Wizards’ GSL and Restraint of Trade

[bryant]

This is the bit where yet another uninformed non-lawyer spouts off. Don’t say I didn’t warn you.

Wizards has released a license for third parties who want to publish 4e compatible work. It’s much more restrictive than the analogous license for 3e, which is Wizard’s right. One of the interesting sections is section 6, reproduced in full down below, but which in short says that once you publish a work using the new license, you cannot publish an OGL version of that work or of any works in the same product line.

I.e., Green Ronin has this popular and successful Freeport product line. They’ve published a generic book that describes Freeport, and they plan to publish system-specific books for a number of systems which contain stats and mechanics. So far they’ve done three of those; one for Savage Worlds, one for True20, and one for D20. The latter two are OGL products.

If Green Ronin wanted to do a 4e system book for Freeport, they could. But they’d have to stop publishing the True20 and D20 system books. And they’re not allowed, by the terms of the license, to go back and republish those even if they stop publishing the 4e book.

Ooof.

Now the uninformed question: does this constitute restraint of trade? (Oh, god, linking to Wikipedia in relation to legal questions. I’m going to hell. WINAL, as they say.) I note that Wikipedia claims that restraint of trade is generally applied to post-employment clauses in employment contracts and conditions on sale of business. The former is why it’s hard to enforce non-competes in California employment contracts, for example.

So probably not; but it’s an interesting question. My instinct is that Wizards would argue that the clause acts to protect their interest in their logo and brand — another clause sets standards of quality for licensed material, and allowing a third party to publish material in the same product line which does not fall under those quality standards perhaps risks brand dilution.

But yeah, not a lawyer.

6. 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 contentsof 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.

Originally published at Imaginary Vestibule.

Comments

[head58.livejournal.com]

So not a lawyer and didn't really even read/understand section 6 there, but it doesn't stop them from the Savage Worlds version or any other third-party adaptation that is not specifically OGL, right?

Which means that I wonder if this will encourage a bunch of publishers to get together and make up their own OGL (I know a lot of folks already do this but I'm talking one centralized coordinated OGL) and say "okay, so from here on out we're putting out Freeport 4e and Freeport XYZ". And the XYZ license becomes something of a competition to WotC's systems. I mean, hey, a guy can dream right?

It seems to me that this section specifically targeted at screwing anybody who wants to release a 4e and a Pathfinder edition of the same book. if I had to guess, I'd say that's their target.

At the end of the day, this sounds to me like WotC shooting themselves in the foot. Was their business somehow *significantly* harmed by the existence of the True20 and d20 stuff in the past? Why create bad feelings and hostility this way now?

[bruceb.livejournal.com]

Not a lawyer either, obviously, but...I have a feeling that the OGL and the material in the d20 SRD also coming from WotC would skew court rulings in their favor.

[kodi]

Hm. It would be a substantially different question if they were preventing the use of someone else's license, I think. This is really just "you can drive my Camaro or my Volvo, but you have to pick one." I have a hard time seeing an enforcability problem.

clearly, this is not legal advice. consult an attorney before driving a Camaro - even if it's bitchin'. this is not tax advice.

[bryant]

Mmm, yeah, that makes sense. There's some trickiness here in that the OGL is not WotC-specific -- i.e., people have released material under the OGL which has nothing to do with WotC at all. But if the issue ever hits a court, that's precisely the sort of tightening up of language covered under the modification clauses.

I kept telling people they should use a Creative Commons license instead of the OGL. (Yeah, I'm looking at you, Evil Hat!)

Edit: this is also why I'm not worried that WotC will suddenly change the license to say "and you must give us your firstborn!"

[kodi]

Yeah. I think that probably falls in the "lie down with dogs..." category. There might be an argument to be made that publishing an OGL product which is wholly unencumbered by WotC IP is not forming a contract with WotC (except, of course, that I assume the OGL is itself WotC IP).

[bryant]

Yeah, the OGL is copyrighted to WotC.

[gentlyepigrams]

The more I hear about this, the more I keep thinking "Welcome back Judges' Guild".

[bryant]

The other interesting development is the rise of the clone systems -- OSRIC and the like. I'm wondering if it's given anyone the confidence to try cloning 4e under the same assumptions.

[jeffwik.livejournal.com]

I've already read on various forae people speculating about putting out an OGL product that just happened to be 99 and 94/100ths percent compatible with 4e.

[bdeakin.livejournal.com]

iPhone, non-lawyer response:

My feeling is this is probably legit. WotC has to protect itself from someone using their IP to launch a product, benefit from their brand identity, then launching a competing product. I doubt it is enforceable and is written more as a deterrent.

[bryant]

Yeah. It is to Wizard's benefit to crowd out 3e content. I can't even remotely blame them for it.

[dariusk.livejournal.com]

This is where the WINAL acronym comes in handy.

[bryant]

Nice! I have now stolen it with credit.

[bruceb.livejournal.com]

You have enriched my life. :)

[ghudson.livejournal.com]

A more interesting question for me is whether WotC has any leverage to make someone agree to this license. If I release a module for 4e without complying with their license, what do they sue me for? Copyright infringement? Is my work a derivative of theirs, even if they have no characters or artistic themes in common?

[ghudson.livejournal.com]

I don't see how they'd have either a valid copyright claim or a valid trademark claim. "Compatibility" is generally not sufficient to violate either form of intellectual property rights.

[bryant]

And lo; Kenzer has decided to test the question.

You cannot restrain trade with yourself

[(Anonymous)]

Teh GSL and the POGL are both licensing agreements you enter into with WotC. WotC has every right in the world to deny you access to one licensing agreement when you enter into a different licensing agreement with them.

The poison pill is perfectly legal.

Re: You cannot restrain trade with yourself

[bryant]

See cdk's comment above.

OGL

[(Anonymous)]

Thankfully, there is now an easier way to get around this problem. Publish under the GSL and publish under the Pathfinder game by Paizo (which is 3.5, for all intents and purposes). Problem Solved.