WotC Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

[S'mon]

Anyone who has taken up the offer and entered into the contract has rights which are, according to the terms of the licence, irrevocable. Whether those terms actually govern the agreement or whether there are other legal rules affect the term of the licence is something I don't know. @S'mon?

As far as Frylock is concerned, he has long been a critic of the OGL on the grounds that, under it, WotC asserts IP rights that it does not actually enjoy and gets people to contract away rights that they otherwise would enjoy. So I don't think he is interested in himself becoming a party to it.

The general approach to a contract under US & UK (English) law is that the court will seek to uphold the agreement. Partly under EU influence UK courts will regulate business-consumer contracts made under standard forms from the business, but the OGL is not such a contract IMO.

Frylock is technically correct that WoTC claim rights they don't have - eg we all know the Displacer Beast is really a Couerl from AE Van Voght - but the OGL does also grant substantial rights to the licensee.

 

[S'mon]

This is not corrrect in my view. WotC can withdraw their offer at any time given that no one has paid them to make the offer. At that point anyone who wants a licence from WotC would need to negotiate with them.

What you may be referring to is the fact that every person who has entered into the OGL with WotC has promised to offer a licence to others on the same terms in respect of the Open Game Content pubished by pursuant to the licence. This includes (by way of contractual definition) any work - such as the SRD - covered by the OGL. So while WotC can withdraw its offer, anyone else who published the SRD pursuant to the OGL is contractually obliged to offer to others the right to publish that material under the OGL.

(Note that WotC is not similalry obliged because, as far as I know, it has never published any works relying on the OGL for the authority to do so.)

By now it would be quite tricky, I think, to identify the web of OGL contractual obligations and hence to determine who might have what contractual rights in relation to the making of those offers.

How anyone might go about revoking those further offers is another question I'll leave to @S'mon - I have intuitive doubts about the vIability of a perpetual contractual obligation to maintain a standing offer to the whole world, but my intuitions may be wrong.

Yes, but Umbran is effectively right in practice since afaics under the OGL I can take the whole of an SRD (d20, 5e, etc) from a non-WoTC source under the OGL, and will always be able to do so. WoTC can withdraw the OGL offer themselves to new contractees, eg they can remove it from their websites, but material that has already 'entered the wild' under the OGL will stay there. So it is quasi-non-withdrawable. In practice it is not withdrawable, and is designed that way.

 

[pemerton]

what would happen if, hypothetically, WotC were to issue a release to the effect of "As of 12:01 a.m. Pacific Daylight Time on August 19 2019* the OGL is withdrawn in all forms and thenceforth becomes null and void; along with all permissions, rights, and obligations thus granted." It's locked in for anything released up until that point due to its own perpetuity clauses, but anything released after that cutoff is hooped - right?

It's not clear what you have in mind.

Some people are parties to licence agreements with WotC, that is, have entered int a contract with WotC. The contract has arisen because consideration has flowed in both directions - WotC has conferred the permissions stated in the OGL in respect of the SRD; and the other party in return has created OGC and promised to make a standing offer to the world to licence that OGC for others' use under the terms of the OGL.

The terms of that licence include that it is perpetual. So WotC cannot unilaterally revoke any such licences. As I read the OGL, the licence is not confined to any particular or limited number of works.

However, as I have posted a couple of times now, I believe that WotC is free to withdraw its offer to those who are not currently parties to a licence with it to enter into such a licence. (This standing offer is what is colloquially called releasing the SRD under the OGL.) That is because - as best I know - no one has paid or otherwise contract with WotC to keep that offer open.

This is the point on which I disagree with @Umbran.

EDIT because saw this extra post:

Yes, but Umbran is effectively right in practice since afaics under the OGL I can take the whole of an SRD (d20, 5e, etc) from a non-WoTC source under the OGL, and will always be able to do so. WoTC can withdraw the OGL offer themselves to new contractees, eg they can remove it from their websites, but material that has already 'entered the wild' under the OGL will stay there. So it is quasi-non-withdrawable. In practice it is not withdrawable, and is designed that way.

Yes, agreed. I tried to convey the same point upthread when I posted the following:

What you may be referring to is the fact that every person who has entered into the OGL with WotC has promised to offer a licence to others on the same terms in respect of the Open Game Content pubished by pursuant to the licence. This includes (by way of contractual definition) any work - such as the SRD - covered by the OGL. So while WotC can withdraw its offer, anyone else who published the SRD pursuant to the OGL is contractually obliged to offer to others the right to publish that material under the OGL.

 

[S'mon]

Your view... is not supported by the text of the license, nor the intent of its architect:

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners."
- Ryan Dancey, On the Goals of the OGL

Section 9 of the license clearly states that, should WotC change the license, you are authorized to use the work under ANY PREVIOUSLY AUTHORIZED VERSION of the licence. So, once the game is released with the license attached, that version of the licence cannot be removed from use with that content.

Unless you think Mr. Dancey was incompetent, and the license text doesn't mean what he, and loads of others since, have said about it, then I'm sorry, but you are simply incorrect. Once a game has been issued under the OGL, that license applies to that release in perpetuity.

Well Pemerton is correct re the technical meaning of a Contractual Offer in Anglo-American Contract Law. WoTC can always 'withdraw their offer'. But you are correct in practice since once any party has reproduced the SRD under licence from WoTC, anyone else can take that material under the OGL licence and WoTC cannot legally prevent that. So it does what Dancey intended.

 

[pemerton]

And one basic aspect I think might be important is the question, if stat blocks are falling under the category of being rules. Rules normally state how something is done or not. Now that might apply to the abilities of the monsters turning the stats into rules, but perhaps not. That is for others to decide or determine.

