Invoking IP: What is it with the OGL?

All of the usual disclaimers about my being a law student rather than a lawyer apply.  If you're reading this post after I've passed the bar, I'm not YOUR lawyer, so it doesn't matter anyway.  Consider this an inquiry into a question rather than definitive legal advice.  If you want legal advice, call someone who can give it (including me--AFTER I've passed the bar), but don't roll into a courtroom claiming that the article below is in any way definitive--it's not.

I followed a post on Bat in the Attic back to an earlier post on Tenkar's Tavern where they were talking about gaming products.  Apparently, someone created a one page dungeon/adventure design contest, someone dropped a trademark they shouldn't have on it, and all hell broke loose.  I can't say that I 100% endorse either blogger's views, but here's a few portions of Tenkar's post that I do agree with:

• Mocking the OGL while displaying a compatibility logo isn't just poor taste - it's asinine.
• Compatibility logos and licenses. You get to use someone's trademark on your product. It's awesome until you fuck with it. Why are you fucking with it? Sure, this is the internet and we are all to some extent attention whores, but why piss on someone else's work that you are making a claim to appreciate?
• If you're not sure it's fair use, assume it isn't.

In response to this, Bat in the Attic decided to pen what's actually a pretty decent article about complying with the OGL.  The Bat hits the highlights of the distinction between the Open Gaming License and Creative Commons--to whit that one is an all or nothing proposition (not 100% true with the multiple CC versions available, but we'll let that slide) and the other allows for the protection of some content but not all content.

I continue to contend that the OGL and all its successors are a fantastic piece of legal chicanery.  This comes from two fairly well settled pieces of law.  First, it's well accepted that games and their rules are not subject to copyright.  It's also well settled that the "sweat of the brow" theory (I worked hard for this, so I must have a copyright) is a legal non-starter.  That means that if there is a true copyright for tabletop roleplaying games, it must come from a different source.  One theory could be that the "rules" to an RPG are somehow different from the rules of other games like Monopoly or Spades.  Another possibility would be that the game rule materials are so intrinsically tied in to trademarkable product identity and copyrightable elements in RPGs pre-cooked settings that the copyright must extend to them.  

A third possibility is that the rules of an RPG extend so far beyond what's historically considered rules for a "game," that they should somehow be afforded greater protection.  This theory cuts both ways.  One on hand, the protection would be created based upon the RPGs technical complexity.  But, that's not the province of copyright law.  That's the province of patent law, which requires that anything patented be "novel."  This means that while the RPG might have been eligible for a patent when Dungeons and Dragons was first conceptualized forty years ago, the fact that it was never patented means that the "invention" spilled into the public domain anyway.

I have a fourth possibility, built out of cynicism: RPGs are assumed to have a level of copyright (by the public) because there are big (okay moderately sized) game companies out there that have legal departments and outside counsel that are willing to file lawsuits to bury anyone that wants to contend otherwise.  Under this theory, RPGs as games still lack copyright protection but no one with the legal muscle to fight back has cared to.  (In case reps of any large game producers are reading this, I don't have any desire to do so either).

This is where the OGL and its successor agreements come in and why they are so genius.  The OGL bills itself as a license, but really it's a contract.  Contracts are just private laws.  When you contract with someone, you create private law between the two of them.  You make an agreement to do something (or, sometimes to refrain from doing something) in exchange with the other party's promise to do something.  Once a contract is accepted, it becomes binding, aka it is the law for everyone that's a party to the contract.  Questions about how that gets applied?  Take a look at the OGL:

3.Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

Say someone offers me $100 to paint my house blue.  I take the $100 dollars.  At this point in time, I have a legal obligation to paint my house blue.  Or, maybe the contract is to pay me $100 to only paint my house with a particular brand of paint.  I'm now locked into using that type of paint.  Licensing agreements work the same way, only with copyright things get a little more interesting because there are large criminal and civil penalties prescribed in 17 U.S.C.  

That's what makes the OGL so fascinating.  It's a licensing agreement whereby the producer of the game says, "I'll let you make material related to my game, but you can only do so under a specific set of circumstances.  Oh, and by the way, you have to agree that previous "owners" of the game rules have a copyright (which would make challenging the copyright at a later date difficult, to say the least):

6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute.

 Now, it matters a lot less whether or not the game manufacturers hold a valid copyright or not.  Maybe they do, maybe they don't.  But, you've sat down and agreed that you won't challenge their copyright as part of a contract.  Contracts allow people to waive their rights all the time and that's exactly what's happening here.

So, to bring it back to gaming terms, the copyright status of RPGs are a little bit like gods in the Forgotten Realms.  In and of themselves, they lack power.  But, once enough people believe in them (by producing 3rd party products or just buying into the idea of the license's power), they grow in power and can influence you.  And, once you've given them that power, you've given it to them and there's little you can do about it.

To whom does this apply?  Well, if you've purchased physical RPG books, you aren't bound.  Even if you've bought PDFs from websites, you're likely not bound.  Even if the website made tacit agreement to honor the terms of the OGL and/or successor licenses are part of its terms, it likely wouldn't hold up--that's not the kind of right you can waive in small print.  But, what if you are an adventurer developer in one of these OGL systems or a game designer that wants to model some mechanics?

You're in trouble if you've produced anything and put the OGL or successor agreements on the product.  Because that implies that you bought into the contract and accepted it--see Section 3 of the OGL above.  If you've done that--especially in a commercial product--a court is likely to assume that you either knew what you were doing or that you should have known what you were doing.

What's an aspiring adventure writer to do?  Well, my personal advice is to keep the behemoth off of your back by just signing the damn thing and agreeing to its terms.  Paizo themselves are proof that even with a monolithic opponent that you can keep to the OGL's terms and still make good money.  (They are also, coincidentally, excellent proof in the conspiracy part of my theory.  Even if WotC wanted to challenge Paizo at this point in time, Paizo's likely defense would be to challenge the OGL writ large and if it fell it could become non-binding on everyone that's signed it.  That's also bad business for Paizo at this point, so a lawsuit between the two is unlikely to happen.)  If you've never signed anything, you're probably good to go, but don't be surprised when one of the big guys' lawyers comes knocking once you've had a little bit of success.

All OGL material referenced from: http://www.opengamingfoundation.org/; copyright to the text of the contract (WTF?) claimed by WotC.
Some caveats: This article examined the OGL and its successors from a copyright perspective.  While copyrights in games might be on shaky grounds, the inviolability of their trademarks stands on strong firmament.  So, if you decide to take a "no copyright in games" scorched earth approach, be very clear in differentiating what is a game's rules content and what is original, creative thought.