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While this may seem to be more of the same OGL talk that I’ve been spewing the past couple of weeks, it isn’t.
There’s a batch of attorneys that are always grandstanding or otherwise making things difficult just because they can. Here’s the latest tactic. They regularly accuse my non-attorney coworkers as practicing law without a license. This is otherwise known as the unauthorized practice of law, which has a hand abbreviation that I’ll use here: UPL.
A person or entity engages in the practice of law when representing to another, by words or conduct, that one is authorized to do any of the following: A. Undertake for compensation, direct or indirect, to give advice or counsel to an entity or person in any matter involving the application of legal principles to facts. B. Select, draft or complete legal documents or agreements which affect the legal rights of an entity or person. C. Represent another entity or person before a tribunal. D. Negotiate the legal rights or responsibilities on behalf of another entity or person.
B is easy. If you aren’t dealing with legal documents in some way, you aren’t practicing law. C is also easy. If you aren’t communicating with a court on behalf of another person, you aren’t practicing law. D is also easy. If you aren’t negotiating on behalf of another person, then you aren’t practicing law.
A is where a lot of people get tripped up, so I want to repeat what I’ve said many times before so that these attorneys can’t pull this shit on you one day. Here’s a simple way of explaining this: If I tell you the speed limit is 55 miles per hour, I’m not practicing law. If I tell you you’re speeding, I’m practicing law. What’s the difference? The first statement is saying what the law is. “Thou shalt not drive faster than 55 miles per hour.” Non-attorneys can point out the law to you without engaging in UPL. The second statement, however, involves the “application of legal principles to facts.” That is, I’m taking your specific facts — the fact that you’re driving, let’s say, 65 miles per hour — and applying the law to those facts. Then I’m drawing a legal conclusion about your behavior. If a non-attorney does that, it’s UPL.
Put yet another way, telling you what the law is isn’t UPL, but telling you that you’re breaking the law can be UPL.
Here’s the latest bit of nonsense I’ve had to endure. My processor requested that the attorney underline or capitalize the last names of the parties on a deed. When the attorney tried to be difficult and refused for no good reason, she pointed out that, “the Clerk of the Court has the right to reject deeds if the last names of the parties aren’t either underlined or capitalized.” All she was doing was paraphrasing the law and making a request. She never made any statement saying anyone was going to jail or open to a lawsuit, so she wasn’t applying that law to any facts. A particular attorney called this UPL, claiming she was preparing, revising, or modifying legal documents even while admitting that her statement was merely a “request.” This was nothing more than a scare tactic to scare her into silence and stroke his own fragile ego.
As you can tell, I believe whole-heartedly that these attorneys aren’t getting tripped up. They, in fact, know better; they just know that non-attorneys don’t know better, so they’re abusing their position as attorneys by misleading people into thinking they’ve committed a fucking crime, then leveraging that lie for some personal benefit. These attorneys are garbage. The reason why we’re dealing with this — even over minor issues — is because of the broader issue I’ve already discussed here, here, and here. In short, the Virginia State Bar refuses to address the widespread and long-standing unethical and illegal behavior of attorneys in the Virginia real estate industry, and the legislature is too busy to do anything about it, so these attorneys effectively have immunity for their bad behavior. Despite no one willing to step forward and do the right thing, these attorneys still continue to scare title companies into allowing the malfeasance. What can you do if the relevant authorities don’t care? This is why people hate attorneys and why they absolutely should.
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.
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.
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 . . .
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?
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 discussedad 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.
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 Follow Stephen @SRMacFarland 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?)
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.
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.
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.
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.
Just a quick note today, as my next bit of legal analysis I’m preparing is going to take a while to write. Try not to shoot the messenger for today’s post. I’m just trying to help.
I see a lot of people online calling for a new open gaming license that’s done correctly. Sadly, that’s missing the point.
Our problems aren’t going to go away as long as you continue to buy into the fiction that the Open Gaming License (“OGL”) is a real license. It clearly isn’t, but if you treat it that way by giving lip service to its arguments that apply only to real contracts (“It’s irrevocable!” “It can’t be deauthorized!”), or make calls for bigger, better, open gaming licenses, you can still be duped. As I said yesterday, the OG”L” (which should no longer contain the misleading letter L in it) should be a statement of what the game designer acknowledges they don’t own, and thus have no power to stop you from sharing. With RPGs, that’s far more material than you probably realize.
To the extent that a publisher has copyrightable material and wants to dedicate it to the public domain, they should simply do that with an undeniably clear statement to that effect. (Copyright law won’t allow contract ambiguities to result in such a dedication.) Otherwise, you might as well draft a “closed gaming” license with proper means of acceptance (i.e., signatures) and clearly stated (and proper) consideration, and just make sure the terms aren’t unreasonable. What many of you are actually asking for is oxymoronic, and as a result, using SRD material that has even the tiniest chance of being copyrightable could still get you in trouble. It hasn’t been licensed to you because the OGL is not a license, and there’s no doctrine of laches in copyright, so the copyright remains enforceable even after 20 years.
