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.
Interesting point. He's not a lawyer, and neither am I, so the theory that the GSL poison pill is utterly unenforceable under the common law doctrine of restraint of trade may be a load of bunk. It's certainly one requiring a test in the court that could be quite expensive to undertake.
The question is whether "D&D and similar games" is a category of products in which a D&D player should reasonably benefit from third parties publishing aids and adjuncts. I have an easy answer to that question, but opinions may vary.
EDIT: Well, and whether WotC is depriving 3pp of their livelihood. Or whether the GSL actually grants anything in exchange to a publisher in exchange for the assurances to WotC.
You can tell the blogger is not a lawyer. First of all, there is no longer a d20 license. Second fo all, the OGL is a license entered into with WotC. WotC is 100% within its rights to deny you ever entering into one licensing agreement with them if you enter into a differenet licensing agreement with them.
There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.
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Last edited by Xyxox; 16th July 2008 at 04:31 PM..
This seems dubious to me. There's no "right" to make D&D supplements per se; there's what copyright/trademark law says, and what any license WOTC might issue says, and that's about it. It's like saying "My business plan is to make Star Wars vibrators; George Lucas won't give me a license; it's restraint of trade!"
The GSL is a very risky contract, but I think any company which agrees to it should accept the terms and deal.
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Second fo all, the OGL is a license entered into with WotC.
Not necessarily... if I release my original work under the OGL, and you use it, the only part WotC plays is in holding the copyright on the text of the OGL license itself.
There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.
But you can by preventing them from doing business with their customers. Off the top of my head, there's Microsoft versus France with the Netscape thing, plus M$ versus the US Dept of Justice over a similar issue with software "bundling," there's a class action lawsuit going on right now against Volkswagen in the US for not letting their customers know that independent locksmiths can rekey their transpoder based security systems.
There actually is a right to do business. If I am prevented from doing business with someone I desire to, instead of you, my right is being infrinted. So this is less about Third Party Press than it is Joe Customer. If WotC goes after Third Party Press for trying to sell their original work to the customer that happens to be compatible with D&D, that is an issue.
"Sign this or we'll sue you, and oh yeah, we grant you basically nothing," is a contract, sure, but is it enforceable?
Imagine you have a cell phone, and it has a clause that says, "We have a right to revise this agreement at any time." Now supposing they notify you that they are revising it, thirty day passes, but your notification was lost in the mail. The contract states you are responsible for being knowledgeable about updates to the license and that the license is posted on your website. You have thirty days to cancel your contract if the contract changes.
So one day they drive up to your house and announce, "We changed the license so that it says we get to seize your car." You protest, but they say, "Look, we gave you thirty days to cancel. Isn't that reasonable? That's more than Wizards of the Coast gives its licensees."
So they drive away with your car. Enforceable in court?
But you can by preventing them from doing business with their customers. Off the top of my head, there's Microsoft versus France with the Netscape thing, plus M$ versus the US Dept of Justice over a similar issue with software "bundling," there's a class action lawsuit going on right now against Volkswagen in the US for not letting their customers know that independent locksmiths can rekey their transpoder based security systems.
There actually is a right to do business. If I am prevented from doing business with someone I desire to, instead of you, my right is being infrinted. So this is less about Third Party Press than it is Joe Customer. If WotC goes after Third Party Press for trying to sell their original work to the customer that happens to be compatible with D&D, that is an issue.
"Sign this or we'll sue you, and oh yeah, we grant you basically nothing," is a contract, sure, but is it enforceable?
Imagine you have a cell phone, and it has a clause that says, "We have a right to revise this agreement at any time." Now supposing they notify you that they are revising it, thirty day passes, but your notification was lost in the mail. The contract states you are responsible for being knowledgeable about updates to the license and that the license is posted on your website. You have thirty days to cancel your contract if the contract changes.
So one day they drive up to your house and announce, "We changed the license so that it says we get to seize your car." You protest, but they say, "Look, we gave you thirty days to cancel. Isn't that reasonable? That's more than Wizards of the Coast gives its licensees."
So they drive away with your car. Enforceable in court?
The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.
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The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.
Explain to me this virus. All I can really get out of what you just stated is that the WotC had a previous relationship with 3pp that they have since decided not to honor.
The problem with that thinking is that the SRD is 100% WotC content,
The new 3.x SRDs can easily be considered 100% WotC content. The new SRD however is harder to claim full copyright over as it is a list of terms. Reproducing the list itself would be a copyright violation, the terms themselves can't be copyrighted (individual words can be trademarked but not copyrighted) and except for D&D are not Trademarked.
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Originally Posted by Xyxox
and is also the basis of everything licensed under the OGL.
Most things licenced under the OGL are based on the SRD, but not everything. The OGL is a licence in and of itself which may or may not be used in conjunction with the SRD.
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Originally Posted by Xyxox
WotC placed a virus in the OGL because they own the SRD.
I am fully missing the point of that satement. The viral nature of the OGL has nothing to do with the SRD. WotC could have just as easily made the SRD available via the OGL without the viral clause, limiting 3pp to just using the STRD and no-one elses content.
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Not necessarily... if I release my original work under the OGL, and you use it, the only part WotC plays is in holding the copyright on the text of the OGL license itself.
In such a case, I think the better reading of clause 6 of the GSL is that it has no application: the GSL defines OGL as "the “Open Gaming License version 1.0″ with Wizards."
It therefore seems to me that publication of a product licensed under the Open Gaming License that did not have the d20 SRD or the Modern SRD (or any SRD in which WoTC holds the copyright) in its section 15 would not be precluded by clause 6.2 of the GSL.
