Dungeons & Dragons Rolls a 1 on New License (OGL 1.1) ft. Matt Colville
Listen up you nerds, it would be great if you could help support Richard Hoeg’s recovery here: https://www.gofundme.com/f/reasonable-minds-can-rebuild
Extra thanks to @mcolville for the assist!
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The main thing of importance here, is that even though they can’t copyright rules, they can certainly send out Cease and Desists, and attempt to intimidate creators of the game, or simply bleed them out in court.
They want to use the law to see if you can withstand it, not because they think they can win.
The OGL was the insurance that they wouldn’t see, and they’re clearly trying to take that away.
@Julian Kohler This is all true, but a lot of people don’t have the resources to hire an attorney and might not know this. It’s usually done as an intimidation tactic.
That said, having listened to Opening Arguments’ podcast episode (I highly recommend it), I’m less concerned about this being the case and I don’t find the changes to the OGL that concerning, other than the section about Wizards owning anything creators make, which they’ve walked back in their recent statement.
@The Rockin’ Donkey Any court would dismiss the case with prejudice like immediately. You can defend yourself with a mere email from a cease & desist regarding a ruleset.
Or, better yet, you can get a lawyer to sue the author of the C&D for a compensation for your troubles because they are clearly engaging in vexatious litigation.
@Jeff Howard I thought it was worth pointing out that this is rather standard practice, unfortunately, in the gaming industry, mostly because 3rd party producers/publishers are often quite small companies. The last big case that went to court was probably Games-Workshop v. Chapter House,. where Chapter House won the majority of examples, but also bankrupted themselves doing it. The result was that GW did start pursuing far more legally sound IP protection strategies, which proved rather unpopular. Likely enough that no-one who hadn’t had a court just rule on exactly which bits of their IP could be freely used by literally anyone else (i.e. had specific case precedent so wouldn’t be able to take anyone to court on it next time) wanted to take the same approach (this is why most Warhammer IP looks like it’s been spelt by an elderly Frenchman after several bottles of wine, all aelves and orruks)
@Jeff Howard The OGL is, for many, seen as a promise by Wizards of the Coast not to send out cease and desists to “intimidate creators of the game or bleed them out in court” as Monkey put it. These changes are seen, by many, as Wizards saying, to quote another corporate entity, “play authentic” (i.e., don’t get too comfortable). Seeing as this is a pretty standard corporate procedure that has been used by others, including TSR, the previous owner of D&D, it’s not unreasonable to be concerned that they might, in fact, do this.
Is it speculation? Absolutely. Is it without precedence? No.
@Jeff Howard Yes. Speculation is not inherently unfounded. Wizards is taking active steps to make it easier to bully small creators with legal threats, it is not far-fetched to imagine that they intend to use it to bully small creators, especially considering Wizards has done similar things with MTG.
Pathfinder 1st Edition kind of fits in a bucket in between homebrew and reproduction. But Paizo also has a sort of legal ace in the hole. It’s called “the guys on our legal team are the guys who originally wrote the OGL, and they’re damn sure you can’t revoke it.”
@thorin palladino intent matters when ambiguity is present in a contract, and unless the contract is 9000 pages like version 2 of the OGL is purported to be, there is always ambiguity. In this case, Wizards isn’t directly saying that they are revoking the license, but “de-authorizing” the old versions. This argument is based on a specific clause in the OGL, and relied on an ambiguous reading of how authorization was supposed to be read in context. Wizards wants you to believe that authorization of the license is equivalent to continuing permission to use it, but the context of the section that used the word talks about the right of licensees to use content published under any authorized version using any authorized version of the OGL. This implies that authorization is merely a historical fact, and cannot be taken away because the clause was only speaking to what rights and obligations the users have, and who has the right to write revised licenses.
So yes, interpretation is everything here. Wizards hung their hat in what amounts to a cute word game, and the court would likely rule against them even without the original lawyer’s interpretation to clarify things, because the court usually gives the benefit of the doubt to the licensee whenever there is ambiguity in a contract. Or at least so I am told; IANAL.
@J A no, it doesn’t supercede the old ones. OGL 1.0a is actually a revised version of 1.0, which was done in response to a third party source book called “The Book of Erotic Fantasy”. The name is self explanitory. Obviously Wizards didn’t want such content associated with their products then or now, but the publisher just used version 1.0 and WotC treated that as perfectly acceptable; to the point that until a few months ago, it was explicitly stated in their FAQ on the Wizards website that even if they updated the OGL you not only could use the older versions, in fact they couldn’t stop you. Not only will Piazo use the testimony of the original lawyer against Wizards, this and other FAQs will all be brought up in support of that interpretation, to show that WotC was aware and agreed that revocation of the OGL was not possible, and that the license is a contract with obligations Wizards has to meet. The EFF has already said that if it is seen as a bilateral contract, that alone makes it irrevocable under Washington State law where Wizards is headquartered.
