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

[glass]

Now, let's be honest here. First off, the chances that the copyright to Dungeons and Dragons would ever cease to be held by someone is wildly unlikely. As in you are far more likely to spontaneously combust that this happen. WotC would have to disappear, Hasbro would also need to disappear, and both would need to disappear in such a way that they are unable to sell the rights to D&D to someone else before disappearing.

...and even if all that did happen, the liquidator/receiver will sell D&D on their behalf and pass the proceeds to WotC's creditors. The only way the ownership of Hasbro's any of Hasbro's assets ends up in a mess is if 1) they are already in a mess, so selling them is not straightforward or 2) nobody wants to buy them. Neither of those seems to be likely with D&D.

 

[pemerton]

However, what if I could claim that I had reasonable reason to believe I was invited? For instance if two houses next to each other are having identical signs reading "everyone is welcome to enter, as long as you don't wear shoes". I see a lot of people enter one of the houses with slippers. I assume it is commonly accepted that slippers do not count as shoes in this context, so I enter the other house wearing slippers. I then get sued to personal bankruptcy for ruining the floor of the second house. (It turns out that the owner of the first house was dead, which I didn't know).

It's an odd example. Because you're talking about evidence of practice to interpret a condition. You're also raising the issue of remedy (ie damages for loss caused) rather than mere liability (for trespass).

Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&D trademark. That's not about remedy, and nor is about evidence of practice. It's about drawing an inference about one trademark from another. I don't see how that can be reasonable - assuming that reasonableness is even a defence in the context of passing off, which I don't know but would not be certain about.

This also seem ripe for hostile exploit. A bad actor set up a company A publicly offering a contract, widely actively misrepresenting what it say. People take it up, and A enforces it according to the misrepresentation. The bad actor then sets up a second company B offering a contract with the same wording but stay silent about the meaning. After people take up the contract from B assuming it mean what A said, B can then spring whatever hidden trap is set up in the contract. As B did not misrepresent the contract, and A is not part to the contract, there appear to be no way out of the contract with B. And by not being a party of the contract with A, there are no way to seek damages from A either.

If you're talking consumer contracts, those are heavily regulated in most contexts. Likewise employment contracts (perhaps even in the US - though I understand that US employment law is quite libertarian compare to other jurisdictions).

If you're talking commercial contracts like the OGL, then I don't see how dealings between A and contracting parties are relevant to dealings between B and its parties. Unless you're trying to establish some sort of evidence of industry practice, or trying to establish some sort of estoppel given the commonality of the "bad actors" between A and B.

My point is that both of these examples seem to be clear volitions of what I would expect anyone to be considered just. Laws are usually written to align with what is perceived as just. It might be indeed that this is an area were the laws are indeed flawed in that it enables such deeply problematic outcomes. I find it however surprising, given the widespread use of public contracts that there should be such gaping fundamental flaws in the basic law regarding this overall practice.

I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps.

 

[Enrahim2]

I think the sorts of examples you're making up are mostly spurious. They rest on assumptions that commercial actors don't take steps to understand their private rights and contractual obligations. In the real world, commercial actors often do take those steps.

Thank you! I think maybe here lie a key observation. I can agree that if the OGL is looked at trough the same lens as negotiated private contracts between commercial parties this all make very much sense. I think the problem I have with this is that as you point out for instance consumer contracts typically enjoy heavier regulation. And it is not apparent to me that open contracts like the OGL would not somehow fall outside a purely B2B contract regime.

After all, a lot of the users of OGL are hobbyists releasing homebrew for 5ed that they sell for peanuts. Putting such assumptions on their ability or competence to hire legal council before subjecting their IP to the vims of wizards seem weird to me.

Had the only ones being affected been companies having a gross revenue over 750 000, a commercial actor assumption would have made perfect sense. But as wizards themselves put it - they assume that to be an almost insignificant minority.

I find it a bit sad that quality content made by companies like Kobold Press, Frog God Games or Troll Lord Games might get temporarily "locked down", but these I feel confident has ways out of this thanks to being actual proper commercial actors. What I really find tragic is how the works and dreams of hundreds of enthusiasts are getting sealed down. Not to mention those that just quit their day job, hoping to scrape by on their long prepared 5ed supplement they were planning to release.

 

[Enrahim2]

Whereas in the example you gave about trademarks, you're positing that B infers PF isn't protecting its trademarks just because no one is protecting the D&D trademark.

No, I didn't position the inference that PF isn't protecting its trademarks. The crucial (incorrect) inference for this example would be that Paizo accept A's interpretation of the OGL due to not reasonably being able to know that Paizo disagree with A's much publicized claim as to what the OGL mean.

 

[pemerton]

a lot of the users of OGL are hobbyists releasing homebrew for 5ed that they sell for peanuts. Putting such assumptions on their ability or competence to hire legal council before subjecting their IP to the vims of wizards seem weird to me.

In my view, there is a flipside to this: if you build your hobby around the IP of a commercial publishes whose sole source of revenue is leveraging its IP, you can't be too shocked when the licensing regime changes on you. I mean, either your are getting legal advice and building your own business on a sound legal foundation; or you're taking your chances that the company whose IP you're relying on will not change its approach.

Had the only ones being affected been companies having a gross revenue over 750 000, a commercial actor assumption would have made perfect sense. But as wizards themselves put it - they assume that to be an almost insignificant minority.

I find it a bit sad that quality content made by companies like Kobold Press, Frog God Games or Troll Lord Games might get temporarily "locked down", but these I feel confident has ways out of this thanks to being actual proper commercial actors. What I really find tragic is how the works and dreams of hundreds of enthusiasts are getting sealed down. Not to mention those that just quit their day job, hoping to scrape by on their long prepared 5ed supplement they were planning to release.

