Okay, well say I made a smash hit game, the equivalent of D&D and Forgotten Realms, so a system and a setting that people adore.  What I would want as the creator is open access to the system, but restricted access to the setting.  If someone wanted to make Dickgirl Simulator 2000 with my system, I couldn't really stop them from doing it in any event, so whatever, but if someone wanted to create content for my setting, I would demand that it be subject to my approval if it's going to be put on the market so I can be sure that nobody's out there kickstarting Forgotten Realms But Everyone's a Dickgirl Edition, or just generally incoherent shitty fanfic-level content.  I'd also want a cut if someone's using my setting to sell content, though not something crazy like 25% of gross sales.  I'd extend that across platforms; you want my system in a video game or a VTT, great, you want my setting or characters or adventures, need approval and pay me money.

Quote from: Valatar on January 16, 2023, 03:03:19 PM
Okay, well say I made a smash hit game, the equivalent of D&D and Forgotten Realms, so a system and a setting that people adore.  What I would want as the creator is open access to the system, but restricted access to the setting.  If someone wanted to make Dickgirl Simulator 2000 with my system, I couldn't really stop them from doing it in any event, so whatever, but if someone wanted to create content for my setting, I would demand that it be subject to my approval if it's going to be put on the market so I can be sure that nobody's out there kickstarting Forgotten Realms But Everyone's a Dickgirl Edition, or just generally incoherent shitty fanfic-level content.  I'd also want a cut if someone's using my setting to sell content, though not something crazy like 25% of gross sales.  I'd extend that across platforms; you want my system in a video game or a VTT, great, you want my setting or characters or adventures, need approval and pay me money.

So you declare the parts of your game you want as open content, the system is already open by law but you could make it easier by making it so Dickgirl Simulator 2000 creator can use your exact wording, but declare the setting as NOT open content.

Therefore, anyone wanting to use your setting for whatever reason/purpose HAS TO go to you and get a waiver or pay for the rights.

Quote from: Chris24601 on January 16, 2023, 10:40:17 AM

Quote from: jhkim on January 16, 2023, 10:04:19 AM
It is already part of trademark law that you can't use other people's trademarks in such a way that it implies they are responsible for your product. That's the entire point of trademark law.

However, trademark law does allow for indicating compatibility - as long as you make clear that you're not part of or endorsed by the trademark user.

I never said "use the trademark." I said plastered "a compatible supplement for [Your game here]" in two inch high letters on the cover... how many everyday consumers are going to really distinguish between the actual trademarked logo and say, the name of a company in Times New Roman at 144pt size with the words "a compatible supplement for" also in Times New Roman?

So unless there are specific rules related to how you can indicate compatibility in plain text, you're looking at a malicious user being able to harm your reputation without recourse (unless they're doing it without a license in which case Libel is an option).

I'm confused. You claim that malicious users can harm your reputation and there's nothing you can do, but in your next post you say,

Quote from: Chris24601 on January 16, 2023, 11:51:00 AM
There is a solid case that plastering "compatible with [trademarked title]" even in plain text prominently in promotional material or prominently on a cover is trademark violation as you're attempting to use the trademarked term to promote your material via its prominence on your cover/promotions rather than just indicating compatibility, which could be done via a notice in a normal sized font inside the book.

I agree with your latter statement. If someone indicates compatibility in giant letters such that the product seems to be an official release for the system, then it is a trademark violation and you can sue the person using it.

You claimed that there was no recourse against a malicious user - but what you say shows clearly that you do have recourse - namely sue them for trademark violation. Unless the open license says something to give such permission, then normal trademark law applies.

Quote from: Chris24601 on January 16, 2023, 12:27:38 PM
That's where something like the OGL is actually much better for lay users than the CC licenses; they took the legalese of the "No Endorsements" clause and the practical matter of trademark infringement (i.e. trademarks include plaintext of a product name and fair use notice of compatibility; which is already covered via the license; only extends so far) and simplified it down to the layman comprehensible "can't indicate compatibility with product without written permission."

i.e. it's basically a notice of how not to get sued under regular trademark laws while using the material offered.

But it isn't just an explanation of trademark law. Regular trademark law allows someone to indicate "for use with", like a program is for use with the Windows operating system - without violating Microsoft's trademark. The WotC OGL v1.0a was far *less* open than normal law allowed, such that software would have to say "for use with the world's most popular wall-aperture-like operating system".

If the open license wants simply to clarify, then it should say something like "compatibility can be indicated only by the phrase "for use with" and plain text of the system, in a font no larger than 2% of the cover height or 12pt at the smallest".

