Category: Intellectual Property Law

“Stolen Game”?!?! Upper Deck Sues Ravensburger and Miller #UpperDeck #Ravensburger #TCG #game #gaming #law #iplaw #lawsuit @UpperDeckEnt @RavensburgerNA

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Upper Deck (“UD”) sued a former employee, Ryan Miller (“Miller”) and a competitor, Ravensburger North America, Inc. (“Ravensburger”) over a “stolen game.” If you’ve ever read this blog, you know that game rules can’t be copyrighted. They can be patented, so UD’s claim that their game was “stolen” may prove correct. I’m going to try to answer the questions that people have addressed to me.

Facts

Briefly, UD employs Miller to design a trading card game (“TCG”). Miller sings an employment contract that contains a nondisclosure provision. Miller leaves UD, joins Ravensburger, and designs a similar game there. UD’s game hasn’t been released, but Ravensburger has publicly shared their ruleset for playtesting at conventions and has sold packs of cards for it (or so the complaint alleges).

I’m just going to deal with the intellectual property law issues because the question that everyone seems to be asking (me) is one related to IP: Is this a valid basis complaint in the first place? That’s a question I can answer without knowing both sides of the story. That is, I can’t say who’s right and wrong, but I can opine as to whether or not the philosophical basis of the suit is valid.

Trade Secrets: The Forgotten IP

Part of this case falls under trade secret law, which I address in this post covering all forms of IP. The defendant’s employment contract had a non-disclosure/secrecy provision, and that’s the basis of the suit. Game mechanics can be protected under trade secret law, which basically says, “Don’t tell anyone what we’re doing,” or “Don’t tell anyone how we do what we do.” This is very much unlike copyrights because copyrights often have little to no value unless they’re made publicly available. Trade secrets are valuable because they’re kept secret. One of the most valuable trade secrets in the world is the formula for Coca-Cola. If it were patented, it would be published, and thus have at most 17 years of protection. Instead, they keep it secret, so it has value for as long as it remains so. That’s an important point: Once a trade secret is made public, it can no longer be a trade secret. You can sue someone for publishing it, but you can’t put the genie back in the bottle. Once it’s out there, it’s no longer protectable. Ever.

So, the defendant in this case was (allegedly) bound by contract not to share the mechanics until after they were released by UD. It’s reasonable to infer that Miller must have shared those trade secrets when designing a game that was remarkably similar to what he did with UD. Miller and Ravensburger could argue that the similarities are ones shared by all card games, and so none of them are trade secrets. The complaint details the game mechanics, but I haven’t really read through them, so I can’t evaluate that defense.

Of course, even if those mechanics are identical to other games, this may not get the defendants off the hook. Games have several elements, so the difference between most games is essentially which specific combination of known elements you’ve chosen for your game. That combination may be unique. Even if not patentable, it may be marketable, and thus have value. If, for the reasons stated above, the sharing of that combination hurt UD’s market for the game, there’s still a lawsuit to be had.

You might ask, “How would it hurt the market?” Well, think about it. Games have limited shelf lives. Their first push in the market is often where they make their most money. If someone learns of your game system and publishes a quick-and-dirty version of it first, they’ll grab most, if not all, the market before your more well-designed version even gets there. Maybe you’ll enjoy a secondary push in a few years, but you’ll still have lost that first market. Also, the first game company to get their game to market can always accuse the other company of plagiarism. As for patent infringement, depending on the timing, a game company could actually lose their ability to patent a mechanic because the mechanic was published long before the application was filed. There are time limits on these things, so it’s best to keep your designs secret.

Patents

Of course, as I mentioned above, UD filed for a patent in April, 2023. I have no opinion as to whether that will be granted. Even after I eventually read through the game mechanics, there’s a lot of “prior art” (i.e., existing games) I’d have to analyze to form an opinion, and I’m not going to do that. I don’t play TCGs. Even if I did form an opinion, patent law is a tricky thing. There are very few obviously good or bad patents. My opinion wouldn’t mean squat; we’d have to wait for a judge’s decision, and then an appellate court’s opinion before we get a real answer. Either way, claiming that the game was stolen is at best premature. That’s not to say I don’t understand why UD is saying it. I’m simply acknowledging the basis for your confusion by that claim.

