4e D&D GSL Live

[Orcus]

Hyrum, I'm just not going to indulge in what some might interpret as a legal interpretation of the license. I cant do that. It would be misleading to people.

There is lots to get worked up about in the GSL, but this is pretty standard lawyer boilerplate crap.

Its even in the d20STL that you have been using for years, which provided:

"If You fail to comply with the Effects of Termination, Wizards of the Coast may, at its option, pursue litigation, for which You shall be responsible for all legal costs, against You to the full extent of the law for breach of contract, copyright and trademark infringement, damages and any other remedy available."

So dont freak too much.

This one, though, is a little worse.

 

[Orcus]

I was sceptical to begin with, but the 6.1 clause (no GSL->OGL reversion even if the license is revoked or terminated) is the big break for me. At this point, I am NOT feeling confident that Dreamscarred Press will be able to release ANY material for 4E, since we never know when WotC will pull the plug on us and we have a shitload of useless PDFs/Books.

Unless my partner comes up with an awesome scheme, all I can say is that I am, personally, disappointed.

This issue is clearly going to need some clarification from Wizards.

Or maybe it wont. I mean, it is pretty clear:

Update an old OGL product, you cant keep selling the old OGL version (though you can sell off stock that is already printed).

What is more troubling is coupling this with 6.2, which says "though shalt not make an OGL version of a product you make under the GSL" and that provision apparently survives the termination of the GSL as well. That mean whatever you make for 4E can never be OGL--if you update it from OGL to 4E you are out of luck, and if you make it for 4E originally you cant go back and make an OGL version of it later even after the GSL is terminated.

I'm still not quite sure what the penalty would be for doing the latter, but it certainly seems to say you cant do it.

Clark

 

[HyrumOWC]

Hyrum, I'm just not going to indulge in what some might interpret as a legal interpretation of the license. I cant do that. It would be misleading to people.

There is lots to get worked up about in the GSL, but this is pretty standard lawyer boilerplate crap.

I totally understand.

Its even in the d20STL that you have been using for years, which provided:

"If You fail to comply with the Effects of Termination, Wizards of the Coast may, at its option, pursue litigation, for which You shall be responsible for all legal costs, against You to the full extent of the law for breach of contract, copyright and trademark infringement, damages and any other remedy available."

So dont freak too much.

This one, though, is a little worse.

Yeah, but it's MUCH easier to be terminated now, than it was under d20.

Still, the entire license is disappointing, and as it stands right now, it's looking like a deal breaker for me.

Hyrum.

 

[Orcus]

This is, without doubt, the section that is getting my closest scrutiny:

6.1 OGL Product Conversion. If Licensee has entered into the “Open Gaming License version 1.0” with Wizards (“OGL”), and Licensee has previously published a product under the OGL (each an “OGL Product”), Licensee may publish a Licensed Product subject to this License that features the same or similar title, product line trademark, or contents as such OGL Product (each such OGL Product, a “Converted OGL Product”, and each such Licensed Product, a “Conversion”). Upon the first publication date of a Conversion, Licensee will cease all manufacturing and publication of the corresponding Converted OGL Product and all other OGL Products which are part of the same product line as the Converted OGL Product, as reasonably determined by Wizards (“Converted OGL Product Line”). Licensee explicitly agrees that it will not thereafter manufacture or publish any portion of the Converted OGL Product Line, or any products that would be considered part of a Converted OGL Product Line (as reasonably determined by Wizards) pursuant to the OGL. Licensee may continue to distribute and sell-off all remaining physical inventory of a Converted OGL Product Line after the corresponding Conversion is published, but will, as of such date, cease all publication, distribution and sale (and ensure that third party affiliates of Licensee cease their publication, distribution and sale) of any element of a Converted OGL Product Line in any electronic downloadable format. For the avoidance of doubt, (a) any OGL Product that is not part of a Converted OGL Product Line may continue to be manufactured, published, sold and distributed pursuant to the OGL; and (b) this Section 6.1 will survive termination of this Agreement.

Coupled with:

6.2 No Backward Conversion. Licensee acknowledges and agrees that it will not publish any product pursuant to the OGL that features the same or similar title, product line trademark, or contents of a Licensed Product.

They can spin that this isnt a poison pill all they want. But my dad taught me to call a spade a spade.

