Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[AbdulAlhazred]

From my own perpective, I don't really see this as a problem, because I've understood the OGL worked like that since shortly after it was first published. That's a part of the agreement, and not some loophole someone has discovered and is attempting to use years later. One of my own first thoughts were that I could claim my spell names are PI, allowing the reuse of the mechanics but not the names themselves, if I didn't want people making something compatible with my work.

The OGL does not promise everything made under it will be compatible with everything else, or even imply creators have any moral responsibility to ensure that. It simply lets you contribute some game mechanics (or, really, pretty much anything you want) to a central "pool" that any other OGL licencee can draw upon. I've seen plenty of products where the only OGC was the stuff they had reused, and honestly don't see any real problem with that because I've never read the license to imply that was a requirement. Much of the reason for this is because the d20 Trademark License did specifically require that you have a specific amount of Open Game Content, so anyone who was there at the beginning and read the both alongside one another could notice the omission of such things in one and the inclusion in the other.

I don't see this as a flaw. I see it as a reason why multiple types of license exist, to suit the needs of the person releasing material under them. If someone chooses to use the CC license, then yes,they have to grant those extra rights. The choice, however, needs to be the original creator's.

I am far more concerned with holding people to the license they have chosen to agree to (mainly WotC), than with an ideal of "everyone working together". I like the idea of the latter, but I'm going to be far more judgemental over people with the former.

I certainly won't argue with you as to what the OGL 'promises' in terms of compatibility, but if one participant walls off their stuff, why should I engage with them and give mine to them? I don't need OGL to make some mechanics available to me, you CANNOT COPYRIGHT THAT. Its the terminology and interoperability of stuff that ACTUALLY matters, so what you would be doing by not putting your spell names in OGC is BEING A DICK.

And now I will say, this is exactly what Open Source was intended to create, was a situation where people didn't get to be dicks this way. Where everyone got to share in the mutually interoperable and infinitely recombinable and reusable stuff that was effectively shared by the community as a whole. CC, the GPL, these open licenses don't just allow us to make completely separate things and crib a bit off each other. They allow us all to contribute to ONE THING, and to make entirely new things where the new things can incorporate large parts of the old things WHOLE CLOTH.

This is how the Apache Web Server could be made, it was entirely based on the code in the NCSA web server. It was a completely new, parallel (and competing) thing that improved on and extended the previous thing, but didn't need to reinvent stuff. It was a drop in replacement too.

And for me, in my Open purist mode, this is the great flaw of the OGL is, I can create a derivative work and effectively exclude it from the community. Its not an open license AT ALL in fact! Rather the opposite as it allows me to effectively close off further development. It is, at best, similar to the BSD 3-clause license in the software world. This is not terrible, but we can aspire to a more open community, and still make money.

Heck, I would argue that, in this mostly kickstarter and "pay what you want" driven RPG publishing world, that the best possible community would be a totally open one! Let people's reward be based on the quality of their vision and what people like, not on whether I can take your stuff and make money off it without giving back.

 

[pemerton]

And for me, in my Open purist mode, this is the great flaw of the OGL is, I can create a derivative work and effectively exclude it from the community.

That's not entirely clear to me, as a matter of contractual construction. But it's tricky.

 

[masdog]

I don't understand what significant difference to the licensing regime is supposed to flow from this sort of change in the copyright of the open RPG licence

I think it comes down to trust. The 3PPs are using a license that one of the other publishers has created. That publisher also made a set of promises around that license to get others to adopt and trust it. Now the originator (and the only party authorized to release an updated version of the license) has decided that this license scheme no longer fits their business model and is trying to kill it.

Regardless of how this would shake out legally, continuing to trust that license would be a significant business risk. Especially if the originator attempts to use their dominant market position to make it hard to sell products with that license attached.

So by creating a new license scheme and giving the management to a 3rd-party organization (as stated in the press release), they effectively remove a risk to their business model and community.

Nothing stops Paizo, in the future, insisting that its licensees under ORC agree to a new licence on less favourable terms, just as WotC is doing now. The issue of who owns the copyright to ORC has no relevance to that. (I mean, maybe it will preclude Paizo calling its proposed new licence ORC v 2 - but that doesn't seem to me to be of any great significance.)