As to the restraint of trade matter: I'm a little sceptical, because the GSL is not an agreement not to compete with WoTC, nor an agreement not to compete with WoTC in the market for roleplaying games, nor an agreement not to compete with WoTC in the market for D&D (clause 18 expressly recognises that WoTC and 3PP can compete in that market). It is an agreement not to compete in the market for D&D by releasing product pursuant to a particular licence with WoTC as copyright holder in the d20 (and other) SRDs. But is that really an agreement in impermissible restraint of trade? It doesn't look like it to me, but then I'm not a commercial lawyer.
What I am interested in is whether I can cry foul over the forbidding to companies to continue producing products for the 3.5 material that I purchased, a lot of it from WotC, with the understanding that there would be a vibrant 3'rd party marked supporting that product.
I've tried to make an analogy, and so far the best (which isn't great) is:
I sell copiers. I allow 3'rd parties to create toners for those copiers using my cartridge design.
I decide that I don't like having 3'rd parties create toners for my copiers anymore. I create a new copier with a new cartridge design, and I allow limited use of the new cartridges with the provision that anyone using the new design must cease to use the old design.
You have purchased one of the earlier copiers, and understood that you would be able to purchase a variety of toners from companies. Now, suddenly, those companies are precluded from providing the toners.
That (IMO) seems to be a partial destruction of the value that you received when you received the old design copier. My best sense is that *I* have broken an agreement with *you*.
Further, to continue the analogy, in the US, you can't prevent people from producing compatible toner cartridges. Even if your new toner system involves a new patent, it is likely (not certain, but likely) that you will be expected to license out the new technology when it is practical to do so if no one else can create compatible cartridges without using your patent.
You can tell the blogger is not a lawyer. First of all, there is no longer a d20 license. Second fo all, the OGL is a license entered into with WotC. WotC is 100% within its rights to deny you ever entering into one licensing agreement with them if you enter into a differenet licensing agreement with them.
There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.
Was the dead giveaway the bit where I said I wasn't a lawyer? That's why I phrased the whole post as a question rather than as an uninformed statement about what the law is.
I'm pretty convinced at this point that there's no restraint of trade issue, in any case.
The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.
As Brown Jenkins pointed out, there are products out under the OGL that contain 0% SRD or SRD-based content.
I released AssassinX under the OGL, but it has no mechanics in common with D&D or drawn from the SRD (although that wasn't the original intent - the game was, once upon a time, going to use some of the modern equipment lists, but I went with a far simpler equipment / weaponry system in the end).
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As Brown Jenkins pointed out, there are products out under the OGL that contain 0% SRD or SRD-based content.
Yes, and the OGL itself is copyrighted by WotC and they can produce a license telling you not to use their copyrighted work.
While I assume section 6 does not intend to prevent non-SRD based usage of the OGL, the fact is that since they own the text of the OGL they can create a license that restricts its reproduction.
Section 10 of the OGL requires you to distribute a copy of the OGL along with any OGC you distribute. It does not actually grant you the right to copy the text of the license. How did we not notice this for the last 8 years? I don't remember any debates about that. Probably hard for them to enforce the copyright I suppose if the intent of the text it to have people duplicate it.
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I guess I've taken stupid pills, because I don't see the sky as falling regarding the OGL.
Section 9 of the license at the WotC site reads:
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9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.
"You may use any authorized version" is the part I look at. I don't see them being able to put out a new version of the OGL that forbids you from using an old version.
The Version 1.0a license exists and is "authorized" by virtue of them (WotC) having made it. If section 9 was written with language to the effect that you _must_ use the updated version of the license, then I could see the point.
But it doesn't say that. It just says the license can be updated by WotC or people that WotC says can update the license.
The older version would be an "authorized" version, because it was _made_ by WotC. The cat is out of the bag, and they're not going to be able to put it back without way too much ill-will and effort.
Section 10 doesn't say, "Hey, if you want to, go ahead and toss this license in somewhere". It says you "MUST" include the license. I don't see how you're able to include the license without having the implicit ability to actually "copy" the license text in the first place. I think there's some sort of funky hair-splitting/pin head dancing angels thing going on here.
If WotC could really invalidate the OGL just by putting out a new version...
They already would have done it.
Instead, they created the GSL.
There's lawyers that have been using the OGL for a while now (Necromancer games, Blue Devil Games). I'm pretty certain they would have managed to figure out by now if the OGL could be yanked out from under them like some folks seem to think. In fact, that's been part of their concern regarding the GSL ever since they've seen it.
The OGL is fine, stuff put out under the OGL is fine, and this is just fear-mongering in regards to the OGL. Until I see at least a couple of lawyers engage Clarke and Justin in a discussion and demonstrate how the OGL can be completely invalidate and people that put stuff out under the OGL screwed, I'm not changing my stance on it either.
And no, I'm not a lawyer. I'm simply willing to accept that the other lawyers that are out there and using the license do in fact know better than I do. If it's good enough for them, it's good enough for me.
There's lawyers that have been using the OGL for a while now (Necromancer games, Blue Devil Games). I'm pretty certain they would have managed to figure out by now if the OGL could be yanked out from under them like some folks seem to think. In fact, that's been part of their concern regarding the GSL ever since they've seen it.
The OGL is fine, stuff put out under the OGL is fine, and this is just fear-mongering in regards to the OGL. Until I see at least a couple of lawyers engage Clarke and Justin in a discussion and demonstrate how the OGL can be completely invalidate and people that put stuff out under the OGL screwed, I'm not changing my stance on it either.
Yes the OGL is fine and non-revokeable. The GSL is however a seperate contract that people can sign onto. By signing the GSL a company legally agrees never to publish a product line under the OGL ever again. The OGL is not altered, but if a company signs the GSL and later breaks the GSL by republishing a product under the OGL they can be sued by WotC for breach of contract (The GSL). They would not be violating the OGL but the GSL.
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