Legal Issues in Gaming: The Open Game License

Since I started writing about legal issues in tabletop gaming, several people have asked me about the Open Game License because some of my other posts seem inconsistent with what everybody knows about the OGL. After giving it some thought, I have decided that I should address it sooner rather than later. As a background, it may be relevant to review my introduction to copyright and gaming.

The Origin of the OGL

The Open Game License was first given life during the creation of the Third Edition of Dungeons & Dragons. Built on the idea of the GPL (GNU's General Public License), Wizards of the Coast intended to create a sort of generic version of the new ruleset, dubbed the d20 System, and allow third parties to create content for that system that is compatible with Dungeons & Dragons. Ryan Dancey, one of the (former) WotC employees who motivated the OGL, spoke to the overall intent of the license:

The Trademark.

The net result is that D20 becomes a rosetta stone for making products that will be compatible with Dungeons & Dragons, without requiring us to issue a blanket license for the D&D trademarks. In other words, we want to use the trademarks of D&D to hold the value of the business, rather than the rules themselves.

In this way, Wizards of the Coast would make a remarkable change from previous legal stances regarding Dungeons & Dragons and the law. TSR, Inc. had a reputation for threatening lawsuits against people releasing D&D adventures, modules, or other content without a proper license. The OGL as presented to the public seemed to be a very public way to change the relationship between the owners of D&D and the larger community. Like the GPL, the OGL was intended to make the d20 System the Open Source of the tabletop RPG world.

A Tale of Two Types of Content

Wizards of the Coast provided the Open Game License, version 1.0a, for anybody to utilize in their product. Although it contains a significant amount of legal language, an important part of the license is the first paragraph. The license differentiates between two types of content in role-playing games: Open Game Content and Product Identity content. Generally, the creator of content allows other parties to utilize Open Game Content while Product Identity elements remain protected and controlled. Knowing what falls within each type of content is important to knowing what the OGL does and does not do for content creators.

Product Identity is simple enough of an idea to make it worth discussing first. The OGL uses quite a lot of language to describe PI but it can be more readily summarized as creative expressions, such as characters, stories, and other creative content protected by copyright or trademark. From a legal perspective, Product Identity is not terribly interesting because its essentially just copyrighted content and the OGL does not allow third parties to utilize that content. However, contrast the idea of Product Identity with that of Open Game Content (OGC).

"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.

This important process is what the OGL
is all about sharing, right?

OGL 1.0a, 1(d). Based on this definition, OGC includes a wide variety of content. Most people understand OGC to include all of the game mechanics of a system, from rolling specific dice for specific situations, creating characters in specific ways, and methods for resolving conflicts. When looking at the language of the definition, it is worth contrasting it with the following section of copyright law.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

17 USC §102(b). The definition of OGC also includes some suspicious patent language, such as referencing a specific embodiment or prior art. Perhaps, a better way to describe OGC is to say it includes all of the content that does not fall under copyright or trademark protection, including any patentable content, and anything else specified by the creator.

Given all this, it may be helpful to describe Open Game Content and Product Identity a little bit differently. Product Identity is specifically content protected by copyright and trademark while Open Game Content is specifically content that is legally unprotectable or protectable via a patent.

License to Breathe

Perhaps the most interesting aspect about the OGL is the fact that a majority of the content that the license gives permission to use (the Open Game Content) is content that the creator had no legal control over to begin with. As noted podcast Law of the Geek described it, the OGL was a license to breathe. The permissions granted over Open Game Content was no more a grant than had existed without the OGL. If that is the case, what's the point of the OGL?

If somebody were to devise the rules to a role-playing game system and patent it, the OGL would be a way for them to retain their legal protection while allowing third parties to publish content in compliance with the license. Of course, patenting rules to a game has its own share of problems and thats why its rarely ever done. After a brief search through Google Patents, I cannot find anything that could be interpreted as a role-playing game. So, if nobody is patenting the rules to a role-playing game, why the OGL? Simple answer: TSR, Inc.