Except Paizo wont own the ORC license, and they wont be able to update it unilaterally. Their stated intentions are to follow the open-source software world where a 3rd party non-profit will manage the license itself. Paizo will still have a say in future revisions of the license, but they wont have sole control of it.

This has happened before in the Open Source world. The Free Software Foundation created the GPLv3 to prevent others from using GPL-licensed software in ways they didn’t like (mainly TiVo, even though they were within their rights under GPLv2). As I recall, they strongly encouraged all GPLv2 projects to adopt the new license. A number of larger open source projects licensed under GPLv2, including the Linux kernel, told them to go pound sand.

I'm talking about Paizo sending everyone a memo, just like WotC has done, asserting that it enjoys legal rights to do <whatever it wants to do> and insisting that everyone else accept that.

of course they could. But it’s harder to do when they release things under a license they don’t unilaterally control.

 

[Matt Thomason]

I certainly won't argue with you as to what the OGL 'promises' in terms of compatibility, but if one participant walls off their stuff, why should I engage with them and give mine to them? I don't need OGL to make some mechanics available to me, you CANNOT COPYRIGHT THAT. Its the terminology and interoperability of stuff that ACTUALLY matters, so what you would be doing by not putting your spell names in OGC is BEING A DICK.

And now I will say, this is exactly what Open Source was intended to create, was a situation where people didn't get to be dicks this way. Where everyone got to share in the mutually interoperable and infinitely recombinable and reusable stuff that was effectively shared by the community as a whole. CC, the GPL, these open licenses don't just allow us to make completely separate things and crib a bit off each other. They allow us all to contribute to ONE THING, and to make entirely new things where the new things can incorporate large parts of the old things WHOLE CLOTH.

This is how the Apache Web Server could be made, it was entirely based on the code in the NCSA web server. It was a completely new, parallel (and competing) thing that improved on and extended the previous thing, but didn't need to reinvent stuff. It was a drop in replacement too.

And for me, in my Open purist mode, this is the great flaw of the OGL is, I can create a derivative work and effectively exclude it from the community. Its not an open license AT ALL in fact! Rather the opposite as it allows me to effectively close off further development. It is, at best, similar to the BSD 3-clause license in the software world. This is not terrible, but we can aspire to a more open community, and still make money.

Heck, I would argue that, in this mostly kickstarter and "pay what you want" driven RPG publishing world, that the best possible community would be a totally open one! Let people's reward be based on the quality of their vision and what people like, not on whether I can take your stuff and make money off it without giving back.

I know where you're coming from. I'm a big advocate for open-source software myself, but I'm not an open-source purist - I will also use other alternatives if they're more suitable. I use Adobe products because they're industry-standard and I can't force someone who requests I give them an Adobe InDesign file something else. I usually use Linux, PHP, MySQL, an Nginx/Apache combo for webservers. I use WordPress a lot. I have an IntelliJ IDEA subscription because it's a far better IDE for my purposes than any open-source one. I use Microsoft Word because it's the most comfortable option, but knowing that I can open those .DOCX files elsewhere if I ever stop using it. I make the occasional open source contribution myself, because personally I feel that is what we should do, some has been 100% my own original work that had no legal need to be open-sourced. Knowing that I am not vendor-locked is certainly a consideration (and a big one) for me when it's my choice of which software to use, but it's certainly not the sole consideration. Every decision I make is based on what the available options are and which will suit my purpose best.

While I've never to the best of my knowledge closed off anything I've written under the OGL that wasn't pure Product Identity (noting that many times that wasn't my call anyway because I was producing work under contract, but to the best of my knowledge all of that work was distributed under "all rules within are Open Game Content" terms), I cannot be mad at someone that does, because that's what the OGL terms are. It may well be a good argument for someone to prefer to work with a different license, of course, but the argument "oh, how horrible, you did something the license is designed to allow you to do" is not exactly a good one to me.

It's an agreement, and both sides enter into it with knowledge of what it says. What it says may not be ideal, but if any party has an issue, they need to make it known before agreeing to it, and not be upset later that the agreement says what it does. That's the crux of why we're here right now - because WotC wants to do something with the OGL that it was not agreed they have the power to do at the time the agreement was made. Moving forwards, we may of course wish to argue that any new licence arrangements between ourselves and other parties have better, more open terms, but that's not applicable to the OGL 1.0(a). That has its terms, they're as it says, and I cannot truly fault someone for actually following them properly, even if it makes me slightly annoyed that they used the OGL in a way that prevents me writing something compatible with their product, because that simply wasn't ever a part of the agreement. If I don't like that, that's on me to seek out different agreements to work under.

