6 ms·

The OGL was always, always, always a trap, and it's sad to see it snap shut. The time for Paizo and such to move on from it was with Pathfinder 2E, but they did

The OGL was always, always, always a trap, and it's sad to see it snap shut. The time for Paizo and such to move on from it was with Pathfinder 2E, but they didn't, and now the depressing part happens. The other shoe to drop is the actual play community. Critical Role is all but in-house already and probably won't be affected, but smaller creators trying to monetize their 5E content are going to start feeling the noose tighten. > The original OGL granted “perpetual, worldwide, non-exclusive license” to the Open Game Content (commonly called the System Resource Document) and directed that licensees “may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.” But the updated OGL says that “this agreement is…an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.” > The new document clarifies further in the “Warranties” section that “this agreement governs Your use of the Licensed Content and, unless otherwise stated in this agreement, any prior agreements between Us and You are no longer in force.” The hinge of the trap in OGL 1.0a is the "any authorized version" part, here in its more full context:[1] > 9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License. Hasbro has the money to make legal challenges to that prohibitive, and no other company in the space has remotely similar resources. Good luck, suckers! 1: http://www.opengamingfoundation.org/ogl.html http://www.opengamingfoundation.org/ogl.html

Macha 4y ago
So a gaming podcast had a contract lawyer on to opine on this: https://www.youtube.com/watch?v=MDuHjpwx5Q4 https://www.youtube.com/watch?v=MDuHjpwx5Q4 Their "this is not specific personalised advice, consult your own lawyer" thoughts were: 1. The license does not specify revocable or irrevocable, but it would be likely a court would find it to be irrevocable because: - other lanaguage in the license such as the perpetual term and the option to use later versions appears to anticipate it being non-revocable - the zection on termination only provides for breach of contract and protects sublicenses of the terminated work from being terminated unless the sub licenses were also infringing. The fact that it provides some grounds for terminatioj but "we have a new license" isn't among them hurts their argument. - There is mutual consideration and this is even spelled out in the contract as being consideration in terms of the derivative content being reciprocally licensed, plus the unspecified benefit to Wizards of having more complements to their product increasing its appeal. The licensee obviously gets the rights to use the covered content. - The 23 year usage of OGL 1.0a may constitute reliance especially when combined with past clarifying public statements where Wizards official documents and then-active employees indicated it was intended to be non-revocable. - Clauses in US law for copyright owners to terminate licenses require 35 yeara and do not affect sublicenses, so unlikely a court would assume a stricter unwritten standard of revocability than this However, they also point out you can waive your rights to use content under 1.0a if you were to agree to 1.1, e.g. to get access to 6e content. They also touch on the idea of if Wizards could use others OGL 1.0a licensed content under 1.1 which imposes lesser restrictions on wizards than 1.1. They're vaguer on this point, but imply probably not as its too much of a deviation from the previous license and raise the reliance part again
- wolverine876 4y ago
  That attorney makes clear they are not an IP lawyer. Here's an IP lawyer, who specifically works in gaming, who says the opposite: https://medium.com/@MyLawyerFriend/lets-take-a-minute-to-talk-about-d-d-s-open-gaming-license-ogl-581312d48e2f https://medium.com/@MyLawyerFriend/lets-take-a-minute-to-tal...
  - giardia 4y ago
    A slight tangent, but it's funny how everyday people are on the hook for legal consequences, even when legal professionals can't agree which laws apply, or even what they mean.
    - heavenlyblue 4y ago
      If it went to court then the legal professionals would agree?
      - bee_rider 4y ago
        They would agree on what the ruling was, and agree that it sets some kind of precedent on some level, but not necessarily that it was good.
    - readthenotes1 4y ago
      That is why there is the old joke that in a town with only one lawyer the lawyer starves but business picks up when there are two.
    - thatguy0900 4y ago
      Even more funny how you can't even ask the government in advance how a particular situation would be resolved, as courts don't rule on hypothetical situations. People on the cutting edge in a lot of spaces really just have to do it and find out the legality later.
      - 4y ago
bee_rider 4y ago
These “d&d” podcasts seem to basically be playing rules-light systems with a some d&d styling, I bet if WoTC tries to really enforce anything they’ll say “switched to dungeon world” and that’ll be the end of it. It would probably be a more accurate reflection of the play style anyway. (I mean d&d is great because most people aren’t, like, professional voice actors and improv pros, the structure that Critical Roll and their ilk don’t need is why us normal people might want the system in the first place!) I’m mostly worried about the folks posting settings and adventures on drive through RPG, it seems like they have a ton more exposure. :(
jonnycomputer 4y ago
I'm not sure what you mean with 2E. It's a near total rewrite, isn't it?
- Macha 4y ago
  Pathfinder 2E is clearly a derivative work of Pathfinder 1E which is a derivative work of 3.5. It's not clear that none of the content in 2E would cross the threshold of being both (a) copyrightable and (b) sufficiently unmodified from D&D 3E to be under scope. It's not clear how much of Paizo's decision to license 2E under OGL was as a CYA in case someone found that some of the content was derived from D&D 3E, and how much was for continued compatibility with the PF 1E ecosystem, but likely both concerns were considered
  - hgsgm 4y ago
    This is the first HN comment I've seen that used "derivative work" correctly instead of claiming that derivative works are exempt from copyright (comflating with "transformative work")
  - crooked-v 4y ago
    Pathfinder 2e's text is completely written from scratch and it has original aesthetics and branding around the various things used in marketing (for example, even the shared dragon types have different art and abilities). I think would leave the only real copyright and trademark concerns around things that were nominally invented by D&D, like tieflings and balor demons... and even those would be a stretch, since for the most part they're obviously based on preexisting pop culture (70s and 80s comic books for plenty of tiefling-like characters, the balor originally just being a slightly rethemed Tolkien balrog, etc).
    - ladyattis 4y ago
      Apparently, 2e books have the OGL 1.0a in the back pages which means they're OGL dependent.
indymike 4y ago
> Hasbro has the money to make legal challenges to that prohibitive, Legal costs do not necessarily scale by size and wealth of the litigant. I'm not a lawyer, but I've dealt with enough license disputes that I'd be lawyering up if I was in the D&D OGL business. This looks to be a pretty simple contract dispute about what paragraph 9 (Updating the License) actually says and if it is actually legal (it probably is). I'd first ask the lawyer if I should suspend selling and distributing, and then ask if it's worth litigating the OGL license change. Suspending the business will also dramatically reduce the cost of litigation because there's going to be minimal damages to argue (which takes a truckload of accountants and extra expensive lawyers to calculate).