This is why people *think* we need the OGL.

TSR and the Law: A Brief Historical

TSR, Inc. had a long history of trying trying to protect the D&D line through licensing agreements, trademark disputes, and other legal action. The earliest example comes from a licensing agreement between TSR and a company called Judges Guild. Judges Guild was, for all intents and purposes, the first company to conceive of writing and publishing adventure modules for the D&D game. Founded by a man named Bob Bledsaw in 1976, he specifically went to TSR to seek some sort of agreed license to publish this kind of content. They agreed and the license remained in place until 1982, the point that TSR realized there was money to be made in adventure content and they cancelled the license.

Only a few years after Judges Guild, TSR had a new upstart competitor by the name of Mayfair Games. Founded by an attorney named Darwin Bromley, one of Mayfair's earliest products was a series of AD&D adventures known as Role Aids. Within two years, TSR was already threatening legal action against Mayfair. The result from that dispute was the 1984 trademark agreement, an agreement between Mayfair and TSR that allowed Mayfair to utilize the TSR and D&D trademarks in a limited fashion. The important element in this potential suit and future agreement was that it centered around trademark use and infringement. Nothing here concerned rules, game systems, or the like.

This is what it looks like to publish a product
for AD&D without a license or OGL.

In 1992-93, TSR brought suits against two different companies: Game Designers Workshop, for developing a game by Gary Gygax called Dangerous Dimensions, and Mayfair Games, for allegedly violating the terms of their 1984 trademark agreement. Neither case went to trial but were, instead, settled out of court. Both settlements saw TSR buying out the other parties entire interest in the contested property. From a legal perspective, these cases suggest very little because nothing was ever really decided by a court. But, from the perspective of a fledgling game publisher, these cases tell you that you'd best play ball with TSR or you'll get sued and bought out.

The Concession that is the OGL

When Wizards of the Coast created the OGL in 2000, it did a strange thing. The owner of Dungeons & Dragons was saying to the world, "We will allow you to utilize this game system as long as you abide by this simple, harmless license. We concede." From that concession came the Year of d20. New companies, new imprints, and many new products continued to appear on game store shelves. From what can be seen, the OGL ushered in a new era of Dungeons & Dragons.

Despite this era of good feelings, the reality is that the concession that was the OGL was really no concession at all. The OGL granted no rights or privileges to third party publishers that they did not already have. TSR's history of legal action never focused on the rules of the games or copyright issues but instead on trademark infringement/confusion. WotC did not give up any legitimate legal rights or protections when they allowed the world to publish under the OGL. [Note: They did agree not to bring suit against licensees, but since the suit would be without merit, that is not much of a right to surrender.] The OGL only became the backbone of the modern RPG community because Wizards of the Coast (specifically, Ryan Dancey) convinced the RPG community that it was the best idea.

Conclusion

This brings up the question: what's the point of the OGL? At this point, the OGL is a relevant issue in the modern tabletop RPG community because people think it is necessary. Mutants and Masterminds could have existed without the OGL. Pathfinder could have existed without the OGL. Fate could have existed without the OGL. 13th Age could have existed without the OGL. All the OGL did was let people know that they could do the things they could already do.

Does the tabletop RPG community need the OGL? Probably not. Like several legal minds have said, it's nothing more than a license to breathe. But, for a community that thought it could not breathe without permission, the OGL serves an important purpose. It let's the gaming community feel safe about publishing game content, something that has had a long history of being a quasi-dangerous game.

The statements made in this article are the opinions of the author (and the author alone) and do not constitute legal advice. Comments posted on this article do not create an attorney-client relationship. Much of the historical information in this post come from a series of articles written by Shannon Appelcline. For additional historical information, look for his upcoming four volume work Designers & Dragons, coming in 2013.

