, these were effectively public domain as they were re-used by many other games without an OGL.

Especially, using the OGL means abiding by WotC's restrictions that are baked into the license - that you can't use any trademarks or indicate compatibility with any trademarks.

Quote from: jhkim on December 27, 2022, 12:15:08 PM
If your goal is to be as close as possible to 3E D&D, then yes, the OGL is the safest way.

The SRD allows a designer to copy/paste the boring parts and update the things they think need to be changed. Why re-invent the wheel if you like the wheel, or at least don't care enough to dislike the wheel.

Overall, I think the SRD is a great thing, but it has its downsides - including lots of derivative drivel.

I've wrote a long post about related subjects, here are some relevant bits:

https://methodsetmadness.blogspot.com/2022/12/condensed-information-in-ocean-of-trash.html

Sturgeon's law - "ninety percent of everything is trash"

Writing a book isn't hard - writing a book with the same quality of The Brothers Karamazov is very hard. It is not necessary, however, to make money as a writer. You can sell trash, and with good marketing and presentation you can sell lots of trash.

And, according to Sturgeon's law, ninety percent of everything is trash. Certainly, at least 90% of all books published in the last year.

This law talks about quality - but I'm currently more concerned with redundancy.

As far as RPGs are concerned, even the best are 90% repetition of old formulas, old editions, or simply old text - often copied and pasted from the SRD. 

D&D 5e, for example, far from being the worst offender, repeats the same text (e.g., darkvision) though the book. The same features are repeated verbatim in different races/classes. And most lore is copied from old editions, sometimes adapted to modern sensibilities. There are still some original parts: advantage/disadvantage, proficiency bonus, etc. But many rules (e.g., falling damage) are just copied from old editions without reflection.

The OSR is sometimes worse. Huge swaths of text copied from old editions or directly from the SRD with no reflection at all. I often mention the B/X cleric and the fact that plate armor costs the same as 12 garlic as examples. There are troves of B/X clones out there (I have my own) - do they bring anything to the table, or are just 90% trash/repetition with one or two new ideas?

The SRD

A brief aside: I think the SRD is a great idea and a net positive for the hobby. I dislike pasting text without reflection, but rewriting text and mechanics just because you cannot paste them is a complete waste of time.

The 1.1 SRD sounds like bad news for the hobby and probably means that Kobold Press and others that produce great third-party content for 5e will be hindered in their efforts. Most people will stick to 1.0, which is bad news for 5.5e/6e (remember the 4e GSL?).

I was able to publish 5e stuff only because of the SRD. I will not publish under 1.1 (or GSL, or DM's Guild) at this time, and I'm unsure if I'll write more 5e stuff in the future (or play 5e at all), for various reasons.

Quote from: Eirikrautha on December 27, 2022, 10:06:21 AM
...
Sure, you can create a game that is functionally the same as D&D, but using completely different terms for all of the processes (and that didn't even save E.G.G. from TSR back in the day).  ...

Lawfare is real.

The average person has no conception how back-breaking expensive it is to defend oneself from even the most frivolous lawsuit if the other party is willing to use their deep pockets...

So for the average joe with a day job, using the OGL is worth it just to never have to deal with the possibility of lawfare.

Yes guys like Kenzer got WotC to back down over hackmaster stuff, but he was a lawyer, and was able to flip WotC the bird for the LOLZ...

Everything TSR did vs. Gygax was pure lawfare. Nobody really had the money to defend themselves in court against the TSR bankroll, so they all eventually had to back down. TSR broke GDW's back that way.

WotC has started to play those games a little bit, and make no mistake: very few will be able to stand against them if they decide to go the they sue regularly route.

Quote from: Jaeger on December 27, 2022, 01:49:30 PM
Everything TSR did vs. Gygax was pure lawfare. Nobody really had the money to defend themselves in court against the TSR bankroll, so they all eventually had to back down. TSR broke GDW's back that way.

WotC has started to play those games a little bit, and make no mistake: very few will be able to stand against them if they decide to go the they sue regularly route.

I agree that it was lawfare. However, there were companies that did stand up to TSR - and if just a few companies (like KenzerCo) did stand up to WotC, it could make a big difference in the market.

Making third-party supplements for use with D&D was done long before the OGL - Mayfair, ICE, and others. But now everyone backs down and accepts the OGL 1.0a limitations because it's safer.

Quote from: Jaeger on December 27, 2022, 01:49:30 PM
The average person has no conception how back-breaking expensive it is to defend oneself from even the most frivolous lawsuit if the other party is willing to use their deep pockets...

Lawsuits are STRESSFUL.

