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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.
The deal breaker is that OGL made companies dependent on d20, and subsection 6.1 in the GSL requires those companies to completely drop their d20 lines in order to adopt 4e, instead of allowing them to slowly shift into 4e and phase out d20. Thus, it costs them, especially the magazines, a LOT of money to make the switch, unable to sell old stores or selling them at a loss, and then catering to a smaller share of the market, as 4e hasn't been grown yet. A product must be grown before it can be made a force. You can't just shove it on people and expect people to swallow it without question.
Last edited by Corjay; 1st August 2008 at 09:14 PM..
The deal breaker is that OGL made companies dependent on d20, and subsection 6.1 in the GSL requires those companies to completely drop their d20 lines in order to adopt 4e, instead of allowing them to slowly shift into 4e and phase out d20.
That clause applies per line of product right? So someone like Paizo can keep on making their 3e Pathfinder adventures and start a new line of 4e Dungeon Crawl adventures? It's only if they wanted to convert their old stock of Pathfinder mods do they need to stop selling them as OGL.
Yes, you are correct. I'm afraid I wasn't thinking about that aspect. But that is how I believe it works, yes. On that aspect, it costs money to start a whole new line and you can't be sure it will be successful. Though it does leave room for turning to 4e as old lines die out and new ones are created.
But 4e could use the help of being able to convert product lines without having to stop selling past product in the product line.
Last edited by Corjay; 1st August 2008 at 10:12 PM..
1: WotC retains the right to terminate the GSL for any or no reason at all.
2: Product lines published under the GSL most stop being published under the OGL now and forever.
3: WotC reserves the right to change the terms of the GSL with no notice whatsoever.
4: WotC seems to have the right to take over IP that you publish under the GSL, but that
5: Licensees are required to cooperate with WotC in defence if its IP.
6: Licensees are forbidden from pursuing legal action against WotC for any reason. Call me paranoid, but this possibly even includes criminal charges for criminal activities performed by WotC.
7: Licensees are required to cover WotC legal costs in any event, so even if you were to sue WotC and win, you would be required to pay their lawyer fees, and the fine that they have been charged.
8: most or all of these issues continue even after the license has been terminated.
basically, it is a steaming pile of poo. And no sane person would ever agree to it. Much less any person who depended on GSL products for their livelihood.
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Your legal battles happen on thier home turf and trial has to be by a judge.
The issues revolving around Judge vs. Jury trials and what is legal in one state Vs. another should be more than enough to make this a deal breaker.
You pay wotc's legal fees even if you win a legal fight with them.
I doubt Hasbro's megacorp lawyers will be that cheap.
1: WotC retains the right to terminate the GSL for any or no reason at all.
2: Product lines published under the GSL most stop being published under the OGL now and forever.
3: WotC reserves the right to change the terms of the GSL with no notice whatsoever.
4: WotC seems to have the right to take over IP that you publish under the GSL, but that
5: Licensees are required to cooperate with WotC in defence if its IP.
6: Licensees are forbidden from pursuing legal action against WotC for any reason. Call me paranoid, but this possibly even includes criminal charges for criminal activities performed by WotC.
7: Licensees are required to cover WotC legal costs in any event, so even if you were to sue WotC and win, you would be required to pay their lawyer fees, and the fine that they have been charged.
8: most or all of these issues continue even after the license has been terminated.
basically, it is a steaming pile of poo. And no sane person would ever agree to it. Much less any person who depended on GSL products for their livelihood.
1. The right to terminate was also in the OGL. It's a standard part of every license.
2. This is the 6.1 part. It is indeed flawed.
3. Again, this is another standard part of any license.
4-6. The GSL does not say WOTC can take anyone's IP. What it says at 10.3, where I think you got that, is that the licensee will not attempt to sue anyone on WOTC's behalf or in addition to WOTC's case of infringement of WOTC IP. Subsection 10.1 says that the licensee is not allowed to use any of WOTC's IP except by license or contract with WOTC.
Yes, it says that the licensee must help in infringement cases when called upon by WOTC, but it says that they will be compensated so long as whatever compensation is requested is requested BEFORE the event causing the need for compensation takes place. That's perfectly reasonable. This has only to do with infringements AGAINST WOTC, not WOTC infringement against another publisher or WOTC's own activities. The final line is saying only that the BEHAVIOR of the licensee must not CAUSE any problems for WOTC.
