Part 3: The Damage Done by the Otherwise Ineffectual Open Gaming License #DnD #copyright #iplaw #ogl

This is the last in a series of three posts on the copyright misuse of Wizards of the Coast (“WotC”). Much of this post relies on the others for context, so it would be better to read the Copyrightability of Stat Blocks and the Copyrightability of Ability and Spells before reading this one, but it’s not strictly required.

WotC introduced the OGL and the System Reference Document 5.0 (“SRD5”) for the noble cause of telling the public which of the material they published was, in their opinion, protected work (i.e., work only they could publish), and which was public domain (i.e., freely useable by everyone without restriction). This isn’t sarcasm; their stated intent was noble. Sure, they called it a license when it clearly isn’t, but if that were their only sin, we could all overlook that. The idea was to avoid as many unnecessary disputes as possible. That’s helpful. It has since morphed into an oxymoronic attempt to license public domain material and intimidate members of the industry and community in general, who are fearful, ignorant, or unable to finance a defense against a lawsuit. That’s damaging.

In case it isn’t clear, WotC does not endorse this post or any work I’ve created. My use of their trademarks is purely to identify the subject of this discussion and should not be taken as an endorsement of my work by WotC. To the extent that there has been any technical infringement of a WotC copyright by this post, such use constitutes commentary on a de minimus amount of their copyrights and is therefore a fair use of those copyrights.

Also note that this post does not constitute legal advice. This addresses WotC’s copyright misuse; it doesn’t, and in fact can’t, address whether any actions of the reader themselves constitute copyright infringement. If the courts find copyright misuse, then the copyrights will be deemed unenforceable retroactively to the point in time when the misuse began (likely 2005 or earlier). If the courts don’t find copyright misuse, then past infringement is still subject to a lawsuit, and this post doesn’t address anyone’s behavior other than my own. Your case rests on your facts. If there’s any concern that you’ve infringed WotC’s copyrights, you’ll need to retain an attorney.

Credits

Before I begin, I want to thank those that helped review some or all these documents before I published them. They were instrumental in helping me get the wording to where I wanted it, coming from the perspective of lawyers with IP experience, lawyers without IP experience, and nonlawyers. This was not an easy project to write because I was writing for two different audiences, which is why I needed help from people in both of those audiences. I needed to back up my assertions with solid logic and case law but in a way that was understandable to nonlawyers. Most of these people requested that they not be named, but those listed below didn’t mind.

If you’re one of the people who helped and would like credit, I’ll gladly add you name to the list. I do so only so that you get the credit that you’re due, but there’s no need to put yourself in a bad position with industry professionals and friends. Either way, thank you.

Jason Dandy
Donald Dechert
Mike McMullan
Katey Springle Lempka

I also want to thank those that took me to task on various social media platforms. Even though their statements were public, I won’t mention them by name unless they request I do. One friend was particularly instrumental in keeping me emotionally grounded. WotC’s legal department has infuriated me, but on the few occasions that I’ve met and gamed with the creative minds at WotC, they’ve been fantastic. They’re good people, and I’m glad my friend kept me from losing sight of that. Others provided critical legal analysis, resulting in edits prior to publication of parts 2 and 3. My decision to break up the first discussion into two parts (1 and 2) was an unintentionally brilliant strategy, as it gave me the time to process criticisms and strengthen my arguments in part 2. Thanks to all of you.

Some More Law

There are just a few legal concepts relating to contracts that need to be discussed quickly before we can address the Open-Gaming License (“OGL”) and WotC’s copyright misuse. These aren’t difficult and in fact may be intuitive to many. Although contract law varies from state to state, these very basic rules are at least in part universal, applying to all fifty of the United States and probably much of the world.

A Contract is a Legally Enforceable Agreement

Two parties can agree to a lot of things, but such an agreement is a “contract” only if the law deems it enforceable. For example, if a mob boss contracts a hitman to murder someone, and the hitman backs out on the deal, the mob boss couldn’t take the hitman to court and ask the court to force the hitman to go through with the murder. Such a contract is void as a matter of public policy because it is a contract to do an illegal thing, in this case a criminal act.

Offer and Acceptance

In order to be bound to a contract, one party must make an offer, and the other party or parties must accept it. If a party makes an offer, but the other party agrees to accept the offer with certain conditions, then acceptance hasn’t actually occurred. Instead, this is deemed as a counteroffer, which must then be accepted by the first party. A long series of offers and counteroffers is the essence of negotiation.

All Contracts Require Consideration

“Consideration” is defined as something of value passing between the parties. If a painter agrees to paint a homeowner’s house, that’s not enforceable because the painter isn’t getting anything out of the deal. If, on the other hand, a painter agrees to paint a homeowner’s house in exchange for $3,000.00, then the agreement is enforceable as a contract. The homeowner receives consideration in the form of a painted house, and the painter receives consideration in the form of a payment of $3,000.00. Both parties get something of value out of the deal.

License

A license is a contract in which one party (“licensor”) grants another party (“licensee”) permission to do something or use some subject matter (e.g., the right to live in an apartment, the right to hold a rally on another’s property, the right to claim the licensor endorses the licensee’s products or services). The licensor must actually hold the rights to that subject matter, and must have the authority to grant licenses to other people (or entities, such as corporations).

Ambiguity

Any ambiguity in a contract is interpreted against the drafter of that contract. Some attorneys insist that this rule doesn’t apply where all parties are represented by attorneys.

Tying These Together

Applying what we have in the definitions above, if a licensee already has the right to that subject matter, then there’s no consideration passing to the licensee, so the license isn’t a license at all, but rather an unenforceable agreement. For example, if two people own a piece of land and each have the rights to occupy it, one of the owners can’t rent the land to the other owner. The other owner already has those rights.

Game Rules

As a reminder, game mechanics are not copyrightable. In part, the reason for this is that the game designers didn’t really create them either. The mechanics have probably been done before in prior games, but even if they’re brand new, they’re often just a collection of mathematical equations. Math describes the way the universe acts, and no one can (or should) own that. I reiterate this point yet again in case some are acting under the misguided notion that it would be “immoral” to copy game rules. It isn’t. It’s immoral to claim ownership over clearly unowned subject matter, especially knowing full well that a large group of people will believe it and self-censor themselves, thus stifling creativity. The public must be free to find a way to express the rules of any game.

What Exactly is Licensed by the OGL?

Open Gaming Content is the content WotC says the public can use, and Product Identity is the content WotC claims the public can’t, but Open Gaming Content can’t be copyrighted because it’s already in the public domain. By its own terms, the 5th edition Dungeons & Dragons OGL (“OGL”) grants to gamers something that the gamers already have the right to use. Thus, no consideration passes to the gamers, and the OGL is a legally null document.

The OGL defines two gaming elements: The “Open Game Content” and the “Product Identity.” Open Game Content (“OGC”) is defined in paragraph 1(d) as

“the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.”

Next is the Product Identity (“PI”). In summary, paragraph 1(e) gives a comprehensive list of everything relevant to the RPG that could possibly be protected under copyright or trademark law and defines that as PI. For the sake of argument, we’ll assume that, except for game mechanics or items specifically excepted below, anything WotC has historically claimed to be copyrighted or trademarked material is indeed protected.

