Wednesday, January 20, 2016

Deconstructing the new 5E OGL into Plain English

So, Wizards of the Coast has made an Open Gaming License for 5E available.  I don’t write a lot about Wizards or D&D products, but I do like to write about the intersection of roleplaying games and the law.  (Well, let’s be honest, I haven’t written about much of anything lately, but the spirit moved me).  I’ve even discussed the copyright status of the old OGL before.  EN World has already done a bang up job identifying what the overall terms like SRD, OGL, etc. mean, but I wanted to do something a little more in depth.  I wanted to deconstruct the Open Gaming License and put it into plain English for you.  Before I do so, a few caveats:

1) I’m not a lawyer.  I’m a damn good law student, and expect to be a lawyer one day, but I’m not now.  Even if I were a layer, I’m not YOUR lawyer.  So, while there’s some legal knowledge here, I’m certainly not practicing law and you shouldn’t rely on this as legal counsel before taking action.  Use a real lawyer or wait about nine months and then call me to see if I stand by this.  I probably won’t agree to be your lawyer as my specialty lies in Administrative/Regulatory and Intellectual Property law, rather than Contracts, though I did quite well in both of my Contracts classes.

2) Just printing the OGL is arguably a copyright violation, even though the license itself expects the user/licensee to reprint it.  If NOT a licensee though, so it’s iffy as to whether or not my copying it is a copyright violation.  I’m falling back on the fact that even if it would be a copyright violation, I’m standing pretty well in the center of fair use based on the four factors plus the magical fifth factor.  What’s the magical fifth factor?  I’m educated and make enough that I’m not afraid to hire a lawyer to fight an infringement case but not wealthy enough to make suing me for damages worthwhile for WotC/Hasbro.  

3) That said, I’d consider any cease and desist letter I received and make a decision about removing the post if I thought I actually was in violation based on what was sent to me.  In fact, on balance, this is a pretty content-creator friendly license.  My heavy criticisms come in early, but overall the terms are very balanced for both parties and even include protections for previous creators, which was a nice touch.

Without further ado, my deconstruction of the new OGL:

What it Says
What it Means
The terms of the Open Gaming License Version 1.0a are as follows:


This just officially names the document.  It doesn’t really mean anything.
The following text is the property of Wizards of the Coast, Inc. and is Copyright 2000 Wizards of the Coast, Inc ("Wizards"). All Rights Reserved.

This is WotC claiming its own copyright in the text of the OGL.  There are some possibilities of your admissions below, but, technically, the OGL hasn’t started yet…

By agreeing to the use of this license, you agree that WotC holds a copyright in the text of the OGL.  You’re essentially pre-admitting that they hold the copyright to the text and agreeing that you can’t use the text in any way that they haven’t approved. 

You are waiving your right to argue that portions of the text are not subject to copyright at all.  For example, there’s a pretty strong argument that the first section of the OGL (“1. Definitions:”) is so generic that it’s not subject to copyright.  By accepting the license you agree that it is subject to copyright.  That doesn’t mean that it is, it just means that you can’t challenge it.

You are not explicitly giving up your fair use rights to use the text, but by agreeing to use the OGL, in any future litigation, the character and purpose prong of your use would weigh heavily against you.

1. Definitions:


Why is this so important?  Because words mean whatever you define them to mean in a contract.  If you define “Butterflies” as “ninjas that jump out of bottles and chop you up hard,” then that is what butterflies means.  No pretty flying bugs for you, just angry ninjas.  Well, not necessarily angry.  Why not?  Because the contract didn’t define the ninjas as being angry, just embattled and desirous of chopping you up hard.

Also, be careful, sometimes a definition references another defined term.  When that happens, the (see “Contributors”, below)

(a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;
See—I told you this stuff would get complicated!  The very first term references another defined term in it.  To understand who is a “contributor,” you have to understand what “Open Game Content” is.  So, you might want to scoot on down there and see what it is before you figure this one out. 

Back?  Okay…here we go…

Once you know what “Open Game Content” is (and, if you read below, you know that’s very much open to interpretation), “Contributors” becomes a little more obvious.  A Contributor is someone that created “Open Game Content.”  WotC likely means Contributors are anyone that made anything that’s part of the SRD after the text of the Open Game License, but that’s not what they said when they defined Open Game Content.

Basically, the Contributors are: Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, Steve Townshend, E. Gary Gygax and Dave Arneson.

As other products are added to the Open Game Content, those products’ authors will become Contributors as well.

