Reverse OGL: Marketing gimmick

[Dauntless]

I'm not sure if this belongs in Publishing or not....

Okay, how stupid is this?

Instead of getting people to buy into your system by charging for the rules but allowing anyone to create new rules additions and game settings, what if the license was the other way around?

Instead, you  gave away the core rules for free, but had to pay a small fee to license a game setting to utilize your rules?  The idea isn't so much to get money from other people wanting to use your system as it is to get people acquainted with your game system and then buy your own game world settings which you will charge for.  People will be much more willing to try an Indie developer if the rules are free.  If other people want to use your system and pay you the fees that's all the better, but that's not its primary purpose.  The primary purpose is to use the free core rules as a tool to penetrate the market allowing people to know your rules are out there in order to pay for your world books that utilize your core rules.

I'm going to be doing this not out of monetary concern (this is just a hobby that I spend my spare time on) but out of a sense of giving back to the community and allowing creativity to flourish.  In fact, I'll make the license such that if you want to create game settings that you aren't going to charge for (they will be freely downloadable), then you won't have to pay the licensing fee.

[Nazzi]

Also see D20.

[Ron Edwards]

Hello,

Dauntless, the next time you're not sure where to post something, then send me a private message and ask.

I also think your fingers got ahead of your mind for a second there:

you gave away the core rules for free, but had to pay a small fee to license a game setting to utilize your rules

Do I assume correctly that you are talking about two different people in this sentence? Bob provides core rules for free, but Bill has to pay Bob if Bill publishes a game setting using these rules?

Best,
Ron

[jerry]

Instead of getting people to buy into your system by charging for the rules but allowing anyone to create new rules additions and game settings, what if the license was the other way around?

Instead, you  gave away the core rules for free, but had to pay a small fee to license a game setting to utilize your rules?

This highlights the biggest "problem" with open source games--most of the time, open source isn't needed. (Note: I don't consider this a problem, just a difference between the end-uses of open source source code and open source documents.)

These licenses rely on copyright to work, and they can only restrict what copyright can restrict. (The same is true of EULAs. I did a little research here; you probably care less about the editorial than the court cases at the end.)

Copyright is a restriction on republishing the same work, whether exactly or in a transformed way. Transforming your work into another language, for example, or making a simplified/abridged version that otherwise uses the same text. For an RPG example, adding "house rules" and republishing the same work with those house rules added, for example, would be a copyright violation except for the application of an open source license.

A world setting does not require any copying or transforming, in the legal sense. And unless the world setting copies or uses your copyrightable text, you have no control over how the author of that world setting distributes it, not even if you say you do in your copyright statement--any more than Adobe can control what people do with Photoshop, even though they say they can in their EULA.

They can even say that their world setting is compatible with your game, as long as they do not infringe on your trademark when doing so.

d20 relies on trademark to get the special concessions from publishers that copyright cannot normally restrict. This works because people want to use the d20 trademark and because the d20 trademark is not necessary to convey the usefulness of the works. Publishers are willing to concede various rights that they otherwise would have (such as the right to say that this work is compatible with D&D), in order to get permission to use the d20 trademark. It's not necessarily a bad trade-off; the d20 license is basically the same license that they'd have to pay lawyers lots of money to negotiate with TSR back in the day.

If people did not want to use the d20 trademark, though, it wouldn't work. What you're talking about isn't really the opposite of the OGL, it's the same as the d20, with a fee added on top of the other concessions. But it will only work if the trademark you create is one that people want to use.

Note, of course, I am Not a Lawyer, but I do never watch tv.

Jerry

[Dauntless]

Ron-
Will do on which Category to put a post in if I ever have a question again.  I sometimes have the same problem figuring out whether to put something in Indie Game Design or RPG Theory too...

To answer your question, there are two people involved.  I was trying to point out that a third party would have to pay you a small licensing fee if they wanted to create a game world/setting that utilized your core rules. Sorry I didn't make myself more clear.  I wrote that post in the wee hours of the morning.