Let’s break down OGC first. It includes the game rules (a.k.a., “game mechanics”), which are not copyrightable, so everyone may distribute them without restriction. The definition goes on to point out that if any game rules are copyrightable, then they’re included in Product Identity. Technically, this is correct, but there are no game rules in PI (as a matter of law), so nothing is transferred into that pool of material. The talk about copyright law in this term is without substance. This means that the OGC is subject matter a gamer may use without WotC’s permission, and thus doesn’t require a license. Compare that to PI, which is everything gamers can’t use unless they have a license from WotC, and we get to the crux of the problem. Turning to paragraph 4:

“Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.”

In plain English, “We’re licensing to you game mechanics, which we have no right to prevent you from using.” Now paragraph 7:

“You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity.”

In plain English, “We’re not licensing anything that we could theoretically license to you, so you may not use Product Identity. In fact, you can’t even say that your original work is compatible with our game system.”

Ergo, WotC is licensing nothing with the OGL. They claim to license something they have no right to license (OGC), and anything that requires such a license is explicitly excluded (PI). Moreover, they don’t even want third parties to mention their game system. Once again, in plain English: “We’re licensing to you what we have no right to claim as ours, and not licensing you anything we can claim as ours, and are thus giving you nothing.” Even if a third party signed this agreement (probably no one has; there’s no signature line), or if a court bound the third party to its terms because it was printed in a book as instructed in paragraph 10 (“You MUST include a copy of this License with every copy of the Open Game Content You Distribute.”), there’s no consideration, so there’s no legally enforceable agreement.

Ambiguity

At first glance, there appears to be a back door to using copyrightable material. The preamble of the OGL lists items designated as PI, and then states the following:

“All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.”

The SRD5 is the collection of material that WotC is specifically claiming to license. It includes, among many other things, descriptions of a fraction of the spells, races, and character classes, as well as monster stat blocks, that are included elsewhere in WotC publications. Use of the phrase, “the rest,” necessarily means that the SRD5 includes at least PI within it.

The quoted preamble text seems to allow gamers to distribute all that content, but that’s not true. Returning to the definition of OGC above, an alleged licensee may use OGC

“‘Open Game Content’ means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity . . . .”

(emphasis added). So, if the SRD5 contains copyrightable material (that is, the PI that they admit is in the SRD5), such as the parts of spell descriptions that go beyond mere mechanics, then that copyrightable material is not useable even though it appears in the SRD5. In fact, a reasonable interpretation of this apparent ambiguity is that the one thing WotC could possibly be licensing with this material – the specific means of expressing their game rules – is also not being licensed. This means that, despite the existence of the SRD5, and a strong implication that all SRD5 material may be copied freely, if an alleged licensee copies SRD5 material directly, there’s a breach of license, and WotC holds a potential lawsuit in their back pocket in case they ever decide to sue for unrelated reasons.

This is no small matter. The license’s ambiguity leaves the third party uncertain as to whether WotC has reserved the right to sue for reproduction of any SRD5 material, but they’re encouraging the third party to reproduce it. Assuming WotC genuinely believes the OGL is enforceable, this appears to be a setup. It appears that they’re using ambiguity to encourage third parties to use copyrightable material, only to then use the quoted preamble text to justify claims of infringement or punish other legal behavior they simply don’t like (such as publication of one-stop stat blocks, henceforth “OSSBs”). If WotC realizes that this isn’t an enforceable agreement, then at the very least, the ambiguity is used to confuse and intimidate third parties into not republishing material, self-censoring any use of uncopyrightable material just to avoid a costly lawsuit they’re uncertain they can win. Part 2 cautioned of the dangers of a copyright holder having grounds to sue arising solely from mere use of their product. It appears that WotC is seeking exactly that. (What’s actually going on in WotC’s head is unknown to the general public, but whether or not they realize they’re creating a setup, they’re in fact attempting to do so, and that’s all that’s needed to create a problem regardless of whether they legitimately believe the OGL is a license or not.)

Either way, this is copyright misuse. They’re leveraging copyrightable material to restrict the use of uncopyrightable material. WotC is a bad actor, and until their misuse discontinues, their copyrights in the Monster Manual, Volo’s Guide to Monsters, Tales of the Yawning Portal, Mordenkainen’s Tome of Foes, Guildmaster’s Guide to Ravnica, Ghosts of Saltmarsh, Dragon Heist, Dungeon of the Mad Mage, Tomb of Annihilation, and perhaps others (the “Sourcebooks”) should be deemed unenforceable until they stop the misuse.

Less Than Useless

Let’s revisit the definition of OGC: “the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity.” Claiming that at least some methods, procedures, processes, and routines (all public domain by definition) could embody PI indicates that WotC has every intention of including public domain material in the PI. Elsewhere in the preamble, WotC specifically designated the following creatures as PI: beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti. (The list is much longer than this.) Many have taken this to mean that WotC specifically forbids by contract even the mere mention those creatures, and WotC has cultivated this interpretation. Most likely, WotC realizes they can’t forbid mention of these terms, but instead can forbid reproduction of their creative descriptions of these creatures, places, and items.

Copyright does not permit protection of a single word, and it would be exceptionally difficult to copyright two words, such as “displacer beast.” So, if enforced as a contract, the OGL would place an alleged licensee in a worse position than if never having entered into it. The alleged licensee gains nothing but must give up something in the public domain (i.e., a few single words otherwise in public domain). Sure enough, this appears to be another set up. If third parties change the name of the githyanki to “githkin” but keep the backstory, etc. the same, that third party would still be liable for copyright infringement. Changing the name was unnecessary; it’s the backstory that’s arguably creative. To the unsophisticated, the OGL may seem to be restricting only the name, in which case WotC holds another lawsuit in its back pocket if it doesn’t like something a third party has done that’s otherwise legal. (This has played out many times with, for example, people referring to Warforged as Forgekin and Drow as dark elves, but otherwise publishing those species as written.) This list also appears to be another attempt to snatch ideas from the public domain. The Gray Waste of Hades is no different than the basic concept of Hades from Greek mythology (though some storylines within are possibly copyrightable), but its inclusion in the OGL’s list seems like a vague threat that a third party’s inclusion of Hades in their gaming material will be watched carefully or even litigated. That’s absurd.

Opt Out?

It seems that one solution is not to be a party to the OGL. Unfortunately, if the OGL were deemed enforceable, every player of the game likely already is. Under paragraph 3, acceptance of the OGL requires nothing more than “Using the Open Game Content.” That is, based on paragraph 1(g) (defining use), if a player writes down the game mechanic on a piece of paper (“copy”), or even simply plays the game (“use”), the player has agreed to abide by the OGL. This is true even if the player has never heard of the OGL, Wizards of the Coast, or Dungeons & Dragons. It’s that broad a term, and this is supposedly a valid form of acceptance of the license only because Wizards claims it is. No one has ever agreed to that mechanism in the first place, so it’s likely that everyone has allegedly accepted the OGL without realizing it. Again, that’s absurd. (For those familiar with software licenses, this appears to be WotC’s attempt at a “shrink wrap” license. The legality of those licenses is technically unsettled, but the OGL’s attempt here is even weaker than software licenses because of how broadly a reasonable reader would have to interpret the term, “use.”)

