RPG Legalities: OGF/4eGSL/d20STLDiscussions about the Open Gaming Movement, the Open Gaming License, along with WotC's GSL. This is the new home of the OGF-L and d20-L listserver discussions.
Wanted to say that the little Q&A on the front page is great and should help tamp down (though never wholly remove) the conspiracy theories and rumors flying about.
But this quote from the end, seems to give the wrong impression:
Quote:
Originally Posted by Front Page
WotC can revoke the license at any time!
Yes. Yes, they can. That is, unfortunately, a risk you have to take if you use the GSL: unlike the OGL, it is revocable, much like the d20 STL was.
But what does that mean? Well, as you know, the d20 STL has been revoked; third-party-publishers have been given a 6-month grace period to sell off backstock, at which point they will not be able to sell products released under that license. In practice, that means taking the d20 logo off the books, along with a couple of lines of compatibility text. So a revocation of the GSL, while inconvenient, isn't quite as drastic as you may think at first: you'll need to remove some brand-related stuff, but by-and-large you should be OK. You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues. For print publishers with large stock, this could prove to be a problem; for PDF publishers, it's more just an inconvenience - but a surmountable one.
I bolded the part that I think could be misleading.
Under the d20 STL revocation I'll need to pull the logo off some covers and remove some licensing text from the legal part of my books -- but I'll still be able to sell them.
Under a GSL revocation in all likelihood and I figure for almost any product released under it, you're just going to have to pulp everything and scrap the data files for PDFs.
At best what you do is pull the D&D logo and hope that regular copyright allows you to have a book packed with references to the D&D rulebooks. But the Q&A already points out how shaky relying on regular copyright is -- and that'd be even worse for a book that wasn't designed to "file the serial numbers off" and was rife with D&D terms such as power names, spell names, and so on.
Anyway, I'm almost certain that revoking the GSL will mean that any book released under the GSL is dead, dead, dead. Not at all like the d20 STL.
However, you might be able to salvage some material from the GSL'd book to use in a later publication -- though, even in that case due to the "infinite no OGL clause", you won't be able to recycle that material into an OGL'd book.
Yeah, that's what the "You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues" phrase is supposed to address. Maybe I should expand on that, rather than burying it in the paragraph - I just didn't want to be sidetracked into a copyright conversation. I'll bold it; that should help.
[Edit - italicised it and expanded it slightly to: "You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues - but a general copyright discusison is far beyond the scope of this FAQ, and it's what you should be hiring a lawyer for."]
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Last edited by Morrus; 19th June 2008 at 08:17 PM..
I agree with 2WS-Steve. I think what you wrote regarding the termination clause significantly understates the risk to third party publishers.
If WoTC exercises the termination clause, they have no other license to fall back on. They essentially lose all rights to their product line, with no legal recourse.
This is in direct contrast to the situation which exists with the d20 STL/OGL.
Hmm, couldn't they then go and release the product for a different system - Runequest, say? Or just create a new system to go with it?
They could release it under a new system under no license or under some other open license.
But Mongoose actually did release Runequest under the OGL, so that would be out (unless you made some other arrangement).
The unfortunate bit is that the OGL is the de facto RPG standard due to long use and extensive material released under it. There's pretty much no chance that some other open license will become the new standard because gamers and game publishers are ornery and prefer their own slight variation on an open license to piggy-backing on somebody else's open license.
The first question in the FAQ might not be 100% accurate.
Section 10 of the GSL requires the Licensee to recognize all "Wizards Intellectual Property". The end of section 10 then defines this to include everything within the core rulebooks and the SRD. Furthermore, section 10 requires that the Licensee agree not to challange any of this, and on top of that, section 10 is one of the sections that survives even after the license's termination.
In other words, if Wizards chose to read section 10 in a very liberal manner, they could claim that by signing the GSL you are recognizing their "ownership" of even basic fantasy elements, such as the concept of dragons, demons, golbins, etc... and since section 10 lasts even past termination of the GSL, they could sue you, even decades later if you tried to make use of any of those basic fantasy elements.
