OGL and ORC; A Marriage made in Heaven?

[rcade]

Does everyone back down at the first C&D letter without it ever seeing a courtroom because they know they can't afford to fight it?

I think every company that has been making a lot of money under the OGL is either going to leave the OGL as soon as possible or strike a non-open license deal with Hasbro. The former is more likely than the latter because customers angry over this aren't going to like it when publishers get into bed with Hasbro.

So that will leave hobbyists and small publishers using the OGL because they like games under its license and want to extend them.

 

[Alzrius]

Hasbro is not the entity that would be invoking the Termination clause because it did not license D6 Fantasy to others.

No, I don't think that's correct. Obviously I'm no lawyer, but while someone else might be the ones who'd be raising a complaint about their work being improperly used under the OGL, I believe it would be WotC who actually invokes the termination clause, rather than the party whose work was misused.

There is no language in the Open Game License that makes Hasbro the enforcer of every use of the license. There was no desire expressed by WOTC when the license was created to be the central authority over license enforcement.

By this logic, there's no language in the Open Game License that makes anyone who creates Open Game Content an enforcer of its use either. WotC doesn't need to express a desire to be the authority, because they are; it's right there in the text right before Section 1, which states that they own the text of the license and that they have copyright over it.

I'm fairly sure WotC thinks that the OGL is for using D&D SRD stuff and the very notion other companies made srds for non d20 systems under 1.0a hasn't crossed their minds. They want to control what people do with their toys, it's right in the leak. Anyone else's toys that are in the OGL toybox aren't their concern. If they break while WotC it's gathering D&D's toys, it's collateral damage but they aren't aiming to break them purposefully.

I think that's what WotC's management thinks. But their legal department, I'm guessing, wouldn't be quite so sanguine about people continuing to use a license that they've said can no longer be used, even if they're not using it with D&D-derived intellectual property or other copyrighted materials. Telling people to stop doing things that they're not legally allowed to do seems like the sort of thing that's part of their area of responsibility (at least, once they become aware of it).

 

[rcade]

No, I don't think that's correct. Obviously I'm no lawyer, but while someone else might be the ones who'd be raising a complaint about their work being improperly used under the OGL, I believe it would be WotC who actually invokes the termination clause, rather than the party whose work was misused.

Under that logic, if a publisher of original content thinks a reuser is violating the OGL, it would have to convince Hasbro to take action instead of being able to take action on its own. That's not how open licenses work. Lawsuits filed over violations of the GPL are between the originator and reuser. The Free Software Foundation is not required to get involved.

The only times Hasbro/WOTC has ever acted to enforce the OGL was on reusers of its SRD, such as when Fast Forward Entertainment agreed in 2003 to pulp four of its products because they reused elements of D&D that had not been shared in the SRD.

If the OGL had been an agreement that gave Hasbro/WOTC total control over what constituted a license infringement, third-party publishers would not have adopted the license. Nobody was going to give Hasbro that kind of power after what TSR had done over the years to publishers and hobbyists creating material compatible with D&D.

 

[Alzrius]

Under that logic, if a publisher of original content thinks a reuser is violating the OGL, it would have to convince Hasbro to take action instead of being able to take action on its own. That's not how open licenses work. Lawsuits filed over violations of the GPL are between the originator and reuser. The Free Software Foundation is not required to get involved.

The terms of the OGL v1.0a are unambiguous enough that I question whether there'd be an issue of anyone "thinking" that a reuser is violating the terms; they either would be or wouldn't be (though to be fair, people can certainly find new ways to creatively interpret almost anything).

That said, the problem with the "reuser is the one who enforces action against a violation" theory is that much of the time, violations aren't about people whose content has been reused at all. In fact, you can violate the terms of the OGL without there even being a reuser. For instance, if someone publishes an entirely original RPG, using no Open Game Content from any other source, and releases it under the OGL but fails to include a notice outlining what parts of their work are Open Game Content (which they have to do as per Section 8), then they're in violation of the OGL. Who enforces that provision, then? The answer can only be Hasbro.

Now, it's possible that we're both right, and that a reuser could cite a violation that has to do with their own Open Game Content, Product Identity, trademark compatibility notice, etc., but I can't see an instance where Hasbro wouldn't have standing to do the same, since it all happens under their license.

 

[rcade]

That said, the problem with the "reuser is the one who enforces action against a violation" theory is that much of the time, violations aren't about people whose content has been reused at all. In fact, you can violate the terms of the OGL without there even being a reuser. For instance, if someone publishes an entirely original RPG, using no Open Game Content from any other source, and releases it under the OGL but fails to include a notice outlining what parts of their work are Open Game Content (which they have to do as per Section 8), then they're in violation of the OGL. Who enforces that provision, then? The answer can only be Hasbro.

I own hundreds of OGL-licensed works and quite a few in the early days botched the license. As a practical matter, the answer to your hypothetical is no one enforces it because no one is harmed aside from the original publisher, which did such a bad job that it won't get the network effect of others reusing its content.

 

[Alzrius]

I own hundreds of OGL-licensed works and quite a few in the early days botched the license. As a practical matter, the answer to your hypothetical is no one enforces it because no one is harmed aside from the original publisher, which did such a bad job that it won't get the network effect of others reusing its content.

In those cases, I suspect that WotC still had the legal ability to enforce the termination clause, but simply elected not to (or were unaware of the breech).

 

[tetrasodium]

Also doesn't FATE publish under both OGL and Creative Commons?

Yes and no but it's pretty much just a legacy artifact because it grew out of fudge (which used ogl). Fate's Licensing Page is pretty permissive & clear on terms. Evilhat put out two tweets on their licensing & how the OGL impacts them. I'm pretty sure that I've seen a tweet from the guy who made fudge saying that it could probably be redone without the OGL & that he might at some point too.

 

[Ruin Explorer]

I think I see the flaw here.

I mean, put it like this - an IP-focused or high-end law firm is unlikely to want to be associated with that. But I'm just they could find someone. They'd have to work though.

 

[pemerton]

Their position is that they are part of those agreements, because they own the OGL's copyright.

Where has WotC asserted this?

 

[pemerton]

In the situation we're discussing it has no involvement in the specific agreement between the parties (the originator and the reuser). Hasbro/WOTC is not bound by the terms of the OGL when someone reuses D6 Fantasy or any other original work contributed to open gaming under the OGL. The reuser of D6 Fantasy equally has no obligations to Hasbro.

I think your last sentence is not quite right, as the reuser has promised the licensor to reproduce the text of the OGL in accordance with their licence terms, and WotC/Hasbro owns the copyright in that text.

But I agree fully that the resuer is not in any contractual relationship with WotC.

The reuser of D6 Fantasy does have an obligation to Hasbro, that being to follow the agreements of the Open Game License, which Hasbro owns.

This is not correct. Hasbro is not a legislator with the power to dictate legal relations between strangers.

If @rcade and I enter into a licensing contract with one another, in respect of works in which we own the copyrights, and agree that the OGL v 1.0a shall set out the terms of our agreement, that is none of WotC's business except in two respects:

(i) rcade and I have promised one another to reproduce, on certain occasions, a piece of text setting out the terms of our agreement, in which WotC enjoys the copyright;
(ii) rcade and I have promised on another that if WotC publishes a new version of the licence consistently with section 9, then that is also a permissible licence for each of us to use in respect of the others' work.