D&D 5E Maybe D&D Should Branch?

[pemerton]

Have you checked your PF products?

The only one I have is the beta PDF, which has the apparent error that I described.

That website is bound to reproduce the section 15 of the products whence they gathered their OGC, so as long as they have done that they aren't themselves in error.

<snip>

Should this become and actual issue, whoever is in actual error has Section 13's 30 day cure period to handle their error but, those in error further down the line are in the clear due to the last part of Section 13 which doesn't hold sub-licensees responsible for the errors proliferated higher up the chain.

I do agree that Section 6 requires the website to reproduce the Paizo declaration accurately, including any errors or omissions. But I don't agree that Section 13 protects the website from any error by Paizo. It deals only with terminations, not with compliance. My view is that Sections 5 and 6 together oblige the website (or any other publisher of OGC) to either have authority to contribute new OGC because it's their own creation, or else to include the proper copyright acknowledgement for the material.

So the website should, in its declaration, cite the original SRD so as to meet its obligation to reproduce Paizo's declaration; but should also cite the 3.5 SRD to cover things like Polar Ray which are not their original creation, but are not part of the original SRD.

As I said, I think it's mostly a technical problem. But if Paizo really have made this mistake, it strikes me as bizarrely amateur and careless!

 

[Mark CMG]

But I don't agree that Section 13 protects the website from any error by Paizo. It deals only with terminations, not with compliance.

The combination of section 6 band 13 protect sub-licenses from errors upstream.

My view is that Sections 5 and 6 together oblige the website (or any other publisher of OGC) to either have authority to contribute new OGC because it's their own creation, or else to include the proper copyright acknowledgement for the material.

They cannot guess where someone else has gotten the OGC, they can only copy the section 15 and add their own portion to the section 15 for the new work whether they add new OGC or are merely reproducing OGC from the cited work(s).

So the website should, in its declaration, cite the original SRD so as to meet its obligation to reproduce Paizo's declaration; but should also cite the 3.5 SRD to cover things like Polar Ray which are not their original creation, but are not part of the original SRD.

Nope. It's not their job to research and correct any errors upstream, if they so exist. You're adding conditions and a process not required by the OGL.

 

[pemerton]

The combination of section 6 band 13 protect sub-licenses from errors upstream.

<snip>

They cannot guess where someone else has gotten the OGC, they can only copy the section 15 and add their own portion to the section 15 for the new work whether they add new OGC or are merely reproducing OGC from the cited work(s).

Just to be clear - you seem to be saying that if A produces some content, B includes that content in a publication under the OGL, and C then reproduces that content, then C is protected from any suit by A even if B's use of the material was not licensed.

I don't believe that this is so. B cannot bind A, nor waive A's rights to protect his/her content. And A is not him-/herself party to any agreement with C.

Here are the relevant sections of the licence:

5.Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute.

13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.​

Section 13 has no application in this context that I can see. All it does is preserve sublicensees from being affected by a termination higher up the chain. It doesn't say anything about them not being liable to correct their own breaches of which they become aware, and hence liable to termination in their own right if they fail to do so.

It seems that Paizo may have reproduced the text of the spell Polar Ray, and labelled that text as Open Game Content, although (i) it was not able to do so pursuant to Section 5 (not being the creator, nor having sufficient rights from any other source), and (ii) it did not comply with the rqeuirements of Section 6 (because it did not include the relevant copyright text from the 3.5 SRD). Paizo's use of the text is therefore not licensed under the OGL, and is therefore arguably a breach of WotC's copyright. (The text is short and fairly banal, so perhaps not - I am not enough of an IP lawyer to form a judgement about that.)

In any event, when the PF website then likewise reproduces the text of the spell Polar Ray, where does it get the permission to do so? Not from WotC - because it has not complied with the requirements of Section 6 and included the 3.5 SRD copyright information. Not from Paizo - because Paizo's use is unlicensed, Paizo cannot confer any permission pursuant to the OGL. So the PF website's use is likewise not licensed under the OGL, and is therefore arguably a breach of WotC's copyright.

It is true that Paizo has labelled the spell description as OGC somewhere in its PF book; in the Beta, this is found on page 2 of the PDF:

Product Identity: The following items are hereby identif ied as Product Identity . . . All trademarks, registered trademarks, proper names (characters, deities, artifacts, places, etc.), dialogue, plots, storylines, language, incidents, locations, characters, artwork, and trade dress.

