Thoughts on the GSL

A friend alerted me to the publication of the license that WotC is replacing the OGL with for D&D4e, and I have a couple thoughts about it, this being almost specifically my bag.

To begin, however, the obligatory disclaimer. I am not your lawyer; the following is not intended to be legal advice. If you need legal advice, you need to talk to someone who knows the law and, more importantly, knows the details of your situation. That person cannot be me, because I am not licensed to practice law anywhere, let alone where you live. (And, indeed, I am posting this mostly to get the subject out of my brain so I can focus on making that whole licensing thing happen.) Treating this post as anything more significant than food for thought would be very, very foolish.


First off, an observation. From a craftsmanship point of view, the GSL is vastly superior to the OGL, which was a crap license I would have enjoyed taking apart in court.  (Editor’s Note: ten years of litigation experience later, I now believe the OGL is a crap license that would be tedious and awful to take apart in court.)   I am more impressed with WotC Legal than I used to be.

Second, I’ve seen the “it’s a license, not a contract” shtick that you see in open software circles trotted out with regard to the GSL. I think this is untrue. It might have been true of the OGL (though frankly, the fact that the OGL made a point of establishing offer, acceptance, and consideration (which, for the nonlawyers, are the basic elements of contract formation) makes me doubt this), but the fact that you actually have to send in a Statement of Acceptance suggests to me that WotC intends this to be a contract.

The purpose of open gaming licenses makes this, I think, inevitable. The GPL can afford to characterize itself as a license rather than an agreement between parties because it regulates, for the most part, the literal appropriation of code. When you copy a significant quantity of code written by someone else, you’ve probably infringed copyright unless you have some sort of authorization. Thus, if you want to argue that you never agreed to the GPL and that it doesn’t bind you, that’s fine, but now you have a copyright infringement problem.

Open gaming licenses, conversely, mostly regulate the production of compatible game products, which may not literally copy any text, and which might be argued not even to be derivative in the legal sense. If you want to argue that you are not bound by the OGL, it is less clear — and much more dependent on your particular product — whether you have a copyright infringement problem or not. We have, as far as I can find, no court decisions interpreting the scope of copyright in roleplaying games to guide us. Industry custom adopts a broad interpretation of what “derivative work” means, but that may be a historical accident. If an open gaming license is a contract, however, its terms can be enforced regardless of what copyright law may say.

This, then, brings me to my central observation about the GSL. I’ve seen a fair amount of discussion of the rather narrow range of uses of D&D material authorized under the GSL, and whether WotC actually has the right under copyright law to forbid you from using those phrases and concepts (e.g., “level”) in your own work. This is an interesting question, and I have my own opinions, but I think it’s ultimately the wrong question.

The best way to look at the GSL and the SRD, I think, is that the SRD and its permitted uses is not what you get in the GSL contract. It’s what you give. The GSL, at bottom, looks to me like a promise to limit your use of D&D terminology to a certain set of uses in exchange for the other benefits of the contract. Those benefits are, principally, twofold. First, you get a covenant not to sue — essentially, WotC agrees that if you make D&D supplements in a specific way, they approve, and you have nothing to fear from them. Second, you get a trademark license; you get to tell the world that this thing you’ve made is D&D-compatible. (People always forget about trademark. It’s really a much better way of getting a lot of things done.)

If the SRD seems to offer a narrower range of options, then, than simple fair use might offer you, that doesn’t mean that WotC is screwing its licensees. That narrower range is what you pay for coming in from the cold of legal ambiguity and possible lawsuits.

Originally published on LiveJournal

I take a certain amount of pleasure in my notes

I’m doing my reading for Information Privacy, and I just wrote the sentence “Steve Jackson Games indicates that a law enforcement officer seeking access to unread email would have to contend with the SCA.” (We’re reading the Secret Service case.)

Now, I meant the Stored Communications Act. But I enjoyed the image of the Illuminati BBS servers being guarded by a flock of people with plate mail and rattan swords. They can take our lives, but they’ll never take … OUR EMAIL!

Originally published on LiveJournal

The Awesome Power of Combined Nerdiness

In trademark law, some marks are “inherently distinctive”, meaning that they clearly identify a particular producer’s goods from day one — Kodak film being a classic example. Other marks must acquire distinctiveness through being associated with a particular producer’s goods over time; if I started selling Delicious brand cookies, I couldn’t stop other people from calling their cookies Delicious unless consumers associate the word “Delicious” with my cookies in particular.

Anyway, I’m reading a case wherein Scalia observes that colors can never be inherently distinctive. And I thought to myself, “well, the Colour Out of Space, maybe”. But really, in that case consumers need more protection than trademark law affords them.

Originally published on LiveJournal