My thoughts on the new OGL v1.2 draft

[pemerton]

There's also a moral argument for protecting the open gaming commons. If a person or company has contributed work to the commons under OGL 1.0a, they intended it to be shared forever under those terms. Some of those people and companies no longer exist. They won't be moving to another license. Even if the OGL commons doesn't grow like it used to because publishers begin using the ORC, we should fight for rights of new reusers to grow the OGL commons.

I'm mostly trying to talk about the legal issues. But I think that what we are seeing now was always the risk of people hitching their creative endeavours to a commercial entity's copyrighted work. To put it another way, it was never really - in legal terms - a commons. That's why I look at your desired outcome through the lens of what private rights are present licensees able to assert, and what powers do they continue to enjoy to sub-license to new parties.

 

[pemerton]

Precedent is precedent.

That's a tautology. It doesn't bear upon the truth of my post.

 

[Haplo781]

Until it isn’t.

And then it's a new precedent.

If a court were to find that an open license modeled on the GPL can be "deauthorized", then it means the GPL can probably be "deauthorized". And then everyone who licenses their software under the GPL can release a notice saying "Hasbro Inc., its subsidiaries and licensees are no longer authorized to use any software developed under the GPL" and suddenly they'd be unable to use anything more recent than Windows 3.11.

 

[Haplo781]

That's a tautology. It doesn't bear upon the truth of my post.

Uh-huh.

Doesn't change the fact that they'd be shooting themselves in the head if they won.

 

[rcade]

I'm mostly trying to talk about the legal issues. But I think that what we are seeing now was always the risk of people hitching their creative endeavours to a commercial entity's copyrighted work. To put it another way, it was never really - in legal terms - a commons. That's why I look at your desired outcome through the lens of what private rights are present licensees able to assert, and what powers do they continue to enjoy to sub-license to new parties.

It is a commons in the same way that the GPL created a commons. Expensive lawyers at a giant entertainment corporation can try to spin a new reality into existence, but for 23 years we all believed the OGL was completely risk-free to rely on and we had good reason to believe it.

Especially since the only WOTC copyrighted work being reused was a new document created for the specific purpose of being shared. We weren't touching D&D IP or the D&D brand.

 

[Thomas Shey]

Frankly, this is just bizarre. It's utterly routine for parties to contracts, or similar legal arrangements, to identify new possible constructions of their entitlements and powers under those contracts and try and exercise them.

Sometimes this is to try and wriggle out of things. Sometimes this is to try and get others to do new things. Sometimes it is "offensive", sometimes "defensive".

I'm perfectly willing to describe most of those as "confused" or "dishonest" too. Frankly, (Whether those are being applied to the participants or the court system, of course, varies from situation to situation) that seems a good description of most contract violation cases I've seen.

(If you interpret this is my having a slightly dubious of the U.S. l;egal system in general and contract law in specific, you would be interpreting my statement correctly).

 

[pemerton]

It is a commons in the same way that the GPL created a commons. Expensive lawyers at a giant entertainment corporation can try to spin a new reality into existence, but for 23 years we all believed the OGL was completely risk-free to rely on and we had good reason to believe it.

Well, when I posted 10 and 15 years ago about the possibility of WotC revoking its offer, and what might flow from that, I didn't get much traction! But I think that if I was thinking about this possible pathway to risk looking over the licence as a legally educated poster in my spare time, then Paizo's lawyers had probably noticed it too. So I doubt that they have been thinking the OGL is risk-free. But from their point of view, they couldn't have gone down the Pathfinder, "3.5 Thrives" pathway, in the way they did, without relying on the OGL So presumably they've been making a judgement call about how much risk they can tolerate; and also about what their appetite for litigation is.

 

[Yaarel]

A declaration of right doesn't "nullify" anything. It does what it says on the tin. And as I posted upthread, a quick Google confirmed my suspicion that it is also available in US law.

"Australian games" don't have standing to sue WotC anymore than anyone else does.

If I am understanding a "declaration" right, it can preemptively prevent an attempt to "de-authorize" the OGL 1.0a. At least jurisdictionally.

If you are familiar with what a declaration can do, can you clarify?

 

[pemerton]

Uh-huh.

Doesn't change the fact that they'd be shooting themselves in the head if they won.

They will be arguing about the particular terms of their particular licence. I imagine that the other parties to the litigation might want to make the case about something else, but I would expect WotC's legal team to work hard to keep the focus of any case on the issues that matter to them.

 

[Myrdin Potter]

I am not sure why people are using emotional arguments against what pemerton is saying.

If he says that the FAQ does not say and the license does not say that it will be offered forever, take that at face value. If he is wrong, point him to the text that WoTC put forth otherwise.

If you read the PSA thread and looked at the post he made in 2008, he is not saying that WoTC is in the right or that he does not think there is a good argument that WoTC cannot unilaterally deauthorize 1.0a.

He is just saying that he does not see evidence that they said they will ever stop offering the license.

I paid a lot of money to lawyers (like $10’s of millions) in my career and denying reality when they are giving you a legal reading is really counter productive.

If I am remembering right, he is not even a USA lawyer and has not passed the bar exam in a U.S. state.

His observations seem spot on to me and would be really helpful when preparing litigation/defense against an action that WoTC might take.

Publishers are near the spot where they would be able to sue. WoTC might have crossed the line where damages are really happening because they finally are public that they will stop offering the license for anything new (which may mean reprints or new pdf sales).

I had some hope that UK law is harder for them to overcome but if they sue one bookshelf and win in the USA (or just scare them), then how much does a UK victory really mean? Or Kickstarter? Every 1.0a launch gets a C&D?