Can WotC be forgiven?

[rcade]

And so why not have the same confidence now?

Because trust in any agreement requires a belief that all parties will continue to act in good faith instead of looking for reasons to jackhammer the deal. There hasn't been a precedent before of the originator of an open source license trying to kill the license and all future rights to derive content from existing works created with it.

Since open gaming was created as a movement where anyone could participate, a lot of content was created by startups that never would have been able to afford the legal risk of doing what Mayfair did with its "suitable for use with" Role Aids modules in the 1980s. But when Ryan Dancey and WOTC offered the OGL and SRD, suddenly there was a safe harbor.

Take away the safe harbor and only the most successful open gaming companies can afford to protect their rights after lawyers sink their teeth in. But we've already seen that those companies would rather take open gaming away from WOTC's grubby paws with new works under a new license than deal with a bad faith entity that erased 23 years of goodwill overnight. Who can blame them?

 

[pemerton]

@Matt Thomason

I think a lot of the discussion around this issue, and around ORC, seems to be driven by some confusion about the legal issues.

If X work is derivative of WotC's, then X is liable to a copyright infringement suit from WotC unless X has a licence. The only licence that seems relevant to me in this respect is the OGL v 1.0/1.0a.

If X's work is not derivative of WotC's, then the opinion of WotC about whether or not they have a licence with X, in respect of WotC's copyright, is irrelevant. X can publish away. And if X wants to licence their work to Y on the terms of the OGL, the only risk in doing that is that WotC might complain that X and Y are reproducing WotC's copyrighted licence text.

So the only reason for moving to ORC that I can see is to avoid reproducing WotC's copyrighted licence text. Whether that move is sensible depends on what the risks are of reproducing that text, compared to the costs of losing all the OGC under the OGL v 1.0a.

Talk of "trust" in WotC is irrelevant, because WotC is irrelevant to X's private law relationships with Y. (Even if WotC, for whatever bizarre reason, opts to publish a new authorised licence within the meaning of section 9 of X's licence with Y, section9 permits X and Y to ignore that if they think it's silly.)

None of the above is advice, and self-evidently its your prerogative to do what you want to do. But my general view is that decisions that are ostensibly motivated by legal concerns should be based on an accurate understanding of one's legal position, rather than the ludicrous amounts of misinformation that is being circulated at the moment, including many of the posts on this topic on these forums. With the exception of the posts by the lawyers on the "Lawyer PSA" thread that you have participated in, I would say that the majority of posts I've read expressing a view about the legal situation have been either wrong or just incoherent. And the most common cause of that is reasoning as if the OGL were a statute for which WotC is the legislator, rather than applying the correct analytical framework which is one of understanding the content and force of every private agreement that exists between every participant in a given OGC ecosystem. It seems to me that exactly the same flawed reasoning predominates in discussions of ORC also.

 

[Matt Thomason]

Because trust in any agreement requires a belief that all parties will continue to act in good faith instead of looking for reasons to jackhammer the deal. There hasn't been a precedent before of the originator of an open source license trying to kill the license and all future rights to derive content from existing works created with it.

This brings me to an analogy I've been trying to come up with.
The current situation is somewhat akin to if Linus Torvalds told us he hereby revokes the rights to his contributions to the Linux kernel, and leaving every single other contributor wondering whether he's actually able to do that, and if so what they can put together from what's left. I would imagine that would sour many people on contributing to Linux and would have people deciding to jump ship to OpenBSD or other alternatives just to try and reduce the likelyhood of ever being put in that position again.

 

[pemerton]

Since open gaming was created as a movement where anyone could participate, a lot of content was created by startups that never would have been able to afford the legal risk of doing what Mayfair did with its "suitable for use with" Role Aids modules in the 1980s. But when Ryan Dancey and WOTC offered the OGL and SRD, suddenly there was a safe harbor.

Take away the safe harbor and only the most successful open gaming companies can afford to protect their rights after lawyers sink their teeth in. But we've already seen that those companies would rather take open gaming away from WOTC's grubby paws with new works under a new license than deal with a bad faith entity that erased 23 years of goodwill overnight. Who can blame them?

This makes little sense to me.

