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This is the second of my two planned videos about Paizo’s ORC license. This one summarizes the issues I raised in the last video, follows up on one of those issues, then discusses an entirely different topic. I take a side trek towards shrink wrap licenses, but as long as this video is (41:00), I tried to keep it as brief as possible, so I didn’t mention the mild circuit split on shrink wrap licenses. Basically, sometimes the courts uphold them, and sometimes their skepticism has them strike them down. In other words, the concerns I expressed aren’t merely speculation, but rather based on actual disagreement between different courts. But hey; just watch the video. I wasn’t nearly as fired up in this one.
EDIT: After you watch the video, come back here for point of clarification. I say that shrink wrap licenses are being used in a weird way with respect to RPGs. Here’s another way to phrase it. With software, the licensor places a unilateral contract on their product and says, “This product is paired with this license. Use the product, and you accept the license.” With RPGs, the licensor (e.g., Paizo) isn’t putting their license on their own product, but even if they do, it’s not capable of being accepted at that point anyway, so it means nothing so far. Instead, the licensee (e.g., you) are putting Paizo’s unilateral contract on your own product, and in doing so effective saying, “Yeah, I accept this.” But you never actually say that to the licensor. Moreover, if Paizo accidentally figures out that you used the license on the product, they’re never going to contact you. Everyone is in a contractual relationship with everyone else, but most of us don’t actually know it. That’s weird.
Remember, shrink wrap licenses are unproven where it counts, and there are legitimate reasons not to trust them, not the least of which is that they’re unilateral. Now you’re using them in a way unique to an industry that’s rarely subject to litigation of this sort. That’s even more suspect.
References:
Idea v Expression in Tabletop Role-playing Games
The Merger Doctrine
My One-Stop Stat Block Posts
Something Stupid, and Something Odd
Tread lightly.
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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)
Play What You Want 
I have a couple of those shirts.
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I have a couple thoughts, just things that this discussion brings to mind.
1. Is there any analogy to be made between TTRPG and video games, in particular First Person Shooters which basically don’t play any different than Wolfenstein 3D / Doom? Or are they different animals.
2. Have you looked at Free League’s License and SRD in reference to their Year Zero Engine?
3. Is the line drawn between derivative work that is free vs. that which is meant to be sold? Can I make an rpg that I give away for free that has even the copyrighted material without license?
4. I have the biggest problem with the idea of a license not being irrevocable. It seems odd that I cannot one day say, “nah I am done sharing.” So in my mind, no matter how well intentioned the license, they can either revoke the license OR just make a new edition because the license does not have to be added to the new edition. And I think that is the direction the One D&D New 5E is or was headed: No license and thus no way to do derivative work.
If any or all of these are stupid questions, its okay to say that lol. My feelings won’t be hurt.
Thanks.
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1. While there are similarities, video games have a graphic component that RPGs have (i.e., artwork) but aren’t relevant to open gaming licenses. That’s the crux of video games, though video game stories can get complex. The issues with RPGs is overwhelmingly text.
2. Nope.
3. Not really. If I made photocopies of the PHB-equivalent and gave them away free of charge, that’d still be devastating for the game designer. Not charging for your copies is rarely a good defense to a charge of infringement. On the other hand, in the instances where news stations are copying material for movie reviews, etc., the fact that the stations are for-profit companies doesn’t work against them.
4. I think you misstated something. Do you oppose revocability or irrevocability?
If everything you’re doing is derivative, then no one will want your product. If you’re doing truly original work, you don’t have to have a license. You can say something like, “This adventure takes place on the outskirts of Waterdeep, and adventurers can use Waterdeep as a home base,” and that doesn’t violate copyright, and you can use a disclaimer to avoid trademark issues. You can also create your own tavern and say, “This tavern is in Waterdeep.” However, if you go into too many details about Waterdeep, you could get in trouble, but the OGL, ORC, etc. don’t help you with that. Never has anything clearly copyrightable been licensed through an open gaming license. It’s all about game mechanics, and you really don’t need any of these licenses to rehash game mechanics, especially if they’re presented in your own words.
But as always, there’s a huge difference between being able to win a lawsuit and being able to afford one.
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[…] more thoughtful points on the licenses themselves, check out a friend’s blog posts here and here. As always make up your own […]
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How would you write the equivalent license of the OGL?
Specifically, it needs to be viable as a viral marketing mechanism (unlike creative commons), I am genuinely curious how you would do it.
(yes, I am trying to get you to write one, lol)
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In theory, could you provide a website that has the full copy of the license for those who want to create a derivative work, where they have the chance to read through, and accept the terms (perhaps it stamps the license with a QR code upon acceptance), as well as be required to put a license notice on the work, would that better full fill the acceptance criteria?
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