So the title sums it up. I am a lawyer. For the record, I don't practice in the area of intellectual property; however, I am self-taught in that area due to my publishing side-line, and I feel comfortable in my knowledge based on my general legal-education framework. More importantly, almost all of my work is in contract law, and the GSL is, in the end, just a contract. In reading some of the threads, I've seen some patently incorrect assumptions about the terms of the GSL (and many others that I think are arguably wrong), so I decided to start a new thread to answer people with specific questions about it. I will give you my best answers. Where I think the answer is unclear, I will tell you why and give you both sides.

This is not a thread for discussing the philosophy of open gaming, WotC's motivations, etc. This is a thread for nuts-and-bolts discussion of what the GSL means and does.

Also, I feel obliged to note that posting in this thread does not create an attorney-client relationship between us. I am not giving you legal advice. I am a lawyer giving you my personal opinion about the GSL. I hardly think it is necessary, but I want to personally disclaim any liability for anything you might do based on reliance about what I say in this thread. In fact, you affirmatively should not rely on what I say in this thread. If you want to make a business decision about what to do, you should consult a lawyer. If you desire, you can contact me off-list for a more formal conversation.

EDIT: I'm okay with other people who believe they have a similar level of expertise giving their insight in this thread as well. I don't want people speculating. If you're not sure, frame it as a question--not a belief. Let's keep this thread as questions and answers.

Thanks for doing this, Justin.

OK, 4.1...

4.1 4E References. Licensee may reprint the proprietary 4E reference terms, tables, and templates (each, a “4E Reference”) described in the 4E System Reference Document as presented in the file “SRD.pdf” that is available for download at http://www.wizards.com/d20 (“SRD”), incorporated herein by reference. Licensee acknowledges that Wizards has previously defined each 4E Reference. Licensee will not define, redefine, or alter the definition of any 4E Reference in a Licensed Product. Without limiting the foregoing, Licensee may create original material that adds to the applicability of a 4E Reference, so long as this original material complies with the preceding sentence. Licensee will comply with all usage guidelines set forth in the SRD. Wizards may update or revise the SRD at any time in its sole discretion by posting the updated SRD on its website page located at http://www.wizards.com/d20. Wizards will indicate on the cover page of the SRD the date it was last updated. Licensee is responsible for checking the SRD regularly for changes, and waives any right to receive specific notice of changes.

So the key thing here seems to be "Licensee will not define, redefine, or alter the definition of any 4E Reference in a Licensed Product.". But you can "add to the applicability" - so I'm a little confused. Any thought as to what this means?

As a note - as John noted, reading through the SRD is helpful.

The license includes numerous clauses which remain in effect after termination. It also allows WOTC to freely change the terms without notice.

Are there checks I'm unaware of that keep that from being a recipe for abuse?

(Specific example: is there anything keeping them from, after the fact, altering their "You can't go back to OGL" to "You can't go back to any other game system" at some point when books are already on the ground?)


-Rob D.

Posted By: Ben LehmanHey, Justin: What does the GSL *allow* you to do, exactly? It talks a lot about what's prohibited, so I'm unclear as to what is actually allowed that would be clearly legal under fair use.

At its most basic, the GSL allows you to use selected portions of the D&D 4e core books. This is something you could not otherwise do under simple intellectual property law. The restrictions are in what you can use and how you can use it.

As a random example, you could release a series of NPC pdfs. One might be a cleric. You could indicate that the cleric has the "Lance of Faith" power. You could not otherwise do that absent the GSL. "Lance of Faith" is their IP.

Justin, thanks for doing this!

- Can WotC revoke the GSL at any point?
- If yes, are there any limitations?
- What actions must WotC take to revoke the GSL?

- Can WotC alter the GSL at any point?
- If yes, are there any limitations?
- What actions must WotC take to alter the GSL?

Thanks,
John

Posted By: Justin D. Jacobson
At its most basic, the GSL allows you to use selected portions of the D&D 4e core books. This is something you could not otherwise do under simple intellectual property law. The restrictions are in what you can use and how you can use it.

As a random example, you could release a series of NPC pdfs. One might be a cleric. You could indicate that the cleric has the "Lance of Faith" power. You could not otherwise do that absent the GSL. "Lance of Faith" is their IP.

"Their IP" is quite vague. Terminology is not significant enough to be copyrightable, so I assume you're talking trademark law.

As far as I understand trademarks, they're there for source identification and consumer protection. Most trademark violations revolve around whether or not using a term can be said to have confused the marketplace. I don't see how referencing a trademark (if it even is one) like "Lance of Faith" in a supplement and unequivocally making it clear that it belongs to WotC could be construed as a violation.

