[ORC] Vision for one or more ORC systems: convert the entire OGC archives from the start, using a massive team of converters

[pemerton]

At this point it feels like being able to 100% divorce their game from WotC would be the best move for them. Being reliant on licensed material, even via CC, is probably a bad move psychologically when they're trying to launch the ORC license. They need to show their product can stand alone under that license to give others the confidence to do the same.

As you know, I agree that the real issue here is not the legalese, but the fact that a large number of commercial publishers have a business model that is dependent on a smooth relationship with a much larger commercial licensor.

The challenges to changing that dynamic, on the other hand, do perhaps seem to depend on the legalese! (As per some of my posts upthread.)

 

[pemerton]

To be clear, I view "stories", and setting details to be strictly copyrightable, especially newly invented names like "Thay" and "Ysgard" (a way to signify Norse-esque while non-Norse).

<snip>

But generally, to publish a clear imitation of a story steps into copyright issues and needs navigation. One can repeat an old story in a new way, or draw inspiration from a concept.

<snip>

I am Norwegian. I will write stories about Thor fighting giants whenever I please!

<snip>

The goal of this thread is to be practicable.

My understanding of this thread is that it is about existing publishes, who have published material with a licence from WotC under the terms of the OGL can now "de-OGL-ify" that work.

And one aspect of that is their continuing contractual obligation not to use WotC's product identity.

Another is their contractual acknowledgement of WotC's copyright in the SRD, which is also an acknowledgement that their own work is in some sense derivative of WotC's.

A third is the IP rights (as opposed to contractual right) that WotC enjoys.

In my view these are not straightforward matters to unravel.

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

 

[mamba]

Not necessarily. They may not want to use the CC license to bring material in. It could be construed as saying "We acknowledge that WotC own these game mechanics". Then there's the issue that it's not even a 100% certainty that someone can't revoke a CC license (we can't know for sure unless someone tests that in court.)

not sure if it has been tried, so far everyone seems to agree that that would be quite a hurdle to overcome at least (and yes, some time ago we thought the same about the OGL)

At this point it feels like being able to 100% divorce their game from WotC would be the best move for them. Being reliant on licensed material, even via CC, is probably a bad move psychologically when they're trying to launch the ORC license. They need to show their product can stand alone under that license to give others the confidence to do the same.

I agree, it would be desirable to not have to rely on CC at all and have everything under ORC. If WotC wanted to, they could make that process difficult and long however, at a minimum, as there is a lot of gray area between what clearly would fall outside WotC's copyright and what e.g. Pathfinder 2 would then claim to not fall under it / be independent of the OGL.

So from a practical standpoint it would be easier to rely on CC, not that this means anyone within ORC will.

 

[SoonRaccoon]

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

If you publish something derivative of the 5e SRD under the OGL, do the clauses barring you from using things like "beholder" apply to the specific derivative work, or would you be agreeing to never use that anywhere ever?

 

[pemerton]

If you publish something derivative of the 5e SRD under the OGL, do the clauses barring you from using things like "beholder" apply to the specific derivative work, or would you be agreeing to never use that anywhere ever?

On a plain reading, the first sentence of section 7 of the OGL looks like an open-ended promise: "You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity."

And we all agree that the contract can't be unilaterally revoked!

Maybe there's an argument for a non-plain reading, but it's not obvious (at least to me): an irrevocable promise to forebear from using material X doesn't seem outrageous consideration in the context of a royalty-free licence to use material Y.

And the second sentence does qualify the promise - "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark." Which reinforces the open-ended character of the first sentence.

Product identity has to be identified as such by its "owner" (section 1), which makes me think that the first sentence is a promise never to use the product identity identified as such by its owner in the context of them being the other party to the contract. Whereas the second sentence seems to be a promise with a narrower field of operation - only works containing OGC - but with a wider preclusion of use - any trademark whatsoever, whether or not belonging to the other contracting party.

The above is my take on having a first go at a close reading. There are probably other constructions available, and maybe some are more legally plausible and/or more favourable to WotC's licensees.

 

[Yaarel]

My understanding of this thread is that it is about existing publishes, who have published material with a licence from WotC under the terms of the OGL can now "de-OGL-ify" that work.

And one aspect of that is their continuing contractual obligation not to use WotC's product identity. ...

A third is the IP rights (as opposed to contractual right) that WotC enjoys.

