Front Page GSL Q&A

[2WS-Steve]

Wanted to say that the little Q&A on the front page is great and should help tamp down (though never wholly remove) the conspiracy theories and rumors flying about.

But this quote from the end, seems to give the wrong impression:

WotC can revoke the license at any time!

Yes. Yes, they can. That is, unfortunately, a risk you have to take if you use the GSL: unlike the OGL, it is revocable, much like the d20 STL was.

But what does that mean? Well, as you know, the d20 STL has been revoked; third-party-publishers have been given a 6-month grace period to sell off backstock, at which point they will not be able to sell products released under that license. In practice, that means taking the d20 logo off the books, along with a couple of lines of compatibility text. So a revocation of the GSL, while inconvenient, isn't quite as drastic as you may think at first: you'll need to remove some brand-related stuff, but by-and-large you should be OK. You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues. For print publishers with large stock, this could prove to be a problem; for PDF publishers, it's more just an inconvenience - but a surmountable one.

I bolded the part that I think could be misleading.

Under the d20 STL revocation I'll need to pull the logo off some covers and remove some licensing text from the legal part of my books -- but I'll still be able to sell them.

Under a GSL revocation in all likelihood and I figure for almost any product released under it, you're just going to have to pulp everything and scrap the data files for PDFs.

At best what you do is pull the D&D logo and hope that regular copyright allows you to have a book packed with references to the D&D rulebooks. But the Q&A already points out how shaky relying on regular copyright is -- and that'd be even worse for a book that wasn't designed to "file the serial numbers off" and was rife with D&D terms such as power names, spell names, and so on.

Anyway, I'm almost certain that revoking the GSL will mean that any book released under the GSL is dead, dead, dead. Not at all like the d20 STL.

However, you might be able to salvage some material from the GSL'd book to use in a later publication -- though, even in that case due to the "infinite no OGL clause", you won't be able to recycle that material into an OGL'd book.

 

[Morrus]

Yeah, that's what the "You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues" phrase is supposed to address. Maybe I should expand on that, rather than burying it in the paragraph - I just didn't want to be sidetracked into a copyright conversation. I'll bold it; that should help.

[Edit - italicised it and expanded it slightly to: "You should be aware that there's no "open" SRD this time round, though, so you'll have to be careful about general copyright issues - but a general copyright discusison is far beyond the scope of this FAQ, and it's what you should be hiring a lawyer for."]

 

[Haffrung Helleyes]

I agree with 2WS-Steve. I think what you wrote regarding the termination clause significantly understates the risk to third party publishers.

If WoTC exercises the termination clause, they have no other license to fall back on. They essentially lose all rights to their product line, with no legal recourse.

This is in direct contrast to the situation which exists with the d20 STL/OGL.


Ken

 

[keterys]

Hmm, couldn't they then go and release the product for a different system - Runequest, say? Or just create a new system to go with it?

If their product is, say, a bunch of feats, there's not a lot of gain there, but any world or something would work, aye?

 

[2WS-Steve]

Hmm, couldn't they then go and release the product for a different system - Runequest, say? Or just create a new system to go with it?

They could release it under a new system under no license or under some other open license.

But Mongoose actually did release Runequest under the OGL, so that would be out (unless you made some other arrangement).

The unfortunate bit is that the OGL is the de facto RPG standard due to long use and extensive material released under it. There's pretty much no chance that some other open license will become the new standard because gamers and game publishers are ornery and prefer their own slight variation on an open license to piggy-backing on somebody else's open license.

 

[Positronica]

The first question in the FAQ might not be 100% accurate.

Section 10 of the GSL requires the Licensee to recognize all "Wizards Intellectual Property". The end of section 10 then defines this to include everything within the core rulebooks and the SRD. Furthermore, section 10 requires that the Licensee agree not to challange any of this, and on top of that, section 10 is one of the sections that survives even after the license's termination.

In other words, if Wizards chose to read section 10 in a very liberal manner, they could claim that by signing the GSL you are recognizing their "ownership" of even basic fantasy elements, such as the concept of dragons, demons, golbins, etc... and since section 10 lasts even past termination of the GSL, they could sue you, even decades later if you tried to make use of any of those basic fantasy elements.

 

[Morrus]

In other words, if Wizards chose to read section 10 in a very liberal manner, they could claim that by signing the GSL you are recognizing their "ownership" of even basic fantasy elements, such as the concept of dragons, demons, golbins, etc... and since section 10 lasts even past termination of the GSL, they could sue you, even decades later if you tried to make use of any of those basic fantasy elements.