Paragraph 14 is a reformation clause, stating in boilerplate language that “[i]f any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.” However, it seems that the only way to make sense of this tangled mess would be for a court to write a completely new contract. Even if the court could somehow strike bad terms from the OGL, it wouldn’t change the purpose of the OGL, which was, at best to misuse copyright, and at worst set up gamers for infringement claims. However, even reasonable rewrites would solidify the unenforceability of the OGL. Revisiting the text discussed earlier: “All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License.” This text makes itself subservient to Section 1(d), expressly pointing the reader to Section 1(d) for clarification of what parts of the SRD5 are considered OGC. Remember that Section 1(d) states that nothing copyrightable is being licensed. If the tension between the two terms is interpreted in the only reasonable way available, the result is an unenforceable contract with no consideration, and because WotC drafted this contract, a court would be inclined to interpret it in a way against WotC’s interests.

The OGL is a brazen statement by WotC that they don’t want you using material that’s in the public domain, and they give you nothing in return after dictating you not use that material whether you agree or not.

A Pattern of Bad Behavior

In assessing whether WotC has engaged in copyright misuse, the courts will have a difficult time ignoring the fact that this is part of a pattern of misuse in which WotC has engaged for at least 15 years. This doesn’t appear to be an accident.

Third edition Dungeons and Dragons also had an OGL. There’s no need to go through an identical analysis of it. It’s important to note that, more or less, the broad strokes were the same, and that the 3rd edition OGL demonstrates that this bad behavior dates back to its publication in 2000. Between 2008 and 2016 WotC published the legally legitimate Gaming System License for 4th edition Dungeons and Dragons, but the 3rd Edition OGL was still enforced.

Why Would WotC Expose Itself Like This?

This is a very bold move by WotC. Why would they do such a thing? The “Hand Formula” is a legal concept referring to the fact that deterrence occurs only where punishment is both sure and severe. That is, if jaywalking carries a 20-year prison sentence, but a jaywalker knows they’ll never get caught, the sentence doesn’t scare them. On the other hand, if the punishment for stealing $1,000,000 is nothing more than getting yelled at for 30 seconds, the thief won’t think twice of stealing the money. A criminal must know that the punishment will be bad, but also that they’ll likely have to face that punishment.

Let’s examine the potential plaintiffs against WotC. The only entities that could be harmed directly by this misuse are game designers and “little guys” (like me). Game designers won’t sue because, even if they win, they may lose. Depending on their own circumstances, they may be exposed to the same claims from others. On the other hand, both game designers and the little guys have no desire to spend up to $500,000.00 to sue a company backed by Hasbro just to win the right to create a PDF with limited sale potential or just to post to a blog. No one in a legal position to sue has the incentive or funds to do so, WotC knows that, and this has been confirmed over the 19 years that an OGL has existed in one form or another.

Why is This Such a Big Deal?

If the OGL isn’t enforceable, WotC couldn’t really sue anyone, so there no harm to it, right?

Wrong. Belief that this license is enforceable gives WotC control over the believer, who voluntarily agrees to do what WotC says and gets nothing in return. A cease and desist letter from a company ultimately backed by Hasbro will terrify the average person, which is precisely why Lasercomb didn’t require that a defendant be a party to a license in order to raise the claim of copyright misuse. The result is self-censorship and a lost opportunity for further creativity. It’s especially frustrating that this community allows this to happen. When it comes up in conversation, many say they’re upset that the copyright monopoly has grown too strong, yet they’re encouraging it to grow even stronger, at least with respect to the role-playing game industry, by voluntarily ceding to WotC public domain material. “Using” the OGL and SRD5 by agreeing to publish and abide by it in other games feeds a culture of ignorance and stifles creativity. It’s a shame anyone does that.

The loss of creativity is hard to see, because it’s impossible to quantify that loss. With such an ethereal concept, how does one prove that something would have been there if not for someone else’s actions? That’s why the doctrines of copyright misuse, patent misuse, and antitrust rules exist. They’re designed to assure no such losses, even if several owners don’t get as much value from their works. This is the reason the public good always outweighs the rights of the copyright holder; those rights exist solely to serve the public good.

Remember, I’m not saying nothing is copyrightable in the various Dungeons & Dragons books published by WotC. If that were true, there’d be no copyright to misuse. WotC would just be engaged in bad behavior that we should ignore. Rather, I’m saying that WotC has a history of leveraging their legitimate copyrights to threaten those that that republish material that is not copyrightable, inappropriately claiming ownership of that uncopyrightable material.

How Will This Play Out for All Game Designers?

If WotC is held to be committing copyright misuse based on the OGL, then the period of copyright misuse could stretch back as far as 19 years to the creation of the 3rd edition OGL. Any copyrights being misused will be unenforceable during that entire period. Moreover, the copyrights won’t be enforceable until the misuse ends. More importantly, game designers would be forced to allow republication of their stat blocks that aren’t copyrightable, which means certain types of crunch books won’t be nearly as profitable.

But this would be good for the gaming community.

By affirming that clearly uncopyrightable material can’t be withheld through the misuse of valid copyrights, the courts will force game designers to focus on what they do best: creative work. Most people with decent math skills can design a balanced game system if they’re willing and able to put in the time. Those that say otherwise are lying to protect their position in the industry. What’s hard for most people to do is to create a game world filled with people and places, entwined in complex storylines, and clearly expressed in an artistic, fun, and interesting way. Game designers will focus on, and as a result produce more, unique characters, campaign settings, and adventures. Ironically, with 5th Edition D&D, WotC has already shifted their focus in that direction, which has apparently worked out well for them because that’s what most gamers want. However, their continued insistence on threatening those who republish uncopyrightable material deserves condemnation.

WotC’s copyright misuse has spread through the industry like a poison. Even professional game designers have toed the line. They’re working with the hand they’ve been dealt, and the profit margin on games is too low for even an established company to risk a lawsuit. Other companies have created their own licenses, with some having received criticism for their efforts. Even worse, it’s extended beyond the gaming industry. When Old Spice created a harmless, whimsical Gentleman class, they received a request they include the OGL with it, which they eventually did. WotC has extended its stranglehold on the gaming industry beyond the gaming industry itself. Furthermore, WotC’s misuse could serve as inspiration to other companies to do the same in other industries, so this is even bigger than gaming.

I had a Twitter conversation recently that was helpful. My friend pointed out “Isn’t it good for RPG companies to not have fans be able to repost all their stuff? I feel like this doesn’t help the industry at all…. I am just a fan of [RPG] companies. It’s a hard business. I am all for them protecting their stuff in such a rough market.” I responded, “I agree, but the key is ‘companies,’ as opposed to ‘company.’ WotC hasn’t hurt my feelings [much]; they’ve hurt the community and the industry.” Putting aside the public interest for a moment, the industry is larger than just one company. All game designers should have an equal opportunity to carve out their own space, but WotC is preventing the industry from realizing that potential.

