Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[Ruin Explorer]

yep, because he could not fight them. Had he had a different name they would not have bothered though, I do not think we have someone with that name recognition now

They didn't actually stop him, by the way, this is just re-writing history. I have a copy of Dangerous Journeys right here. It doesn't seem very "stopped" to me.

TSR made some sweeping and wild IP claims against GDW who were publishing Dangerous Journeys. If they had gone to court, they would have lost a huge number of them. That's not a maybe, TSR would have. They might even have lost all of them, because they were extremely far-fetched stuff. In modern courts it might even be suggested that those claims were so bad that they were an abuse of process and the judge might have censured TSR and the relevant bar might have censured the lawyers bringing the case.

Anyway, they got to court and GDW decided they couldn't make enough money off Dangerous Journeys to make it worthwhile to fight WotC, so they did an out-of-court settlement.

If Dangerous Journeys would have been more likely to make real money, or if legal crowdfunding had existed back then, or if it was in a modern court, the outcome would have not been the same.

 

[Thomas Shey]

Oh, I was exaggerating a bit, but there was a LOT of stuff out there, even in the days of like GENCON X, which was probably about the the time things got real crazy. But that's my point, it isn't OGL doing this, its the fact that you can publish an RPG for ZERO DOLLARS and potentially even get paid for it if you are good enough at a little PR to Kickstart it.

Sure. As I mentioned, I do kind of think the D20 boom did some temporary harm to other systems because it was so easy and attractive to do Yet Another D20 Port, and its not impossible the Do Everything With 5e has done some of the same. But there's only so much it'll do now, because so many people do this as labors of love anyway.

 

[AbdulAlhazred]

So people really, for absolute god's sake, STOP PRETENDING IT'S JUST ABOUT WHO SPENDS MORE.

Just stop it!

No, stop it!

You should be chased out with broom for this behaviour at this point!

You have to spend a certain amount, but this is IP law, not litigating the exact damage massive chemical dumping caused over decades.

Companies with no money have caused HUGE PROBLEMS for gigantic entities like Games Workshop before. See GW v CHS. GW lost most of IP claims there. They got $25k out of CHS, and an agreement to stop making certain things, and that's it. At the cost losing tons of IP claims and indirectly causing GW to abandon WHFB in favour of Age of Sigmar.

Yes, yes, and one of my very good friends and business associates managed to beat the tar out of Microsoft on a case of this sort, and the guy was some poor old grandpa that just published some CD-ROMs. Of course you can most certainly win, but to win you NOT ONLY must be in the right, and you don't know that until you litigate, but you ALSO are staking a LOT more than the big guy is, he can lose and shrug and go on his way, but you cannot and you have (in terms of publishing an RPG) relatively little at stake to balance against that. So, like it or not, when your opponent has 10 or 100 times your resources, you are MUCH less likely to win in the end.

This is true. The end result, if WotC tries to claim this stuff, will just be a court going "NOPE" to WotC repeatedly.

And money isn't going to change that. You don't get to appeal or spend more money just because you feel like it. The legal system does have rules.

Maybe, you don't know that! Most importantly, when you are the actual person who's entire life and fortune is all on the line, with the alternative being you don't publish a certain game about role playing elves that probably won't even make you a decent living, your thinking suddenly becomes different. Trust me, I have not been in this kind of litigation but I HAVE been in a situation where I learned that how you THINK you will act, and how you WILL act are not exactly the same thing! People settle all the time, or run out of money to pay their lawyer (which in this type of case means you pack up and go home).

 

[mamba]

They didn't actually stop him, by the way, this is just re-writing history. I have a copy of Dangerous Journeys right here. It doesn't seem very "stopped" to me.

true, they did bring fraudulent lawsuits though. I guess we will see how all of this plays out, much too early to tell

 

[AbdulAlhazred]

Well, considering on the front page of this site, right now, they are talking about WOIN using a new license and not the OGL, I'd say that it's quite possible we will see more and more RPG's doing so. Granted, WOIN isn't a d20 game, it's a d6 dice pool, there isn't much chance that we won't see d20 like games coming out in the near future.

