OA677: Our Critical Hit (Piece) On the Gizmodo's Critical Hit (Piece) on Wizards of the Coast

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: And welcome to Opening Arguments. This is episode, well, I guess it might be 677. I think we've called an audible, uh, yeah, There, and it's because we were so correct about D&D that we want to make sure to get it out there as soon as possible. No, I'm Thomas. That's Andrew.

0:01:24 Andrew: I think that's right.

0:01:34 Andrew: Yeah, I stand by that characterization. We're gonna we're gonna have some fun on this one here. Yeah, uh It's been going. Um, do not usually get over a thousand pieces of hate tweets, emails, comments on Facebook and the like, but apparently I've never poked the hornet's nest that was D&D fans before, so I there you go, it's uh, it's been a lot. I want to say, this, um, is one source for open comments on this. It is in our Facebook community, uh, where, I, it's unmoderated, people can and have insulted me. Uh, you think you have an argument or thing that I've missed or whatever, uh, I'm going to include the link in the show notes and you can go there and respond. Uh, if you want to do it outside of Facebook or whatever, in an email or in a private message, like, cool, but I'm not responding.

0:01:39 Thomas: Yeah. How's it going, Andrew?

0:01:59 Thomas: Yeah. How do so many people play D&D? Like just numbers wise? I guess it's everybody.

0:02:36 Thomas: Yeah,

0:02:36 Andrew: Okay, it's

0:02:36 Thomas: It's too many. I want to make a note. I wanna say a couple things. First off, give a ton of credit to so many of our listeners, you know, Because so many of them, I've seen the emails. I don't monitor the emails much because I think people want to hear from you and your legal opinion. So whenever there's a ton of emails, it's like, hey, what about this legal intricacy? I could be like, jokes, but nobody likes that. So Andrew, unfortunately, is tasked with the job of going through all these. But I do keep an eye on this stuff just in case there's any Thomas related emails. And I have seen just email after email after mail. And so many. I do want to give our community tons of credit. So many of them are, hey, Andrew, I think you got this wrong and let me respectfully explain why. And

0:02:38 Andrew: Just too many, yep.

0:03:21 Andrew: And

0:03:22 Thomas: I do really just want to call out how nice that is for so many people. Now, it's too much for any human to handle. So that's something we have no control over. But seriously, like so many people, really kind listeners who really just wanted to kind of do the service in their minds of explaining, you know, why Andrew is wrong about a thing. We love that. Thank you so much to all the very respectful listeners giving their feedback.

0:03:45 Andrew: And especially to the folks who wrote it and said, yeah, I'm a D&D fan or I play D&D and I'm a lawyer, and, you know, I understood what you were trying to do and you got it right or mostly right or right, like, that, that, that helped me get through.

True, those are much better, um, let me say, and again, uh, hope, uh, want to say a couple things, number one, uh, is now two episodes in a row on Dungeons and Dragons, a couple people have said, I don't care about Dungeons and Dragons, there is a fun discussion on the extent of copyright, that is a deep dive, uh, this is going to flow into, so there will be fun content for you as a non-board gamer, okay, we have not lost our listeners, we are not becoming a Dungeons and Dragons podcast, um, think it is important to be accountable, uh, two, um, I have to say, and feel free, uh, to disagree or correct, I, like, I feel vindicated really in three main ways about our coverage.

First is, I have had zero comments, literally of the over a thousand, zero comments that are of the form, hey, you accused Linda Kodega in the Gizmodo article of saying X, but X is actually correct.

0:03:58 Thomas: Yeah, those are even better.

0:04:56 Andrew: Or you accused Lindy Kodaga of saying Y, But they actually said not why. And so if you look at the express intent, right, to an article that was misleading from start to finish, I feel like we expose those many inaccuracies and falsehoods. I And don't see anybody. I see some people.

0:05:14 Thomas: I'll well, I put one

0:05:15 Andrew: Yeah, go ahead.