According to another current thread, sales of PF, CoC and Level Up are booming, and this is being celebrated. Assuming that the overall amount of money being spent on RPGs is not growing significantly, that money is coming from somewhere else: whether the smaller publishers you mention, or WotC, or wherever. I read a lot of posts gleefully wishing disaster on WotC - but it seems to me that WotC employees are as entitled to make a living as anyone else.

The most recent RPGs I've purchased physical books for were written by John Harper (Agon) and BWHQ (Torchbearer). I also recently bought the PDF for Blade of the Iron Throne, a TRoS variant. My personal enthusiasm in relation to small RPG publishers is for these indie types, rather than works in the 5e orbit.

Hence whey, in these threads, my focus is on the legal aspects of what I see as essentially a commercial licensing dispute.

 

[pemerton]

No, I didn't position the inference that PF isn't protecting its trademarks. The crucial (incorrect) inference for this example would be that Paizo accept A's interpretation of the OGL due to not reasonably being able to know that Paizo disagree with A's much publicized claim as to what the OGL mean.

I thought I was replying to this:

What I find mind boggling about this is that there are definitely parties interested in maintaining the integrity of this license, including the public.
To illustrate: For the sake of argument assume wizards go defunct in a way that make their IP effectively unenforced (as @pemerton points out, going out of business might not be a sure way of this, but there might be other ways). Moreover assume Paizo is thriving.
Now assume a new company A publishes a work using 5.1SRD under OGL 1.0a, but include the claim that it is "compatible with D&D". From what has been said, Paizo is then free to inform A that they are in breach of OGL 1.0a. However what if then A is making a claim (highly unlikely to hold up in court) that they indeed is not in breach?

In this scenario, as described by you, it is not at all clear whether or not A is in breach. A is entitled to assert the conformity of its behaviour to its legal obligations, like any other party.

You then posit that:

Assuming Paizo is still powerless, and this situation go on for a significant amount of time. Assume now a new company B put significant investments into a product line "extending Golarion" using PFSRD under OGL1.0a under the false belief that A's argument above now is effectively settled due to industry reliance without opposition (or similar legal-like thinking). Now Paizo is clearly in a position to sue B.

Why would B form a view about its entitlement to use Paizo's trademark based on the absence of anyone setting out to claim or defend the D&D brand?

You're now adding an additional element to your scenario - along the lines that A assert that the OGL does not impose any no bar on using trademarks to indicate compatibility. Why would Paizo not contradict this? What's the plausible scenario in which B take A rather than Paizo to be a better guide to the rights it enjoys in relation to Paizo's IP?

This is why I don't think your scenario is a very plausible one.

 

[Enrahim2]

In my view, there is a flipside to this: if you build your hobby around the IP of a commercial publishes whose sole source of revenue is leveraging its IP, you can't be too shocked when the licensing regime changes on you. I mean, either your are getting legal advice and building your own business on a sound legal foundation; or you're taking your chances that the company whose IP you're relying on will not change its approach.

Well, if your decision on consuming the products of the company is based upon the promise that you for all future can use the product for hobby activity under certain terms - wouldn't changing those terms fall squarely under consumer law?

As for your second bit. Yes, there are "winners" and "losers" of this. I am among those that would be happy to see wizards take a significantly lower market share. But I really didn't want to see it happening trough this kind of misguided trickery.

 

[Enrahim2]

You're now adding an additional element to your scenario - along the lines that A assert that the OGL does not impose any no bar on using trademarks to indicate compatibility. Why would Paizo not contradict this? What's the plausible scenario in which B take A rather than Paizo to be a better guide to the rights it enjoys in relation to Paizo's IP?

Ah, that would be my question (1). If indeed Paizo is able to contradict it, then as described the rest of the scenario is invalidated.
This entire line of reasoning was spawned by this question being confirmed by @Hussar :

Wait a second. Do this mean that if wizards go out of business without managing to sell off the rights to the SRD content, I can safely use the srd ogcs forever as noone can contest my use of the ogl1.0a?

The idea was that as Paizo is not a party of the contract between Wizards and A, they are not in a position to sue A over their claimed interpretation of that contract.

So how could Paizo contradict this?

 

[FrogReaver]

@pemerton and others

This goes for both your view and mine on the topic we have been discussing -

The way I read the OGL 1.0a is that the Contributors are always the licensor (using your view a specific case might be WOTC being 'the Contributors' for the SRD 5.1). Thus, it seems that Licensees of the OGL 1.0a aren't sublicensing anything when posting the OGL 1.0a, but instead just posting 'the Contributors' offer.

If so, then this has downstream implications on what deauthorization would accomplish (assuming they can deauthorize) and also, what a withdrawl of the offer would accomplish (assuming they can withdraw the offer).

Your thoughts?

 

[pemerton]

Well, if your decision on consuming the products of the company is based upon the promise that you for all future can use the product for hobby activity under certain terms - wouldn't changing those terms fall squarely under consumer law?

What jurisdiction's consumer law do you have in mind?

In any event, the terms on which hobbyists can play D&D haven't changed. What you're really trying to argue here, it seems to me, is that small scale ("hobbyist") commercial publishers have a consumer-style right against WotC that it not change its policy in relation to licensing and protecting its IP. I don't really feel the force of the argument.

If those parties think that they enjoy rights under their commercial licences, then by all means they should stand on those rights. I think the argument in their favour is strong. But I don't think that this is comparable to buying a defective toaster or defective car, and having the vendor or manufacturer try and avoid providing a proper warranty. Nor do I see it as analogous to being exploited by an insurance company, bank or telecom. This is not about consumer goods or services. It's about commercial licensing of manifestly valuable intellectual property.