 

[AbdulAlhazred]

So whereas I'm not an expert on IP law, I would regard myself as a bit of an expert in the rule of law literature.

A recurring them in some of that literature is "the culture of legality". And the UK is often put forward as an example (so is Australia): that is, that important actors treat the legal constraints on their action as actual constraints. A contrasting view is that set out in this (translated and then paraphrased) Bulgarian proverb: The law is like a gate in an open field - you could pass through it if you wanted to, but only a fool would bother!

So I would see the allotment owners not only as manifesting the British culture of deference (which I accept is a real thing) but also a bit of a shock at the departure from the culture of legality.

In the rule of law literature, the US is also normally held up as a culture-of-legality society. And compared to Bulgaria that is probably true. Even this WotC episode is not a counter-example, in the sense that we've got good reason to think that if the matter went to court the judges wouldn't be bribed, the orders would be issued in a lawful fashion, and WotC would not use extra legal means (eg sending stand-over men to threaten the litigants) in order to circumvent an adverse ruling.

But I do think that especially in the US, eand specially among wealthy private actors, there may be the occasional need to litigate in order to remind them of the force of legality!

The US has some traits of being a Lawyerarchy, he who has the most lawyers gets to choose what is legal and what is not. While the law seems to have a fairly strong hold, I am beginning to wonder to what degree most people actually care anymore. They can plainly see things like Trump, or OJ, and the way many miscreants at a more local level simply behave with complete abandon and sneer at the law, which seems not to be applied to them in a lot of cases. I think their trust in it is maybe marginally better than your Bulgarian proverb sayer, but I suspect a lot of the compliance at this point is a matter of inertia. Like people seem to grasp that its to their advantage to follow traffic regulations, yet many don't. And frankly in terms of other laws, most of them simply lack a compelling reason to violate them. Most of us are rather comfortable and happy enough in our personal lives. Yet, vast numbers will vote for a guy who ignores laws and seem not to understand what this implies... (sorry if this strays a bit into politics, I'm not trying to venture into THAT territory, just making an observation about attitudes to the law).

 

[AbdulAlhazred]

As per my various posts on this upthread, I don't agree. I think there are implicit limits, established by the permissions and powers that are conferred on licensees in relation to OGC, as to what might count as a "version" of the licence.

I don't think my arguments to this conclusion are in any sense knock-down ones. But I do think they express the better view.

OK, I mean, I am not sure I completely disagree with you, if WotC wrote in a clause about sacrificing your firstborn child, or plucking out your left eye, well we're in the US, not the Feywild! To be less silly about it, if they wrote a highly exploitative revision there would certainly be questions on the basis of things like unjust enrichment and generally if it was conscionable or not. However, its hard to say where those lines might be drawn, and its quite possible they could EFFECTIVELY do what they will and take back what they no longer want to give (an example of a way of doing that was posted above WRT Goodman Games, though that specific technique wouldn't work for WotC in the situation envisaged). I just don't think its wise to ever give the other party the right to change the terms unilaterally. I have written and signed a LOT of contracts, and several times rejected deals with some similar aspect. Its just not wise.

Agreed. But no new licence can prevent that. No large commercial publisher is going to enter into a contractual promise to all the world to never enter into any other licence agreement in respect of any of its copyrighted works ever in the future.

Well, remember, not even CC licenses prevent you from doing other deals with someone, they simply state a certain offer is on the table. Of course WotC is always free to say "well, here's this OTHER (or additional) deal we'd like to do with you, how about it?" I haven't a problem with that, I just want to be on even terms with them in respect to what I get and what they get in an open license. I might be happy to do other additional side deals.

I think the current debacle shows that the real issue is not stewardship at all, but rather the fact that everyone wants to publish content that is potentially copyright infringing of the texts owned by a market dominant actor. It is that feature of the market, rather than the legal niceties of who owns copyright in the licence, that is driving things.