Posted By: Rob DonoghueThe license includes numerous clauses which remain in effect after termination. It also allows WOTC to freely change the terms without notice.

Are there checks I'm unaware of that keep that from being a recipe for abuse?

(Specific example: is there anything keeping them from, after the fact, altering their "You can't go back to OGL" to "You can't go back to any other game system" at some point when books are already on the ground?)

This is a good one. Let's start with the GSL itself. It does indeed provide for termination or alternation at their discretion and without notice. There is nothing preventing them from canceling the GSL altogether one week after your shiny new 4e supplement is in the supply chain.

Checks: Obviously, there are social checks, i.e., bad PR from a modification of this sort that would be seen as simply "abusive", no obvious commercial motivation for such a move, etc. But that's not much of an assurance. I do think there are general principles of contract law that can protect against such a move. Notably, any contract (and the GSL is, at its heart, just a contract) includes an implied covenant of good faith.

I could conceive of a scenario like this: A third-party publisher prints up 10,000 copies of their new 4e campaign setting. The distributor is filling orders from retailers, when WotC releases an updated GSL that says you can't publish campaign settings. The third-party publisher could viably argue that WotC breached the implied covenant of good faith, which might open up other remedies, e.g., waiving their right to enforce it. This argument is bolstered by the language in Paragraph 11.3 about extending the license on a case-by-case basis.

There are other, related legal principles that might apply similarly. In short, the prospect of such a scenario doesn't personally concern me (not the least of which because I won't be printing up 10,000 copies of anything), but I can't give you a rock-solid legal basis for saying it is not a problem.

This is also a good place for me to mention that I practice in Florida. As a rule, I am familiar with Florida law. By its terms, the GSL applies Washington law. As a rule, I know nothing of Washington law. I am talking about general contract law. Specific applications might indeed vary based on the unique implementations of Washington law.

Posted By: Justin D. Jacobson

Posted By: Ben LehmanHey, Justin: What does the GSL *allow* you to do, exactly? It talks a lot about what's prohibited, so I'm unclear as to what is actually allowed that would be clearly legal under fair use.

At its most basic, the GSL allows you to use selected portions of the D&D 4e core books. This is something you could not otherwise do under simple intellectual property law. The restrictions are in what you can use and how you can use it.

As a random example, you could release a series of NPC pdfs. One might be a cleric. You could indicate that the cleric has the "Lance of Faith" power. You could not otherwise do that absent the GSL. "Lance of Faith" is their IP.

Well, this is a tricky point. You should make clear here that they do not own the game system -- methods and systems cannot be owned via copyright, only specific expressions of them. Within the computer game world, it has been substantially shown that simply being compatible with a system does not show copyright infringement. In "Galoob vs Nintendo" , the Game Genie by Galoob was shown not to infringe on Nintendo's copyrighted system which it altered. In "Sega vs. Accolade", the Sega-compatible games by Accolade, Inc. were shown not to infringe on Sega games. Connextix has similarly made products usable with other games successfully, with court decisions to back them up. The key in these cases is that the compatible games did not reproduce substantial portions of the original game code. In contrast, "Atari vs Nintendo" found that Atari's Nintendo-compatible games did copy verbatim large portions of the original code (which they obtained through surreptitious means), and were found to have violated copyright.

In the nineties, companies like Wizards of the Coast would publish D&D-compatible supplements without permission from TSR. They would use generic spell names like "Magic Missle", but they avoided spells with character names like "Melf's Acid Arrow" or "Bigby's Crushing Hand". This was never decided within the courts -- though the fact that TSR did not sue them does suggest that it is legal. Also, parallel cases like the video games above seem to support this.

But I guess this is really a question: Do you think that the AD&D-compatible supplements and modules prior to 2000 were generally legal? Or do you think they were illegal and TSR simply failed to pursue its rights?

Justin, you rock!

More questions:

If WotC terminates the GSL or alters it in a way that makes your GSL product invalid, can you covert your product to the OGL?

The GSL, section 6 seems to indicate that their OGL restrictions survive the termination of the GSL. Is this true?

Several people have asked, what's the penalty for ignoring these restrictions? WotC can't terminate your GSL license if the GSL is already terminated.

But the OGL, section 5 and 13 seem to indicate that WotC could revoke the use of the OGL in the above situation. Is this true?

Additionaly, several people have indicated that if WotC were to take legal action, that the GSL, section 10, indicates that the Licensee may be held accountabe for WotC's legal fees. Is this true?

