This is part of my RPG series of entries here at SOB. See the inaugural entry in the series for more details.

I follow the writings of Mad Brew, aka Michael Brewer, sporadically. Essentially, I check it out whenever I remember it’s there. He strays into subject areas that don’t interest me much just slightly too often for me to have actually subscribed to it with an RSS reader yet (my RSS reader tends to fill up far too quickly), but he writes the occasional piece that is so good I just have to try to keep up with the thing at times. He wrote about RPGs as Intellectual Property yesterday, and that was one of those writings that is not only on a topic I care about, but so well-written it would be a real shame to miss it. I’ve come to two realizations, as a result of that: first, that I want to comment about it here; and second, that I need to subscribe to his RSS feed, because I don’t want to risk missing another piece of writing I find as interesting as this one.

First, my impressions:

He did an excellent job of breaking things down to layman’s terms.

He explained (in part, in the comments below the actual article) the mystique of copyright enforcement, as it applies to licensing schemes such as the OGL (“open source” gaming license used with D&D 3.x rules, known as the d20 system) and the D&D GSL (highly restrictive license, apparently designed to punish third-party game material developers and trick third-party publishers into forsaking the OGL). As he points out, many people seem to think that just because the GSL exists, that’s the only way one can make use of the published materials. Such people are not familiar with the legal protections of fair use law.

(“open source” gaming license used with D&D 3.x rules, known as the d20 system) and the D&D (highly restrictive license, apparently designed to punish third-party game material developers and trick third-party publishers into forsaking the OGL). As he points out, many people seem to think that just because the GSL exists, that’s the only way one can make use of the published materials. Such people are not familiar with the legal protections of fair use law. He clarified the applicability of copyright law to games — which is to say that the law does not protect the rules of a game, which would more properly be the domain of patent law.

I’m surprised he didn’t mention fair use with regards to copyright law in the body of the article — such as the fact that quoting for purposes of review, satire, et cetera is protected speech.

Second, my thoughts:

I’m a big fan of fair use, because I think it’s an important remnant of the natural economic state of ideas that has managed to survive through hundreds of years of abuse under restrictive intellectual protectionism regimes. Unfortunately, special efforts have been made by organizations like the MPA, RIAA, MPAA, and BSA to erode the scope of fair use in practice.

What I like even more, of course, is the public domain or (especially in the context of strong copyright enforcement) copyfree licensing policy. While the original intent of copyright and patent law may have been to encourage the arts and sciences, the end result has proven to be contradictory to that aim. Even in the early days of the United States, the framers of the nation’s founding documents expressed some skepticism about the advisability of copyright and patent law. Thomas Jefferson himself, as part of a longer statement about the subject:

Inventions then cannot, in nature, be a subject of property.

Read the rest of the quote on the other side of that link. It’s enlightening about his own state of mind on the matter at the time. Sadly, he was ultimately persuaded to succumb to the desires of those who favored copyright and patent law by their fervor. There is no compelling argument on record, that I have been able to find, setting forth a more logical and complete refutation of Thomas Jefferson’s lucid and thoughtful points on the matter; he basically just caved to pressure. As a result of such pressures, we now have a system that guarantees the rights of the artist and inventor will, in almost every case, be trampled by the business interests of market dominating corporations.

The way TSR during the Williams years and WotC under Hasbro’s guidance have set out to trample anyone trying to expand upon the ideas published in D&D game books serves as an excellent example of how even fair use protections and the inapplicability of copyright law to game design may not be protection enough. A powerful enough organization, going after a weak enough target, can very easily shut down any perceived competition with spurious lawsuits just because of the costs involved in defending oneself against such unwanted attentions. Protection rackets like these — where a company like Wizards of the Coast strong-arms smaller publishers into playing by the insanely restrictive rules of licenses such as the GSL with threats of spurious infringement lawsuits — are common in any established industry where “intellectual property” is the main stock in trade, with the result of discouraging innovation and creativity. Only organizations run by lawyers, such as Kenzer & Co., can reasonably afford to pursue a fair use approach to third-party publishing.

Third, how this affects you and me:

It’s for this reason that as I’ve been writing materials based on roleplaying games published under the OGL I have chosen to use the OGL itself to license my materials. While I could, with a few tweaks, be adequately covered by fair use to have a solid defense in case of a spurious lawsuit, I cannot afford the expense of such a defense no matter how righteous in the eyes of the law. As a result of this, materials that could be even less restrictively licensed than the terms of the OGL (I’d prefer to offer these materials under the terms of the Open Works License, the same as the content of this Weblog) are instead subject to the same complex licensing as the materials that inspired them. I lose, because I have to step with greater care when writing up new materials, and you lose, because you are subject to the same complex, somewhat restrictive licensing.

Still, the OGL is a huge leap forward over more traditional game publishing models that leverage strong copyright enforcement, and is certainly far better for the game, the industry, and the community than the GSL.

The term “intellectual property” is de riguer in pro-copyright and pro-patent circles, but it’s a misnomer. Ideas and compositions subject to patent and copyright, respectively, are not in fact property at all. Property is a product of scarcity; to have property, one must have something that can be controlled, even to the point of destruction. As Thomas Jefferson noted, an idea is like fire — it spreads from mind to mind, growing in volume and power, expanding its reach without diminishing its origin in the least. Property can be stolen; ideas cannot. Theft deprives an owner of the power of a possession, but spreading an idea does no such thing. In fact, spreading an idea only increases its power.

