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 singing 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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Koalemos, the Greek God of Stupidity @Wizards_DnD #MythologyMonday #MythologyMonandæg #folklore #god #stupidity #OGL #WotC #RPG #TTRPG #DnD

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Once again, the hubbub over the OGL inspires a particular video for Mythology Monday. Today, it’s the Greek, Koalemos, the god of stupidity.

You must admit; he seems like another candidate for the patron god of Wizards of the Coast.

I see nothing wrong with this plan.

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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?)


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

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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.

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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?)

Peer Pressure: Cancelling My D&D Beyond Subscription #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract

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As a follow up to yesterday’s post, I decided to jump on the bandwagon and cancel my D&D Beyond subscription. This isn’t much of a threat to Wizards of the Coast (“WotC”) because I’m on an annual payment plan, I was renewed in December, and I could always cancel my cancellation. However, I’m hoping that it’s another cancellation that scares the bean counters at WotC. I was reluctant to do it because I asked myself what you should all be asking yourselves when you call for you ridiculous boycotts over political differences with a company’s owner: “Who is this really going to hurt?”

I think it might hurt some good people. But then there’s this:

I wanted to say, “I’ll give you 1.1 guesses,” but that would be plagiarism.

I’m easily swayed.

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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?)

Who’s the Bad Guy? #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract @Erik_Nowak

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Note: While this post pertains to the OGL controversy, this is not a legal analysis. This is just my ramblings on how I live my life.

I had a Twitter conversation with a friend of mine. Here’s how it started.

And this is how it ended.

Because it was on Twitter, I didn’t give him a full argument. So, here it is.

Erik uses an iPhone, and we know that suicide and poor working conditions are problems at the infamous Foxxcon City where they’re made. The stakes with Dungeons & Dragons (“D&D“) aren’t nearly that high, but they are analogous. If you continue playing D&D, you’ll be allowing them to ignore the concerns of third-party publishers whose livelihoods have depended on OGL publishing for as many as 22 years. This is going to happen anyway because, as I’ve previously pointed out, the lifeblood of any business long-term is new customers. As long as Wizards of the Coast (“WotC”) is pulling in new customers that lack the knowledge of the controversy, WotC doesn’t care if they lose the old farts like Erik and me. But Erik’s thoughts are shared by many legacy players, so to the extent that some of the younger crowd might know about, and object to, the developments surrounding the OGL, Erik, et al. will offset that effect, making it just as unlikely to convince WotC to change course.

So, is Erik the bad guy after all? Yes, but not for this. 🙂

If Erik gave up his iPhone for a Samsung Android phone, would he avoid the ethical dilemma? No. Conditions at Samsung haven’t been much better. In short, Erik would have to stop using cell phones, which I’m sure he’d happily do the moment the rest of you give up yours. So it goes with D&D. Are you going to drop D&D because of this? What are you going to play? Savage Worlds? What are its creators’ opinions on abortion? What about Dragon Age RPG? Are its creators cat people or dog people? (They better be cat people.)

I know a lot of you think this way. You call for boycotts of companies based on a viewpoint allegedly or obviously held by a couple of high-level executives or owners with which you disagree. False appeals to Godwin’s Law notwithstanding, I’m not on board with that. Not only does it seem exceptionally arrogant, but it’s also counterproductive. The only people that go broke or have difficulties (if any) during a boycott are the employees that aren’t filthy rich and may even agree with you. I think that’s probably the case for WotC employees.

By all means, be aware of the problems with cobalt mines in the Congo, and write your congressmen about it, but don’t let that stop you from buying an electric car. I’m not willing to yell at someone who continues to live their life as fully as they can. The world sucks for a lot of people. If it doesn’t for you, you shouldn’t feel compelled to bring yourself down to that level. However, if you choose to take that stand individually, I won’t criticize that either. You have every right to spend your money according to your principles. There’s good arguments on either sides. Either way, I’d like you to consider funneling some of your money to third party publishers to make sure that remains a viable market during the era of OGL 1.1, 2.0, or whatever it winds up being called. I just don’t want anyone to forget who the actual bad guy is.

WotC Legal and Corporate. It’s WotC Legal and Corporate.

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Follow Erik @Erik_Nowak

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

Paizo Announces System-Neutral Open RPG License #Copyright #OGL #WotC #TTRPG #RPG #DnD #Contract @paizo

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Yesterday, Paizo announced that they were developing a “system-neutral, open RPG license.” It’s overwhelmed with traffic, so you’ll have to be patient when trying to load it. They had a form for volunteering to review it and give feedback. After I signed up, I noticed some text that said it was for game designers only, so I doubt I’ll get an advanced copy for review. Maybe that’s a good idea considering my initial impression.

Same Old Song & Dance

As I’ve been running into the ground for well almost 15 years, the OGL isn’t a real license, and claiming it is has done a lot of damage that we’re finally seeing manifest in real harm, which I predicted. You can’t say I haven’t been warning you that this day would come. Talking about irrevocability or any other concept that applies to contracts shows that you’re missing that critical point, and that’s exactly what Paizo does in this announcement.

We believe that any interpretation that the OGL 1.0 or 1.0(a) were intended to be revocable or able to be deauthorized is incorrect, and with good reason.

Unless their position is that those interpretations are incorrect because they simply don’t apply to non-contracts, then they’re advancing the same false narrative that Wizards of the Coast (“WotC”) has since at least 2004. The fact that they intend to state their proposed consideration in a separate document suggests that we’ll be dealing with a “contract” with far too much uncertainty as to what it actually licenses. Maybe it’ll be an unmalleable appendix rather than a separate document — we don’t know — but everything I read in that press release leaves me pessimistic.

Remember, the OGL should have been an acknowledgement of the material WotC conceded they didn’t own. If they wanted it to be a real license, then it must be 1) specific about exactly what material the public now use, and 2) that material must be material the public otherwise wouldn’t have been able to use. That is, the consideration must be both obvious and real. Any other approach with Paizo’s license will mean that Paizo is continuing to feed the public that false and dangerous narrative. Granted, no one’s going to die because of this, but people’s livelihoods are on the line, so “dangerous” fits in that context. If you continue to buy into it this false narrative, you’ve learned nothing from the turmoil the OGL has caused, but you can’t blame WotC for it any longer. Like the danger from cigarettes, the information is out there, so it’s on you if you accept the risks.

And now we finally have WotC’s official statement, which demonstrates a victim complex. They 1) still intend to treat it as a legitimate license (of course); 2) act as if, on the week the final copy was to be distributed, that they were always just looking for feedback; and 3) overfocus on the non-discrimination provision to which no one objected, all to make themselves look like the good guy. Additionally, as Stephen Radney-MacFarland pointed out, you expect us to believe that they “didn’t see this coming”? Unbelievable, and yet paradoxically exactly what we expected.

But It’s Pazio!

You may believe Paizo’s promise of irrevocability even though it wouldn’t be legally enforceable. Some of the readers of this blog know Paizo management personally, so maybe you’re right for trusting them. But consider this: What if Hasbro’s chief rival, Mattel, decides to take advantage of Hasbro’s tarnished reputation and enter the RPG market? What would be their best way to jump start such an effort? If I were them, I’d buy Paizo, and if that happened, would you still trust Paizo to do the right thing? Do you know any Mattel executives? Would that even matter? Would a $7.18 billion business never change course because they’re a “nice bunch of guys”?

Still, everyone, including me, should give Paizo a chance. Maybe they’ll surprise me despite this reckless language.

Let’s see what they actually do.

Follow me on Twitter @gsllc
Follow Paizo @paizo

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

In case the tweet is ever deleted, here’s a screenshot.