• Resources are back! Use the menu in the main navbar. If you own a resource, please check it for formatting, icons, etc.

Frylock on the ‘Ineffectual OGL’

S'mon

Legend
Well, it also depends on the medium. I think a lot of people were pretty gobsmacked about the result of the Katy Perry Dark Horse lawsuit.
Yeah, sometimes it feels like music copyright is a law unto itself! I tend to emphasise to my students that in practice the courts take rather different approaches to the scope of copyright protection in different mediums, as you say. "Art" has the least scope & protection, "Music" & secondary copyright in Phonograms the most, and literary works are in between.
 

Umbran

Mod Squad
Staff member
I expect that's right. But you can have non-literal copyright infringement if you take too much of the detailed plot.
Yes. There is a point where plot details become creative content. As lowkey mentioned, there's a difficulty in discussing things that has so much depth of fiddly legal detail.
 

Beleriphon

Totally Awesome Pirate Brain
Yes. There is a point where plot details become creative content. As lowkey mentioned, there's a difficulty in discussing things that has so much depth of fiddly legal detail.
I was going to mention that. Akira Kurosawa wasn't happy with Sergio Leone over A Fist Full of Dollars. My understanding is that Leone ended up settling with Kurosawa over an undisclosed amount.
 

lowkey13

Exterminate all rational thought

S'mon

Legend
He seems to be sticking with his weird misinterpretation of OGL clause 1(e) as automatically excluding all listed elements, rather than those elements when specifically designated as Product Identity. I am slightly surprised his team of high powered lawyers have not pointed this out to him.

Edit: Reading his comment thread responses to accurate criticisms in part 3, he seems to think 'Product Identity' is about 'withdrawing stuff from the Public Domain." No, it is about the consideration WoTC receives from the licensee in exchange for the consideration they grant the licensee. By the licence the licensee can't use PI at all, even nominatively. In exchange they receive a broad licence to use a bunch of material WoTC owns the copyright in. That WoTC receive consideration under the licence is what makes the OGL (afaict) a valid contract in Common-law legal systems, rather than a bare promise by them.
 
Last edited:

lowkey13

Exterminate all rational thought
/contd. (and final, I hope!)

D. Understanding the real issue

When reading these various posts that are all over the place, I had to keep returning to the question of - what is the real issue? I alluded to this in the prior part (C); specifically, that Frylock doesn't seem to fully understand what he is discussing, and has allowed a general umbrage and hatred of WoTC and/or the OGL to infect what is purportedly a "legal" analysis.

In order to understand this, we have to work backwards; we need to start with the OGL. Frylock indicates in his analysis that the OGL is a "license" or a "contract." Now, this is the important part- to litigate the contract in court, you would require "privity" of contract, or a dispute between parties (or third-party beneficiaries) of the contract. This is something that Frylock has expressly disclaimed (he has refused to enter into the OGL)- this means that everything he is writing about the OGL is meaningless for his own case. This is something I will return to.

But here's the thing; let's assume that he was just doing an even-handed OGL analysis out of the goodness of his heart (as opposed to spite); the one thing that is usually needed in litigation is facts- that's why there are these doctrines like "standing" in the law. That's where he tends to get lost in the weeds when he is (mis)reading the OGL; the nearest I can understand is that he keeps circling around the idea of consideration.

So, brief detour-
The difference between a contract (enforceable!) and a mere gratuitous promise (not enforceable! um, well there's promissory estoppel, and, well, let's keep it basic...) is consideration.
I give you "something," and you give me "something." It's the "something" that is the consideration.

But here's where it gets tricky. Because contracts almost never fail for a lack of consideration.
Consideration can be money ($1).
Consideration can be an object (a car, or the proverbial peppercorn).
Consideration can be the granting of something intangible (the right to walk across my property).
Consideration can be, well, forbearing from a right (I won't sue you, or I won't build a fence).

As most people quickly realize, consideration is pretty easy to find! Contracts can fail, or be litigated, for many many reasons, but a failure of consideration is almost never a winning strategy.

Two instances where there would be a failure of consideration are illegal contracts (murder for hire isn't enforceable, because "murder" isn't lawful consideration) or if there is no right to the consideration (you can't offer a boat you don't own; you can't agree to not sue if you never had the right sue).

Somewhat clear?

So generously construed, Frylock appears to be arguing that since WoTC isn't granting any rights (that they have no copyrights to give) there is a failure of consideration. Now, notice the following passage in the "update":

"Thus, if the OGL states consideration in the form of copyrightable expression of game rules, then WotC is attempting to leverage that copyright to prevent the alleged licensee from using public domain material. "

/facepalm. Do you see what happened here? The argument just moved; now, there isn't any question of consideration (there shouldn't have been!) but instead he is trying to say that the contract is "attempting to leverage[.]"

...but that's exactly what a contract is supposed to do. Everyone understands this, right? Contracts are bargaining- offer and acceptance.