For reference:

GSL6. OGL; Conversion

6.1 OGL Product Conversion. If Licensee has entered into the “Open Gaming License version 1.0” with Wizards (“OGL”), and Licensee has previously published a product under the OGL (each an “OGL Product”), Licensee may publish a Licensed Product subject to this License that features the same or similar title, product line trademark, or contents as such OGL Product (each such OGL Product, a “Converted OGL Product”, and each such Licensed Product, a “Conversion”). Upon the first publication date of a Conversion, Licensee will cease all manufacturing and publication of the corresponding Converted OGL Product and all other OGL Products which are part of the same product line as the Converted OGL Product, as reasonably determined by Wizards (“Converted OGL Product Line”). Licensee explicitly agrees that it will not thereafter manufacture or publish any portion of the Converted OGL Product Line, or any products that would be considered part of a Converted OGL Product Line (as reasonably determined by Wizards) pursuant to the OGL. Licensee may continue to distribute and sell-off all remaining physical inventory of a Converted OGL Product Line after the corresponding Conversion is published, but will, as of such date, cease all publication, distribution and sale (and ensure that third party affiliates of Licensee cease their publication, distribution and sale) of any element of a Converted OGL Product Line in any electronic downloadable format. For the avoidance of doubt, (a) any OGL Product that is not part of a Converted OGL Product Line may continue to be manufactured, published, sold and distributed pursuant to the OGL; and (b) this Section 6.1 will survive termination of this Agreement.

6.2 No Backward Conversion. Licensee acknowledges and agrees that it will not publish any product pursuant to the OGL that features the same or similar title, product line trademark, or contents of a Licensed Product.

6.3 Licensee Termination. In the event that any portion of a Converted OGL Product Line is manufactured or published by Licensee, or a third party affiliated with Licensee, after the first publication date of a Conversion, Wizards may immediately terminate this License upon written notice.

10.4 Remedies. Licensee recognizes and acknowledges that its breach of any of the covenants, agreements or undertakings hereunder with respect to use of the Licensed Materials, including without limitation trademark use requirements or quality standards, will cause Wizards irreparable damage which cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement of Wizards’ rights in Wizards Intellectual Property, thereby entitling Wizards to equitable remedies, costs and reasonable attorneys’ fees.

OGL5. Representation of Authority to Contribute: If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

13. Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.

Posted By: lemon"Their IP" is quite vague. Terminology is not significant enough to be copyrightable, so I assume you're talking trademark law.

That statement, as a general expression, is just wrong and is exactly the reason I started this thread. Moreover, there are two separate issues here: general copyright law and the GSL. If you a publisher wants to avail themselves of the GSL, they have to abide by its terms regardless of what they might otherwise be able to do under general copyright law.

As far as I understand trademarks, they're there for source identification and consumer protection. Most trademark violations revolve around whether or not using a term can be said to have confused the marketplace. I don't see how referencing a trademark (if it even is one) like "Lance of Faith" in a supplement and unequivocally making it clear that it belongs to WotC could be construed as a violation.

Your hypothetical is too vague to be relevant. Could I post in my blog: "The Lance of Faith cleric power is totally broken."? Of course. Could I release a D&D 4e supplement under the GSL and use a small bit of "terminology" that is not identified in the SRD as long as I give proper credit? Absolutely not. Could I release a D&D 4e supplement not under the GSL that uses some of the "terminology" found in the books without running afoul of general copyright law? Probably, but the answer is so vague and unattached as to be unhelpful to the discussion. And, as an aside, I don't think there is any question that WotC could reasonably claim a trademark on "Lance of Faith" when used as a character power in a fantasy-based rpg. If you're talking about releasing a deathmetal album of the same name, be my guest.

Posted By: jenskotJustin, regarding Jonathan's quote here:

Posted By: Jonathan WaltonYou couldn't do Mutants & Masterminds GSL, because you'd have to keep hit points and falling damage and everything else the same, but you could have your Paragon Class that starts with flight and powers that do lots of damage from punching and ranged heat vision and the like. And then do a bunch of other superhero classes. Yeah?

I know that you can not alter the meaning of a term, but are there any restrictions that state you have to use all of 4E's core rules? Could you not explicitly remove falling damage and create a new rule called "environmental effects" and state that your heroes don't suffer damage from falling?

I think that is exactly correct.

But I guess this is really a question: Do you think that the AD&D-compatible supplements and modules prior to 2000 were generally legal? Or do you think they were illegal and TSR simply failed to pursue its rights?

To back this up, the precise scope of the Dungeons & Dragons IP isn't the immediate issue. Whoever owns Dungeons & Dragons has enough money to file a cases just to deter others. Even if it ultimately turns out some of this material isn't legally protected, getting to a judgment on the merits would take a very long time and be very costly for the little guy--and that's before you consider any possible appeals.