Ah, that's the "WotC owns the word "the" argument"! It's in the core Rulebooks, right?

I think that the important part of the section is "“Wizards Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards"; however, I can see how that is open to interpretation your way.

I didn't put that in my FAQ because - frankly - it's not clear-cut enough that I'd want to comment without an IP lawyer; I only wanted to address the clear stuff and the common misapprehensions. This little issue is far too subtle for me!

More worrying, I think, is "nor will Licensee attack the validity of this License".

 

[Positronica]

Ah, that's the "WotC owns the word "the" argument"! It's in the core Rulebooks, right?

I think that the important part of the section is "“Wizards Intellectual Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards"; however, I can see how that is open to interpretation your way.

I didn't put that in my FAQ because - frankly - it's not clear-cut enough that I'd want to comment without an IP lawyer; I only wanted to address the clear stuff and the common misapprehensions. This little issue is far too subtle for me!

More worrying, I think, is "nor will Licensee attack the validity of this License".

I agree that its not a very clear-cut section, and that Wizards would have a tough time making headway with it in court, however the opening would still be there. If Wizards were to sue another publisher who had never been a licensee of the GSL, over the use of something trivial such as dragons or demons in a fantasy based game, they would most likely lose in court, and the defendant would have a chance at countersuing for damages and or legal expenses. If the defendant however had at one time been a GSL licensee, then Wizards would be able to use section 10 of the GSL as the basis for their suit, and while they would still most likely lose in the end, the defendant would have a much harder time making any headway with a countersuit. I think that's the biggest risk of section 10 is that it gives Wizards an opening to file what would otherwise be considered a baseless or frivilous lawsuit.

Also, I seem to remember TSR at one point threatening legal action against anyone who used the concept of "dragons" in a fantasy game, so its not like such behavior isn't unheard of.

 

[Haffrung Helleyes]

Yeah, and look at what they did to Gygax.

Ken

 

[pemerton]

I agree that its not a very clear-cut section, and that Wizards would have a tough time making headway with it in court, however the opening would still be there. If Wizards were to sue another publisher who had never been a licensee of the GSL, over the use of something trivial such as dragons or demons in a fantasy based game, they would most likely lose in court, and the defendant would have a chance at countersuing for damages and or legal expenses. If the defendant however had at one time been a GSL licensee, then Wizards would be able to use section 10 of the GSL as the basis for their suit, and while they would still most likely lose in the end, the defendant would have a much harder time making any headway with a countersuit. I think that's the biggest risk of section 10 is that it gives Wizards an opening to file what would otherwise be considered a baseless or frivilous lawsuit.

If this opinion is based on experience as a lawyer, then I'll defer to practical expertise. But my intuition is to be a little doubtful as to your claim.

Clause 10.1 does not vest any special right of suit in WoTC. It does two things that I can see.

First, it simply expresses the licensee's a recognition of Wizard's exlusive rights and interests in any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right owned by Wizards, in each case whether arising under the laws of the United States or any other jurisdiction. The clause states that this includes "all content contained within the Core Rulebooks and all Licensed Materials, including without limitation the SRD", but I would think that this has to be read within the context of the clause as a whole: given that the recognition is of rights and interests arising under law, and that no law gives WoTC any property rights in the words "the" or "dragon", then the most natural reading is that these individual words do not fall within the meaning of the phrase "content contained within the Core Rulebooks".

I think that the main function of this aspect of clause 10 is to ensure that the licence is not interpreted as any form of assignment of, or creation of, IP rights in the licensee.

Under the clause, the licensee also promises not to use any of that IP without licence from WoTC.

If a licensee went on to publish a non-licensed product that involved dragons, WoTC could try and sue them either for infringing WoTC's trademarks, or for breaching their contractual obligation not to make use of WoTC's IP. The first argument would seem a little pointless: given that clause 10.1 does not require the licensee to recognise any rights in WoTC beyond those created by law, I don't see that WoTC could gain any advantage by pleading clause 10.1 instead of whatever law they are arguing their trademark rights arise under.

The second argument is a little more interesting, because it precludes the (former) licensee from using WoTC's IP even in circumstances where that would otherwise be lawful. This would therefore preclude (for example) publishing a product which said "Compatible with Dungeons and Dragons".

But I don't see how the clause would encourage frivolous suits by WoTC. From WoTC's point of view there would certainly be nothing frivolous about stopping a publisher making the compatibility claim, for example.