WotC's new license problem (for third-party game makers)

[Argonnite]

6.   Effects of Termination
Upon termination, You shall immediately stop all use of the Licensed Articles and will destroy any inventory or marketing material in Your possession bearing the d20 System trademark logos.  You will remove any use of the d20 System trademark logos from your advertising, web site, letterhead, or any other use.  You must instruct any company or individual that You are or become aware of who is in possession of any materials distributed by You bearing the d20 System trademark logos to destroy those materials.  You will solely bear any costs related to carrying out this term of the License.
In Wizards sold discretion, Wizards may allow You to continue to use the License for Licensed Articles which otherwise comply with the terms of the License.

Huh. I'm reading this without context from the rest of the license, but two things jump out:

1) The licensee must only instruct companies to destroy materials, not ensure or otherwise require they do so. No real teeth, there.

2) If I (an individual) bought a d20 product direct from its publisher, and presuming they kept a record of my purchase, they must instruct me to destroy the product.

Interesting.

Walter

Time to start a backyard stash.

If OGL is outlawed, only outlaws will have OGL.

[Psion]

2) If I (an individual) bought a d20 product direct from its publisher, and presuming they kept a record of my purchase, they must instruct me to destroy the product.

Wizards isn't putting end users in the fix of being licensees.

This isn't software. 

[TheTSKoala]

Reading this makes me just think.. "Holy crap.  GG WoTC."  I mean, should it play out as this thread suggests, indy publishers have been suckered in and trapped by a very fore-planning WoTC.  ...now if they could create a decent product to match their ingenious marketing plan... (I won't turn this into a D&D suxx thread.  I promise.  I'm just not impressed.)

[agent oni]

Reading this makes me just think.. "Holy crap.  GG WoTC."  I mean, should it play out as this thread suggests, indy publishers have been suckered in and trapped by a very fore-planning WoTC.  ...now if they could create a decent product to match their ingenious marketing plan... (I won't turn this into a D&D suxx thread.  I promise.  I'm just not impressed.)

I don't believe 3rd party publishers have been suckered at all.  WotC extending the same terms of STL and OGL to their next edition was just wishful thinking.  3rd ed was an experiment for them to see what worked and what didn't.  They were bound to make changes to make the license more favorable to them with the new ed.

The smart 3rd party publishers didn't just ride the d20 coattails, they either made innovations to the core system or they used it as a launch pad to get their other products off the ground (good example of the former is of course Crafty, GR; latter is PrivateerPress.).  Many quickly realized the advantage of OGL over STL.  Whichever way the GSL goes, those with a sucessful OGL product would be smart to retain that product as long as it is profitable for them.

[MugMug]

2) If I (an individual) bought a d20 product direct from its publisher, and presuming they kept a record of my purchase, they must instruct me to destroy the product.

[/quote]

Wizards isn't putting end users in the fix of being licensees.

I should have been more specific. How about I try again.

"If I (an individual) bought a d20 product direct from its d20-licensee publisher, and presuming the d20-licensee publisher kept a record of my purchase, the d20-licensee publisher must instruct me to destroy the product."

Again, this is without the benefit of context. (And, of course, this is not legal advice.)

Walter

[TheAuldGrump]

2) If I (an individual) bought a d20 product direct from its publisher, and presuming they kept a record of my purchase, they must instruct me to destroy the product.

Wizards isn't putting end users in the fix of being licensees.

I should have been more specific. How about I try again.

"If I (an individual) bought a d20 product direct from its d20-licensee publisher, and presuming the d20-licensee publisher kept a record of my purchase, the d20-licensee publisher must instruct me to destroy the product."

Again, this is without the benefit of context. (And, of course, this is not legal advice.)

Walter

No, you have purchased the product, not licensed it. The two are very separate things, and are covered by very separate laws. The licensee has to destroy unsold product still in their possession. This means that any copies that the members of the publishing company own as their personal copies do not need to be destroyed either - and in fact the personal copies can then be sold on E-Bay, Noble Knight, Etc..

The Auld Grump
*EDIT* Image taken from Ask Dr. Eldritch

[samsimilian]

No, you have purchased the product, not licensed it. The two are very separate things, and are covered by very separate laws. The licensee has to destroy unsold product still in their possession. This means that any copies that the members of the publishing company own as their personal copies do not need to be destroyed either - and in fact the personal copies can then be sold on E-Bay, Noble Knight, Etc..

[/quote]

exactly! imagine a law which would enable wizard to destroy your property! personal property is a well protected right in every country and protected from outward intrusions and encroachments.

[MugMug]

No, you have purchased the product, not licensed it. The two are very separate things, and are covered by very separate laws. The licensee has to destroy unsold product still in their possession. This means that any copies that the members of the publishing company own as their personal copies do not need to be destroyed either - and in fact the personal copies can then be sold on E-Bay, Noble Knight, Etc..

Continuing this discussion is pretty silly, especially given I lack enough caring to go read the actual contract, but I find myself unable to stop.

The operative sentence behind my analysis is this:
"You must instruct any company or individual that You are or become aware of who is in possession of any materials distributed by You bearing the d20 System trademark logos to destroy those materials."

So, if I purchased product direct from a d20-licensee, that d20-licensee is therefore "aware [I am] in possession of... materials distributed by [the d20-licensee] bearing the d20 System trademark logo." According to that operative sentence above the d20-licensee would be contractually obligated to "instruct [me]... to destroy those materials."

exactly! imagine a law which would enable wizard to destroy your property! personal property is a well protected right in every country and protected from outward intrusions and encroachments.

