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

S'mon

Legend
Anyone who has taken up the offer and entered into the contract has rights which are, according to the terms of the licence, irrevocable. Whether those terms actually govern the agreement or whether there are other legal rules affect the term of the licence is something I don't know. @S'mon?

As far as Frylock is concerned, he has long been a critic of the OGL on the grounds that, under it, WotC asserts IP rights that it does not actually enjoy and gets people to contract away rights that they otherwise would enjoy. So I don't think he is interested in himself becoming a party to it.
The general approach to a contract under US & UK (English) law is that the court will seek to uphold the agreement. Partly under EU influence UK courts will regulate business-consumer contracts made under standard forms from the business, but the OGL is not such a contract IMO.

Frylock is technically correct that WoTC claim rights they don't have - eg we all know the Displacer Beast is really a Couerl from AE Van Voght - but the OGL does also grant substantial rights to the licensee.
 

S'mon

Legend
This is not corrrect in my view. WotC can withdraw their offer at any time given that no one has paid them to make the offer. At that point anyone who wants a licence from WotC would need to negotiate with them.

What you may be referring to is the fact that every person who has entered into the OGL with WotC has promised to offer a licence to others on the same terms in respect of the Open Game Content pubished by pursuant to the licence. This includes (by way of contractual definition) any work - such as the SRD - covered by the OGL. So while WotC can withdraw its offer, anyone else who published the SRD pursuant to the OGL is contractually obliged to offer to others the right to publish that material under the OGL.

(Note that WotC is not similalry obliged because, as far as I know, it has never published any works relying on the OGL for the authority to do so.)

By now it would be quite tricky, I think, to identify the web of OGL contractual obligations and hence to determine who might have what contractual rights in relation to the making of those offers.

How anyone might go about revoking those further offers is another question I'll leave to @S'mon - I have intuitive doubts about the vIability of a perpetual contractual obligation to maintain a standing offer to the whole world, but my intuitions may be wrong.
Yes, but Umbran is effectively right in practice since afaics under the OGL I can take the whole of an SRD (d20, 5e, etc) from a non-WoTC source under the OGL, and will always be able to do so. WoTC can withdraw the OGL offer themselves to new contractees, eg they can remove it from their websites, but material that has already 'entered the wild' under the OGL will stay there. So it is quasi-non-withdrawable. In practice it is not withdrawable, and is designed that way.
 

pemerton

Legend
what would happen if, hypothetically, WotC were to issue a release to the effect of "As of 12:01 a.m. Pacific Daylight Time on August 19 2019* the OGL is withdrawn in all forms and thenceforth becomes null and void; along with all permissions, rights, and obligations thus granted." It's locked in for anything released up until that point due to its own perpetuity clauses, but anything released after that cutoff is hooped - right?
It's not clear what you have in mind.

Some people are parties to licence agreements with WotC, that is, have entered int a contract with WotC. The contract has arisen because consideration has flowed in both directions - WotC has conferred the permissions stated in the OGL in respect of the SRD; and the other party in return has created OGC and promised to make a standing offer to the world to licence that OGC for others' use under the terms of the OGL.

The terms of that licence include that it is perpetual. So WotC cannot unilaterally revoke any such licences. As I read the OGL, the licence is not confined to any particular or limited number of works.

However, as I have posted a couple of times now, I believe that WotC is free to withdraw its offer to those who are not currently parties to a licence with it to enter into such a licence. (This standing offer is what is colloquially called releasing the SRD under the OGL.) That is because - as best I know - no one has paid or otherwise contract with WotC to keep that offer open.

This is the point on which I disagree with @Umbran.

EDIT because saw this extra post:
Yes, but Umbran is effectively right in practice since afaics under the OGL I can take the whole of an SRD (d20, 5e, etc) from a non-WoTC source under the OGL, and will always be able to do so. WoTC can withdraw the OGL offer themselves to new contractees, eg they can remove it from their websites, but material that has already 'entered the wild' under the OGL will stay there. So it is quasi-non-withdrawable. In practice it is not withdrawable, and is designed that way.
Yes, agreed. I tried to convey the same point upthread when I posted the following:

What you may be referring to is the fact that every person who has entered into the OGL with WotC has promised to offer a licence to others on the same terms in respect of the Open Game Content pubished by pursuant to the licence. This includes (by way of contractual definition) any work - such as the SRD - covered by the OGL. So while WotC can withdraw its offer, anyone else who published the SRD pursuant to the OGL is contractually obliged to offer to others the right to publish that material under the OGL.
 

S'mon

Legend
Your view... is not supported by the text of the license, nor the intent of its architect:

"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners."
- Ryan Dancey, On the Goals of the OGL

Section 9 of the license clearly states that, should WotC change the license, you are authorized to use the work under ANY PREVIOUSLY AUTHORIZED VERSION of the licence. So, once the game is released with the license attached, that version of the licence cannot be removed from use with that content.

