4e D&D GSL Live

Orcus · Jun 18, 2008

Hyrum, I'm just not going to indulge in what some might interpret as a legal interpretation of the license. I cant do that. It would be misleading to people.

There is lots to get worked up about in the GSL, but this is pretty standard lawyer boilerplate crap.

Its even in the d20STL that you have been using for years, which provided:

"If You fail to comply with the Effects of Termination, Wizards of the Coast may, at its option, pursue litigation, for which You shall be responsible for all legal costs, against You to the full extent of the law for breach of contract, copyright and trademark infringement, damages and any other remedy available."

So dont freak too much.

This one, though, is a little worse.

Orcus · Jun 18, 2008

Angellis_ater said:
I was sceptical to begin with, but the 6.1 clause (no GSL->OGL reversion even if the license is revoked or terminated) is the big break for me. At this point, I am NOT feeling confident that Dreamscarred Press will be able to release ANY material for 4E, since we never know when WotC will pull the plug on us and we have a shitload of useless PDFs/Books.

Unless my partner comes up with an awesome scheme, all I can say is that I am, personally, disappointed.

This issue is clearly going to need some clarification from Wizards.

Or maybe it wont. I mean, it is pretty clear:

Update an old OGL product, you cant keep selling the old OGL version (though you can sell off stock that is already printed).

What is more troubling is coupling this with 6.2, which says "though shalt not make an OGL version of a product you make under the GSL" and that provision apparently survives the termination of the GSL as well. That mean whatever you make for 4E can never be OGL--if you update it from OGL to 4E you are out of luck, and if you make it for 4E originally you cant go back and make an OGL version of it later even after the GSL is terminated.

I'm still not quite sure what the penalty would be for doing the latter, but it certainly seems to say you cant do it.

Clark

HyrumOWC · Jun 18, 2008

Orcus said:
Hyrum, I'm just not going to indulge in what some might interpret as a legal interpretation of the license. I cant do that. It would be misleading to people.

There is lots to get worked up about in the GSL, but this is pretty standard lawyer boilerplate crap.

I totally understand.

Its even in the d20STL that you have been using for years, which provided:

"If You fail to comply with the Effects of Termination, Wizards of the Coast may, at its option, pursue litigation, for which You shall be responsible for all legal costs, against You to the full extent of the law for breach of contract, copyright and trademark infringement, damages and any other remedy available."

So dont freak too much.

This one, though, is a little worse.

Yeah, but it's MUCH easier to be terminated now, than it was under d20.

Still, the entire license is disappointing, and as it stands right now, it's looking like a deal breaker for me.

Hyrum.

Orcus · Jun 18, 2008

This is, without doubt, the section that is getting my closest scrutiny:

6.1 OGL Product Conversion. If Licensee has entered into the “Open Gaming License version 1.0” with Wizards (“OGL”), and Licensee has previously published a product under the OGL (each an “OGL Product”), Licensee may publish a Licensed Product subject to this License that features the same or similar title, product line trademark, or contents as such OGL Product (each such OGL Product, a “Converted OGL Product”, and each such Licensed Product, a “Conversion”). Upon the first publication date of a Conversion, Licensee will cease all manufacturing and publication of the corresponding Converted OGL Product and all other OGL Products which are part of the same product line as the Converted OGL Product, as reasonably determined by Wizards (“Converted OGL Product Line”). Licensee explicitly agrees that it will not thereafter manufacture or publish any portion of the Converted OGL Product Line, or any products that would be considered part of a Converted OGL Product Line (as reasonably determined by Wizards) pursuant to the OGL. Licensee may continue to distribute and sell-off all remaining physical inventory of a Converted OGL Product Line after the corresponding Conversion is published, but will, as of such date, cease all publication, distribution and sale (and ensure that third party affiliates of Licensee cease their publication, distribution and sale) of any element of a Converted OGL Product Line in any electronic downloadable format. For the avoidance of doubt, (a) any OGL Product that is not part of a Converted OGL Product Line may continue to be manufactured, published, sold and distributed pursuant to the OGL; and (b) this Section 6.1 will survive termination of this Agreement.