In my view these are not straightforward matters to unravel.

Particularly because, even if - as @Matt Thomason suggests - these publishers move away from licensed works, their contractual obligations presumably remain binding (which is what everyone wanted, right - the OGL can't be revoked!).

Because Hasbro-WotC hasnt gone thru with breaching the OGL 1.0a (yet), I agree, this license remains obligatory.

The OGL 1.0a license only refers to the product, not to the publisher of the product. It is the product that must meet the terms of the OGL.

What is certain is, anyone else can continue to use and modify the OGL product under the terms of the OGL.



(Note. Switching from the OGL 1.0a to the new CC-BY 4.0 seems not a transfer. What happens is, the product has two licenses. Other users of the product can choose which license to use. If choosing, the benefit of the OGL is the ability to declare ones own Product Identity. The benefit of the CC is to draw inspiration from other Hasbro-WotC products under the terms of copyright rather than under the terms of the stricter OGL Product Identity agreement. I prefer the terms of the OGL, but unfortunately its author Hasbro-WotC has shown bad faith toward it. I view Hasbro-WotC offering the SRD to the CC as a constructive gesture. But it is a less ideal solution for an independent publisher, whether professional or amateur.)



I expect the ORC license will be excellent.



I see less difficulty with products that were released under the OGL 1.0a. If they were faithful to its terms, the fact their product AVOIDED Hasbro-WotC Product Identity, will protect them now when using a new license for the product, since there will be fewer copyright entanglements.

The question is, how dependent on the SRD is the product, really.



Now. To reverse-engineer the SRD solves most problems.

This new game rules system focuses on: public domain "names", abstract "concepts", and a clean "game rules" system.

Perhaps we call this new game rules system the Open RPG Engine: ORE.



Most of the time, it is possible to update an OGL product to the new ORC license and instead use the new ORE rules. This normally requires rewriting the product, but with little or no information loss.

I cant think of a case where a product cant update. Most of the changes would be trivial, like using the term underworld rather than shadowfell, or cambion rather than tiefling. Maybe the dragonborn are distinctive enough to need to doublecheck, essentially a dragon head on a human body. I am unsure an Egypt-esque crocodile head or a Norse-esque draconic snake with arms, or even a humansize dragon, would satisfy a dragonborn fan. Even so, these approximate equivalents have appeal in their own right.

Most of the time, to update an OGL product for the ORC license using the ORE system is a good solution.

In this solution, the old OGL product remains in place. But the new ORC update is carefully free from the Hasbro-WotC SRD and no longer derivative of it.

(The situation resembles publishing the same product for two different systems, such as one version for Pathfinder 2 and an other version for D&D 5e. The ORC update means there is one version using the OGL such as for 5e and an other version using the ORC for ORE.)

Another is their contractual acknowledgement of WotC's copyright in the SRD, which is also an acknowledgement that their own work is in some sense derivative of WotC's.

Many products that have zero connection to Hasbro-WotC products, used the license anyway because the license itself was a useful license. The use of the license in no way implies that a work is derivative. It only is a statement of agreeing to avoid Hasbro-WotC Product Identity, which is normally a trivial compliance, when the product is nonderivative in the first place.

 

[pemerton]

The OGL 1.0a license only refers to the product, not to the publisher of the product. It is the product that must meet the terms of the OGL.

This is wrong.

Here is the opening clause of section 7: "You agree not to Use any Product Identity".

Here is the definition of "You": "'You' or 'Your' means the licensee in terms of this agreement."

(Note. Switching from the OGL 1.0a to the new CC-BY 4.0 seems not a transfer. What happens is, the product has two licenses. Other users of the product can choose which license to use.

This is also wrong, or misleading at best.

Scenario: A has published work under the OGL that includes, or is derivative of, licensed material from WotC's SRD. B has subsequently published work the includes material licensed by A under the terms of the OGL (ie Open Game Content), and then C wishes to publish work that contains B's material.

B has made a contractual promise to A that B will offer to license A's OGC, plus B's work that is derivative of A's OGC, under and only under the terms of the OGL. The fact that W has now offered to license its SRD on different terms (ie CC-BY) does not change the terms of the contract between A and B. It does not give C any new permissions in relation to A and B's work.

There may be an argument that A has been impliedly released of its obligation to W under their previous licence agreement.