Even if you think WotC's rights aren't very strong, you'll still need balls of steel before you'll get any kind of vindication.

I haven't looked at the GSL, but regarding standard copyright law, you would own copyright over the non-derivative aspects of the material--maybe some color text about the feat, and any copyrightable expressions within the mechanics parts, but WotC would still own copyright to material you used to create the derivative work. You normally can only create derivative works if you receive a license from the original copyright holder, which I guess is what the GSL is all about.

Now: under normal copyright law, when the original copyright holder revokes that license, you--the creator of the derivative work--are not SOL. You can still exploit your derivative work, *and* the material you used as a basis -- but only that material, and only under the terms of the original license.

So it would depend on the clauses of the GSL with respect to the creation of derivative works and in particular what the terms are for continued publication of derivative works after revocation of the license.

Posted By: jenskotIf WotC terminates the GSL or alters it in a way that makes your GSL product invalid, can you covert your product to the OGL?

The GSL, section 6 seems to indicate that their OGL restrictions survive the termination of the GSL. Is this true?

Several people have asked, what's the penalty for ignoring these restrictions? WotC can't terminate your GSL license if the GSL is already terminated.

But the OGL, section 5 and 13 seem to indicate that WotC could revoke the use of the OGL in the above situation. Is this true?

Additionaly, several people have indicated that if WotC were to take legal action, that the GSL, section 10, indicates that the Licensee may be held accountabe for WotC's legal fees. Is this true?

I don't see anything in section 5 and 13 that says WotC could revoke it under any circumstances. By it's plain language, it is "perpetual". The only termination provision is for failure to abide by the terms of the OGL, not the GSL. I don't see what section 5 adds to the mix. Maybe I'm just missing something.

Now, the GSL is very clear that it can be revoked for any reason at any time. If you did what you are suggesting, WotC could refuse to let you use the GSL for any of your products as "punishment".

Posted By: Ben LehmanAbout the SRD not containing actual rules content.

If I write, say, a new feat (let's called it, uh, improved punishing strike), which is openly derivative of a Wizards authored feat (punishing strike), and I use clearly derivative text to describe the effect, am I running afoul of the GSL or copyright law in general?

No.

Posted By: Justin D. Jacobson

Posted By: jenskotJustin, thanks for doing this!
- Can WotC revoke the GSL at any point?Yes
- If yes, are there any limitations?No
- What actions must WotC take to revoke the GSL?None

Paizo publishing's Dungeon & Dragon magazine licenses spring to mind: Even if the current regime at Wizards fervently doesn't want to do this, new management with a different philosophy could come in and do it anyway. With the life of an edition being approximately 5-10 years... that's a lot of risk if you build a business model around it.

Posted By: jenskotJustin, thanks for replying! My understanding is, and it may be wrong, that Section 5 of the OGL deals with having sufficient rights to contribute your original material as OGC. Although this may not be the original intent of section 5, it could act as a justification for revoking OGL rights. If you break the GSL agreement, and want to publish your work as OGC under the OGL, you may no longer have the sufficient rights to do so (since you gave them away by signing the GSL agreement). In this case, you would be in violation of the OGL, section 5. Which could them trigger section 13 of the OGL, which states that if you fail to comply with all terms detailed in the sections of the OGL (section 5 in this case), then you have 30 days after becoming aware of the breach to fix the issue, otherwise your OGL license is terminated.

I think the bolded portion of your post is the problem. You don't give away your rights to your creations under the GSL. If I create a new feat called Death Blow and publish it in a 4e supplement, I still have the rights to the creation. I can turn around and publish an OGL supplement with the Death Blow feat in it (assuming I am willing to cut ties with 4e/GSL of course).

This does raise an interesting point of difference between the old OGL and the GSL that I don't believe I've seen mentioned elsewhere. Unlike the old OGL, the concept of open/closed content has been done away with altogether. You will recall that, under the old OGL, your OGL products had to include some percentage of open content. Under the new license, other third-parties (fourth-parties?) cannot simply re-use your material by virtue of you having used the new GSL.

Would it be a breach of the contract to create a setting book to deliberately allow side-stepping restrictions in the GSL?

Like say, if I make my own bullshit fantasy land, which has demons but they're called Daeva, and has fighters but they're called Warriors, and invite anyone to post supplements for this fantasy land with the ability to use stat blocks/reprint rules/etc etc.

Posted By: Sean MusgraveWould it be a breach of the contract to create a setting book to deliberately allow side-stepping restrictions in the GSL?

