GSL-What happens when someone uses my OGC?

[Ourph]

Open Gaming License 2.0
16.) Sections 6 and 8 of OGL 1.0 are void.
17.) All existing OGC is covered by this license. This license may only be used in conjunction with the GSL. All OGC can be converted to GSL as stated in the GSL.
18.) No content of converted products as defined in the GSL is Open Gaming Content.

There, I think that covers it. It probably needs a bit more legalese but this would be the framework for pulling OGC into GSL without contaminating 4e with OGC.

First, in order to use Ken's OGC, Bob still has to include some version of the OGL in his GSL product, so not only do you need 17), but you also need to amend the GSL to allow use of the OGL with GSL products. And that's the point I was making all along. People can always use your OGC, as long as they publish using the OGL, but if they are prevented from using the OGL, they have no access to your OGC.

Second, this does nothing to harm Ken. If Ken were worried about people using his OGC, he wouldn't have made it OGC in the first place. What Ken is worried about (it seems) is whether Bob using his OGC in a GSL product makes it "not OGC" any longer. It doesn't. Anyone who wants to use Ken's OGC is entitled to use an earlier version of the OGL without these changes, including Ken. None of those people are bound by the restrictions of the GSL because they've never agreed to it.

The only one who might be in trouble here is Bob, since he's updating OGC that he has no control over and it might (probably will) continue to be published under the OGL, which by some readings of the GSL might violate his license. But since, in this example, WotC just rewrote the OGL and the GSL to allow for that sort of thing, I'd say he's probably on pretty firm ground too.

:edit to add: I agree with what Brown Jenkin wrote 100%.

 

[madelf]

It's only unclear if the person reading it doesn't have a clear understanding of what the OGL does and doesn't allow someone to do.

Yeah right. Your interpretation is only remotely clear if you assume that a new version of the OGL can't say anything WotC wants it to. A pretty shakey assumption if you ask me.

The GSL doesn't say that the content converted must be original, just that the publisher must have published it under the OGL. The OGL might trip that up, but the OGL can be easily revised if it turns out to conflict with their intentions for the new license. And open content released under one version of the OGL can be used under any version of the OGL. So it's ridiculously easy for WotC to allow what we're talking about, even if the existing language turns out to not currently allow it. (And given their track record, no, I'm not going to assume that WotC didn't forget that the OGL might prevent what they intended the GSL to do)

The same thing that prevents Mike Mearls from coming to your house and stealing your car. The law.

The law doesn't stop him from coming to my house and stealing my car. All the law does is punish him if he can be caught and I press charges (and in this case, unlike car theft, pressing charges might cost me more than the car is worth). I might be able to stop him myself, but the law certainly does not. Not even law enforcement stops him, as he'll be long gone before they get there. The law doesn't stop someone from stealing a car any more than the law stops someone from putting iffy language into a contract.

 

[jaldaen]

Here's another question:

When you convert your OGL product are you really converting its OGC (which requires you to use the OGL) or just your PI (Product Identity, which is not released as part of the OGL)?

After all the OGC rules work with the old d20 SRD and not with the new 4e D&D SRD...

So are you really using the OGC mechanics as anything more than inspiration for your 4e mechanics? If so, then as long as you are not expressing the mechanical concepts in the same mechanical ways (phrasing, etc.) as you did under the old OGL couldn't you use the OGC under standard copyright laws as pertains to game mechanics?

Just a thought... and no IANAL

 

[Ourph]

Yeah right. Your interpretation is only remotely clear if you assume that a new version of the OGL can't say anything WotC wants it to. A pretty shakey assumption if you ask me.

A new version of the OGL doesn't have any impact on products published with the GSL unless WotC alters the GSL to allow publication of a product under both licenses.

This is what I've been saying all along. I never said that Ken's OGC won't necessarily show up in Bob's 4e product, just that Bob can't do that without including some version of the OGL in his product. As things stand right now, that can't happen, because the GSL specifically says you can't use it in conjunction with another license. If you posit a reversal of that restriction in the GSL, of course what I'm saying doesn't apply.

The GSL doesn't say that the content converted must be original, just that the publisher must have published it under the OGL.

The GSL requires you to obtain appropriate permission for any 3rd party IP you are using. In order to use someone else's OGC that means including the OGL in your product. None of the changes you propose above change that in any way. The only change that makes any difference is WotC allowing someone to use the GSL and OGL at the same time for the same product.

The OGL might trip that up, but the OGL can be easily revised if it turns out to conflict with their intentions for the new license. And open content released under one version of the OGL can be used under any version of the OGL. So it's ridiculously easy for WotC to allow what we're talking about, even if the existing language turns out to not currently allow it. (And given their track record, no, I'm not going to assume that WotC didn't forget that the OGL might prevent what they intended the GSL to do).