To reverse-engineer the SRD solves most problems.

I don't know what this means. In this context, as best I can tell, "reverse engineering" means some sort of paraphrase of the SRD. That tends to look like a type of suspect copying to me.

Many products that have zero connection to Hasbro-WotC products, used the license anyway because the license itself was a useful license. The use of the license in no way implies that a work is derivative.

I am aware that some people have used the OGL to enter into licensing arrangements to which WotC is not a party. I've made many posts about this over the past several weeks.

As I have made clear, I am talking about products which acknowledge WotC's SRD in their section 15 statement. That quite strongly implies that the work is derivative of the SRD: if it were not, why would the acknowledgement be there?

 

[Yaarel]

This is wrong.

Here is the opening clause of section 7: "You agree not to Use any Product Identity".

Here is the definition of "You": "'You' or 'Your' means the licensee in terms of this agreement."

LOL! The argument seems absurd. Is it suggesting that by publishing a product using the OGL, "you" can never work for Hasbro-WotC ... because "you" agreed to never use Product Identity?



Rather, "You agree to not use any product identity" in the product itself that is actually using the license.

"You" can publish other products that dont use the OGL license.



But in any case.

By switching to the ORC and non-Hasbro-WotC game rules. No one is using Product Identity anyway.

Scenario:
A has published work under the OGL that includes, or is derivative of, licensed material from WotC's SRD.

B has subsequently published work the includes material licensed by A under the terms of the OGL (ie Open Game Content),

and then C wishes to publish work that contains B's material.

B has made a contractual promise to A that B will offer to license A's OGC,

plus B's work that is derivative of A's OGC, under and only under the terms of the OGL.

The fact that W has now offered to license its SRD on different terms (ie CC-BY) does not change the terms of the contract between A and B. It does not give C any new permissions in relation to A and B's work.

Here I agree with you. As things stand now, the OGL remains in place.

Even so, anyone "upstream" can abandon the OGL.

A can create a new version of the product, using the new ORC and new Open RPG Engine.

Then B can now choose whether to stick with the old OGL version from A, or use the new ORC version from A.

The point is, all OGL products remain in place.

To update to the ORC means there are now two versions in place, one for the ORC and the old one for the OGL.

I don't know what this means. In this context, as best I can tell, "reverse engineering" means some sort of paraphrase of the SRD. That tends to look like a type of suspect copying to me.

The point is, Hasbro-WotC cannot own what it cannot own.

For example, an earlier question somehow implied that Hasbro-WotC owns "Thor" and "giants". Obviously no. Hasbro-WotC is unable to own someone elses cultural heritage.

Likewise, Hasbro-WotC cannot own game rules.

I am aware that some people have used the OGL to enter into licensing arrangements to which WotC is not a party. I've made many posts about this over the past several weeks.

As I have made clear, I am talking about products which acknowledge WotC's SRD in their section 15 statement. That quite strongly implies that the work is derivative of the SRD: if it were not, why would the acknowledgement be there?

By creating a product that uses ORC and the Open RPG Engine, that product has nothing to do with Hasbro-WotC, just like the ORC product has nothing to do with Coca Cola or Levis Jeans.

 

[mamba]

Even so, anyone "upstream" can abandon the OGL.

A can create a new version of the product, using the new ORC and new Open RPG Engine.

Then B can now choose whether to stick with the old OGL version from A, or use the new ORC version from A.

but you need to keep this chain intact, B cannot (easily) switch over before A has done so

 

[pemerton]

LOL! The argument seems absurd. Is it suggesting that by publishing a product using the OGL, "you" can never work for Hasbro-WotC ... because "you" agreed to never use Product Identity?



Rather, "You agree to not use any product identity" in the product itself that is actually using the license.

"You" can publish other products that dont use the OGL license.

What theory or method of contractual interpretation are you applying?

I told you which one I'm applying: plain meaning, reinforced by the contrast with the second sentence which confines the scope of the promise to works containing OGC.

What is actually absurd is reading weeks of posts arguing how outrageous it is that WotC should try to avoid its contractual obligations by way of strained interpretation, only to now have one of those posters arguing that the contract is not binding on the other parties to it.

The OGL isn't a gift. It's a contract. WotC have conferred permissions in relation to their material. In exchange they have extracted promises in relation to their material. It's not that complicated, at its core.