Another part you misunderstand about 10.1. The licensee cannot pursue a case against WOTC where the legal circumstances change. Since the license is in force prior to changes in law, WOTC can enforce the contract as written and cannot be held accountable for changes in contract law and that those laws are not retroactive.
Subsection 10.2 is referring to if a 4e licensee were to bind it with another license like Star Trek. It is saying that any problems arising between the licensee and the third party IP is theirs and theirs alone, and WOTC is not responsible.
7. I believe you're talking about subsection 11.4, but you misunderstand it. No court of law is going to enforce having the winner pay the loser's court costs. What it is saying is that the cost incurred by a rightful case, as it is referring to "injunctive relief", that is, relief that is part of the injunction imposed by WOTC's winning the case. frankthedm is also mistaken here.
8. This is another standard part of a contract. It means that any products continuing to be sold that were published under the GSL remain under the GSL. In other words, the GSL continues to retroactively apply to 4e property.
Quote:
Originally Posted by frankthedm
Your legal battles happen on thier home turf and trial has to be by a judge.
The issues revolving around Judge vs. Jury trials and what is legal in one state Vs. another should be more than enough to make this a deal breaker.
This is another standard part of contracts. Defining what the jurisdiction is so that they can't be challenged in 50 or even 100 different jurisdictions. Since laws are different everywhere, they can't cater to every jurisdiction, so they state what jurisdiction they do cater to and that is where you have to challenge them. Sorry guys, but you all seem to have a lot of problems not with WOTC, but with world-wide standard contract/license practice.
So, seeing as 1, 3, 7, 8, and frankthedm's points are all objections to standard contract practice, and 4-6 were misunderstood, that means 2 (subsection 6.1) is still the only point of contention.
P.S.: Juries are only used in capital cases, not civil suits.
Last edited by Corjay; 2nd August 2008 at 12:41 AM..
Ah yes, you got me there. I was thinking of line 13 in the OGL. Even still that doesn't make 4e's termination clause any less standard practice, and as I said, this contract applies to any product produced under it indefinitely. So WOTC can't terminate the contract later and then say that a company must stop selling that product. The licensee just can't continue to make new product under the discontinued permission. And it would be harmful to WOTC's business reputation to exercise this without justification. Thousands of companies use such a clause, and most of them don't abuse the power of this clause. I seriously doubt any of the companies who produce 4e material are worried about this clause at all. It just makes them think twice about pissing WOTC off.
1) WotC reserves the right to change the license at any time.
2) You agree WotC will not inform you when the license changes. The change will be posted on the Internet.
3) Terms of Service of the Internet web site prevent you from automatically connecting for the purpose of checking if the icense has been changed.
4) You agree to be bound by the changed license as soon as you sell a single item after the license changes -- whether or not you know of the change or agree to the change.
I believe the topic was concerning deal breakers, not every little minor irritation.
You may think 4 is, but it's not. WOTC gets to review all works, meaning if they approve it, you're clear for publishing regardless of any change that occurs between their approval and printing. Seeing as WOTC approval would be the last step before you lay it out and send it to print, it's basically a non-issue. If they have changed it, they'll reject your publication. The chances of them changing it are pretty slim. There's no risk here.
I'm not sure where you got the idea WotC will review your product for acceptability. Although the GSL has the requirement to provide copies of product to WotC on demand, there is no indication such a request and review will be commonplace. Certainly, I expect WotC will have no wish to hire staff to review all product. Additionally, your product may still meet acceptability from WotC's perspective, but the GSL may no longer be acceptable to the publisher.
The dealbreaker is the combination not the individual items.
If you sell a copy of a GSL product after a change to GSL, you are deemed to have accepted the new terms. But you don't necessarily know at the time you fulfil an order that the license has changed. It is your responsibility to keep tabs of the status of the license and to vet any changes for acceptability. WotC refuses responsibility of informing you of the change.
Let's look at a not-horrible hypothetical example:
A brand-new publisher of pdfs fills in the GSL license card and mails it in. The company waits the appropriate time to be told 'no' and hears nothing. The company is good to go.