This is something I've discussed with @S'mon in the past. He is better at this particular legal issue than I am!, but I'm happy to share some thoughts.

I think that RPG stat blocks are interesting because they sit on something like a borderline between processes for playing a game (if the declared move is "I attack the cyclops" then resolve that move by feeding these numbers into this resolution procedure) and devices for conveying stories about imaginary beings.

I believe that this is why Frylcok is trying to argue that those story elements are all in the public domain. (At least for familiar monsters from legend, like cyclopes.) Though, as per @S'mon's post about 40-odd upthread, Frylock's argument in this respect may not be very strong.

 

[S'mon]

With discussions like this you can have

1.People who don't understand English very well
2.People who understand English, but not legal concepts
3. People who are educated laymen with a practical understanding of legal standards,, often gained through experience
4. Qualified lawyers not active in the field, or otherwise with limited knowledge
5. Academic and active lawyers in the field with a decent understanding of the substantive law
6. Trial lawyers active in the field with an intuitive idea of how a dispute would likely go in practice

As a #5 I would always tend to defer to a #6 when it comes to an actual case. I know enough to know that the vagaries of procedure, judicial whim, and the gladiatorial skills of opposing attorneys matter a lot more than what the substantive law actually says. Conversely I know that #4s can often be way off on the substantive law - back in the '90s I saw plenty of in-house lawyers who seemed unable to distinguish between (c) and TM, something even Guardian journalists seem to be able to do these days. Conversely I'd defer to a #4 on matters of procedure.

For a #1 or #2, it can be hard to understand what #4-#6 like me and Mr P are saying, so probably paying attention to a good #3 like Morrus here is the best way to go.

 

[S'mon]

This is something I've discussed with @S'mon in the past. He is better at this particular legal issue than I am!, but I'm happy to share some thoughts.

I think that RPG stat blocks are interesting because they sit on something like a borderline between processes for playing a game (if the declared move is "I attack the cyclops" then resolve that move by feeding these numbers into this resolution procedure) and devices for conveying stories about imaginary beings.

I believe that this is why Frylcok is trying to argue that those story elements are all in the public domain. (At least for familiar monsters from legend, like cyclopes.) Though, as per @S'mon's post about 40-odd upthread, Frylock's argument in this respect may not be very strong.

I think Frylock is basically wrong.

However US courts have said that if there is only one way of expressing a concept, that expression is not copyright protected. This appears to support the argument that information per se (sans selection, arrangement and formatting) is not copyright protected in US law. This goes beyond the Berne/TRIPS rule that mathemetical formulae and game rules are not protected per se.

I think this means that in US law it would likely be possible to present the stats of a 5e orc (AC 13, hp 15, ATT+5/d12+3) in an adventure, say, without infringing copyright. There would also be fair use & fair dealing arguments, which brings in the ethics and equity dimensions. But I don't think a US court would let you use this get-out to reproduce the Monster Manual, even reformatted, sans OGL. Clearly this is not fair use IMO, and it also falls under the EU Unauthorised Extraction right.

 

[S'mon]

Re monster names - these are not trade marks unless used as badges of origin for goods (& services in UK - called service marks in US). Even if the USPTO IPO or EUIPO grants a trade mark, if not used as a badge of origin it becomes subject to revocation. A US company may slap (TM) all over their character or monster names etc, this just means the company regards these as badges of origin - a court is free to disagree, and may well do so - Marvel was notorious for Aunt May (TM), and Lucasfilm for Nazi (TM).

WoTC claim various monster names are 'Product Identity', but as Morrus has explained, this is only a meaningful term or claim within the OGL license, which is a contract you can choose to agree to, or not. Some of their claimed PI* is quite silly IMO - but you agree to it when you use the OGL.

*The following items are designated Product Identity,
as defined in Section 1(e) of the Open Game License
Version 1.0a, and are subject to the conditions set
forth in Section 7 of the OGL, and are not Open
Content: Dungeons & Dragons, D&D, Player’s
Handbook, Dungeon Master, Monster Manual, d20
System, Wizards of the Coast, d20 (when used as a
trademark), Forgotten Realms, Faerûn, proper
names (including those used in the names of spells
or items), places, Underdark, Red Wizard of Thay,
the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of
Pandemonium, Infinite Layers of the Abyss,
Tarterian Depths of Carceri, Gray Waste of Hades,
Bleak Eternity of Gehenna, Nine Hells of Baator,
Infernal Battlefield of Acheron, Clockwork Nirvana
of Mechanus, Peaceable Kingdoms of Arcadia, Seven
Mounting Heavens of Celestia, Twin Paradises of
Bytopia, Blessed Fields of Elysium, Wilderness of the
Beastlands, Olympian Glades of Arborea, Concordant
Domain of the Outlands, Sigil, Lady of Pain, Book of
Exalted Deeds, Book of Vile Darkness, beholder,
gauth, carrion crawler, tanar’ri, baatezu, displacer
beast, githyanki, githzerai, mind flayer, illithid,
umber hulk, yuan-ti

 

[pemerton]

For a #1 or #2, it can be hard to understand what #4-#6 like me and Mr P are saying, so probably paying attention to a good #3 like Morrus here is the best way to go.

This is sensible advice. (And I'll assert that I'm somewhere between a 4 and 5 - definitely not a 6!)

But the laugh is for your passing snipe at The Guardian.

 

[Aldarc]

The idea that "githyanki" is a product identity name is somewhat odd given the fact that it was "borrowed" from a George R. R. Martin novel.