0:05:15 Thomas: Caveat And and maybe this is something you want to address. Let me know if this was in for later. I did see several people say, hey, hey, you interpreted the first sentence a little uncharitably because she, they said that the content, you, has greatly changed, or the, or the, the allowed content has changed. And you said that was wrong. And, but even just the agreed-upon premise that now white supremacists aren't allowed to do whatever is already enough of a justification for that first sentence. You, how, how's that sit with you?

0:05:46 Andrew: That's the most fair way of sort of putting. If you want to say my take on the Kodega piece as a whole was, this is an unfair hit piece, and therefore I have read that single sentence in way that is, you know, you might describe as uncharitable. I think that would be fair, because I'm reading that in the context of the whole Overall article. Right, nobody disputes the, the factual inaccuracies that we point out. Right. The things about every single licensed publisher will be affected by the new agreement. Right, true. The thing about it now includes this new portion that requires you to distinguish what's covered by the license and what does, what is it? Well, so did the old O.G.O. Right.

And of course, the, you know, we spent a lot of time on the, it's nine thousand words. Again, you, all there was, right, if it had just said it restricts the kind of content that you make, then I think I would have approached it differently. So, OK, I mean, I will I will give you that. But that but that again, I think, you know, what I've said is correct, which is that, you know, nobody has really rushed to the defense and it cannot be overstated like the number of people who are like, well, you know, in my gaming community, we weren't talking about the Kodega. OK, but this article had a in the millions. It was picked up by every major news media source.

0:06:12 Thomas: Yeah. Yeah. Yeah.

0:07:19 Andrew: And I personally.

0:07:19 Thomas: It was expressly referenced by tons of emails that we got that were like, please talk about this thing.

0:07:26 Andrew: So and and I posted this on Twitter, but I'll give I'll you 30 seconds of it here. Some people have said, oh, well, yeah, yeah. OK, fine. But that's low hanging fruit. Why are you doing that instead of talking about what the community cares about? And let me tell you in good faith why I am doing that. When somebody writes an article that identifies claims with specificity and as a lawyer, I can evaluate them as to whether they're correct or not. When somebody says, hey, you didn't talk about how Wizards has been screwing over the fandom. That's nailing Jell-O to the wall, man. I can't, you know, screw is not a law thing.

0:07:57 Thomas: Yeah, that's not anything we could really talk about. Yeah.

0:08:00 Andrew: Right. Exactly. So I approach this the way I would approaching it purports to be a legal analysis of a document. And I am critiquing that legal analysis Of the document, I

0:08:10 Thomas: Well, And A lot. Let's let's be realistic, a lot of this is Bert shifting to, okay, they were wrong about their sharing of this article, so now they're going to shift to, oh, but this other thing. And, you know, you set out to debunk most of the claims in this article. You did so. And I think while some people may very fairly be saying, yeah, but I wasn't ever sharing that article. Look, somebody was because it was the most distributed article about this thing. So I think it's very fair to analyze the most distribute article about a thing.

0:08:22 Andrew: Yep. Yeah.

0:08:41 Andrew: You. So that's point one. Point two is the wizards announcement, right, which came the night we recorded and released the show.

0:08:45 Thomas: Yep, yep, Checkmate, Andrew, Wizards says Andrew was wrong and they revised their entire thing because the fandom was right.

0:08:49 Andrew: Yep, um, Wizards basically confirmed everything we said. Going to read a little part of that, but I'll link it in in these show notes. Um, oh, I guess parenthetically, I want to say I have also gotten two separate people, so it would just been one kind of troll, no big deal, but two separate people who are like, oh, you you fell for the corporate propaganda, that you know, this was a draft, uh, this was, this would have been, this would have gone into effect because it had dates in it, and they just said it was a graph because they got caught. Um, that's nonsense, this is very clearly a draft document, it is common to insert dates into draft documents, otherwise how would you get feedback on the dates, right? Like, and um, includes obvious holders, right, like placeholders, brackets, uh, insert link here, internal. Like, it's, no, okay.

