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Frylock's Gaming & Geekery Challenges WotC's Copyright Claims

Staffan

Adventurer
WotC is free to re-release the same material under a different license. But, that new license is merely another option that may be used, not must be used. They cannot prevent anyone from using the older one, because WotC cannot control whether a licensee got a version of the text with the new or old license.

And, in fact, WotC did this - back in the day, 3e was licensed under the OGL, or the d20 license, depending on whether the publisher wanted ot use the d20 logo and actively claim compatibility with D&D or not.
That's not exactly true. The d20 System Trademark License was a thing layered on top of the OGL.

The OGL has a clause that says, paraphrased, "You may not use any other party's trademark in conjunction with a work containing Open Gaming Content, including as an indicator of compatibility, without a separate license covering the use of the trademark." This means that you're not allowed to say "An adventure for Dungeons & Dragons" or "Requires the use of the Dungeons & Dragons Player's Handbook" or things like that. The d20 System Trademark License was that separate license, saying "You get to use the d20 System Logo and say that your stuff is for the d20 System, and refer to the core books in a limited fashion, but in exchange you can't make your thing into a separate game, and you can't change certain definitions."

The d20 STL was not irrevocable, and was changed multiple times (most famously to block the Book of Erotic Fantasy) and eventually revoked. That's why you today see things like "For use with the 5th edition of the world's most popular role-playing game".
 

Morrus

Well, that was fun
Staff member
The d20 STL was not irrevocable, and was changed multiple times (most famously to block the Book of Erotic Fantasy) and eventually revoked. That's why you today see things like "For use with the 5th edition of the world's most popular role-playing game".
I’m waiting for the first person to publish a “DnD” book. I’ll be fascinated to see what happens. Its such a popular Twitter hashtag that it’s arguably nearly as recognisable as ‘D&D’ on social media, and indistinguishable when said out loud.
 
Say Joe Writer creates the "Open Author's License". Its terms are equivalent to putting the work into Public Domain, with the one stipulation that the work must include a frontispiece reading, "Many thanks to Joe Writer for his material," with the work. Joe publishes a book, including v1.0 of this license.

Then, the week after Joe creates version 1.1 of the Open Author's License, with the same stipulations, but an addition that the licensee must also pay $100,000 per month to Joe Writer or his estate, in perpetuity (or, include any other onerous stipulation that you wish - for the example, all it needs is to be onerous). Joe publishes a single copy of the book with this new license.

Sam Author comes across the work with version 1.0, and uses it. Joe comes up and now claims that he's retracted 1.0, and that Sam now owes several hundred thousand dollars worth of pack payments, or other imposition of the onerous terms, or face lawsuit.... Which is, of course, complete nonsense. You cannot change contract terms without the permission of the parties in the contract!

So, no - if you openly distribute a work with a license, and allow the licensee to enter into that license without an express discussion and signed agreement with you first, the license can't be changed in the background, separate from the work it applies to. The OGL happens to make this expressly clear, but it would be true regardless.
I'm not sure I quite follow your example. But if Joe publishes an offer, and then retracts it, the retraction takes effect even if copies of the (former) offer are still in circulation.

There may be an issue of estoppel, but - at least in Australian law, which is my home jurisdiction - I'm not sure that a gratuitious offer of the sort you've described would generate reasonable reliance.

In your example of Sam, of cousre Sam wouldn't owe Joe money - Sam never entered into a contract to pay for a licence to use Joe's work. But that doesn't mean that Sam's use of Joe's work is licensed, if Joe has retracted his offer.
 
Although I wanted to keep myself out of this (thanks for the mild and very gentle reminder/remark ;)), and since I thought my english is basically not bad, but it gets too complicated for my limited understanding: The second part of Fyrlock's posting is out and to be honest, although I think I can converse on a lot of subjects in my second language, I have to admit, that basically I don´t understand the argumentation. So for those folks better educated than me on the point: read and explain to us.
 

S'mon

Legend
Although I wanted to keep myself out of this (thanks for the mild and very gentle reminder/remark ;)), and since I thought my english is basically not bad, but it gets too complicated for my limited understanding: The second part of Fyrlock's posting is out and to be honest, although I think I can converse on a lot of subjects in my second language, I have to admit, that basically I don´t understand the argumentation. So for those folks better educated than me on the point: read and explain to us.
All I can say is that it doesn't look like something written by an IP lawyer or by someone particularly familiar with IP law.

I am strongly against the kind of over-extensions of IPR I have seen argued for by lawyers & rightsholders, and occasionally found for in judgements. But this... well I feel it probably harms the cause of reasonable limits on the scope of IP protection by creating an easily dismissable argument. If argument is the right word.
 

