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In my focused post on consideration (or lack thereof) in the OGL, I analogized the Open Gaming License (“OGL”) 1.0(a) and System Reference Document (“SRD”) to a lease of an apartment and the rules and regulations document for that hypothetical apartment complex. That made it easier to understand the problem with consideration. I had another thought last night, which popped a memory into my head. Here’s a moderately-NSFW video from HBO’s movie, Don King: Only in America.
You Tube videos get deleted all the time, so let me give you the important (if not funny) part. Don King hands George Foreman a blank contract to sign. Foreman hesitates, but King assures him that he’ll fill in the details later. Do you need to be an attorney to realize that such a contract, once filled in, is not enforceable?
So, let’s return again to the OGL’s language on consideration, copying what I wrote before almost verbatim. It licenses you “methods, procedures, processes and routines” as well as “any additional content clearly identified as Open Game Content by the” game designer. The first part of that grant mirrors language in the Patent Act and patent law practice defining what can be patented. Likewise, these same words are used in the Copyright Act (specifically 17 U.S. Code § 102(b)) and copyright law practice to describe things not copyrightable. So, for a company like WotC that isn’t using the OGL to license patented subject matter (which I believe is the case for all RPG producers), that first part clearly licenses nothing.
The second part of that grant is meant to reference the System Reference Document (“SRD”), but by its own terms could mean a press conference. A clear statement is a clear statement, it can be oral or written, and it can always be restated. However, more importantly for today, it doesn’t even have to exist at the time the OGL is deemed accepted by the licensee (i.e., you). We saw that with the OGL 1.1, which was sent out before the SRD 5.1 existed. So, even if the contents of what eventually is “clearly identified” are copyrightable, because they don’t exist at the time you accept the contract (by mere use of the game mechanic!), and assuming no patents on the game in question, you’re basically signing a blank contract. The game designer will just fill in the details later. This also means that, if you assume your acceptance of the contract is valid, it occurs not when you act or speak, but when the game designer does so. That is, the game designer makes the offer and then accepts on your behalf, all on terms you didn’t know at the time the contract became valid.
This is legal nonsense of course, and it’s why you can’t sign a blank contract and fill in the terms later. That’s not a “meeting of the minds” required for offer and acceptance. This will be the case for all of these so-called open gaming licenses. If you buy into any of them, you’re escaping from a crocodile’s jaws by running into the jaws of a leopard (viral video omitted).
None of this works. It’s all (mis)perception, so it can all be taken away the second corporate philosophy changes, which eventually will happen.
Demand something real.
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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?)