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

[Corjay]

The line you quoted was incidental in response to an incorrect assumption (yes, it's incorrect). The point was, that the clause DOES NOT say that. The clause says that the loser (excluding WOTC) must pay the fees. THAT IS enforceable.

 

[CapnZapp]

@Corjay:

Are you defending the GSL here...? Perhaps you're not, and are only honestly trying to dispel misunderstandings regarding it and its use.

However, by now, the thread is pretty far from giving a reasonably simple answer to the original poster's question.

Therefore, I would like to ask you this question: what would you say are dealbreakers about the GSL?

Essentially, let's discuss what it is, rather than what it isn't.

If you can come up with a short list of things you believe is what keeps companies such as Necromancer Games or Green Ronin, then we have come that much closer to answering the thread's topic.

I'm directing this to you, because it is mostly (wholly?) your posts that generates hitherto unanswered follow-up questions like "but what if this-and-that section isn't controversial, what then is keeping everybody away?"


Regards,
Zapp

(Of course, if your reply were to be "I see nothing out of the ordinary in the GSL" or "I don't see why any company would stay out of the GSL" that would be highly illuminating too...)

 

[Corjay]

I've already answered that question among several posts, but here's the post with the gist:

http://www.enworld.org/forum/showpost.php?p=4411161&postcount=27

You are correct in that I'm looking to inform and objectively analyze. This thread, though, isn't about what's good in the contract. It's about what's bad. The deal-breakers. I in no way defend the bad points of the GSL, but I defend the good or inconsequential points and attack the bad myself. It may appear that I am only championing the GSL, but I am in fact criticizing it by identifying the deal-breakers, recognizing them as deal-breakers. You can't get at the truth unless you know what isn't the truth. So when I champion a good point in the GSL, I am trying to reveal the truth to people, but so am I revealing the truth by pointing out what the true deal-breakers are.

As far as more questions being generated, those are questions that were already there, they just hadn't been asked yet until the misunderstandings were dispelled and the bigger questions answered. Such happens frequently when people don't fully understand something. Answers usual beget more questions until there are no more questions to be asked, and frequently, as in this thread, the same question gets asked multiple times because people missed or didn't understand the answer the first time.

 

[CapnZapp]

Okay, excellent - many thanks!

1) No cushion period for discontinuing OGL products in product line conversion (Subsection 6.1)
2) No cushion period for termination of GSL (Subsection 11.1)
3) Total destruction of product line upon termination of GSL (Sebsection 11.3)

1) Can't you just wait to sign the GSL until you're ready to bin the OGL versions?
2) What was the cushion period for the d20 STL?
3) Yes, this is the real poison pill: the fear that the GSL is (or will become) a honey trap, designed to lure in devs and then eat their IP. The problem isn't that Wizards are actively planning evil deeds now, it is that the license does not protect you from future developments.

That devs are reluctant to commit their IP to 4E, with no provision for a parallel 3E track, is not the same as 3). But of course related to that. If the GSL was friendlier, the 3E/Pathfinder could have been completely dead by now. But in its corporate wisdom, that was not the path chosen by Wizards...

Btw, the "abject failure" of Clark's is not either of 1-3. Instead, that refers to the fact that the harbor that is the GSL isn't perceived as a friendly and safe one. The only reason to have the GSL at all (if you ignore the honey trap theory, which you probably should) is to provide a safe harbor, encouraging more D&D development than if you're referred to the rocky shores of general copyright law alone. If noone then uses your harbor in fears it isn't so safe, that's "abject failure" according to Necromancer Games.

Right? Right.

 

[Corjay]

1) Can't you just wait to sign the GSL until you're ready to bin the OGL versions?

Yes. That's what 6.1 does. But a lot of companies are going to have large stores of old product they want to move, so if they wait until all their stores of product are sold, they may be waiting quite a while. Thus, 6.1 requires them to take a cut if they want to change over soon.

6.1 also restricts you from converting any product in that line. So while you can change the line over to 4e, you can't convert and reprint old product to 4e.

2) What was the cushion period for the d20 STL?

There is no "STL". There is the "OGL". It is indefinite. The 4e GSL gives companies a starting date of October 1st to release new product lines. If they change a product line from the OGL to the GSL, they can work out approval by WOTC to release it before October 1st. The GSL handles giving WOTC the right to termination very badly.

3) Yes, this is the real poison pill: the fear that the GSL is (or will become) a honey trap, designed to lure in devs and then eat their IP. The problem isn't that Wizards are actively planning evil deeds now, it is that the license does not protect you from future developments.

That devs are reluctant to commit their IP to 4E, with no provision for a parallel 3E track, is not the same as 3). But of course related to that. If the GSL was friendlier, the 3E/Pathfinder could have been completely dead by now. But in its corporate wisdom, that was not the path chosen by Wizards...

It doesn't eat IP. It eats product. Yes, this is the problem. The problem of no parallel 3e track is what point 2 is supposed to cover. WOTC should be trying to phase out 3e, not letting it run indefinitely parallel.

Btw, the "abject failure" of Clark's is not either of 1-3. Instead, that refers to the fact that the harbor that is the GSL isn't perceived as a friendly and safe one. The only reason to have the GSL at all (if you ignore the honey trap theory, which you probably should) is to provide a safe harbor, encouraging more D&D development than if you're referred to the rocky shores of general copyright law alone. If noone then uses your harbor in fears it isn't so safe, that's "abject failure" according to Necromancer Games.

Right? Right.