It starts selling pdfs off of its web site. Those pdfs are formatted to meet the current GSL requirements and don't break any rules.
A few months later, one of the contributors notices the GSL terms were changed a week earlier and they don't like the new version. They would prefer to stop selling entirely rather than be bound by the terms (say the perpetual OGL prohibition was extended to include Creative Common licenses, for example). They stop selling immediately, but because they sold a copy between the time the GSL was changed and the time they noticed, they are in fact bound by the new rules. They are beholden to the new terms.
One way around that would be to check to see if the GSL has changed at the time of every sale. The only sensible method of accomplishing that is through the use of an application/script to verify the GSL file is the same as a reference copy. Put all sales on hold if a difference is detected until a human can determine if the change is acceptable.
Unfortunately, the Term of Use of Wizard's web site prohibit script access so implementing such a defensive measure isn't appropriate. (At least it was last time I checked. The site is down and has been down a lot.)
The next most reasonable solution is to buld in a 'hold' time between the order and delivery, but that goes against the basic expectation for online orders.
If your points were to be taken together, then it's all 1 point, not 4 (not 3, actually, because your third is not true).
First, the site is not down, and hasn't been down in some time. Only the forums have been going down, not the normal web pages. Second, I'm not sure what the point of script access is about in your post. The GSL page is available at all times. There's been no time I've not been able to access it. Third, the GSL shows a clear inclination by WOTC not to waste money on frivolous lawsuits, so it's very doubtful that WOTC is going to chase after every minor violation when they change or discontinue the GSL. Fourth, no court of law is going to uphold such a strict application because someone published something five minutes after the new GSL went into effect or the old one is discontinued. A court would require WOTC to prove that the licensee did not take immediate steps to fulfill the stipulation within a reasonable period of time (being determined by the courts) after discovering that the GSL has changed (Likely somewhere between 24 hours to two weeks). Fifth, a company can easily check daily to find out if the GSL has changed. It's a simple click of the mouse and a quick review. If it weren't for the internet, then yes, WOTC would be under obligation to send out letters. But the internet works fine.
This all goes along the line of WOTC's credibility and common trust, just like the termination clause itself. If WOTC makes it so that no one can trust them, then they won't be able to do business. Since WOTC is not in the habit of pissing other businesses off with meaningless maneuvers, those businesses trust WOTC, so this point is not a deal breaker for them. A deal breaker is going to be something that makes it difficult for the licensee to make money from the license.
Last edited by Corjay; 2nd August 2008 at 07:39 AM..
A deal breaker is going to be something that makes it difficult for the licensee to make money from the license.
That's *YOUR* definition of a deal breaker, not necessarily anyone elses. If that's the angle you wanted people to comment on you should have stated so in your first post.
Many of the others have posted what are the deal breakers for them. Just because you feel those reasons are not deal breakers does not make them less so. By definition, if those things make those people say "no deal" in regards to the GSL (as apparently they do), they *ARE* deal breakers for them, regardless of whether they are standard contract practices or not.
That aside, I think the major deal breaker is the risk of license changes with no remedy period/alternatiuves.
I think they could go a long way to helping themselves achieve acceptance of the GSL if they added a clause to the effect that changes to the GSL would not be immediate and retroactive (at least for print publishers). That is to say that if a product was published/printed under version 1.0 of the license it would not be held to the 1.1 license when it went active until the product in question was re-printed (thus giving a safety net for those who have printed inventory).
If your points were to be taken together, then it's all 1 point, not 4 (not 3, actually, because your third is not true).
First, the site is not down, and hasn't been down in some time. Only the forums have been going down, not the normal web pages.
Yes it was. I was being given HTTP 500 internal server errors on attempts to access. That typically hits me about 1/3 times I've tried to get there this summer.
Quote:
Second, I'm not sure what the point of script access is about in your post. The GSL page is available at all times. There's been no time I've not been able to access it.
Here is the relevant section of the Terms of Use from wizards.com. This defines what behaviours a user can legally engage in on this site. Problematic sections have been highlighted by me. Failure to comply can get you banned/CnD'd/sued.