Macha 4y ago

So a gaming podcast had a contract lawyer on to opine on this: https://www.youtube.com/watch?v=MDuHjpwx5Q4 https://www.youtube.com/watch?v=MDuHjpwx5Q4 Their "this is not specific personalised advice, consult your own lawyer" thoughts were: 1. The license does not specify revocable or irrevocable, but it would be likely a court would find it to be irrevocable because: - other lanaguage in the license such as the perpetual term and the option to use later versions appears to anticipate it being non-revocable - the zection on termination only provides for breach of contract and protects sublicenses of the terminated work from being terminated unless the sub licenses were also infringing. The fact that it provides some grounds for terminatioj but "we have a new license" isn't among them hurts their argument. - There is mutual consideration and this is even spelled out in the contract as being consideration in terms of the derivative content being reciprocally licensed, plus the unspecified benefit to Wizards of having more complements to their product increasing its appeal. The licensee obviously gets the rights to use the covered content. - The 23 year usage of OGL 1.0a may constitute reliance especially when combined with past clarifying public statements where Wizards official documents and then-active employees indicated it was intended to be non-revocable. - Clauses in US law for copyright owners to terminate licenses require 35 yeara and do not affect sublicenses, so unlikely a court would assume a stricter unwritten standard of revocability than this However, they also point out you can waive your rights to use content under 1.0a if you were to agree to 1.1, e.g. to get access to 6e content. They also touch on the idea of if Wizards could use others OGL 1.0a licensed content under 1.1 which imposes lesser restrictions on wizards than 1.1. They're vaguer on this point, but imply probably not as its too much of a deviation from the previous license and raise the reliance part again