Correct. And by changing just subsections 6.1, 11.1, and 11.3, The networking vision can still be obtained and done so at WOTC's benefit as much as the licensee's benefit.

 

[see]

2) What was the cushion period for the d20 STL?

The D20STL didn't (doesn't) have a terminate-at-will clause, and in cases of terminate-for-breach there was a thirty-day cure period from notification by Wizards.

But the big factor avoiding D20STL abuse was that everything but the trademark was available under the OGL. If Wizards had ever abused the D20STL, they could do some damage to the companies using the logo . . . but everyone would then just stop using the logo, and continue making product under the OGL alone. In case of abuse, the biggest thing that would happen is WotC would lose what influence over 3pps that the D20 license gave it. The very ineffectiveness of D20STL abuse made it unlikely that it would be abused.

The GSL, on the other hand, doesn't have a counterpart you can continue publishing under, and stops you from going back to the OGL as well. So even as it's not that much worse in wording, the balance of power makes it a lot more abusable in practice.

(And section 10.1, which survives termination, makes it possible you couldn't do a Kenzer-style "go copyright" after you've signed on to the GSL. If you've signed the GSL, you've agreed that "Wizards Intelectual Property" includes "all content contained within the Core Rulebooks", and that you will not use any of it except under license. Is "content" the same as the copyrightable expression, or does it also include the ideas themselves?)

 

[Corjay]

(And section 10.1, which survives termination, makes it possible you couldn't do a Kenzer-style "go copyright" after you've signed on to the GSL. If you've signed the GSL, you've agreed that "Wizards Intelectual Property" includes "all content contained within the Core Rulebooks", and that you will not use any of it except under license. Is "content" the same as the copyrightable expression, or does it also include the ideas themselves?)

Ideas can only be patented, not copyrighted. Copyright covers only authored content. That is why so many systems can use each others' mechanics and why modules can rely on mechanics from another system without signing on to that system. So long as the mechanics are not written out or planned out in the same way (that is, demonstrating a different balance in game terms), they can rely on the mechanics all they want. But they can't reprint or reference the mechanic directly. So "content" is only going to cover "content" as covered by the GSL, which is the references per the SRD and copyrighted material attached to previously published 4e material. So the publisher wouldn't be able to dump the 4e GSL and then reprint converted content without the GSL. In other words, once printed with the 4e GSL, the product's content is bound to the GSL forever.

 

[see]

I'm not worried about reprints, and I know the laws about copyright and expression-vs-ideas. My point is . . . well. Let's paint a scenario.

Let's say you released a free adventure under the GSL, as your sole product ever under the GSL. Two years from now, the GSL is terminated for everybody by Wizards. You try to release a "Kingdoms of Kalamar"-type product for 4th Edition, unrelated to thast one GSL adventure. Assuming that "Kingdoms of Kalamar" is absolutely, 100% legal, how does the surviving-termination 10.1 affect your rights to produce that sort of thing?

You've agreed, see, that "Licensee understands and agrees that it is not authorized to, and will not utilize, any Wizards Intellectual Property (other than Licensed Materials), including without limitation any trademarks owned by Wizards, except and unless Licensee has entered into a separate licensing agreement with Wizards authorizing such use." And you've agreed not just that "Wizards Intellectual Property" includes "any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards", but also that "Wizards Intellectual Property includes all content contained within the Core Rulebooks".

Now, ideas are not subject to copyright. But the ideas expressed in the Core Rulebooks are arguably part of the "content" of the books, which would make them part of "Wizards Intellectual Property" for purposes of the contract, though not for purposes of general law. This is emphasized by Section 18, where we see "concepts, storylines, or other content", which gramatically includes ideas (concepts and storylines) as a type of content. The way a term is used in one part of the contract can often be a guide for interpretation of the term in other parts.

I think it's reasonably certain that 10.1 tries (how successfully it's hard to say as a non-lawyer) to make sure you sign away nominative use of Wizards trademarks and fair use of Wizards-copyrighted material. What I think is possible is that it also tries to make sure that, if you ever do anything under the GSL, from then on Wizards can sue you for breach of contract if you ever produce any 4e-compatible material without using the GSL.

(Yeah, this is both abtruse and getting away from the thread, since it's not really a showstopper, just an added little spike.)

 

[pemerton]

See, I agree with you about the apparent purpose of clause 10.1. I don't have enough experience in construing these sorts of contracts to know how the word "content" would be read, but your suggestion strikes me as arguable.

I also think it is the word "content" as it appears in clause 6 that is one of the major deal-breakers for Necromancer - once a GSL product is published that contains content that was in an OGL product, that OGL product line has to be stopped. If "content" here has an expansive reading of the sort that you are suggesting, this means that the so-called "poison pill" could be quite far-reaching in its effects (eg if I publish a GSL product with a Fighter in it, does that mean that all my OGL products featuring Fighters, plus all the products in the same line as them, are deemed to be Converted Products which I have to cease publishing in OGL form?).

 

[CapnZapp]

It needs repeating over and over again:

Once you sign the GSL, Wizards can frack you over.

No lawyering whatsoever is needed to reach this conclusion: Trying to find loopholes in the GSL is pointless. Trying to weasel yourself out of the GSL is pointless. Debating the finer aspects of the GSL is pointless.

Because you have agreed to "we at Wizards can sue you for no reason, and you will pay our every cost."

So. Don't sign the GSL in its current shape unless you either believe 1) Wizards will be run by angels until time's end, or 2) your operation is small enough you expect to fly under the radar.