I completely agree, but this isn't contradicting anything I've been saying.

If what you are positing happens, then nothing really changes for Ken. Bob is still using his OGC as OGC by the terms of the OGL. Of course, since you can use any version of the OGL you want, Ken and everyone else can still use that OGC in other OGL products, using an earlier version of the OGL, without including the GSL. In the situation you propose, it looks like the only person whose rights are limited in any way is Bob.

 

[Orcus]

Let us say I am the owner of, oh, Evoker games. I produce a book called the "Volume Of Monsters", which is 100% OGC. I decide to move on to 4e.

Another company, decrying the loss of the VoM for 3.5, takes all my OGC and publishes it, without my permission -- which he does not need and which I cannot deny. I have no financial relationship with this other company.

Am I in breach of the GSL?

This is an interesting one.

Let me clarify a few facts in your hypo, then I’ll take a stab at this:

FACTS:

1. You ("You") own Evoker Games (EG or "Company A").
2. EG previously published an OGL product called Volume of Monsters (VOM) which contains Open Game Content (OGC).
3. EG subsequently accepts the GSL via the acceptance card.
4. Company B accepts the GSL via the acceptance card.
5. Company B subsequently creates a Product under the GSL that includes OGC from EG's VOM.
6. Company B does not specifically gain your permission to use said OGC outside of the OGL (which, frankly, you might not have the power to grant anyway)

QUESTION:

What are the rights and liabilities of the respective parties?

Rights/Liabilities of You:

Presuming proper corporate structure and proper attention to corporate formalities, YOU likely cannot be sanctioned. However, should Wizards in their discretion feel you played any part in anything they feel is improper, YOU or any company run by or affiliated with you could either have their GSL terminated in Wizards’ sole discretion (6.3) or could be denied permission to use the OGL within 14 days of your return of the acceptance card (license “preamble”).

Rights/Liabilites of EG:

Automatic Termination: Beacuse EB didnt do anything directly, there is no direct sanction here unless EB is found to be in violation of 6.3 by being “affiliated with” Company B that made the new book. The real question for EB is what does section 6.3 mean when it says: “In the event that any portion of a Converted OGL Product Line is manufactured or published by Licensee, or a third party affiliated with Licensee, after the first publication date of a Conversion, Wizards may immediately terminate this License upon written notice.” EB didn’t create the Converted Work (if it is a Converted Work, which I am presuming it is, see below), so absent a finding that EB was “affiliated with” Company B no automatic termination should be triggered. Please note that your fact of “no financial connection” between EB and Company B in my mind does not prevent you from being “affiliated.”

This provision in my view clearly prevents Licensees from creating subsidiary companies to get around the GSL. However, it does create the interesting issue of what happens if EB never adopts the GSL and creates company C, a subsidiary, that does abopt the GSL. In your hypo, both companies use the GSL. The more interesting question is what happens if EG doesn’t adopt the GSL. I’m not going there in this answer.

Non-breach termination: Even if EB is not in violation of the GSL, however, as above, in Wizards’ sole discretion they can terminate your right to use the GSL even without breach. Also, since EB accepted the GSL,

[Note: in my view, the termination provision is a bit unclear though the triggering events for breach to me are rather clear. The license specifies certain events that trigger termination. It doesn’t specifically state that absent breach which results in termination that it can be terminated in Wizard’s sole discretion. But 11.1 lists no preconditions to termination. Thus, though one could argue the license could only be terminated because of breach or by the entire withdrawal of the license globally, I am not reading it that way and I don’t particularly want to be in court making that argument, though others may differ. I see a colorable argument that the GSL can ONLY be terminated either by breach or globally. For my purposes and for this discussion I am reading it as terminable at will and at Wizards’ sole discretion per 11.1.]

Requirement to assist Wizards: Wizards could require EB to help protect its rights (10.3), though you would be reimbursed for certain expenses.

Company B:

Company B is CLEARLY in violation/breach of the GSL in two ways:

1. Company B violates section 12 subsections (a), (b) and (c) when it created the new product using OGC without your permission. The GSL requires Company B to either own or have permission to use the content you are using under the GSL. A person or company doesn’t "own" the OGC from the "Volume of Monsters" just because you made it OGC. That OGC content from VOM is still copyright Evoker Games. Because it is OGC, others ONLY have permission to reuse it under the OGL (see the OGL), not under any other licenses. Therefore Company B would need Evoker Game's permission to use that content, which they did not get (and, depending on how you got the content, you might not even have the full right to give that permission, for instance if your OGC contained the OGC from others).

2. 10.2 requires Company B to “obtain all required licenses and permissions for its use of Third Party IP in the Licensed Products.” Clearly, it didn’t do this. See above.

Effects of termination are obvious: immediate termination on written notice, injunctive relief and Company B is liable for any fees and costs in bringing action by Wizards against them.

