Electronic Freedom Foundation weighs in on the OGL!


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Pedantic Grognard
One thing I was disappointed by in this -- it simply said "Other open licenses like Creative Commons licenses and the GPL are clear that the rights they grant are irrevocable."

This is true about the GPL version 3, yes. But it is not true about the GPL version 2, which is, for example, the version of the GPL used by the Linux kernel. Nor is it true about any version of the BSD license, and BSD code was extensively used (at least at one point) by Apple in its OSes.

So by narrowly talking about revocation of the OGL 1.0a in specific, rather than evaluating what license revocability means in general, the EFF is clearly failing to address what is a serious issue with the potential to affect pretty much every server on the Internet and every smartphone in existence.

I, well, I expected better from them.
 

CapnZapp

Legend
I, well, I expected better from them.
I don't see what we can ask of them. They're basically saying "noone's gonna fight this because they do have the legal ability to revoke the OGL".

And since they're not in the roleplaying business, it's not that they can state anything actually uplifting. It's not their job to now create the (open) rulesets that will compete directly with D&D One at GenCon 2024.

Basically, they only remark it is high time to jump ship. They could have hid their surprise anyone ever agreed to the OGL, but whatever. Apparently, they weren't roleplayers twenty years ago overjoyed WotC let them into their walled garden to play with their toys.
 


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Pedantic Grognard
I don't see what we can ask of them. They're basically saying "noone's gonna fight this because they do have the legal ability to revoke the OGL".
Yes, that's what they're saying. Which would mean that there's a huge disaster looming over the software world and they're doing nothing about it.

If the EFF truly believes the OGL can be revoked because it didn't use the magic word "irrevocable", then the EFF believes that the GPL 2 and the BSD licenses can be revoked for the same reason. Which means they think, if, say, Linus Torvalds got hit by a bus tomorrow, and his estate, as heirs of his copyright, decided to revoke the GPL 2 with regards to his contributions to the Linux kernel, the revocation would be perfectly valid.

If that is the situation, it's imperative that all GPL 2 and BSD code be relicensed or replaced with code under other licenses as soon as possible, and the EFF should be shouting that from the rooftops about that immediate imperative.

If it's not the situation, then WotC can't revoke the OGL 1.0a, and the EFF statement was wrong.

In either alternative, the EFF's behavior is disappointing.
 

This, I think, is the most interesting bit:

Here’s a different version [of an Invisibility spell]:

Kit’s Shroud of Concealment spell: Incant “stars’ blight upon all sight” and touch your target. When you do, the spirits of the constellations descend to wrap them in an unearthly mist that makes them invisible for one hour. You may send the spirits home whenever you wish, ending the spell. The spirits depart automatically if your target makes an attack or casts a spell. This spell was developed by the Sorceress-Lawyer Kit when she negotiated the contract between the Tower of Sorcery and the Constellation Spirits in the year of the Fallen Mountain.

If all that additional text is just fluff with no game consequences, this version probably contains some elements that are copyrightable.

However, if other game elements trigger when spirits are present, or if someone says a rhyme, or based on other fictional elements described here, then the uncopyrightable game system might “merge” with the text here so that it wouldn’t be infringement for someone to reproduce this text entirely. Courts are essentially interested in whether the uncopyrightable elements of the work remain available for the public to use, or if the copyright owner is effectively monopolizing them because there simply aren’t many different ways to describe the uncopyrightable ideas or system.

So, the spell is called invisibility. But it's on the Wizard spell list as just "invisibility", and it's in several monster, NPC, and magic item entries. So the name merges into a game mechanic, because the game uses it as a game term. The same is true for "advantage" and "armor class" and "Strength" so on. Names used as game terms become game mechanics when they're used by other game mechanics. They do that everywhere.

Good lord. I used to think the SRD was 90% unprotected by copyright, but now I think the SRD is basically 99% unprotected by copyright, and the only parts of it that are... are the parts we probably don't care about. Like if you look at the spell description for Invisibility, the most copyrightable element is the description of the material component as an eyelash stuck in gum.

So this should be totally uncopyrightable:

Invisibility
2nd level Illusion spell

Casting Time: 1 Action
Range or Area: Touch
Spell Components: Verbal, Somatic, and Material
Duration: Concentration, up to 1 hour, but see text

When you cast this spell and touch a creature, the creature becomes invisible for the duration. Worn and carried items also become invisible, but only as long as they remain carried or worn by that creature. The spell ends immediately if the target attacks or casts a spell.