In other words, if Wizards chose to read section 10 in a very liberal manner, they could claim that by signing the GSL you are recognizing their "ownership" of even basic fantasy elements, such as the concept of dragons, demons, golbins, etc... and since section 10 lasts even past termination of the GSL, they could sue you, even decades later if you tried to make use of any of those basic fantasy elements.
Ah, that's the "WotC owns the word "the" argument"! It's in the core Rulebooks, right?
I think that the important part of the section is "“Wizards Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards"; however, I can see how that is open to interpretation your way.
I didn't put that in my FAQ because - frankly - it's not clear-cut enough that I'd want to comment without an IP lawyer; I only wanted to address the clear stuff and the common misapprehensions. This little issue is far too subtle for me!
More worrying, I think, is "nor will Licensee attack the validity of this License".
Ah, that's the "WotC owns the word "the" argument"! It's in the core Rulebooks, right?
I think that the important part of the section is "“Wizards Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards"; however, I can see how that is open to interpretation your way.
I didn't put that in my FAQ because - frankly - it's not clear-cut enough that I'd want to comment without an IP lawyer; I only wanted to address the clear stuff and the common misapprehensions. This little issue is far too subtle for me!
More worrying, I think, is "nor will Licensee attack the validity of this License".
I agree that its not a very clear-cut section, and that Wizards would have a tough time making headway with it in court, however the opening would still be there. If Wizards were to sue another publisher who had never been a licensee of the GSL, over the use of something trivial such as dragons or demons in a fantasy based game, they would most likely lose in court, and the defendant would have a chance at countersuing for damages and or legal expenses. If the defendant however had at one time been a GSL licensee, then Wizards would be able to use section 10 of the GSL as the basis for their suit, and while they would still most likely lose in the end, the defendant would have a much harder time making any headway with a countersuit. I think that's the biggest risk of section 10 is that it gives Wizards an opening to file what would otherwise be considered a baseless or frivilous lawsuit.
Also, I seem to remember TSR at one point threatening legal action against anyone who used the concept of "dragons" in a fantasy game, so its not like such behavior isn't unheard of.
I agree that its not a very clear-cut section, and that Wizards would have a tough time making headway with it in court, however the opening would still be there. If Wizards were to sue another publisher who had never been a licensee of the GSL, over the use of something trivial such as dragons or demons in a fantasy based game, they would most likely lose in court, and the defendant would have a chance at countersuing for damages and or legal expenses. If the defendant however had at one time been a GSL licensee, then Wizards would be able to use section 10 of the GSL as the basis for their suit, and while they would still most likely lose in the end, the defendant would have a much harder time making any headway with a countersuit. I think that's the biggest risk of section 10 is that it gives Wizards an opening to file what would otherwise be considered a baseless or frivilous lawsuit.
If this opinion is based on experience as a lawyer, then I'll defer to practical expertise. But my intuition is to be a little doubtful as to your claim.
Clause 10.1 does not vest any special right of suit in WoTC. It does two things that I can see.
First, it simply expresses the licensee's a recognition of Wizard's exlusive rights and interests in any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards, in each case whether arising under the laws of the United States or any other jurisdiction. The clause states that this includes "all content contained within the Core Rulebooks and all Licensed Materials, including without limitation the SRD", but I would think that this has to be read within the context of the clause as a whole: given that the recognition is of rights and interests arising under law, and that no law gives WoTC any property rights in the words "the" or "dragon", then the most natural reading is that these individual words do not fall within the meaning of the phrase "content contained within the Core Rulebooks".
I think that the main function of this aspect of clause 10 is to ensure that the licence is not interpreted as any form of assignment of, or creation of, IP rights in the licensee.
Under the clause, the licensee also promises not to use any of that IP without licence from WoTC.
If a licensee went on to publish a non-licensed product that involved dragons, WoTC could try and sue them either for infringing WoTC's trademarks, or for breaching their contractual obligation not to make use of WoTC's IP. The first argument would seem a little pointless: given that clause 10.1 does not require the licensee to recognise any rights in WoTC beyond those created by law, I don't see that WoTC could gain any advantage by pleading clause 10.1 instead of whatever law they are arguing their trademark rights arise under.
