My thoughts on the new OGL v1.2 draft

[Aspirinsmurf]

Speaking only from a common law perspective: a publisher could seek a declaration of right. Whether a court would hear that claim and be prepared to issue a declaration would depend both on (i) the rules of the jurisdiction in question, and (ii) how the particular case was pleaded.

But it's not really clear why a publisher would do this.

Can you get injunctive relief in preparation for a lawsuit seeking a declaration of right? Can multiple plaintiffs band together to do this, in Washington and against WotC specifically? How can I get standing to join such an attempt? (And where do I send the money if I can't???)

It would be a great thing if WotC were forced to shut up with this "playtest" nonsense and the divisive corpospeak gaslighting while the lawyers dealt with the illegality of the very premise that they're basing the entire charade on.

 

[Snarf Zagyg]

It's better. It's certainly better. But it's still not good. These are suggestions I would make for their feedback survey.

So, it's better, but it's still fundamentally flawed IMO. This would be my suggestion for their feedback form.

As always, thoughtful and well-considered. That said, as I was reading your post I kept coming to what I think is a large, and possibly irreconcilable divide.

If we accept the premise that Hasbro is determined to update the OGL ("de-authorize" OGL 1.0a), we inevitably come to the same issue. They want to change it. They are determined to replace OGL 1.0a. We can discuss and examine the reasons for this (I think that, given what they have retreated on and what remains, the desire to control the image of the brand is paramount), but it appears that this is the case. With that in mind, everything they do will be worse than what was before. It will always be fundamentally flawed because while the material they release under the CC is "open," the licensing agreement under OGL 2.0 (or whatever version it ends up being) will always only be, at best, "open-ish," which is to say ... not open.

I think that this is fundamental to keep in mind when discussing this. In other words, unless Hasbro is just like, "Eh, whatevs, man, OGL 1.0a 4LYFE" whatever is on offer will always be fundamentally flawed if you are comparing it to what came before.

On the other hand, this is (as you acknowledge) better. Assuming that there is a new OGL, I think the fundamental dividing line is always going to be the harmful/obscene/harassing/illegal content provision. Here's the debate as I see it:

Hasbro: We need this provision. This is about protecting our product and our brand from nitwits like nuTSR and others that might try and use this license and make us look bad. When we make mistakes (Hardozee) we can correct it. But if a 3PP is out there making D&D look bad, we need to be able to do something.

3PP: Yeah, but it's in your discretion. You can terminate it for any reason. And I can't do anything. How can I build a business with that uncertainty?

Hasbro: What? We want a successful community and 3PP. This is just to make sure that we get to decide what is best for the brand. We would work with anyone in good faith. We just don't want to get tied up in court forever because we're trying to get rid of some Stormfront D&D. But if you're working in good faith, of course we'd work with you! You trust us, right?

3PP: .....you've got to be kidding me.


Anyway, that's the fundamental divide. Most companies (as you know) do have the right to terminate licenses, at their discretion, for certain conduct that harms the brand. It's just that ... there isn't any trust. On the other hand, Hasbro isn't going to let people sue them over the decision, and is unlikely to want to go to arbitration or something similar.

And even if you go to an independent person appointed for these disputes (or panel of three), the problem is that you have to have enforceable standards. "I know it when I see it," is a famous remark about obscenity, but it also shows the difficulty in determining these types of cases. A good faith provision would help, but the devil is in the details.

Good post, as usual.

 

[delericho]

But this may be WotC's Immovable Object. If people can't agree on that point, what then?

We're in the negotiation phase. It's possible that they might back down on that point, or it's possible that they might back down enough on everything else that people can live with the final set of changes.

But if we get to a point where they make their final offer and it's still not good enough, we come to the crunch point. For me, that means I've bought my last D&D product. For 3pp is may mean they publish anyway under OGL 1.0a and take their chances in court, or it means they may shift to ORC or similar (and redo their products to remove lost dependencies). We'll just need to see.

Sadly, I think you're right - OGL 1.0a will require its status to be settled in court. (Or, if nobody feels the fight is worth the risk, it is effectively dead.)

 

[Voadam]

1 De-Authorization is big.

2 Termination for hateful content or conduct at their discretion with no challenge is big.

3 Termination for "infringing" their IP sounds like a potential loophole that gives them more leverage. Illegality part as well as there are a ton of laws in the world.

"We may immediately terminate your license if you infringe any of our intellectual property; bring an action challenging our ownership of Our Licensed Content, trademarks, or patents; violate any law in relation to your activities under this license; or violate Section 6(f)."

4 No sharing OGC directly under this new license. If you want to use a 5e Kobold Press monster book monster in your module you need to get a separate license from KP. WotC SRD only.