Quote:
Originally Posted by TOU for Wizards.com
Limits on Use of the Site
You agree not to engage in any of the following: (i) use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, data scrape, copy or transfer any part of the Site (including without limitation any User data, including any Member registration information, whether individually or in the aggregate); (ii) probe, scan or test the vulnerability of the Site, or breach the security or authentication measures on the Site; (iii) reverse look-up, trace or seek to trace any information on any Member or other User of the Site, including information on any Member account other than your own, to its source, or exploit the Site in any way with a purpose of revealing any information, including but not limited to personal identification or information, other than your own information; (iv) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site; (v) use any device, software or routine to interfere or attempt to interfere with the proper working or authorized uses of the Site or with any other person's use of the Site; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message transmittal you send on or through the Site; (vii) impersonate any other individual or entity or misrepresent your identity or your affiliation with another individual or entity; (viii) use the Site in an illegal manner or for any unlawful purpose; or (ix) violate any applicable Guidelines, including without limitation any Code of Conduct.
Quote:
Third, the GSL shows a clear inclination by WOTC not to waste money on frivolous lawsuits, so it's very doubtful that WOTC is going to chase after every minor violation when they change or discontinue the GSL.
Why not? You've agreed to pay their costs, remember?
Quote:
Fourth, no court of law is going to uphold such a strict application because someone published something five minutes after the new GSL went into effect or the old one is discontinued. A court would require WOTC to prove that the licensee did not take immediate steps to fulfill the stipulation within a reasonable period of time (being determined by the courts) after discovering that the GSL has changed (Likely somewhere between 24 hours to two weeks). Fifth, a company can easily check daily to find out if the GSL has changed. It's a simple click of the mouse and a quick review. If it weren't for the internet, then yes, WOTC would be under obligation to send out letters. But the internet works fine.
I strongly disagree. I've seen much more rigorous terms enforced. Remember, the licensee is entering into the agreement voluntarily. You are bound by all terms found in the license. If you cannot tolerate those terms, do not sign. Your "reasonable period of time" doesn't exist in the license you voluntarily signed, therefore you didn't think it was necessary when you signed.
Daily checking isn't sufficient unless you only sell once per day. The license could have been crafted with a cooldown / termination period, but it wasn't -- that why it is a dealbreaker.
If you assume that (a) WotC will not enforce the GSL and (b) even if they attempt to enforce the GSL the judiciary will step in and protect you, then of course nothing wil be a dealbreaker. That would be a very pleasant world to live in.
If you assume that you will be held to the standard of behaviour the GSL obliges by WotC and judiciary, then there are dealbreakers.
Last edited by Nagol; 2nd August 2008 at 01:35 PM..
Yes it was. I was being given HTTP 500 internal server errors on attempts to access. That typically hits me about 1/3 times I've tried to get there this summer.
I had posted that I have had no such problems, but when I posted the link, behold, the page was down. However, regardless, they have a responsibility to uphold their end. If the site goes down, they cannot claim that the information was available, so your concerns are void.
Quote:
Originally Posted by Nagol
Here is the relevant section of the Terms of Use from wizards.com. This defines what behaviours a user can legally engage in on this site. Problematic sections have been highlighted by me. Failure to comply can get you banned/CnD'd/sued.
What does that have to do with accessing the GSL? Nothing.
Quote:
Originally Posted by Nagol
Why not? You've agreed to pay their costs, remember?
I have never paid a dime to WOTC for the use of their services. Access to the GSL is 100% free.
Quote:
Originally Posted by Nagol
I strongly disagree. I've seen much more rigorous terms enforced. Remember, the licensee is entering into the agreement voluntarily. You are bound by all terms found in the license. If you cannot tolerate those terms, do not sign. Your "reasonable period of time" doesn't exist in the license you voluntarily signed, therefore you didn't think it was necessary when you signed.
Daily checking isn't sufficient unless you only sell once per day. The license could have been crafted with a cooldown / termination period, but it wasn't -- that why it is a dealbreaker.
You clearly know absolutely nothing about how the law works. I would stop now if I were you. You're wading into waters you know nothing about.
Quote:
Originally Posted by Nagol
If you assume that (a) WotC will not enforce the GSL and (b) even if they attempt to enforce the GSL the judiciary will step in and protect you, then of course nothing wil be a dealbreaker. That would be a very pleasant world to live in.