Clearly, as I understand that existing license, there wont be a "Tome of Horrors" for 4E. I'm not losing the right to make an OGL version. Period. In fact, I am pretty sure that I will be announcing a full color Pathfinder version of the Tome of Horrors shortly. That said, I am still considering a monster book for 4E.

We'll see....

Clark

 

[Orcus]

[nevermind]

Clark

 

[HyrumOWC]

[nevermind]

Clark

Heh. I agree with your OG post.

Hyrum.

 

[pemerton]

What are your thoughts on section 11.4? To me it looks like WotC can sue you for any reason, and whether or not they win, or the suit is dismissed, you still pay for their costs, which are solely determined by them.

In addition to Orcus's comments, I'd add that Australian law at least has a doctrine that prohibits certain unconscionable contractual penalties. If US law has a similar doctrine, that may have some relevance to the application of this clause (depending, of course, on the circumstances of the particular case).

whatever you make for 4E can never be OGL--if you update it from OGL to 4E you are out of luck, and if you make it for 4E originally you cant go back and make an OGL version of it later even after the GSL is terminated.

I'm still not quite sure what the penalty would be for doing the latter, but it certainly seems to say you cant do it.

Under clause 11.4 you seem to agree that WoTC are entitled to seek a permanent injunction against your publication in violation of that term of the licence, on the basis that such publication may cause irreperable damage to WoTC.

 

[Orcus]

Under clause 11.4 you seem to agree that WoTC are entitled to seek a permanent injunction against your publication in violation of that term of the licence, on the basis that such publication may cause irreperable damage to WoTC.

Yeah, I agree that seems to be an available remedy we agree that they can seek. I certainly dont agree they will get an injunction. I'd love to hear them make that argument for injunctive relief with a straight face. "Uh, yeah Judge, had they made this product under our OTHER license, we wouldnt care at all, but now they are using that other license AFTER this license. Cant you see how horrible that is!?" LOL.

 

[argash]

Yes you can, see page 22 of the SRD. (I think)

Your reference to a specific page number is in violation of the GSL....
/sarcasm

 

[pemerton]

Yeah, I agree that seems to be an available remedy we agree that they can seek. I certainly dont agree they will get an injunction. I'd love to hear them make that argument for injunctive relief with a straight face. "Uh, yeah Judge, had they made this product under our OTHER license, we wouldnt care at all, but now they are using that other license AFTER this license. Cant you see how horrible that is!?" LOL.

What you say is what I suspected, but I don't know enough about the US law for availability of injunctive relief (in fact, I don't really know enough about the Australian law on the point to have more than a tentative opinion).

But if they can't get an injunction, can they get damages instead? Presumably they would have to prove that publishing under the OGL rather than the GSL would cause loss to WoTC due to its undermining of sales of 4e material. To me, that sounds hard to prove, and the amount of loss caused would seem hard to measure.

By referring to equitable remedies, is the licence trying to suggest that an account of profits might be available in respect of proceeds of sale in contravention of the licence? That would at least be easier to measure - but in Australian law at least, account of profits is not available as a remedy for breach of contract. And if we're assuming that you're publishing under the OGL then there is no breach of IP rights that might attract an account of profits as a remedy.

Anyway, just some thoughts.

 

[Orcus]

Exactly. I'd love to see them respond to my discovery request for them to produce all financial records in that law suit. LOL. [shakes head]

They are seriously trying to stop a problem that probably will only exist on the margin of cases at best, and in trying to address that marginal issue they are scaring off or pissing off those who would likely adopt the licsese. Poor planning. But thats what happens when the lawyers get involved. I can say that, since I am one.

 

[pemerton]

They are seriously trying to stop a problem that probably will only exist on the margin of cases at best, and in trying to address that marginal issue they are scaring off or pissing off those who would likely adopt the licsese. Poor planning. But thats what happens when the lawyers get involved. I can say that, since I am one.

I don't want to put words into your mouth, but given your sceptical tone about the availability of remedies for a breach of the backwards conversion clause, does that mean you think that it is a bit of a storm in a teacup (from the point of view of liability, as opposed to WoTC marketing)?

 

[Keith Robinson]

As soon as I heard that there would be no backward compatibilty with the OGL I decided that The Kyngdoms wouldn't be shifting to 4ed and neither would I. That coupled with the termination clause has confirmed my worst fears.