[Dauntless]

Jerry-
Very informative.  Thanks for clearing a few things up.

d20 relies on trademark to get the special concessions from publishers that copyright cannot normally restrict. This works because people want to use the d20 trademark and because the d20 trademark is not necessary to convey the usefulness of the works. Publishers are willing to concede various rights that they otherwise would have (such as the right to say that this work is compatible with D&D), in order to get permission to use the d20 trademark. It's not necessarily a bad trade-off; the d20 license is basically the same license that they'd have to pay lawyers lots of money to negotiate with TSR back in the day.

italics are mine.

The above quote helped highlight the differences for me between trademarking and copyrighting.  But the part in italics was something I didn't realize at all.  I thought that for someone to declare that their work was compatible with a different copyrighted work required some sort of agreement to be made between both parties.  So if this is true, I could therefore create a compatible work for a propietary system such as say the Hero System without requiring approval from them?

I can see how if a written work has absolutely no "intellectual property" from another publisher's work used within the authors own work then there's nothing anyone can do about it.  Afterall, your just providing setting, atmoshere and detail without providing any hooks into the other author's game system.  Integrating your world to use the game system would be the responsibility of the purchaser to convert appropriate stats into the game system.

Just the other day, I was listening to NPR radio, and a story came up about a guy who was providing all the answers to the NY Times crossword puzzle the same day it came out and charged $2 for it.  At first, the NY Times officers wanted to sue the guy, but it turned out their lawyers said there was nothing illegal about what he was doing.  Providing the answers to the questions didn't infringe on the content of their puzzle.  It was not even considered a "derivative" work.  Apparently it got enough attention to attract other lawyers interest, and some said the case isn't so clear-cut.  One lawyer said that while it wasn't a derivative, it was still based on a decryption of the puzzle, and he said that decryptions were a form of translations, and that translations ARE derivative works.

I guess what keeps most people in line is the fear of a lawsuit, irregardless of whether they may actually have the rights to create works which are compatible with another.

[Dauntless]

I still think I'll stick to my idea of giving away the rules for free.  I'll have to look into the Trademark route just to protect my name branding.

My idea wasn't really to make money off the licenses, though it would have been nice if possible.  I saw it more as a way to increase the awareness of my other products...the game settings.  In fact, I'm thinking of allowing others to modify my rules as they see fit and even charge for it if they'd like (though most people won't pay for something they can get for free unless your new version is significantly different, or you package it differently, say in a hard copy format, or a nicer bookmarked PDF format for example).

[jerry]

But the part in italics was something I didn't realize at all.  I thought that for someone to declare that their work was compatible with a different copyrighted work required some sort of agreement to be made between both parties.  So if this is true, I could therefore create a compatible work for a propietary system such as say the Hero System without requiring approval from them?

Yes. If you look around, you can see a whole bunch of "compatible with" products where the manufacturer of the product they're compatible with would prefer they not exist at all. Batteries, motorcycle parts, kitchen-aid accessories...

For normal copyrighted works, the questions are, "is this a derivative work" (which is *not* the same as the english definition of 'derived from'); that is, the question is not "is it based on", but "is it the same, but in a different format".

With games, however, there is a second point to remember: game rules cannot be copyrighted, and terminology cannot be copyrighted. (Settings are another issue.)

For trademark, the question is, "are you marketing your work as being made by or approved by the owner of the trademark?" If you put "this product is compatible with Wizard of the Coast's Dungeons & Dragons", and put "this product is compatible with" in 6-point type while the rest is in 78-point type, you might just be in trouble :*); but in general, saying that a product is compatible with another product is protected. Being able to do this is important for a healthy free market.

Now, this doesn't mean that some intelligent companies don't have programs in place for making it obvious that products are compatible with their stuff. For example, you can say that your hard drive is IEEE-1394 compatible, you can probably say that it is FireWire compatible, or you can put Apple's big FireWire logo on your product. The latter, to be safe, you have to get an agreement for (which most likely you'll pay for). The former you don't. The middle one, I wouldn't want to say one way or the other.

