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

pemerton

Legend
One issue I haven't seen touched upon is the issue of contractual misrepresentation? I just stumbled upon the concept online, and it might seem relevant?

The contract I believe have been demonsratably been presented as a safe fundation for open source style investments. If this is found to be false due to wizards undisclosed ability to retroactively close down certain material presented as "open", that appear to be matching common definitions of misrepresentation?
Setting many of the details to one side - the typical remedy for misrepresentation in contract formation is rescission of the contract. In the current situation, non-WotC parties to the OGL want to hold WotC to the contract, not rescind it.

The typical remedy for misrepresentation or fraud in the context of post-formation dealings will be damages (whether in negligence, fraud or breach of contract, depending on context and details). Again, non-Wotc parties to the OGL don't want damages from WotC - they want to hold WotC to the contract.

The significance of WotC's post-contractual remarks made on their FAQ etc have been well-discussed in this thread: they may be relevant to interpretation, and they may generate arguments based on estoppel and allied doctrines. And if WotC are now purporting to exercise powers that, on the best construction of the contract in light of their past conduct they don't actually possess, then the "remedy" for that is for parties to defend themselves when sued by pleading the contract. Alleging misrepresentation by WotC doesn't seem to add anything to that.

Assuming well established open source schemes do not have this withdrawal of offer issue - what mechanism do they have to prevent that? Is it reliance on this assumption, or might there be something else, like formulation in a way that do not place it into the domain of contract law?
I don't know. I've asked this in another thread, but to date no one has answered it.

I might have missed some crucial argumentation. As I pictured that would rely upon the conflation that knowledgeable posters have warned us to avoid, i.e. the owner can suspend their offer of any future licenses, but doing so does not terminate licenses that already exist (and particularly not those between second and third-parties.) Hence my theory that the virality of 1.0 has (potentially) done the necessary work already.
Caveating that @pemerton is the best person to speak for their arguments, to my reading they are implying that under the more plausible interpretation, OGL1.0 licences / sub-licenses / sub-sub-licences (if such exist) that are already in place will withstand Hasbro deciding to no longer offer any further such licences.
The "viral" character of the OGL v 1.0/1.0a depends upon the content of the grant of permission under section 4. Section 4 has two key terms: "Use" - which includes licensing within its meaning - and "the Open Game Content" (my emphasis).

Speaking purely in terms of textual interpretation, and without having regard to WotC's other representations and conduct, I think the reference of the phrase "the Open Game Content" is not straightforward, because of the way it turns on the interplay with section 2 and 3; and that one of the available constructions runs WotC's way. I don't assert that that is the best construction. But if I was a 3PP wanting to stand on my contractual rights I would not be relying solely on textual arguments: I would be relying heavily on WotC's other representations and conduct, as per my remarks above in this post.
 

log in or register to remove this ad

mamba

Hero
I think that, before anyone starts deciding whether or not to bother, it's worth asking what legal result are you trying to achieve?

For instance, a licence agreement which, once entered into, (i) granted a licensee permission to use all of the content in the licensed work (not just the content that the licensee uses in the course of becoming a party), and (ii) made it clear that the permission to use included a permission to sub-license even if the offer to enter into new licences is withdrawn, would seem to do what everyone wants.
but that is preventing the case I want to prevent.... so the answer I was looking for ;)

My point was that if there is no way to accomplish this, then I would not care about what the rest of the license contains, as this will just be a repeat of 1.0a
 

SoonRaccoon

Explorer
I have a question about the VTT angle of all this.

Let's say that OGL 1.0a is "deauthorized" and VTTs can no longer rely on it. Source code is a form of expression that is protected under copyright. If a developer programs support for D&D 5e into their VTT, that seems like the purest form of a clean room re-expression of game mechanics. The D&D rules are written in English, and the VTT is written in C++, or whatever. I think it would be hard to argue that the source code infringes copyright.

The VTT would probably need to use things like spell names, monster names, class names, ability names, and so on. I expect that's a non-zero amount of exposure. What other issues might arise here?
 

pemerton

Legend
I have a question about the VTT angle of all this.

Let's say that OGL 1.0a is "deauthorized" and VTTs can no longer rely on it. Source code is a form of expression that is protected under copyright. If a developer programs support for D&D 5e into their VTT, that seems like the purest form of a clean room re-expression of game mechanics. The D&D rules are written in English, and the VTT is written in C++, or whatever. I think it would be hard to argue that the source code infringes copyright.