Like say, if I make my own bullshit fantasy land, which has demons but they're called Daeva, and has fighters but they're called Warriors, and invite anyone to post supplements for this fantasy land with the ability to use stat blocks/reprint rules/etc etc.

I'm not 100% sure I get the question. To address your example, you could certainly create a GSL setting that has demons called Daeva and fighters called Warriors. However, you cannot give people rights that you yourself don't have. So, you can give them rights to reprint your Daeva statblocks, but I don't see how that would side-step the GSL. Also, as a general point, if you find a way to screw WotC, they can just singly terminate your rights to use the license anyway.

A couple of comments--should mention I'm an attorney as well, with some background in IP law (though mostly in terms of software licensing, to which this subject is comparable). All Justin's disclaimers about this not being legal advice apply to anything I say as well. And this is to address a narrow slice of the overall issue that interests me in particular. This is Justin's thread, very kindly offered by him, and I don't want to derail anything.

In open source software, most licenses don't contain a provision that requires license users to update to the most recent license. The Open BSD or Apache licenses, for example, may have several iterations, but none of them require you to upgrade. Hence the confusion in the open source community, as various applications are in play that have different versions of given licenses. In the case of the GPL, you have a fork between GPLv3 (Stallman) and previous versions, such as GPLv2 (Torvald). Commercial licenses, by contrast, almost always contain trigger provisions that let the licensor terminate the license or revoke and reissue. Whether or not such language ever gets used or enforced, it grants enormous power in the IP owner.

The clause that says the 4e license may change at any time, in combination with the requirement that the licensee has the responsibility to keep their licenses current with the latest version seems to add up to a de facto automatically updating license. The interesting question is whether a hard copy released product under version X is somehow subject to updated terms from version X+1. My guess is: Maybe. The automatic trigger that puts all responsibility on the publisher to keep the license terms current might lead to problems. Publisher could put out Book-A in compliance with the license current at the time of publication. Wizards could subsequently publish a new license with changes that put Book-A in violation. If you're in violation of a license, the proper recourse is either (a) pay Wizards some amount of money as compensation, or (b) pull all unsold instances of Book-A from commerce.

Practically speaking, Wizards isn't necessarily going to broadly tar its licensees. But the license does give them the ability to amend it as they see what's coming out of third party publishers. In a practical sense, if they file for an injunction requiring a small press publisher to withdraw product for violating the terms of a license, only the gutsy folks willing to put money up front are going to resist.

One thing, however. I don't believe Wizards can put out a license and then create micro-versions targeting individual publishers. In other words, they can't create a special separate license that makes it harder for Justin in particular to publish his books. They can negotiate a separate agreement with Justin that offers him a separate license, but I don't think they can impose it on him to the exclusion of anyone else. I don't have any source for this assertion other than that I don't think public licenses can be targeted at individuals in the absence of contractual consent by that individual. Maybe I'm wrong, though. Maybe Wizards could put out a license that says, "We don't like Justin and if you're Justin or Justin's company, this license is denied you." Practically speaking, it'd be more trouble than it's worth, aside from the negative PR.

I suspect they will monitor third party product as modify the license to make it narrower if they feel that helps protect their exclusive control of 4e IP.

To chime in on Sean's question.... If you create a product that is all setting and original material, and it references plug-ins from Wizards, I think you're fine. By saying, use the Fighter template for Warriors, etc., I don't see a violation. And "demon" by itself is not a term or concept owned by Wizards. As long as you reference the material from the DnD books accurately and without modification, and keep your original material separate, I don't see a problem.

Justin, slightly related question to what I think Sean was asking.

Say I create a pseudo-MM, a Book of Ghastly Beasts. I release it under the GSL, but I also, say, Creative Commons -- Attribution it, so that other people can reprint my statblocks in their game, with atttribution, which is something they can't do with monsters from the MM. Does that work? Can we create a legal blackmarket in fantasy creature statblocks independent of the MM?

Posted By: HexabolicOne thing, however. I don't believe Wizards can put out a license and then create micro-versions targeting individual publishers. In other words, they can't create a special separate license that makes it harder for Justin in particular to publish his books. They can negotiate a separate agreement with Justin that offers him a separate license, but I don't think they can impose it on him to the exclusion of anyone else. I don't have any source for this assertion other than that I don't think public licenses can be targeted at individuals in the absence of contractual consent by that individual. Maybe I'm wrong, though. Maybe Wizards could put out a license that says, "We don't like Justin and if you're Justin or Justin's company, this license is denied you." Practically speaking, it'd be more trouble than it's worth, aside from the negative PR.