wolverine876 4y ago
That attorney makes clear they are not an IP lawyer. Here's an IP lawyer, who specifically works in gaming, who says the opposite: https://medium.com/@MyLawyerFriend/lets-take-a-minute-to-talk-about-d-d-s-open-gaming-license-ogl-581312d48e2f https://medium.com/@MyLawyerFriend/lets-take-a-minute-to-tal...
- giardia 4y ago
  A slight tangent, but it's funny how everyday people are on the hook for legal consequences, even when legal professionals can't agree which laws apply, or even what they mean.
  - heavenlyblue 4y ago
    If it went to court then the legal professionals would agree?
    - bee_rider 4y ago
      They would agree on what the ruling was, and agree that it sets some kind of precedent on some level, but not necessarily that it was good.
  - readthenotes1 4y ago
    That is why there is the old joke that in a town with only one lawyer the lawyer starves but business picks up when there are two.
  - thatguy0900 4y ago
    Even more funny how you can't even ask the government in advance how a particular situation would be resolved, as courts don't rule on hypothetical situations. People on the cutting edge in a lot of spaces really just have to do it and find out the legality later.
    - 4y ago

bee_rider 4y ago

These “d&d” podcasts seem to basically be playing rules-light systems with a some d&d styling, I bet if WoTC tries to really enforce anything they’ll say “switched to dungeon world” and that’ll be the end of it. It would probably be a more accurate reflection of the play style anyway. (I mean d&d is great because most people aren’t, like, professional voice actors and improv pros, the structure that Critical Roll and their ilk don’t need is why us normal people might want the system in the first place!) I’m mostly worried about the folks posting settings and adventures on drive through RPG, it seems like they have a ton more exposure. :(

jonnycomputer 4y ago

I'm not sure what you mean with 2E. It's a near total rewrite, isn't it?

Macha 4y ago
Pathfinder 2E is clearly a derivative work of Pathfinder 1E which is a derivative work of 3.5. It's not clear that none of the content in 2E would cross the threshold of being both (a) copyrightable and (b) sufficiently unmodified from D&D 3E to be under scope. It's not clear how much of Paizo's decision to license 2E under OGL was as a CYA in case someone found that some of the content was derived from D&D 3E, and how much was for continued compatibility with the PF 1E ecosystem, but likely both concerns were considered
- hgsgm 4y ago
  This is the first HN comment I've seen that used "derivative work" correctly instead of claiming that derivative works are exempt from copyright (comflating with "transformative work")
- crooked-v 4y ago
  Pathfinder 2e's text is completely written from scratch and it has original aesthetics and branding around the various things used in marketing (for example, even the shared dragon types have different art and abilities). I think would leave the only real copyright and trademark concerns around things that were nominally invented by D&D, like tieflings and balor demons... and even those would be a stretch, since for the most part they're obviously based on preexisting pop culture (70s and 80s comic books for plenty of tiefling-like characters, the balor originally just being a slightly rethemed Tolkien balrog, etc).
  - ladyattis 4y ago
    Apparently, 2e books have the OGL 1.0a in the back pages which means they're OGL dependent.

indymike 4y ago

> Hasbro has the money to make legal challenges to that prohibitive, Legal costs do not necessarily scale by size and wealth of the litigant. I'm not a lawyer, but I've dealt with enough license disputes that I'd be lawyering up if I was in the D&D OGL business. This looks to be a pretty simple contract dispute about what paragraph 9 (Updating the License) actually says and if it is actually legal (it probably is). I'd first ask the lawyer if I should suspend selling and distributing, and then ask if it's worth litigating the OGL license change. Suspending the business will also dramatically reduce the cost of litigation because there's going to be minimal damages to argue (which takes a truckload of accountants and extra expensive lawyers to calculate).