Just the other day, I was listening to NPR radio, and a story came up about a guy who was providing all the answers to the NY Times crossword puzzle the same day it came out and charged $2 for it.  At first, the NY Times officers wanted to sue the guy, but it turned out their lawyers said there was nothing illegal about what he was doing.  Providing the answers to the questions didn't infringe on the content of their puzzle.  It was not even considered a "derivative" work.  Apparently it got enough attention to attract other lawyers interest, and some said the case isn't so clear-cut.  One lawyer said that while it wasn't a derivative, it was still based on a decryption of the puzzle, and he said that decryptions were a form of translations, and that translations ARE derivative works.

That's a big stretch. What this most likely is, is a lawyer wanting to extend the definition of translations. There is no way I can see of one-word answers being a translation; there is no way of getting the question back just from the answer. It might be less of a stretch to call it a transformation, but I doubt it.

This is a good example, though, of the difference between the legal definition of "derivative work" and the modern English meaning of "derived from". Clearly, in normal English we would say that the author derived his answers from the questions. But in legal terms it is not a derivative work because it is not the same work just in a different form.

The U.S. copyright office's description of derivative works.

Now, please note that, once again, I am not a lawyer. The New York Times listened to their lawyers. Game companies might not(*). If you choose to make a product that is compatible with Dungeons & Dragons, and you market it, WoTC may or may not listen to their lawyers; if they don't, what will you be able to do about it when they sue you? On the other hand, you were asking about other people making items compatible with a product of yours. Chances are, you wouldn't have the resources to file a poor lawsuit, and the people who would make additions to your game would know that.

(*) Although the litigiousness of game companies, even TSR, has been overrated. While they have had net reps and ranking officers who said strange things about copyright law, most if not all of the gaming court cases or official legal threats I've heard about have been about contract law. That is, someone signed away their rights, screwed up, and TSR called them on it.

Jerry

[Valamir]

Back in the day "Compatable" material was the norm.  Even WoTC's first products (Primal Order et.al.) were generic Roleplaying supplements meant to be used with other systems.

Some of these would come out and say what they were compatable with, but most of the ones I remember were "silent" on the issue.  For instance the old Armor Character Sheets were labeled as "useable with major fantasy roleplaying systems".  The sheets were 100% AD&D character sheets.  The only difference is relabeling some things to take less space on the sheet (the "Save vs. Petrifaction Polymorph" was changed to just "Stoning" for instance).  But nowhere on the package or the sheets did it say AD&D.

Why...because AD&D is a trademark...and trademark useage is alot tricker and alot easier to get nailed for.

Unlike copyrights, however, you actually have to apply to get a Trademark and renew that application periodically.

[greyorm]

Why...because AD&D is a trademark...and trademark useage is alot tricker and alot easier to get nailed for.

This is true, but you cannot get nailed for utilizing a trademark as a reference to that trademark, only claiming some sort of ownership of or rights to the trademark.

I can say all I want, "Works with all SONY brand stereo systems" for some stereo product and Sony could not successfully sue me for use of their name. I'm not infringing on their trademark, I'm providing information. Just look at the automotive industry with third-party products that say "For use in all Honda brand vehicles" etc.

However, and this is the big "however", you aren't protected from litigation. The company can still file a lawsuit against you, even if they know they don't have a snowball's chance in hell of winning the case in court. The hope will be that they can bury you in paperwork and the associated legal costs of defense, making it not worth your while (or even impossible) for you to get anywhere near court, and settle to their satisfaction.

Tangentially, this is one of the main reasons for Cease & Desist orders, BTW. It's a legal threat that costs a company very little to produce in terms of money or resources, but can have a big payoff in effect: the hope is that the recipient wants to avoid the hassle of court and will thus do as the company requests.

(<sarcasm> Just gotta love the American justice system, eh? </sarcasm>  Justice is not equally available to all in a court of law, as the scales tip noticably when money and ability to absorb expenses are considered. Money, rather than fact or law, is often a deciding factor in the outcome of litigation, or the ability to even get the chance to present a case.)