Well, Section 11.1 says "This License and the rights granted hereunder will terminate automatically upon written notice to licensee or upon posting on its website of a termination of the GSL as applied to all licensees." Termination is only otherwise mentioned in the OGL converion (Section 6), but there is nothing stating that such is the only possible reason for termination. So absent any clause that says they cannot terminate the license by written notification to a given licensee, I think they can according to Section 11.1.

Posted By: algi Those are not normal publishing conditions that I can't make a publishin plan, because I don't know, when and how will the contract change wich I signed. This is totally abnormal. I mean in the old OGL (if I read it right) if I accepted its terms, I could use it from that on without being afraid that they will change it at once.

I agree that these are not normal publishing conditions. Actually, this is similar in some ways to the D20 System Trademark License. There WotC also said that they could update the trademark license. However, the D20STL provided a 30 day "cure period" during which the licensee could change their product and sell off existing stock to match the new terms. The GSL specifies that termination applies immediately with no cure period. The effect of termination is explicit from Section 11.3:

Upon termination, Licensee will immediately cease all use of the Licensed Materials and will destroy all inventory and marketing materials in Licensee’s possession bearing the Compatibility Logo. Licensee will remove the Compatibility Logo from all advertising, web sites, and other materials. Licensee will solely bear all costs related to carrying out this provision (in addition to any other provision) of the License. Wizards may, in its sole discretion and upon written agreement between Wizards and Licensee, extend this License for those Licensed Products that otherwise comply with the terms of this License.

That's roughly the same as the D20STL after the cure period -- the licensee would have to destroy non-compliant products. However, that is a big difference.

Licenses aren't the same as contracts. They are grants to use something (property, specified equipment, a particular trade). For example, most contracts aren't revocable at will. Many licenses are. I'm pretty much sure Wizards can't legally force the destruction of inventory, for example, though they can prevent that inventory from being introduced into commerce or released to the public. Licenses are agreements regarding the specific IP being licensed. They can contain some viral provisions, these usually trigger upon specified conditions such as release or distribution of the IP in question. However, from a practical standpoint, Wizards could condition continued 4e licensing for an individual publisher on receiving some kind of proof of the destruction of inventory.

Wizards is making the IP available under the license. Unless they spell out further obligations they are undertaking, that's it.

John, I haven't read through the whole thing. That's a good catch. Wizards can simply notify anyone and restrict on an individual-by-individual basis. Good to know. There's a lot of discretionary language in there.

Practically speaking, this license encourages third-party publishers to send their work to Wizards for pre-vetting to ascertain whether they're violating the license. In tandem with the individual termination powers, this gives Wizards de facto filtering power. If Wizards terminates or declares someone in violation for whatever reason, that person is pretty much stuck.

If I ignored the GSL completely and wanted to create something within the limits of normal copyright law, what could I get away with?
New Classes/Races/Feats? New or modified Game Mechanics? Referencing WotC's Classes/Races/Feats? Referencing WotC's Game Mechanics?
Would it make any difference if it was free or sold?

Thanks,
John,

Posted By: algiHow's that possible that in the second I upload my game to the server of the print, the contract can change? Is that legal? I mean isn't that something like an indecent contract or how do you call it? Those are not normal publishing conditions that I can't make a publishin plan, because I don't know, when and how will the contract change wich I signed. This is totally abnormal. I mean in the old OGL (if I read it right) if I accepted its terms, I could use it from that on without being afraid that they will change it at once. It's like two people would sit down and sign a contract, wich sais that one of the contractees can change anything in the contract and the other contractee have to abide the changes without renegotiating the contract, simply by signing it firsthand. I won't even send him an e-mail or publish the change, the other contractee should regularly check the site where I uploaded it to see, whether I uploaded a new version in that very second the book arrived in press. That's just nonsense.

So my question is: how can this be legal? Is this legal at all? Are there other examples for this kind of things in US contract law?

And thanks for doing this.

It is absolutely legal. There are only a few kinds of contracts that are literally illegal, e.g., indentured servitude. There are a few more that are unenforceable. This varies by state. For example, in Florida, an oral personal guaranty is not enforceable. The part you're missing is the mindset: It's their IP; they don't have to let you use it at all, and they can create virtually any set of rules they want to put up to let you do so. Yes, the OGL was far broader. This is much more comparable to the old d20 STL.

I'm not sure how that creates a black market though.

Justin, I meant in the sense that... Say Green Ronin comes out with a MM-equivalent under the GSL and declares that anyone can reprint these monsters in adventures. Then, third party GSL publishers might start generally using Green Ronin's monsters when building adventures, because they desire the ability to reprint monster stats. Eventually, fewer and fewer folks publish GSL adventures that references the MM, because looking up monsters when you're running an adventure is a royal pain. Can you imagine something like that occurring?