The VTT would probably need to use things like spell names, monster names, class names, ability names, and so on. I expect that's a non-zero amount of exposure. What other issues might arise here?
I don't know much about coding.

But if in fact the source code you are referring to doesn't meet the criteria for being OGC, why does the programmer need a copyright licence with WotC that permits them to us WotC's OGC?
 

Enrahim2

Explorer
I have a question about the VTT angle of all this.

Let's say that OGL 1.0a is "deauthorized" and VTTs can no longer rely on it. Source code is a form of expression that is protected under copyright. If a developer programs support for D&D 5e into their VTT, that seems like the purest form of a clean room re-expression of game mechanics. The D&D rules are written in English, and the VTT is written in C++, or whatever. I think it would be hard to argue that the source code infringes copyright.

The VTT would probably need to use things like spell names, monster names, class names, ability names, and so on. I expect that's a non-zero amount of exposure. What other issues might arise here?
I can answer as a software engineer. "Paraphrasing" the free source code of an open source project into your closed source project is something we know to not be OK. Looking at open source for educational purposes to get ideas for how elements can be used are commonly accepted though.

The concept that there is a distinction between the elements that make up a system and the whole system hence is something that come natural to us.

Another thing to be aware of is that it is possible to construct source code that look remarkably similar to "everyday language". Hence the level of paraphrasing you might imagine having to take place might not be so substantial as you might think. For instance "if you fall, you take 1d6 damage per 10 feet falled" might come out as something like "if(event.type == fall) takeDamage(dice(6).times(event.heightInFeet/10));". In this regard the writing the code would be more likened to translation than any kind of pure reexpression.

Luckily the proposed CC appear to include almost everything that would be natural to include in code form, so this isn't really a question at all. The big issue is with the things that in a software project would normally be found in asset packs. This would for instance be the numerical values describing the stats and combat abilities of the owlbear. If these values were punched into any tool while looking at the owlbear statblock without a license to use it, that would to me appear an obvious copyright issue. It wouldn't matter if that tool was a programming language, a hex editor or some nice graphical vtt npc sheet. It would still be "copying" in my mind. (However the question if a statblock is copyrightable I leave to the lawyers. At least in my mind it do not align with my internal understanding of a "process")
 

clearstream

(He, Him)
Just means you have to go to court ready to argue that clause is also illegitimate if the first one is (yes, I'm aware this complicates the likelihood of the case going your way, but that sort of multi-step booby-trapped contact is not exactly unknown, though judges don't always look on it with good favor).
Regarding the moral clause, I think you will not be arguing that the clause is illegitimate, but that it has been illegitimately applied. You might be silent or you might respond in a letter laying that out, and you will carry on publishing. Hasbro will need to spend the first few thousand dollars to seek an injunction.

The court will read the clause, and ultimately they will decide whether your content makes it rightly applicable. If it is used frivolously, a court is more likely to refuse the injunction. Especially if there is a pattern of behaviour by Hasbro to try and wield that clause anti-competitively.

No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.

Perhaps what is being supposed is that Hasbro can simply make a party stop publishing their content? That is the case only for distribution channels that Hasbro controls. Otherwise, they need to take legal action against that party to stop them. I don't see how f prevents you being party to such action once initiated by Hasbro. It does give them stronger power over what they distribute on channels they control.



[EDIT: I should clarify that while I can appreciate motives for Hasbro wanting the wording I have, and as explained above can see constraints on its abuse, I don't believe they are taking the right approach. Other posters have suggested better approaches.]
 
Last edited:

UngainlyTitan

Legend
Supporter
I have a question about the VTT angle of all this.

Let's say that OGL 1.0a is "deauthorized" and VTTs can no longer rely on it. Source code is a form of expression that is protected under copyright. If a developer programs support for D&D 5e into their VTT, that seems like the purest form of a clean room re-expression of game mechanics. The D&D rules are written in English, and the VTT is written in C++, or whatever. I think it would be hard to argue that the source code infringes copyright.

The VTT would probably need to use things like spell names, monster names, class names, ability names, and so on. I expect that's a non-zero amount of exposure. What other issues might arise here?
As a former software developer I believe that a D&D "aware" VTT could be developed with out copyright issue since one could implement the rules as a mechanical thing.
That is the rules engine in the VTT could be instructed to manage all the dice rolls needed to play D&D.
What get into trouble is the additional modules that automate character creation (as @Enrahim2 states above)

I do wonder that if the VTT did not provide such additional assets but say a rich die roll macro language and a tagging system to identify text boxes so that a user could recreate a character sheet and automate the die rolls to the chat log (or what ever) would that count as fair use on the users part or would the user be exposed to copywrite claims by WoTC.
 