Here is the real stickler:

Did Company B Create a “Converted Work” which now prevents you from using the OGL for that work?

That is a big issue. It would be a bigger issue if YOU actually authorized Company B to make its book. So I am taking the easy way out: I don’t see Wizards ever viewing someone’s wrongful creation of a work by stealing your content as creating a Converted Work and thus requiring you to no longer sell that product under the OGL if you yourself have not chosen to update it.

The trickier issue is when a Licensor who themselves do not adopt the GSL licenses content to a third party who makes a 4E version of that content. Presuming the licensee never makes and OGL version of that new product, what does that mean to the original Licensor? I’ll give you a real example: Judges Guild licenses Necro to make Tegel 4E. Necro adopts the GSL and actually makes Tegel 4E. Lets say JG never adopts the GSL. What does my creation of a 4E version of licensed content do to JG? In my view, so long as Necro never makes an OGL version of Tegel 4E, it does nothing to JG and JG could make a OGL version of Tegel if it wanted, but that is unresolved at this point.

Clark

 

[Lizard]

I may have been unclear.

Company "B" doesn't register for the GSL. They are a pure OGL company.

But the *content* of Evoker Games' 4e Volume Of Monsters is now available under the OGL, alongside their own 4e book, and there's nothing they can do to stop it. It is further interesting that while EG can now never again publish their VoM under the OGL, their competitors can (and in my example, are).

The main legal issue is if there was any collusion between EG and "Company B" -- if there wasn't, I can't see any basis for WOTC to declare a breach, even though the end result is exactly what the GSL was engineered to avoid -- simultaneous publication of 4e and OGL material.

Do I consider this scenario *likely*? Only if companies with fairly generous OGC declarations "abandon" lines to go 4e, leaving the game content "plunderable". Technically, it always was -- but the financial incentive to publish something which is identical to someone else's existing product but without their marketing or reputation is pretty weak. If, however, they're no longer serving that market...

For example, if Necromancer WERE to convert the TOH to 4e, I could see a strong business case for someone grabbing all the OGC and making a Pathfinder version. The fact the TOH "opens" such iconic figures as Orcus and Jubilex (note spelling) is reason enough.

 

[Orcus]

I may have been unclear.

Company "B" doesn't register for the GSL. They are a pure OGL company.

But the *content* of Evoker Games' 4e Volume Of Monsters is now available under the OGL, alongside their own 4e book, and there's nothing they can do to stop it. It is further interesting that while EG can now never again publish their VoM under the OGL, their competitors can (and in my example, are).

The main legal issue is if there was any collusion between EG and "Company B" -- if there wasn't, I can't see any basis for WOTC to declare a breach, even though the end result is exactly what the GSL was engineered to avoid -- simultaneous publication of 4e and OGL material.

Do I consider this scenario *likely*? Only if companies with fairly generous OGC declarations "abandon" lines to go 4e, leaving the game content "plunderable". Technically, it always was -- but the financial incentive to publish something which is identical to someone else's existing product but without their marketing or reputation is pretty weak. If, however, they're no longer serving that market...

For example, if Necromancer WERE to convert the TOH to 4e, I could see a strong business case for someone grabbing all the OGC and making a Pathfinder version. The fact the TOH "opens" such iconic figures as Orcus and Jubilex (note spelling) is reason enough.

I dont agree with a few of the presumptions here.

First, if YOU or EB never update VOM to 4E under the GSL then you can sell the VOM all day long. NOTHING in the GSL requires you to stop selling OGL products that you dont convert to 4E. So if you dont convert VOM, then Company B doing something with your OGC has no impact at all on anything.

Second, though your example is backwards from what I consider the more likely problem, lets redo the facts to track what you are saying:

1. EB makes VOM for the OGL.
2. EB acepts the GSL.
3. EB subsequently creates VOM for 4E under the GSL.
4. Company B uses OGC from VOM (OGL version of course) and makes an OGL product using it, maybe even duplicating it in its entirety.

However, under 6.3 if you are "affiliated with" Company B, then maybe they can terminate your GSL for breach or they could just do it at will.

Stopping you from selling old OGL products certainly isnt the same as making it as if they never existed at all. They cant yank that OGC out of other books or prevent others from using it.

For the most part, there are very few 100% OGC books (other than perhaps TOH) which could just be reprinted whether the original publisher wanted that or not. So I dont see this as a big issue.

Bottom line is this: that is one reason I am not going to convert Tome to 4E. I dont want Wizards to get pissed at someone doing stuff like that and wind up revoking MY GSL as a result.

Clark

 

[Cassandra]

For the most part, there are very few 100% OGC books (other than perhaps TOH) which could just be reprinted whether the original publisher wanted that or not. So I dont see this as a big issue.

