I’ll pick door #3: you misunderstood what he Tweeted. He didn’t sign a draft contract; rather, he got better terms “being discussed.” He was describing the status of negotiations. No need to believe it was “throwing oil on the fire.”
I honestly have no idea what larger point you’re trying to make here. Describing his statement as an “unverified Tweet” is just so weird.
Like an unverified letter, it an unverified phone call, or… Twitter is just another way people communicate, in many cases.
To be fair, Elon DID take his blue checkmark away so technically it’s an “unverified Tweet”
I think part of the problem here is nobody is really arguing about the same things. The OGL 1.2 is not that bad. It’s what the update to the OGL should have been from the beginning. It does obvious things to protect WotC and the D&D brand from bad actors who want to use it as a basis for their shitty project. Does this serve to fight racism in the gaming world? Sure, I guess, but mostly it protects WotC, and that’s fine.
Now, is this mostly-final draft of the OGL what Wizards of the Coast wanted to do? Absolutely not. They desperately want to hook more money-siphons into their customer base and especially into other creators that freely use their product as a basis for theirs. Their attempt to do this spectacularly backfired which is why we have a mostly unremarkable OGL now along with the spectre that WotC will find another path to clawing back royalties from the community.
And according to the tweet he got the 20% deal, which WotC backed off on. This tweet is being used as Proof WotC sent out the Draft OGL along with contracts, that it wasn’t a "leaked draft: as every Lawyers discussion has, it was an official contract sent out.
The point I want to make is that I cant see anyone “signing on” to this draft OGL without lengthy legal review and negotiations.
And if Kickstarter did “sign on” to a 20% cut to WotC before WotC walked that draft OGL back, then they are idiots.
·
Extremely happy to see
@Wizards_DnD
looking at
@creativecommons
for the #OGL moving forward. Also glad to be part of the conversations that turned the tide. Fun fact: A member of the
@Kickstarter
team wrote the current CC license !
That is his newest Tweet.
The line: Also glad to be part of the conversations that turned the tide. Seems to indicate to me that his original, much quoted tweet was indeed a negotiating tactic, and he did not agree to a 20% deal.
I’m not sure I can agree with this. On the surface, it is better but when you dig into it, it has a lot of loopholes for them.
They still want to deauthorize 1.0a. The first time you write something for 1DND, you give up any rights you have to use OGL1.0a. I don’t know why any company with existing material under 1.0a would sign that. They can’t reprint it without reworking it to the new OGL, which would have a cost.
You give up your right to a trial, even if most things don’t go to trial and are settled. Not sure it’s ever good to give up your rights.
Now, let’s look a bit deeper. 6e - No illegal conduct. Which countries’ laws? What about when the picked country (assume USA) allows things that are illegal in another country? But to follow the legal laws of the country they are in, they break the OGL? Now, let’s combine all of that with 7.b.i We may terminate your license if you … violate any law in relation to your activities under this license; State law? Federal Law? Municipal Law? 9.e does say State of Washington but already there is an issue with this. If a book is published in Texas, which doesn’t allow same sex marriages and the book has openly gay people, now what? If TX sues the author, is WotC going to back them because it’s legal in Washington? I wouldn’t count on it.
6f - We have the sole right to decide what conduct or content is hateful, and you covenant that you will not contest any such determination via any suit or other legal action. Again, that’s not something I think anyone should agree to but IANAL. Prior to that, they were talking about harmful, illegal, obscene, and harrassing language. Again, what about differences between countries? They get to decide it all and anyone who signed it doesn’t get to argue with them. They decide against LGBTQ+? No more stuff friendly to LGBTQ+. Same for anything else, they get to decide.
Many refer to 6f as the morality clause and it gets very tricky. Already different states have different laws and are changing a lot.
9.e, besides the above, also says that any arbitration will happen where ever Wizards has its HQ, assumably because they have legal sympathy there due to donations they have made. At least, I think that should be assumed.
This is better than 1.1 but that’s not saying much because of how bad 1.1 was.
This doesn’t even touch on the subject of VTTs and their policy of them. No animations. Nothing not done at the table. If one table uses a VTT locally for those things, is it all allowed?
Again, IANAL but even 1.2 has a lot of issues from what I read.
That doesn’t make much sense unless you think that tweet was the only conversation he’s had with Hasbro. Which it, of course, was not and even his first tweet said that he was advocating for creators. As in having discussions with Hasbro not in tweet form and prior to the OGL revisions leaking.
But even if it was some weird scheme where a Kickstarter exec decided to tweet easily disapproven lies about Hasbro for… reasons… the fact still remains that Hasbro was working with outfits like Kickstarter in advanced of the OGL becoming public. Unless you’re saying that Kickstarter made up the entire thing out of whole cloth and Hasbro had never contacted them about the new OGL. In which case I dunno what to tell you.
I think it’s pretty clear that what happened here is that the suits at Hasbro wanted some way to be able to torpedo their competition. When that got so much blowback, they re-branded it as being about stopping hate, which is a good thing, and probably is motivated by at least some people at the company being anti-hate… but the bits that let them torpedo the competition are still in there. And given that the original purpose was to be able to torpedo the competition, is there any doubt that the suits are going to use those bits the first chance they get?
Jury trial, iirc. standard boilerplate.
Not simply waiving right to a jury trial. You forfeit your right to any legal recourse via the new OGL. No way that could ever be abused, am I right?
If you can’t trust the company that so recently brought us wholesome entertaining in the form of the Hadozee to police racism or other forms of bigotry in the industry, I don’t know who you can trust.