I don't think it's idealistic to say that an "open license" shouldn't mean more restrictions than publishing without the open license.

Quote from: Chris24601 on January 15, 2023, 11:27:17 PM
There's also a bunch of genuinely copyrighted elements that a lot of people just frankly take for granted and don't even think about because they've been a part of the OGL/SRD for over two decades now; ex. the specific description of elves being taller but thinner than humans with wide almond shaped eyes and a lifespan of about 600 years. THAT is a very specific combination of features that is part of D&D's IP and is NOT found in other depictions of elves (i.e. it is not the mythological depiction of either traditional elves nor the Alfair nor Tolkein). WotC could absolutely hammer you over using their version of elves in your works.

If you go back to AD&D 2e, Elves are shorter (except in Dark Sun), and while described as thinner, if you actually look at the weight range tables and compare them to height, are more solidly built than humans. In Birthright, Elves are immortal. So you have a fair degree of flexibility to work with. They've changed it multiple times, so you have to just decide which combination to take. Want to make an AD&D 2e clone? Take out the explicit description, and fix the height and weight tables to actually produce the result you want. Not interested in making an exact clone because you want to make something actually innovative? Decide what you want to emphasize, and make sure your elves in description and mechanics fit the role you want them to.

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Similarly, the particulars of Vancian magic, the divide between arcane and divine magic, the arrangement of eight specific schools of magic with nine specific levels of spells and specific spells being available at specific levels (is your fireball a level 3 evocation? will you find invisibility on the list of level 2 illusions? Is there a 1d8 healing spell that is a 1st level conjuration available only to divine casters?). Are your wizards forbidden heavy armor or skill with weapons while your cleric/priest class may use heavy armor and blunt weapons and is also able to affect undead with a spell-like effect? Is this also an expressly fantasy setting with humans, elves (as described above), dwarves (of the roughly human mass but shorter and broader variety) and halflings?

First you would want to look at the stuff you actually want to keep. Invisibility was a problem spell even in the early days, you may want to change it anyway. Do you actually want to maintain D&D's hit point system that really doesn't mechanically work the way it is theoretically supposed to work? Do you want the 8 schools as they are presented, or do you figure that making magic items is more the realm of transmutation, and leave enchantment to be the domain of affecting minds and emotions? There's a lot of stuff that you don't want to keep exactly like D&D in the first place. If you're not trying to make an exact retro-clone, you don't need to.

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The more of those similarities that pile up, even if you are using your own words, the more it looks like you're infringing on WotC's specific IP if it gets to a judge.

By contrast a "spells known" + "spell points" system with a number of spell levels matching the character levels would sail by even in an expressly fantasy setting... and a 9 level Vancian system could also skate by in a post-apocalyptic or urban fantasy setting.

Frankly, having taken a close look at PF2 via their SRD as part of this, when they say "we only used the OGL as a formality" I think they're basically bluffing. Their raw mechanics might be distinct, but so so much of their fluff is right out of WotC's IP and expressed in ways extremely similar to WotC's IP. Without the OGL1.0a and 3.5eSRD to protect them, if WotC wanted to be aggressive they could pretty well destroy PF2 on IP infringement without even mentioning mechanics.

In short, Paizo is either banking on someone taking WotC to court over keeping the OGL1.0a license in force or is bluffing for the gamer cred while knowing they're going to have to do a metric ton of rewriting for large portions of their fluff text related concepts that originated in TSR/WotC's fluff text.

Or short version; yes, you can have elves without the OGL, but you can't have carbon copies of D&D's elves because those versions are NOT out of myth or legend, but are specific expressions of the concept of elves.

You don't even have direct compatibility with PF2e and any version of D&D. That would be a strong case in their defense.

Quote from: jhkim on January 16, 2023, 04:44:09 PMBut it isn't just an explanation of trademark law. Regular trademark law allows someone to indicate "for use with", like a program is for use with the Windows operating system - without violating Microsoft's trademark. The WotC OGL v1.0a was far *less* open than normal law allowed, such that software would have to say "for use with the world's most popular wall-aperture-like operating system".

If the open license wants simply to clarify, then it should say something like "compatibility can be indicated only by the phrase "for use with" and plain text of the system, in a font no larger than 2% of the cover height or 12pt at the smallest".

I don't think it's idealistic to say that an "open license" shouldn't mean more restrictions than publishing without the open license.

I believe the original reason for the OGL not permitting users to claim compatibility with D&D was because it was concurrent with the D20 logo licence (a similar thing happened with Mongoose and their Traveller and RuneQuest logo licences). The effect was to have a separate, more restrictive logo licence which allowed WotC more control over 3rd party publications. There is really no reason why a new open licence must have this clause.