I’m glad so many of you, especially attorneys, are finally catching up with my rants from the past 10-15 years and my posts from 3 years ago, but some of your hearing has thus far been selective. I’m making a call for awareness from game designers and honesty from and the attorneys they employ, but the public’s insistence on believing the lies surrounding the OGL is a serious hurdle to those goals. This is not me merely demanding legal precision. Figurative use of the word, license, has added to your misplaced faith, so it’s no longer acceptable for any so-called “open license” to use that word. We’re seeing the very real, tangible effects it’s having on the community and industry right now.
We don’t need another fake license; we need an honest legal statement or a real license. As long as you allow this fiction to rule the day, the community and industry will suffer regardless of how this whole OGL 1.1 thing shakes out.
Reality checks can sometimes be helpful, but you need to be open to the help.
So, the Open Gaming License 1.1 (“OGL”) was leaked. Let’s remember that 1) it could be fake; 2) it could be real but modified; and 3) it could have been an intentional leak designed to get feedback in dumbest way possible. We don’t strictly know which of the three it is, though the response of Wizard of the Coast (“WotC”) makes me believe that #1 is not an option. Here’s the response:
Oh, I’m sorry. Wrong media. Here it is.
I think it’s fair to be thinking about the issues this leak raises. I’d just prefer people not assume the sky is falling. Changes could be coming, however unlikely or meaningless they may be. Anyway, with all those caveats above . . . .
A Brief Review
When it comes to consideration, the OGL 1.1 falls into the same structural trap that the OGL 1.0 does. It licenses you “methods, procedures, processes and routines” as well as ” any additional content clearly identified as Open Game Content by the Contributor. . . .” 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 is pretty much 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. However, in WotC’s case, they use the SRD. The content of the SRD is either mechanical (never copyrightable), an inseparable mix of mechanical and creative (and thus not copyrightable), or so simple and trite as to not represent even the “modicum of creativity” necessary to be copyrighted. So, my position has always been that, even with that second part, they’re still giving you nothing.
Now, with a new OGL on the horizon, maybe they’ll fix that. Maybe the SRD 5.1 (and OneD&D’s SRD) will contain licensable material. Assuming that material (or you’re assuming the material in the current OGL) is creative, does that mean the OGL won’t fail for lack of consideration?
Nope. It still fails, and here’s why.
An Analogy: Renting an Apartment
Recently, I started sharing this analogy on social media, and I think it makes it easier to understand the structural failure of the OGL. Let’s say you sign a lease to rent an apartment. It’s states that your rent is $800 (cheap nowadays), and that it runs from January 1 to December 31. Easy, right? Let’s say it also has a provision stating that you agree to abide by all the Rules & Regulations that appear in a second document. This is hardly rare. I’ve seen them more times than I can remember.
So, why put Rules & Regulations in a separate document? Is it to save space? Clearly not. If the lease is 3 pages long, and the Rules & Regulations are 10 pages long, then combined they’ll be 13 pages. Either way, it’s 13 pages of content, most of which you’re unlikely to read until there’s a dispute, so you’ll just skip ahead to the signature page and sign it. If the concern is organizational, then why not include them an exhibit or appendix? Again, why put them in separate documents that often aren’t even available when you sign the lease?
There’s only one reason: The Rules & Regulations are expected to change as circumstances change.
If the waste disposal company changes their pickup day from Tuesday to Monday, it makes no sense to say that trash can’t be put out until Monday evening after sunset. The Rules & Regulations must adapt. Use of common areas gives rise to the same need for flexibility. If anything in the Rules & Regulations were expected to go unchanged during the term of the lease, they could have been included in the lease.
Well, the OGL is your lease, and the SRD is your Rules & Regulations. The OGL sets the basic terms that can or cannot be revoked (separate discussion), but they reference a separate document where you get the current set of intellectual property that WotC (or any licensor) wants to license to you. There’s no legal or contractual reason to infer that any given licensor using the OGL is restricted from changing the contents of that document, and every reason to believe they can change it whenever they want.
You may think that, in this case, there is a reason to separate the two into different documents that has nothing to do with whether they can be changed. The OGL was intended to be used by other gaming companies with only their intellectual property within it. But that only solidifies that SRDs must be flexible. Also, it doesn’t get around the fact that the “clear statement” of the licensor could have been referenced as a required appendix or exhibit to the license itself rather than a separate document. It could have flat out stated that it was immutable, and absolutely should have said it is “incorporated by reference.” Again, there’s nothing (I’m aware of) in the contract, the law, or the history of interpreting consumer contracts that leads us to infer that the SRD can’t be changed. It’s a separate document (or oral statement!) that otherwise has no need to be separate. If I’m wrong, please point me to an example of a consumer contract with a separate, unsigned document (not merely an appendix, exhibit, schedule, etc.), not necessarily drafted at the time the contract is accepted, and not required to be in writing, that doesn’t expressly demand immutability in that separate document, yet is interpreted to require the separate document to be fixed. (That’s a mouthful, but it’s a lawyers job to interpret such sentences, so they know what I want.)