Unless you think Mr. Dancey was incompetent, and the license text doesn't mean what he, and loads of others since, have said about it, then I'm sorry, but you are simply incorrect. Once a game has been issued under the OGL, that license applies to that release in perpetuity.
Well Pemerton is correct re the technical meaning of a Contractual Offer in Anglo-American Contract Law. WoTC can always 'withdraw their offer'. But you are correct in practice since once any party has reproduced the SRD under licence from WoTC, anyone else can take that material under the OGL licence and WoTC cannot legally prevent that. So it does what Dancey intended.
 

pemerton

Legend
And one basic aspect I think might be important is the question, if stat blocks are falling under the category of being rules. Rules normally state how something is done or not. Now that might apply to the abilities of the monsters turning the stats into rules, but perhaps not. That is for others to decide or determine.
This is something I've discussed with @S'mon in the past. He is better at this particular legal issue than I am!, but I'm happy to share some thoughts.

I think that RPG stat blocks are interesting because they sit on something like a borderline between processes for playing a game (if the declared move is "I attack the cyclops" then resolve that move by feeding these numbers into this resolution procedure) and devices for conveying stories about imaginary beings.

I believe that this is why Frylcok is trying to argue that those story elements are all in the public domain. (At least for familiar monsters from legend, like cyclopes.) Though, as per @S'mon's post about 40-odd upthread, Frylock's argument in this respect may not be very strong.
 

S'mon

Legend
With discussions like this you can have

1.People who don't understand English very well
2.People who understand English, but not legal concepts
3. People who are educated laymen with a practical understanding of legal standards,, often gained through experience
4. Qualified lawyers not active in the field, or otherwise with limited knowledge
5. Academic and active lawyers in the field with a decent understanding of the substantive law
6. Trial lawyers active in the field with an intuitive idea of how a dispute would likely go in practice

As a #5 I would always tend to defer to a #6 when it comes to an actual case. I know enough to know that the vagaries of procedure, judicial whim, and the gladiatorial skills of opposing attorneys matter a lot more than what the substantive law actually says. Conversely I know that #4s can often be way off on the substantive law - back in the '90s I saw plenty of in-house lawyers who seemed unable to distinguish between (c) and TM, something even Guardian journalists seem to be able to do these days. :p Conversely I'd defer to a #4 on matters of procedure.

For a #1 or #2, it can be hard to understand what #4-#6 like me and Mr P are saying, so probably paying attention to a good #3 like Morrus here is the best way to go.
 

S'mon

Legend
This is something I've discussed with @S'mon in the past. He is better at this particular legal issue than I am!, but I'm happy to share some thoughts.

I think that RPG stat blocks are interesting because they sit on something like a borderline between processes for playing a game (if the declared move is "I attack the cyclops" then resolve that move by feeding these numbers into this resolution procedure) and devices for conveying stories about imaginary beings.

I believe that this is why Frylcok is trying to argue that those story elements are all in the public domain. (At least for familiar monsters from legend, like cyclopes.) Though, as per @S'mon's post about 40-odd upthread, Frylock's argument in this respect may not be very strong.
I think Frylock is basically wrong.

However US courts have said that if there is only one way of expressing a concept, that expression is not copyright protected. This appears to support the argument that information per se (sans selection, arrangement and formatting) is not copyright protected in US law. This goes beyond the Berne/TRIPS rule that mathemetical formulae and game rules are not protected per se.

I think this means that in US law it would likely be possible to present the stats of a 5e orc (AC 13, hp 15, ATT+5/d12+3) in an adventure, say, without infringing copyright. There would also be fair use & fair dealing arguments, which brings in the ethics and equity dimensions. But I don't think a US court would let you use this get-out to reproduce the Monster Manual, even reformatted, sans OGL. Clearly this is not fair use IMO, and it also falls under the EU Unauthorised Extraction right.
 

S'mon

Legend
Re monster names - these are not trade marks unless used as badges of origin for goods (& services in UK - called service marks in US). Even if the USPTO IPO or EUIPO grants a trade mark, if not used as a badge of origin it becomes subject to revocation. A US company may slap (TM) all over their character or monster names etc, this just means the company regards these as badges of origin - a court is free to disagree, and may well do so - Marvel was notorious for Aunt May (TM), and Lucasfilm for Nazi (TM). :)

WoTC claim various monster names are 'Product Identity', but as Morrus has explained, this is only a meaningful term or claim within the OGL license, which is a contract you can choose to agree to, or not. Some of their claimed PI* is quite silly IMO - but you agree to it when you use the OGL.

