How About Something Constructive?: Public Domain #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract @SRMacFarland @delverpg @Wizards_DnD

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I’ve spent a lot of time complaining about everything Wizards of the Coast (“WotC”) has done, and then threw Pazio under the bus as well. You may be thinking, “Well, what should the industry do?” I avoid answering those kinds of questions because my answers may stray into areas about which I know too little to be helpful. I’m no business expert, and I’m not industry expert. But, it’s about time I offer a solution. Just keep in mind that my solution will not be accepted by the industry and will raise a lot of questions that I shouldn’t answer.

Since writing this post, there’s been a development. This afternoon, WotC has issued yet another statement. I posted my reaction to social media which may have raised some questions conveniently answered by this post. For context, here are my comments:

This is a trap. As I’ve explained in great detail for almost 15 years now, as long as WotC continues to dupe you into thinking the OGL is a legitimate license, the danger will always be lurking in the shadows. If the next “OGL” is anything other than a grant of material to the public domain, nothing will change. It’s now on you to choose to accept that.

Over on Mastodon, someone opined that at least they got the tone right this time. I hate to be an ass, but I’m reluctant to give them credit even for that. It took backlash to their faux apology to get the tone right. They lack the foresight necessary to make the right moves [in the first place] because it’s not honestly within them (or so it seems). If enough people parrot what I’m saying here, maybe WotC will do as I say and dedicate a reasonable portion of their material to the public domain. Then, and only then, do we know exactly what we’re getting and can evaluate it.

I imagine some may be asking how a dedication to the public domain would be better, and so I give you . . .

Today’s Post

So, you want open gaming. That means you have to use material that you otherwise couldn’t have. WotC’s fiction of the Open Gaming License (“OGL”) was designed to dupe you into believing they did that without actually having to do it. That’s why we’re in this mess. Of course, a genuine license for each party would be impractical, so how do you grant everyone genuine access to copyrighted material all at once?

Deep penetration?

Umm, how about granting everyone genuine access to copyrighted material all at once? WotC, et al. should scrap their fake licenses, publish a document with all the copyrighted material that they wish to “license,” and effective say that all the material in the document is hereby dedicated to the public domain. Maybe we can call that document the “System Reference Document.” I don’t care. It just has to perform the dedication, which would consist of the specific expression of their game rules. As I’ve discussed ad nauseam, much of what they publish isn’t copyrightable (more on that in a few days), but that’s okay. Along with some spells, monster stat blocks, etc., they can place, for example, their description of their initiative system in the document. Any of that material that’s copyrightable is dedicated to the public domain; any that isn’t copyrightable has no impact other than to assure you, without having to file a lawsuit, that you can use it freely. Moreover, the grant of uncopyrightable material carries no risk to WotC of committing copyright misuse. It’s an elegant solution that does exactly what you thought the OGL did and what WotC occasionally claims they intended.

The effect of this would be to create something resembling an irrevocable, perpetual, royalty-free license with no restrictions on the use of the material. Isn’t that what you were assuming the OGL was? Isn’t that how you were treating it? Even if you ignore my claim that the OGL isn’t a license at all, the recent dust up has at least created a legitimate debate over whether the OGL is revocable. This would solve that. Literally. WARNING: Crazy legal speculation to date unproven in any court. You see, there’s a theory in copyright law that there’s no such thing as a dedication to the public domain. Why not? Because the copyright act doesn’t provide for it. Under this theory, when you attempt to dedicate to the public domain, what you’re really doing is granting a non-exclusive, perpetual, irrevocable, royalty-free, license to every human being in the entire world, and all that will be born during the life of your copyright, to use the material without condition or restriction. I’m not sure how well this theory holds up — it has similar problems with acceptance (to be discussed tomorrow) — but whatever it’s philosophical nature, this is exactly what you expected and now demand from WotC. Creative Commons provides an express statement of dedication here.

It’s important to note that some scholars argue that you can’t dedicate to the public domain, while the rest argue that it’s exceptionally difficult to do so. The copyright office provided a blogger an unhelpful response on the matter. Either way, I find it difficult to believe that that an ambiguity in a contract could possibly result in either a public dedication of the copyright or an interpretation of a contract as irrevocable and royalty free, which is, practically speaking, the same thing. As the copyright misuse cases (among many others) show us, federal statutes will always overrule contracts and judicial principles of contract interpretation when they come into conflict. Where a conflict could arise, and Congress wanted state law to prevail, they amended the Copyright Act (see, e.g., § 108(f )(4)). You have a copyright. You lose it when it expires, and maybe if you clearly dedicate it to the public domain. That’s it.

If WotC dedicated material to the public domain, then we’d all know exactly what we’re getting, so we could then have an open and honest dialogue about whether what they’ve granted is sufficient to allow third party publishers (“3PP”) to produce their material. If a 3PP felt there wasn’t enough there to make their product, they could decline to do so, while another 3PP might say what’s there is plenty. In other words, on a publisher-by-publisher basis, 3PPs could make decisions on a product-by-product basis whether they could make something work with what WotC has given them. If enough 3PPs abandon their projects, then WotC might have to reevaluate their grant, adding more to it as necessary. But the bottom line is this: We’d know what we’d have without resistance. Ever. The way things stand, there’s still too much uncertainty, especially in light of how seldom these matters are adjudicated by the courts.

Industry Reaction

How would the industry feel about this? Well, at least one person is on board. Before you accuse me of plagiarizing his work, keep in mind that I thought of it long before he published his article (though not necessarily before he thought of it; who knows?), and he consulted me before publishing his article. But what’s important is that we can’t even ask the industry (and gaming community at large) until they agree to listen to the question. Again, we need to drop the fiction of an open gaming license and start talking about real solutions.

Would executives do this? Would stockholders approve it? While I certainly have an opinion, those are questions best left for experts in the relevant areas. All I talk about is law. But in order to answer these questions, this conversation must be had. Demand WotC listen.

In the meantime, don’t hold your breath.

Follow me on Twitter @gsllc
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Follow Wizards of the Coast (D&D) @Wizards_DnD and let them know you want a public dedication instead of more of the same uncertainty.

Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)