"I will pay you $10, and you will not build a fence." Hey, wait a minute, you're unfairly attempting to leverage your $10 to keep me from building a fence! Um, yes. That's EXACTLY what that is. It's called a contract.

sigh

The reason this issue is conflated is because Frylock can't separate his personal issues with the OGL that predate what is happening now, with the new issue regarding the stat blocks; but to reiterate, the stat blocks are not under the OGL. The OGL has nothing to do with the stat blocks. Frylock is either infringing, or he isn't.

Which circles back to a difference in approach that Frylock should have as a purported "IP attorney" that I just don't see in his posts. The reason copyright claims have a certain in terrorem effect is not just because you might have to pay an attorney to defend you (although there is that), but because you might to pay the damages and the other side's attorney's fees. See Kirtsaeng, 136 S. Ct. 1979, 1989 (2016) (reversing Court of Appeals and remanding to determine if losing party would be forced to pay more than $2 million in attorney's fees even though position was reasonable); accord John Wiley & Sons, Inc., 327 F. Supp. 3d 606, 642-45 (S.D.N.Y ) (noting that willful infringement and outright copying, along with scattershot legal approach and litigation tactics, warrant fee and costs award of almost $5 million above the damages).

And so when you see a complete absence of actual legal analysis that you'd expect to find- you know, basic stuff like merger to defend the concept of expression and game mechanic or caselaw from the GPL (gnu is not unix) or other similar licenses that are exceptionally common and similar to the OGL or anything that indicate a deeper dive and wrestling with fact-dependent cases; instead I see a few references to cases that look like they were pulled from a 2L casebook, and I don't see anything regarding the mechanics of litigation (if your real concern was the OGL, why not enter into it, do a de minimis breach, and file a dec. action and thereby avoid the whole copyright issue?) you have to question the validity of Frylock's approach.

But I will end this by saying that, unlike Frylock, I do not claim to be an authority on all of the issues, and that copyright is incredibly fact-intensive. I just lack his certainty.
 
Last edited:

GreyLord

Adventurer
Legalities aside, the PR campaign isn’t strong :)

He seriously said that!?

They ALL agree with him...

Hmmm....interesting....

His evidence that I've seen of that seems more anecdotal from his own end...

Even if WotC didn't really have anything more in relation to do with this...part of me now sort of just wants Hasbro to lay on the pain just on principle.

This guy doesn't seem to know when to stop...or maybe that's what he wants....
 
Okay it took me a real while to translate some terms and trying to understand the context and deeper meaning of the whole affair. And very likely I am still wrong and misunderstood quite a deal of the whole affair. But after that rather time consuming effort, I got the following conclusions for me (and please correct me if I am wrong):
(As stated by others) Fyrlock thinks, that WotC is claiming copyrights/misusing copyrights for things they don´t have. May it be game rules, stats blocks, monsters, etc. based on whatever previous court decisions are there. So they, according to his thought model, can´t enforce something they don´t have nor have the rights to. Therefore the whole copyright claim by WotC is not justified in his view and his publication of those stat blocks don´t violate copyrights at all.
The OGL is worthless according to him, since it robs possible designers/publishers of rights they would have, since WotC is misusing the copyright laws by stating, that certain parts of their game are Intellectual Property (Or at least I get the impression). And he thinks this is a misuse of copyright laws.
I don´t understand, where the misuse is, when WotC says, you can publish material as long as you don´t include those IP parts. Now the only point he may have is, that perhaps certain monsters or other parts are at a small chance not the IP of WotC and therefore the "offering" of the OGL and SRD is not enforceable, since those parts (where he assumes WotC has no copyright on) of that "offering" is rendering the whole "offering" (perhaps called a contract) meaningless.
And now I wonder, if Fyrlock published one of his stat blocks for such IP considered monsters as the Githyanki, Mind Flayer, etc. The only question is, and perhaps that is what he is counting on in case the affair goes to court, if those IP "protected" monsters are really covered by some copyright or IP laws and are really the IP of WotC (thanks S´mon for the remark about that). And if they are not IP protected, would they make the OGL/SRD meaningless and their publication perhaps in a more dramatic escalation turn the whole D&D game into a kind of Public Domain material (=WotC own mistake in his assumption?)? I understand, that if this would be the case you can´t still simply paste and copy the rulebooks and publish them as their own.
To sum it up I simply get the impression, that Fyrlock is trying to prove, that if one part of a contract/offering is not valid under existing laws, than the whole contract/offering is not enforcable (which is usually the case in laws of my home country. Therefore a clause in every good contract here states, that if one part of a contract is wrong, the whole contract in itself is not nullified by that wrong part (literal translation)).
 

lowkey13

Exterminate all rational thought
Therefore a clause in every good contract here states, that if one part of a contract is wrong, the whole contract in itself is not nullified by that wrong part (literal translation)).
14. Reformation: If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

(Normally, you'd see more "belt and suspenders" in a license/contract such as this; for example, the shrink wraps and EULAs. But to their credit, WoTC used a very simple, easy-to-understand agreement ... best practices would be to have this as a "reformation and severability" clause, but this should have the same effect w/r/t your concerns.)
 