Anyways, enter the OGL: this is a safety blanket for publishers that basically says, "Look, you can use our name and such, and we definitely won't sue you...just follow these rules". You'll note its main (and only) selling point is that it reduces the very real threat of spurious litigation (strong-arm tactics). It is basically a pre-publication Cease & Desist letter: "Do thus and such for us and there won't be the possibility of any nasty legal fees to deal with."

Thus my main problem with the OGL: it claims to give you rights you already have. It's only benefit is the contractual avoidance of spurious litigation. Adherence to an OGL system on a wide scale will cause the legal system to actually change such that the previous rights are replaced with this new model as the standard set of rights (ie: none, without contract).

As such, a reverse-OGL would not be a "free main rules, but it'll cost you to license the product for your own uses" license. A reverse-OGL license would be a license that makes explicitly clear anyone's standing rights to make compatible (non-infringing) products based on the material, and which would not hinge in any way on the threat (or the removal of such a threat, as per the OGL) of a lawsuit.

[Valamir]

This is true, but you cannot get nailed for utilizing a trademark as a reference to that trademark, only claiming some sort of ownership of or rights to the trademark.

I can say all I want, "Works with all SONY brand stereo systems" for some stereo product and Sony could not successfully sue me for use of their name. I'm not infringing on their trademark, I'm providing information. Just look at the automotive industry with third-party products that say "For use in all Honda brand vehicles" etc.

Unfortuneately its not quite that simple.

While it is true that simply stating "compatable with X" is not a violation of trademark in and of itself, there are several ways in which such a basic seeming useage can become a violation.  Meaning not only likely to get sued, but likely to lose as well.

For instance you cannot:  refer to someone else's brand primarily to boost your own sales or public perception.  If brand X is the number one best selling brand on the market and you are using "compatable with X" primarily to drive your own sales by piggy backing on X's success, this is a bad faith useage.  Putting "compatable with X" in too large or prominent a location is often cited as evidence of this.

Associating a Trade Mark with a product of notably inferior or distasteful quality in a manner that could damage the reputation or value of the Trademark is a bad faith useage.  So slapping "works with SONY" on utter pieces of crap or putting "Plays on all SONY DVD players" on a porn disk can also be construed as a violation.

Plus there is a legal obligation of a Trade Mark holder to defend their Trade Mark.  Failure to defend a Trade Mark can cause the owners rights to lapse.  This means that things that just toe over the line a little bit and which reasonable people would be inclined to overlook will not be and will be pursued with a vengeance depending on how valuable the mark is perceived to be.

So there are lots of ways to get nailed for misuse of a Trademark besides claiming ownership or using to similar a mark yourself.

Also, I should clarify that you don't HAVE to register a Trademark just like you don't HAVE to register a copyright.  Simply using the TM mark is enough to lay claim to a mark.  But the downside to not registering is so much greater for Trademarks than for Copyrights that any serious Trademark should be (r)egistered.

[madelf]

greyorm,

Just to nitpick...

Using the OGL license actually does give you more than you would have without it.

It allows usage of the open content complete and verbatim. Not only the game rules themselves, or certain terms, but the entirety of the open content can be reproduced without any requirement to alter a word of it. That's certainly not something that would be allowed without the OGL.

Whether that is a great value would, I guess, be a different question.

[jerry]

Associating a Trade Mark with a product of notably inferior or distasteful quality in a manner that could damage the reputation or value of the Trademark is a bad faith useage.  So slapping "works with SONY" on utter pieces of crap or putting "Plays on all SONY DVD players" on a porn disk can also be construed as a violation.

But, that's kind of a sleight of hand there. You would never say "plays on all Sony DVD players". You would say "plays on all DVD players". Singling out Sony DVD players is just a weird thing to do; it wouldn't surprise me at all if Sony could successfully sue them for doing it. But there is nothing the DVD trademark holders can do to keep porn DVD manufacturers from saying that their DVDs in fact work on DVD players. (Assuming that they do.)