Beleriphon

Totally Awesome Pirate Brain
I’m waiting for the first person to publish a “DnD” book. I’ll be fascinated to see what happens. Its such a popular Twitter hashtag that it’s arguably nearly as recognisable as ‘D&D’ on social media, and indistinguishable when said out loud.
I actually wouldn't be surprised if WotC has a trademark on that, and would actively enforce their trademark rights if somebody tried it.
 

MoonSong

Rules-lawyering drama queen... Be nice plz n_n
I’m waiting for the first person to publish a “DnD” book. I’ll be fascinated to see what happens. Its such a popular Twitter hashtag that it’s arguably nearly as recognisable as ‘D&D’ on social media, and indistinguishable when said out loud.
I like to think about whether "The End D" or "Dee-en-Dee" would cut it. Maybe some Spanish "Calabozos y Dragonezz!!" or "Denede"
 

Umbran

Mod Squad
Staff member
The d20 STL was not irrevocable, and was changed multiple times (most famously to block the Book of Erotic Fantasy) and eventually revoked. That's why you today see things like "For use with the 5th edition of the world's most popular role-playing game".
Fine, let us set my extremely rudimentary license example aside. Let us concentrate on the examples we have.

The d20STL was revocable, said so explicitly, and included text in the license to cover its revocation.

The OGL was not revocable - it says it is explicitly perpetual, and that for any given reference document, you could use any version of the license that reference had been previously published under.

Pretty clearly, the difference is intentional. There can't be a whole lot of question that WotC didn't know the difference. Why can I believe the d20STL, but not the OGL?

And, before you repeat that an entity cannot make an offer that cannot be rescinded, I have a counter-example: Public Domain - the license that is the complete offering of reproduction of the work, in whole or in part. Once you have released a work into the Public Domain, you cannot recall it, and neither can anyone else. It then follows that other irrevocable licenses may be constructed out of "Public domain, except...," with varying levels and forms of exception, but holding to the same point that the license offer cannot be removed.
 

LordEntrails

Explorer
One thing I think people have missed or forgotten (or maybe I'm wrong in assuming I know what his statblocks contain...) with Frylock's stat blocks is that they contain more than just the numerical values for the creatures. From what I read on his site, he originally created them to include content from both the MM and PHB. In effect he wanted a single location for all information on a creature, including spells that they could cast. i.e. not a link or reference to the spell and then needing to go look it up in the PHB.

So, his original intent was to take data from the MM, i.e. numerical values, and combine it with descriptive text from PHB. So, though the legality of what he has been discussed regarding teh 'data' portions have been discussed extensively, I still see no discussion regarding his copying and distribution of spell text.

I see no justification for his verbatim or paraphrased copying of spell text.

Also of note, Frylocks could have also tried to release his stuff under the Wizard's Fan Use Policy. But of course he didn't use that just like he didn't use the OGL.
 

Lanefan

Victoria Rules
And, before you repeat that an entity cannot make an offer that cannot be rescinded, I have a counter-example: Public Domain - the license that is the complete offering of reproduction of the work, in whole or in part. Once you have released a work into the Public Domain, you cannot recall it, and neither can anyone else. It then follows that other irrevocable licenses may be constructed out of "Public domain, except...," with varying levels and forms of exception, but holding to the same point that the license offer cannot be removed.
Interesting.

At GenCon a few years back (2015?) there was a seminar given about this sort of thing, by a couple of lawyers who (one must assume) knew something of what they spoke. I brought up the question of "What if someone waives copyright from day 1 with the specific intent of releasing [in my example, some original music] into the public domain for anyone to use (but not claim as their own) however they like?"

The answer I got boiled down to, in essence, "You can't do that."

It seems that - at least in the USA as of 2015 or so - you've got copyright on your original work whether you want it or not, and cannot intentionally release something into the public domain before the law puts it there (i.e. you've been dead for 75 years or whatever it is).
 
Fine, let us set my extremely rudimentary license example aside. Let us concentrate on the examples we have.

The d20STL was revocable, said so explicitly, and included text in the license to cover its revocation.

The OGL was not revocable - it says it is explicitly perpetual, and that for any given reference document, you could use any version of the license that reference had been previously published under.

Pretty clearly, the difference is intentional. There can't be a whole lot of question that WotC didn't know the difference. Why can I believe the d20STL, but not the OGL?

And, before you repeat that an entity cannot make an offer that cannot be rescinded, I have a counter-example: Public Domain - the license that is the complete offering of reproduction of the work, in whole or in part. Once you have released a work into the Public Domain, you cannot recall it, and neither can anyone else. It then follows that other irrevocable licenses may be constructed out of "Public domain, except...," with varying levels and forms of exception, but holding to the same point that the license offer cannot be removed.
Umbran, you've attributed a post to me that is not mine. Could youf ix that please?