Sure, someone is always crazy enough to eat that hot chili pepper, even though everyone is like "you really SURE dude?" lol.

 

[Thomas Shey]

Well, I'm not going to claim any deep knowledge of what would constitute forfeit of a right to action in copyright,

My understanding is that unlike trademark, you effectively can't forfeit it. You can deliberately put it into the public domain, but you can ignore infringements for 90% of your copyright period, and then turn around and start enforcing it fully in the last ten.

 

[Thomas Shey]

yep, because he could not fight them. Had he had a different name they would not have bothered though, I do not think we have someone with that name recognition now

Rather more pointedly, because his publisher didn't find it worthwhile to fight them. Sometimes almost any legal costs is too much if you don't consider the fight worth while.

 

[Ruin Explorer]

but you ALSO are staking a LOT more than the big guy is

No.

Absolutely you are not.

This is the illusion that GW v CHS shattered. Have you read the case? I can explain it briefly if you like.

So, like it or not, when your opponent has 10 or 100 times your resources, you are MUCH less likely to win in the end.

No.

That's not how IP law works. It's not just a win/lose binary like criminal law tends to be. You'll win/lose on various specific IP issues.

That's why the "big guy" has a ton to lose. Because it's not a win/lose binary, it's rolling a dice repeatedly over and over and over. You will lose some of them.

Maybe, you don't know that!

Yes, I do.

The only question is WotC dumb enough to try what GW and TSR tried before them? All signs point to yes. But for WotC, this is really an "The only way to win is to not play" situation. It's Mutually Assured Destruction situation. Could they sink a smaller company (not Paizo)? Yes, probably, but not before WotC themselves took critical IP damage to the D&D IP.

You need to account for the fact that is an issue that impacts a lot of people, so legal crowdfunding is nearly guaranteed unless you're like, Justin LaNasa or something, modern courts aren't the same suckers for being pushed around by corporations that older courts were, and this would definitely be all over the gaming news, causing a massive stink for WotC.

WotC might say "We're not willing to talk about ongoing litigation" but guess what? The other side's views will certainly be promulgated, to WotC's chargrin. You want clicks? WotC just provided you with millions of free clicks. Oh and you're linking to the legal crowdfunder? Now people think you're a good guy as well as giving you clicks.

 

[AbdulAlhazred]

I am not saying it is easy to create a clone, I am saying there is an easily identifiable safe zone. Beyond that zone it gets murkier, so tread carefully.

Oh, I actually AGREE with you, it is clearly possible to make RPGs that bear only a very passing resemblance to D&D and are undoubtedly free and clear. I mean, there is little doubt that Blades in the Dark, to name a random game, has even the smallest thing to fear in that regard. Apocalypse World, same thing, but then what about Dungeon World? Things are a bit more murky there... (though I personally tend to think that its use of the 6 canonical ability scores and aping of D&D classes isn't going to be enough to step over that line).

WotC cannot sue everyone out of existence either though, and they know it too, they will pick their battles

If they decide to fight, they will carefully choose whom to litigate against, presumably. Of course if they, say, got a decision that basically said "the classic 6 ability scores are a specific expression and fall under copyright" that would be a pretty clear indicator that any other D&D-like that uses 'classic 6' better stick to OGL or negotiate! Right?

well, Paizo thinks they can do so with PF2, Kobold Press thinks they can navigate it. WotC will watch both closely, so the murky waters might get clearer

Honestly, I have paid not a ton of attention to PF2, and so I am double triple not really able to meaningfully comment on it. If WotC chooses not to act against them in any way, yeah, that would make me more confident I could do whatever they do. Honestly, IMHO (which is worth not much) you'd have to go rather far beyond 6 classic ability scores to fall foul of copyright. Its just not clear how MUCH further, because certainly even PF2 has classes, levels, hit points, round-by-round combat, uses d20, has monster stat blocks, and probably overlaps in some other forms of terminology with D&D. Still, there have been some pretty close copies of Monopoly that apparently got away with it, so we might imagine so will we. We just don't KNOW.