Actually, among electronic publishers there are numerous products that were made 100% OGC. Ronin Arts and Adamant Entertainment are two companies that spring immediately to mind as having done this. (In fact, I have two of Adamant's products on my desk right now that follow the license text with the statement, "ALL TEXT WITHIN THIS PRODUCT IS 100% OPEN CONTENT.")

The scenario Lizard outlined is not far-fetched. Unless prominent companies like Necromancer are involved, however, I suspect Wizards may not care too much.

 

[pemerton]

So does this mean a publisher who prided themselves on using OGC IP (now I've got it right) with long section 15s will be having a nightmare with their conversions because they essentially have to get the "okay" of every single company they use OGC from in the product they want to convert to 4e?

As I explain further below, I think that the answer to this question is "yes, but . . ."

When you convert your OGL product are you really converting its OGC (which requires you to use the OGL) or just your PI (Product Identity, which is not released as part of the OGL)?

After all the OGC rules work with the old d20 SRD and not with the new 4e D&D SRD...

So are you really using the OGC mechanics as anything more than inspiration for your 4e mechanics? If so, then as long as you are not expressing the mechanical concepts in the same mechanical ways (phrasing, etc.) as you did under the old OGL couldn't you use the OGC under standard copyright laws as pertains to game mechanics?

As someone (I think Ourph) mentioned upthread, the GSL does not refer to OGC. It tooks about producing, subject to the GSL, a product that has "the same or similar title, product line trademark, or contents" as a product published under the OGL.

Clauses 10 and 12 of the GSL require that a publisher who publishes a product under the GSL which contains IP not belonging to that publisher gain the permission of the IP owner to use that IP.

So, suppose a publisher wants to convert an OGL product which contained OGC in which that publisher doesn't own the copyright. If the OGC in question was rules text, and the GSL publisher is writing new rules text that fits within the 4e framework, then the question of whether or not that new rules text falls within the original OGC contributor's copyright could be a complicated one, depending in part on the law relating to derivative works. Depending on the answer to that question, the GSL publisher may or may not need to seek the permission of the original OGC contributor.

If the OGC was fluff text, then the GSL publisher almost certainly could not reproduce that fluff text verbatim without getting the permission of the original OGC contributer.

Of course, you don't need anyone else's permission to convert your own OGC, nor your own PI. You would need WoTC's permission to convert material in a product that was taken from the d20 SRD and which has no analogue in the 4e SRD.

Suppose BobCo uses KenCo's OGC (the Dreaded Hephaflumph) in their OGL/3.x CastleDeathskull adventure. BobCo intends to upgrade to 4e and the GSL KenCo doesn't. BobCo wants to upgrade CastleDeathskull, and gets KenCo's permission to 4e-ize the Hephaflumph. In the meantime, KenCo releases a new OGL product containing the Hephaflumph, while continuing to sell the original Hephaflumph products as well.

When BobCo releases Castle Deathskull 4, does KenCo now need to stop selling their stock of Hephaflumphs?

As Smetzger said, no issue arises here for KenCo, who are not in breach of any agreement with WoTC.

As Clark said, from BobCo's point of view the answer depends (at least in part) on whether or not BobCo and KenCo are affiliates. If so, then BobCo is in breach of clause 6.3 of the GSL. (This is under the assumption that the Hephaflumph published by KenCo counts as "a portion of" BobCo's "Converted OGL Product Line".)

If KenCo later revisits their decision and moves to 4e, do they now need to license the 4e Hephaflumph from BobCo?

As Smetzger said, this depends upon the original agreement between KenCo and BobCo.

suppose KenCo decides to start a new 4e product line. The OGL Hephaflumph is part of Ecology of Flumphs, which includes magic items, PrCs, and other flumphs. The new 4e line contains Adventures in GelloLand, which uses a 4e version of the Hephaflumph (but nothing else from Ecology of Flumphs). Does KenCo now need to pull Ecology of Flumphs?

I would imagine so, as KenCo, in becoming party to the GSL, has agreed that "it will not thereafter manufacture or publish any portion of the Converted OGL Product Line."

It may not hold up to legal scrutiny (I actually suspect there are several things in that license that wouldn't). All I pointed out was what the GSL seems to say. It's either their intent that things can be converted that way, or it's really badly worded and poorly thought out (which wouldn't be a big surprise given their handling of everything else).

WoTC are not trying to do what they have no legal power to do, namely, license person A's IP to person B. The rough point of clause 6 of the GSL is to prevent a given publisher (and affiliated publishers) publishing the same content as both an OGL and a GSL product.

It does not, and cannot, prevent others who are not party to the GSL from continuing to publish OGC under the OGL.

 

[jmucchiello]

I think I was misunderstood. I was answering the question of how WotC could "steal" everyone's OGC. The OGL 2.0 I was proposing was designed to allow WotC to do anything with any and all existing or future OGC. It had no benefit for other publishers.