Last edited:

seebs

Explorer
Notably, I am unable to find these sorts of arguments (merger of expression and ideas, for example) in Frylock's piece- you know, the kind that would make me take it more seriously. (Weirdly, a commenter even pointed this out to him)
Yeah.

I'm a bit reminded of one of the famous parody cases, 2 Live Crew's case over Pretty Woman, where the court eventually said "you did not make your case at all, but it happens that you're right, here's why". I think he's failed to make his case coherently, but there's an actual credible argument to be made. I actually got into a bit of a heated argument with Dancey about this on Usenet, back when OGL first showed up, because he was pushing very aggressively the idea that WotC owned the use of the word "Strength" to refer to character stats, and that if someone simply made an adventure that referred to the D&D rules, that might potentially be infringement, and thus they should sign up to the OGL and get permission to use that material in exchange for agreeing not to use the Product Identity stuff. My argument was similar-ish to Frylock's, but I actually tried to argue the case coherently. (Still not a lawyer, though.)

My basic stance is that, in terms of the intent of copyright law, it seems pretty clear that a module that uses the D&D terminology to refer to the D&D rules, but does not reproduce those rules, and does not use the Named Characters And Settings, is not actually infringing on anything, and is only "derivative" of the stuff that is absolutely not protected -- the rules-as-abstraction, not the text of the rules. And thus, there's no need for anyone to make a special agreement that "entitles" them to make such a thing, and the agreement exists only to fast-talk people into agreeing to arbitrary restrictions, some of which would not apply otherwise, some of which probably would.

That said: If I were gonna make modules, I'd probably go along with it, not because I think it's necessary, but because I think it's socially-desireable for them to say "hey we want to create an environment where people can unambiguously have agreement that they're allowed to do things". It's not about whether they would be right to sue, or would win the suit, or whether I think they would; having a clear agreement of "we think this is definitely okay and agree that you're allowed to do it" seems like a good thing.
 

lowkey13

Exterminate all rational thought
That said: If I were gonna make modules, I'd probably go along with it, not because I think it's necessary, but because I think it's socially-desireable for them to say "hey we want to create an environment where people can unambiguously have agreement that they're allowed to do things". It's not about whether they would be right to sue, or would win the suit, or whether I think they would; having a clear agreement of "we think this is definitely okay and agree that you're allowed to do it" seems like a good thing.
So, it's easier to understand these things when there are specific facts to deal with. I would only, and briefly, say that:

a. I think it is good that WoTC is providing a known safe harbor for people to do things; and

b. If I were to "do things," I would use the known safe harbor, because life is too short to litigate (when I'm not getting paid for it); and

c. In addition, the downside to losing a lawsuit to a well-financed entity (Hasbro) is very great, and cowardice saves a lot of money ... not to mention the time and the stress; and

d. while I think that there is a fair amount of latitude that you could get by publishing D&D-compatible material, I think that copying entire stat blocks AND large chunks of descriptive text (as it appears Frylock has done) is, in my estimate, probably not within that latitude ...

But, hey, let's see if his bravado continues. Perhaps! I mean, every single attorney he's talked to has told him how awesome his argument is, right?
 
Last edited:

Jer

Adventurer
I actually got into a bit of a heated argument with Dancey about this on Usenet, back when OGL first showed up, because he was pushing very aggressively the idea that WotC owned the use of the word "Strength" to refer to character stats, and that if someone simply made an adventure that referred to the D&D rules, that might potentially be infringement, and thus they should sign up to the OGL and get permission to use that material in exchange for agreeing not to use the Product Identity stuff.
I remember those days and I remember thinking that Dancey was being overly aggressive in his push for the OGL. But also I remembered how TSR would throw cease-and-desist orders around like they were kleenex before they went bankrupt and prevent people from publishing things on very similar claims just because they had lawyers and the smaller guys didn't. So it didn't seem outside the realm of possibility simultaneously that a) Dancey was wrong and b) nobody would ever be able to afford to litigate it.

The OGL was put out there as a "detente" with the Internet community - you agree to follow these minimal rules regarding our "Product Identity" (note that it was never trademarks or copyright that they asked people to respect - it was specifically a collection of assets that there is in fact some question of how much ownership they can claim over them) and we'll let you publish inside those rules freely. If you don't want to use the OGL okay, but then the spectre of a lawsuit is going to hang over you and if you cross a line Wizards doesn't like then they're likely to come after you and it'll be a potentially costly lawsuit.

(Are folks around here old enough generally to remember the bad old days of T$R on Usenet? These days I think people remember TSR fairly fondly, but the early-to-mid 90s TSR before it went bankrupt was not a cuddly company that people had good feelings for precisely because of how they treated fan works, let alone other publishers who they thought were creeping into "their" territory.)
 

Advertisement

Top