*The following items are designated Product Identity,
as defined in Section 1(e) of the Open Game License
Version 1.0a, and are subject to the conditions set
forth in Section 7 of the OGL, and are not Open
Content: Dungeons & Dragons, D&D, Player’s
Handbook, Dungeon Master, Monster Manual, d20
System, Wizards of the Coast, d20 (when used as a
trademark), Forgotten Realms, Faerûn, proper
names (including those used in the names of spells
or items), places, Underdark, Red Wizard of Thay,
the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of
Pandemonium, Infinite Layers of the Abyss,
Tarterian Depths of Carceri, Gray Waste of Hades,
Bleak Eternity of Gehenna, Nine Hells of Baator,
Infernal Battlefield of Acheron, Clockwork Nirvana
of Mechanus, Peaceable Kingdoms of Arcadia, Seven
Mounting Heavens of Celestia, Twin Paradises of
Bytopia, Blessed Fields of Elysium, Wilderness of the
Beastlands, Olympian Glades of Arborea, Concordant
Domain of the Outlands, Sigil, Lady of Pain, Book of
Exalted Deeds, Book of Vile Darkness, beholder,
gauth, carrion crawler, tanar’ri, baatezu, displacer
beast, githyanki, githzerai, mind flayer, illithid,
umber hulk, yuan-ti
 

pemerton

Legend
For a #1 or #2, it can be hard to understand what #4-#6 like me and Mr P are saying, so probably paying attention to a good #3 like Morrus here is the best way to go.
This is sensible advice. (And I'll assert that I'm somewhere between a 4 and 5 - definitely not a 6!)

But the laugh is for your passing snipe at The Guardian.
 

Aldarc

Adventurer
The idea that "githyanki" is a product identity name is somewhat odd given the fact that it was "borrowed" from a George R. R. Martin novel.
 

Morrus

Well, that was fun
Staff member
The idea that "githyanki" is a product identity name is somewhat odd given the fact that it was "borrowed" from a George R. R. Martin novel.
It's not that odd if you thnk about it. What it is is this:

"Hey, we at WotC would like to give you all this stuff to use, pretty much as you wish, with a couple of conditions. One of those is that you agree to steer clear of a few monsters, as we want to build our brand around them. If you're OK with doing that, you can have all this other stuff, no questions asked!"

That's why the OGL created the term "Product Identity" -- it's a category of items which the license itself defines. As mentioned above, that's not the same "Intellectual Property" or "copyright" or any other claim.

They could have said "You can use this license if you agree not to eat apple pie again". That doesn't mean they are saying they invented apple pie, just that the cost of using the license is to not eat apple pie.
 

Umbran

Mod Squad
Staff member
Gratiutious promises generally aren't binding in common law legal systems. That clause only binds WotC if it becomes a party to a contract, which only occurs when someone takes up the offer.
Yes, but you see, since the license is, by its own terms, distributed with the licensed work, WotC cannot recall it. Remember that entring into this license agreement is passive on WotC's part. There is no active communication between licensor and licensee, and thus no way for WotC to change it.

Ryan Dancey was not incompetent. But there is no simple way in common law legal systems to unilaterally make a standing offer to all the world that is not capable of subsequent retraction.
Oh, yes you can, and in fact, must be able to, or else the following is possible.

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.

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.
 
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lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
1.People who don't understand English very well
2.People who understand English, but not legal concepts
3. People who are educated laymen with a practical understanding of legal standards,, often gained through experience
4. Qualified lawyers not active in the field, or otherwise with limited knowledge
5. Academic and active lawyers in the field with a decent understanding of the substantive law
6. Trial lawyers active in the field with an intuitive idea of how a dispute would likely go in practice
I think this is ... mostly helpful. I would quibble somewhat with the 4, 5, 6 categories. Although maybe it would depend on jurisdiction (assume US for this).

I would start by noting that (4) is a vast category, and there are so many variances within this vast category that some within (4) are no better than (3). For example, if you have ask a transactional real estate attorney, who has been primarily doing closings for the last 35+ years, questions about anti-trust law or the bankruptcy code ....

I also think that, in the United States, there is a great divide between how lay people view academics in the legal profession and how practitioners and judges view them. To quote Chief Justice Roberts, "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something. If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges."
 

S'mon

Legend
To quote Chief Justice Roberts, "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria
Most academic work is much less useful than that! :D
Hopefully most academics who teach undergrads and postgrads Contract Law and Intellectual Property law do know a bit about those subjects though. Even if some of them don't seem to know much about teaching... sigh
Edit: While judges may have undifferentiated animosity for all us academics, we do vary quite a bit. Some of us do actually read cases and know a bit about the black-letter law.