Design Thoughts: Returning to Alignment

Like any big-headed Dungeons & Dragons player, I have spent my fair share of time debating with people regarding the merits of an alignment system within the game framework. After the Head Wizard of D&D R&D addressed the issue of alignment in the current iteration of the D&D Next, debating the merits of an alignment system became the topic du jour in the twitter-verse. Everybody had an opinion to argue or defend on the issue. During one of these heated discussions, I ended up tweeting some things from the hip that got me thinking:

My problem with alignment comes when people disagree on what is good, evil, or otherwise. If the game is not morally ambiguous enough to raise the question, then you don't need alignment. If it is morally ambiguous enough, then the alignment system is more burdensome than not.

Of course, this is just my current viewpoint on the issue. As I thought of it, I thought it would be important to explain my stance on this a little bit better.

Alignment through the Ages

There are many different versions of
the alignment chart but I went for this one.

In one context, alignment gives every character a sort of quick summary of a character's moral compass. Does she abide by the law whenever possible, or is she a free spirit? Does she put the needs of others before her own, or is she selfish to the core? For decades, players in AD&D have had the pleasure (or frustration) of pinning their character on the nine-point alignment chart.

Of course, how alignment applies to a character depends a great deal on the ruleset and the players. In the Third Edition, alignment was considered a guideline for how a character views the world. "Alignment is a tool for developing your character’s identity. It is not a straitjacket for restricting your character." Hypertext d20 SRD, Alignment. The rules even go further, stating that two characters of the same alignment can have very different perspectives.

The modern rendition of AD&D (First Edition) captured in the Old School Reference and Index Compilation (OSRIC) has a more firm stance on alignment. "Alignment is more than a philosophy; evil and good are palpably real in the game world." OSRIC, pg 42. It is a bit heavier handed than the presentation given in the Third Edition, but there are generally no particular consequences given for characters that deviate from their chosen alignment. To that end, it's primary purpose is to provide a guideline for character roleplay.

As simply a guideline for roleplaying, alignment does not present any major issues because it is a wide field. "Each alignment represents a broad range of personality types or personal philosophies, so two characters of the same alignment can still be quite different from each other." Hypertext d20 SRD, Alignment. If one person things interprets "Good" to have one meaning while another interprets it to mean another, it does not really matter because at the end of the day alignment has no in-game ramification. Alignment does not create any issues in this context because it does not matter.

Where Alignment Matters: The Paladin's Dilemma

Older editions of Dungeons & Dragons have a few situations where alignment does make a big deal. There are a number of iconic examples, such as spells that detect specific alignments or deal extra damage to specific alignments, but many of the best examples come from a single source: the Paladin. From abilities that specifically target evil to the restriction of not being able to associate with characters of Evil alignment, the Paladin is replete with alignment-heavy concerns.

Who would have guessed such an iconic
class would have so many problems?

The best example is that of the Paladin's alignment restriction. The holy warrior has the restriction that he be of Lawful Good alignment. "A paladin is a paragon of righteousness sworn to be, and always to remain, Lawful Good. If this vow is ever breached, the paladin must atone and perform penance to be decided by a powerful NPC cleric of the same alignment—unless the breach was intentional, in which case the paladin instantly loses his or her enhanced status as a paladin and may never regain it." OSRIC, p34. Suddenly, what constitutes Good or Evil is fundamentally important and not just a matter of roleplaying. Was that act Good enough, or does Sir Paladin suddenly become Sir Fighter?

There are plenty of iconic examples of "Which is the Good choice?" in the Dungeons & Dragons community. Many a message board post has been spent debating the moral value of saving orc children in a nursery or killing people overcome by evil curses. What is a Paladin to do when faced with these difficult moral choices? Which is the Good and which is the Evil? Or, perhaps, are they all different shades of grey?

What is a Paladin to do in this situation?

I have found that a lot of players do not want to have this debate at the game table. It can often be a personal discussion, as most players will base their decision on their own personal views. As a former student of philosophy, I actually appreciate moral dilemmas. I like the idea that a player would be concerned about the ramifications of his character's actions beyond that of "did it get me more XP?"

