What is it about the GSL that is really a deal breaker?

[Corjay]

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.

 

[Corjay]

Also, Nagol, I don't get your number 3. The 4e GSL is available for free download without membership to WOTC's website.

 

[Nagol]

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.

 

[Corjay]

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.

 

[BarakO]

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).

 

[Nagol]

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.

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.

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.

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?

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.

 

[Corjay]

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.

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.

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.

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.

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.

 

[PatrickLawinger]

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

 

[Nadaka]

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.

 

[pawsplay]

The unilateral terms of the agreement, including the ability to change the agreement without notice.

The total disregard for the rights of others to produce non-infringing works compatible with D&D.