There’s far more to consider here than I could possibly address. I lack information and the desire to dig any deeper at the moment. The takeaway here, though, is that game mechanics can absolutely be protected by trade secret until they’re published. If the trade secrets are deemed valid, their publication by Miller and Ravensburger would constitute a legitimate cause of action for UD. We’ll just have to wait and see whether it sticks.

I’ll continue to go through the complaint and provide more information as I learn it (if it’s interesting). For now, back to work I go.

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Monster Names Under Creative Commons CC-BY-4.0 #OGL #TTRPG #RPG #DnD #WotC @MikeMyler2 @ChristianLindke

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Here’s something kind of funny. As you know, Wizards of the Coast (“WotC”) has continuously laid claim to copyright over monster names (which is impossible; let me repeat: impossible) or has leveraged their legitimate copyrights to restrict their use (which is copyright misuse). However lacking in legal force as either position is, that’s been their position. Now WotC has released the SRD 5.1 using the Creative Commons licensed, CC-BY-4.0. As Mike Myler pointed out to me, in doing so, many of these names are now expressly licensed even from WotC’s warped perspective. They’re telling you that you may once again state that beauty is in the eye of the beholder because they’re now licensing you the right to use “beholder.”

Seriously. Do you not see how stupid this sounds?

All of this can be found on page 254 of the SRD 5.1. Both pages 97 and 254 include use of “mind flayer,” so that’s now eligible for use. Or is it? Christian Lindke pointed me to a United States federal trademark registration for “Mind Flayer.”

So, by WotC’s arguments that continuously blur copyright and trademark, they can’t even use mind flayer in a sentence. It belongs to a Chinese dude(tte).

Seriously. Do you not see how stupid this sounds?

WotC legal is stupid, or they think you are. Probably both.

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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?)


WotC Surrenders #OGL #TTRPG #RPG #DnD #WotC @mattcolville @Wizards_DnD @kesseljunkie

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Before my quick return to obscurity is complete, I provide my thoughts on the latest announcement from Wizards of the Coast (“WotC”). In short, they’ve decided to allow continued use of the make-believe OGL 1.0 or the Creative Commons license (CC-BY-4.0).

Who Deserves the Credit?

Matt Colville echoed sentiments similar to my own as to why Hasbro “surrendered.”

I agree.

I don’t want to diminish the effect rabid gamers had on causing WotC’s about face, but I do want to provide what I suspect is the proper perspective. The lifeblood of any company is acquiring new customers. Existing customers get older, which means they have less disposable income, and eventually die. You need new blood, and that should always be your primary focus. WotC continues to do exceptionally well gaining new customers, and all your rants (and mine) will not impact that one bit. I doubt we have middle-school children reading our blogs and watching our vlogs. If we do, someone needs to call the police.

Chris will do it.

So, if we all abandoned WotC, in the long run, they’d survive, and they know that. That’s at least part of why they continued to resist actual change for so long before their surrender. So, why did they surrender? Because we do have a short-term impact on them, and more to the point, on their partners. The creators of the Dungeons & Dragons (“D&D“) movie(s) and television show were probably overwhelming WotC’s telephone and email systems. Their investments in licensing the brand are short term, and I’m sure those investments were substantial. They demanded this change, and their demands could not be ignored.

Again, I don’t want to diminish your efforts. You made those partners aware of your concerns, and you were going to inflict a lot of damage, but if not for these partnerships, WotC would have stayed the course.

Once Again, a Prediction Sure to Come True

Those relationships won’t last forever, and when they dissolve, we’re sure to be in the same position we are now, but with even less of us complaining due to the attrition I described above. What if WotC creates its own movie and/or television studio? Then they won’t need Paramount+, will they? What then? Will we run to Paizo? As I said in a previous post, Mattel could decide to compete with its chief rival, Hasbro, in the role-playing gaming market. What’s the quickest way to accomplish that? My guess would be they’d buy WotC’s chief rival, Paizo, or perhaps one of the second-tier companies with a proven track record. Whatever open-gaming “license” that acquired company used will be just as vulnerable to revocation, de-authorization, or whatever contract principle you choose to misapply to that non-contract. We may be delaying the inevitable by not actually solving the underlying problem.

So, Is the Problem Solved?

No, but I think it’s close enough. I advise cautious optimism.

