Cortex Fan License Published

The fan license which allows you to create free material for Cortex Prime was announced by Fandom yesterday.

Fandom acquired the Cortex Prime system recently, and is also the owner of D&D Beyond.

The announcement was greeted with negative feedback about its restrictions by the community. The Community License grants ownership of any mechanics created under the license (but not 'lore' such as names, art, fiction, etc.) Additionally, Fandom can terminate the license at any time. The usage of the Cortex Prime mechanics is limited in that fans cannot "decompile, disassemble, or reverse engineer the Cortex System, or any component thereof, by any means whatsoever."

In the comments under the announcement, Fandom confirmed that fan creations could not be distributed via DriveThruRPG or Itch.io because those platforms "grants them rights to specific parts of the content, including content that the community license does not grant you the rights to." I'm not familiar with Itch's terms, but DTRPG doesn't acquire any rights to content distributed on the platform.

Fandom does confirm in the comments that people can create their own versions of the Cortex mechanics without using the license; but by doing so you can't call it Cortex or use the resources Fandom provides. Mechanics in themselves cannot be copyrighted, but the expression (the text used) to describe them can.

Those wishing to sell their work will be able to use the Cortex Creator Studio, which will become available at a later date. The commercial license requires an application.

 

[Grantypants]

US courts have upheld shrinkwrap licenses provided the license text is on the exterior of the box. So, yes, they likely would.

That's true, courts have upheld clickwrap and shrinkwrap licenses. Those cases are different though. In those, the court said that because people opened the shrinkwrap when they could see the license on the box or clicked "I agree" to a wall of legalese, it means they accepted the terms of the license. Those things prevent users from using the software or whatever without physically doing something to accept the license. There's nothing like that with the OGL, nothing physically stopping you from using that material without accepting the license. Official WotC books don't even include it.

Now, in that situation, WotC might still win, but if they do it would be because they had some other evidence that you knew about the contract and agreed to it.

 

[Staffan]

That's true, courts have upheld clickwrap and shrinkwrap licenses. Those cases are different though. In those, the court said that because people opened the shrinkwrap when they could see the license on the box or clicked "I agree" to a wall of legalese, it means they accepted the terms of the license. Those things prevent users from using the software or whatever without physically doing something to accept the license. There's nothing like that with the OGL, nothing physically stopping you from using that material without accepting the license. Official WotC books don't even include it.

Now, in that situation, WotC might still win, but if they do it would be because they had some other evidence that you knew about the contract and agreed to it.

I think the operative parts of the OGL are:

2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

So the OGL applies to content that contains a notice that you are using the license. There's also a later clause that says you must include a copy of the OGL in any work that uses it. I'm not a lawyer, but I think this seems pretty water tight from both sides. No notice, no license used, and you're instead dealing with normal copyright law. Include notice and otherwise follow the requirements of the license, and you instead need to follow those terms.

As for official WOTC material not including the OGL, that's because they (with the exception of, IIRC, parts of the 3.0 MM2) are not released under the license. Wizards does not need to follow the license in order to publish D&D material, because they own the material in the first place (though they could, in theory, use OGC created by others by following the terms of the license). Instead, Wizards has released under the OGL a separate document (well, a number of separate documents) called the System Reference Document which has a lot of similarities to the D&D books, but is not the same thing. That's why the sections 15 of OGL material for 5e say "System Reference Document 5.1 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson." — that's the source material 5e OGL material is based on, not the PHB/DMG/MM. For example, you wouldn't be able to use hunger of Hadar in a book released under the OGL, because hunger of Hadar isn't in the SRD.

 

[angille]

Section 5 talks about decompiling... it's clear the lawyers used a computer game add-on content license.

or... are used to writing licenses for Fandom Wikis, which utilize plenty of obfuscated js and backend code. but yeah, it's... weird.

 

[Von Ether]

The usage of the Cortex Prime mechanics is limited in that fans cannot "decompile, disassemble, or reverse engineer the Cortex System, or any component thereof, by any means whatsoever."

Seeing as how the Core rules are written in a very toolkit approach to the point you can decide the name and number of attributes you have, this bit seems more cut and paste without forethought, unless they are obliquely referencing their Cortex rules website.

 

[FormerLurker]

Maybe I'm wrong about this, but I don't think anyone signs - actively or otherwise - the Open Gaming License when they make use of it.

That's getting a bit pedantic.