Staffan

Legend
The "viral" character of the OGL v 1.0/1.0a depends upon the content of the grant of permission under section 4. Section 4 has two key terms: "Use" - which includes licensing within its meaning - and "the Open Game Content" (my emphasis).

Speaking purely in terms of textual interpretation, and without having regard to WotC's other representations and conduct, I think the reference of the phrase "the Open Game Content" is not straightforward, because of the way it turns on the interplay with section 2 and 3; and that one of the available constructions runs WotC's way. I don't assert that that is the best construction. But if I was a 3PP wanting to stand on my contractual rights I would not be relying solely on textual arguments: I would be relying heavily on WotC's other representations and conduct, as per my remarks above in this post.
"The Open Game Content" is defined outside the license itself. In the 3.5e SRD, there's a legal.rtf file that says:
Permission to copy, modify and distribute the files collectively known as the System Reference Document (“SRD”) is granted solely through the use of the Open Gaming License, Version 1.0a.

This material is being released using the Open Gaming License Version 1.0a and you should read and understand the terms of that license before using this material.

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

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, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, Ever-Changing 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.

All of the rest of the SRD is Open Game Content as described in Section 1(d) of the License. (Emphasis mine)

More information on the Open Game License can be found at www.wizards.com/d20.
(Followed by the actual OGL.)

So the OGL itself doesn't make the SRD Open Game Content. The declaration above does, and it then refers to the OGL for an explanation of what that means.
 

mamba

Hero
The VTT would probably need to use things like spell names, monster names, class names, ability names, and so on. I expect that's a non-zero amount of exposure. What other issues might arise here?
I think this is part of the problem, the other is that you essentially copy the entire OGC. The rules are fine, but once you get to the monster stats or spell and item stats, that does become fuzzy, and the more of that is identical / similar, the more this becomes a clear case of copyright infringement.

If you used the rules but built your own monsters, classes, etc. on top, you would probably be fine
 

Thomas Shey

Legend
Regarding the moral clause, I think you will not be arguing that the clause is illegitimate, but that it has been illegitimately applied. You might be silent or you might respond in a letter laying that out, and you will carry on publishing. Hasbro will need to spend the first few thousand dollars to seek an injunction.

The court will read the clause, and ultimately they will decide whether your content makes it rightly applicable. If it is used frivolously, a court is more likely to refuse the injunction. Especially if there is a pattern of behaviour by Hasbro to try and wield that clause anti-competitively.

The problem, of course, is that Hasbro has set it up so what particular part of your content its supposedly applicable to isn't even explained. I'm not even 100% clear if they have to say which particular product is violating it. But even if they do, lets say its supposed to apply to the Dzurland Sourcebook. Is the court actually going to go through a 300 page setting book to try and figure out what Hasbro had an issue with here?

The black box nature of this clause here seems to make it especially difficult to engage with on a legal level.

No Hateful Content or Conduct. You will not include content in Your Licensed Works that is harmful, discriminatory, illegal, obscene, or harassing, or engage in conduct that is harmful, discriminatory, illegal, obscene, or harassing. We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action.

Perhaps what is being supposed is that Hasbro can simply make a party stop publishing their content? That is the case only for distribution channels that Hasbro controls. Otherwise, they need to take legal action against that party to stop them. I don't see how f prevents you being party to such action once initiated by Hasbro. It does give them stronger power over what they distribute on channels they control.

It seems pretty clear they can pull the license at that point, however, which could leave you twisting in the wind in successor content. And your practical recourse seems limited.
 

Thomas Shey

Legend
As a former software developer I believe that a D&D "aware" VTT could be developed with out copyright issue since one could implement the rules as a mechanical thing.
That is the rules engine in the VTT could be instructed to manage all the dice rolls needed to play D&D.
What get into trouble is the additional modules that automate character creation (as @Enrahim2 states above)

I do wonder that if the VTT did not provide such additional assets but say a rich die roll macro language and a tagging system to identify text boxes so that a user could recreate a character sheet and automate the die rolls to the chat log (or what ever) would that count as fair use on the users part or would the user be exposed to copywrite claims by WoTC.