Will this significantly harm WotC individually? No, and WotC admits that. With the OGL and SRD5, WotC proports to give away far more material than the OSSB project does. For example, WotC gives away the goblin stat block. The OSSB project as originally written didn’t do that. WotC also gives away the creative text for the Fly spell. The OSSB project never will simply for reasons of brevity. The problem rests in the fact that WotC demands that it retain sole publication rights to material that they can’t claim, but the point is that, by WotC’s own admission, losing control of the goblin stat block or even legitimately creative text won’t hurt their market considerably. They (claim to) voluntarily do so. Moreover, their basic rules give away actual copyrightable material that appears in the Player’s Handbook, allowing players to play a full version of the game having bought absolutely nothing from WotC, yet WotC’s market for 5th edition seems to be enhanced by that, not diminished. Other RPG companies do a similar thing, even tiny ones. It’s clear from these implicit admissions that any losses suffered by WotC from the OSSB project couldn’t possibly outweigh the public’s losses (i.e., stifled creativity) if WotC’s copyright misuse goes unchecked, but also can enhance their market.

Of course, this doesn’t mean that a third party should be permitted to take bits and pieces of copyrightable material, such as the specific text of the elf racial write up in the basic rules, and publish it freely just because WotC does. WotC needs to maintain control over its intellectual property so that it can still withhold enough material to protect the marketability of its products. Multiple third parties publishing small pieces eventually adds up to the whole. Also, as discussed, the OSSB project will likely force WotC and other game designers to adapt how they produce bestiaries, and maybe how they design games. However, the OSSB isn’t taking any intellectual property that WotC owns except maybe a small amount that is inseparable from the mechanics, and WotC admits that it can adapt to that; it’s already doing so quite successfully. Their inevitable pleas for sympathy regarding my alleged immoral assault on their market share will ring hollow. In any event, it’s WotC’s own fault for being too arrogant and too greedy for too long. If they had left the OSSB project alone, parts 1 and 2 would probably never have been written, and perhaps part 3 would never have been finished and published. Moreover, the only possible impact the OSSB project could have had was a positive one. Considering the OSSB project’s footprint in the community prior to these posts, it’s unlikely even that would have been significant.

With WotC being told to stop misusing their copyrights, the damage they’ve inflicted will slowly fade away, and future damage won’t materialize. It may even save WotC’s 5th edition market from legitimate threats to their intellectual property.

This Can Also Help WotC Avoid Greater Threats

Whether the OSSB project results in litigation or not, WotC’s copyright misuse will become an issue in the near future. There’s a certain website that I won’t mention, because I don’t want them to gain any traffic. They seem to have every single RPG sourcebook in PDF format – including WotC’s – for free download. My understanding is that there are at least two other such websites, as well as some other well-known entities that are involved in alleged infringement on smaller levels. For anyone with the slightest respect for copyright law, stockpiling that many sourcebooks for that many RPGs represents a horrendous and shameless theft of RPG properties that may even be criminal. Eventually, WotC will figure out they exist, and when they sue for copyright infringement, they’ll lose. As in Lasercomb, even though this site is run by “bad guys” who are clearly infringing valid copyrights, WotC’s copyright misuse will prevent WotC from being able to enforce those copyrights. If WotC’s attorneys drop their arrogance and do as I suggest quickly, maybe they’ll be able to recover some damages from the website. Sadly, I don’t think that’s in the cards, which would be disastrous for them. Once the website wins, everyone will flock there, immediately download the PDFs before WotC can change their policies, and no one will be liable for that infringement. This could potentially “bankrupt” (so to speak) the marketability of 5th edition, causing a need to immediately publish a 6th edition far ahead of schedule. It’s critical that WotC not waste its time quibbling with me, and instead right the ship and beat these entities to the punch.

Conclusion

Since I returned to the game in 2005 after a 24-year absence, I’ve been a WotC apologist. I briefly ran a gaming convention and organized (with others) a large gaming club in the Washington, DC area. At one point, I was personally organizing events in six different gaming stores during every weekend of the month and introducing new players to the game weekly. I’m directly responsible for a relatively tiny but non-negligible number of sales of their products, having brought hundreds of new players to the game. I’ve consistently been on WotC’s side, but the OGL has always given me pause. Most of the material in this third blog post has been on my hard drive for over a decade as I’ve mulled over whether to publish it, knowing that WotC, a company that’s been a part of my life for quite a while, would be harmed by it. Some of the few people that knew this post existed as a draft have begged me to finish and publish it, but I could never bring myself to do it.

Part of the reason is that WotC was producing material that I loved, which I purchased like it was a necessity of life. The other part is that, with one exception, I’ve never met a person at WotC I didn’t like. They all have different personalities, but there’s a common thread of approachability and kindness. They’re very down to Earth and talented. I was at Winter Fantasy a few years back, and Mike Mearls, Jeremy Crawford, Greg Bilsland, and a friend of mine were getting ready to play the brand-new game, Lords of Waterdeep. Jeremy just grabbed me from the crowd and asked me if I wanted to play. I joined in, and, needless to say, got destroyed by four professional game designers, three of whom (I think) were involved in its playtesting. I was treated like an old friend for the whole game. These are good folks undeserving of ire. Their legal department, on the other hand, is a problem, and perhaps WotC’s owners are aware of that and turn a blind eye. I don’t know. All I know is that the entity known as “Wizards of the Coast, LLC” is responsible for bad behavior.

Considering that only a single attorney among many nationwide has approached me with a significant challenge to even a portion of my argument, I suspect that WotC’s attorneys understood what they were doing was copyright misuse. They must also have known that the day would eventually come when they’d poke the wrong bear. The smart thing to do would be to admit their error, apologize to the public, right the ship, and get ahead of a much more serious threat than I could ever be. The question is whether their arrogance and stubbornness will outweigh their intelligence. The ball is in their court, and I hope by now that both they and you realize this is a lot bigger than the ability to publish a few stat blocks.

WotC has threatened me, and I expect them to do so again, meaning I, and anyone interested in the OSSBs, and many others in other contexts, have suffered tangible harm. The question now is what I’m going to do about it. I have several options:

  1. Walk away. Don’t republish and instead allow WotC to continue their practices. Never once have I considered this possibility.
  2. Republish the OSSBs as they were originally intended to be published. That is, publish only those stat blocks that needed the one-stop treatment, providing the mechanics for spells that the monsters could cast, innately or otherwise. This was all the project was ever intended to be, and because it made the game more accessible, it’s impact on the game could only be a net positive.
  3. Republish the OSSBs but include all WotC stat blocks, including an Access database with all that data within it so that anyone can create stat blocks as they see fit (as well as verify my math from part 2). Such publication is legal but doing so in a way that hurts WotC’s sales would be just deserts for a company that responded to my legal behavior with an arrogant threat.
  4. Sue WotC. Two of the five federal appellate courts that have recognized copyright misuse as a defense also allow it as an affirmative cause of action. At least one person online claimed that I had an obligation to incur as much as $500,000 in billable legal hours because otherwise I was a “cop out.” While that accusation is unfair, it would fix the problem once and for all, and I’m already getting some help from experienced litigators in that regard.

The following paragraph has been rewritten multiple times over for each of those options except the first one. I wasn’t sure how I wanted to proceed, so I was prepared in any of these scenarios.