As both a player and DM, I find it easier to consider the Paladin's Dilemma in the context of the Paladin's vows and the concerns of his god instead of an arbitrary alignment. The choice of a Dwarf Paladin of Moradin regarding orc babies would likely differ greatly than that of a Human Paladin of Ilmater. Despite that both Paladins are Good servants of Good gods, it is likely that they will choose opposed actions. Neither case really focused on the concept of Good as much as it did the views of each respective god.

But Does Alignment Matter?

It is interesting to me to contrast these two different perspectives on alignment in-game. On one hand, alignment does not really matter because its merely a guide to role-playing. Furthermore, there is a great deal of flexibility within each specific alignment, so a player has a lot of latitude in playing to his character's alignment. This is the simple way to address alignment. Each player is simply using the words to his or her best understanding but that those words have no meaning outside of a player's mind. It seems to me that in this context, it would be just as fair to say your alignment is "Awesome Nice" as it would be to say "Neutral Good." If alignment is going to have such expansive definitions and no ramifications, it actually serves no purpose.

On the other hand, where specific game effects are tied to alignment and require explanation, it can become difficult. Did the Paladin maintain his Lawful Good values? Did the Monk maintain a Lawful perspective? Was the Assassin sufficiently Evil? What choices constitute the Good choices? In these kind of situations, such as the question of the orc babies, alignment suddenly feels more burdensome to play than anything. Spending time questioning the moral value of choices within the context of specific alignments can be difficult, frustrating, or even game-breaking. Usually, the best answers involve disregarding the Alignment system and considering a character's faith, belief, or social history. If alignment is going to have such constrained yet nebulous function as to require leaving it behind in favor of alternatives, it actually serves no purpose.

The Ultimate Alignment Chart.

There are other ways to get around the issue that can be satisfying and entertaining. I have heard of at least one group where the Paladin decided how his actions fell on the alignment spectrum, allowing him some measure of control over the narrative. Of course, if that's the solution, it sounds like that group has essentially disregarded the alignment system in favor of an alternative. Some groups have adopted a belief system comparable to the Mouseguard RPG. The Distinction system used in the Cortex Plus ruleset (comparable to the Fate system's Aspects) is another interesting way to promote role-playing.

There are many interesting ways to find motivations for your character and help promote role-playing. Although the classic D&D alignment system is a way to do it, I reiterate my original statement regarding alignment:

My problem with alignment comes when people disagree on what is good, evil, or otherwise. If the game is not morally ambiguous enough to raise the question, then you don't need alignment. If it is morally ambiguous enough, then the alignment system is more burdensome than not.

But now I ask the question: How has alignment served at your game table? Is it something that people disregard or do players strictly adhere to their alignment? Do questions of alignment come up, or are issues of alignment not the kind of thing your group cares about?

On the Horizon: D&D Next Adventure Design

I recently had an opportunity to participate in a playtest of the upcoming iteration of Dungeons & Dragons. It took me this long to get it to it because I had previously participated in a "Friends & Family" playtest back in March that left me very disillusioned with the future of Dungeons & Dragons. I thought I should organize my thoughts and impressions and put them up on the blog. Despite my misgivings about the legitimacy of the playtest Non-Discloure Agreement, I still feel the need to avoid discussing non-public content. Some of this may get slightly vague as I describe my thoughts and impressions of D&D Next.

After writing a great deal about my playtest experience, I realize it would be more useful if I broke it up into different posts. This post focuses on the adventure content included with the playtest. Future posts will address other aspects of my playtest experience.

The Adventure's the Thing

I have come to appreciate that the usefulness of introductory adventures. Oftentimes, the first adventure you play through sets the tone for all future interactions with that game system. When I got my first Dungeons & Dragons Red Box in 1988, the introductory solo adventure was explicitly a room-by-room dungeon crawl. That set the tone for how many people, myself included, interacted with Dungeons & Dragons. In contrast, tthe upcoming RPG 13th Age features an introductory adventure Blood and Lightning that is very loosely organized and emphasizes a lot of the improvisational qualities of the game. Although these introductory adventures are not definitive, as many players will ignore them, they are important as a starting-off point for many players of the game. They are important in shaping how players see the game and, to that extent, how it is played.