Open Content: Except for material designated as Product Identity (see above), the contents of this Paizo Publishing game product are Open Game Content . . .​

Given that the text of the spell Polar Ray is none of those things designated as Product Identtity, it has clearly been labelled by Paizo as OGC. But they enjoy no permission to lable it in that way, because they do not satisfy the requirement of Section 5 in respect of it, and they have not complied with the requirements of Section 6 either, and therefore cannot claim to be licensed by WotC to label it OGC.

Hence, when the PF website reproduces the text of Polar Ray, the OGC delcaration by Paizo does not give them any legal authority to do so. Paizo cannot confer rights in respect of WotC's content that it does not itself enjoy.

It's not their job to research and correct any errors upstream, if they so exist. You're adding conditions and a process not required by the OGL.

I'm not adding any conditions. I'm just noting that WotC has not licensed Paizo's use of the spell text (because they have only licensed use in compliance with the OGL, which Paizo appears not have complied with, at least as far as the Beta is concerned), nor the website's use (for the same reason). And Paizo has no power to turn WotC's text into its own OGC outside the framework of the OGL (with which it has not complied).

So, absolutely, if you are using material that someone else has labelled OGC, the burden is on you to make sure that that labelling is correct, if you want to avoid being exposed to complaints from the person whose content it ultimately is.

EDIT:

For the website it is actually pretty straightforward. Within 30 days of learning about this issue, they simply need to add a reference to the 3.5 SRD into their Section 15 declaration. That would then bring them within the terms of the OGL in their relationship to WotC, hence removing any grounds for complaint that it might enjoy against them.

They would also be using material authored by Paizo (ie the changes to the spell text), but Paizo has authorised that under its own OGC declaration, and the website has listed the Pathfinder Rulebook in its Section 15 declaration, and so is licensed by Paizo under the OGL.

That wouldn't settle any issue between Paizo and WotC, but any such issue is not the website's problem provided that it is itself compliant.

 

[Mark CMG]

Just to be clear - you seem to be saying that if A produces some content, B includes that content in a publication under the OGL, and C then reproduces that content, then C is protected from any suit by A even if B's use of the material was not licensed.

Essentially, the sins of the father cannot be visited upon the son, insofar as it is a case of C acting in good faith. I suppose if they are asked by A to add something in next time that clears up the error transmitted by B, then it would also be in good faith to do so but the license doesn't set up a mechanism for that. Your example of a particular spell might be a compelling way for A to convince C if it wishes to go to the trouble but as far as C knows, that OGC was correctly cited in the section 15 of B, might be something B has a separate license to use with A, might have developed independently of A by B, or any number of other scenarios that C simply isn't required to guess. But, again, you're discussing an individual case that hasn't been challenged and I am discussing what the license says in a general sense. You and I aren't A, B, or C and thus don't really have standing to put forth any challenges, though if you wanted to send unsolicited advice to C, B, or even A based on your own interpretation of this specific case, I suppose you could do so.

I'm not adding any conditions. I'm just noting that WotC has not licensed Paizo's use of the spell text (. . .)

I don't know that to be the case. As an example of one possibility, any company can send a document privately to another with OGC released under any version of the license provided it owns that OGC. What takes place between any two companies or individuals isn't something I would want to guess in regard to licensing issues.

For the website it is actually pretty straightforward. Within 30 days of learning about this issue, they simply need to add a reference to the 3.5 SRD into their Section 15 declaration.

If there is an issue, and as I mention above, without knowledge only held by those involved we ourselves cannot be sure there is one, then there is a 30 day period to cure, yes. Since the originator of the OGC is the only one who knows for sure, then it would probably require that they be the one to let someone making an error aware, after which the 30 days would likely begin.

 

[pemerton]

Essentially, the sins of the father cannot be visited upon the son, insofar as it is a case of C acting in good faith.

<snip>

as far as C knows, that OGC was correctly cited in the section 15 of B, might be something B has a separate license to use with A, might have developed independently of A by B, or any number of other scenarios that C simply isn't required to guess.

<snip>

As an example of one possibility, any company can send a document privately to another with OGC released under any version of the license provided it owns that OGC. What takes place between any two companies or individuals isn't something I would want to guess in regard to licensing issues.

Suppose you publish an RPG book that reproduces the rules for Burning Wheel. And you include a declaration at the end of your book, that all the material within is OGC within the meaning of the Open Gaming Licence version 1.0a, and that "permission to copy, modify and distribute" your book's content "is granted solely through the use of" that licence. (My quotes are taken from the file "legal.rtf" which is part of the 3.5 SRD files.)