If the OGL was only ever a sign of "good faith" from WotC, then why bother dressing it up in legal language? Why pretend there's a contract if no one actually believed there was one?

Conversely, if the OGL was a genuine legal safe harbour - which I think is the better analysis - then why abandon it as soon as the weather gets rough?

As far as "taking open gaming away from WotC's grubby paws", my understanding is that for most 3PPs the point of publishing D&D-adjacent works is to benefit from D&D's market preponderance. It's always been possible to create new RPGs and licence them in an open fashion, but presumably most 3PPs didn't do this because they doubted they would have many customers.

I'm surprised after years of reading on ENworld how dominant and superlative D&D is as a RPG, that people now think that they can make more money selling non-D&D-adjacent works.

 

[ScYork]

Forgive but never forget!
Keep them on a short leash, so they don't misbehave all of a sudden. This is what you get when you have a chaotic evil member of the party!

 

[Matt Thomason]

@Matt Thomason

I think a lot of the discussion around this issue, and around ORC, seems to be driven by some confusion about the legal issues.

If X work is derivative of WotC's, then X is liable to a copyright infringement suit from WotC unless X has a licence. The only licence that seems relevant to me in this respect is the OGL v 1.0/1.0a.

If X's work is not derivative of WotC's, then the opinion of WotC about whether or not they have a licence with X, in respect of WotC's copyright, is irrelevant. X can publish away. And if X wants to licence their work to Y on the terms of the OGL, the only risk in doing that is that WotC might complain that X and Y are reproducing WotC's copyrighted licence text.

So the only reason for moving to ORC that I can see is to avoid reproducing WotC's copyrighted licence text. Whether that move is sensible depends on what the risks are of reproducing that text, compared to the costs of losing all the OGC under the OGL v 1.0a.

Hmm.

Lets say in this case I am Z. I have a work that is derivative of X,Y, and W, licensed under all three via the OGL. I have a couple of paragraphs lifted directly from W's SRD, a class from a book by X, and a spell from a PDF by Y.

Now, I am assuming in this case I have three seperate OGL licencing arrangements here with three seperate originators for three original works (in addition to all the works they may have referenced in those works).

I am now concerned that while X and Y are happy with me, W may try and throw their considerable weight at me for the use of their copyrighted SRD material, of which my, X, and Y's work is all derivative.

I feel more confident in this instance deciding that from now on, I'm going to work with an SRD by another company (P) altogether, preferably under a license which is owned by a neutral party to reduce the risk of P attempting to unilaterally change the terms. I will no longer use material from X or Y, unless they release something under this new license, and wish to make no further business relationships with W at all because I no longer trust them to follow the terms of our previous agreement and would prefer to avoid it ever becoming a legal issue.

My move to ORC in this case is to avoid both W's copyrighted license text and their SRD in future. I no longer wish anything in this new work to be derivative of W's. There's a pretty good chance that I will look for P to be a company that has an SRD that has no historical connection whatsoever to W's work, although I might investigate the possibility that P's SRD does have some historical connections but nothing copyrightable. Admittedly I feel more comfortable with the former, but if P is confident enough to go to court to defend it, I may consider the latter.

EDIT: Further to this is that I now consider W to be potentially hostile to my use of the license we agreed to. I do not want to fight this in court, and am far more comfortable working in relationships with companies that want me to be in that relationship with me as opposed to one that appears to be making moves to push me out or a relationship it regrets making. If W doesn't want me on board, no matter what the legal status, that's going to be very uncomfortable from now on with them potentially watching for the slightest reason to push me away. No thanks, not willing to work like that.

 

[pemerton]

Hmm.

Lets say in this case I am Z. I have a work that is derivative of X,Y, and W, licensed under all three via the OGL. I have a couple of paragraphs lifted directly from W's SRD, a class from a book by X, and a spell from a PDF by Y.

Now, I am assuming in this case I have three seperate OGL licencing arrangements here with three seperate originators for three original works (in addition to all the works they may have referenced in those works).

I am now concerned that while X and Y are happy with me, W may try and throw their considerable weight at me for the use of their copyrighted SRD material, of which my, X, and Y's work is all derivative.

