Part 3.5: A Mild Retraction That Makes Matters Worse for #WotC #DnD #copyright #iplaw #ogl

Some excellent commentary on Part 3 from a reader uncovered an error and a weakness that deserve examination. Neither the error nor the weakness significantly detracts from the overall argument and its strength, but instead bolster the case for copyright misuse and, if the weakness proves to be a true flaw in the argument, heighten the damage done by the Open Gaming License (“OGL”) to the gaming industry.

In case it isn’t clear, Wizards of the Coast (“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.

The Error

Throughout Part 3, the “preamble text” was referenced as part of the OGL. This is incorrect. That text is actually part of the System Reference Document for 5th Edition Dungeons & Dragons (“SRD5”). Therefore, when evaluating the OGL on its own merits, one can’t rely on that “preamble text.”

Mea culpa.

The Weakness

In short, one (of a few) criticisms of the OGL is that it lacks consideration to the alleged licensee, which is something of value that must pass to a party for a contract to be legally enforceable. The basis of this criticism is the assertion that nothing, including the specific expression of the game mechanics, is licensed. Instead, the only subject matter that’s licensed are the game mechanics themselves, but because no one can own game mechanics, the OGL isn’t licensing anything. The assertion that the specific expression of the game mechanics isn’t being licensed is based on the list of elements that are included under Product Identity. That list includes several terms that are vague and can be broadly interpreted as an attempt to cover anything that could conceivably be copyrighted.

All that said, neither “specific expression of the game mechanics” nor “all our copyrights” (or a similar term) is expressly stated, so the chances are nonnegligible (perhaps better than 50%), that a court could find consideration properly stated in the OGL. The contract still fails for lack of a means to accept it, and contains some ambiguity (which generally tips against the favor of the contract’s drafter), but as far as consideration is concerned, the OGL arguably contains it.

Let’s assume this criticism sticks, and the OGL properly states consideration.

The New Interpretation

Without reference to anything else – the SRD5 or WotC’s threatening behavior – the OGL itself contains within it a license for copyrighted subject matter; to-wit: the specific expression of game mechanics. However, recall that Section 1(e) of the OGL defines Product Identity as, among other things, concepts, themes, names, none of which may be copyrighted in theory. It also includes “places, locations, and environments.” What exactly is an environment? The first rule of contractual and statutory interpretation is that if two different words are used, they must mean different things. If locations refer to, for example, specific cities, forests, etc.; and places refers to planes of existence; then all that’s left for the definition of environment are, for example, “a location with mist in it” and “a rocky hillside,” none of which are copyrightable. It also includes “special abilities” and “spells” that, as discussed in earlier posts, contain elements that can’t be copyrighted. Without any caveats such as “to the extent these represent copyrightable subject matter,” the only reasonable interpretation of the OGL is that it includes the complete text for those elements, which extends to noncopyrightable subject matter. Most damning, however, is that “concept” is a synonym for “idea,” and the most fundamental principle of copyright law is that “ideas” can’t be copyrighted. Nevertheless, WotC is claiming ownership of concepts. One cannot assume, without a caveat, that WotC is unambiguoisly limiting itself to an expression, especially in light of the fact that, as a matter of contractual interpretation, “concept” can’t have the same definition as “location,” “storyline,” “character description,” etc.

Thus, if the OGL states consideration in the form of copyrightable expression of game rules, then WotC is attempting to leverage that copyright to prevent the alleged licensee from using public domain material. Whether WotC succeeds in doing so or not, this is the essence of copyright misuse as defined in Assessment Technologies, among others, and it’s inherent to the OGL itself. One doesn’t have to examine the SRD5 or WotC’s behavior to find copyright misuse with respect to the OGL.

The Chilling Effect

Consider what this would mean to a small-time game designer, who may not be using the SRD5 and who may not be sending out illegitimate cease and desist requests. Game designers clearly feel compelled to include the OGL in their work for fear that WotC may sue them, but if they include the OGL in their work, their own copyrights could easily be held unenforceable until they remove it, even assuming no other bad behavior on their part. That’s one hell of a position in which to place game designers, all the result of WotC’s stated position.

Thus, if consideration is properly stated in the OGL, the damage done by the OGL is even worse (or at least more direct) than previously stated.

Note

I’m preparing another post that will serve as a FAQ of sorts based on other commentary. That should go up on Monday morning.