Questions about the new SRD [summon Orcus!]

[Wulf Ratbane]

I have clipped the following from the updated Legal Information at the beginning of the 3.5 SRD:

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20, Forgotten Realms, Faerûn... [snip]

Emphasis on "d20" above is mine.

Now combined with Section 7 of the OGL:

7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, [snip]

(emphasis mine again)

Claims of "d20 compatibility" aside, this also leads to the slightly odd situation where a covered work cannot even describe the Core Mechanic:

The Core Mechanic: Whenever you attempt an action that has some chance of failure, you roll a twenty-sided die (d20). To determine if your character succeeds at a task you do this:
o Roll a d20.
o Add any relevant modifiers.
o Compare the result to a target number.
If the result equals or exceeds the target number, your character succeeds. If the result is lower than the target number, you fail.

If the term "d20" as it thus appears has already been released as Open Content (in the Core Mechanic section of the prior SRD), there's no way for Wizards to stick it back under the PI umbrella-- is there?


Wulf

 

[Mark]

People can claim anything they wish in a contract, and those who agree to the contract can break the agreement if they wish. The only thing that matters in the end is what a court says if such a contract dispute goes to trial.

 

[Wulf Ratbane]

Come on, Mark.

[edit] Forgot my smiley.

 

[Mark]

Come on, Mark.

[edit] Forgot my smiley.

What's with the ""?

*Edit* Is it possible you didn't understand what I posted? I'm not sure how I could make it more clear but if there's a question, post here or feel free to Email me. I'm not a lawyer, of course, but that's my understanding of how contract discrepancies would have to be resolved and this seems to clearly be a matter of contract law.

 

[Wulf Ratbane]

Is it possible you didn't understand what I posted? I'm not sure how I could make it more clear ...

If you don't find it relevant that WOTC is moving around the language of the SRD, uhhh... this isn't the thread for you, I guess. That's as close to trolling (in a serious thread) as I've ever seen you come-- so you caught me by surprise.

Basically I am looking for an opinion other than an oversimplified "Challenge WOTC in court and see what happens!"


Wulf

 

[JohnNephew]

Basically I am looking for an opinion other than an oversimplified "Challenge WOTC in court and see what happens!"

I think it's further evidence that people at WotC since Ryan Dancey left don't really have a very good understanding of the subtleties of the Open Game License and D20 System Trademark License.

WotC should not WANT "d20" as Product Identity. Now, anyone who wants to recap the core mechanic (as you aptly point out as an example) needs to negotiate a separate agreement with WotC to permit them use of the Product Identity. Yes, we're talking about the text of products, not promoting an item as "compatible with d20" or using d20 in a title. Product Identity use anywhere in an OGL work requires a license/permission for its use.

Perhaps they'll roll it into the D20 STL. In that case, the D20STL/OGL division has been rendered almost meaningless -- any work that uses "d20" in its body text will have to be D20STL compliant. Or maybe they'll have a THIRD license, to use the "d20" term as Product Identity with authorization (and with added restrictions -- perhaps not using it in product titles, or not using it in advertising for OGL-but-not-"D20 System" products), which will further confuse people.

Or maybe everyone will just ignore the Product Identity designation as invalid. In which case they're still confusing people and making it harder for people to follow the letter and spirit of the licenses.

Or maybe they'll try to selectively enforce these things -- recently departed WotC managers will be allowed to get away with violating the license terms in their advertising, while companies run by ex-TSR employees from a decade ago will be told to pulp thousands of books. Wait, no, that ALREADY was going on.

Sorry if I sound harsh, but I'm really disheartened by this. Blech.

 

[Mark]

If you don't find it relevant that WOTC is moving around the language of the SRD, uhhh... this isn't the thread for you, I guess. That's as close to trolling (in a serious thread) as I've ever seen you come-- so you caught me by surprise.

Basically I am looking for an opinion other than an oversimplified "Challenge WOTC in court and see what happens!"

I don't see you accuse many people of trolling, so I can only assume that you don't understand my point. If something is so relevant that it requires purposefully calling out a lawyer to discuss a legal point in a publicly viewed forum, then it surprises me you haven't included a clarification Email solicited from WotC or some insight from whatever lawyer you use on your own. It'll have to include references to both trademark law and contract law, but I'm sure that's all eaily done for someone other than myself, since I am not a lawyer. In any event, sometimes a simplification cuts to the heart of the matter more quickly than dancing around the same old tired rhetoric.