If I take you at your word, and start publishing an OGL variant of Burning Wheel, Luke Crane is fully within his rights to pursue me! You can't grant me permission in respect of Luke Crane's work that you don't actually enjoy. And I can't defend myself against Luke Crane by arguing that I took your declaration of OGC in good faith, or that I can't be expected to know whether or not Luke Crane privately authorised you to release Burning Wheel as OGC.

The situation in the Pathfinder/Paizo case is not quite the same as the scenario I've just described, because the text of Polar Ray has in fact been made OGC by WotC. But they have granted the permission to copy, modify and distribute solely through the use of the OGL. Insofar as the Pathfinder website is copying, modifying and distributing some other way (because as far as I can see they are not in conformity with the OGL, given the deficiency in their Section 15 declaration, and the material seemingly not having been made OGC by Paizo, given the apparent deficiency in its Section 15 declaration), they are using the material without permission.

Since the originator of the OGC is the only one who knows for sure, then it would probably require that they be the one to let someone making an error aware, after which the 30 days would likely begin.

Notice from the owner of the material which has been copied, modified and/or distributed without permission would certainly be one way to trigger the 30 day period. I don't think it is the only way, though - Section 13 talks about "becoming aware", not "receiving notice". Observations from third parties would be another way of becoming aware.

if you wanted to send unsolicited advice to C, B, or even A based on your own interpretation of this specific case, I suppose you could do so

I don't have a practising certificate in either Australia or the US - I'm an academic lawyer, not a practicising one! So I'm not in the business of giving legal advice, solicited or otherwise.

But - assuming that the Pathfinder RPG Core Rulebook has the same Section 15 declaration as the Pathfinder Beta PDF has - I am utterly amazed at Paizo's error in this respect. I mean, MonteCook was able to get it right, and his was pretty much a two-person show, I think (him and Sue). It's not that hard to read the "legal.rtf" file in the 3.5 SRD and cut and paste the copyright text in WotC's Section 15 declaration.

Upthread, I tried to estimate the size of Paizo's PF business, and came up with the (possibly completely erroneous!) figure of $10,000,000. You'd think that with a turnover of that size (or in that order of magnitude), in a business based entirely on using the licensed material of another company, that you might spruik the money for a commercial lawyer to look over the key documentation that ensures your compliance with the terms of the licence. Anyway, as it is it seems to me that WotC could give Paizo notice under Section 13 and require them to cure the breach. I'm not sure how expensive that would be for Paizo - I'm thinking stickers in books and changes to PDFs, and I imagine they would be sending copies of stickers to distributors also.

Anyway, I'm going to call [MENTION=463]S'mon[/MENTION] and see if he turns up - another academic lawyer, but with a better knowledge than me of contract law and IP law. Maybe he'll see something that I've missed that explains how Paizo is not in breach (assuming that their Section 15 declaration really is to the wrong version of the SRD).

 

[S'mon]

Anyway, I'm going to call [MENTION=463]S'mon[/MENTION] and see if he turns up - another academic lawyer, but with a better knowledge than me of contract law and IP law. Maybe he'll see something that I've missed that explains how Paizo is not in breach (assuming that their Section 15 declaration really is to the wrong version of the SRD).

If you'd summoned me a couple weeks ago I could have combed it, but my teaching starts today (3 hour contract lecture at 3pm) & I'm too busy!

 

[Mark CMG]

Suppose you publish an RPG book that reproduces the rules for . . l.

Again, any specific case involving any license . . . I'm going to step back at this point and suggest that since you have a specific case then you're actually discussing that specific case even if by proxy and under those circumstances it would be best to go to the actual company if you want to involve yourself, as I said above. Speaking in hypothetical cases can be educational for folks wanting to actually use the OGL but I'm not sure that's a goal for you, so I've become leery of following your line of discussion further. I've contacted one or two companies when I was unsure about their section 15 or OGC declaration when I've wanted to potentially use something from one of their products. Once, I asked a publisher with a very long section 15 about the origin of a specific bit of OGC since reproducing a lengthy section 15 seemed counter intuitive to my process. I've tipped a couple of folks off that they had completely left out their own section 15 entry when I spotted that as well. If you have a helpful tip for someone it might be well-received, so perhaps you should pursue it in that manner.