There's a lot of waiting, a lot of watching the lawyer burn through your retainer at the cost of $100 for 10 minutes of work, a lot of reading the non-responsive series of claims from the other side that are supposed to disprove yours, but which are false, but which are so convoluted and technical that there are maybe three people on the planet who actually understand them, and it'd take hours to even explain why that is to your own lawyer much less a judge.

Even when you win a pretty simple and mercifully short lawsuit, it is a grueling process ON TOP OF the expense.

The OGL v1.0a is dead as soon as 1.1 comes out. The party is over.

Quote from: jhkim on December 27, 2022, 12:15:08 PM
You could publish pretty much exactly 3rd edition D&D and be in the clear. The problem with retro-clones is that prior editions (1E, 2E, BX) are *not* open content, and they often copy distinctive parts of those games. The OGL doesn't give you permission to copy things that aren't in the SRD, so it doesn't let you copy from Star Frontiers, or Alternity, or other former TSR properties - including 1E, 2E, and BX.

If you take the d20 SRD and omit the newer mechanics, what is left is but a hop and a skip from a specific classic edition.

This is the "hack" that the retro-clones rely on.

Take XP for example

Nobody debate that you can take the d20 SRD and add a XP chart as it doesn't have one. If you don't duplicate the original table exactly then it highly likely you are on solid ground in terms of copyright.

Then going a step further, you can decide to make a separate XP table for each class. Which brings the result closer to one of the classic edition. Highly likely you are in the clear if you don't duplicate any pre-3e chart.

For example, I did this for my Majestic Fantasy RPG. I had players complain about the weirdness of the progression on different XP charts. So we came up with a new set of charts.
https://www.batintheattic.com/downloads/Standard%20XP%20Charts.pdf

Do this enough times then the result is a retro-clone. Despite the fact at no point you are copying any text from the original, it functions as a drop-in equivalent system for the original.

Quote from: Jaeger on December 27, 2022, 01:49:30 PM
WotC has started to play those games a little bit, and make no mistake: very few will be able to stand against them if they decide to go the they sue regularly route.

It is a different economy with the Internet and crowdfunding as a part of it. I think deep pockets don't count as much given the circumstances. Or more specifically the hobby as a whole will be able to match the resources Wizards has to bear.

It all rests on how offensive Wizards actions will be in the near future. Right now given the scope of the worst-case scenario, it will pretty much guarantee Wizards will be hit by a lot of angry hornets driven by passion.

Let's see how we can fix this with a NOGL:

Heroic Personas
roll three dice and add them up for
Muscle and get +1 smackya and buboos for every point over ten when fightin'
Grace and get +1 smackya and buboos when shootin'
Grit and get +1 buboos for each point over ten
Wits and get +1 knowhat for each point over ten
Savy and get +1 to shrug off magic for each point over ten
Charm and get +1 to say hello sailor per point over ten
all pluses are integers and implied minuses are applied

Kindaguys pick one
Warboi roll a tenner booboos for each floor, +1 to whack 'em for each floor
Sneakybro roll an eighto booboos for each floor, roll over Savy to doubledown shank booboos
Churchypants rolla die booboos, get a spell each floor, can holy spook spooks
Zappygit roll a freaky pyramid buboos, get two spells each floor if starkers

Going Order roll a bigroundy to find who goes when

Fightin' roll over other guy's grace to whack 'em for a dice booboos

Shootin' roll over other guy's grace to plink 'em for a dice of booboos

Spangly Threads, bounce the hit if they drop the roll under the other guy's grace
dead cow threads -2
fishnet steel threads -4
tin can shorts -6
blocky hidin' wall -2 extra

Take more booboobs than you got and you die

Magic you pick spells before playing, use them and lose them
Zippy Zappy do a freaky pyramid to n targets
Snooze Lose floor targets must beat caster's wit on a big roundy or go to sleep
Crunchy Shorts -4 spangly thread's for the whole fight
Fix You Right Up gives a guy you touch an eightoos booboos back

Quote from: thornad on January 06, 2023, 06:46:01 AM
The OGL v1.0a is dead as soon as 1.1 comes out. The party is over.

In Hasbro and WOTC's eyes?  Yes. 

A legal argument can be made against that, by someone with the skills.  It's not quite as simple as that. 

The license cannot be revoked because it never made provisions that it could be revoked. It says it is granted in perpetuity, i.e. until the original copyright expires. Hasbro will not be able to win in court. Not that it matters because all they really need to do is waste their opponent's money until they're forced to concede out-of-court. Pretty much everyone even tangentially involved in the hobby agrees on this, even across political lines. It's absolutely evil behavior to demand the digital book burning of countless books released over the last two decades, but that's to be expected from corpos.