I mean, look at this silliness with Google and Oracle! 70 years of industry reliance on the non-copyrightability of APIs and headers went 'poof' and they have made it stick!

yep, because he could not fight them. Had he had a different name they would not have bothered though, I do not think we have someone with that name recognition now

 

[AbdulAlhazred]

yep, because he could not fight them. Had he had a different name they would not have bothered though, I do not think we have someone with that name recognition now

Perhaps, but Gary was as able as any random person off the street to fight this kind of thing. He got his arse handed to him, because it was little guy vs big company! It is exactly relevant. If WotC really wanted to make the point, they could pick someone with equally small resources and a very D&D-like game.

 

[Ruin Explorer]

I mean, look at this silliness with Google and Oracle! 70 years of industry reliance on the non-copyrightability of APIs and headers went 'poof' and they have made it stick!

No they didn't, but you may have missed it because it was during the pandemic.

Google LLC v. Oracle America, Inc. - Wikipedia

en.wikipedia.org

 

[GMforPowergamers]

That's not how IP law works. It's not just a win/lose binary like criminal law tends to be. You'll win/lose on various specific IP issues.

That's why the "big guy" has a ton to lose. Because it's not a win/lose binary, it's rolling a dice repeatedly over and over and over. You will lose some of them.

that sound intresting... could you give an example? What could they lose (other then the OGL becoming permanent non revocable)?

 

[Ruin Explorer]

It is exactly relevant. If WotC really wanted to make the point, they could pick someone with equally small resources and a very D&D-like game.

And in 2023, they'd be on the front page of dozens of gaming magazines, the guy would be doing interviews on video, WotC would be having to say "no comment", and legal crowdfunding would be involved.

It really seems like you're stuck in 1990 on this.

 

[AbdulAlhazred]

They didn't actually stop him, by the way, this is just re-writing history. I have a copy of Dangerous Journeys right here. It doesn't seem very "stopped" to me.

TSR made some sweeping and wild IP claims against GDW who were publishing Dangerous Journeys. If they had gone to court, they would have lost a huge number of them. That's not a maybe, TSR would have. They might even have lost all of them, because they were extremely far-fetched stuff. In modern courts it might even be suggested that those claims were so bad that they were an abuse of process and the judge might have censured TSR and the relevant bar might have censured the lawyers bringing the case.

Anyway, they got to court and GDW decided they couldn't make enough money off Dangerous Journeys to make it worthwhile to fight WotC, so they did an out-of-court settlement.

If Dangerous Journeys would have been more likely to make real money, or if legal crowdfunding had existed back then, or if it was in a modern court, the outcome would have not been the same.

Its easy to be mighty sure of yourself when you don't ACTUALLY have anything at stake. Nor are you necessarily right, TSR could have won, and a litigant could win today too, you can't say without doing it. History is rife with people who were SURE of X, Y, and Z until the chips fell.

And the outcome here is exactly what is likely today, the defendant realizes they are staking their entire life savings and possibly even future earnings against the hope of maybe making a few bucks selling a game. DJ wasn't going to make real money, and neither is any other RPG today (PF1/2 might marginally be an exception, maybe Warhammer?) So, I profoundly disagree that a 'modern court' is any different from a 1980s court, sorry.

 

[GMforPowergamers]

And in 2023, they'd be on the front page of dozens of gaming magazines, the guy would be doing interviews on video, WotC would be having to say "no comment", and legal crowdfunding would be involved.

It really seems like you're stuck in 1990 on this.

and other then holding up that it was last week an OGL product, I can't imagine how they could make a case...

Rifts looks a lot like 2e D&D
TORG looks like Vampire and 2e had a baby... both predate the OGL by at least 10 maybe 15 years.

I can't imagine "They are useing a d20 for attacks" is going to get far.