Aside: One thing that makes the OGL laughable is, carrying this analogy further, the OGL is like the lease and Rules & Regulations, but where the unit you live in, the amount of your rent, and the term of your rent all appear in the Rules & Regulations rather than the lease itself. I hope you see how batshit insane that is, but that’s what we’re dealing with.
This kind of uncertainty of consideration, especially where the licensor has no patents to license, calls the entire structure into question. I find it unlikely that this “contract” survives judicial scrutiny even if the licensee (non-drafter) of the OGL, wants consideration found so that you can enforce it. (Of course, what do you do with interpretation if the licensor is a game designer other than WotC? In that case, neither party drafted the contract, and by the OGL’s own terms, the licensor may not change it [the OGL].) Courts aren’t going to decide for the parties what they think should be included in the SRD with no guidance from the OGL to decide that. All it says is that there must be a “clear statement.” Statements change all the time.
Going back to the lease, your rent and term are set in stone. No matter what they do with the Rules & Regulations, your rent and term can’t be changed. The same is true here. The terms of the OGL aren’t changed by the SRD. You still can use their patents without any apparent restriction (isn’t that odd?), you still can’t use “environments” WotC mentions (that’s crazy), you can still accept the license merely by playing the game even if you’ve never heard of Dungeons & Dragons (“WTF?!”), etc. But again, there’s no reason to believe that the contents of the SRD are set in stone. They’re expected to change, and that also makes sense when considering that WotC has a federal right to control its copyrighted material. WotC hasn’t dedicated their work to the public, but a contrary interpretation could lead to exactly that without a clear statement of intent to do so. Federal copyright law will always override state-based interpretive principles. That is, state contract theories don’t overrule federal law (let alone the Arts & Sciences clause of the U.S. Constitution). I’ll have more to say on that in a future post, because the fact that copyright is involved adds even further strength to this argument.
On a side note, this is why the alleged irrevocability of the OGL is completely irrelevant. The OGL may be irrevocable, but the SRD isn’t (so to speak).
Could Things Have Been Different?
Someone asked me whether a license is even possible. Yes, it is, but not in the way the OGL was intended, and certainly not in the way you’ve all treated it all these years. The OGL 1.1 approaches a real license. It’s a shitty one, but it’s nearly a real license, and I don’t think it would have been received well even if the terms weren’t so onerous. I don’t think the OGL should have ever been (mis)characterized as license. Again, it’s point was to say, “We’re letting you use everything we put in the SRD,” even though most, if not all, of that material is not copyrightable.
What the SRD should have been was instead the exact opposite. It should have been a statement by WotC conceding what they didn’t own, and thus what you were free to use for all time because they had no right to stop you. They should also have said that, in the event they did own anything in the SRD, it’s dedicated to the public domain. If you think it through, that’s how you’re using it, and at least for the overwhelming majority (if not all) of that material, that’s what the SRD discloses. This would also alleviate every single concern I’ve ever stated on the OGL, because the OGL wouldn’t be needed.
Depending on WotC’s eventual statement, I may publish a post I have written that will be quite a serious statement on my part, but either way, I’ll be diving into some heavier copyright theory. Stay tuned.
Either way, can we all agree that WotC screwed up?
But wait! It gets … worse? Better? Throughout those posts, if I referenced a legal concept that wasn’t critical to the theme, rather than spell it out for you, I saved space by linking to a discussion of that legal concept on my far less popular legal blog. Here are the hits for that blog over the past few days.
I don’t want to be famous, so I may have to shut down these blogs. 🙂
Also, I should have tagged John and Tales of Arcanayesterday, so I’m doing so today — with top billing — even though they have nothing to do with this post. So, there you go. If I’m going to be famous, I’m pulling those nerds into it with me.
This is a supposed excerpt from the OGL 1.1. I have no idea if it’s real.
Here’s the full-sized image:
But if it is . . .
. . . you’re welcome. Sort of. It’s clear that my concerns about the OGL are being met, for better or worse, and I know WotC Legal read my posts. This means that there’s a good chance that the OGL 1.1 will be a real license because I pointed out why 1.0 wasn’t. The speculation is that 1.1 will be arduous, but the fake OGL is no less arduous. It simply appears open because WotC is lying to you about what they’ve actually licensed to you (reminder: NOTHING!). They could always have changed their mind and done this. Some people have said to me that WotC could never pull the rug from underneath the community because they’d revolt, but now that they’re telling you the truth, they’re saying (straining the metaphor a bit) that no rug is henceforth standard operating procedure. They’re expressly doing what I told you they always could, and the community is preparing a revolt. Voila!
So, now they’re going to tell you the real story, and it’s clear you don’t like it. Maybe you shouldn’t. Either way, this may not be good for business, and this may not change WotC Legal’s status as . . . well, you know my opinion, but at least you’re going to be protected from deceit (again, assuming this is real and representative of what they’re going to do throughout the OGL 1.1).
And then there’s this:
Think about it, people, but not too hard, because . . .