If WotC are not prepared to actually finish a court case, then how are they going to oblige a licensee to pay anything?
What is it about the GSL that is really a deal breaker?
- Thread starter cdrcjsn
- Start date
Scribble
First Post
Yes but then they include this:
Does that statement have no bearing on the situation? It seems like they are saying you cannot publish into the OGL, and here is the penalty for doing so. (The loss of the ability to use the GSL.)
My question I guess, is- can they take steps further then the penalty they outlined?
CountPopeula
First Post
A month to month lease, sure.
What about a six-month or 12-month lease? Can the landlord change those with no notice for any reason?
There's no incentive to enter into a contract unless it's binding to both parties. If it isn't, then what you have isn't a contract, it's a handshake. And even those are binding to both parties.
CountPopeula
First Post
You know, this is a good point. What can they actually do? Lock you out of the 5th edition GSL? Sue you for breech of contract? It seems like the loss of use of the GSL is the only thing they can feasibly do, which means that having it exist after the termination of the license doesn't make sense. Of course, the intent is to have you think you cannot, even if you can.
Under clause 6 of the GSL, a publisher makes a contractual promise:
(i) not to manufacture or publish any product pursuant to the OGL that features the same or similar title, product line trademark, or contents as a GSL product (per 6.1, 6.2);
(ii) if they publish a product under the GSL that features the same or similar title, product line trademark, or contents of an OGL product, to cease manufacturing and publication of the all other OGL Products which are part of the same product line (as reasonably determined by WoTC) as that OGL product (per 6.1).
(ii) if they publish a product under the GSL that features the same or similar title, product line trademark, or contents of an OGL product, to cease manufacturing and publication of the all other OGL Products which are part of the same product line (as reasonably determined by WoTC) as that OGL product (per 6.1).
In addition, a publisher under the GSL agrees that:
(iii) its breach of these contractual promises will cause WoTC irreparable damage which cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement of WoTC's IP rights, thereby entitling Wizards to equitable remedies, costs and reasonable attorneys’ fees (per 10.4);
(iv) its breach of these contractual promises may cause irreparable injury to WoTC for which WoTC will not have an adequate remedy at law, and that WoTC will therefore be entitled to apply to a court for extraordinary relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, without necessity of posting bond or security (per 11.4);
(v) each and every remedy will be cumulative and in addition to every other remedy provided hereunder or available at law or in equity (per 11.4);
(vi) it is responsible for all legal costs, including WoTC's attorneys’ fees, associated with any action required to enforce the GSL;
(vii) it recognizes WoTC's rights and interests in its IP (including the content of the core rulebooks), and that those rights belong exclusively to WoTC (per 10.1).
(iv) its breach of these contractual promises may cause irreparable injury to WoTC for which WoTC will not have an adequate remedy at law, and that WoTC will therefore be entitled to apply to a court for extraordinary relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, without necessity of posting bond or security (per 11.4);
(v) each and every remedy will be cumulative and in addition to every other remedy provided hereunder or available at law or in equity (per 11.4);
(vi) it is responsible for all legal costs, including WoTC's attorneys’ fees, associated with any action required to enforce the GSL;
(vii) it recognizes WoTC's rights and interests in its IP (including the content of the core rulebooks), and that those rights belong exclusively to WoTC (per 10.1).
On the face of the contract, therefore, a breach of the clause 6 provisions could result in WoTC getting an injunction to stop the publisher publishing those breaching products, could result in an account of the publisher's profits (conceived of either as "gains-based" damages, or as "equitable remedies" mentioned in (iii) above) and could also result in ordinary damages for any loss suffered by WoTC as a result of the breach.
In an earlier GSL thread Clark Peterson and I discussed some of the practicalities of this. He took the view that injunctive relief would be hard to get, and as he is a practicing US lawyer I'm happy to defer to his judgement. I think it would be hard for WoTC to prove loss - a necessary prerequisite to ordinary contractual damages - and Clark also thought they would be hesitant to open their accounts to scrutiny (which they would have to do, were they to try and prove loss). He is probably right about that.
Clark nevertheless thought (and obviously still thinks) that clause 6 is pretty serious. My own feeling is that the IP issues are the most likely problems a defaulting publisher would face (and this is what Clark seems to be most worried about). To see why, consider the following scenario:
A publisher signs up to the GSL, and thereby contractually agrees that WoTC owns all the content in the core rulebooks;
A publisher then publishes a GSL product, thereby agreeing not to use the OGL in respect of the content of that product;
A publisher then wants to publish some or all of the content of that GSL product under the OGL, in breach of clause 6.
