BOEF OGL Violation?

[S'mon]

Okay, so the Press Release is not currently a violation, but the moment they release the book, it becomes one. It looks to me that the very act of publishing the book under the license now creates a breach of the license. So, because of this press release there is now no legal authority for the publishing of this book.

How do you interpret this angle? Am I just off my rocker?

You are right that Valar has not released anything under the OGL yet, so it doesn't apply. The OGL says 'you agree not to indicate compatibility' not 'you must never have indicated compatibility in any prior release' - ie on my reading even if it were held to apply to works that did not themselves incorporate the OGL (which I don't think can ever be the case, but I'd need to study the OGL more & check US case law) it only affects post-contract works, not previously released works.

It's worth noting that the OGL creates disbenefits as well as benefits to those who agree to be bound by it, there are things I believe you can do under regular US trademark law that you arguably can't do under the OGL.

Eg under UK TM law and possibly under US law (unsure about the exact effects of the anti-dilution provisions) you can put 'this product is intended to be compatible with D&D rules but is not itself authorised or endorsed by WotC inc' on a work, which you probably can't do under the OGL.

(I had a long conversation with another law lecturer about UK trade mark law yesterday, still have it on the brain!)

 

[S'mon]

Anyway - AV knows the rules better than most of us here (he's the guy who enforces them!) I'm sure that what he's doing is OK, even if it's because he has permission from WotC but they haven't told us about it.

I think AV knows it's ok because he knows the OGL well, and has possibly spoken to WoTC in-house lawyers who are in charge of enforcing WoTC's IP & contractual rights to make sure he's not doing something he shouldn't. I suspect WoTC has not officially given him any permission to do something that a third party wouldn't be allowed to.

 

[S'mon]

Emphasis mine, this time.

If WotC does not endorse, condone, or approve of its use with the D&D game, is that not tantamount to saying that he did not have approval to use the D&D brand name?

Yes, WotC's statement appears to be saying that they do not approve of the product (and have not granted it any special permissions) but cannot legally stop Valar doing what it's doing.

 

[mkarol]

Outside the OGL, I think that a Press Release (which is, at least theoretically, designed to educate the 'press' so that they can run factual news stories) is protected speech that would garner more lax Trademark treatment here in the U.S. (that pesky 1st amendment thing) than 'commercial speech' in the form of other advertisement.

But hey, i could be totally wrong... to far away from that con law class!

 

[The Sigil]

Except it's really not a "free speech" issue... it's a contractual issue, specifically, a "breach of contract" issue.

In the contract that is the OGL, you agree not to do specific things (e.g., reference another company's Trademark without their written permission) and in return you receive permission to use specific things (all Open Game Content).

When you enter the OGL (of your own free will), you also voluntarily agree to give up certain of your "fair use" rights with regards to other trademarks. The contract "trumps" your normal right to free speech.

At issue here is simply whether or not Section 7 of the OGL applies to Press Releases - works which are not themselves done under the OGL, but which are about or reference works that DO use the OGL... and because of that, do Press Releases fall under the "in conjunction with" clause?

--The Sigil

 

[mkarol]

Except it's really not a "free speech" issue... it's a contractual issue, specifically, a "breach of contract" issue.

And that is why I said "outside the OGL."

I think S'mon's analysis of whether the OGL applies retroactivly is accurate. Of course, if we really want to rake this over the lawyerly coals we can move on to discuss what “Use” actually is under this provision; but now we are getting a little ahead of ourselves.

 

[Cedric]

When I grow up, I want to get an island and start my own country. In my country we aren't going to recognize copyrights. And I'm going to use my billions of dollars (which I'll get when I grow up) to setup a nice satellite service for net access and I'm going to host webservers where you can download books, movies and songs for free, without regard to copyrights.

I'm 30 now, so I should be grown up any year now, I'm just waiting for those billions to come rolling in...

Cedric - still waiting

 

[jdavis]

This part of the controversy could actually be more important than the "other" part. It seems that there has been a lot word play and dancing around in both the press release and the WotC response. It would be really hard to believe that the person who has been overseeing the OGL would make such a blunder, but if it was on purpose then what does that say about how quick the WotC response came out and how that is worded? The Press Release was rather poorly done in a lot of areas, whether this was actually legal or not is one thing but was this really a good move, it really makes both Valar and WotC look bad that the press release has so much controversy and the person who would normally control problems like this for WotC is on the other side of the release. It's just all very odd.

 

[Harlock]

Andy Collins from his boards

For what it's worth, I posed the question over on Andy Collins' boards: "And, for anyone involved: A while back over on ENWorld Anthony was probing about a subdivision of WotC putting out mature themed products, going so far as to cite Vertigo Comics being part of DC... is that line of questioning related to Valar? Is Valar funded in part or in whole by WotC or does it just so happen that some folks from WotC worked together and Anthony's query was unrelated?"

Posted by Andy Collins over on his boards
As WotC has stated in no uncertain terms, there's no affiliation between Wizards of the Coast and this project.

Other than having a couple of employees/writers in common--hardly an uncommon occurrence in this (I'd say incestuous but that seems a loaded term given the current discussion ) "intricately interwoven" industry--there's absolutely *no* business link between the two.
Andy Collins
Senior Designer
Wizards of the Coast Roleplaying R&D

 

[Henry]

In my country we aren't going to recognize copyrights.

Expect the RIAA to raise their own army and invade you.