I’m going with option #2. I’m republishing the one-stop stat blocks as they were originally intended: An expansion of a subset of the stat blocks designed solely to make the game more accessible to certain DMs. I’m choosing this over the other options because my intent has always been to help all parties involved, not hurt any of them, and that’s what option #2 will do. I’m not seeking revenge or some notion of “justice”; I just want to publish public domain material that will help the community by filling a gap that, for some odd reason, WotC won’t fill themselves. If WotC’s legal department arrogantly and stupidly wants to sue me, that’s their call. They know my arguments, so they know what they’re getting into, and if they shoot themselves in the feet, that’s on them. I don’t need to make an example of them, but nothing will change unless I’m serious about the public’s rights, so I’m fully prepared to make these arguments in court (as well as arguments for cancellation of two of their trademarks for non-enforcement), and will scorch the Earth on which they stand if forced to do so. This is a rare opportunity for the courts to correct a problem in the industry, and it would have positive effects on other industries as well. I have a feeling that the court will jump at the chance to rule in my favor. However, there’s no pot of gold at the end of this rainbow. If I win, I won’t even see a $20 judgment, which is why no one ever pursues such a case. Accordingly, I’ve set up a GoFundMe campaign to finance the process. It’s still not in any search engines, not even GoFundMe’s search routine itself, so you can’t find it unless I point you to it or you take a remarkably good guess. If WotC sues me***, I’ll make the GoFundMe visible, place a litigator on retainer to monitor my legal work (I haven’t litigated in a while) or actually do the work (depending on how much I raise), and then switch to option #3, legally republishing all WotC stat blocks and the database. It shouldn’t have to come to this, but that’s not my call.

As expansive an industry as gaming is, it could be a whole lot better, and it’s WotC’s fault that it isn’t.

Thank you for taking the time to read and criticize these posts. I’m making some changes to the OSSBs that have nothing to do with legal issues. Once they’re ready, I’ll publish them as a separate blog post. This should give WotC plenty of time to decide if and how they want to respond.

*** If you’re interested in helping with any lawsuit that may occur, please share your negative interactions with WotC via email. This should include threats of any sort from WotC for publication of any of their work, though most likely only threats related to 3rd and 5th edition Dungeons & Dragons will be relevant. Also consider contributing to my GoFundMe to finance the suit, which I will publish if and when needed. Intellectual property-based litigation can easily carry a six-figure price tag. My own work will mitigate those costs to a large extent, but I’d prefer to retain litigation counsel to assist. You all know what they say about an attorney who represents himself.

Author: Frylock

Robert E. Bodine, Esq. is an attorney in Virginia focusing his practice on real estate and intellectual property law. He is one of the founding members of the Gamers’ Syndicate, a Washington, DC-based gaming club. He was the author of the Loremaster.org article series, Protection from Chaos, dealing with intellectual property law matters as they relate to the gaming industry, and has represented several game designers on intellectual property matters. You can follow him on Twitter @RobertEBodine for politics, @PropertyAtty for legal matters, @GSLLC for gaming matters, and if you’re a sports fan, @MMADork.

27 thoughts on “Part 3: The Damage Done by the Otherwise Ineffectual Open Gaming License #DnD #copyright #iplaw #ogl

  1. I’ve had the suspicion that the OGL might be on shaky ground since its inception, but I fear that the arguments here are not as strong as I’d hoped. Here are a few questions perhaps you could clarify:

    (1) It seems like a key part of your analysis here is the preamble to the OGL 1.0a as it appears in the SRD 5, specifically the indicated list of PI (monsters, names of planes, etc.). Compare to the OGL 1.0 appearing in the SRD 3: the preamble contains no such list of PI. Quoting:

    “The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself. All of the rest of the text in this document is Open Game Content as described in Section 1(d) of the License.”

    Note that the SRD 5 has inserted the list of protect PI between the 2nd and 3rd sentences there. I assume you’re not arguing that the text of the OGL has unprotected status. Does the SRD 3 with OGL 1.0 have any different status according to your analysis, granted that it lacks the preamble list of alleged PI?

    (2) The motivation for the OGL in 2000 was explicitly modeled after the GPL which has protected open-source software for 30 years at this time. Briefly, do you think that the GPL is also deficient, or does it qualify as a legitimate license?

    (3) I’m confused by your italicized preamble (repeated in all 3 parts) which says, “To the extent that there has been any technical infringement… [it] is therefore a fair use of those copyrights”. I don’t understand how something could be a “technical infringement” and simultaneously “fair use”. Looking at 17 U.S.C. § 107, which says, “the fair use of a copyrighted work… is not an infringement of copyright”, it seems like these conditions are mutually exclusive. Perhaps you could clarify legally how it makes sense for these conditions to be present at the same time?

    Thanks for for the very interesting articles.

    1. Thanks for your questions.

      1. The OGL3 and OGL5 are slightly different documents. I’m preparing a fourth post that will serve as a FAQ of sorts I discuss the OGL3 to back up one of my unsupported claims. However, I can’t find a copy of the OGL3 or SRD3 online. All the sites I saw that use them link to a dead page on WotC’s website. So, at this moment, I can’t pull out specific quotes. However, the text you quoted makes the same statement as the OGL5. Specifically, it’s subservient to Section 1(d). If Section 1(d) is unchanged, that that means that there’s PI in the SRD that may not be copied, yet WotC is specifically directing you to copy it. That’s hugely problematic. Ultimately, I’m unable to perform any such analysis because I’ve never taken an action that implicates the OGL3. Anyone else that has would need their specific situation addressed by an attorney familiar with it. All that said, to answer one of your questions, I’m sure the text of the OGL5 is copyrightable (hence, the disclaimer to be discussed in #3 below).

      2. This answer is the same as in #1. I’ve never run into an issue the GPL and in fact have never reviewed it. Just skimming the Wikipedia page, I can say that outside of Germany, there doesn’t appear to be any evidence that the GPL has ever been deemed a valid contract by a court (though a US judge gave a non-binding opinion to that effect). Moreover, the cases in the US addressing it have been based on antitrust or IP principles, many of which settled. I don’t see any breach of contract claims, but without reading the cases themselves, I can’t be certain. It’s possible that the GPL serves the same purpose as the OGL, which is to make the following general statement: “These are the things that you can do that won’t result in a lawsuit. Go outside these four walls, and we may sue.” This says nothing as to whether such a suit would be successful. It doesn’t even say anything as to whether such a suit would be frivolous. It’s just a statement of opinion from an interested party as to what the law is, not a contract. If the GPL actually does a good job in distinguishing between infringing and non-infringing uses, then it will appear to be “upheld” by courts even if it isn’t actually a contract. I can also say that, despite similarities and overlap, table-top RPGs are not software. Trying to apply the content of my posts to the GPL would be a mistake.

      3. This is purely semantic. That’s not meant to be a criticism of your question; lawyers wholeheartedly embrace semantics. 🙂 Let’s use an analogy. Academically speaking (i.e., not based on any one state’s law), the case for battery is that I (1) act with the (2) intent to hit you (or scare you into thinking I’m going to hit you), and that my act indeed (3) caused you (4) damage. However, I can raise an affirmative defense that can justify the battery. For example, if you attacked me first, I can claim self-defense. If, on the other hand, we were in a state-sanctioned boxing match, I can claim consent (criminal) or assumption of risk (civil). In any of those cases, I think it would be wrong to say that the battery didn’t occur in the first place. Even assuming the legitimacy of my defense, the case for battery is still technically made. My intentional act caused you harm. The Copyright Act chooses a more colloquial way to say it, claiming that there was no infringement at all. To me, this brushes over the fact that an analysis needs to be performed before even making that claim. Am I worked up over it? Of course not. In any lawsuit, the analysis will be performed, and the net legal effect is the same: No liability for infringement. This is why I referred to any potential infringement as “technical infringement.” If anything I write meets the definition of infringement, a deeper analysis will show that my use of the material was fair. If you want to say there was never infringement, that’s fine with me. Either way, the disclaimer is appropriate.

