As I wrote in the first installment (Why do we need open source games?), game rules aren’t restricted by copyright. The United States Copyright Office is very specific that recipes, formulas, and other “systems or methods of doing something” and “procedures, methods, systems, processes, concepts, principles” may not be restricted by copyright. More specifically with respect to games, flier 108 (U.S. Copyright Office: Games) says:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.... Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game.

We don’t need an open license to re-use game rules. What can be restricted under copyright is the “substantial literary expression” that accompanies game rules. However, while a particular expression of game rules might be able to be restricted by copyright, the rules may not be. If there is only one reasonable way of describing a rule, even that particular expression cannot be restricted by copyright. It is not just that copyright does not restrict rules, but that copyright can not restrict rules. This is sometimes described as the “merger doctrine”. A fundamental principle of copyright is that it cannot restrict ideas. If a particular expression is inextricably merged with the idea, then copyright does not apply. For example, in CDN v. Kapes, the ninth circuit wrote that:

In order to protect the free exchange of ideas, courts have long held that when expression is essential to conveying the idea, expression will also be unprotected.

The doctrine of merger applies specifically to games. See, for example, Allen v. Academic Games, where the ninth circuit quoted the third circuit’s Midway Mfg. Co. v. Bandai-America, Inc:

This doctrine of merger is particularly applicable with respect to games, since they consist of abstract rules and play ideas.

To hold otherwise, the ninth circuit said, would give the game author a monopoly on how people played the game.

Infringing vs. non-infringing uses

I want to avoid making it sound as though open content licenses are necessary for every kind of re-use. For fair-use and non-infringing uses, no license is needed. If I want to quote from role-playing games for a series on experience in RPGs, for example, I can. It is already legal, and because of the difference between books and software it is already possible. All I have to do is retype the book’s text.

If, on the other hand, I wanted to write about the history of data storage routines in commercial software, I’m out of luck: while it would be legal to excerpt portions of the original code in my article, the actual source is unavailable. Software for converting binary to source exists, but it doesn’t return the original routine in the original language.

That’s why I keep repeating that copyright does not restrict everything that we want to do with our games. We often receive overly-restrictive interpretations of copyright and trademark law from other sources, and I don’t want to make the same mistake. Some of what we want to do is already legal.

Often, however, re-writing rules and quoting small sections for comment isn’t what the gamer wants to do. We want to take extensive portions of the exact text and reuse it in adventures, or we want to distribute modified “house rule” copies to the Internet or to our friends. We want to know that the game we play will still be available years later. This is one way in which an open content license protects gamer freedoms.

Role-playing games, more than most other books and games, are more useful the easier they are to edit and redistribute. Role-playing games are more useful the more material is available for them. A good open content license preserves for gamers the freedom to modify games and distribute their modifications.

Some of the freedoms of open content games are what gamers do anyway. I’ve seen few rulebooks that have been used for more than a year that aren’t pasted with yellow notes or sprinkled with margin scribbles. An open game is useful for gamers because it lets them edit the original document rather than use post-it notes. It lets them distribute as many copies of their modifications as they want. And it lets others improve upon their modifications.

What makes a good open game license?

So, with respect to the game rules, a good open content license for gaming will protect the gamer’s freedom and ability to:

• acquire an easily editable file of the rules that is not tied to a proprietary format.
• copy text from the rulebooks to their own sourcebooks and publish them.
• distribute new versions of the rulebooks.
• improve any portion of the rulebooks and distribute their improvements.

Each of these freedoms depends on the others. It does little good to have the freedom and ability to copy text if there is no right to distribute the newly created versions. It does little good to have an “editable” copy if the only software that can edit it hasn’t been available for years.

Further, in my opinion a really good open content license will ensure that these freedoms follow the new versions. If anyone distributes a new version of an open content rulebook, that new version should also be available in an easily editable format; text may be copied from that new version into new sourcebooks; and that new version may be further improved by others. Those newer versions must also be made publicly available for improvement, and so on.

Copyright today lasts longer than a lifetime: it is no longer possible to wait until copyright restrictions expire to improve and advance our useful art.

There are also things that a good open content license will not do. It will not restrict the use of ideas that would otherwise not be restricted. Nor will it restrict the use of terminology that would otherwise not be restricted. A good open content license will not be so complex that it’s difficult to determine what in the document is open and what is closed. And a good open content license won’t require gathering permission for things that otherwise don’t require permission.

I’ll talk about this more in the next installment, but a good open content license won’t pretend that it must be used to create compatible works. Be wary of any license that offers you what you already have: chances are it is trying to take something away.

A good open content game license assures the freedom and ability to have a game ruleset that is always available for new gamers, that continues to improve, and that can be adapted to the specific needs of each game group. Authors die. They become bored. They choose to move to a more lucrative field. Companies go out of business. They are absorbed by larger companies. Their brand is repositioned. But open and free content lives forever.