Let's roll some dice, watch some movies, or generally just geek out. New posts at 6:30 pm ET but only if I have something to say. Menu at the top. gsllc@chirp.enworld.org on Mastodon and @gsllc on Twitter.
I posted this goofy meme across social media this past week.
I received a not-so-goofy response. Long story short, Zephyr the Dream Dragon on Mastodon responded that he’d never want to use wand-wielding conductors as models because he’s worried he’d get sued by J.K. Rowling. Now, I think Zephyr gets it. I think Zephyr realizes that any such lawsuit would be frivolous. But not everyone does, and that’s a huge problem. It also pisses me off.
I’ve had too many conversations with too many people that think the WotC’s open gaming license (“OGL”) and its clones are legitimate licenses. WotC’s OGL is most certainly not, failing on multiplefundamental points, some of which you learn about in the first week or so of Contracts Law class. (Even when they get something right, it’s a potential disaster.) My posts on the ORC raise some doubts, but certainly leave open the possibility that the ORC is a legitimate license (albeit an unnecessary one) under very narrow set of circumstances and making some huge assumptions as to how courts will rule. However, even if enforceable, the ORC misstates the law and contains clearly unenforceable language designed to do nothing else but make you think they’re doing something better than WotC. That dishonesty is the symptom of a larger disease.
All of these gaming companies that are producing OGLs knowing full well that they’re probably not enforceable, and in any event can be done in a better way (public domain).
So, when (for example) both Paizo and WotC claim, implicitly or expressly, that single words can be copyrighted, or even that short phrases can be copyrighted, it’s no small matter. Too many people, whether they understand the ridiculousness of the claim or not, abide by their wishes and self-censor, as do the multitude of those that do believe that to be true.*** That’s utter horseshit. The purpose of copyright isn’t to reward artists for their hard work; that’s just a mechanism to achieve the true goal. The true goal is to give us, the public in general, an environment rich in art. But if copyright is used to suppress the creativity of artists, why have it? In fact, doing so is copyright misuse, but how often is that punished?
*** My point is that, while I can’t fix economic issues that cause your self-censorship, I can certainly fix legal misunderstandings that cause it, but you have to be willing to accept that you’ve been fooled all these years.
What we really need is a cheap tribunal (think small claims court of copyright infringement) that’s not as narrowly useful as what we currently have. People should be able to fight frivolous claims of copyright infringement regardless of their financial means or legal sophistication, and they should be able to do so relatively quickly. That’s far easier said than done, but our system doesn’t even try, and as much as it pains me to say this, if the copyright (or any) system runs contrary to its own purpose for existing, it shouldn’t exist. I don’t want that, because a properly constructed copyright system can be extremely beneficial to society. So, I’d desperately like to see us fix it, and the RPG industry’s misstatements of the law are an unnecessary barrier to that goal.
This is the second of my two planned videos about Paizo’s ORC license. This one summarizes the issues I raised in the last video, follows up on one of those issues, then discusses an entirely different topic. I take a side trek towards shrink wrap licenses, but as long as this video is (41:00), I tried to keep it as brief as possible, so I didn’t mention the mild circuit split on shrink wrap licenses. Basically, sometimes the courts uphold them, and sometimes their skepticism has them strike them down. In other words, the concerns I expressed aren’t merely speculation, but rather based on actual disagreement between different courts. But hey; just watch the video. I wasn’t nearly as fired up in this one.
EDIT: After you watch the video, come back here for point of clarification. I say that shrink wrap licenses are being used in a weird way with respect to RPGs. Here’s another way to phrase it. With software, the licensor places a unilateral contract on their product and says, “This product is paired with this license. Use the product, and you accept the license.” With RPGs, the licensor (e.g., Paizo) isn’t putting their license on their own product, but even if they do, it’s not capable of being accepted at that point anyway, so it means nothing so far. Instead, the licensee (e.g., you) are putting Paizo’s unilateral contract on your own product, and in doing so effective saying, “Yeah, I accept this.” But you never actually say that to the licensor. Moreover, if Paizo accidentally figures out that you used the license on the product, they’re never going to contact you. Everyone is in a contractual relationship with everyone else, but most of us don’t actually know it. That’s weird.
Remember, shrink wrap licenses are unproven where it counts, and there are legitimate reasons not to trust them, not the least of which is that they’re unilateral. Now you’re using them in a way unique to an industry that’s rarely subject to litigation of this sort. That’s even more suspect.
This is the first of my two videos about Paizo’s ORC license. This one rehashes (far more than it should have) the idea v. expression dichotomy, and then discusses problems with consideration within the license. I did it off the top of my head, which is never a good idea (over 40 minutes of ums and ahs), so watch it at at least 1.25 speed and expect to take breaks.