      Does all of this make sense? Considering the OGL’s issues with consideration, ambiguity, a ridiculously overbroad declaration of acceptance, etc., I’m uncertain as to exactly how much stronger an argument could be made against it.

      1. Follow-up on item #1: The Open Gaming Foundation site keeps copies of the OGL and original SRD. For example, the OGL 1.0a is here: http://www.opengamingfoundation.org/ogl.html

        Note that the OGL is separable from any SRD. In the form seen in the link above, there is no preamble, and no reference to any SRD in section 15 (that section only refers to the OGL itself). The preamble and Section 15 copyright reference are only added when the license is published as part of some other work (e.g., like an SRD). So: It seems difficult to accept your argument that the Section 1(d) language implies there is PI in the SRD, when the OGL can exist in a state without reference to any particular SRD.

        On that point, note likewise that the OGL has also been used for other game systems without reference to any of Wizards’ SRDs, for example, here: http://fatecoresrd.opengamingnetwork.com/legal/ .

        N.B.: The SRD3 and SRD5 do not use different OGLs. They both identically use “OPEN GAME LICENSE Version 1.0a”. A text search shows they are identical except for the SRD referenced in the Section 15 Copyright Notice.

        N.B.: I’ve maintained copies of the OGL and Wizards SRD in their entirely (files dated 2002-2004). If it would be helpful to see those, feel free to ping me at my email or website to which you have links.

      2. Okay, now I see what you’re saying, and now I see how I screwed up. It’s not a major blunder, but from an attorney’s perspective, crap.

        Everything I’ve argued still applies except with this modification. The “preamble text” and list of PI (Hades, githyanki, etc.) to which I referred actually appear in the SRD, not in the license itself. So, the ambiguity I reference, as well as the attempt to license mechanics inconsistent with copyright law, still exist in the license. In fact, though, the license says, “to the extent such content does not embody the Product Identity,” so it’s expressly forbidding publication of the particular expression regardless of whether there’s an SRD, as well as every other copyrightable subject matter they thought to list. These issues with the license are even harder to resolve because that text isn’t in the license. If a Court can’t resolve those issues (it can’t), it would either have to rule against WotC or go outside the license to do so, and sure enough, the SRD is the best resource for exactly that. Once there, the Court then looks at that language and says, “Nope, this makes things clearer but also makes matters a little worse. There’s PI in the SRD. This ‘contract’ fails, and WotC confirms [Rob’s] interpretations.” So the OGL is even more ambiguous than I argued, with the SRD providing clarification, but not in WotC’s favor.

        The OGL on its own terms still claims to licenses processes, etc., not just their particular expression. In light of the context surrounding the OGL, SRD, and at least their email to me, my arguments stand. The OGL is not a license, and WotC has used it, the SRD, and their actions to misuse copyright at least with respect to the one-stop stat blocks.

        That’s some great attention to detail on your part, and thanks for all of those links.

      3. I’m very glad if that observation can help strengthen your argument. 🙂

        Let me just continue the conversation a bit, as a layman reading the OGL/SRD. To me, PI seems mostly correlated with Trademarks. The definition in 1(e) reads, “‘Product Identity’ means product and product line names, logos and identifying marks including trade dress… and any other trademark or registered trademark…”, and the following 1(f) is likewise more detail on Trademarks. Section 7’s agreement to not use PI is again almost entirely referring to Trademarks. Section 8 says you’ve got to clearly identify what is Open Gaming Content; the preamble in the SRD does that. The SRD5 preamble list of PI is all proper nouns, which I would think could be legitimate Trademarks. So I’m surprised that you think some “particular expression” is being prohibited, when the license allows use of all text in the SRD with the exception of that list of nouns/trademarks (as per Sections 4, 7, 8, and the preamble “All of the rest of the text in this document is Open Game Content”).

        The current SRD5 I get from WOTC seems close to entirely avoiding any of those PI-indicated nouns in the text. One exception is “Player’s Handbook” which appears a bunch of times in the form of, “For more information on [topic X], see the Player’s Handbook”. The beholder, mind flayer, umber hulk, and yuan-ti monsters also appear in two examples each. None of the other preamble PI terms that I searched for showed up.

        The WOTC site (https://dnd.wizards.com/articles/features/systems-reference-document-srd) indicates that the SRD5 text has been revised, e.g., fixing things “such as a few references to ‘DM’ instead of ‘GM'”. It seems like an earlier version also included in the description for blink dogs, “Blink dogs harbor a long-standing hatred for displacer beasts and attack them on sight” (seen here: https://www.5esrd.com/gamemastering/monsters-foes/monsters-by-type/fey/blink-dog/), which has been removed from the currently-available SRD.

        So to this layman, I would think that the list of PI are just a bunch of trademarks you can’t use, all other SRD expressions are fair-game, and if the SRD somehow accidentally contains one of those trademark terms, this clarifies that the error doesn’t release the right to that branding term (stipulating for this thought that those terms are legitimate trademarks). And in fact WOTC is doing due diligence by removing some professed trademarks from the SRD when discovered.

        Counter-argument might be that a few of those terms (noted above) are still in the SRD in places as non-essential examples. I might guess that the SRD3 is on stronger footing in this regard because, e.g., it doesn’t include those “For more information on [topic X], see the Player’s Handbook” call-outs.

        How off-base would you think that my reading of PI as basically Trademarks would be?

      4. This is long, so I’m going to pick out some quotes one at a time and respond. I hope this doesn’t seem obnoxious. 🙂

        “To me, PI seems mostly correlated with Trademarks.”

        You then quote the passage that supports this notion. However, you omit over 3/4 of that provision, which is primarily copyrightable subject matter. At the absolute least, copyrights are relevant. Moreover, among those terms are sufficiently vague terms (“Concepts”? Really?) that could easily be interpreted to include the specific expression of the game rules. I actually hope not. Think about what that would mean for small designers. Right now, you and I are essentially arguing whether WotC’s copyright misuse is embedded right there in the OGL. If so, that means the small businesses that use the OGL (even without an SRD) get sued if they don’t use it but commit copyright misuse if they do. That’s a hell of a position to be in, right?

        “So I’m surprised that you think some “particular expression” is being prohibited. . . .”

        Again, that follows from the language in the OGL itself, but also from the SRD. As I said in my last response, the OGL itself says, “to the extent such content does not embody the Product Identity,” but for the reasons I just stated, the PI includes every imaginable copyrightable subject matter. Granted, they don’t come right out and say “all copyrights” as they do with “trademarks,” but there’s no other reasonable interpretation based on how broad that list and the terms within it are (a “storyline” can’t be a trademark). As for the SRD, again, you’re leaving out a key part of the phrase you quote: “All of the rest of the text in this document is Open Game Content as described in Section 1(d) of the License.” That term in the SRD is defined in part by the text of the OGL itself, which clearly includes copyrightable matter. Also recall that section 1(d) itself defines Open Game Content as the game rules “but specifically excludes Product Identity,” which includes formats, concepts, and themes.