As far as the irrevocability of the OGL is concerned, that is a term of the licence granted by someone who takes up the offer and enters into a contract.

It is not a property of the offer.

You are correct that the D20 licence did not create a perpetual licence in the same way.

You seem to be running together two things: the popular use of the phrase OGL to refer to WotC's standing offer to enter into licences; and the existence of a licence, having the terms of the OGL, between WotC and any other individual person/entity. Those latter licences are perpetual. The standing offer is not. And cannot be made so unless someone pays WotC to make it (thus making it a matter of contractual obligation to maintain the offer). No one has done that.

As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.
 
All I can say is that it doesn't look like something written by an IP lawyer or by someone particularly familiar with IP law.
I just had a quick skim of it.

As I understand the core of the argument, it's that you can't play the game without using/stating/reproducing stat blocks and/or spells, and for many of these there is only a finite and small range of ways of expressing them textually, and there can't be copyright in text that is the mere expression of a game rule, and therefore there can't be copyright in stat blocks and/or spells.

One implication of the argument seems to be that "Run Spot run" type children's books can't be copyrighted. Which seems implausible.

It also seems to rest on what, intuitively, seems an implausible (because overly broad) conception of a non-copyrightable game mechanic.
 

Greatwyrm

Been here a while...
As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.
We might have a distinction without a difference here. If the first generation licensees are required to continue the offer to all subsequent licensees, then it doesn't matter if WotC ends the offer or not. By your reasoning, once the SRD was reproduced by anyone other than WotC, that publisher would carry the offer forward in perpetuity AND be unable to rescind it. That horse left the barn years ago.
 

Morrus

Well, that was fun
Staff member
Umbran, you've attributed a post to me that is not mine. Could youf ix that please?

As far as the irrevocability of the OGL is concerned, that is a term of the licence granted by someone who takes up the offer and enters into a contract.

It is not a property of the offer.

You are correct that the D20 licence did not create a perpetual licence in the same way.

You seem to be running together two things: the popular use of the phrase OGL to refer to WotC's standing offer to enter into licences; and the existence of a licence, having the terms of the OGL, between WotC and any other individual person/entity. Those latter licences are perpetual. The standing offer is not. And cannot be made so unless someone pays WotC to make it (thus making it a matter of contractual obligation to maintain the offer). No one has done that.

As @S'mon has explained upthread I think more clearly than my attempt to do the same, every person who has entered into a licence with WotC having the terms of the OGL is contractually obliged to maintain a standing offer to all the world to allow the OGC that they have published in accordance with the licence to be used by others. The difference between these other people/entites and WotC is that the former do have a contractual obligation to maintain the offer, which arises from their contract with WotC that has the terms of the OGL.
The reason it’s irrevocable is because it’s viral. WotC ending the offer has no effect. You just use somebody else’s. Thus the phrase it’s “in the wild”. Doesn’t matter if WotC revokes it.
 
WotC ending the offer has no effect. You just use somebody else’s. Thus the phrase it’s “in the wild”. Doesn’t matter if WotC revokes it.
We might have a distinction without a difference here. If the first generation licensees are required to continue the offer to all subsequent licensees, then it doesn't matter if WotC ends the offer or not. By your reasoning, once the SRD was reproduced by anyone other than WotC, that publisher would carry the offer forward in perpetuity AND be unable to rescind it.
Both I and @S'mon have already made this point in posts upthread.

But it's not a distinction without a difference. It's about who you have contractual relationships with - who you have rights against and who has rights against you.
 

S'mon

Legend
How on earth do they not have that trademarked? I mean, I understand mechanically how it works, but who the bleep is in charge of this stuff?
It would not be a valid mark unless they offered goods and services under the marks. It would become revocable for non-use.

Now they could offer goods under the mark every 5 years (in UK/EU TM, I think US is similar) to keep it valid. A few companies do this for marks similar to their primary mark, creating 'ghost marks'. But this takes a fair bit of effort.

Anyway if someone offers goods/services under a mark similar to your registered mark, you may be able to sue them, either for using a confusingly similar mark on similar goods/services, or for taking unfair advantage of the reputation of your famous mark. So use of "DnD" is not necessarily risk-free.
 
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S'mon

Legend
Both I and @S'mon have already made this point in posts upthread.

But it's not a distinction without a difference. It's about who you have contractual relationships with - who you have rights against and who has rights against you.
It is early in the morning for me & I'm still sleepy, but I think if I take material from say The Hypertext d20 SRD (v3.5, 5e & Pathfinder d20 System Reference Document) :: d20srd.org under the OGL I would be held to have a contractual relationship with WoTC, as well as with the d20SRD.org people, and with everyone else whose d20 game material I took. I think this is what Umbran means by calling the licence offer non-revocable.
 
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