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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.
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?)