If a 3PP produces something that is not compatible, yet claims to be, and the 3PP refuses to change even after being notified - there are other recourses thanks to the internet. The publisher can publicly proclaim the incompatibility, as can buyers. They can directly contact DTRPG or other platforms. In practical terms, anyone falsely claiming compatibility will soon be outed.

So IMO a real open licence should allow claims of compatibility where it exists.

Some thoughts on the thread;

1. With an open license, there is another factor to consider. The market's embrace of that product. Much of the "d20 glut" was just that. Cruft. The cream floated to the top. If you're worried about Frank stealing your system for "Dickgirl 2000", it's not likely to gain enough traction in the overall market to have any appreciable impact on you. In fact, you could turn it around to say that by supporting freedom of speech and opposing censorship, that the existence of "Dickgirl 2000" shows how open the license really is.
2. I agree with OP's list. I also hope any future licenses leave out moral clauses. Either your license is open or it's a Restricted license and should be billed as such.

Quote from: trechriron on January 17, 2023, 06:53:52 PM
Some thoughts on the thread;

1. With an open license, there is another factor to consider. The market's embrace of that product. Much of the "d20 glut" was just that. Cruft. The cream floated to the top. If you're worried about Frank stealing your system for "Dickgirl 2000", it's not likely to gain enough traction in the overall market to have any appreciable impact on you. In fact, you could turn it around to say that by supporting freedom of speech and opposing censorship, that the existence of "Dickgirl 2000" shows how open the license really is.
2. I agree with OP's list. I also hope any future licenses leave out moral clauses. Either your license is open or it's a Restricted license and should be billed as such.

I'm leaning towards CC By SA but recent developments around the ORC have made me think it's best to wait till that one is out and see if it's fit for purpose or not.

Just saw Mat Finch make a statement on Facebook that they are not intending to have a morality clause in their license.

Quote from: rkhigdon on January 17, 2023, 10:49:23 PM
Just saw Mat Finch make a statement on Facebook that they are not intending to have a morality clause in their license.

It's worst than that, they've got Alexander Macris in the comittee or whatever it's called for the creation of the thing!

I'm not sure what you mean.  Why is not having a morality clause or having Alex Macris involved a bad thing.

one option is to copyright your game but then create an SRD that includes stuff anyone can use and license that. it's an extra step but removes all confusion about what it available for use and what is not.

Quote from: rkhigdon on January 18, 2023, 09:30:59 AM
I'm not sure what you mean.  Why is not having a morality clause or having Alex Macris involved a bad thing.

It's not, I'm being a smartypants. I'm saying that whatever Matt Finch says or not is way less important than having known free speech advocate and anathema to the woke cult involved, the moment they try and insert such we'll know, the moment they kick him off we'll know.

Quote from: Ruprecht on January 18, 2023, 10:48:22 AM
one option is to copyright your game but then create an SRD that includes stuff anyone can use and license that. it's an extra step but removes all confusion about what it available for use and what is not.

Yes, that's one way to do it, a little more work, sure but it removes ALL claims of confussion.

Quote from: GeekyBugle on January 18, 2023, 11:30:21 AM
It's not, I'm being a smartypants. I'm saying that whatever Matt Finch says or not is way less important than having known free speech advocate and anathema to the woke cult involved, the moment they try and insert such we'll know, the moment they kick him off we'll know.

Ah...gotcha.  That's much more in line with what I thought your general stance was on the issue, but I wasn't 100% sure it was sarcasm or that I had totally misunderstood your views.

Quote from: GeekyBugle on January 16, 2023, 02:19:13 PM
Assuming you trademarked EVERYTHING that makes your game unique, at $1,000+ US a pop that's a lot of money.

Yes, which is why #WotC invented the concept of Product Identity to protect their IP through the OGL.

Quote from: GeekyBugle on January 16, 2023, 02:19:13 PM
Yes, you CAN remix my stuff until it's no longer covered by copyright, and you could do the same for trademark, but at that point it's no longer recognizable as the same as mine.

In which case why bother with the license?

Quote from: GeekyBugle on January 16, 2023, 02:19:13 PM
An Open License serves the purpose of allowing you to NOT remix/reword/etc my stuff and use it without worries even if it's ONLY covered by copyright.

Which is useless for the majority of third party publishers, especially when they'll have to give up certain rights to do so.

Again, the optimal license has to act in a way similar to a Trademark one. It has to permit third parties to use the concepts the game is built on, not the literal text or images. But mechanics can only be protected under Patents, and named entities can only be protected under Trademark, and if they aren't their use is unrestricted to begin with.