My second video on acceptance was just recorded, so that will go up tomorrow. It summarizes the issues I raise in this video, follows up on one of those issues, then discusses an entirely different topic. If you have any other questions on either what I’ve discussed in these two videos or what I haven’t, please let me know. I know there are other issues people are contemplating.
I’ll be recording a video about Paizo’s ORC license soon. This serves as a prologue to that video. Here, I discuss the distinction between ideas and expressions in copyright law.
I recorded this while procrastinating; I didn’t want to go to the gym. Therefore, I didn’t do any research or write a script, so don’t expect any justification for my statements or structure to my words. I just want to make sure you understand a critical issue about copyright law, in layman’s terms, before dealing with the ORC.
Here’s something kind of funny. As you know, Wizards of the Coast (“WotC”) has continuously laid claim to copyright over monster names (which is impossible; let me repeat: impossible) or has leveraged their legitimate copyrights to restrict their use (which is copyright misuse). However lacking in legal force as either position is, that’s been their position. Now WotC has released the SRD 5.1 using the Creative Commons licensed, CC-BY-4.0. As Mike Myler pointed out to me, in doing so, many of these names are now expressly licensed even from WotC’s warped perspective. They’re telling you that you may once again state that beauty is in the eye of the beholder because they’re now licensing you the right to use “beholder.”
Seriously. Do you not see how stupid this sounds?
All of this can be found on page 254 of the SRD 5.1. Both pages 97 and 254 include use of “mind flayer,” so that’s now eligible for use. Or is it? Christian Lindke pointed me to a United States federal trademark registration for “Mind Flayer.”
So, by WotC’s arguments that continuously blur copyright and trademark, they can’t even use mind flayer in a sentence. It belongs to a Chinese dude(tte).
Seriously. Do you not see how stupid this sounds?
WotC legal is stupid, or they think you are. Probably both.
Matt Colville echoed sentiments similar to my own as to why Hasbro “surrendered.”
I don’t want to diminish the effect rabid gamers had on causing WotC’s about face, but I do want to provide what I suspect is the proper perspective. The lifeblood of any company is acquiring new customers. Existing customers get older, which means they have less disposable income, and eventually die. You need new blood, and that should always be your primary focus. WotC continues to do exceptionally well gaining new customers, and all your rants (and mine) will not impact that one bit. I doubt we have middle-school children reading our blogs and watching our vlogs. If we do, someone needs to call the police.
So, if we all abandoned WotC, in the long run, they’d survive, and they know that. That’s at least part of why they continued to resist actual change for so long before their surrender. So, why did they surrender? Because we do have a short-term impact on them, and more to the point, on their partners. The creators of the Dungeons & Dragons (“D&D“) movie(s) and television show were probably overwhelming WotC’s telephone and email systems. Their investments in licensing the brand are short term, and I’m sure those investments were substantial. They demanded this change, and their demands could not be ignored.
Again, I don’t want to diminish your efforts. You made those partners aware of your concerns, and you were going to inflict a lot of damage, but if not for these partnerships, WotC would have stayed the course.
Once Again, a Prediction Sure to Come True
Those relationships won’t last forever, and when they dissolve, we’re sure to be in the same position we are now, but with even less of us complaining due to the attrition I described above. What if WotC creates its own movie and/or television studio? Then they won’t need Paramount+, will they? What then? Will we run to Paizo? As I said in a previous post, Mattel could decide to compete with its chief rival, Hasbro, in the role-playing gaming market. What’s the quickest way to accomplish that? My guess would be they’d buy WotC’s chief rival, Paizo, or perhaps one of the second-tier companies with a proven track record. Whatever open-gaming “license” that acquired company used will be just as vulnerable to revocation, de-authorization, or whatever contract principle you choose to misapply to that non-contract. We may be delaying the inevitable by not actually solving the underlying problem.
So, Is the Problem Solved?
No, but I think it’s close enough. I advise cautious optimism.
You may recall that I demanded that they dedicate their material to the public domain. They didn’t do that, but they’re slapping the CC-BY-4.0 directly onto their SRD 5.1, which is almost what I suggested. Dedication to the public domain is probably no more than a grant of a perpetual, irrevocable, royalty-free license with no restrictions, and that’s almost what CC-BY-4.0 purports to be.
Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: 1. reproduce and Share the Licensed Material, in whole or in part; and 2. produce, reproduce, and Share Adapted Material.
Section 2 – Scope.