No, you don't literally sign it. Nor do you sign the terms & conditions when you click a box. I was using "sign" in a figurative sense to describe formally agreeing to the licence in a clear and demonstrable way. You have signed the document, clicked the checkbox, opened the packaging, or otherwise demonstrating your informed binding consent in a way that can be proved.
In the case of the OGL that is including the OGL legal block at the back of the book and identifying product identity. If you include the OGL text you're agreeing to its terms. You have "signed" the licence. If you use OGL content without including the OGL in the book then you're not using the licence and just infringing on someone's copyright.

But there's no shortage of examples of fans doing that aforementioned "theft." None of the submissions on r/UnearthedArcana include the OGL and many violate Wizards of the Coast's trademarks. (And most feature flagrantly stolen art.) Ditto most other RPG community subreddits like r/swrpg or r/Pathfinder2e But this is generally considered okay because it's free and non-commercial and basically people sharing stuff they made for their homegames. It's fans being fans, and you want to encourage this, not hinder it with legal fears.

For a Cortext subreddit or Twitter thread or Wordpress fansite or even a post on ENWorld it's harder to demonstrate the contributor consented to the licence and agreed to its terms. But Fandom is trying to suggest the licence is almost automatic.

Here's the full licence.
It says:

By using any aspect of the Cortex System (e.g., by creating Products on the Cortex Platform), you acknowledge that you have read, understand and agree to be bound by this Non-Commercial Community License Agreement re Cortex ("License"). This License governs your use of the Cortex System for non-commercial purposes. If you do not agree to this License, then you must not use the Cortex System.

Which seems to imply even playing the game means you have agreed to the licence. That you automatically "sign" the licence just by rolling dice at the table. But that's ridiculous, as 4/5ths of the people at the table might not own the book or be aware of the licence.

And if the licence is at the back of the e-book, there's no guarantee people who own the book will read it. That's the equivalent of a website with terms and conditions at the bottom of the frontpage saying "by browsing this website you agree to X and Y" but no clickbox denoting people were informed of these conditions.

It's implied consent.

This would be problematic for a brand new game with unique mechanics, where the only way to create the content is having read the new book, and thus potentially having seen the licence. However, there have been many previous Cortex games published. Marvel Heroic Roleplaying also using the Cortex System, so everything on Marvel Plot Points is suddenly also covered by the licence. The licence is effectively retroactive

 

[Waller]

Yeah, that's a weird part of the OGL. It says clearly that by using OGC you agree to the license, but that clause is in the license and therefore doesn't apply until after you've agreed to it.

 

[Staffan]

Yeah, that's a weird part of the OGL. It says clearly that by using OGC you agree to the license, but that clause is in the license and therefore doesn't apply until after you've agreed to it.

There's also this: "This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use."

So your book must include a notice saying it uses Open Game Content under the terms of the OGL. For example, the 13th age core book has a notice saying "Open Content: Except for material designated as Product Identity (see above), the game mechanics of this Fire Opal Media game product are Open Game Content, as defined in the Open Gaming License version 1.0a Section 1(d). No portion of this work other than the material designated as Open Game Content may be reproduced in any form without written permission." That in turn calls on the Open Gaming License, which then clarifies that by including such a notice, you have accepted the terms.

It's a bit of a circular arrangement, but it clearly works. Just including the OGL doesn't do the job, because you might be e.g. writing a book on the legalities of game publishing or something and include the OGL for reference.

 

[Grantypants]

No, you don't literally sign it. Nor do you sign the terms & conditions when you click a box. I was using "sign" in a figurative sense to describe formally agreeing to the licence in a clear and demonstrable way. You have signed the document, clicked the checkbox, opened the packaging, or otherwise demonstrating your informed binding consent in a way that can be proved.

Which seems to imply even playing the game means you have agreed to the licence. That you automatically "sign" the licence just by rolling dice at the table. But that's ridiculous, as 4/5ths of the people at the table might not own the book or be aware of the licence.

You're right that this is ridiculous, and "in a way that can be proved" is the key. It's why I don't think this was ever meant to be a license for the Cortex content in the way that Wizards uses the OGL to license 5e content. If you're using content from Cortex books, Fandom can't prove whether you read and agreed to their license that's just posted online somewhere. But if the license is part of the terms and conditions you agreed to when you created an account on their new platform, they can prove that you clicked yes and agreed to it.

 

[pemerton]

Official WotC books don't even include it.

WotC doesn't need to licence its works to itself!

And those books are not governed by the OGL. It is the SRD that WotC has released under the OGL.

 

[Von Ether]

There's nothing like that with the OGL, nothing physically stopping you from using that material without accepting the license. Official WotC books don't even include it.

That's not how the OGL works because WotC is not a third party to itself.