You may recall that I demanded that they dedicate their material to the public domain. They didn’t do that, but they’re slapping the CC-BY-4.0 directly onto their SRD 5.1, which is almost what I suggested. Dedication to the public domain is probably no more than a grant of a perpetual, irrevocable, royalty-free license with no restrictions, and that’s almost what CC-BY-4.0 purports to be.

Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
1. reproduce and Share the Licensed Material, in whole or in part; and
2. produce, reproduce, and Share Adapted Material.

Section 2 – Scope.

The potential problem is that the Creative Commons licenses are similar to (though enormously better than) the OGL with respect to acceptance, and they haven’t been tested in US courts. In fact, they’ve barely been tested in international courts. So, we should still be worried?

For now, no. In order for a licensor (that’s WotC in this case) to win a case for infringement, they’d have to argue that license they provided was horseshit. That’s one hell of an argument to have to make.

WotC: “The defendant infringed our copyright.”
Court: “How can you say that? You licensed them the works.”
WotC: “Oh, that license is complete bullshit, your honor.”
Court: “The license you forced them to use?”
WotC: “Yep. Complete bullshit. We suckered them in.”

Warning: Gratuitous use of the word, “asshole,” follows.

This, by the way, is exactly what WotC would have had to do if they were taken to court over the OGL, and they would have succeeded by simply reading my posts to the Court. However, as I said, how CC-BY-4.0 is applied is a little bit better than the OGL. It avoids some of my concerns, and for all we know, it could be upheld by courts for that reason. It could also be upheld because it’s been used successfully in other industries almost since its first publication. Everyone’s been cool about its use. No one’s been an asshole. Therefore, the CC-BY-4.0 gives the gaming community time to adjust and diminish WotC’s stranglehold on the industry.

Of course, their stranglehold will remain unless you’re willing to broaden your horizons and not make matters worse for yourselves.

Not Being Assholes

It’s really easy to allow inertia to take over. We’ve spent so much energy in the past few weeks calling WotC assholes that we could go too far. Many years ago, my cousin, Kessel Junkie, once called me out for a nastygram I wrote to a company that had pissed me off. In it, I informed the company that I was no longer doing business with them. If that were the case, why write the letter? If you want to go, just go. The only proper purpose of the letter should be to get them to change their ways, but if they know I’m a lost cause, my letter will do nothing to effect that change. If you enjoy WotC’s products, then don’t let the inertia put you in that same position.

*sigh*

WotC corporate and legal have behaved as assholes through this entire process. They kept having to go back to the well and make edits because doing the right thing doesn’t come natural to them. They’re definitely not our friends, but we shouldn’t be assholes either. Whatever brought us to this point, this is where we are, and it’s exactly what you wanted, and pretty close to what I wanted. So, there’s no reason to engage in the overstatement that plagues American discourse. There’s no reason to continue to criticize companies for doing what they exist to do: Make money. There’s no reason to continue calling for boycotts at the expense of good people who are the creatives at WotC, or even just the bench warmers so to speak. Those people probably agree with you about their employers’ behavior, but their ability to pay their rent depends on their continued employment. You’ve won, so don’t be a sore winner, but also . . . .

Don’t be Naïve

Whether you realize it or not, your “victory” keeps you in a morass of uncertainty. If you’re okay with that, I’m in no place to stop you. If you choose to ignore the status quo and defer having the rug pulled out from underneath the community, that’s your business. It probably won’t take another 20 years for that to happen, but that still may not necessarily be a bad position for you, just those that follow you. This mirrors our approach to the environment and the economy, passing off future ills to future generations, but the consequences aren’t nearly as dire. They’re just games, and you’ll find others to play if you’re still playing them when this happens again. However, if you want to play the next iteration of D&D, it may affect you as well. All of this applies to 5th Edition, not to “One D&D“. There’s no guarantee that OneD&D will use either CC-BY-4.0 or OGL 1.0. OGL 2.0 may be in the near future after all.

