1.0a or bust, because it already has the provisions necessary and this is a non issue, because the market will not make them successful to begin wtih.
Except Bad PR and controversy tend to have the opposite effect too, increasing sales. D&D benefited greatly from this during the satanic panic. Regardless of how the market reacts, it still taints the brand.
For the hate speech provision, here's a couple of options:
1) They could use a "general public" language standard like Paizo uses in its Pathfinder Compatibility License, which states: "You agree to not use this permission for material that the general public would classify as "adult content," offensive, or inappropriate for minors, and you agree that such use would irreparably harm Paizo." This would give them the ability to keep up with changing times/culture but apply a stricter standard to anyone/anything they want to declare to be in violation.
2) They could remove the "you can't sue us" provision from 6f (the "no jury trial"/arbitration clause in 9g is enough of a finger on the scale to give them reasonable assurance of winning a morality challenge.)
3) They could do both General Public and allow suits (settled in arbitration.).
Paizo's is overly general. Basically it allows them to block whatever they feel like as long as they can fit it into one of two underfied areas (Offensive has never had a good legal definition beyond Justice's Stewart's "I know it when I see it" pornography definition and "irreparably harm" is the same). But they are ~$12M revenue without the base of D&D so it is overlooked. But if WoTC had written that before Paizo, the same people would have screamed.
And basically ever business does arbitration. Jury trials are expensive, long and all sides have a huge amount of appeal rights. Winners rarely see the money they thought they were awarded as so many are overturned. Look at your own employment agreements/handbooks. Outside of certain regulations explicitly exempted by law, it most likely says arbitration and/or specifies the state the charge can be brought. In fact, look at all your product purchases - they are the same. Arbitration is, in fact, preferable for both sides. Do you really want to fight for 7 years to, maybe, get something then.. while incurring costs and liabilities around the case?
For the hate speech provision, here's a couple of options:
1) They could use a "general public" language standard like Paizo uses in its Pathfinder Compatibility License, which states: "You agree to not use this permission for material that the general public would classify as "adult content," offensive, or inappropriate for minors, and you agree that such use would irreparably harm Paizo." This would give them the ability to keep up with changing times/culture but apply a stricter standard to anyone/anything they want to declare to be in violation.
2) They could remove the "you can't sue us" provision from 6f (the "no jury trial"/arbitration clause in 9g is enough of a finger on the scale to give them reasonable assurance of winning a morality challenge.)
3) They could do both General Public and allow suits (settled in arbitration.).
Paizo's is overly general. Basically it allows them to block whatever they feel like as long as they can fit it into one of two underfied areas (Offensive has never had a good legal definition beyond Justice's Stewart's "I know it when I see it" pornography definition and "irreparably harm" is the same). But they are ~$12M revenue without the base of D&D so it is overlooked. But if WoTC had written that before Paizo, the same people would have screamed.
And basically ever business does arbitration. Jury trials are expensive, long and all sides have a huge amount of appeal rights. Winners rarely see the money they thought they were awarded as so many are overturned. Look at your own employment agreements/handbooks. Outside of certain regulations explicitly exempted by law, it most likely says arbitration and/or specifies the state the charge can be brought. In fact, look at all your product purchases - they are the same. Arbitration is, in fact, preferable for both sides. Do you really want to fight for 7 years to, maybe, get something then.. while incurring costs and liabilities around the case?
I don't think it's possible to capture every possible moral objection in a legal clause that all the community/customers would agree on to be offensive. Trying to form such a thing by committee would be a nightmare. Again, wizards is not preventing you from publishing whatever you like using your own ideas. They are saying if you choose to use their IP, they reserve the right to object, in court if necessary, your usage. The clause in my opinion just helps prove that the 3PP was aware of this possibility by agreeing to be bound by the OGL.
In addition to the points made in the original post. I've gone through the document and made the following observations. Rather than create another thread, I'll post here what I submitted as part of my playtest response for the first question only. I am not a lawyer but do have experience reading technical specifications. These are all things my untrained eye saw.
Notice of Deauthorization of 1.0a : ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: This cannot be done given the license 1.0a terms and I completely reject this in any form.
VTT policy: UNACCEPTABLE: I reject the VTT policy as it is intentionally vague and misleading. The distinguishing differences between a game and a VTT are not automations but are in autonomous actions. With the definition wrong it is wholly invalid.