If you cast this spell with a spell slot of 3rd level or higher, you may target one additional creature for each spell slot above 2nd level.

Everything there merges because all the terms used are used as mechanics: Invisibility, 2nd level spell, illusion, spell, casting time, action, range, area, touch, components, verbal, somatic, material, duration, concentration, cast, invisible, target, attack, spell slot, 3rd level spell slot. All you've got left are adverbs, prepositions, and conjunctions.
 

Uta-napishti

Adventurer
I thought it was a decent article, she clearly knows both D&D and the law, and compares the pieces of a license to the invisibility spell.

It's just an issue of different agendas. What I think her agenda is is to encourage folks to move en masse to a more bulletproof license. This would be a good idea if we are all starting over without cooperation from WoTC. To advance that agenda, she downplays the value of the OGL and is skeptical of its protections. She's right as far as that goes.

My agenda is somewhat different because I do value three things about the OGL license: 1) the peace between WoTC and the community that bilateral buy-in to the OGL 1.0a brought, 2) the compatibility between corporate and independantly sponsored work that largely worked to benefit everyone and 3) the value of existing material released under the OGL 1.0a. Because of these things, I would be happy to return to a refreshed and irrevocable-ized OGL lisence in the future.

Anyone who has read the GPL would recognize that the OGL 1.0a wasn't a particularly open or clear license, but what it did have was enough buy in from both the trademark owning corporation and the community to create a very fertile and profitable creative space. This was it's value -- as a peace treaty all could gather around to a large part in compatibility and apparent legal security.

And create we did! Despite the limits on claims of D&D comparability that kept WoTC on top in terms of "official" D&D books, most creators slapped an unprotected 5E moniker on their book and found their audience. Now, we have huge sunk investments in OGL 1.0a material. Those of us who own the copyrights could reissue the parts of that material that we own under another license now, but in friendliness to our readers, we had often mixed in many things from the SRD into our work (Monsters, Spells etc... so that the DM reader wouldn't have to crack the player's handbook to run an encounter. Picking all that stuff out, or fighting WoTC over whether it is fair use is too much work, or impossible in the case of physical books, so all of that material is now commercially dead if the OGL 1.0a is revocable.

For the record, I don't agree that the OGL 1.0a will be declared revocable by a court. I think it it gets that far, it will be upheld because of the clear intention to make it irrevocable despite the absence of what ( in the years since ) has become somewhat of a magic word.
 
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Yes, that's what they're saying. Which would mean that there's a huge disaster looming over the software world and they're doing nothing about it.

If the EFF truly believes the OGL can be revoked because it didn't use the magic word "irrevocable", then the EFF believes that the GPL 2 and the BSD licenses can be revoked for the same reason. Which means they think, if, say, Linus Torvalds got hit by a bus tomorrow, and his estate, as heirs of his copyright, decided to revoke the GPL 2 with regards to his contributions to the Linux kernel, the revocation would be perfectly valid.

If that is the situation, it's imperative that all GPL 2 and BSD code be relicensed or replaced with code under other licenses as soon as possible, and the EFF should be shouting that from the rooftops about that immediate imperative.

If it's not the situation, then WotC can't revoke the OGL 1.0a, and the EFF statement was wrong.

In either alternative, the EFF's behavior is disappointing.

No. The rule isn't "without this magic word, it's revokable". It's "without some terms limiting the ability to revoke, it's probably revokable." The GPL v2 doesn't use the word "irrevokable" like GPL v3 does, but there's significant other text that effectively makes any attempt to do so unlikely to succeed. That language or something similar to it is not present in the OGL. The OGL has basically no text to it at all, especially compared to the GPL v2.
 
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CapnZapp

Legend
Yes, that's what they're saying.

In either alternative, the EFF's behavior is disappointing.
I don't get why the EFF is supposed to get its knickers in a bunch over a role-playing license, especially since that license has been dodgy from the start. From a legal point of view.

All we could have expected is a bit more sympathy. But EFF isn't writing this as roleplayers, who valued the OGL for the creative freedom it provided.

You connecting this to the greater world of software is just bizarre.
 


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