EDIT: I mean "black market" in the sense that it creates a non-WOTC source of basic information for creating D&D adventures, rendering their own source secondary.

Posted By: RskennanMy question is regarding interactive products. If you ignore the GSL completely, is it legal to create a character sheet for Fantasy Grounds, for example, which calculates everything for you?

Your hypothetical is too vague for me to give a real answer. The short answer is: If you elect not to use the GSL, you have to comply with standard copyright law. If your hypothetical character sheet does, you're fine.

Posted By: Jonathan Walton

I'm not sure how that creates a black market though.

Justin, I meant in the sense that... Say Green Ronin comes out with a MM-equivalent under the GSL and declares that anyone can reprint these monsters in adventures. Then, third party GSL publishers might start generally using Green Ronin's monsters when building adventures, because they desire the ability to reprint monster stats. Eventually, fewer and fewer folks publish GSL adventures that references the MM, because looking up monsters when you're running an adventure is a royal pain. Can you imagine something like that occurring?

Gotcha. Yes, I think that would be fine under the GSL. I don't think that is likely to happen. (But, if it were, my best guess would be Necromancer's forthcoming 4e Tome of Horros.)

Posted By: jenskotIf WotC decides to sue you for noncompliance with the terms of the GSL, will you be responsible for paying their attorney's fees for suing you? Section 11.4 of the GSL seems to indicate so:

"11.4 Injunctive Relief. Licensee acknowledges and agrees that noncompliance with the terms of this License may cause irreparable injury to Wizards for which Wizards will not have an adequate remedy at law, and that Wizards will therefore be entitled to apply to a court for extraordinary relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance, without necessity of posting bond or security. The existence of these rights will not preclude Wizards from pursuing any other rights and remedies at law or in equity that Wizards may have, including recovery of damages, and each and every remedy will be cumulative and in addition to every other remedy provided hereunder or available at law or in equity. Licensee will be responsible for all legal costs, including Wizards’ attorneys’ fees, associated with any action required by Wizards to enforce the terms of this License."

If they win the lawsuit, correct. I would add that, if Wizards sued you and you one, you might be able to get an attorneys' fee award against them. In Florida, for example, you could.

Posted By: Justin D. Jacobson
Again, too vague to give a real answer. In some instances, these kinds of things would be fine; in others, not. General copyright law cannot be summarized or boiled down to a few forum posts. To use an apt phrase, I'm not touching this one with a ten-foot pole. Sorry.

I don't think describing the GSL in a void is very productive. IP licenses should, IMO, always be analyzed in the greater context of copyright, trademark and patent legislation.

How do I get out of jury duty?

Justin,

Couldn't you just mention Jury Nullification, and not have to paint yourself a racist / bigot?

Posted By: Justin D. Jacobson

Posted By: Paul Watson

Posted By: Justin D. Jacobson(But, if it were, my best guess would be Necromancer's forthcoming 4e Tome of Horros.)

I don't have a question; I just wanted to mention that Clark from Necromancer hasstatedthat there will be no 4e Tome of Horrors. He believes that if he did so he'd have to stop selling PDFs of 3e version.

Wha? In related news, Blue Devil Games announces they are publishing a 4e Tome of Horrors. ;-)

Where do I pre-order? ;)

Hmmm ... I guess I do have a question: would this be kosher given the current state of the GSL?

Posted By: oliofHow does the GSL interact with other, differently licensed material? Example: I create a periodical fanzine where the different authors retain the rights to their articles. Let's say for issue 1, 3 and 4 I have OGL/3e articles, and in issue 5 I have the first 4e article. Would it be legal to a) continue selling back copies of the former issues, b) back copies of the former issues without the articles in question?

EDIT: To make matters worse, there are articles in this fanzine that are not related to any D&D material. Would I be allowed to publish, let's say, generic descriptions of special abilities, complete games with character creation rules, generic stat blocks that might partially overlap with language used in D&D (without touching their IP)?

By my reading, you simply can't do this, i.e., create a single product that has both OGL/3e and GSL/4e material.

I have an old set of pages about copyright and games at:

http://www.darkshire.net/jhkim/rpg/copyright/

It was last updated several years ago, so it won't have anything on more recent decisions.

Posted By: Justin D. JacobsonGMS, you certainly wouldn't say he could do a Race book that essentially reprinted the race entries from the PHB and just using subtly altered names, e.g., Elph, Teefling, Dracoborn, etc. What if he used the same fonts and color schemes? You see my point, i'm sure.

Absolutely -- hence the qualifier I gave about not using WOTC IP -- which I should have mentioned also includes trade dress (good point, and one that should be specified).