One of the things I really came to appreciate in late-era Fourth Edition was that published adventure content provided a variety of interesting characters and scenarios for groups to build adventures around, with focus more on particular events and scenarios than maps of a dungeon are the promise of vast treasures. The Neverwinter Campaign Setting or The Shadowfell: Gloomwrought and Beyond were both interesting collections of encounters, characters, plots, and schemes that a party could slowly poke their way around and from it build a unique story. They targeted a very different style of gameplay, one that takes advantage of the fact that Dungeons & Dragon is a creative social game. I find this kind of sandbox content very evocative because it provides a wide array of options in which players and DM alike can develop their own narrative.

Lord Neverember doesn't care about exploring dungeons.
He wants you to rebuild Neverwinter with (or for) him.

Given my fondness for this kind of gaming content, it is no surprise that the adventures currently included with the Dungeons & Dragons public playtest worry me. When they included remakes of classic modules (dungeon crawls) like Caves of Chaos and Isle of Dread, I had assumed they did this for purely nostalgic reasons. As I played through portions of Reclaiming Blingdenstone, however, I really got the sense that this classic style of play was the intended direction of the newest Dungeons & Dragons. A direction that, given my own play style, is a disconcerting sign of the future of the game.

The Unfortunate Adventures in Blingdenstone

This guy lives in Blingdenstone
and he probably wants you to gather
ten Kobold scalps or something.

The playtest group I was with had already been playing for two or three sessions prior to my arrival. They were well into the included module Reclaiming Blingdenstone and, as I understood, were quite satisfied with it. With my trusty character in hand, I joined the table in hopes of finding the joy that my old comrades from long ago had found with this new D&D.

I will quickly say that I found the entire session of Dungeons & Dragons (roughly six hours of play throughout the afternoon/evening) to be surprisingly not fun. A significant part of my experience stemmed from my immense dissatisfaction over the adventure, Reclaiming Blingdenstone. It seemed to be steeped in pointless combat with a lot of mundane "quests" to tie it together. To be blunt, it had the feel of something like Diablo or World of Warcraft. "Warden Cardigan wants you to bring back 10 crystals from the Crystal Cave." When you repeat the activity a sufficient number of times and return them to the quest giver, you get a reward and something changes (potentially unlocking another important quest!).

It can be said that I am generalizing the adventure, but as somebody who has taken his Dungeons & Dragons game and influenced it heavily with story games, indie RPG ideology, and other recent ideas within the tabletop RPG scene, I could not help but feel that the adventure was regressive. It felt like the kind of D&D my friends and I played back in 1992, before we had sophisticated dungeon-crawling computer games. The reason I bring this up is that this heavily colored my playtest experience.

[Note: It is worthy of note that the other adventures provided, The Caves of Chaos and The Isle of Dread, are classic adventures from the early days of Dungeons & Dragons. They are even more historical in focus, emphasizing the "dungeon crawl" aspect of the game. From my perspective, I am lucky not to have played that.]

My one major concern with Blingdenstone was that it had such a strong emphasis on wandering through caverns collecting things and killing monsters for experience points and treasure. I suppose my concern rises out of the fact that Blingdenstone was, from all I can tell, written recently. The only writer credits given were Robert J. Schwalb and James Wyatt, both contemporary D&D writers. Given that, it was disconcerting that the provided module would emphasize a dungeon-crawl monster killing style of play.

More or less how I felt after six hours of Blingdenstone.

I do not mean to suggest that there is anything inherently wrong with having a dungeon crawl style play experience. Clearly, there are many people that value that gameplay experience. However, the included playtest adventure says more about the design philosophy of the game than any mechanical considerations. As I see it, this is the style of play that they want at the core of the product. And that's what really got me thinking.

