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Just a quick note today, as my next bit of legal analysis I’m preparing is going to take a while to write. Try not to shoot the messenger for today’s post. I’m just trying to help.
I see a lot of people online calling for a new open gaming license that’s done correctly. Sadly, that’s missing the point.
Our problems aren’t going to go away as long as you continue to buy into the fiction that the Open Gaming License (“OGL”) is a real license. It clearly isn’t, but if you treat it that way by giving lip service to its arguments that apply only to real contracts (“It’s irrevocable!” “It can’t be deauthorized!”), or make calls for bigger, better, open gaming licenses, you can still be duped. As I said yesterday, the OG”L” (which should no longer contain the misleading letter L in it) should be a statement of what the game designer acknowledges they don’t own, and thus have no power to stop you from sharing. With RPGs, that’s far more material than you probably realize.
To the extent that a publisher has copyrightable material and wants to dedicate it to the public domain, they should simply do that with an undeniably clear statement to that effect. (Copyright law won’t allow contract ambiguities to result in such a dedication.) Otherwise, you might as well draft a “closed gaming” license with proper means of acceptance (i.e., signatures) and clearly stated (and proper) consideration, and just make sure the terms aren’t unreasonable. What many of you are actually asking for is oxymoronic, and as a result, using SRD material that has even the tiniest chance of being copyrightable could still get you in trouble. It hasn’t been licensed to you because the OGL is not a license, and there’s no doctrine of laches in copyright, so the copyright remains enforceable even after 20 years.
I’m glad so many of you, especially attorneys, are finally catching up with my rants from the past 10-15 years and my posts from 3 years ago, but some of your hearing has thus far been selective. I’m making a call for awareness from game designers and honesty from and the attorneys they employ, but the public’s insistence on believing the lies surrounding the OGL is a serious hurdle to those goals. This is not me merely demanding legal precision. Figurative use of the word, license, has added to your misplaced faith, so it’s no longer acceptable for any so-called “open license” to use that word. We’re seeing the very real, tangible effects it’s having on the community and industry right now.
We don’t need another fake license; we need an honest legal statement or a real license. As long as you allow this fiction to rule the day, the community and industry will suffer regardless of how this whole OGL 1.1 thing shakes out.
Reality checks can sometimes be helpful, but you need to be open to the help.
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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)