Possible loophole: Hasbro decides that your content was “hateful”, and you just keep on publishing it, anyway. I assume that at that point, they sue you, no? Would the fact that they’re initiating the suit, not you, negate that? Or, alternately, would the contract similarly prevent WotC from bringing suit?
Mandatory arbitration is common in a lot of consumer contracts, especially with respect to tickets for things like sporting events, concerts, theme parks, and ocean cruises.
Typically, a contract like this will have a choice of law provision and a choice of venue provision. These are generally considered enforceable. So, if they say that the laws of the State of Washington and the United States will apply, then it doesn’t matter whether the law is different in another country.
This isn’t an “issue,” as such. It’s a very common situation.
Wizards of the Coast won’t do anything if the State of Texas prosecutes you for a violation of Texas state law. This contract has nothing to do with that. The terms only apply to the relationship between Wizards of the Coast and the licensee. It has no applicability to criminal prosecution by any jurisdiction. That’s your problem to deal with.
I’m not sure what your objection here is. Of course they get to decide what they think is objectionable. It’s their product; it’s their license; it’s their reputation on the line. They would be crazy to have it any other way.
Roll for Combat spoke with Linda Codega. Both of them were early in the OGL story.
She mentions she has an interview with Critical Role. I think it’s with Matt Mercer and Marisha Rey but I only saw a clip. That’s supposed to be out “soon.”
Thanks for the discussion!
Here’s Devin Stone’s analysis after the original leak.
His main point:
Fundamental flaw of this whole entire controversy: The rules of the game can’t be subject to exclusive rights under copyright law. Thus, no license is required in order to make products that are compatible with the rules, so long as they aren’t infringing any trademarks or copyrights.
the OGL “kind of sucks” because “It mainly allowed you to use stuff you were already allowed to use.”
Which has been my question throughout this thread: What does the original OGL allow you to do that you aren’t already legally entitled to do?
I could be wrong, but it seems my answer is: Nothing. OGL 1.0 wasn’t doing anything legally.
Furthermore, I have doubts that this kind of license is creating any kind of legal obligations whatsoever. I am not an expert in contract law, and I haven’t done any research, but just from my basic knowledge of contracts and my shallow review of the topic as outlined here: I don’t see how OGL 1.0 created any kind of enforceable obligations on the part of Wizards of the Coast.
So if Wizards of the Coast decides they don’t like what you are doing—and you are infringing their copyrights or trademarks—OGL 1.0 didn’t protect you from any legal action by Wizards of the Coast.
But if you were merely making compatible material, and you weren’t infringing their copyrights or trademarks, Wizards of the Coast had no viable claim against you anyway.
(As Devin points out, stating “This product is compatible with Dungeons and Dragons” is neither trademark infringement nor copyright infringement. It is nominal fair use.)
My understanding, admittedly limited, is that the mechanics aren’t copyrightable, but the language describing them is. Rolling a 20-sided die and adding a variable value to it, and comparing the result to a set number to determine success or failure at resisting an effect, isn’t copyrightable. But saying, “The yogsanth makes a melee touch attack. On a successful attack, it deals 2d8+8 poison damage, and the target must make a Fortitude save DC 18 or suffer an additional 1d8 points of temporary strength damage” might use enough of their language to run into difficulties. The OGL said, in effect, “We give you permission to use some of our copyrightable language, and in return, you agree to follow these conditions when you use that language.”
That kind of functional description of the rules is very unlikely to have any enforceable copyright protection.
They could still try to fight you over it, in case there is some non-functional creative content in that text, but they could do that with or without the OGL.
In the end, the OGL isn’t really saving you the cost of any legal battle that Wizards of the Coast might choose to initiate. You’ll either be fighting over (1) whether your use is infringing, (2) whether the OGL protects you from that claim, or (3) both.
In my opinion, you’re better off doing your best not to infringe any copyright or trademark right. If you are actually making money off your D&D-compatible content, hire a lawyer to advise you the best way to avoid trouble. In my opinion, you’re better off without the OGL.
I really don’t think you’re right there except in the most technical sense. They can fight you over anything, but if you’re following the OGL rules, they’re extraordinarily unlikely to win a fight, and consequently they’re extraordinarily unlikely to start a fight. Whereas if you haven’t signed onto it, they have a much stronger case that you’re using their language, not just their mechanics, and a fight is likelier to brew.
Consider a website like d20srd.org. Do you think that this website would be protected without the OGL? It seems blatantly obvious to me that it’d infringe copyright if the OGL didn’t exist.
The OGL did allow other publishers to just cut and paste rules text into their own books, which is arguably something that might have infringed on copyright. You can’t copyright rules, but you can copyright a particular expression of the rules, and it’s not immediately obvious how much you need to rewrite the description of magic missile to avoid a copyright violation. And “not immediately obvious” means Hasbro wins, because they can afford the court case, and 95% of independent game publishers cannot.
The OGL wasn’t valuable because of the legal protections it contained, it was valuable because it represented a promise by WotC that they weren’t going to throw their weight around trying to shut down perceived competitors. The new OGL went back on that promise, and like the original, the actual legality of it didn’t really matter: the 25% profit sharing might not have been legally enforceable, but if finding out means giving up 100% of your profits in legal fees, it doesn’t really matter if it’s legal, does it?
The new new OGL is just trying to get back some of that good will they just dynamited. I don’t think the “no racist game books” clause is a secret trap to shut down competitors, I think it’s standard corporate pandering to social progressiveness. Which isn’t to say they don’t actually believe it, but it’s in this document entirely to rebuild their image after this public relation debacle.