Reply to ENWorld's GSL FAQ

[Delta]

Obviously the GSL is a hot issue -- as evidenced by an opinion piece posted on the front page of ENWorld at the moment (I assume by Morrus). As stated there, some of the items mentioned are obvious, but I don't think they all are. If it had been posted in the context of a thread there would be a lot of debate around it -- briefly, here are the items that don't seem correct to me:


(1) "What? I can't release software under the GSL? Not under the GSL you can't, no. You couldn't under the old d20 STL, either."

Actually, you could release software under the "old" d20 STL. The following is still up at Wizards.com under their "Software FAQ" (discussing both OGL & d20 STL, http://www.wizards.com/default.asp?x=d20/oglfaq/20040123i ):

Q: Can the licenses be used with software?

A: Yes, both licenses can be used with software. However, several sections of the licenses require a bit more work to properly implement in software than they do in printed material and the d20 License has restrictions specific to software.

(2) "They're infringing on my 'rights'! Most often heard in the context of 'they're trying to take away my right to use the OGL!'... A voluntary agreement does not restrict your rights."

In general, sure. But there is one specific debatable point around the GSL asserting a prohibition on using the OGL even after the GSL has been terminated. Once an agreement has been terminated, it's hard to see how it has any force over your actions -- and an asertion to the contrary could conceivbably be a violation of someone's rights. (See US case law on non-compete contracts.)


(3) "Now I can't have a website under the GSL! Well, no. But why would you want a website licensed under the GSL? You don't need the GSL to have a website - people have been managing that for years!... Incidentally, remember that WotC will be issuing a 'fan site policy' at some point, in which they'll specifically say what they're comfortable with people doing on the web; but, again, remember it's not a declaration of law, just a policy."

The beautiful thing about the OGL was everything was elegantly covered under one simple license. Publishing, fan products, free or for-profit, were all treated the same. (Which is the most realistic way of looking at the web, where in actuality we all function as our own publishers.)

Under the OGL, we were provided with a specific "safe harbor" by releasing material on a website under the established license, if you chose to do so. Now with 4E there is no possibility of a legally-binding "safe harbor". (a) The GSL can't provide that, because it precludes websites, (b) the "fan site policy" won't provide that, because it won't be a legally binding agreement, and (c) standard "fair use" law can't provide it, because that's always legally tenuous. Thus 4E websites will be back in a murky, tentative legal status, which the OGL did serve to prevent.


(4) "WotC can revoke the license at any time! Yes. Yes, they can. That is, unfortunately, a risk you have to take if you use the GSL: unlike the OGL, it is revocable, much like the d20 STL was."

But a major difference between the GSL and the d20 STL was how the latter had an irrevocable fall-back license in the OGL. When the d20 STL is revoked, publishers can basically just remove the trademark logo and still publish the same mechanical product under the OGL. When the GSL is revoked, there will be no such license available, and all the mechanics & terms built into the product will be thrown out of the "safe harbor" -- and at that point you either have to stop publishing the product entirely or else fall back on the "copyright law" principles decried elsewhere in the FAQ on the main page. Very big difference.

 

[JoelF]

(2) "They're infringing on my 'rights'! Most often heard in the context of 'they're trying to take away my right to use the OGL!'... A voluntary agreement does not restrict your rights."

In general, sure. But there is one specific debatable point around the GSL asserting a prohibition on using the OGL even after the GSL has been terminated. Once an agreement has been terminated, it's hard to see how it has any force over your actions -- and an asertion to the contrary could conceivbably be a violation of someone's rights. (See US case law on non-compete contracts.)

Actually, survivability clauses like this are relatively common in contracts. At my company we have them in every contract we sign.

 

[Cadfan]

(2) "They're infringing on my 'rights'! Most often heard in the context of 'they're trying to take away my right to use the OGL!'... A voluntary agreement does not restrict your rights."

In general, sure. But there is one specific debatable point around the GSL asserting a prohibition on using the OGL even after the GSL has been terminated. Once an agreement has been terminated, it's hard to see how it has any force over your actions -- and an asertion to the contrary could conceivbably be a violation of someone's rights. (See US case law on non-compete contracts.)

Clearly it terminates all aspects of the agreement except that one. This is not unusual, in fact in some ways it is the default- if you and I enter into a contract and I make payments to you under that contract, and later we cancel the contract, I don't automatically get all my money back.

 

[Scribble]

It seems to me a way of covering for:

1. People who want to join the GSL just to gain popularity / free marketing / free background work... Only to jump ship and try to take customers with them...

2. People who want to use the D&D brand, then jump ship and have a claim to: but it's my brand really so I still get to use it.

WoTC is saying look here's our game... You can use it to make money, but at least give us a reach around if you do.

The OGL is still in existance... They just made the d20 license more buttoned up.

D&D is the most popular / biggest money maker out there. If the big companies we know today don't make products for it, someone will. New companies will spring up. There's money to be made, so someone will make it. That's how business works.

 

[Sunderstone]

D&D is the most popular / biggest money maker out there. If the big companies we know today don't make products for it, someone will. New companies will spring up. There's money to be made, so someone will make it. That's how business works.

Yes and no.
Not all mom and pop 3pps have the creative talent and/or resources to stay afloat either. If enough of the more popular 3pps jump ship, the money maker wont do so well. More of the fanbase/customers will go elsewhere etc.

 

[Scribble]

Yes and no.
Not all mom and pop 3pps have the creative talent and/or resources to stay afloat either. If enough of the more popular 3pps jump ship, the money maker wont do so well. More of the fanbase/customers will go elsewhere etc.

How do you mean? I'm not sure I follow.

 

[Fifth Element]

But there is one specific debatable point around the GSL asserting a prohibition on using the OGL even after the GSL has been terminated. Once an agreement has been terminated, it's hard to see how it has any force over your actions -- and an asertion to the contrary could conceivbably be a violation of someone's rights. (See US case law on non-compete contracts.)

Survivability clauses are common. And they're not secret. You agree to do something (or not to do something) in perpetuity, regardless of whether the non-survivable parts of the agreement are terminated. If you don't like those terms, you don't agree to the license. That simple.

 

[Scribble]

Yeah... seems to me like they're saying:

Here; use our stuff for free to make money. If at some point you determine you're popular, and don't like working with us, don't try to use that popularity you gained on our product to try and pull customers away from our product.

 

[Umbran]

Survivability clauses are common. And they're not secret. You agree to do something (or not to do something) in perpetuity, regardless of whether the non-survivable parts of the agreement are terminated. If you don't like those terms, you don't agree to the license. That simple.

Yes, but there's precedent (in the form of non-compete clauses) to suggest that some similar things are of questionable legality, and certainly difficult to enforce.

The typical non-compete clause is of the form "I promise to not work within the same field of work, withing an X-mile radius of my old employer". In Massachusetts, at least, these exist but both the employers and the employees know they are not enforceable in court.

 

[Harr]

Survivability clauses are common. And they're not secret. You agree to do something (or not to do something) in perpetuity, regardless of whether the non-survivable parts of the agreement are terminated. If you don't like those terms, you don't agree to the license. That simple.

I think the point of the OP is that Morrus's "FAQ" seems to be making an effort to explain everything except that particular point, which could be argued to be one of the most important in the GSL.

It does seem to me that in the effort to give very simple, very satisfied and slightly snarky answers it's glossing over some things that should be specified if it's going to function a real informative piece about the GSL.

Of course, the classic answer to that is "it wasn't meant to be an informative piece, just my own little opinion and you can't critizise something which is just my opinion," which is absolutely true.