And that is actually normal, in the software world, you have the GPL version 2 and version 3. Between the two, version 2 is more popular when publishing new open source software. The language and framework of the OGL was based on the GPL, and coincidentally, GPL 2 doesn’t contain the word “irrevocable” either, yet the Free Software Foundation treats it as an irrevocable license as well. So despite it’s nerdy application, the OGL debacle has the potential to be a more important legal case than people are making it out to be, because the GPL 2 is the license used for the Linux kernal. While most consumers don’t use Linux, it is the most common operating system used for Internet servers today. I hope you see how a bad precedent could be set if the court doesn’t apply the intent of the OGL here. If the judge realizes the connection, they will probably rule against Wizards.
They said the same about the GPL and then defined an updated version that was incompatible with the previous version and it’s never really been tested. Lots of software is dual licensed and there’s a LOT of mapping between legal definitions and technology implementations. I think SCO went bankrupt trying to enforce a claim about a decade ago. Sun Microsystems, now owned by Oracle, and Microsoft also spent the GDP of small island nations trying to get a judgement on their licenses that they both understood and had diametrically opposed interpretations of. Just saying…
@Scott Roth Intent can’t override stuff explicitly stated in a contract or a law but in cases where something that isn’t explicit must be decided, like this irrevocability, intent is absolutely a key factor in the court’s decision.
@J A I am also not a lawyer. IIRC, that section goes on to say that you *may* use the updated versions. In other words, if the new license terms benefit you, you’re allowed to switch which one you’re using.
I’m sorry to hear about your friend, Mr. Hoeg’s stroke. Hoping and praying for a swift recovery and that he gets the help and support he needs.
As for this OGL debaucle, it’s a true mess. Loved your presentation and both your, and your editor’s, sense of humor in this situation. Your presentation was cathartic and informative on many aspects we don’t get to look at or understand at the common level. Thank you for a great video.
Sincerely,
A GM who loves D&D and its community
So I brought up the OGL stuff at the D&D session we had earlier today and my brother goes, “I’m waiting on Legal Eagle to cover it.” So thank you for almost immediately posting a video on this after he said that
I don’t think Hasbro/WotC was expecting quite THIS much coverage on this issue. I’m really happy seeing this blow up in their faces, and I’m also really glad to see that this video is why we haven’t heard anything from Colville until now!
They definitely weren’t. They expected a bunch of crying like the internet usually does, then for people to get distracted by other things.
Corporate IP attorney here and… wow… incredible. Succinct. Accurate. And all presented with charming editing, I have been missing out on this channel for years. This is such an inspiration for what contemporary, digital distribution of legal knowledge can look like. Wish I could like the video twice.
@L C Yes and no
In the US, it has gone far beyond what I think was the intention placed in the constitution for the benefit of corporations and the detriment to society.
However, reasonable IP laws are important for a healthy and creative economy. That is why the framers put instructions for IP protections in the constitution. Somewhere along the way we forgot the importance of a large and robust public domain. Or rather, corporations paid Congress to forget that.
@L C There is any right that the state chooses to create. Scarcity doesnt matter.
Welcome to the channel. You will like it here.
I liked it for you. Now I just need someone to like it for me. ๐
@Social Commentary 101 Sure but IP law hardly is about protecting an IP as much as it is lining corporate pockets.
Aww… the ending notes about Richard Hoeg are very sweet. Two thumbs up; hope his recovery is a success; โค
Woah, so glad you pointed people to Hoeg’s GoFundMe. He’s a sole practice and the breadwinner for his family, so the $ is a big deal to them. And we miss the morning Hangouts and Headlines with a wholesome chat that included his wife, Mrs HoegLaw aka cocounsel
Kinda f*cked that _lawyers_, of all people, have to set up GoFundMes for medical expenses. If that doesn’t make it clear how bad healthcare in the US is, I don’t know what does.
Sometimes my interests cross over in a most unexpected way. Legal Eagle discussing D&D? Beautiful. Great analysis by the way. I was just discussing with my friends yesterday about whether the OGL was even needed in a lot of cases. Glad to see Iโm not the only one thinking it.
The editing on this video is top tier. Great job Legal Eagle team!
Except for the part where his editor labeled it the “Original Gaming License” instead of the “Open Gaming License.”
Kinda the best