Coupled with:

6.2 No Backward Conversion. Licensee acknowledges and agrees that it will not publish any product pursuant to the OGL that features the same or similar title, product line trademark, or contents of a Licensed Product.

They can spin that this isnt a poison pill all they want. But my dad taught me to call a spade a spade.

Clearly, as I understand that existing license, there wont be a "Tome of Horrors" for 4E. I'm not losing the right to make an OGL version. Period. In fact, I am pretty sure that I will be announcing a full color Pathfinder version of the Tome of Horrors shortly.

That said, I am still considering a monster book for 4E.

We'll see....

Clark

Orcus · Jun 18, 2008

[nevermind]

Clark

HyrumOWC · Jun 18, 2008

Orcus said:
[nevermind]

Clark

Heh. I agree with your OG post.

Hyrum.

pemerton · Jun 18, 2008

HyrumOWC said:
What are your thoughts on section 11.4? To me it looks like WotC can sue you for any reason, and whether or not they win, or the suit is dismissed, you still pay for their costs, which are solely determined by them.

In addition to Orcus's comments, I'd add that Australian law at least has a doctrine that prohibits certain unconscionable contractual penalties. If US law has a similar doctrine, that may have some relevance to the application of this clause (depending, of course, on the circumstances of the particular case).

Orcus said:
whatever you make for 4E can never be OGL--if you update it from OGL to 4E you are out of luck, and if you make it for 4E originally you cant go back and make an OGL version of it later even after the GSL is terminated.

I'm still not quite sure what the penalty would be for doing the latter, but it certainly seems to say you cant do it.

Under clause 11.4 you seem to agree that WoTC are entitled to seek a permanent injunction against your publication in violation of that term of the licence, on the basis that such publication may cause irreperable damage to WoTC.

Orcus · Jun 18, 2008

pemerton said:
Under clause 11.4 you seem to agree that WoTC are entitled to seek a permanent injunction against your publication in violation of that term of the licence, on the basis that such publication may cause irreperable damage to WoTC.

Yeah, I agree that seems to be an available remedy we agree that they can seek. I certainly dont agree they will get an injunction.

I'd love to hear them make that argument for injunctive relief with a straight face. "Uh, yeah Judge, had they made this product under our OTHER license, we wouldnt care at all, but now they are using that other license AFTER this license. Cant you see how horrible that is!?" LOL.

argash · Jun 18, 2008

Jack99 said:
Yes you can, see page 22 of the SRD. (I think)

Your reference to a specific page number is in violation of the GSL....
/sarcasm

pemerton · Jun 18, 2008

Orcus said:
Yeah, I agree that seems to be an available remedy we agree that they can seek. I certainly dont agree they will get an injunction. I'd love to hear them make that argument for injunctive relief with a straight face. "Uh, yeah Judge, had they made this product under our OTHER license, we wouldnt care at all, but now they are using that other license AFTER this license. Cant you see how horrible that is!?" LOL.

What you say is what I suspected, but I don't know enough about the US law for availability of injunctive relief (in fact, I don't really know enough about the Australian law on the point to have more than a tentative opinion).

But if they can't get an injunction, can they get damages instead? Presumably they would have to prove that publishing under the OGL rather than the GSL would cause loss to WoTC due to its undermining of sales of 4e material. To me, that sounds hard to prove, and the amount of loss caused would seem hard to measure.

By referring to equitable remedies, is the licence trying to suggest that an account of profits might be available in respect of proceeds of sale in contravention of the licence? That would at least be easier to measure - but in Australian law at least, account of profits is not available as a remedy for breach of contract. And if we're assuming that you're publishing under the OGL then there is no breach of IP rights that might attract an account of profits as a remedy.

Anyway, just some thoughts.