I feel more confident in this instance deciding that from now on, I'm going to work with an SRD by another company (P) altogether, preferably under a license which is owned by a neutral party to reduce the risk of P attempting to unilaterally change the terms. I will no longer use material from X or Y, unless they release something under this new license, and wish to make no further business relationships with W at all because I no longer trust them to follow the terms of our previous agreement and would prefer to avoid it ever becoming a legal issue.

My move to ORC in this case is to avoid both W's copyrighted license text and their SRD in future. I no longer wish anything in this new work to be derivative of W's. There's a pretty good chance that I will look for P to be a company that has an SRD that has no historical connection whatsoever to W's work, although I might investigate the possibility that P's SRD does have some historical connections but nothing copyrightable. Admittedly I feel more comfortable with the former, but if P is confident enough to go to court to defend it, I may consider the latter.

In the scenario you describe, the move from OGL to ORC seems pretty secondary. (As you note, it avoids use of W's copyrighted licence text. I've seen no analysis of this other than my own, and so don't have a good sense of what others think about how big a deal this is.)

The real change is moving to the a new SRD which is definitely not licensed by W. Assuming the SRD in question is D-adjacent, where D is a RPG published by W, the lack of a licence from W seems to me to create a genuine risk of litigation from W, which would have to be defended on the basis of intellectual property arguments (because there is no argument that W has contractually agreed to licence D-ish stuff to P or X or Y or Z).

This is what I mean about moving away from the safe harbour.

 

[Matt Thomason]

In the scenario you describe, the move from OGL to ORC seems pretty secondary. (As you note, it avoids use of W's copyrighted licence text. I've seen no analysis of this other than my own, and so don't have a good sense of what others think about how big a deal this is.)

The real change is moving to the a new SRD which is definitely not licensed by W. Assuming the SRD in question is D-adjacent, where D is a RPG published by W, the lack of a licence from W seems to me to create a genuine risk of litigation from W, which would have to be defended on the basis of intellectual property arguments (because there is no argument that W has contractually agreed to licence D-ish stuff to P or X or Y or Z).

This is what I mean about moving away from the safe harbour.

Yes. This is why my first preference is something that has no relationship to W's SRD at all, but is completely different and has been developed seperately for decades without any problems.

The safe harbour thing is certainly a consideration. Any D-adjacent SRD in this case would need to persuade me they are absolutely iconclad in their seperation from W, and I'm likely to sit on the sidelines for a while to make sure that water is safe to dip my toes into. If it makes it past a year or two with no hostile actions from W, then maybe.

But honestly, working with something with no connection to W whatsoever, in any shape or form, seems the most comfortable option. Even if it isn't the most profitable!

Or - maybe, just maybe, it's time I dug those notes out and released something completely original myself that wasn't dependant on anything, and found a decent license to put that under.

 

[rcade]

If the OGL was only ever a sign of "good faith" from WotC, then why bother dressing it up in legal language? Why pretend there's a contract if no one actually believed there was one?

You're arguing against nobody with these questions. No one has taken the position that the OGL isn't a legal agreement. The OGL is a license offered by a party that showed good faith for 23 years, making it sensible to rely on by game publishers great and small.

That ended. If you have a strong belief that there's still a safe harbor, great. If others believe the same there will still be SRD-derived content coming out under the OGL. Open source software has multiple licenses in wide use. Open gaming can too.

 

[rcade]

None of the above is advice, and self-evidently its your prerogative to do what you want to do. But my general view is that decisions that are ostensibly motivated by legal concerns should be based on an accurate understanding of one's legal position, rather than the ludicrous amounts of misinformation that is being circulated at the moment, including many of the posts on this topic on these forums. With the exception of the posts by the lawyers on the "Lawyer PSA" thread that you have participated in, I would say that the majority of posts I've read expressing a view about the legal situation have been either wrong or just incoherent. And the most common cause of that is reasoning as if the OGL were a statute for which WotC is the legislator, rather than applying the correct analytical framework which is one of understanding the content and force of every private agreement that exists between every participant in a given OGC ecosystem.

Speaking from experience, having an accurate understanding of one's legal position requires the ability to repeatedly answer the question "have you sent another $5,000 for my retainer?" with the word yes. No matter how frequently you get asked.