Not My Problem

I don’t really have a dog in this hunt. I don’t play 5th Edition anymore, I own every WotC/TSR product I’ll ever want, and I’m not creating content for others. With my 1st Edition Dungeons & Dragons Character Builder functional, that could change if I get it into a suitable form for publication, but the last time WotC threatened me, I told them to pound sand, and they immediately blinked. They can’t harm me because I know they’re full of shit (as are their licenses). I know what I can and can’t do, and I don’t care whether they acknowledge that publicly. But mark my words: This will happen again. Most of you didn’t listen to me the first time, so I don’t expect you to listen to me now, because even those of you that did listen seem happy living in the “open gaming license” hole they’ve dug for you.

History will repeat itself.

But it will happen again, and next time, WotC will have prepared itself to be able to tell you to pound sand. Even if CC-BY-4.0 is used for One D&D and is ultimately deemed legally enforceable, it’ll be another scary time for small-time third-party publishers. I’ll reserve my “I told you so” for that day. Now, I’m off to obscurity and some much-needed rest from meaningful blogging.

I’ll still blog about stupid stuff.

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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?)


I’m Still Too Busy #OGL #TTRPG #RPG #DnD #WotC

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Sundays now are lazy days for me. I either post something silly or other people’s work. Usually both. Today, I’m still too busy dealing with preparations for Winter Vantasy. However, I’ve written what will likely be my last post on the OGL controversy, and it’s scheduled for Tuesday. I also expect that to be my last post for a little while. My last streak was over 370 straight days posting, and my current streak stands at 151 with today’s post. I could use a break.

So, here’s something silly.

WotC legal probably thinks this is true.

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Another Analogy on Consideration and the OGL #OGL #TTRPG #RPG #DnD #WotC

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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?

The OGL

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).

Aw, how cute.

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?)


My Proposed Response to the Alleged OGL 1.1 . . . I mean 2.0 . . . I mean 1.2 #OGL #RPG #TTRPG #DnD #5e #WotC @Wizards_DnD

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

Two observations about this post. First, it was written shortly after the Open Gaming License 1.1 (“OGL 1.1”) leak, so a lot of this had to be rewritten to make sense. I may have missed a few things, so some of my points may be dated. Second, this could very well be the last post I make about the OGL specifically. I’ve addressed most things at issue, and I have a multitude of posts on this blog and my legal blog that address relevant topics generally. Besides, I know what I want Wizards of the Coast (“WotC”) and other game designers to do, so criticizing anything that doesn’t meet my needs is a meaningless effort. Expect more cat memes, mythology videos, and game design opinions going forward than legal analysis. If that’s not to your liking, that’s fine of course; just keep in mind what I’ve written here so you can reference it in the future.

The Open Gaming License, Version 2.0 (“OGL 2.0”), nee OGL 1.1, but now apparently 1.2, has stirred up quite a lot of controversy. WotC has continuously denied rumors that later turned out to be true, then shifted to declaring it a tie, and now has provided a mea culpa. The fact that they’re having so much trouble doing the right thing indicates that they don’t want to do the right thing. That’s annoying to say the least, but what’s most important is what they’re doing now. So far, what I’ve seen still fails to address my concerns about consideration and acceptance, but things are evolving rapidly, so we have to take things as they come, though I don’t trust them.

This man also rapes fish.

Many of you have called for boycotts of all things Hasbro, not just Dungeons and Dragons. Play-Doh is also in your sights, and #BoycottDNDMovie is trending on Twitter. As I’ve stated, I’m not on board with that hysteria here or elsewhere in the commercial world. There are too many good people that will suffer, and too much good material from them that will never see the light of day, if WotC has to lay them off. I feel like you’re throwing the baby out with the bath water, and at the expensive of people you don’t want to hurt. But that’s just me. You do you. I’m here to give you a dose of real hysteria.

I Swear This Section Will Be Quick

In short (like real short, so don’t sweat the missing details), game mechanics are not copyrightable, but your specific way in which you write those rules are. Accordingly, I can rewrite the entire Player’s Handbook in my own words, without any of their artwork, and not run afoul of WotC’s copyright. Would that be a cool thing to do? No, but there may come a time when it is both necessary and fitting.

My Proposed Response

Here’s what I’m going to do if WotC doesn’t fix the problem to my satisfaction: I’m going to rewrite the entire 5th Edition Player’s Handbook in my own words, without any of their artwork, and publish it free on this site. Don’t believe me? I estimate that I’m at least 40% finished, and it’s all public domain material. Here’s an excerpt:

It includes race and class write ups from other sources as well, often pointing out very good reasons why WotC doesn’t own the material. Here’s another excerpt:

Centaurs predate the concept of copyright by at least 2,200 years. No one owns them

Do you think I’m afraid of a lawsuit? Here’s yet another excerpt.