Having played games like Descent: Journeys in The Dark and the D&D Adventure System board games, I can appreciate a tabletop dungeon crawl. Both games (and the many related games out there) do well at capturing the dungeon crawl experience in a concise yet sufficient manner. But, in light of the growth in the tabletop role-playing and story gaming industry of the past ten years (including the Indie RPG scene, D&D 3.5 and Pathfinder, story gaming, Fantasy Flight's RPG lines, and even the developments of D&D 4E), it seems strange to me that the new D&D would be actively targeting a style of role-playing game that has become somewhat niche.

What's Old is New Again (Whether You Wanted It Or Not)

The Dungeons & Dragons game has been slowly moving away from its old school origins since its early days. Much credit could be given to the work of Tracy and Laura Hickman for making story and plot central to the adventure, elevating it beyond a mere dungeon crawl. To that end, the game has come a far way from its origins as a medieval battle simulator with heavy doses of cartography.

Who needs a story when I have a gridded map
to sketch based on vague DM description alone!

By the Fourth Edition of Dungeons & Dragons, the game openly addressed different styles of play and welcomed story and narrative based play in the introductory chapters of the Dungeon Master's Guide. Even more interesting in the progression was the less popular Dungeon Master's Guide 2, co-written by RPG design guru Robin D. Laws. Although a bulk of the book focused on more mechanical considerations, from monster themes to trap designs, it featured several sections providing guidance and suggestions for DMs new and old. Among other things, it discusses the ideas of collaborative campaign design, having encounters matter, cooperative world building, and other interesting ideas that felt more like they came from the indie RPG community than ivory tower of the D&D Old School.

The reason I mention this, in light of Blingdenstone and its potential progeny, is to highlight how big a step away from those ideas this new material seems to be. For example, consider this paragraph on how to use encounters in a D&D game:

A well-crafted encounter is a key scene in the story of your adventure and in the overarching story of the characters in your campaign. If you build your adventure like a structured fantasy story, sharing a similar dramatic structure with novels, movies, and plays, then an encounter equals a scene in that story. The encounter acts as a discrete element in which tension builds in steady increments toward the climax of the adventure.

That is guidance taken from the second page of the DMG2 chapter on building encounters. Now, contrast the with these two excerpts taken from Chapter 6 of Reclaiming Blingdenstone:

The trip [to Mantol-Derith] takes twenty hours of travel. Every eight hours, whether the adventurers are traveling or resting, roll 1d10. On a result of 1 or 2, consult the “Underdark Encounters” table in appendix 1.

The return from Mantol-Derith takes as much time and has the same potential for random encounters as the trek to the trading post. 

Having a collection of random encounters with trolls, orcs, and giant centipedes seemed anything but relevant to the plight of the deep gnomes. As a player, the only relevance the random encounter served was to waste time and resources. I honestly cannot imagine a legitimate reason why running into a grey ooze or a pack of centipedes would be especially important in advancing the situation in Blingdenstone. Granted, a more astute DM could have implemented a more interesting, engaging encounter that somehow tied to the story and purpose of the adventure, but the fact that the adventure as written suggests a flurry of random encounters as bookends to an essential chapter of the adventure says a lot to me about what the new Dungeons & Dragons is going to be about.

The end of my D&D Next playtest experience, as
presented by the Frost Wizards of Irvine.

Adventure Design: Conclusion

Reclaiming Blingdenstone is not necessarily representative of the new direction of Dungeons & Dragons. However, when you consider that all three adventures provided for testers to use follow a similar format, it does suggest that it might very well be the new (old) direction of the game. I can only hope that future iterations of the playtest begin to include adventures more geared towards an engaging and interesting storytelling experience and less on the amount of treasure and experience a player can amass in a four hour period. To that end, only time will tell.

Luckily, as with any tabletop RPG, what you get out of it depends a lot on what you put into it. Designing a game that is focused on trolling through dungeons looking for monsters to slay and treasures to gather will not impact my ability to play the game I want to play. But, as several friends continue to remind me, the new D&D is not being designed for people like me. That only raises the question of what motivation do I have to stick it through to the end?