It really does come down to the fact that you shouldn't do anything of this on a lark. Get a lawyer, run an actual business. Don't do this as a hobby thing, because the consequences of getting it wrong have pretty severe effects -- and potentially effects not limited to just you. (To be completely honest, I expect that there will be a flood of amateur GSL products released that completely screw up insofar as adherence to the very-specific terms of the license, and that Hasbro legal will use that as the excuse to rescind the GSL, which WOTC folks are telling me they had to fight to release in the first place.)

Posted By: Justin D. Jacobson

Posted By: Nathan HHow do I get out of jury duty?

That depends on your state too, but a pretty good tactic is to boldly crow about your racial/gender/religious hatred for whatever the defendant happens to be.

Excellent!
Thank you Justin, I can spout off any "ism" with the best of 'em.
What if it's a white dude?
Hopefully he'll have something visible going on that I can funnel my hate toward.
Perhaps a goofy hat?

Posted By: Nathan H
Thank you Justin, I can spout off any "ism" with the best of 'em.
What if it's a white dude?
Hopefully he'll have something visible going on that I funnel my hate toward.
Perhaps a goofy hat?

Just be really aggressive and talk about how you won't send a white man to jail and how the space should be reserved for those criminal _____s and how you're tired of how the law is against the white man now. Or something like that. Basically you want to tell the court that you will acquit or not based entirely on skin colour.

That should get you out of jury duty as well. Though boasting about how you are an advocate and practitioner of jury nullification would probably work as well.

Do both.

Hey, just to clarify my comment about destroying inventory. A license isn't necessarily a contract, though it can be made part of a contract. Copyright law rather than contract law should govern.

Practically speaking, a publisher said to be in violation could opt out of selling 4e material, and could have a fine imposed for the license violation of having sold any 4e material to that point, perhaps less if the license revocation is not completely retroactive (i.e., you've been selling legally for two months and then something changes and Wizards revokes your license or alleges you're in violation). Otherwise, the result would probably be revocation of the license and an injunction to remove the publisher's 4e stock from commerce. If you opt out of the license, you might face fines for the violation, but I do not believe Wizards could force you to destroy your 3e inventory if you pulled the 4e material and thereby removed yourself from the license. By my reading, the only way Wizards can affirmatively force the destruction of 3e stock regardless of the state of your license would be if you signed a separate contract with Wizards agreeing to do so or to incorporate the license terms as part of your contract. The way the courts would probably handle a long-running license violation absent an actual contract would be to require a payment to Wizards commensurate with the amount of monetary damage Wizards alleged, and an injunction against future 4e sales on your part. That fine could be mighty painful--enough that you'd prefer to destroy your 3e stock.

Now all that said, I'm still arguing in the abstract, not having had time to review the GSL in detail.

And as a former criminal defense attorney, I can say you're always safe getting bumped if you comment that one or the other of the attorneys is cute.

Posted By: HexabolicHey, just to clarify my comment about destroying inventory. A license isn't necessarily a contract, though it can be made part of a contract. Copyright law rather than contract law should govern.

I have to disagree on both counts. A license is a contract, it's just a particular type of contract. Can you give me an example of a license that is not a contract? It doesn't take much to make a contract.

Me: "Hey, you, can you watch my bag while I run to the restroom?"
You: "Sure."

Boom, contract. (And a bailment no less.)

Practically speaking, a publisher said to be in violation could opt out of selling 4e material, and could have a fine imposed for the license violation of having sold any 4e material to that point, perhaps less if the license revocation is not completely retroactive (i.e., you've been selling legally for two months and then something changes and Wizards revokes your license or alleges you're in violation). Otherwise, the result would probably be revocation of the license and an injunction to remove the publisher's 4e stock from commerce. If you opt out of the license, you might face fines for the violation, but I do not believe Wizards could force you to destroy your 3e inventory if you pulled the 4e material and thereby removed yourself from the license. By my reading, the only way Wizards can affirmatively force the destruction of 3e stock regardless of the state of your license would be if you signed a separate contract with Wizards agreeing to do so or to incorporate the license terms as part of your contract. The way the courts would probably handle a long-running license violation absent an actual contract would be to require a payment to Wizards commensurate with the amount of monetary damage Wizards alleged, and an injunction against future 4e sales on your part. That fine could be mighty painful--enough that you'd prefer to destroy your 3e stock.

I don't think this is necessarily true. What we're talking about here is the difference between equitable remedies and remedies at law. As I mentioned upthread, in Florida, you would likely be able to sue for specific performance. I don't know the answer under Washington law. My point is, I wouldn't just assume that they could not enforce such a provision.