I happen to find it fairly obvious that in the one case they are claiming "d20' as it refers to the "d20 System" as PI while in the latter case they are using the same three characters "d", "2" and "0" to be representational of the common gaming object, a twenty-sided die. It seems quite possible to my-non-lawyer-self that someone can trademark "Le Car" without considering anyone who refers an automobile in the French language as infringing on that trademark.

The earliest legal rtf file I have from the first SRD includes "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark." which preceeds, and perhaps supercedes (as I understand it, as a non-lawyer), the restrictions put on something as PI, or even the contractual use of something as OGC. A contract, from my understanding, cannot give the right to something that is not empowered to give, and the quoted clause above removes the power from the contract to give the right to use of a trademark in certain instances.

WotC has for some time now been quietly claiming d20 as trademark (even as they have also been registering "d20 System" as a trademark) so their moving "d20" into PI comes as no surprise to me. There's an important distinction between claiming trademark and registering a trademark and as I understand it, making such a claim for a period of time strengthens a later registration. Further, having a number of parties accept the limitations of a contract and thereby be acknowledging your claim to a trademark would likely additionally strengthen such a claim if a registration of such a trademark is ever sought. I can only imagine that they might be doing such in a effort to offset any common usage of the term "d20" as it is used to refer to a system rather than a common piece of gaming equipment.

Using the characters "d", "2" and "0" to be representational of the common gaming object, a twenty-sided die, within a body of work would not be a challenge to their claimed trademark of "d20" as it refers to a system (and is further supported as by their use of it in that manner within the SRD text), in my limited non-lawyer understanding. However, even as a non-lawyer, I would think using it in such a manner as to claim compatibility with the "d20 System" or "d20 System logo" and by that means get around the restictions they place on those trademarks is seemingly what they are trying to curtail.

Whether I, or anyone for that matter, finds it relevant really is not an issue of consequence. A legal ruling would do wonders for this discussion. Until someone challenges these things in court, it's all rhetoric that's been beat to death on the OGL list-servers. Railing against the machine seems further ineffectual when the railing is coming from someone riding atop said machine. If you really feel the subject is "relevant", why don't you send WotC a query on the matter? I'm sure they'd be happy to clear it up for you and you can inform us of the results. If you ever find one of my posts to a "serious" thread of yours doesn't meet your standard of approval in the future, do us both a favor and don't symbolically roll your eyes. Simply ask for a clarification, and I'll be quite happy to set you straight on what I mean.

John Nephew - I believe the distinction to be a matter of usage of the term "d20" as explained above.

 

[JohnNephew]

John Nephew - I believe the distinction to be a matter of usage of the term "d20" as explained above.

Where in the definition of "Product Identity" in the OGL or in WotC's delineation of "d20" as being Product Identity do you find such a distinction?

It's also important to note that we are not talking about trademarks, but Product Identity, an animal unique to the OGL and not really subject to the case law and peculiarities of trademarks.

 

[afstanton]

Hi -

If someone declares something to be Open Content as defined by the Open Gaming License, are they allowed to declare that same thing to be Product Identity at a later date?

If so, then WotC can declare d20 to be PI and cause a major headache to all publishers - essentially you'd have to do a search and replace of "d20" with "consecutively numbered icosahedron" or something equally banal.

If not, then WotC's declaration of d20 as PI in this version of the SRD is irrelevant, as it is already permanently OGC by inclusion in the previous SRD.

This is indeed a completely separate question from the trademark issue.

Aaron

 

[Wulf Ratbane]

Mark, you made some good points (eventually). I wish I'd seen that analysis in your first foray into the thread. You are being disingenuous if you stand by your initial post as in any way helpful in this thread.

To respond:

I wasn't "railing" in any way in my initial post.

When I need binding legal advice, I will ask my lawyer.

When I want to read ranting and railing, I also keep a close eye on the OGL lists.

But when I am simply looking for the opinion of fellow publishers in a user-friendly and open public forum, you will find me right here. I am here to solicit opinions and discussion, not legal advice.

So... If the constant ranting and railing about the license-- though my initial post was no such thing-- has you bored to tears, you're invited once again to find another thread. The subject line wasn't misleading, so although bursting in to immediately hose down the discussion with pedantry may not be trolling, it's bad form, at the least. (And again, I find it increasingly surprising and out of character-- if you'll accept a back-handed compliment-- coming from you.)

To reiterate, I appreciate the analysis you eventually offered, and although I think you are correct in your assessment of what WOTC is trying to do, the nature of law is to rely first on the plain language as written, not to leave it to the interpretation of the individual. As written, they have attempted to reserve the term "d20" as Product Identity-- and to clarify, that is in addition to reserving the term "d20 System," as you can see in my initial post.

Wulf