Apparently “damn” is an obscene word according to Microsoft.
Oh, the OGL 1.1 is going to hate that introduction!

When OneD&D is released, I’ll do the same thing but with its version of the Dungeon Master’s Guide, which would be a much more serious concern for WotC considering that dungeon masters do the most purchasing. I was reluctant to do this. Not only would a court battle be a hassle, but I also don’t want the industry harmed. However, if WotC continues to push the false narrative of an “open gaming license” and doesn’t instead shift gears and go the route of dedicating to the public domain, then they’re the ones doing the harm. Massive harm. I’m simply publishing public domain material, and if anything appears to be creative, there’s always this. You may still not like this idea, but here’s something else to consider.

A Nefarious Plan

My post had subtext I wouldn’t expect anyone but an attorney well-versed in intellectual property to decipher. If the courts review table-top role-playing games (“TTRPGs”), we’ll learn that, given the nature of copyright law, TTRPGs can’t generate profits big businesses require. That is, while small publishers can expect to continue to make the relatively small amounts that they make on TTRPGs, TTRPGs will no longer be the cash cow that WotC has made of Dungeons & Dragons. WotC probably knows this, as evidenced by this provision of the draft OGL 2.0:

Gee, how kind of you to allow us to keep our own creations.

In case this isn’t clear, that draft gave WotC permanent access to your intellectual property, which they can do with as they please and have no obligation to pay you for that privilege. Now I know WotC has backtracked on that particular provision, but only because the feel they have no choice at this point. While I don’t trust them, I don’t care at this point whether they mean it. This was, at one point, their plan. If they think they should steal something you won, then it’s far for me to steal something from them that they do not own. At least I’m not really stealing.

But why would WotC even do something like this knowing that, once implemented, it would start to generate heat that could destroy the brand? Remember when WotC said that OneD&D would be the last version of D&D necessary? I suspect that’s because they see the writing on the wall. WotC sees my posts and others like them that necessarily lead to this legal conclusion and think, “Our well of money is about to dry up, so let’s do a last-minute cash- and intellectual property-grab. When it’s over, we’ll have made a ton of money and have a perpetual, irrevocable license to other people’s intellectual property that we can use to make books and other products that will survive the legal fallout.”

A friend of mine, who knows WotC culture far better than I, doesn’t think this is WotC’s plan, but I’m working with what I have, my own ignorance be damned.

Michael Hammock, an economics professor at Florida State University weighed in. A Facebook connection posted his quote in which he discussed how foolish the leaked OGL 2.0 would be if authentic. Could WotC be that stupid? Sure, but I wouldn’t make that assumption. They’ve been too successful for us to think they have so little business sense. They likely know the consequences and just don’t care. In summary, I suspect they know TTRPGs are no longer going to be profitable enough for them, and they wanted to secure new sources of revenue at your expense before that’s a done deal. So no, I won’t feel the slightest bit guilty of thwarting whatever remains of these plans, as my actions will be 100% legal and not in any way larcenous. You can’t steal what no one owns. Moreover, WotC may not even sue me, not because they realize that the suit would be frivolous, but because it would just make matters worse for them. They also may be facing lawsuits from other parties, and there are only so many fights they can handle at one time. The last one they need is one with a counterclaim for copyright misuse that will have serious consequences.

Copyright Law

Seriously.

Copyright law is in desperate need of reform, but it’s great stuff. I fully support the notion of (a reformed) copyright, but even in its current form it has consumer protections, such as copyright misuse, that prevent copyright holders from abusing their copyright. As far as I’m concerned, WotC has misused their copyright, at least with respect to their actions against me, and many creatives are going to be forced out of the market by an OGL anywhere near what we’ve seen so far. This hurts everyone, so I’m glad you’re finally seeing WotC for who they really are.

If you still think I’m the bad guy at this point, it’s because you’re the bad guy.

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Something Stupid, and Something Odd: Expressions of Game Mechanics #OGL #TTRPG #RPG #DnD #WotC @Wizards_DnD

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Sundays now are lazy days for me. I either post something silly or other people’s work. Usually both. Today, however, I mix another’s work with my own. First, the goofy stuff. Here’s a meme about the OGL conflict.