The law itself recognizes this distinction between property on one hand, and those materials subject to copyright and patent protections on the other. Whereas using a sandwich without permission is theft, using an idea or an expression of an idea is “infringement”, because it infringes upon the privileges granted by copyright law. It does not violate rights that are, in fact, merely protected by law. There is no inherent right to control over an idea that has been imparted to another person’s understanding. The practice of treating it as a right, of using the overwhelming force of law to coerce people into behaving as though such a right existed, is nothing more than a protection racket. The difference between the most basic foundation of copyright law and the excesses of industry organizations such as the RIAA and BSA is merely one of degrees and pervasiveness: both are cases of a protection racket.

Fourth, other notes:

Does anyone know what happened to Amagi Games? This was a site offering public domain game materials, an effort I would wholeheartedly endorse if it had not simply vanished somewhere along the way. I fear that it may have, once it became a more open, contributor-based endeavor, been the victim of a DMCA takedown notice. If anyone has any information about this, I’d appreciate an update. Since the site just disappeared, taking any contact information there with it, it’s not easy to try to make contact.

(edit: As indicated in comments below, the site suffered some technical difficulties due to a security issue, and had to be shut down until its patron has the time to relaunch the site with those problems solved.)

A few months ago, perhaps in reaction to the underwhelming response of third-party publishers to the GSL, WotC made noises about revising the GSL to make it more friendly and usable. I haven’t noticed any such improvements, however, and in fact what I have seen is WotC/Hasbro getting its panties in a bunch and cracking down on “infringement”. The Ema’s Character Sheets site was a victim of this, though to be fair it did actually infringe beyond the bounds of fair use — but there has been some saber rattling in other areas as well. (Alas, I didn’t take notes on where I saw such mentions at the time I ran across them, because I wasn’t planning this SOB entry then, so feel free to take this with a grain of salt.)

Unfortunately, longer ago than either of those depressing notes, the Open Gaming Foundation went dormant. The site is still there, with the same materials still posted that were there to begin with, but it has apparently not been updated in years. Its maintainer seems to have abandoned the whole thing, other than continuing to pay the bills so the hosting company and domain registrar don’t turn out the lights. This could have been a useful resource, and I would have been happy to help (on a free of charge, volunteer basis) with the upkeep of the site if such was needed, but an attempt to contact the site’s maintainer went unanswered — so it appears even email is being ignored. I hope its persistence isn’t just a result of the domain registrant and hosting customer having paid for several years in advance then gotten run over by a bus.

Fifth, what I’d like to do:

In the long run, I’d like to start developing games under the OWL — and, eventually, make a profit. I actually have plans in mind for the development of a game, complete with the beginnings of an inkling for how I could produce physical, hardcopy publication of the game for sale. This would be in addition to, and not instead of, freely distributable online publication. It’s kind of an ambitious project, and probably doomed to failure (the pen-and-paper RPG market has never been much of a direct profit industry), but something I’d like to attempt at any rate.

I’ll keep producing some of my own OGL/d20 materials, particularly in support of Pathfinder RPG (the heir apparent to the D&D 3.5 game, via the OGL), of course; I still want to play that game after all. My ambitions with regards to a new game system that might someday have the potential to produce profit need not conflict with that. Eventually, though, I want to have a hand in creating an example of how truly open game development can prove a successful endeavor, not only in terms of mind share or market share, but also in terms of profit (or at least covering its own costs).

Suggestions and support are welcome, but really the main point of this SOB entry is to raise awareness, to get people thinking beyond the tiny little boxes in which social tradition tries to enclose them. The fact that copyright and patent laws have existed for longer than any of us have lived does not, in any way, translate to their sacredness. They should be questioned, their very premises examined — and, I believe, they should ultimately be discarded.

It is my belief (and the principles of the Austrian school of economics support this belief, though many self-styled Austrian economists probably don’t realize it) that ultimately greater successes, and greater profits, can be had by adopting a laissez-faire approach to the question of intellectual property . As such, I think the best way to undermine the corporate controlled industry tradition of strong copyright enforcement is to compete with it, but to use open, unrestrictive licensing — copyfree licensing, ideally — to do so. It may take a very long time to overcome the market dominating effect of the brand recognition of the longest-lived RPG line, the very first commercial RPG in fact, and the only RPG to ever really become a nationwide household name in the US, but it is a worthy goal.

There are basically two ways to approach this, I think:

Make up your own games. Release them to the world — publish them, in other words, whether online or physically — under unrestrictive licenses, or even under the auspices of the public domain. Support the efforts of others to do so, favoring them over closed, restrictive games subject to proprietary, punitive licenses.

Toward the efforts of number 2, I have chosen to boycott D&D 4E, personally, not only because it is subject to restrictive licensing, but because the publisher abandoned open licensing, and set out (maliciously, in my opinion) to coerce others by way of WotC’s market dominance to abandon open licensing as well. Where Paizo has taken up the torch, I will support it, and I think that you should do so as well. It may not be licensed under truly copyfree terms, but it is a significant improvement over the GSL, and — face it — we need a direct descendant of D&D to support if any real headway is to be made, for as long as the D&D brand itself remains solvent.

I would also support efforts such as Amagi Games and the Open Gaming Foundation, if there was anything there to support. In their absence, I hope you’ll support me, as I come up with more materials to offer to the world under open licenses — and I hope others spring up to help spread the meme, and that both Amagi Games and the OGF may revive themselves and find new life.