        And then we get into WotC clearly attempting to suppress mechanical representations of creatures (stat blocks), which suggests that my interpretation is their interpretation, but I shouldn’t take us on a tangent.

        “How off-base would you think that my reading of PI as basically Trademarks would be?”

        For the reasons above, off, but hardly crazy. After all, you seem to be on track as far as how WotC handles Trademarks, which is absolutely relevant, and I do see your point. WotC doesn’t specifically mention “specific expression of game rules.” But then consider this: Even if you’re right, the SRD5 lists a bunch of creatures that doesn’t include, for example, the goblin. It then says all the rest of the SRD5 is OGC as described in Section 1(d), which means Section 1(d) governs. They then say that creatures are PI. Goblins are creatures. They’re claiming goblins and many other creatures, spells (with no exception for purely mechanical text), environments (which isn’t the same thing as a location, because it also mentions location), and various other things that aren’t possibly copyrightable. If you’re right, WotC sneaks its way out of an unenforceable contract, but the contract is still hugely problematic.

        “And in fact WOTC is doing due diligence by removing some professed trademarks from the SRD when discovered.”

        Yes, they are. My point is that they’re doing a lot more than that.

      5. My response was a mess. Let me try to summarize and enhance quickly.

        1. From definitions, “Contributors” includes those that provide copyrightable subject matter, and the list of PI contains many things that aren’t properly the subject matter of trade secrets (because their published), trademarks, or copyrights, so copyrights are absolutely relevant to PI.

        2. The list of PI is extensive, and while it doesn’t expressly include “specific expression of the rules,” the multitude and vagueness of several terms within that list could easily lead someone to think “anything copyrightable is PI.” While I’m sure they exist, I know of no attorneys that haven’t drawn that same conclusion. Additionally, as I discussed in parts 1 and 2, most of each spell isn’t copyrightable, yet the PI doesn’t distinguish between those parts that are and aren’t copyrightable. That means it’s grabbing all of it. This is at least ambiguous, and ambiguity gives my argument a slight advantage over yours. (Pulling in the SRD to help resolve this problem will actually hurt WotC’s effort.) Still, your point is very good, and I don’t want to minimize it. This is exactly what WotC would likely argue if the OGL were ever the subject of a lawsuit. (It wouldn’t be for the one-stop stat blocks.)

        3. Your entire disagreement with me (as far as I can tell) is with my claim that the OGL fails to provide consideration. Even if the OGL provides consideration, a) it still fails based on lack of a means to accept it, and 2) the consideration is something no one would ever want. By WotC’s own argument, everything in the SRD would be freely copied, so why would anyone ever produce any of that OGL content? They could just print individual pages of the SRD. There’s no market (financial or otherwise) for printing SRD material, so anything anyone else ever did (like the one-stop stat blocks) wouldn’t include any of the copyrightable portions of the rules (in the interest of brevity) and would instead try to break new ground, so the OGL is still not a contract, and if a court were to rewrite its acceptance term (it wouldn’t), the OGL would be worthless (except to bully gamers and smaller game designers of course).

        4. The OGL still attempts to absorb material already in the public domain (e.g., names of characters, environments [distinct from locations], themes). To the extent that any of these *could* represent protectable subject matter, the fact that they encompass more than just protectable subject matter is problematic. Think about the position in which that places smaller game designers. They’re in a position where they’re afraid not to include the OGL because they’ll get sued by WotC, but if they do include it, they may have committed copyright misuse themselves, which temporarily renders their copyrights unenforceable. That’s a hell of a position to place them in.

        I hope this is a little better.

      6. Very much appreciate hearing your thinking around these issues. You’ve got a point there that the SRD PI-preamble references the definition of OGC in SRD 1(d), and that references the definition of PI in 1(f). Interestingly 1(d) and 1(f) both cross-reference each other, so as a math guy the thought occurs to me now that maybe those are not well-defined by virtue of a circular definition.

        Perhaps 1(f) defining PI (I think the longest subsection in the SRD) is the most problematic? Granted the word “other” near the end (in “and any other trademark”), it seems like there must exist something in the preceding list which is also a trademark. I’ve broadly been assuming the entire list was under that rubric; e.g., only trademarked creatures (like the beholder asserted in the preamble, etc.), not all creatures (like a goblin). As a result, I’ve always been reading the list of PI (in the preamble’s OGC identification) as strictly limited.

        If you think it could be read as other than that, that would be very interesting and a big change to how I’ve always read those parts. I can’t say as I’m completely convinced of that at this time. Thanks greatly for sharing your work!

  2. A friend of mine on Facebook had some thoughts he wants to share, he but doesn’t have the time or inclination to do so here. Since you’re looking for feedback and so on I’ve reprinted his comments below.

    [1/3]
    Aaaand there’s a legal error in the first paragraph. The OGL/SRD does NOT place any material into the “public domain”. It is a LICENSE, just like any other – Fantasy Flight’s license for Star Wars, EN Publishing’s license for Judge Dredd, etc. The only difference is it’s an Open License, meaning it is open for everyone and does not require a specific individual agreement for each person. You STILL have to agree to and abide by the terms of the license.
    If the guy doesn’t know the difference between public domain and an open license, I’m not sure I trust him to comment any further on the subject frankly.

    [2/3]
    ‘Let’s break down OGC first. It includes the game rules (a.k.a., “game mechanics”), which are not copyrightable, so everyone may distribute them without restriction.’ True but misleading and what’s gotten several OSR publishers in trouble. While it is true that game mechanics cannot be copyrighted, the PRESENTATION of the mechanics CAN be. So you can take any RPG mechanics you want legally speaking, but you can NOT simply copy their text describing those rules. You have to re-write them yourself. Also, it ONLY covers the mechanics and not anything else – including terms. It’s why you never see any of the OSR games with the different names for each level – you know, how a Thief went from cutpurse to cat burglar to master thief and whatnot – those aren’t game mechanics.
    Another example, armor class is a game mechanic, but the phrase “armor class” is not. The question of whether you can or cannot use terms like “armor class” is a debatable one…one whose debate can only truly be resolved in court. Where the question will be less which one is true but how long you can afford to fight Hasbro’s legal team.

    [3/3]
    Oh god it keeps getting worse…the guy’s making a lot of false claims in here by twisting the actual law and it’s…seriously, I kinda want him to sue WotC just so I can watch how fast and thoroughly he gets smacked down over this because his reading of the law and the OGL is bad.

    (And a reminder here at the end that these ^^^ aren’t my opinions or comments, they’re from a colleague of mine who focuses on the press side of RPGs. )

    1. Please thank him for his commentary. He seems to either have not read all three posts or is confused by what I wrote. If the latter, it’s probably my fault. As I said in part 2, this was really difficult to write for two different audiences, and I’m probably not the best writer for the job.

      The OGL/SRD does NOT place any material into the “public domain”.