 

[Ruin Explorer]

that sound intresting... could you give an example? What could they lose (other then the OGL becoming permanent non revocable)?

So let's assume the OGL 1.0a doesn't hold up. Because if that holds up, it's basically case over - and WotC will want it to be too.

Ok so then WotC has to say that the company are doing an IP violation - likely a combination of trademark and copyright. This is what happened in both TSR v GDW and and GW vs CHS. In both cases the "big mean company" got a giant list of trademark and copyright violations, many of them very far-fetched, and threw them at the "little poor company".

GDW decided not to fight, despite the weakness of TSR's case, I think in part honestly because Dangerous Journeys was never going to set the world on fire. So they reached an out-of-court settlement.

CHS, on the other hand, in 2013, did fight, and GW lost about 60-70% of their IP claims. Including the ludicrous claim that "big shoulderpads" were somehow GW IP.

Because they lost some of the claims, CHS ended up paying $25k. Not a huge amount. GW, on the other hand, realized that now people could much more freely and safely make competitors to GW products, because loads of things people thought were "risky" when CHS were doing it proved to be completely fine. And a court case said so.

This lead to GW renaming huge numbers of lines, and it even seems to have been part of what lead to Age of Sigmar being created, because one of the main things Age of Sigmar does is eliminate older, more "generic fantasy" models, and instead to put in tons of wackier and wilder fantasy stuff that's more specific to GW, and also it renames tons and tons of factions to unique stuff which they can potentially make IP claims on (Orc goes to Orruk, Elf goes to Aelf, Dwarf goes to Duardin and so on).

So, I profoundly disagree that a 'modern court' is any different from a 1980s court, sorry.

Then you just don't know what you're talking about, sorry. That's pure ignorance.

You didn't actually answer any of my points, I note. And "TSR could have won" illustrates a fundamental failure to understand how IP law works. No, they could not have, not without losses. Many of those claims would never have stood.

 

[AbdulAlhazred]

No they didn't, but you may have missed it because it was during the pandemic.

Google LLC v. Oracle America, Inc. - Wikipedia

en.wikipedia.org

Yeah, we know, but note that the most critical legal point was never decided, and Google still had to appeal to SCOTUS, which costs, you know, 8 or 10 million dollars by the time you get done with the trial and 2 levels of earlier appeals, minimum! They went to trial on a principle that was assumed open and shut for 70 years and lost multiple times. ONLY the fact that they are a massive money machine allowed them to, sort of, prevail. Even then they stopped doing the thing that got them sued in the first place. Pyrrhus would be proud of you!

 

[Ruin Explorer]

Yeah, we know, but note that the most critical legal point was never decided, and Google still had to appeal to SCOTUS, which costs, you know, 8 or 10 million dollars by the time you get done with the trial and 2 levels of earlier appeals, minimum! They went to trial on a principle that was assumed open and shut for 70 years and lost multiple times. ONLY the fact that they are a massive money machine allowed them to, sort of, prevail. Even then they stopped doing the thing that got them sued in the first place. Pyrrhus would be proud of you!

Only the fact that Oracle are a massive money machine allowed them to even bring the case.

Oracle brought on board literally the most heavyweight, incredible dream team of ultra-expert god-tier Jedi Master IP lawyers that have ever existed.

And still lost.

 

[rozgarth]

I’m sorry if I’ve missed it somewhere in this thread, but a couple of posters have mentioned that the GPL 2.0 has been held to be irrevocable despite saying only that it was perpetual. Does anyone know what case(s) decided this issue?

 

[mamba]

Perhaps, but Gary was as able as any random person off the street to fight this kind of thing. He got his arse handed to him, because it was little guy vs big company! It is exactly relevant. If WotC really wanted to make the point, they could pick someone with equally small resources and a very D&D-like game.

If the little guy does not fight back, nothing is settled wrt copyright, so no one else has to react at all. Alternatively, some others jump in and pool resources because it affects them all