I agree that an educated layman may well know more about a legal area than a lawyer not operating in that area, though the lawyer probably knows more about procedure and how to actually win a case - which rarely has very much to do with the substantive law.
 

lowkey13

I'm sorry, Dave. I'm afraid I can't do that.
Most academic work is much less useful than that! :D
Hopefully most academics who teach undergrads and postgrads Contract Law and Intellectual Property law do know a bit about those subjects though. Even if some of them don't seem to know much about teaching... sigh
Edit: While judges may have undifferentiated animosity for all us academics, we do vary quite a bit. Some of us do actually read cases and know a bit about the black-letter law.

I agree that an educated layman may well know more about a legal area than a lawyer not operating in that area, though the lawyer probably knows more about procedure and how to actually win a case - which rarely has very much to do with the substantive law.
My personal view on this (as it is with most things) is complicated; I know many legal academics whose opinions on black-letter law in a given area I trust implicitly, yet wouldn't know the first thing about the application of that law in a given jurisdiction. Famously, of course, you would have the Professor teaching, say, Contracts or Torts at State Law U who might be able to pass the multi-state portion of the Bar Exam, but would have no idea what the actual law in his state is.

But in some areas, like IP (which is almost, but not exclusively, federal) that is less of a problem.

I also would quibble about whether the "substantive law" is not what wins the case; other than issues of juries (which is a whole 'nother kettle of fish), the primary problem is that there isn't just a single substantive legal issue in an action; real life cases are not like a legal casebook, condensed down to a single salient substantive issue.

Instead, you will see a number of legal issues intersecting, and determining what weight to put on the different legal issues (not to mention the procedural ones) can often determine how a case is resolved.
 

Greenfield

Adventurer
Copyright isn't intended to shut down things like home brew games. What it does shut down is the ability/right to copy their own work. (hence the term "copyright".)

The OGL spells out specifically what people can use and republish and what they can't.

If his postings are as similar to the published WOTC publications as he's demonstrated in the Cyclops example, and they're outside the OGL, he's screwed. Particularly if he's actually claiming copyright on his version. You can't claim ownership of someone else's published material.

In theory each of us owns our own ideas, even those casually published in forums like this one. And anyone can claim copyright on their work, and anyone can put the little "(C)" emblem in their work. (They're not supposed to anyway.) That's not really the same as a registered copyright though, so enforcement would be a problem.

I know that WOTC's copyright is registered and I'm betting that his isn't.

In any case, they are bigger than he is, so even if this was a fight on a level playing field, he'd probably lose. And the field isn't level. They had prior publication and prior registration (if his is registered at all), and that means he loses.

Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal. If he offers them that classic "one dollar plus good and valuable consideration" to license their work he's probably fine.

Sounds like he doesn't want to do that, so there may be trouble coming down the pipe for him.
 

Morrus

Well, that was fun
Staff member
I agree that an educated layman may well know more about a legal area than a lawyer not operating in that area, though the lawyer probably knows more about procedure and how to actually win a case - which rarely has very much to do with the substantive law.
I can only speak for myself, but I’ve worked with a very narrow set of legal topics repeatedly for about 20 years.
 

S'mon

Legend
Copyright isn't intended to shut down things like home brew games. What it does shut down is the ability/right to copy their own work. (hence the term "copyright".)

The OGL spells out specifically what people can use and republish and what they can't.

If his postings are as similar to the published WOTC publications as he's demonstrated in the Cyclops example, and they're outside the OGL, he's screwed. Particularly if he's actually claiming copyright on his version. You can't claim ownership of someone else's published material.

In theory each of us owns our own ideas, even those casually published in forums like this one. And anyone can claim copyright on their work, and anyone can put the little "(C)" emblem in their work. (They're not supposed to anyway.) That's not really the same as a registered copyright though, so enforcement would be a problem.

I know that WOTC's copyright is registered and I'm betting that his isn't.

In any case, they are bigger than he is, so even if this was a fight on a level playing field, he'd probably lose. And the field isn't level. They had prior publication and prior registration (if his is registered at all), and that means he loses.

Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal. If he offers them that classic "one dollar plus good and valuable consideration" to license their work he's probably fine.

Sounds like he doesn't want to do that, so there may be trouble coming down the pipe for him.
This would I'm afraid be a great example of a #2. :p

For one thing, copyright is not use-it-or-lose -it; whereas Trade Marks do have to be defended in order to retain their badge-of-origin function.
 

Morrus

Well, that was fun
Staff member
Now sending notices like that to people like him isn't usually malicious or greedy. It's just that they have to "defend" their intellectual property or they lose the right to do so in the future. Simply put, Copyright is a Use it or Lose It deal.
You’re confusing copyright with trademarks.

(And with the latter, you’re not obligated to sue people - you can always give them permission (license them). There’s always a choice in how you react.)
 

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