Why do we need open source games?
Under United States law, most things are not copyrightable unless copyright restrictions are applied to them by the United States congress. For gamers, the important rule is that ideas, facts, steps, and procedures cannot be copyrighted. Recipes, for example, cannot be copyrighted, and neither can game rules.
Why do we have copyright? What does it do? What is its purpose? Copyright grants a special monopoly to authors in order to encourage them to make their works available for public use. This effectively blocks competition for the duration of the monopoly. Because copyright blocks competition, copyright restrictions are traditionally interpreted narrowly. Copyrights may not be used to gain an effective monopoly wider than the copyright monopoly was meant to provide. In Sony v. Universal, the Supreme Court wrote that:
Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.
Copyright does not restrict the ideas contained within a copyrighted work. In Baker v. Seldon, the Supreme Court wrote that a copyright on books which describe a system of doing things does not forbid using that system, nor can it forbid the publication of works which use that system.
The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective,--would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein.
...as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it.
When a book describes how to do something, the “art therein” is not restricted by copyright.
The relevant restrictions for this discussion are copyright restrictions and to a lesser extent trademark restrictions. When I quote relevant case law, I will quote cases from the United States Supreme Court and United States federal courts. I am writing for United States law. There are certain tenets of U.S. law that may or may not be true in other countries.
- Systems, including game rules, cannot be restricted by copyright.
- Terminology cannot be restricted by copyright.
- Ideas, including descriptions where the description embodies the idea, cannot be restricted.
- Compatible works are not derivative works simply because they’re compatible.
- Trademarks are meant to be used by consumers and competitors to refer to the trademarked product.
- Trademarks cannot restrict compatible works.
I’ll talk about these in more detail in the appropriate sections of this series. You can also read these at the United States Copyright office web site.
Because copyright has not been extended to cover game rules, there is less need of open content licenses for table-top games than there is for computer software. But the need still exists. Over the course of this series I’m going to focus on three areas where an open content license can protect important consumer—that is, gamer—rights: game rules, game supplements, and future expansions of copyright restrictions into areas where they do not currently reach.
- Copyright and game rules
- Game supplements and compatible works
- Worlds and characters, and other copyright expansions
Each of those articles will focus on a different aspect of copyright law, and I’ll try to show how each affects the usefulness of free games and free gaming. Except for the section on world and character copyright, I’m going to try to stick to areas that are well-established.
Thanks to the Free Roleplaying Community mailing list for their comments on earlier versions of this document.
- January 25, 2023: Three OGLs walk into a bar: The Return of Gruumsh
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This quote comes from 1996 or earlier. The TSR/WotC/Hasbro war on gamers is not a new one.
Hasbro’s messing with the OGL has been in the gaming news now for several weeks. I’ve generally stayed out of it. This is not a fun way to celebrate the 49th anniversary of D&D (observed).1
I hope we find a better way to celebrate the fiftieth anniversary next year.
I long ago decided that the OGL was pointless for most of the things people use it for, and certainly for anything that I would use it for. The OGL adds severe restrictions on what you can do with otherwise free content; it gave nothing in return. Its sole purpose seems to have been to dump everything that you can do legally, without permission, under the umbrella of “product identity”.
“Product identity” is not a term in copyright law; it is a made-up term meant to sound like “intellectual property”. If you agree to use the OGL, “product identity” restricts you in ways that don’t normally exist under copyright or other intellectual property laws. The OGL seems designed solely to deny game writers what they would have the legal right to do if they ignored the OGL.
One of the first series I wrote on this blog was on gaming copyright and what makes a good open license for an RPG. The OGL failed on almost every point.2 So I never used it, even for my own D&D-like game which came out about the same time as the OGL—and was a lot more like D&D when I first published it (see below).
Rob Conley recently called for stripping OGL language from your gaming materials:
I would urge everyone involved in D&D design or content creation to strip out all OGL language and ensure your rules/content is open source and fair use or whatever the appropriate terms are for gaming.
- U.S. Copyright Office: Games (PDF)
- “Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.”
- Copyright Basics: What Works are Protected? (PDF)
- “Several categories of material are generally not eligible for copyright. These include ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.”
- What Does Copyright Protect?
- “Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.”
- U.S. Code: Title 17, Chapter 1, Section 101
- Definitions used for copyright laws.
- Copyright and game systems
- John H. Kim has some pages on copyright, including, if you look closely, the text of several ninth circuit court cases.
- Baker v. Seldon
- “The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such a book.”
- The Betamax Case
- Copyright is not intrinsic to creations. It must be conferred. “This Court must be circumspect in construing the scope of rights created by [copyright]. Any individual may reproduce a copyrighted work for a ‘fair use’; the copyright owner does not possess the exclusive right to such a use.”
- Copyright: A Broken Contract with the Public
- Copyright laws give special monopolies at the public’s expense, with none of the recompense to the public that once was promised.
More Best of Biblyon
- Secular Humanist Pantheon
- The Secular Humanist cult, while often oppressed, attracts intelligent, creative worshippers who subscribe to a rich and storied mythology. It will make a great addition to your role-playing game alongside more commonly-role-played mythologies such as Christianity, Buddhism, and Bokonism.
- Experience and Advancement in Role-Playing Games
- Kill monsters. Take their stuff. How has character advancement in role-playing games changed over the years? Starting with original D&D and on up through a handful of modern games, I’ll be surveying methods of experience and character advancement over the years.
- Are my dice random?
- My d20 appears to have been rolling a lot of ones, a disaster if I were playing D&D but a boon for Gods & Monsters. Is my die really random, or is it skewed towards a particular result? Use the ‘R’ open source statistics tool to find out.
- Spotlight on: Evil
- No one considers themselves Evil. So how does the Evil moral code relate to the game of Gods & Monsters? How and why do Evil non-player characters act?
- Populating England
- Use the history of England as an example of how to steal ideas from real history for your game world.
More gaming copyright
- Copyright and game rules
- Game rules are specifically exempted from copyright restrictions in the United States. But open content remains useful for gamers, because it allows for easier re-use, easier improvement, and helps improve the long-term viability of a game.
- Game supplements and compatible works
- A copyright-based open license can’t require anything of compatible works unless the compatible work would otherwise be a copyright violation—something that usually isn’t the case. But an open license on a game makes creating compatible works easier, and can make some kinds of compatible works more useful and complete.
- Worlds and characters, and other copyright expansions
- Copyright law is not static. It has a history of expanding both in term and scope. An open content license will protect, tomorrow, uses that today are unrestricted.
- Can I legally use Gary Gygax’s name for my son?
- It’s probably best to talk to a lawyer, or just avoid the issue altogether. Gaming copyright is a very complex issue, and best left to the experts or those with deep pockets. Have you considered naming him Sue?
- Three OGLs walk into a bar: The Return of Gruumsh
- It has never been a good idea to use the OGL. That’s become obvious to a lot more people over the last several weeks.
Please note that I am not a lawyer, nor do I subscribe to for-pay court databases. Court cases can be misinterpreted; they can be overturned; laws can change. This only serves to further highlight the need for simple open source licenses that protect consumer rights in role-playing games and elsewhere. We shouldn’t need to be lawyers to understand what we can do with our purchases.