Poison Pill v. Restraint of Trade

[Michael Morris]

Ran into this blog entry.

http://bryant.livejournal.com/629807.html?thread=1734447

Interesting point. He's not a lawyer, and neither am I, so the theory that the GSL poison pill is utterly unenforceable under the common law doctrine of restraint of trade may be a load of bunk. It's certainly one requiring a test in the court that could be quite expensive to undertake.

Wikipedia entry on what restraint of trade is...

http://en.wikipedia.org/wiki/Restraint_of_trade

 

[pawsplay]

The question is whether "D&D and similar games" is a category of products in which a D&D player should reasonably benefit from third parties publishing aids and adjuncts. I have an easy answer to that question, but opinions may vary.

EDIT: Well, and whether WotC is depriving 3pp of their livelihood. Or whether the GSL actually grants anything in exchange to a publisher in exchange for the assurances to WotC.

 

[Xyxox]

You can tell the blogger is not a lawyer. First of all, there is no longer a d20 license. Second fo all, the OGL is a license entered into with WotC. WotC is 100% within its rights to deny you ever entering into one licensing agreement with them if you enter into a differenet licensing agreement with them.

There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.

 

[Lizard]

This seems dubious to me. There's no "right" to make D&D supplements per se; there's what copyright/trademark law says, and what any license WOTC might issue says, and that's about it. It's like saying "My business plan is to make Star Wars vibrators; George Lucas won't give me a license; it's restraint of trade!"

The GSL is a very risky contract, but I think any company which agrees to it should accept the terms and deal.

 

[starwed]

Second fo all, the OGL is a license entered into with WotC.

Not necessarily... if I release my original work under the OGL, and you use it, the only part WotC plays is in holding the copyright on the text of the OGL license itself.

 

[pawsplay]

There is no restraint of trade as both the GSL and the OGL are WotC licenses. You cannot have restraint of trade by denying a company the right to do business with you.

But you can by preventing them from doing business with their customers. Off the top of my head, there's Microsoft versus France with the Netscape thing, plus M$ versus the US Dept of Justice over a similar issue with software "bundling," there's a class action lawsuit going on right now against Volkswagen in the US for not letting their customers know that independent locksmiths can rekey their transpoder based security systems.

There actually is a right to do business. If I am prevented from doing business with someone I desire to, instead of you, my right is being infrinted. So this is less about Third Party Press than it is Joe Customer. If WotC goes after Third Party Press for trying to sell their original work to the customer that happens to be compatible with D&D, that is an issue.

"Sign this or we'll sue you, and oh yeah, we grant you basically nothing," is a contract, sure, but is it enforceable?

Imagine you have a cell phone, and it has a clause that says, "We have a right to revise this agreement at any time." Now supposing they notify you that they are revising it, thirty day passes, but your notification was lost in the mail. The contract states you are responsible for being knowledgeable about updates to the license and that the license is posted on your website. You have thirty days to cancel your contract if the contract changes.

So one day they drive up to your house and announce, "We changed the license so that it says we get to seize your car." You protest, but they say, "Look, we gave you thirty days to cancel. Isn't that reasonable? That's more than Wizards of the Coast gives its licensees."

So they drive away with your car. Enforceable in court?

 

[Xyxox]

But you can by preventing them from doing business with their customers. Off the top of my head, there's Microsoft versus France with the Netscape thing, plus M$ versus the US Dept of Justice over a similar issue with software "bundling," there's a class action lawsuit going on right now against Volkswagen in the US for not letting their customers know that independent locksmiths can rekey their transpoder based security systems.

There actually is a right to do business. If I am prevented from doing business with someone I desire to, instead of you, my right is being infrinted. So this is less about Third Party Press than it is Joe Customer. If WotC goes after Third Party Press for trying to sell their original work to the customer that happens to be compatible with D&D, that is an issue.

"Sign this or we'll sue you, and oh yeah, we grant you basically nothing," is a contract, sure, but is it enforceable?

Imagine you have a cell phone, and it has a clause that says, "We have a right to revise this agreement at any time." Now supposing they notify you that they are revising it, thirty day passes, but your notification was lost in the mail. The contract states you are responsible for being knowledgeable about updates to the license and that the license is posted on your website. You have thirty days to cancel your contract if the contract changes.

So one day they drive up to your house and announce, "We changed the license so that it says we get to seize your car." You protest, but they say, "Look, we gave you thirty days to cancel. Isn't that reasonable? That's more than Wizards of the Coast gives its licensees."

So they drive away with your car. Enforceable in court?

The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.

 

[Delta]

This point was brought up & discussed here back in April. Bottom of this page: http://www.enworld.org/forum/showthread.php?t=224217&page=4

 

[pawsplay]

The problem with that thinking is that the SRD is 100% WotC content, and is also the basis of everything licensed under the OGL. WotC placed a virus in the OGL because they own the SRD.

Explain to me this virus. All I can really get out of what you just stated is that the WotC had a previous relationship with 3pp that they have since decided not to honor.

 

[Brown Jenkin]

The problem with that thinking is that the SRD is 100% WotC content,

The new 3.x SRDs can easily be considered 100% WotC content. The new SRD however is harder to claim full copyright over as it is a list of terms. Reproducing the list itself would be a copyright violation, the terms themselves can't be copyrighted (individual words can be trademarked but not copyrighted) and except for D&D are not Trademarked.

and is also the basis of everything licensed under the OGL.

Most things licenced under the OGL are based on the SRD, but not everything. The OGL is a licence in and of itself which may or may not be used in conjunction with the SRD.

WotC placed a virus in the OGL because they own the SRD.

I am fully missing the point of that satement. The viral nature of the OGL has nothing to do with the SRD. WotC could have just as easily made the SRD available via the OGL without the viral clause, limiting 3pp to just using the STRD and no-one elses content.