Does Section 13 of the OGL contain a flawed loophole?

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Big Mac
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Does Section 13 of the OGL contain a flawed loophole?

Post by Big Mac » Sun Jun 10, 2018 12:45 pm

I was just reading through the Green Races hardback and noticing more of the non-OGC things that should not have been included in the book, like Lolth (page 60), Gruumsh (page 107) and Maglubiyet (page 108).

I remember a while ago being told that there is a clause in the OGL, that ensures that anyone who copies OGC from another publisher who has broken the OGL, does not have to destroy their books.

The section is called Section 13 Termination. Here is the OGL on the Hypertext d20 SRD website, so you can follow along:
Open Game Licence wrote:13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.
I believe that the part about sublicences surviving the breech, was so that a publisher who borrowed OGC in good faith from another publisher who included content that broke the OGL, would not also be in breech of the OGL.

That all seemed hypothetical, until I heard of this book (and maybe others from Fast Forward Entertainment) that broke the OGL and thought about what might happen to stuff published under the OGL that broke the OGL.

In this case, WotC does not seem to have a problem, as the book has what I have heard called "crippled content". There is an OGC/PI declaration that states this:
Green Races page 220 wrote:Designation of Product Identity: All material other than game rules already considered Open Gaming Content is considered Product Identity as described in Section 1(e) of the Open Game Licence version 1.0a (see below). This includes, but is not limited to Temple of the Troll God, Fotress of the Ogre Chieftain, Slave Pits of the Goblin King, Encyclopedia of Demons and Devils, Rings of Power, all non-historical characters, artefacts, creatures, spells, non-historical place names, events, plots, artwork, logos, trade dress, product names, company names and logos, product lines, artifact names, spell names, non-historical creture names.

<snip>
There is more it than that, but the broad definition means that they are claiming the names like Lolth, Gruumsh and Maglubiyet as Product Identity.

Anyhoo, if that had not been there, I wonder if Section 13 would have been creating OGC versions of Lolth, Gruumsh, Maglubiyet and any other D&D things that have been namechecked that were legally isolated from the TSR/WotC versions and available for other publishers under the OGL.

I know that someone got two computer expert (who never met) to clone the BIOS chips that IBM created for their PCs. I wonder if a similar process involving one product that broke the OGL and another product that referenced that product could be used to make a loophole that allows other companies to make things that use terms that WotC never intended to be Open Game Content.

I don't think most publishers would do this, as it's kind of a scummy move, but with the 3e SRD hobbling D&D's Outer Planes, I could imagine someone trying this sort of trick, in order to be able to make 5e products that were Planescape compatible.

What do you think?
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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by dulsi » Sun Jul 01, 2018 6:55 pm

I wouldn't read it that way. Sublicences not being terminated means they don't lose access to the SRD. If they used Loth, they are still in trouble. Even if it did work the way you interpreted, I think lawyers would say it is only permitted in the time frame of publication and infringement is discovered.

The BIOS example is different. IBM had a copyright on the BIOS code. Directly copying would be copyright infringement. If someone learned how it worked and then rewrote it, he might remember how IBM did it and implement it the same which could then be claimed as a copyright infringement. By having that person simply write the input, output, and effects of the BIOS, a new person can write an implementation and the company can say there is no copyright infringement because he never saw the IBM version. For RPGs you could do this for systems to avoid claims of infringement because you can copyright the specific text of your game but not the rules. But that doesn't help you with using specific names.
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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by Morfie » Tue Jul 03, 2018 7:24 am

Green Races page 220 wrote:Designation of Product Identity: All material other than game rules already considered Open Gaming Content is considered Product Identity as described in Section 1(e) of the Open Game Licence version 1.0a (see below). This includes, but is not limited to Temple of the Troll God, Fotress of the Ogre Chieftain, Slave Pits of the Goblin King, Encyclopedia of Demons and Devils, Rings of Power, all non-historical characters, artefacts, creatures, spells, non-historical place names, events, plots, artwork, logos, trade dress, product names, company names and logos, product lines, artifact names, spell names, non-historical creture names.

<snip>
Was this copied and pasted from a pdf of the actual book? If so, there are numerous typos here suggesting no actual lawyers wrote this.

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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by redking » Fri Jul 06, 2018 4:23 pm

I am interested in whether OGL can be used in a computer game. It appears that Pathfinder is daring to do that with its new game.

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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by Big Mac » Fri Jul 06, 2018 8:44 pm

Morfie wrote:
Tue Jul 03, 2018 7:24 am
Green Races page 220 wrote:Designation of Product Identity: All material other than game rules already considered Open Gaming Content is considered Product Identity as described in Section 1(e) of the Open Game Licence version 1.0a (see below). This includes, but is not limited to Temple of the Troll God, Fotress of the Ogre Chieftain, Slave Pits of the Goblin King, Encyclopedia of Demons and Devils, Rings of Power, all non-historical characters, artefacts, creatures, spells, non-historical place names, events, plots, artwork, logos, trade dress, product names, company names and logos, product lines, artifact names, spell names, non-historical creture names.

<snip>
Was this copied and pasted from a pdf of the actual book? If so, there are numerous typos here suggesting no actual lawyers wrote this.
I typed it, so might have made some transcription errors.
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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by Big Mac » Fri Jul 06, 2018 9:06 pm

dulsi wrote:
Sun Jul 01, 2018 6:55 pm
I wouldn't read it that way. Sublicences not being terminated means they don't lose access to the SRD. If they used Loth, they are still in trouble. Even if it did work the way you interpreted, I think lawyers would say it is only permitted in the time frame of publication and infringement is discovered.
That could be right.

I don't think anyone is going to go up against WotC on this sort of thing.

There are companies rebooting the SRD, to create D&D variants, and I don't think that WotC intended for other companies to do that, but there are legal arguments that game mechanics are not copyrightable...while there doesn't seem to be any legal arguments for using specific names of characters and other background elements of games.
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Re: Does Section 13 of the OGL contain a flawed loophole?

Post by Big Mac » Fri Jul 06, 2018 9:13 pm

redking wrote:
Fri Jul 06, 2018 4:23 pm
I am interested in whether OGL can be used in a computer game. It appears that Pathfinder is daring to do that with its new game.
Yes.

It was the d20 System Trademark Licence (d20 STL) that could not be used with computer games, IIRC.
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