 

[eyeheartawk]

4 No sharing OGC directly under this new license. If you want to use a 5e Kobold Press monster book monster in your module you need to get a separate license from KP. WotC SRD only.

Is this true?

So all the talk about having to "reauthorize" used open gaming content that was in OGL 1.0a into OGL 1.2 is moot anyway?

 

[Voadam]

Is this true?

So all the talk about having to "reauthorize" used open gaming content that was in OGL 1.0a into OGL 1.2 is moot anyway?

There is licensed content and unlicensed content.

There is no OGC and no provision for using OGC.

From the draft:

LICENSE. In consideration for your compliance with this license, you may copy, use, modify and distribute Our Licensed Content around the world as part of Your Licensed Works. This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license). It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.

3. WHAT YOU OWN. Your Licensed Works are yours. They may not be copied or used without your permission.

 

[LuisCarlos17f]

This is not only about what they could do, but what they should do to recover the lost prestige by fault of this controversy.

The mistake by the sharks within Hasbro megacorporation is to believe because we are "geeks" then we would be easily manipulated to buy all the products they wanted to sell us.

We love D&D, but it is the D&D we create with our imagination, not the expensive sourcebooks we buy to find updated crunch and rewritten fluff.

D&D is not only a product, it is also a part of the our culture, one of the main icons of the geek subculture.

And they should worry very much about their guidelines to say what is allowed or tagged as "hate-speech" because they may get into very serious troubles if anybody doesn't agree about their guidelines are nor coherent neither fair.

Here we can agree speculative fiction and entertaiment industry shouldn't can be used to launch hate speech, but I have seen, I have suffered, injust censorship with double standard, using to different sticks to measure. Why not to promote the defense of the human dignity to stop the bigotry?

What if a module about a module is tagged as "hate speech" because this is about a planar invasion by the formians, and theses are reported as a hidden allegory of the army of certain superpower from the real life?

 

[Voadam]

So all the talk about having to "reauthorize" used open gaming content that was in OGL 1.0a into OGL 1.2 is moot anyway?

Under this license people can publish their original stuff under 1.2 and people can license each other separately to use stuff.

They are saying they will put out the 3e SRDs as well under 1.2 so you can make stuff derived from that under 1.2, but there is no direct provision allowing using of OGC.

So Matt Finch could put out the OSRIC and S&W systems that he created under 1.2. He could also put out an agreement for others to use it in their products. If those both don't happen there is no authorization to keep making products using those OGC elements under 1.2.

Also, if anyone in your chain of OGC for a product does not republish under 1.2 and put out separate authorization to use it then there is no authorization to put that product out using that OGC under 1.2. So if Frog God wants to put out Rappan Athuk S&W under the 1.2, that is partially dependent on Matt Finch.

 

[Dreamscape]

Illegality Clause: In Russia, it is illegal to portray queer issues and people in a positive light. If I sell a perfectly normal and inclusive book and someone in Russia buys it, I have broken Russian Law and WotC has the authority to terminate my license, even if the law that is broken is utterly evil, exclusive, and draconian.

Morality Clause. I would like to hear from people not bothered by it, about a potential future where, say Tencent buys WotC, or a controlling share in Hasbro with pocket change, and starts enforcing their view of what is proper and moral.

This is an important point (one of many) which tends to get overlooked. This is world-wide hobby, though much of the discussion we're seeing is US- and UK-centric (with a smattering of the EU and the antipodes). I have no idea what, if anything, is being said about this in the Far East.

One has to assume that any corporation wanting to maxi-monetise their product has to be looking at the China* market. It is well-documented what happens to what the US and Europe consider inclusive content when it is marketed to China. What is considered "harmful" by the Chinese authorities is not what anyone on these boards would concur with.

* For China, always read "the CCP".

 

[eyeheartawk]

Under this license people can publish their original stuff under 1.2 and people can license each other separately to use stuff.

They are saying they will put out the 3e SRDs as well under 1.2 so you can make stuff derived from that under 1.2, but there is no direct provision allowing using of OGC.

So Matt Finch could put out the OSRIC and S&W systems that he created under 1.2. He could also put out an agreement for others to use it in their products. If those both don't happen there is no authorization to keep making products using those OGC elements under 1.2.

Also, if anyone in your chain of OGC for a product does not republish under 1.2 and put out separate authorization to use it then there is no authorization to put that product out using that OGC under 1.2. So if Frog God wants to put out Rappan Athuk S&W under the 1.2, that is partially dependent on Matt Finch.

What an absolute mess.

This makes me wonder if Wizards' actually wants anyone to use this license. It seems to me, that if you have to "republish" under a new license anyway, why not use ORC or similar as the viral sublicensing nature of that license makes things easier for everybody.