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Message: <blockquote data-quote="pemerton" data-source="post: 5486362" data-attributes="member: 42582">I teach law, including private law (in particular, equity and trusts) in a leading Australian law school. That experience informs some of my opinions about the OGL and the GSL.Except that it allowed you to market your goods using WotC's trade dress. What is the value of that? I don't know, but given the number of products that marketed themselves using the d20 logo and references to WotC's Player's Handbook, I would guess that the value is non-neglible.The GSL also permitted use of a range of terms in a context that WotC might argue infringed upon its copyright, without running the risk of a suit for breach of copyright. That is also, perhaps, of non-negligible value.Well, opinions obviously differ, but I would call it risky to give everyone in the world a free irrevocable licence to reprint vast chunks of my text, when the only asset that I own is my text. Which is what the OGL+SRD did.The risk started to come home to roost with the Mongoose mini-PHBs, and the OGL+SRD games like Conan and Arcana Evolved, and has now been fully realised with Pathfinder.If these games had been published without the protection of the OGL+SRD, my view is that it would not be WotC which would be running the risk of a costly legal battle, but rather the 3PP publishers who would have found themselves on the loosing end of such a battle. As far as these sorts of publications are concerned, the OGL+SRD doesn't protect WotC but rather disarms it.Dancey, back in 2000, expressed the view that WotC would continue to do well because sales of the PHB would dominate. He took for granted that no other company would rival WotC for sale of core books. In my view, Dancey has turned out to be wrong about this.But the laws of copyright still protect WotC's text, including its rules text. And the law of trademarks and of passing off still protect its trade dress. Clark Peterson is on record, for example, as saying that OSRIC is an unlawful infringement of WotC's rights. I'm not enough of an IP lawyer to make a call with the same forcefulness that Clark did, but I can certainly see where he's coming from. And I understand that Kenzer has expressed similar views (although in this latter case I haven't read them, I've only seen second-hand references to them).Is it possible to write up a module, or even a rulebook, which would deliver a 3E or AD&D experience, without infringing on WotC's rights? Possibly. But that is not what the OGL+SRD games do. They use WotC's text, both to express the rules in such a way as to make it clear that what is being promised is a D&D game, and also as part of a broader strategy of hanging on the coattails of WotC's trade dress and market position.The OGL+SRD (plus in some cases the d20 licence) is what makes this possible rather than a potentially serious breach of WotC's rights.There is no exact analogue to US fair use in Australian law, so I'm hesitant to comment too much, but I would be very surprised if fair use extended in the US to protect purely commercial use of large chunks of someone else's copyrighted text, in the absence of some sort of commentary, satire etc.I don't think that any of this is very relevant to the SRD, which contains much more than simple lists, many non-ordinary phrases, and much more than just titles. Furthermore, the "work", in this case, I think would include the whole mode of organisation and presentation of that content, which is obviously aped by the OGL+SRD games.As I understand it, this licence was as part of a settlement agreement pertaining to WotC's breach of Kenzer's copyright in some material reproduced in the Dragon Archive. I don't think that this establishes anything about the legal viability of 3rd party material, and certainly not of OGL+SRD games like Pathfinder and OGL Conan.Undoubtedly, I can publish a gameworld suitable for use in D&D without breaching any of WotC's rights. For example, Terry Amthors' Shadowworld - published with ICE game stats - is an example of such a thing.But as soon as I start inlcuding D&D stats, or explaining how the world is to be understood in D&D terms or expressed using D&D mechanics, let alone start using the term "D&D" in my marketing material, the matter gets a lot more complicated. In my view it is non-trivial to do this sort of thing without infringing WotC's rights. Whereas the whole point of the OGL+STD (plus d20 licence in many cases) is to make this lawful - WotC shares its rights in response for (i) a recognition of its rights, defined very expansively, by the party with whom it is sharing, and (ii) a commitment to abide by the terms of the licence.The GSL does much the same thing, although (i) it offers access to a narrower range of text, (ii) it offers access to a better range of trade dress, and (iii) it is not irrevocable. The revocability of the GSL is what makes it suited to modest individual ventures like the Goodman DDCs, but not to amibitious and ongoing adventures like a Pathfinder rulebook. This is how WotC has "solved", from its point of view, the problem of equipping its own competition.Why would it do that? Apart from anything else, such a licence may fail as a contract if no consideration is flowing from the 3PP to WotC. And who needs a licence to do what is already legal.The point of the GSL is that the 3PP, in return for getting something from WotC - namely, permission to use WotC copyrighted text and trademarks - gives something to WotC, namely, a commitment to abide by the terms of the licence. Don't like the terms? Don't take up the licence. But then, if you don't want to be sued, don't publish using WotC trademarks either.In a commercial environment, I don't think that enforcing one's rights in respect of copyrighted text or trademarks is frivolous.No. It's purpose is to regulate access to WotC's IP. The law already restricts such access - that what it means to call it intellectual property.As for the question of generosity - I think that offering permission to all and sundry to sell products using your trademarks can be fairly described as a generous offer. Which is why I so described it. What other trademark holder with recognition on a level comparable to D&d does this? I don't know one of the top of my head - are there nevertheless many that do so?</blockquote>

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