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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?)

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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?

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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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?)