(b)"Derivative Material" means copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted;
This is tough, because the OGL doesn’t define an “existing work.”  Without that, it’s tough to determine what you can use as a base work.  If the term isn’t defined in the contract, you default to the plain meaning of the term in the contract.  Depending where a suit related to the license is filed, that could be a strict dictionary definition of “existing” and “work” or an attempt to divine what the two parties that made the contract intended the phrase to mean.  Either way, this seems like a very likely area where litigation could arise.

WotC might actually intend this to be very vague.  That lets them claim that most anything could be “derivative material.”  This cuts both ways.  On one hand, in copyright law, derivative works are defined extremely broadly.  On the other hand, some states’ contract law have special tenets for contracts where one party (WotC) wields vastly superior bargaining power over the other party (the licensee, aka You) and construe vague terms in the contract against the more powerful party?  You can thank the banks and insurance companies for this—rare—consumer-friendly development.

(c) "Distribute" means to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;
This is likely overkill.  “Distribute”’s dictionary meaning and plain meaning are unlikely to be sources of conflict between the parties.  Additionally, this definition for “Distribute” tracks closely with the Copyright Act’s definition for “publication.”  That’s almost assuredly not an accident, but for the same reason it’s likely overkill.

(d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.
PET PEEVE ALERT!  If you’re coming to this section immediately from the definition of “Contributors,” above, because it had the term “Open Game Content” within its definition, take a very close looks at this definition.  What do you see?  The definition for “Open Game Content” has the term “Contributor” used within it.  That means no reader can really understand either term without reference to the other.  That’s not fatal to either term as used in the contract, but it is sloppy drafting.

This is the part of the contract where you start trading away your rights in exchange for rights or other benefits from the other party (WotC in this case).  Let’s break this one down…

The “game mechanic” including the “methods, procedures, processes, and routines” are the exact portions of any game that are not subject to copyright.  You can bet that somewhere down in the agreement that you will have to promise to treat “Open Game Content” as if it were subject to copyright by WotC.

What about “to the extent such content does not embody the Product Identity and is an enhancement over the prior art  and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity”?  Well, and is interpreted as being conjunctive, so, to be Open Game Content, something needs to check ALL the following boxes:
·       It’s a game mechanic or similar material;
·       It’s NOT Product Identity;
·       It’s an enhancement over the prior art (no idea what that means.  Maybe it means that it’s somehow improvement over a previous edition of the game?  Could maybe figure it out with some research, but this is a blog post, not a brief.);
·       The Contributor (WotC or anyone with a trademark or copyright interest in the intellectual property underlying what’s in the SRD) clearly identify it as Open Game Content (basically by putting it in the SRD);
·       It’s work covered by this License;
o   (License shouldn’t be capitalized here—they never bothered to define it, though it’s pretty obvious they mean “this license you are reading right here.”
·       It’s NOT Product Identity (again)

That’s some sloppy, sloppy drafting.  I suspect that what WotC wants this to mean is that Open Game Content is comprised of game mechanics and related material that they (or their predecessors in interest, which is a fancy legal term for the people that owned the TSR/D&D/AD&D/etc. intellectual property before them) developed and that doesn’t otherwise conflict with the terms of the Open Game License.  But, no matter what, Product Identity can NEVER be Open Game Content.  Unfortunately, that’s not what they wrote.

This one is definitely open to interpretation.  Not good, since this is THE central operative term of the license.

It would have been easier to indicate that Open Game Content is “anything contained in Annex 1 of this agreement, which is posted online at [URL linking to the SRD].”

(e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;
This one is also torturously drafted.  Trademark courts frequently disagree about what is and is not product identity (which is a subset of trade dress and trademark).  But, by agreeing to the license, you’ve agreed not to use any of the things listed in the “Product Identity” definition in your work.

I don’t like this definition either.  It’s broad and self-contradictory.  Does it mean that you can’t use the specific things that WotC has identified as Product Identity explicitly?  Or does it mean that you can’t use any of these things and WotC’s list of Product Identity is merely a helpful tool to help you determine what is and isn’t covered here?

If it means only the list of things that WotC has explicitly designated as Product Identity, this definition is overly long and extraneous.  If WotC’s Product Identity list is merely an aid, this is self-contradictory because there are some things that a licensee would almost have to be able to use, like:
·       Representations of thematic elements or concepts;
·       Names of spells, enchantments, and special abilities;
·       Creatures;
·       Equipment; and
·       Magical or supernatural abilities or effects.

I know; I know!  They CYAed with “specifically excludes the Open Game Content.”  This is a mess!

(f) "Trademark" means the logos, names, mark, sign, motto, designs that are used by a Contributor to identify itself or its products or the associated products contributed to the Open Game License by the Contributor
Argh!  This could have been encapsulated with a term like trade dress which is (shocker!) included in the definition of Product Identity.  In fact, going this route would have made for a much simpler and more intelligible agreement if WotC had adopted a less byzantine definition of Product Identity.