Of course, what I do is neither here or there to anyone else, but what should be a major concern to everyone else in the industry is that by embracing the GSL they are losing control over the future of their own product lines. Should a new edition be released at some point in the future, it is highly likely that products released under the GSL will be terminated, meaning they will have to be withdrawn - and since you can't go back to the OGL, you're left whistling in the wind in the unlikely hope that a new license will allow future compatibility. Once you've attached yourself to this horse, it looks like you're on for the duration.

Imagine how many great products and lines we'd now be losing to the termination clause if it had been written into the OGL?

Sad days.

 

[Darrin Drader]

Of course, what I do is neither here or there to anyone else, but what should be a major concern to everyone else in the industry is that by embracing the GSL they are losing control over the future of their own product lines. Should a new edition be released at some point in the future, it is highly likely that products released under the GSL will be terminated, meaning they will have to be withdrawn - and since you can't go back to the OGL, you're left whistling in the wind in the unlikely hope that a new license will allow future compatibility. Once you've attached yourself to this horse, it looks like you're on for the duration.

I've been saying that since details of the GSL started coming out. If I were a publisher, the only thing I would put out for 4E would be adventures. Anything else and you risk the rug getting yanked out from under you.

edit: granted, the rug can still get yanked out with adventures, but they rarely involve lasting IP that you would want to reuse.

 

[Lizard]

Clause 11.1: Immediate termination of the license would be my guess.

joe b.

On what grounds?

Nothing IN the license hints at "fantasy only". To claim that a licensee must be aware of comments made on web forums which did not, in fact, end up as license text strikes me as legally dubious.

There's a lot of legalese in there. Can anyone show me what in the GSL/SRD combines to form a "fantasy only" license? 'Cause I ain't seein' it, and WOTC saying "We want this for fantasy only" *outside* the license doesn't make it legally binding. Only what's in the license counts -- and for it to stand up in court, there needs to be a definition of fantasy beyond "We know it when we see it".

 

[Lizard]

I'm not sure that there was actually anyone mainstream that had any reasonable belief they would be able to make computer products for 4E.

That was a no brainer in my mind.

To my mind, the question is -- would WOTC be dumb enough to try to shut down people making things liks PCGen for 4e as non-profit, not-for-sale products?

Manu shc products for 3x (not PCgen in particular, but others) either skirted the bounds of the OGL or danced merrily across them. WOTC ignored them, recognizing the cost in goodwill of shutting down non-commercial enterprises that didn't directly compete with their products was too high. But now (well, a few months from now....) there's DDI and Gleemax and suddenly Happy Bob's Cool Character Spreadsheet becomes, if not an actual threat to profits, at least something which is the teensiest tiniest bit competitive..,.and that can make companies do stupid things.

 

[Pinotage]

Update an old OGL product, you cant keep selling the old OGL version (though you can sell off stock that is already printed).

What is more troubling is coupling this with 6.2, which says "though shalt not make an OGL version of a product you make under the GSL" and that provision apparently survives the termination of the GSL as well. That mean whatever you make for 4E can never be OGL--if you update it from OGL to 4E you are out of luck, and if you make it for 4E originally you cant go back and make an OGL version of it later even after the GSL is terminated.

Clark

It doens't look like there's anything stopping one from going with the 4e GSL, and then getting another company (owned by you or even license your material to) that doesn't use the GSL to convert your GSL content to OGL. Or am I reading things wrong?

Pinotage

 

[jmucchiello]

It doens't look like there's anything stopping one from going with the 4e GSL, and then getting another company (owned by you or even license your material to) that doesn't use the GSL to convert your GSL content to OGL. Or am I reading things wrong?

Pinotage

As Joe b said, clause 11.1 where they can terminate the GSL by mailing you a letter.

On what grounds?

Clause 11.1 does not require grounds, just someone with WotC letterhead and a postage stamp.

 

[AZRogue]

Reading the license, which is really a pretty insulting document, I was wondering why they even bothered making a GSL since they made sure in a lot of ways that no one far enough on the evolutionary scale to stand upright would ever use it. Why just not have a license and save the lawyer fees?

 

[philreed]

Phil Reed posted on this board about this, that since he was an electronic publisher, this worried him a good bit, that people ripping and republishing his open content for free would totally replace his products and drive him straight out of business.

I'm still of the opinion that the GSL should have stuck with the $5,000 buy-in, only with the change that the buy-in would be a permanent requirement to accessing and using the license.

And yes, I still think the OGL -- as it was released and as it has been used -- is potentially damaging to PDF publishers.