Personal feeling on that is that its going to be really hard to Hasbro to sue them for, essentially, the digital equivelent of what anyone who puts together a fillable PDF character sheet and tools thereof can, especially if its set up so it applies to a variety of game systems (not that that's easy to do in a way that's actually easy for an end user who isn't familiar with layout to use; I've seen several attempts in various programs and bounced off them hard, and I'm probably better skilled in related areas than the routine user).
 

Thomas Shey

Legend
I think this is part of the problem, the other is that you essentially copy the entire OGC. The rules are fine, but once you get to the monster stats or spell and item stats, that does become fuzzy, and the more of that is identical / similar, the more this becomes a clear case of copyright infringement.

If you used the rules but built your own monsters, classes, etc. on top, you would probably be fine

Its not entirely clear to me to what degree copyright applies to saying "This monster (of a new name in a few cases) has these numerical values associated with these traits". Of course, its not clear it doesn't, either. I wonder if there's any relevant caselaw?
 

SoonRaccoon

Explorer
IIRC, earlier in the thread someone brought up a Harry Potter encyclopedia, or similar. The book contained facts about the Harry Potter universe, but was not a novel continuing the Harry Potter story. Would that be at all relevant to the idea that monster stats are just facts about the monsters?
 

S'mon

Legend
IIRC, earlier in the thread someone brought up a Harry Potter encyclopedia, or similar. The book contained facts about the Harry Potter universe, but was not a novel continuing the Harry Potter story. Would that be at all relevant to the idea that monster stats are just facts about the monsters?

Are stats really 'facts'?

My feeling as a copyright guy who did a PhD comparing UK with France & Germany is that in UK copyright law a 5e monster stat block is sufficiently substantial to be a copyright work, but in various European/EU Civil Law jurisdictions it would likely not be due to their emphasis on 'stamp of author's personality' type ideas. In Feist v Rural 1991 the US Supreme Court found that white pages telephone directories were not copyright protected - just a collection of facts - whereas a yellow pages business directory was protected due to selection & arrangement of the data. In the EU I'm pretty sure a yellow pages directory would not be protected, going by ECJ cases like Football DataCo.
 


pemerton

Legend
"The Open Game Content" is defined outside the license itself. In the 3.5e SRD, there's a legal.rtf file that says:
Permission to copy, modify and distribute the files collectively known as the System Reference Document (“SRD”) is granted solely through the use of the Open Gaming License, Version 1.0a.

This material is being released using the Open Gaming License Version 1.0a and you should read and understand the terms of that license before using this material.

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

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, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, Ever-Changing 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.

All of the rest of the SRD is Open Game Content as described in Section 1(d) of the License. (Emphasis mine)

More information on the Open Game License can be found at www.wizards.com/d20.
(Followed by the actual OGL.)

So the OGL itself doesn't make the SRD Open Game Content. The declaration above does, and it then refers to the OGL for an explanation of what that means.
I had a version of this discussion upthread, with @FrogReaver.

In the post you quoted, I am not puzzled about the notice that WotC have included in their SRD. I am talking about the subject matter of the licensing agreement that a party enters into when they become a party to the OGL with WotC. The subject matter of that licence is (to quote from section 4 of the licence; emphasis added) "the Open Game Content". The reference of this phrase requires interpretation. That interpretation depends on the interplay between sections 2, 3 and 4. It's not straightforward in my view.

I've set out possible interpretations of the phrase in post 2140 upthread. I won't reiterate the reasoning, but here are some possibilities:

*It refers to the OGC that has been included or otherwise used in the licensed work
*It refers to all of the OGC that occurred in the source work at the time the contract was entered into;
*It refers to all of the OGC that occurred in the source work so long as the source work continues to contain an operative notice of the sort referred to in section 2.​

If the third possibility is correct, then when WotC withdraw the notice from the SRD - ie when they revoke their offer to license it to all comers - the subject matter of the permission the WotC has granted by way of section 4 evaporates, even though the contract with WotC remains on foot.
 

*It refers to all of the OGC that occurred in the source work so long as the source work continues to contain an operative notice of the sort referred to in section 2.
Why is this interpretation possible? They can’t remove the notices from other people’s publications. If those distributions contain WotC’s contributed OGC and declares it to be OGC (and that publisher is a Contributor of OGC themselves), what does it matter if WotC themselves currently do not distribute copies that contain such a declaration?

It would still be OGC that "contains a notice indicating that the Open Game Content may only be Used under and in terms of this License". It would even be "content clearly identified as Open Game Content by the Contributor", if you think that part of the definition is important. Anyone contributing OGC is a contributor, not just WotC. The definition isn't "content clearly identified as Open Game Content by the Original Contributor" or anything like that.
 

pemerton

Legend
Why is this interpretation possible? They can’t remove the notices from other people’s publications. If those distributions contain WotC’s contributed OGC and declares it to be OGC (and that publisher is a Contributor of OGC themselves), what does it matter if WotC themselves currently do not distribute copies that contain such a declaration?