Plus there is a legal obligation of a Trade Mark holder to defend their Trade Mark.  Failure to defend a Trade Mark can cause the owners rights to lapse.  This means that things that just toe over the line a little bit and which reasonable people would be inclined to overlook will not be and will be pursued with a vengeance depending on how valuable the mark is perceived to be.

This is not quite right. It isn't failure to defend a trademark that gets trademark holders in trouble; it is allowing the trademark to become a generic term. Conceptually, and in the context of this discussion, that's a big difference.

If, for example, people start putting "Compatible with Gods & Monsters" on their adventures when, in fact, the games are specifically compatible with Gods & Monsters, it will not dilute my trademark and it will not cause my trademark to become a generic term for role-playing games. My not "defending" my trademark will not hurt me, and my trying to "defend" it will just waste my money. In fact, to the extent that it makes "Gods & Monsters" not be the term used to refer to my game, it could even weaken my mark.

Only if people start using "Gods & Monsters" to refer to role-playing games in general (or, perhaps, fantasy role-playing games in general, as in fact I often use the term Dungeons & Dragons when dealing with non-gamers to describe what I'm doing on Saturday night regardless of which fantasy RPG I'm playing) will my lack of defense cause me to "lose" my trademark.

However, (a) I now have a claim, because using "This is a Gods & Monsters game" to mean "This is a fantasy role-playing game" is in fact untrue; either they are disparaging my mark (because their product does not work with my game) or they are co-opting my mark; and (b) I'm not able to successfully challenge their use of the mark because they are referring to my product, but because they are using my mark to mean something other than my product. Using the mark to mean my product strengthens my trademark, it doesn't weaken it.

Technically trademark holders don't have rights in trademarks, it's just that they're the only ones who can defend it. The real rights are held by consumers. It isn't always true, but the rule of thumb is that if a trademark use will cause confusion in the marketplace, that use is illegal, and if it doesn't, it is not. Because you can't say that your work is compatible with Gods & Monsters if in fact it isn't.

The flip side, though, is that the rule of thumb works both ways. Because trademark is for consumers you cannot claim that a generic term is your mark, because that would make it difficult for consumers to find or request the generic product.

If "Gods & Monsters" becomes the standard way of referring to a role-playing game, it would give me an undue advantage--and cause confusion in the marketplace--to block anyone else from using the term "Gods & Monsters" to refer to their role-playing games. Even if I've been using Gods & Monsters for my game before the term became generic. That would be bad for the consumer because it would restrict the free market.

Jerry

[Dauntless]

Since I'm an open source proponent. it seems natural to me to give away the rules for free.

What would be the advantages and disadvantages of allowing to give away rules for free.  Not just to allow the dissemination of the rules, but to also allow people to repackage and alter the rules and let them charge for it?  As I understand it, basically people already have the right to take rules from another system, reword the rules, and/or tweak them to put into their own games.

The current OGL allows for one proprietary rules system to proliferate by creating a standardized rules system that other game worlds can utilize.  Would free rules which have carte blanche authority to use them (via a new OGL, trademark and all) with 3rd party extensions and alterations be more useful for 3rd party developers?  I think the important part may be the free usage to associate the trademarked name with your game worlds.  Also, being freed from the threat of litigation for altering the rules slightly and using the name may encourage other developers to use your system.

Making money in this manner won't come from buying your rules, it will be from developing extensions to the rules or developing game settings.  The current OGL model makes money for WOTC by making everyone buy a copy of their Player's Handbook.  Gratned, this new OGL may not be as lucrative because in essence, it frees everyone from a proprietary system (and hence, you lose the arm-leveraging factor of requiring everyone to buy your rules).  So business-wise, this may not be the best model to follow...but community-wise, would this be helpful or harmful?  It could be harmful because you could have loads of crap utilizing your name brand and thereby lower the perceived quality of the rules.

[madelf]

Actually the OGL doesn't require anyone to buy anything.

The restriction on including character creation & advancement rules is from the D20 STL, not from the OGL. A person can take the OGL, turn it into a game of their own and sell it as a stand-alone system. They just can't refer to the WotC trademarks unless they follow the STL.

nitpicking again...