We are discussing contractual obligation, not law. The d20-licensee is contractually obligated merely to instruct, not to actually destroy property. Neither they nor WotC can enforce that instruction, making it more amusing than anything else.

Again, not an attorney... out of context... blah, blah.

Walter

[TheAuldGrump]

In this case the terms are used in context of the distribution chain - and, if you look more closely, are on an item by item basis - if Product XXX has its license terminated then you have to destroy it, and give notice to others in the distribution chain (You -> Distributor, Distributor -> Store.) You would not need to destroy product YYY.  As noted in the cartoon above, once the product is in the hands of the consumer the manufacturer's duties end - regardless of the license agreement. It is no longer yours to destroy.

For that matter - the manufacturer has no means to enforce the destruction of the offending materials once it has left his hands - assuming that the distributor purchased the product rather than selling the product under speculation. In other words - if the distributor paid money for the product they do not have to send it back to you, regardless of the license that you may hold with the primary license holder. The license binds you, not them.

On the other hand, if the distributor decides that they would like their money back, thank you very much, you would be bound to give them a refund, presuming either return of the offending item or proof of destruction. (In the case of books this proof often takes the form of the front cover being torn off and returned. Most paperbacks these days have a clause about 'stripped books'.)

I actually do pay attention to license law, though my knowledge base is now woefully obsolete.

Despite claims by a certain ex-TSR employee WotC, to this point, has never required the destruction of product. (People who want to find out who I am talking about can find it pretty quickly via Google. His company is now no more.) They have issued C&D orders, and similar methods.

The Auld Grump

[Krensky]

Well, WotC answered some of the questions people have had about GSL.

The short version is that the "poison pill" is per product line:

Q. Does the so-called "poison pill" non-compete clause apply to ALL OGL, or only D&D-based fantasy? (i.e. what if it's based on d20 Modern, d20 Future, or a non-d20 source?)

A. It’s not a “poison pill.” It’s a conversion clause. The D&D 4E GSL applies to fantasy-based products. The d20 GSL, which will come out at an undetermined point in the near future, will be for non-fantasy genres such as Modern, Future, etc. Publishers will be able to decide on a product line by product line basis which license will work best for them.

Of course, that leaves me wondering how WotC has defined "product line".

[TheAuldGrump]

At a guess, Pathfinder would be a product line, Spycraft would be a product line, etc. So if Paizo came out with Wayfinder as a new line it would not conflict between OGL/D20 and GSL/4e. OGL was an open license, GSL is a royalty free license.

I wonder how the original creators of the OGL license feel about the changes.... Considering that Dancy was predicting that complete games would be coming out under OGL back when it first came out, I do not believe that the current direction of the GSL is what they intended.

The Auld Grump

[Mister Andersen]

I disagree - they structured the OGL in the way they did because they knew that if they didn't WotC could and would screw people over. And there's been a non-trivial number of games that have come out under the terms of the OGL - Pathfinder, Spycraft, Mutants and Masterminds, amongst others. It was always intended that even though D&D would move onto future editions and different licences that 3.0/3.5's core mechanics would be foreever available for people to base games on.

[tenebrae]

WotC's response: http://www.wizards.com/default.asp?x=dnd/4news/20080502

[Crafty_Pat]

WotC's response: http://www.wizards.com/default.asp?x=dnd/4news/20080502

Well that's good to read.

[Number Three]

Some of the telling questions:

Q. Can publishers release new products under both the OGL and 4E GSL?
A. No. Each new product will be either OGL or 4E GSL. If a new product is published under the 4e GSL, it cannot also be published as 3.x product under the OGL; and vice versa.

Q. Do I have to give up my right to publish 3.5 OGL products in order to publish 4e compatible products?
A. No. Publishers are free to print product lines under either the OGL or 4E GSL. We would love to see our industry colleagues convert their entire product offerings to 4E, as we are doing, but we do not expect or require entire companies to convert to the new edition.

Q. Can publishers update their previous publications from older editions to the D&D 4th Edition rules?
A. Yes. Publishers participating in the Dungeons & Dragons 4th Edition GSL will be allowed, and encouraged, to convert their publications from earlier editions to the 4th Edition rules.

Q. I have multiple product lines. If I update one product line to 4th Edition, do they all have to be updated?
A. No. Publishers are able to choose on a product line by product line basis which license will work best.

You will not be able to publish new material in both systems, but you will be able to convert old material.  Best assumption is a cut off date set in the GSL contract as to when content must be exclusive to one or the other.  Also, the brick wall is built between product lines, not just books.  If Green Ronin wants to do Freeport for 4e, then there is never another Freeport book for 3e or True20.

The OGL stands because someone with morals outfoxed the Nazgûl Hasbro law team didn't feel it was important at the time.  They do not say whether this is true for the 4e GSL.

Q. Will there be a different license for other lines, such as d20 Modern?
A. The d20 GSL will allow for other genres of roleplaying games.

Q. Why are there two different licenses?
A. The D&D 4e GSL is specific to the Dungeons & Dragons brand. The d20 GSL allows for non-fantasy genres. Both licenses tie to the 4th edition rule set.

The 4e GSL is more strictly worded to support D&D than the old STL.  My guess would be that you could do a Tolkein-esque fantasy setting, but not the massive genre hacks that allowed Swashbuckling Adventures (a.k.a 7th Sea shoehorned into D&D), Dragonstar, or 1e Spycraft.  You will have to wait for Modern 2.0 4e to create the kind of tricked out d20 seen under the OGL.  Take a moment to notice that 'upgrading' is only mentioned for the "Dungeons & Dragons 4th Edition GSL".  Feel free to read between the lines, if you like.