Poison Pill v. Restraint of Trade

[pawsplay]

Reproducing the list itself would be a copyright violation,

That specific form of the list. Things that are themselves simply lists are not copyrightable.

 

[Morrus]

It's not an obligation not to trade, so it doesn't apply. The GSL puts restrictions on the manner in which one trades, not on whether one can trade.

 

[pemerton]

Not necessarily... if I release my original work under the OGL, and you use it, the only part WotC plays is in holding the copyright on the text of the OGL license itself.

In such a case, I think the better reading of clause 6 of the GSL is that it has no application: the GSL defines OGL as "the “Open Gaming License version 1.0″ with Wizards."

It therefore seems to me that publication of a product licensed under the Open Gaming License that did not have the d20 SRD or the Modern SRD (or any SRD in which WoTC holds the copyright) in its section 15 would not be precluded by clause 6.2 of the GSL.

As to the restraint of trade matter: I'm a little sceptical, because the GSL is not an agreement not to compete with WoTC, nor an agreement not to compete with WoTC in the market for roleplaying games, nor an agreement not to compete with WoTC in the market for D&D (clause 18 expressly recognises that WoTC and 3PP can compete in that market). It is an agreement not to compete in the market for D&D by releasing product pursuant to a particular licence with WoTC as copyright holder in the d20 (and other) SRDs. But is that really an agreement in impermissible restraint of trade? It doesn't look like it to me, but then I'm not a commercial lawyer.

 

[tomBitonti]

What I am interested in is whether I can cry foul over the forbidding to companies to continue producing products for the 3.5 material that I purchased, a lot of it from WotC, with the understanding that there would be a vibrant 3'rd party marked supporting that product.

I've tried to make an analogy, and so far the best (which isn't great) is:

I sell copiers. I allow 3'rd parties to create toners for those copiers using my cartridge design.

I decide that I don't like having 3'rd parties create toners for my copiers anymore. I create a new copier with a new cartridge design, and I allow limited use of the new cartridges with the provision that anyone using the new design must cease to use the old design.

You have purchased one of the earlier copiers, and understood that you would be able to purchase a variety of toners from companies. Now, suddenly, those companies are precluded from providing the toners.

That (IMO) seems to be a partial destruction of the value that you received when you received the old design copier. My best sense is that *I* have broken an agreement with *you*.

 

[pawsplay]

Further, to continue the analogy, in the US, you can't prevent people from producing compatible toner cartridges. Even if your new toner system involves a new patent, it is likely (not certain, but likely) that you will be expected to license out the new technology when it is practical to do so if no one else can create compatible cartridges without using your patent.

 

[Thanlis]

You can tell the blogger is not a lawyer. First of all, there is no longer a d20 license. Second fo all, the OGL is a license entered into with WotC. WotC is 100% within its rights to deny you ever entering into one licensing agreement with them if you enter into a differenet licensing agreement with them.

There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.

Was the dead giveaway the bit where I said I wasn't a lawyer? That's why I phrased the whole post as a question rather than as an uninformed statement about what the law is.

I'm pretty convinced at this point that there's no restraint of trade issue, in any case.

 

[HellHound]

The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.

As Brown Jenkins pointed out, there are products out under the OGL that contain 0% SRD or SRD-based content.

I released AssassinX under the OGL, but it has no mechanics in common with D&D or drawn from the SRD (although that wasn't the original intent - the game was, once upon a time, going to use some of the modern equipment lists, but I went with a far simpler equipment / weaponry system in the end).

 

[jmucchiello]

As Brown Jenkins pointed out, there are products out under the OGL that contain 0% SRD or SRD-based content.

Yes, and the OGL itself is copyrighted by WotC and they can produce a license telling you not to use their copyrighted work.

While I assume section 6 does not intend to prevent non-SRD based usage of the OGL, the fact is that since they own the text of the OGL they can create a license that restricts its reproduction.

Section 10 of the OGL requires you to distribute a copy of the OGL along with any OGC you distribute. It does not actually grant you the right to copy the text of the license. How did we not notice this for the last 8 years? I don't remember any debates about that. Probably hard for them to enforce the copyright I suppose if the intent of the text it to have people duplicate it.

 

[Scurvy_Platypus]

I guess I've taken stupid pills, because I don't see the sky as falling regarding the OGL.

Section 9 of the license at the WotC site reads:

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.

"You may use any authorized version" is the part I look at. I don't see them being able to put out a new version of the OGL that forbids you from using an old version.

The Version 1.0a license exists and is "authorized" by virtue of them (WotC) having made it. If section 9 was written with language to the effect that you _must_ use the updated version of the license, then I could see the point.

But it doesn't say that. It just says the license can be updated by WotC or people that WotC says can update the license.

The older version would be an "authorized" version, because it was _made_ by WotC. The cat is out of the bag, and they're not going to be able to put it back without way too much ill-will and effort.

Section 10 doesn't say, "Hey, if you want to, go ahead and toss this license in somewhere". It says you "MUST" include the license. I don't see how you're able to include the license without having the implicit ability to actually "copy" the license text in the first place. I think there's some sort of funky hair-splitting/pin head dancing angels thing going on here.

If WotC could really invalidate the OGL just by putting out a new version...

They already would have done it.

Instead, they created the GSL.

There's lawyers that have been using the OGL for a while now (Necromancer games, Blue Devil Games). I'm pretty certain they would have managed to figure out by now if the OGL could be yanked out from under them like some folks seem to think. In fact, that's been part of their concern regarding the GSL ever since they've seen it.

The OGL is fine, stuff put out under the OGL is fine, and this is just fear-mongering in regards to the OGL. Until I see at least a couple of lawyers engage Clarke and Justin in a discussion and demonstrate how the OGL can be completely invalidate and people that put stuff out under the OGL screwed, I'm not changing my stance on it either.

And no, I'm not a lawyer. I'm simply willing to accept that the other lawyers that are out there and using the license do in fact know better than I do. If it's good enough for them, it's good enough for me.

 

[Brown Jenkin]

There's lawyers that have been using the OGL for a while now (Necromancer games, Blue Devil Games). I'm pretty certain they would have managed to figure out by now if the OGL could be yanked out from under them like some folks seem to think. In fact, that's been part of their concern regarding the GSL ever since they've seen it.

The OGL is fine, stuff put out under the OGL is fine, and this is just fear-mongering in regards to the OGL. Until I see at least a couple of lawyers engage Clarke and Justin in a discussion and demonstrate how the OGL can be completely invalidate and people that put stuff out under the OGL screwed, I'm not changing my stance on it either.

Yes the OGL is fine and non-revokeable. The GSL is however a seperate contract that people can sign onto. By signing the GSL a company legally agrees never to publish a product line under the OGL ever again. The OGL is not altered, but if a company signs the GSL and later breaks the GSL by republishing a product under the OGL they can be sued by WotC for breach of contract (The GSL). They would not be violating the OGL but the GSL.