The Hillfolk licensing decision #2: Potential Solutions

Posted on 28 October 2012

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Last blog post, I discussed the licences that people had proposed for Robin D Laws’ DramaSystem and GUMSHOE works. This time, I’ll be talking about potential solutions to the problems.

Let’s remind ourselves of Robin’s criteria:

  1. “[L]ow-hassle licenses that encourage uptake by gamers and commercial users alike.”

  2. For GUMSHOE, the ability to stop translations from being published.

  3. Preferably, a share-alike licence which requires downstream creations to be licensed under the same licence as the original work.

  4. A licence which is friendly to creators who want to keep their intellectual property proprietary. So for example, if George Lucas wants to make a Star Wars GUMSHOE RPG, he needs to be able to keep his Star Wars intellectual property all rights reserved.

There’s a few things that parts of the community are looking for as well:

  1. Acknowledgement of the original creators.

  2. Inter-operability with existing CC BY-SA and OGL content.

  3. Able to be used in non-open source computer programs.

  4. As little Balkanisation as possible.

I conclude that dual-licensing the works as OGL and CC BY-SA is the best option.

Permissive licensing

In this model, Robin releases the rule systems under CC BY or CC0.

  1. It’s as low hassle as it gets.

  2. There is no legal way to stop translations.

  3. It is not share-alike.

  4. It is friendly to IP holders.

  5. CC BY requires acknowledgement of the original creators; CC0 does not.

  6. CC BY is inter-operable with CC BY-SA but not (I believe) with OGL content; CC0 is inter-operable with both.

  7. It can be used in computer programs.

  8. There is a danger of Balkanisation if later adapters don’t openly license the works.

Fixes

The main problem is that the lack of a share-alike provision means that downstream innovations might not be open for others to use.

Don’t worry about it: Since game rules are not copyright, any innovations in the GUMSHOE or DramaSystem rules can be used by anyone—they’ll just need to use different expression to describe them.

Social pressure and endorsement: Ask explicitly for those who adapt and re-use the work to license it under CC BY/CC0 just like the original. Only publicise openly-licensed adaptations of the game on Robin’s website, and don’t mention ones that remain all rights reserved. Encourage fans of the game to only buy openly-licensed GUMSHOE/DramaSystem spin-offs.

This method could also be used to discourage unofficial translations.

Assets and trademarks: Don’t release the logos for ‘GUMSHOE’ and ‘DramaSystem’ under the CC licence. Instead, only grant permission to use those logos if they are being applied to a work that is openly-licensed. The use of the terms ‘GUMSHOE’ and ‘DramaSystem’ are covered by trademark law rather than copyright law, but you could potentially use trademark law to stop those terms from being used unless the products they are being applied to are openly-licensed.

This method could also be used to discourage unofficial translations.

Copyleft licensing

In this model, Robin releases the rule systems under CC BY-SA.

  1. It’s fairly low hassle.

  2. There is no legal way to stop translations.

  3. It is share-alike.

  4. It is potentially unfriendly to IP holders.

  5. It requires acknowledgement of the original creators.

  6. It is inter-operable with CC BY but not with OGL content.

  7. It can be used in computer programs, and indeed has been.

  8. There is no danger of Balkanisation.

Fixes

The main problem is that the share-alike provision means that IP holders might not be able to keep their IP all rights reserved while still using the game rules from GUMSHOE/DramaSytem.

Don’t worry about it: The Creative Commons licences are copyright licences. They do not affect trademark law. Trademark law is the main tool to protect brand identity. Sure, the CC BY-SA licence requires the ‘Jedi Knight’ to be openly-licensed under copyright law, but the term ‘Jedi’ remains protected by the totally separate trademark law. Without the name and the (also trademarked) lightsaber, it’s just a ‘Psychic Knight’.

Separate licensing: The CC BY-SA licence gives publishers an additional option, but it doesn’t prevent them from approaching Robin and asking for a separate private licence. If there is ever a Star Wars GUMSHOE game, you can bet that they’re going to want to license the game separately no matter what licence the rules are under.

Limited CC BY-SA licensing: If a game qualifies as a ‘collection’ rather than a work, individual ‘works’ in a book (like the rules chapter) could be CC BY-SA licensed without the whole work being licensed in that way. However, this is a legal grey area to my knowledge.

Personally, I think the best option for Robin to dual-license the works under the CC BY and OGL licences. CC BY is a simple, intuitive licence that gives publishers and gamers tremendous flexiblity in how they use it. It plays nicely with CC BY-SA, allowing for a range of games to be created.

People have been describing the OGL and CC BY as compatible. I don’t believe this is true. CC BY has strict attribution requirements which are not necessarily satisfied by the OGL’s Section 15. If CC BY material were mixed with OGL material, they would have to be segregated.

Dual-licensing (OGL and CC BY-SA)

In this model, Robin releases the rule systems under CC BY-SA and the OGL.

  1. It’s fairly low hassle.

  2. There is no legal way to stop translations.

  3. It is somewhat share-alike.

  4. It is friendly to IP holders.

  5. It requires acknowledgement of the original creators.

  6. It is inter-operable with CC BY or with OGL content, but not necessarily with both.

  7. It can be used in computer programs, and indeed has been.

  8. There is some danger of Balkanisation.

Balkanisation will occur if adaptations are licensed under either CC BY-SA or the OGL, but not both.

I described it as ‘somewhat share-alike’ because I don’t consider the OGL a pure ‘share-alike’ licence since it’s so easy to segregate content. Some companies have very broad Product Identity declarations that basically gut the product and make it no easier to use than all rights reserved material.

Fixes

As discussed under ‘Permissive licensing’, social pressure and assets can be used to encourage adapters to apply both licences to their derivative works rather than just one or the other.

Why I don’t believe that CC BY is inter-operable with the OGL

To be specific, I believe that adapters can use CC BY and Open Game Content in the same product provided the adapter does not try to re-license the CC BY content as Open Game Content. As long as the content is segregated, I can’t see a problem.

CC BY content cannot be relicensed as Open Game Content because:

  1. The attribution requirements potentially clash (CC BY 3.0 § 4(b)) and

  2. The licence does not allow the work to be sublicensed (CC BY 3.0 § 4(a))

1. Attribution requirements

CC BY requires ‘reasonable’ attribution, and for collections there is an additional requirement that “such credit will appear, if a credit for all contributing authors of the Adaptation or Collection appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors.”

There is no such requirement in the OGL. I could list myself as the only author of a book that simply reprints material from other sources, provided that my Section 15 entries are done correctly.

If CC BY material were re-licensed under the OGL, the ‘reasonable’ attribution protection would be lost, therefore such re-licensing is forbidden.

2. Sublicensing

I don’t know what sublicensing is, but it potentially also forbids re-licensing.

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