The potential problem is that the Creative Commons licenses are similar to (though enormously better than) the OGL with respect to acceptance, and they haven’t been tested in US courts. In fact, they’ve barely been tested in international courts. So, we should still be worried?
For now, no. In order for a licensor (that’s WotC in this case) to win a case for infringement, they’d have to argue that license they provided was horseshit. That’s one hell of an argument to have to make.
WotC: “The defendant infringed our copyright.” Court: “How can you say that? You licensed them the works.” WotC: “Oh, that license is complete bullshit, your honor.” Court: “The license you forced them to use?” WotC: “Yep. Complete bullshit. We suckered them in.”
Warning: Gratuitous use of the word, “asshole,” follows.
This, by the way, is exactly what WotC would have had to do if they were taken to court over the OGL, and they would have succeeded by simply reading my posts to the Court. However, as I said, how CC-BY-4.0 is applied is a little bit better than the OGL. It avoids some of my concerns, and for all we know, it could be upheld by courts for that reason. It could also be upheld because it’s been used successfully in other industries almost since its first publication. Everyone’s been cool about its use. No one’s been an asshole. Therefore, the CC-BY-4.0 gives the gaming community time to adjust and diminish WotC’s stranglehold on the industry.
Of course, their stranglehold will remain unless you’re willing to broaden your horizons and not make matters worse for yourselves.
Not Being Assholes
It’s really easy to allow inertia to take over. We’ve spent so much energy in the past few weeks calling WotC assholes that we could go too far. Many years ago, my cousin, Kessel Junkie, once called me out for a nastygram I wrote to a company that had pissed me off. In it, I informed the company that I was no longer doing business with them. If that were the case, why write the letter? If you want to go, just go. The only proper purpose of the letter should be to get them to change their ways, but if they know I’m a lost cause, my letter will do nothing to effect that change. If you enjoy WotC’s products, then don’t let the inertia put you in that same position.
WotC corporate and legal have behaved as assholes through this entire process. They kept having to go back to the well and make edits because doing the right thing doesn’t come natural to them. They’re definitely not our friends, but we shouldn’t be assholes either. Whatever brought us to this point, this is where we are, and it’s exactly what you wanted, and pretty close to what I wanted. So, there’s no reason to engage in the overstatement that plagues American discourse. There’s no reason to continue to criticize companies for doing what they exist to do: Make money. There’s no reason to continue calling for boycotts at the expense of good people who are the creatives at WotC, or even just the bench warmers so to speak. Those people probably agree with you about their employers’ behavior, but their ability to pay their rent depends on their continued employment. You’ve won, so don’t be a sore winner, but also . . . .
Don’t be Naïve
Whether you realize it or not, your “victory” keeps you in a morass of uncertainty. If you’re okay with that, I’m in no place to stop you. If you choose to ignore the status quo and defer having the rug pulled out from underneath the community, that’s your business. It probably won’t take another 20 years for that to happen, but that still may not necessarily be a bad position for you, just those that follow you. This mirrors our approach to the environment and the economy, passing off future ills to future generations, but the consequences aren’t nearly as dire. They’re just games, and you’ll find others to play if you’re still playing them when this happens again. However, if you want to play the next iteration of D&D, it may affect you as well. All of this applies to 5th Edition, not to “One D&D“. There’s no guarantee that OneD&D will use either CC-BY-4.0 or OGL 1.0. OGL 2.0 may be in the near future after all.
Not My Problem
I don’t really have a dog in this hunt. I don’t play 5th Edition anymore, I own every WotC/TSR product I’ll ever want, and I’m not creating content for others. With my 1st Edition Dungeons & Dragons Character Builder functional, that could change if I get it into a suitable form for publication, but the last time WotC threatened me, I told them to pound sand, and they immediately blinked. They can’t harm me because I know they’re full of shit (as are their licenses). I know what I can and can’t do, and I don’t care whether they acknowledge that publicly. But mark my words: This will happen again. Most of you didn’t listen to me the first time, so I don’t expect you to listen to me now, because even those of you that did listen seem happy living in the “open gaming license” hole they’ve dug for you.
But it will happen again, and next time, WotC will have prepared itself to be able to tell you to pound sand. Even if CC-BY-4.0 is used for One D&D and is ultimately deemed legally enforceable, it’ll be another scary time for small-time third-party publishers. I’ll reserve my “I told you so” for that day. Now, I’m off to obscurity and some much-needed rest from meaningful blogging.
While the hubbub over the OGL is finally settling, it inspires yet another video for Mythology Monday. Today, it’s the Greek, Narcissus, the god of vanity and arrogance.