Well, that's a way of looking at it, sure. The other way would be to say if it was all governed by a CC license then all this nonsense wouldn't even be at issue. WotC would have no power to issue a revised license, they would have to simply stop using CC and it is ENTIRELY CLEAR in CC that you cannot withdraw your issue of a license (aside from the other party violating the terms). I mean, they could litigate the CC license, but good luck with that! The point is, this controversy wouldn't exist if a neutral third party was in charge of the license. WotC could do a 4e and take its candy elsewhere in that case, and that might raise a stinky amongst those who feel overly entitled.

Of course, there is even ANOTHER way to look at it, which is that D&D is not really, to any great degree, the sole creation of one small group of people. While WotC certainly believes in its ownership, is it really possible to own D&D? I helped make it, you helped make it, we all helped make it. I mean, really, it is us, with our money and our time and our endless playing of and working on our D&D games that made, and makes, D&D what it is. Heck, that's REALLY what is now constraining WotC!

WE ARE D&D AND IT IS US! Copyright over some particular verbiage, and over some names of things that were invented by people who are now mostly dead, is kind of a fiction. Heck, if Congress wasn't corrupt enough to pass laws to the advantage of the powerful Gygax and Arneson's original copyright in 1974 D&D would be very close to over! That includes beholders! lol. I'm not sure I feel that inclined to respect the spoils of looting our government in any case. This all may not scan too well for you as an Australian, but like I said in a previous posting, we over here are starting to seriously question whether the current state of things is one we wish to perpetuate. lol.

 

[AbdulAlhazred]

That's not entirely clear to me, as a matter of contractual construction. But it's tricky.

Well, via the "Goodman Games Strategy" which was outlined before, I can effectively. Heck, I can simply use OGC and not put any of my own stuff under OGL at all. It is exactly like BSD 3-clause license in effect! I understand the sentiment, people wanted to preserve their precious setting material and not give it away! For WotC this is kind of a big deal, FR and DL and whatever have some significant measurable market value. Golarion? I'm sorry, it is worth 2 cents. I mean, OK, it might potentially gain some measurable value, maybe, sometime. Very doubtful! Point being, we don't really have anything to protect.

 

[pemerton]

if it was all governed by a CC license then all this nonsense wouldn't even be at issue. WotC would have no power to issue a revised license, they would have to simply stop using CC and it is ENTIRELY CLEAR in CC that you cannot withdraw your issue of a license

Well I think this is clear in the OGL too. But clarity of contractual terms isn't all that matters!

 

[Jerik]

Except Paizo wont own the ORC license, and they wont be able to update it unilaterally. Their stated intentions are to follow the open-source software world where a 3rd party non-profit will manage the license itself. Paizo will still have a say in future revisions of the license, but they wont have sole control of it.

Paizo can't unilaterally update the license, if it's owned by a third party, no, but they could make some argument about being able to withdraw Pathfinder from the license, and say the license no longer applies to them, and that nobody can use the Pathfinder SRD with the ORC going forward. Depending on the terms of the license, they may not actually have legal standing to do that, but according to pemerton and others, Wizards of the Coast probably doesn't actually have legal standing to stop future use of the OGL 1.0(a), and look what's going on anyway.

(Of course, that wouldn't affect any of the other RPGs not relying on the Pathfinder SRD that are licensed under the ORC, except insofar as in the worst case scenario it might cast the irrevocability of the ORC into doubt, but I don't think that's the point here.)

I think I'm considerably less pessimistic than pemerton about this matter, both because I think it's highly unlikely Paizo would try that, and because I think with a better written, more explicitly irrevocable license there would be fewer people taking it seriously if they did, but I think I do see the point they're making.

(Also, of course, IANAL; I'm trying to make some clarifications to the arguments here as I understand them but it's the more legally experienced types like pemerton and S'mon and bcmcdaniel and Steel_Wind who know what they're talking about and I'm not trying to put words in their mouths.)

 

[pemerton]

Well, via the "Goodman Games Strategy" which was outlined before, I can effectively. Heck, I can simply use OGC and not put any of my own stuff under OGL at all. It is exactly like BSD 3-clause license in effect!

I don't think this is self-evident. Both OGC and PI are defined terms, not just in terms of their legal consequences but in terms of what they encompass; and those definitions are not infinitely pliable.

So declaring that X is PI, if it does not satisfy the definition of PI and does satisfy the definition of OGC, seems to me that it would breach contractual obligations to other parties to the licence.

But as I said upthread, I think it's tricky.