My thoughts on the new OGL v1.2 draft

[aco175]

Sometimes a slow, deliberate process of getting feedback and then making a decision beats a kneejerk reaction to do silly things. This leads to the question though about trusting the process since there is assertions of not reading comments of the development of the 1D&D game. There is also trust problems from trying to jam this down out throats a few weeks ago in the first place. I am willing to give some slack. Many have already pointed out that what they came up with is better than first thought.

 

[Aspirinsmurf]

Aspirinsmurf: see my post re first case.

eyeheartawk: see my post re second case.

That analysis is tortured and wouldn't survive even brief contact with the judicial system where I live.

 

[pemerton]

That analysis is tortured and wouldn't survive even brief contact with the judicial system where I live.

Which analysis is tortured?

I gather you're a Norwegian lawyer?

 

[Aspirinsmurf]

Which analysis is tortured?

I gather you're a Norwegian lawyer?

Not a lawyer. Just a consumer activist.

 

[pemerton]

Not a lawyer. Just a consumer activist.

The OGL is not a consumer licence. It's a commercial licence. I don't know if that's relevant in Norwegian law.

Which analysis is tortured?

 

[eyeheartawk]

There are orphaned works entangled in those ecosystems. So this is impossible. It's a nuclear wasteland at that point.

Right.

How many books are out there that the creator hasn't even thought about in ages and has no intention to?

If the content in your book, requires that creator to actively do a thing to relicense under ORC or CC or whatever for you to use it again, I don't see how it doesn't blow a huge planet sized hole in a ton stuff.

 

[xiphumor]

I'm not entirely sure if this is to our advantage. I'd personally much rather get sued as a consumer activist in Norway than having to go against WotC in the US state of Washington.

But under the OGL 1.2, you would be sued in the US state of Washington, not in Norway.

 

[Aspirinsmurf]

But under the OGL 1.2, you would be sued in the US state of Washington, not in Norway.

I haven't agreed to those terms. And I never will.

 

[pemerton]

If the content in your book, requires that creator to actively do a thing to relicense under ORC or CC or whatever for you to use it again, I don't see how it doesn't blow a huge planet sized hole in a ton stuff.

What sort of scenario are you worried about?

Suppose that W(otC) licenses to A who produces a work containing OGC X that is derivative of W's OGC and also OGC Y that is not derivative of W's OGC..

Suppose further, purely for the sake of argument, that W successfully ends the licence in respect of their OGC.

Finally, suppose that B now wishes to publish a work containing X and/or Y. If they publish X, they may be infringing W's copyright, and they have no licence from W. So they would be relying on a sub-license from A. Given the supposition in the previous paragraph, A may lack such a power.

On the other hand, if B publishes Y then they have a licence from A to do so, set out (using the text of the OGL) in A's work.

I don't see that there is any need for A to relicense. That seems unnecessary in respect of Y, and ineffective in respect of X given that W has not agreed to any other licence regime.

 

[pemerton]

I haven't agreed to those terms. And I never will.

You're quoting the wrong person.

 

[Aspirinsmurf]

Which analysis is tortured?

I think you sum it up in #2,161. Why wouldn't this evidence be considered? It seems crucial to me, along with the representations they made when they first launched the OGL and in the FAQs.

 

[xiphumor]

I haven't agreed to those terms. And I never will.

Great! I approve! But that still means the case wouldn’t show up in Norway. That’s my only point.

 

[pemerton]

I think you sum it up in #2,161. Why wouldn't this evidence be considered? It seems crucial to me, along with the representations they made when they first launched the OGL and in the FAQs.

That will depend on principles of construction, of evidence, and other things in the jurisdiction where the matter is heard. WotC would be wanting to confine the matter to the text of the licence. They would also want to argue that reliance on a public-facing FAQ as a guide to the meaning of the licence is not reasonable.

 

[Morrus]

Right, but if say OGL 1.0a is "de-authorized" and nobody challenges it and it becomes the de-facto state of affairs, and you switch to ORC, wouldn't all the open game content from others you use and cite, right now, in your game (if any, I don't actually know) need to also switch to ORC and re-designate the same content as open game content?

How else could that work?

The OGL in your book would simply become meaningless. It's presence won't harm anything, so you don't need to urgently remove it or anything. It's just a wasted page.

As for how an new o alternative license now applies to your book--depends on the verbiage of the licence as to what changes you need to make and how quickly. I assume ORC or something similar will make that as painless as possible. I imagine there could be a structure where you don't have to do anything to the book itself--when we published Judge Dredd, we didn't have to include a copy of our license with Rebellion in the book.

 

[pemerton]

The OGL in your book would simply become meaningless. It's presence won't harm anything, so you don't need to urgently remove it or anything. It's just a wasted page.

This doesn't seem right to me. WotC's decisions about the terms on which it licenses its copyright material - assuming it has the power to make such decisions - don't seem to me to affect contracts made between other parties about how they license their copyright material to one another.

 

[OB1]

@Morrus regarding the morality clause, would it be acceptable to allow WotC to suspend the offending licensee pending and independent review of the material by an independent third party. This would allow WotC to move quickly against truly harmful content, while putting in a safeguard against WotC abusing that authority.

 

[Morrus]

@Morrus regarding the morality clause, would it be acceptable to allow WotC to suspend the offending licensee pending and independent review of the material by an independent third party.

Nope. That could cost me thousands.

 

[Morrus]

This doesn't seem right to me. WotC's decisions about the terms on which it licenses its copyright material - assuming it has the power to make such decisions - don't seem to me to affect contracts made between other parties about how they license their copyright material to one another.

But we're talking about people choosing to switch to a different license such as ORC, and how onerous the task is of how that license filters through. Which depends on the terms of that license. As I said, it could be an easy process, depending on the license.

 

[pemerton]

But we're talking about people choosing to switch to a different license such as ORC, and how onerous the task is of how that license filters through. Which depends on the terms of that license. As I said, it could be an easy process, depending on the license.

Sure. But I think the idea that work will be orphaned without a switch to ORC is exaggerated. Whatever WotC does vis-a-vis the licences they have granted in terms of OGL v 1.0a, they can't affect al the other contracts between all the other licensors and licensees who have used that licence.

Some of those other contracts concern OGC which might infringe WotC's copyright if published without a licence from WotC (eg because some OGC is derivative of WotC's OGC). ORC can't save that work.

But many of them concern OGC which is not connected to anything copyright WotC. And that work remains licensed and licensable in terms of the OGL v 1.0a without any need to move to ORC.

 

[Morrus]

Sure. But I think the idea that work will be orphaned without a switch to ORC is exaggerated.

I've never suggested anything like that. Frankly, I'm very much on record as saying I don't even believe WotC can de-auth the OGL (though man that's a debate that's getting old, and doesn't need to be rehashed here.)

I'm talking about this from the perspective of a creator community of non-SRD derived stuff (eg Fate or Traveller) which now chooses to ignore the OGL completely and move to a new license. Cut WotC out of the equation voluntarily, and how easy or not that would be.