CC-BY-4.0: GOOD: Although unnecessary, explicitly acknowledging game mechanics cannot be copyrighted via this open license ensures worldwide consistency.
Section 1 (a)(i): UNACCEPTABLE: This provision allows for the SRD to be updated to exclude existing content. To make this acceptable you must 1) Tie this license to a specific version of the SRD and 2) specify that specific version exists in perpetuity and cannot be changed without requiring a new OGL to be issued to point to that new version.
Section 1(b): UNACCEPTABLE: This is intentionally vague. Similar to the SRD, the VTT policy must have an explicit version number and it likewise must be explicitly stated to be unchangeable without issuing a new version of this license. Otherwise the VTT policy could prevent anything - including the use of character sheets or even the currently listed as acceptable damage calculation.
Section 2: ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: The redefinitions of legal terms (perpetual, non-exclusive, and irrevocable) are a SHADY attempt to change the meaning. This is willfully misleading and absolutely appalling attempt to obfuscate the intention, especially coupled with 9(h) terms and 9(d). This is not the legal definition of irrevocable and provides a transparent attempt to make this less revocable that 1.0a (which is in legal terms IRREVOCABLE)
Section 3: UNACCEPTABLE: This clause is massively one-sided and places the burden of proof of copyright on the third party. This is in stark contrast to section 7 which places no burden of proof on Wizards. Coupled together, this provides an ironclad license back provision as Wizards can copy material and then terminate the source material.
Section 3(a): UNACCEPTABLE: Injunctive relief is allowed under Washington State law when copyright infringement is willful. This limits reasonable requests that the legal system may provide as an impartial arbitrator.
Section 3(b): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: This is requiring a extreme voluntary limitation of creators rights under the copyright laws. No one should ever accept this clause under any circumstances.
Section 5(a): GOOD - the badge can substitute for the full printing of the license.
Section 5(a): UNACCEPTABLE BUT FIXABLE: the 2 options must be listed as sub clauses 1 and 2 to provide more specificity to 7(a)
Section 5(b): ACCEPTABLE - this provides creators more flexibility on how they license their content, however it fragments the concept of open source licenses as parts can be open and closed. OGL 1.0a allowed authors to exclude sections (as Wizards did) which provides sufficient protection for copyright and trademarked material.
Section 6(f): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: This section is both A) intentionally vague, B) one sided, and C) arbitrary and provides no recourse and D) overly broad
A) As written, "hateful" could mean anything - including a quest which has one group kill another group. In the DnD Fantasy universe Humans killing Goblins is an acceptable concept of Good vs Evil, but in a court of law that could be construed as advocating murdering based on the physical appearance or culture of the other group.
B) This clause additionally is one sided as the controversy with Starjammer points to as, by Wizards admission, contained hateful content.
C) Worse of all, this can be enforced in a completely arbitrary manner without any recourse. As stated in my (A) argument, it is impossible to have fantasy combat without potentially falling into a "hateful" category. Additionally, it provides no room for allegories, analogies, or intentionally morally ambiguous scenarios.
D) All terms are overly broad and provide any excuse needed for Wizards to eliminate competition. The work "illegal" alone is sufficient as it does not specify where that content could be considered illegal and can restrict content that is made and sold in a locale where the content is legal if it is illegal anywhere or at the least within the state of Washington (which is so vague it could be interpreted either way).
Section 7(a): UNACCEPTABLE BUT FIXABLE: The sections that can be changed must be made much more narrow in scope. This section will be acceptable if Section 5(a) is specified and the language language reflects that only the methods of attribution (ideally sub clauses 1) or 2) as recommended above) can be modified. Reference to section 9(a) must also be made much more explicit that the method of the notice might change. Anyplace that can change (including the associated SRD and VTT must not be allowed to change beyond the minimal requirements carefully spelled out here).
Section 7(b)(i): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: One sided and arbitrary. Whatever language here must be reciprocal with Section 3 by providing identical language. This does not forgo the possibility of DMCA take down requests and thus does not limit Wizards ability to deal with piracy.
