D&D 5E So, 5e OGL

[Mistwell]

Interesting. One question, though: does step #2 end the license, or does it simply prevent people from using it?

Just prevents people from using it, until it's valid again (I think). Because all those prior uses were done validly, the license still has to continue for those at least. And then if WOTC ever gets value again from the OGL, it would be valid for new uses again. Though this is all my off-the-cuff interpretation of how it would work. I could be wrong. Consideration cases are really rare, so I'm just making an educated guess on how it could work.

In fact, if it in any way looked like WOTC planned to revive the IP again I think that could be proof there IS still consideration. So I am not even sure they could prove the consideration had really ended.

And really if you think about it, if you got no more value from D&D as a company, would you pay to get such relief (likely paying all the way through an appeals court too) just to prevent a use that you feel infringes on something you get no value from anyway? I wouldn't. That's a lot of money for no real gain. Woo hoo, you ended competition on something...you're no longer competing on anyway. And then those former competitors would just make their own game anyway, while still selling their own older products (which they're probably headed towards anyway). It's all kinda silly. But fun to think about. At least, for me it's fun.

 

[delericho]

Just prevents people from using it, until it's valid again (I think). Because all those prior uses were done validly, the license still has to continue for those at least. And then if WOTC ever gets value again from the OGL, it would be valid for new uses again. Though this is all my off-the-cuff interpretation of how it would work. I could be wrong. Consideration cases are really rare, so I'm just making an educated guess on how it could work.

Thanks!

 

[Alzrius]

They did not and it died early with a recent Jeremy Crawford interview revealing they were talking about 5E in a serious way as early as 2010 and design work started 2011.

For everyone following along at home, the interview in question can be found over here. Here's the relevant passage:

See, Crawford was in on the foundational level of 5th Edition. Entertainingly, the way he puts it, being in on that level sounds like it was almost happenstance. "While we were working on the Essentials books for 4th Edition in 2010, Mike Mearls started pondering what a fifth edition might look like." Crawford said, so in a quick session "He grabbed me and Rodney Thompson, and the three of us dreamt up what later became some of the principles for our work on the new edition."

Development on the edition started the next year, in 2011.

 

[Perram]

At this point I doubt we're going to see an OGL at all. And that is very unfortunate as it looks like there is a want for more 5e crunch material that isn't being met.

 

[tomBitonti]

As to consideration, ALL contracts (and a license is a type of contract) MUST have consideration to be valid. There is no choice - it's a required element of a binding agreement in the United States. Consideration means both sides must get SOMETHING of value out of the agreement. So, while WOTC clearly gets something of value now, if they can set up a situation where they literally get nothing beneficial any more out of someone else using the OGL for a new product, there will be no consideration, and therefore the OGL will no longer be valid for that new product.

Isn't there a value inherent to the terms of the license, even if Hasbro chooses to not avail themselves to it?

But, Licenses and Contracts seem to follow different law:

Copyright law does not require payment or anything else in return from the licensee for a license grant, but the copyright holder may, at his option, require payment, or otherwise condition the license grant on the fulfillment of various requirements, restrictions, or obligations. A copyright license may also include some restrictions on the license grant that are directly relevant to a given right. For example, the copyright holder may limit how many copies of the work the licensee can make. Or, the copyright holder may limit the geographical areas in which the licensee may distribute the work. If the licensee’s conduct exceeds the scope of the license, then copyright holder may also file an infringement claim in federal court to seek an injunction or damages.

Contract law, by contrast, revolves around the notion that two (or more) parties have bargained or negotiated an exchange of promises and/or performance. This notion includes three fundamental concepts: that one of the contracting parties has made an "offer," the other party has "accepted" the offer, and the accepting party has demonstrated its commitment to the offer by providing some sort of "consideration" back to the offeror. Contract law typically requires that "acceptance" of an offer be "affirmative;" that is, you must give some kind of clear indication that you are accepting the offer. The "consideration" may be just about anything, as long as it has been "bargained for." Although there is significant uniformity to contract law, as a creature of state law, it can vary from state to state.

Thx!

TomB

 

[Mistwell]

Isn't there a value inherent to the terms of the license, even if Hasbro chooses to not avail themselves to it?

But, Licenses and Contracts seem to follow different law:



Thx!

TomB

Copyright law isn't contract law necessarily, but licenses are themselves usually under contract law and are not just about copyright. This license in particular involves plenty of clauses that are not strictly about copyright, and are clearly under contract law -including a clause for consideration. Clause 7 is entirely contract-related (the one that says, "Use of Product Identity").

As for there being value inherent in the terms, maybe. the What If? scenario is what if Hasbro took steps to eliminate any meaning behind that value, making it clearly (to a jury) value-less to them?

 

[Parmandur]

Most of what Hasbro and Wizards released under the OGL isn't anything they had much ground for suing over: game rules and thinly disguised requisition of other's intellectual property (Hobbits, Ents, Cthulu). They reserved pretty much everything that otherwise couldn't be used. It was less of really releasing something they had power over, and more creating an atmosphere of trust for people to support D&D instead of Rolemaster or what have you, and not re-steal ideas D&D had already stolen about monsters and such.

 

[Shasarak]

Instead of some aggressive Paizo fan gettin' up in your grill, you might've instead had to face a sea of emptiness, where no one under the age of 40 remained, where nothing new was released, where people just didn't play this kind of game anymore.

I'd take the former.

Not to mention that the thought of an RPG fan getting all up in your face is just hilarious!

 

[tomBitonti]

As for there being value inherent in the terms, maybe. the What If? scenario is what if Hasbro took steps to eliminate any meaning behind that value, making it clearly (to a jury) value-less to them?

Very very simplified, the license seems to have the form:

Do X, and Don't Do Y, and Hasbro won't sue you.

By analogy:

Do cut your front lawn, and don't paint your house other than white, and I won't sue you (as a neighbor) for not cutting your back lawn. And, I will require that any new owner of my house to adopt this same agreement. (And, the agreement shall be held in perpetuity, until both house owners agree to terminate the agreement.)

Then, as long as I own the neighboring house, I would seem to be bound by the agreement, even if I moved away (but still owned the neighboring house) and arguably could have no care anymore in regards to the agreement.

That is, the value of "Do X" and "Don't Do Y", in this case, "Do cut your lawn" and "Don't paint your house other than white" seems, by being subjective, non-diminishable.

Thx!

TomB

 

[Nylanfs]

And this discussion is why I keep bringing it up every month.