A publisher then publishes a GSL product, thereby agreeing not to use the OGL in respect of the content of that product;
A publisher then wants to publish some or all of the content of that GSL product under the OGL, in breach of clause 6.
If any of the content in question appears in the 4e core rulebooks then, notwithstanding that it is also found in the OGL-santioned d20 SRD, I think the publisher in question may have real trouble arguing that they have WoTC's permission to publish that content.
The publisher could point to clause 10.1, under which they have agreed that:
they will not utilize any WoTC IP (other than GSL-licensed IP) unless they have entered into a separate licensing agreement with Wizards authorizing such use.
This clause indirectly recognises the existence of the OGL. The problem facing that argument, however, would be that the publisher under clause 6 has promised not to use the OGL for the content in question.
The resultant possible finding of non-licenced use of WoTC IP, combined with the contractual acknowledgment by the party of very broad WoTC IP rights, don't look good for the defaulting publisher.
dmccoy1693
Adventurer
Wizards can change the license at any time, does not have to give notice to their licensees beforehand and does not have to send out a mass email when they do so. There is no grace period for a licensee to be in compliance with the changes. Tell me why you believe they will not be "vindictive" with this thing? That alone smells of "we will screw you over, just wait and see."
Scribble
First Post
I'm not saying they will or will not. I'm saying you are making an assumption by saying they will.
Have they done so in the past?
What possible motive would they have?
If they make a change that ends up being so powerful, and destructive that it ends up ruining a number of companies, you don't think there would be fallout for them?
Look how many people have sued, and won, against things like phone companies, despite having signed a contract saying they agree to be held to the things they are now suing about? Just because the companies signed on to the GSL doesn't make them slaves to the will and whim of WoTC with no recourse.
Sure, a company does need to think long and hard about the possible ramifications of signing the GSL, and whether or not the benefits might be worth it, but that's the companies choice.
When talking about the license though, I agree with Corjay. A rational discussion about the various points of contention wil yield much more information then simply assuming WoTC is out to get everyone.
dmccoy1693
Adventurer
Dungeon and Dragon licenses, Dragonlance license. Clark (Orcus) said that if you think that the ending of those licenses was a mere expiring of the licenses and just a business transation with no hurt feelings involved, guess again.
Ending competition. Increasing their market share. Getting rid of other brand names making D&D the only recognizible brand name left.
The OP asked "What is it about the GSL that is really a deal breaker?" As a freelancer and as someone who has done serious investigation into starting his own RPG company, I'm telling you what is a dealbreaker to me. Dismissing my concerns, because YOU don't feel that my concerns are a big deal, is counterproductive at best.
Last year, I said that 4E was coming and would be announced at GenCon 07. People said I was crazy and pointed to WotC's comments at D&D XP 07. I was right. I said the 4E license would be far more restrive and not be "open". People said I was crazy and pointed to section 9 of the OGL as proof that 4E is going to be as open as 3.X. I was right. I said that one of the 5 major RPG 3PP companies (Paizo, GR, Goodman, Mongoose, Necro) would go out of business because of 4E. For all tense and purposes, Necro has. I'm Right Again. I predicted that WEG would be on the selling block. Right Again
I apparently have a good read on the industry. I'm guessing that Wizards will put at least one of their major licensees out of business within three years.
Scribble: dmccoy's concerns, no matter how extreme, are valid, because the GSL does indeed leave the door open to such scenarios. I have also recognized that there's no arguing about what the law does and doesn't allow in such a situation. Yes, the law does put limits on such things, but it's clear that no amount of arguing about it is going to change dmccoy's mind until hard proof is provided, which I have refused to undertake because of the shear effort involved. He has chosen not to believe a word of it and there's nothing we can do about it without doing the necessary research and teaching someone the intricacies of law.
dmccoy: I don't believe Scribble's objections to the extremeness of your views means he disagrees with the deal breakers. I believe he wants only to identify how extreme is too extreme. That said, I agree with you that an extended discussion on that matter is not in the spirit of this discussion.
dmccoy: I don't believe Scribble's objections to the extremeness of your views means he disagrees with the deal breakers. I believe he wants only to identify how extreme is too extreme. That said, I agree with you that an extended discussion on that matter is not in the spirit of this discussion.