The second argument is a little more interesting, because it precludes the (former) licensee from using WoTC's IP even in circumstances where that would otherwise be lawful. This would therefore preclude (for example) publishing a product which said "Compatible with Dungeons and Dragons".
But I don't see how the clause would encourage frivolous suits by WoTC. From WoTC's point of view there would certainly be nothing frivolous about stopping a publisher making the compatibility claim, for example.
The clause states that this includes "all content contained within the Core Rulebooks and all Licensed Materials, including without limitation the SRD", but I would think that this has to be read within the context of the clause as a whole: given that the recognition is of rights and interests arising under law, and that no law gives WoTC any property rights in the words "the" or "dragon", then the most natural reading is that these individual words do not fall within the meaning of the phrase "content contained within the Core Rulebooks".
Well, that's the thing. How do we know that wizards doesn't "own" the rights to the concept of dragons in a fantasy based rpg? Sure, common sense tells us that they don't, but as of right now, that's all we've got to go on. But let's look at some cases that are a little more vague...
Does Wizards own the rights to the concept of presenting Bahamut as a dragon?
Does Wizards own the rights to the word "halfling" as it pertains to hobbit type creatures?
Does Wizards own the rights to the cocept of elemental planes connected to an astral sea?
Does Wizards own the rights to the cocept of elves meditating instead of sleeping?
Obviously, it would be possible to keep going on and on like this. The risk I see in section 10 is that the licensee agrees that all "content" in the core rules books is Wizards IP, and the licensee agrees to never violate that IP in perpetuity. Granted, the word "content" is nebulous, but it still gives Wizards a shaky foundation to base a suit on. I can understand why they put section 10 in the GSL, and I'd be very surprised if it was there for any sort of nefarious reasons, however I think it would have been better if the part of section 10 in question wasn't included in section 11.2 Survival.
Keep in mind, section 19 never expires, either. Coupled with section 10, this would give Wizards a backdoor to demand that you comply with section 19 even in an IP suit concerning a future, non-GSL product.
I guess the point I'm trying to make, is that section 10, due to its survivability, could potentially give Wizards a slight leg-up in any sort of IP dispute you have with them in the future, even concerning something that you might feel is far removed from any GSL products.
Positronica, WoTC does not need clause 10 to enforce it's IP rights against anyone. Roughly speaking, those rights are good against all the world (that's what makes them property rights).
So, as I said, the main effect of clause 10 that I can see is that you waive rights you would otherwise enjoy to make lawful use of WoTC's IP (eg via compatability declarations).
Positronica, WoTC does not need clause 10 to enforce it's IP rights against anyone. Roughly speaking, those rights are good against all the world (that's what makes them property rights).
I agree, however the point I'm trying to make is that section 10 gives Wizards an avenue to claim a suit has merit, when it would have otherwise been considered frivolous. Sure, section 10 alone isn't going to give then any greater chance at winning such a frivolous suit, however when the defendant turns around and tries to counter sue for legal expenses, Wizards is able to go to the judge and say "We had a reasonable belief that our suit had merit, based upon the defendants acceptance of our broad IP claims in section 10. Therefore, even though we ultimately lost the suit, we shouldn't be liable for the defendant's court costs." Now, is this a serious risk? Probably not, but we've seen plenty of companies use essentially baseless harassment suits against their competitors before, including within the gaming industry. Since section 10 never expires, any prospective GSL licensee needs to make sure they're ready to be saddled with that section in perpetuity before they jump in.
I think even more troublesome though is the effect of sections 10 and 19 together. Let's say that 10 years from now, long after you've stopped making any GSL products, you decide to put out a new fantasy rpg that has drow in it. You base your drow on the traditional drow from Scottish folklore, and not drow as they are presented in D&D. Despite this, Wizards decides to sue you anyways, claiming that your use of drow is a violation of their IP, regardless of your difference in portrayal. Furthermore, they claim that this use is a violation of section 10 of the GSL, and as such, section 19 entitles them to a bench trial in King County, Washington.
Positronica, unless the law in the US on costs and vexatious litigation is very very different from that of Australia and the US, I don't think that you are right. But the law may be very different.
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