95% of you didn't need the OGL and you don't need ORC

[Matt Thomason]

I agree with you. Whether a court will judge a work is derivative or not seems to me hard to predict. Adventures and bestiaries that invoke the D&D mechanics seem particularly at risk.

That's indeed the problem. There are no clear rules you can use to ensure you are safe if you rely simply on "game rules cannot be copyrighted" because the expression can still be, and there is a huge grey murky potential pitfall if you reuse enough rules from a fairly unique and complex set (something which I believe has never been tested), and can dig yourself in further by replicating tables of data that are not based on mathematical formulas.

The OGL defined clear rules allowing people without access to expensive legal teams to reuse specific Open Game Content without having to worry about accidentally straying into that grey murky area.

 

[Alzrius]

Including the OGL for PF2, to my understanding, was basically a CYA move, as it couldn’t hurt. The license is perpetual, right? Plus it then allows people to create content based on their own PF2 SRD.

The problem is that, if that was all they wanted, the Section 15 of the PF2 Core Rulebook wouldn't have included a copyright notice for the 3E SRD. It would just have had the copyright notice for the OGL v1.0a itself, and a copyright notice for the PF2 Core Rulebook. The fact that it also has the 3E SRD copyright notice is essentially an admission that it's using Open Game Content from that source, and from there it's easy to see – if Paizo republishes PF2 without the OGL – WotC claiming that PF2 uses their copyrighted material.

The same thing potentially holds true for Starfinder.

Now, if WotC does make such a claim, then it comes down to a potential courtroom fight. Presuming that nobody settles, that could turn ugly for Paizo, since there's a lot of material in PF2 and Starfinder, which means that much more ground for WotC's lawyers to comb through and look for areas of potential infringement.

What worries me about that scenario is that it potentially turns into a standoff if Paizo does try to strip the OGL from their games, but also wants to press a court claim about the OGL v1.0a being irrevocable. That is, you could potentially have a scenario where WotC says "you press your court case about the OGL v1.0a being irrevocable, and we press a case where your games infringe on our copyright. Your move."

Hopefully it won't come to that, but I could see it happening.

 

[pemerton]

What worries me about that scenario is that it potentially turns into a standoff if Paizo does try to strip the OGL from their games, but also wants to press a court claim about the OGL v1.0a being irrevocable. That is, you could potentially have a scenario where WotC says "you press your court case about the OGL v1.0a being irrevocable, and we press a case where your games infringe on our copyright. Your move."

If Paizo want to litigate on the status of the OGL v 1.0a, then I think they will want to use that as a defence to a claim for copyright infringement.

If they publish without the licence, then in effect they are abandoning their contract and relying on an IP-based defence.

 

[Alzrius]

If Paizo want to litigate on the status of the OGL v 1.0a, then I think they will want to use that as a defence to a claim for copyright infringement.

If they publish without the licence, then in effect they are abandoning their contract and relying on an IP-based defence.

I mean, that would absolutely be the sensible thing to do, but they make it sound like they're going forward with both plans (i.e. going to court to say the OGL v1.0a is irrevocable, and stripping the OGL from their current product lines), according to their recent statement:

Paizo does not believe that the OGL 1.0a can be “deauthorized,” ever. While we are prepared to argue that point in a court of law if need be, we don’t want to have to do that, and we know that many of our fellow publishers are not in a position to do so.

Of course, Paizo plans to continue publishing Pathfinder and Starfinder, even as we move away from the Open Gaming License. Since months’ worth of products are still at the printer, you’ll see the familiar OGL 1.0(a) in the back of our products for a while yet. While the Open RPG Creative License is being finalized, we’ll be printing Pathfinder and Starfinder products without any license, and we’ll add the finished license to those products when the new license is complete.

 

[Matt Thomason]

I mean, that would absolutely be the sensible thing to do, but they make it sound like they're going forward with both plans (i.e. going to court to say the OGL v1.0a is irrevocable, and stripping the OGL from their current product lines), according to their recent statement:

The "if need be" is the important bit of "we are prepared to argue that point in a court of law if need be"

Which I read as they are prepared to argue if WotC take them to court over it. WotC are not technically in breach of contract with them unless they attempt to stop them publishing somehow (through more direct methods than simply saying the license is no longer authorized), so they would have nothing to take WotC to court over.

As they've stated they will not actually be publishing anything under the OGL anyway, there's pretty much a 0% chance of that argument ever coming to court anyway. If anything, WotC will take them to court over copyright violation, the deauthorization of the OGL will not factor into it as they're no longer doing anything with it to sue them over.

 

[pemerton]

@Alzrius

I read that as a statement that (i) if they are sued by WotC in relation to continued distribution of OGL-licensed materials (which they say they are going to continue selling) they will stand on their contractual rights, and (ii) that they are confident they do not need the benefit of a licence from WotC for their non-PF1 works and hence in the future will publish their SF and PF2 works without conforming to the requirements of the OGL v 1.0/1.0a (to the extent of not including a copy of the licence in their published works).

Paizo has no incentive that I can see to commence litigation in relation to either (i) or (ii). Apart from anything else, the only remedy I could see for them would be a declaration of right, which does not seem worthwhile.

 

[pemerton]

Which I read as they are prepared to argue if WotC take them to court over it. WotC are not technically in breach of contract with them unless they attempt to stop them publishing somehow (through more direct methods than simply staying the license is no longer authorized), so they would have nothing to take WotC to court over.

They could sue to seek a declaration of right. But I don't think they have any reason to do so.

As they've stated they will not actually be publishing anything under the OGL anyway, there's pretty much a 0% chance of that argument ever coming to court anyway. If anything, WotC will take them to court over copyright violation, the deauthorization of the OGL will not factor into it as they're no longer doing anything with it to sue them over.

Re your first sentence: they state that they will continue to distribute "months works of products" that are currently at the printer. They may also wish to keep selling PF1 titles.

 

[Matt Thomason]

Re your first sentence: they state that they will continue to distribute "months works of products" that are currently at the printer. They may also wish to keep selling PF1 titles.

Ah, I thought (just an assumption with no real basis other than they've moved on) they were out of the PF1 market altogether now, and figured those months worth of products would likely come out before WotC come up with a new OGL (right now I'm thinking there's a good chance they'll wait at least six months for all the chaos they caused to die down before they even mention the OGL again in public)

 

[Alzrius]

Ah, I thought (just an assumption with no real basis other than they've moved on) they were out of the PF1 market altogether now

Insofar as I'm aware, they still sell PDFs of Pathfinder 1E products, and I think they still sell printed copies of the PF1 hardcover books in miniature format (and given WotC's recent statement that products which were already produced under the OGL v1.0a wouldn't be affected by a potential deauthorization, those PF1 products probably won't become a flashpoint for litigation).

 

[mamba]

The fact that it also has the 3E SRD copyright notice is essentially an admission that it's using Open Game Content from that source, and from there it's easy to see – if Paizo republishes PF2 without the OGL – WotC claiming that PF2 uses their copyrighted material.

or it is simply an oversight / remnant from PF1. I wouldn't go as far as calling it evidence / admission

What worries me about that scenario is that it potentially turns into a standoff if Paizo does try to strip the OGL from their games, but also wants to press a court claim about the OGL v1.0a being irrevocable. That is, you could potentially have a scenario where WotC says "you press your court case about the OGL v1.0a being irrevocable, and we press a case where your games infringe on our copyright. Your move."

that doesn't work. If 1.0a is irrevocable, then by definition PF2 does not infringe on WotC's copyright (and there is no need for Paizo to strip the OGL).