It would still be OGC that "contains a notice indicating that the Open Game Content may only be Used under and in terms of this License". It would even be "content clearly identified as Open Game Content by the Contributor", if you think that part of the definition is important. Anyone contributing OGC is a contributor, not just WotC. The definition isn't "content clearly identified as Open Game Content by the Original Contributor" or anything like that.
Section 1 tells us that "'Contributors' means the copyright and/or trademark owners who have contributed Open Game Content". Not parties who might enjoy a contractual power to sub-license the OGC.

More generally, as I have posted multiple times there are, in my view, various candidate textual interpretations available. Yours may be one. I don't think it's the most natural, though - the power to sub-license is one incident of the permission to use, which is a legal relationship to the owner of the copyright in the OGC; and to me your suggested interpretation makes it more complicated to understand how the content of the sub-licence is established, as that becomes mediated through a notice that is not attached to the whole of the licensed work but rather to some (potentially limited) reproduction of it by a downstream licensee.

I could see an argument that the downstream licensee enjoys some sort of authority to notify on behalf of the licensor who is named in the section 15 statement. But it would be open to argue that if the copyright owner has withdrawn their notice, and that is known to those who read the licensee's notice, then the authority is gone.

I reiterate that I don't have a definite, let alone dogmatic, view about the best textual construction. I also think that a 3PP defendant would almost certainly wish to rely on considerations beyond the text - ie WotC's other conduct and representations.
 

Section 1 tells us that "'Contributors' means the copyright and/or trademark owners who have contributed Open Game Content". Not parties who might enjoy a contractual power to sub-license the OGC.
Yes. But it's the Contributors, in the plural, in section 4. It's not "each Contributor separately". They are somehow acting collectively (or on behalf of each other) when they all, inter alia, grant You the right to Distribute, copy and modify "the Open Game Content." They have previously granted each other those rights, and the definition of Distribute includes a right to license, opening the door for sub-licensing. Indeed, the termination clause in section 13 specifies that these sublicenses survive termination.

More generally, as I have posted multiple times there are, in my view, various candidate textual interpretations available. Yours may be one. I don't think it's the most natural, though - the power to sub-license is one incident of the permission to use, which is a legal relationship to the owner of the copyright in the OGC; and to me your suggested interpretation makes it more complicated to understand how the content of the sub-licence is established, as that becomes mediated through a notice that is not attached to the whole of the licensed work but rather to some (potentially limited) reproduction of it by a downstream licensee.
My interpretation does mean that the declarations of OGC downstream should be inclusive of any material included that is already declared to be OGC, yes. This has generally been the case in professional products tough. Even if it's not necessarily how a court would rule it to work, most OGL users have intended to treat any derived works arising from OGC as OGC by default, thus growing the pool of OGC. That's the copyleft part of it. And it's a feature, not a bug.

There have been few attempts at taking someone's OGC, altering it only slightly and claiming it as Product Identity. Arguably, this isn't allowed. It's certainly not in the spirit of the thing. Everyone wanted a growing pool of rules expressions available under the license. This makes creating new games and mechanics easier and less risky for everyone, since you can copy others verbatim instead of having to do clean room design. Innovations would be shared, not closed off.

Incidentally, these are the same concerns driving the idea of open source programming. It's not unique to the RPG industry at all.

I could see an argument that the downstream licensee enjoys some sort of authority to notify on behalf of the licensor who is named in the section 15 statement. But it would be open to argue that if the copyright owner has withdrawn their notice, and that is known to those who read the licensee's notice, then the authority is gone.
This would almost certainly have to be the case if the license was going to work as originally intended.

I reiterate that I don't have a definite, let alone dogmatic, view about the best textual construction. I also think that a 3PP defendant would almost certainly wish to rely on considerations beyond the text - ie WotC's other conduct and representations.
I agree with your last sentence here.
 
Last edited:

pemerton

Legend
Yes. But it's the Contributors, in the plural, in section 4. It's not "each Contributor separately".
Whether "the Contributors" should be read collectively or distributively is a matter of construction. I think the distributed reading is more plausible, because a licence flows from each distinctly in respect of their own copyright.
 

An Advertisement

Advertisement4

Top