Think it through.

Now, for a strange point about WotC’s approach.

As you all should know by now, the specific expression of a game rule can (in theory) be protected through copyright. It still has to jump through the hoops of being creative enough for copyright and avoid the merger doctrine, but at least copyright could apply to that expression. So, simply adding “the specific expression of” to the beginning of “their sentence “the methods, processes, procedures, and routines” would avoid our arguments about copyrighting game mechanics and make this a tougher case. However, despite my 14-year insistence they do so, and now all these other attorneys (at long last) telling them the same thing, they still aren’t doing it. It’s a clear example of Bodine’s Law of the Internet, and in fact inspired me creating that rule in the first place. TL;DR: Without a clear indicator of the author’s intent, it’s often impossible to tell the difference between arrogant deceit and genuine ignorance/incompetence. Does WotC continue on this path because they’re idiots, or because they think we are. Either way, after all we’ve been through, that would make WotC a bunch of idiots.

Even more amazing, my rule hasn’t gained a lot of traction.

Okay, that sentence was a bonus “something stupid.”

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The OGL and the Problem of Acceptance #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract

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Today, we examine my claim of a lack of acceptance in the Open Gaming License 1.0(a) (“OGL”) in more detail. In short, a contract must contain an offer by one party, which must be accepted by another. This, along with consideration, represent the most basic requirements for a legally enforceable agreement (a.k.a., a contract). The OGL fails in this regard, and let’s examine why. Section 3 states that, “[b]y Using the Open Game Content You indicate Your acceptance of the terms of this License.” So what is “using”? For that, we go backwards to Section 1(g), which defines “use” or “using” as follows:

“. . . to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content.”

Let’s start with “use,” which is the most obvious part of the definition of Use. Remember, the OGL defines open gaming content (“OGC”) as unprotectable game mechanics and any content “clearly identified” as additional OGC. For Wizards of the Coast (“WotC”), that material is identified in the System Reference Document (“SRD”). (I’m not going to rehash my arguments on the structural issues with this; you can (re)read that if you want.) As to the game mechanics, if a native tribe that has no contact with the outside world independently created even a portion of the Dungeons & Dragons (“D&D“) game mechanic, then the second they played it, they’d suddenly be party to a document they’ve never heard of, which was written by a company they’ve never heard of. That’s ludicrous, and while extreme, the fact that mere use can make you subject to the license destroys that as a valid means of acceptance. In case you’re not convinced, let’s use a more realistic scenario. Let’s say I do some character creation then start a live, public stream, telling whoever’s watching to send me an email so that I can email them a sheet of paper with some SRD material on it. Once that’s resolved, I tell them to roll a d20, and if they rolled a 12, then mark on a piece of paper that they hit a goblin. In case they didn’t, I then roll a d20 myself and get a 19. I then tell them, “If you hit the goblin, you killed it; otherwise, the goblin killed you because he hit.” I run another scenario that uses SRD material in some way. If I’m using the math of D&D and the contents of the SRD, then these people, who also may have never heard of WotC and the OGL (they could be anywhere in the world and have randomly found my stream), are suddenly parties to a contract they’ve never heard of.

Either hypothetical lacks a “meeting of the minds,” which is a requirement for a finding of acceptance. All parties involved in a legal contract must agree to its terms and conditions, but as I stated, the players of each hypothetical aren’t aware of the contract, let alone its terms and conditions.

This notion not only is logical and contractual nonsense, but likely conflicts with an important aspect of copyright law; to-wit: the First Sale Doctrine. In short, that doctrine says that once you buy a copy of something, that particular copy of it is yours. You may use it and sell it with no further license needed. Like with consideration, claiming that use of something you own requires an extra set of permission is nonsense. The only other conclusion you can draw is that WotC is admitting that they never sold it to you in the first place, which leads us back to an issue of consideration. If you bought it, you may use it, and federal law forbids restrictions on such use except as disclosed in the Copyright Act. Using it can’t force you to enter into a license for something you already own (i.e., that particular copy) any more than I could say that driving your car requires you to enter into a contract that I wrote.

Mere use of the mechanic, or material in the SRD, cannot possibly constitute acceptance of a contract.

