The OGL and the Problem with Patents #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract #patent

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I’d apologize for beating a dead horse, but it seems none of you can get enough of this stuff, so let’s look at yet another serious issue with the Open Gaming License 1.0(a) (“OGL”). I’ve never commented on this problem directly because it’s purely academic, but here it goes. Section 1(d) identifies the consideration (thing of value required in a contract) supposedly passed to the licensee (you) of the OGL as:

. . . the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and . . . any additional content clearly identified as Open Game Content by the Contributor . . . .”

You know the routine. The problem with this is that it allegedly licenses two things: 1) game mechanics that are subject of patents, and 2) material covered by a statement (which could be oral or written without reference to a “document”). Because Wizards of the Coast doesn’t own any patents, #1 doesn’t state consideration, and because the statement of #2 can change literally on a daily basis, it creates far too much uncertainty as to what’s being licensed on any given day.

So, what if a game designer were to secure a patent on their game system, then use the OGL to license their game? To my knowledge, no game designer has an unexpired (or expired) patent on their role-playing game system, but even if that’s true, it’s at least possible to get one. Ignoring the multitude of problems in the OGL, wouldn’t that remedy the specific issue of consideration for the game designer that holds a patent? Sure, of course it would, but the consequences would be insane. What does the OGL allow the licensee to do with the game mechanics? For that, we go to section 4.

In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

That’s it. There are no restrictions on the use of those patents. You have free rein to do as you please with all the patented subject matter the game designer owns, and you don’t have to pay them a dime for it. If this were a legitimate license and were irrevocable (as many have argued), that would render the game designer’s patents absolutely useless. Patents represent the strongest limited monopoly of any form of intellectual property, and, if commercially viable, the most valuable, and yet the OGL essentially gives them away. Is that what you’d want? I doubt it. The one thing we can all agree is granted by the license is the one thing you wouldn’t want to license to your competitors.

The OGL can’t get a single thing right.

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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?)

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