(g) "Use", "Used" or "Using" means to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content.
This definition is straightforward and, like “Distribute”, tracks pretty closely to copyright jurisprudence.  This license is going to govern how you can “use, Distribute [referring to the way “Distribute” is defined above], copy, edit, format, modify, translate and [should be “or”] otherwise” create 5E stuff.

(h) "You" or "Your" means the licensee in terms of this agreement.

This means “you”.

2. The License: This License applies to any Open Game Content that contains a notice indicating that the Open Game Content may only be Used under and in terms of this License. You must affix such a notice to any Open Game Content that you Use. No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.

This places requirements on you, the licensee:
1) You will follow the license’s terms when you make Use of Open Game Content;
2) You will put in a page at the end of your Use that says it uses Open Game Content

It also places some requirements on you AND WotC:
1) The License cannot be modified except in ways the license says it can be modified.
·       See #9 below.  That gives WotC the right to change/update the license at any time, BUT (and this is a big “but”) you have the option of using any version of the license that’s ever been published.  This is a huge concession to you, licensee!
2) Neither you nor WotC can attach different rules for using Open Game Content, so long as it’s Used under this license.
·       This doesn’t preclude you and WotC from developing your own, separate license.  In fact, if you become a BFD third-party publisher, you might end up with your own license.  That’s likely what happened for Kobold Press and Green Ronin Games when they created their content for WotC.

3.Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.

Okay, this is in fact total BS.  What they mean here is “If you behave in a way consistent with this license, it applies to you.”  They can’t say “if you use 5E content, you’re governed by this license.”  They can’t do that for the same reason that I can’t say, “If you sneeze on me, you’ve agreed to paint my house for free.”  There are multiple ways to accept a contract, but you have to know that you are accepting the contract.  So, you’ve got to have an idea that you agreed to the license. 

Normally, we indicate agreement by signing a contract, but that would be unwieldy here.  So, instead, WotC is saying, “By acting as if you’ve read this license and adhering to its terms, we understand that you have read the license and agree to its terms.”  Does that mean that if you start posting/distributing 5E material (OGC or not) that you’ve agreed to the license?  NO.  But, it DOES mean that if you start acting like you’ve agreed to the license, a court will likely interpret that you have agreed to the license.

4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, nonexclusive license with the exact terms of this License to Use, the Open Game Content.

Consideration is just a fancy way of saying that a contract has to have give and take on both sides.  Consideration is what each side gives away as a part of the contract/deal:

You, the licensee, give away: All the rights that you’ve agreed not to invoke in court in the case of future litigation; anything you’ve expressly promised not to do; the option to NOT do something required of you under this license.

WotC, the licensor, gives away: The right to charge your royalties for the use of Open Gaming Content, the right to sue you for copyright and/or trademark infringement for uses that adhere to the terms of this license.

Both sides have given away something of value, so there’s likely valid consideration here.

5.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.

If you make use of the license, you’re representing that you created the material that rides on the license or the person that did has sold (or…you guessed it…licensed!) her/his rights in the creation to you.
6.Notice of License Copyright: You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder's name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute.

You agree to list every source you’ve used in developing your content.  Essentially, you agree to add the text of Section 15 at the end of your licensed work.  To the extent that you use other stuff that might later be made available as Open Game Content, you’ll have to add references to that in your Section 15 as well.
7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.

You’re making a few promises here:
1) You won’t use anything that WotC has identified as Product Identity in the definitions section;
2) You won’t expressly state that your product is compatible with 5E, unless you get a different agreement with WotC that says you can;
3) You can’t use any WotC trademark to indicate that your product is compatible with 5E; and
4) You agree that if you do somehow use some Product Identity in your publication, you will not challenge WotC’s rights that WotC actually owns it.
8. Identification: If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.

This is pretty obvious.  The whole idea behind the OGL is that you get to attach your creative stuff to WotC’s game mechanics.  You are agreeing that your product will make it clear what portions are your creative endeavors and which are WotC’s Open Game Content, and free for everyone to use.

This is actually hugely advantageous to you, because it means that you can pretty clearly designate the items (not Open Game Content) that YOU intend to own.  That intellectual property is NOT owned or in any way encumbered by WotC.  It’s ALL yours!
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.

WotC can change the license at any time without notice to you.  Unlike creepy other licenses, which often say that the licensor can change the terms on its own just by notifying you that it’s changing, WotC has agreed that you can always use this version OR any other version that they happen to make available.  This is a big concession from them.  Be happy!

10. Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute.

Another obvious one—if you make a product that uses this license, you’ve got to put a copy of the license in it.  Or distribute it with it—as written, you could slip license sheets in the products you produce.  So long as you give a copy of the license to someone when they get the product from you, you’re good to go.