      I never said it did, and I can’t imagine how he inferred that. I claim that the OGL claims to license material already in the public domain, so in effect they’re trying to do the exact opposite: remove something from the public domain. Clearly, they can’t, so it doesn’t happen, but I don’t see how he could get this confused. There’s probably some confusing language in my post. If so, please have him quote it so I can clarify.

      The only difference is it’s an Open License, meaning it is open for everyone and does not require a specific individual agreement for each person.

      Which, for all the reasons I’ve stated, means it isn’t an actual license. It fails to provide consideration, it’s means for acceptance is overly broad, and its terms are ambiguous. If he disagrees with the arguments I made backing these assertions, he has to do more than merely make assertions himself. He needs to make an actual argument. If he chooses not to do so, that’s fine of course. I just have no means to respond to him other than, “Re-read my argument and let me know what you think.”

      While it is true that game mechanics cannot be copyrighted, the PRESENTATION of the mechanics CAN be.

      I said this several times throughout all three parts, including this in part 3:

      In fact, a reasonable interpretation of this apparent ambiguity is that the one thing WotC could possibly be licensing with this material – the specific means of expressing their game rules – is also not being licensed.

      If he disagrees with my interpretation, that’s fine, but to suggest that I don’t understand that a particular expression of game mechanics can be copyrighted flies in the face of several times I made that exact point.

      Another example, armor class is a game mechanic, but the phrase “armor class” is not.

      I specifically addressed “armor class” in part 2. It would serve him well to read that post. In fact, to avoid the distraction, I was very generous about WotC’s hypothetical right to copyright that term. In fact, they probably couldn’t. This circular from the Copyright Office may help: http://copyright.gov/circs/circ33.pdf.

      I kinda want him to sue WotC just so I can watch how fast and thoroughly he gets smacked down over this because his reading of the law and the OGL is bad.

      This deserves two responses.

      1. I’m going to talk in detail about this in a fourth post that will serve as a FAQ of sorts, but no one’s going to read it, so here’s a brief summary. I didn’t pick this fight; WotC did. I made it very clear that I decided not to file suit, so I’m not suing. Moreover, to address something that I was told someone else stated, if WotC doesn’t sue, there’s no lawsuit, so there’s no GoFundMe. All of this is on WotC. We’ll see how they react.

      2. If there’s a lawsuit, it won’t be over the OGL except to the extent that the OGL provides evidence of WotC’s intent to misuse its copyright, and the fact that they brought into the discussion by claiming I could publish public domain material only if I subjected myself to the OGL. The copyright misuse itself, however, stands on its own regardless of intent. The OGL won’t be much of an issue at all. If either WotC or he predict a WotC victory solely over what’s in part 3, their prediction is quite unreliable.

      I want to say one last thing. This guy seems very angry, and there’s no reason for that. Let’s consider two broad hypotheticals: (1) I’m 100% right, and (2) I’m 99% or less right. If I’m 100% right, small game designers are in a position where they’re afraid not to include the OGL because they’ll get sued by WotC, but if they do include it, they’ve committed copyright misuse themselves. That’s a hell of a position to place them in. On the other hand, if I’m in any way wrong — even to the smallest extent — then so are literally all the other attorneys that to my knowledge have publicly commented on the OGL. I’m sure some support it, especially those with a personal stake in its validity, but I’ve never read or heard any positive discussion of the OGL by any attorney. Not ever. So, all of us are wrong. Stranger things have happened. But with all of these misguided attorneys in the world, wouldn’t it be great if someone stimulated the conversation among the legal community so we could hammer out the exact extent to which my arguments are right and wrong? Considering the consequences of copyright misuse to both the industry and the community (as thoroughly discussed in parts 1 and 2), I’d say it would absolutely be great. Let’s calmly and politely talk about it. I don’t see any basis for anger from anyone, including the authors of the OGL themselves.

  3. 1. So, when the OGL/SRD came out, I was wow’d to see that I was (at least notionally) able to save myself countless hours of work by copying SRD material verbatim. Sure, it was only the specific text of game mechanics, spells, rules, etc. I even edited a bunch where I though they were unclear. But there’s no question in my mind that being able to do so was a real time-saver. I rather imaging that WotC would consider that “consideration.” Even if you can bang out 5,000 words a day . . . that’s probably saved you one or two months of developer time. For me, at least, “you can use these 200,000 words (or thereabouts) of pre-written text feely” was a big deal.

    2. So, what happens if all this plays out and the OGL is smashed. Are products retroactively affected? Going forward, I can see a benefit. Looking backwards, I’m seeing thousands of books and tends of thousands of potential revenue loss if the text that I thought I could use freely is now subject to accusations and action for plagiarism.

    1. Thanks for your questions.

      1. If you’re looking at the OGL without an SRD, which the OGL doesn’t require, then the OGL doesn’t provide that consideration. The OGL wouldn’t allow you to photocopy pages directly from the PHB, but instead contemplates you doing the 5,000 words per day. It’s simply saying that your permitted to do all that work yourself as long as it’s OGC. So that can’t qualify as consideration under the OGL. The fact that WotC happens to provide an SRD in order to identify what they deem OGC is really nice for you, but it’s not strictly required by the license, so the license still lacks consideration. Now, if WotC changes its tune and says that the SRD is a required component of the license, all the other arguments still apply, including those with the SRD itself. NOTE: Please read the post I just published. It’s relatively short but relevant to your questions.

      2. If the OGL (or any other WotC action) is deemed copyright misuse, then looking backwards those copyrights aren’t enforceable during that time period, so there’s no risk of infringement (you said plagiarism, but I think you meant infringement). If not deemed copyright misuse, then nothing changes, so again, your fears are realized. I’m much more concerned about what happens to third parties that were intimidated into using the OGL. Their copyrights would also be deemed unenforceable, and the courts won’t be sympathetic to them. The courts will say, “Well, you should have hired an attorney before using the OGL, and you should have sued to protect your right to publish.” As impractical as that is for so many people, that’s our system, and WotC is benefiting from that.

      1. I’m one of those third parties, intimidation or no. I saw a way to leverage the fine game that was 5e, and while I added perhaps 200,000 words of my own, I also used the SRD, as was intimated permissible by the OGL…OH. You mean those that allow others to use their own work under the WotC OGL or something inspired by it. OK, I think. That’s not me.

      2. Also, I did mean plagiarism, though I’m presuming that would carry with it the presumption of infringement. Using text word-for-word doesn’t permit an argument of originality, so if I can use that freely, well, boom. If the expression of the stuff in the SRD is copyrightable AND the license was retroactively revoked, null and void, etc…then the use of that text is basically a death sentence for that particular product until/unless I rewrite the thing using original expressions.

        Now, that wouldn’t be BAD (though it would represent the loss of a lot of printed books and ergo a sunk cost) in that I’d get a crack at making those words better, different, or basically just saying: “UM. OK. Dragon Heresy (2nd Edition) it is!” But it would be a significant setback for me, and worse for those whose entire product catalog is SRD based.

      3. Re, Paragraph #1: This seems to contradict the current 3.5 post that says a court is more than 50% likely to find that consideration exists? OGL Section (2) states, “This License applies to any Open Game Content…”, so without any OGC, the license is inapplicable. Clearly in any case that exists the OGL was attached to some Open Gaming Content and thus consideration seems to exist, as gamingballistic observes (to copy those expressions).

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