Section 7(b)(ii): UNACCEPTABLE BUT FIXABLE: One sided and arbitrary. Coupled with Section 6(b) this provides unlimited power to remove competition and prevent 3rd party content. This can be fixed by correcting 6(f) and other sections pointed out as problematic. OGL 1.0a provides a good example to follow. Actually, just use that as it forgoes the legal deception used in 1.2.
Section 9(a): UNACCEPTABLE BUT FIXABLE: This section must be split into sub sections with each method of contacting listed. The section itself must specify both public notification must be accessible freely and without subscription, cost, or restrictions. Without this, it would be possible to place this notice behind a paywall and effectively charge royalties. (I am abundantly cautious because of the bad faith the "draft" OGL 1.1 showed and the obfuscation demonstrated in the draft 1.2 language).
Section 9(b): UNACCEPTABLE: This might be a backdoor way to limit constitutional rights as written. It is unclear what "not relied on anything that is not expressly part of this license" means and it could be legal trickery designed to forgo copyright protections (section 3), accept intentionally misleading redefinitions like "irrevocability" (section 2), or constitutional protections like trial by jury (section 9g). These are obvious examples, but are likely a small subset of the intention behind this language.
Section 9(c): ACCEPTABLE BUT CONCERNING: This allows for reasonable discretion. However, I am concerned that 6(f) could therefore be used as leverage in negotiation of license which would allow those paying royalties to publish "hateful" content that was deemed as "unacceptable" under the 1.2 OGL.
Section 9(d): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: Section 9(g) is likely unenforceable which means this OGL is non-binding for Wizards. There are countless other possible areas of concern and should only one be deemed unenforceable this license can be fully revoked. Considering the legal trickery used to wrongly justify 1.0a becoming "un authorized", I have zero faith this cannot be abused. An example here is by changing 5(a) in a way that cannot be enforced (Arbitrary example, you must publish with a specific badge but that badge isn't available).
Section 9(e): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: 1) Limits litigation to Washington state and to a locale that Wizards is located. Should Wizards move out of Washington this becomes unenforceable. 2) Unacceptable limitation of class or collective disputes. (Even if class is excluded, which it shouldn't be, they could sue each member of a company separately for non compliance using the term "collective")
Section 9(g): ABSOLUTE DEAL BREAKER - WHOLLY UNACCEPTABLE: Unenforceable restriction of constitutional rights of trial by Jury that guarentees 9(d) can be invoked at will.
Section 9(h): ACCEPTABLE BUT VERY CONCERNING: This language is clearly meant as a shield for the trickery seen in Section 2 and elsewhere. The language here is not problematic but the fact it is included makes it clear there is a reason why council is required.
Rollback Post to RevisionRollBack
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Except Bad PR and controversy tend to have the opposite effect too, increasing sales. D&D benefited greatly from this during the satanic panic. Regardless of how the market reacts, it still taints the brand.
Paizo's is overly general. Basically it allows them to block whatever they feel like as long as they can fit it into one of two underfied areas (Offensive has never had a good legal definition beyond Justice's Stewart's "I know it when I see it" pornography definition and "irreparably harm" is the same).
But they are ~$12M revenue without the base of D&D so it is overlooked. But if WoTC had written that before Paizo, the same people would have screamed.
And basically ever business does arbitration. Jury trials are expensive, long and all sides have a huge amount of appeal rights. Winners rarely see the money they thought they were awarded as so many are overturned. Look at your own employment agreements/handbooks. Outside of certain regulations explicitly exempted by law, it most likely says arbitration and/or specifies the state the charge can be brought. In fact, look at all your product purchases - they are the same. Arbitration is, in fact, preferable for both sides. Do you really want to fight for 7 years to, maybe, get something then.. while incurring costs and liabilities around the case?
I don't think it's possible to capture every possible moral objection in a legal clause that all the community/customers would agree on to be offensive. Trying to form such a thing by committee would be a nightmare. Again, wizards is not preventing you from publishing whatever you like using your own ideas. They are saying if you choose to use their IP, they reserve the right to object, in court if necessary, your usage. The clause in my opinion just helps prove that the 3PP was aware of this possibility by agreeing to be bound by the OGL.
In addition to the points made in the original post. I've gone through the document and made the following observations. Rather than create another thread, I'll post here what I submitted as part of my playtest response for the first question only. I am not a lawyer but do have experience reading technical specifications. These are all things my untrained eye saw.