11. Use of Contributor Credits: You may not market or advertise the Open Game Content using the name of any Contributor unless You have written permission from the Contributor to do so.

This is to stop you from making outrageous claims.  Section 15 lists Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, Steve Townshend, E. Gary Gygax and Dave Arneson as the authors or other creators of the Open Game Content. 

So, theoretically, if you include Open Game Content in your product, you are using their work.  If their work is in your product, they are sort of authors, aren’t they?  NO.  THEY AREN’T. 

This provision expressly says that you can’t claim any of them as authors of your work without their permission—in writing.  It would be really uncool to do that, so don’t.  The same applies for other Contributors who are added as authors of Open Game Content.  You wouldn’t want someone doing that to you, and this says you can’t do that to them.

12. Inability to Comply: If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Open Game Content due to statute, judicial order, or governmental regulation then You may not Use any Open Game Material so affected.

Basically, this is a reservation of rights.  This says that if for some reason the law says that you’d need to use the Open Game Content differently than this license says that you can, you agree that you just can’t use it at all. 

This is basically an escape clause in case someone does challenge the license in court and it’s declared void.  That could actually make the agreement void not just for the guy that went to court, but for everyone!

Under this provision, you agree that if that happens (or similar happens because of Congress or a government agency), you give the rights to use the content back to WotC as if this agreement never happened.

Using “Open Game Material” rather than “Open Game Content” here was a bad move—they are intellectually the same thing, but legally, maybe not.  If they were the same, a court would ask, why do they have different names.  This raises some red flags!

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.

This means that if WotC tells you that you are in violation of the license, you’ve got 30 days to fix your violation.  But, if you’d licensed your non-Open Game Content to someone else, that license would survive.  Here’s an example:

Under the license, you create a whole new 5E campaign setting.  It becomes wildly popular and another publisher wants to write adventures set in your setting!  You make a deal with them that allows them to publish adventures set in your campaign setting and that piggy back off of your construction of the 5E rules that are Open Game Content in exchange for giving you $1.00 for every adventure they sell.  If WotC invokes the termination provision, your license with WotC falls and you can’t create more material.  But, the license you gave to your adventure-writing friends will survive.  (It will definitely survive for your friends use, whether they still have to pay you is arguable, though likely).

14. Reformation: If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

This is pretty impressive.  Normally, contracts say “If any part of this contract is deemed invalid, all the other parts that can still be enforced are enforceable.”  This instead says “If any part of this license is deemed invalid, we automatically agree to change it—but only just enough that it becomes valid.”  This is actually pretty impressive lawyering—if this is legal.  It should be, but this is the sort of creative lawyering that sometimes gets frowned upon.

15. COPYRIGHT NOTICE Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc.

System Reference Document 5.0 Copyright 2016, Wizards of the Coast, Inc.; Authors Mike Mearls, Jeremy Crawford, Chris Perkins, Rodney Thompson, Peter Lee, James Wyatt, Robert J. Schwalb, Bruce R. Cordell, Chris Sims, and Steve Townshend, based on original material by E. Gary Gygax and Dave Arneson.

You’ve agreed in Sections 6, 8, 10, & 11 to use this text (and to identify any other Copyrighted Open Game Content-using material you relied upon) to identify the source of the 5E compatible material you are using.
This is to indicate that the license is done.

Just for shits and giggles, here’s what WotC identifies as explicitly being its Product Identity:

The following items are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content: Dungeons & Dragons, D&D, Player’s Handbook, Dungeon Master, Monster Manual, d20 System, Wizards of the Coast, d20 (when used as a trademark), Forgotten Realms, Faerûn, proper names (including those used in the names of spells or items), places, Underdark, Red Wizard of Thay, the City of Union, Heroic Domains of Ysgard, EverChanging Chaos of Limbo, Windswept Depths of Pandemonium, Infinite Layers of the Abyss, Tarterian Depths of Carceri, Gray Waste of Hades, Bleak Eternity of Gehenna, Nine Hells of Baator, Infernal Battlefield of Acheron, Clockwork Nirvana of Mechanus, Peaceable Kingdoms of Arcadia, Seven Mounting Heavens of Celestia, Twin Paradises of Bytopia, Blessed Fields of Elysium, Wilderness of the Beastlands, Olympian Glades of Arborea, Concordant Domain of the Outlands, Sigil, Lady of Pain, Book of Exalted Deeds, Book of Vile Darkness, beholder, gauth, carrion crawler, tanar’ri, baatezu, displacer beast, githyanki, githzerai, mind flayer, illithid, umber hulk, yuan-ti.