If you assume that you will be held to the standard of behaviour the GSL obliges by WotC and judiciary, then there are dealbreakers.
Assume nothing. Business is based on trust, not assumption. If WOTC and HASBRO couldn't be trusted, WOTC would never have gotten as far as it has. Business is based on trust. Without it, you can't do business. Period. And there's a difference between screwing a customer and screwing the business community. If you screw the business community, you won't be doing business for long. Once your willingness to back your contracts can't be trusted, everyone is going to pull out and you're dead in the water. WOTC is not a fly-by-night that can't be trusted. They have a well established reputation in the business community. Not only this, but businesses CAN sue WOTC if it is proven that WOTC's actions caused significant financial harm to the licensee. You can rest assured that WOTC isn't looking to open themselves up to that kind of trouble. These are fundamentals of doing business.
Last edited by Corjay; 2nd August 2008 at 02:53 PM..
Well, we already have tons of back and forth on this.
First, WotC's website does go down, pretty regularly I am afraid, the forums much more often than the DnD pages, but still, it is (was) down when I started reading this thread. That said, I really don't think that has an effect on anything and isn't a point against the GSL (at least not to me).
Second, trust is often based on the individuals within a business that one has dealt with. It is obvious to people that have spoken to them at GenCon or via email, etc. that Scott Rouse and Linae Foster strongly support open gaming, yet the GSL is clearly not what they were hoping for either. This means that other people within WotC have had a profound effect on the GSL and are likely to have that effect on any future changes or licenses. In other words, we trust Scott and Linae, but we really do not trust the people "above" them.
The level of trust the community had for Ryan Dancey when he was working on the OGL and d20 STL was, I would say, an order of magnitude greater than what the community has for WotC as a whole right now. Scott and Linae are trusted but there is a general feeling that they don't have the power to do what they might really want to do.
When you take that reduced level of trust into account, clauses in the GSL become difficult for publishers (mostly established and/or print publishers) to swallow. Yes, the d20STL could be changed at will, but there was a "cure" period where publishers could work to bring products in line with the STL and avoid having to pulp books. Right now, the GSL could be changed in a way that puts your latest print product in violation (even if it is a minor violation) and could end with you losing the right to publish under the GSL AND have to pulp your stock of books. Is this a "probable" outcome? No, honestly, it just isn't probable at all (in my opinion). HOWEVER, it does give print publishers something to fear. I really can't describe clearly how terrifying something like that would be for a publisher. Add a down economy and slow sales into the mix and established publishers are clearly slow to sign onto the GSL.
The GSL is similar to other licenses in that it strongly favors the licensor but a lot of publishers feel that it simply does not offer enough in exchange for the rights they have to surrender. It is easy for some publishers to simply use the "copyright route" (as it has been described on message boards) than to worry about the GSL. Others just don't want to bother with the GSL at all. As a license, well, I have seen worse, but I personally feel that this one is poorly written and leaves clauses open to wide interpretation.
It comes down to Corjay's point about trust and business being based on trust. Right now the smaller publishers really don't trust WotC. They trust PEOPLE at WotC but all of us have seen enough changes in staffing that nobody knows who the "people" will be next year. I have my notes from last year's meeting with Scott Rouse and Bill Slaviscek on my desk right now. I can assure you that WotC failed to deliver on a minimum of 3 promises from that meeting. This hasn't helped engender trust on the part of publishers.
I do think more publishers will sign on to the GSL in the future, but I also expect established publishers and print publishers to hang back a bit and be very cautious. They will want "clarifications" of material in the GSL to insure that everyone has a clear understanding of the various clauses and that they mean the same thing to everyone involved. PDF publishers and smaller publishers without significant OGL backstock are likely (and so far are) the first adopters.
Okay, time to take my kids to the swimming pool ...
Patrick
Corjay: Your argument that Wizards retaining the right to redefine the contract without discussion, notice or a remediation period is not a standard for any contracts.
Nearly all contracts that I am aware of that allow one party to redefine the contract at will require that party to also provide notification, or at least a remediation period, and also allow the other party to completely withdraw if they find the terms unacceptable. However this is a contract that has many, many terms that survive the termination of the contract, there is no remediation period, and there is not even the slightest indication any effort will be made to notify the other party.
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