The Professor and Mary Ann

Now let’s look at the rest of the terms of acceptance. I can’t do any of these things unless I make a copy of the SRD (or a portion thereof). That is, I can’t translate it into Esperanto unless I make a copy. I can’t modify it unless I’ve made a copy. So, if copying is a prerequisite to all the others, then the others are meaningless because I’m going to be copying it first even by merely displaying it on my computer screen. (Note: Safe harbor provisions protect you from claims of infringement for viewing copyrighted content on your computer screen. They aren’t relevant to acceptance of a contract.)

This leads to yet another problem.

If I’m a crook and decide to infringe WotC’s copyrights by copying their material without permission, the OGL defines my actions as acceptance of the license. Clearly that’s not my intent. Acceptance requires a meeting “meeting of the minds,” which is mutual assent as to the terms and conditions of the contract. But my obvious intent is to infringe copyrights, not to accept a contract. There are too many pirates in the world to think that this is too small a point. But let’s say you ignore that detail anyway. How can I breach the contract? Anything I do intending to infringe WotC’s copyright becomes an acceptance of the contract, and thus it’s impossible for me to breach it. A contract that can’t be breached is not a contract at all. If you’re thinking that use of product identity could be a breach, you’re mistaken. Product identity is expressly defined as outside the license, so its use is simply copyright infringement.

For the same reason, modification, editing, formatting, and creating Derivative Material also can’t be forms of acceptance. I think. There’s yet another problem here. The first rule of legal interpretation is: If more than one term is used, then the two terms must mean different things. So, it says that if I edit the SRD or game rules (wouldn’t the latter be a different game altogether?!?!), then I’ve accepted the OGL. Let’s start with “edit.” What does “edit” mean? Oh, that’s easy. According to Google, it means, “prepare (written material) for publication by correcting, condensing, or otherwise modifying it.” Modifying it? Isn’t that what “modify” means? Obviously, WotC means something else when they say “edit.” So where is that defined? Nowhere. And as the definition provides, the other things in the definition are just forms of modification. How about format or translate? Those are also modifications.

Let’s say a judge treats modify as a category containing the others, and ignores modify in the contract. It doesn’t matter. Along with creating Derivative Material, these are all means to infringe copyright, and therefore they all still fail the requirement of a meeting of the minds. So if you dismiss the academia, you’re still left without a contract based on federal law (grounded in an express directive within the federal Constitution) that overrides your quaint, state-based principles of contract interpretation.

Formatting

But there’s one left: Formatting. I doubt a court would say that changing the typeface or font, with no substantive changes, created a derivative work. If I’m wrong, we have the same problem as above; if I’m correct, then changing the font or typeface can’t be an attempt to legitimately infringe a copyright. Nevertheless, it doesn’t result in a meeting of the minds. For all its criticism, Comic Sans is one of the typefaces that is said to help dyslexics read. If that’s my intent in changing the typeface, or if I want a bigger font to change the pagination, then my formatting isn’t an acceptance of terms, and it’s unreasonable to assume it is. I’m simply modifying the document so that I can read it in the first place.

You may be tempted to analogize this to shrink-wrap licenses, but shrink-wraps require a user to physically open a package with the license outside warning them of the consequences of that action. The OGL doesn’t give you that ability. The license is on the inside of the document, and once I may a copy on my computer screen, I’ve already been made a party to it (according to WotC). It’s far more reasonable to infer a user’s intent to accept shrink-wrap license terms if they open the packaging, but even the enforceability of even those contracts is very much in dispute. The only relevant similarity between shrink-wrap licenses and the OGL is that the public’s voluntary compliance is the only thing that makes them seem enforceable, but there’s good reason to say neither is. In any event, shrink-wrap licenses are on far more stable ground than the OGL.

The level of uncertainty associated with the OGL’s terms of acceptance will prevent it being found to be accepted on its own terms. This is especially true because the OGL is a contract of adhesion. These are contracts in which “the parties are of such disproportionate bargaining power that the party of weaker bargaining power could not have negotiated for variations in the terms of the contract.” These contracts are always subject to additional scrutiny.

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?)

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

Frylock5 Comments

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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 Delve RPG @delverpg
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?)

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

Frylock2 Comments

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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.

Follow me on Twitter @gsllc

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