0:09:38 Thomas: But I'll give you credit because I tried to offer that as like a reason why some, something, I don't remember exactly what I, I tried offer that is like, oh, is that the reason why there's this loose language, and you said no, this is a legal document, so I think you, you, you know, really took it at its word for the most part because yeah, drafts are drafts, but you know in large part most of that would have gotten through to the end. You know, it's not as though you just wipe the whiteboard on a draft and it's all different.

0:09:43 Andrew: So just no Yeah, Correct. Correct, Yeah, Yep, so, uh, announcement says, in relevant part, it was never our intent to impact the vast majority of the the community, and there's some preamble to that that again is describing their motivations that I feel like we nailed, you know, like, you know, from half court, right, like just a complete, uh, swish on our part. But in any event, uh, so here's what we're doing. The next OGL will contain the provisions that allow us to protect and cultivate the inclusive environment we're trying to build and will specify that it only covers content for tabletop role-playing games. That means, other, other expressions, such as educational, charitable campaigns, live streams, cosplay, VTT, will remain unaffected by any OGL update. Content already released under 1.0a will also remain unaffective, as we said.

0:10:59 Andrew: What it will not contain is any royalty structure. Put a pin in that for a second. It will also not include the license -backed provision that some people were afraid was a means for us to steal work. That's 12b. That's the thing I told you you should be up in arms about.

0:11:12 Thomas: That's the thing you did say you

0:11:13 Andrew: Good. Yeah.

0:11:14 Thomas: Should be worried about.

0:11:14 Andrew: Yeah, that thought never crossed our minds. Under any new OGL, you will own the content you create. We won't. Any language we put down will be crystal clear and unequivocal on that point. The license back language was intended to protect us and our partners from creators who incorrectly allege that we steal their work simply because of coincidental similarities. I would say I think that's a little bit of corporate butt covering.

0:11:14 Thomas: Yeah. Yeah, yeah.

0:11:38 Andrew: 12A covers the substantial similarities. It says you can't sue us. 12B says you grant us a perpetual irrevocable worldwide royalty free license to use all your stuff. So, again, overzealous lawyer drafting. They're going to back away from it. That's a really, really good thing.

0:11:57 Thomas: Well, and let's make something very very clear. The people who make an entire internet career out of saying, Hey, um, liberal was mean to me. So I'm now forced to be a Nazi. I must be a because a progressive yelled, we're not defenders of wizards and never were there. It's a rough thing that happens on the internet. Yeah.

0:12:18 Andrew: We began the discussion with you talking about their cash grab at Magic the Gathering.

0:12:23 Thomas: Yeah, they are an absolutely A cash grabbing company, like they just are, that's undeniable. And like no part of defending, correcting what you see as a really misleading article means that you somehow then therefore defending some other side of the debate. That just isn't logically sound. It's never been true. It something that we trust our audience to see. But I don't trust, you know, 95% % of all people on the the internet to see that, but I do trust our audience to see that.

0:12:49 Andrew: Yeah.

0:12:50 Thomas: So I'll appreciate if people go ahead and understand that it's logically consistent to both say, hey, the following source is incorrect and it's on side A or whatever, but that doesn't mean I'm a part of side B.

0:12:50 Andrew: Yeah.

0:13:04 Andrew: I almost made in the show, but I again, you will see from my show notes, I had 100 minutes of content. And what you will not see from the show notes is that the hours of content that, you know, I just didn't go down because I knew we were going to be stripped for time. So all analogy got short shrift on the show. But I will tell you something that that I actually had written in an earlier draft in notes and cut for time. And that was, you do remember when the panic over Febreze hit like, I don't know, 20 years ago? Right. And the idea. So here's what happened. And like basically if you had like a certain kind of bird or like, you know, web footed ferret or something, then like there was one instance where Febreze like made the animal sick. And

0:13:19 Thomas: I don't

0:13:55 Andrew: All of a sudden, like this, this rumor started that Febreze would kill your pets, meaning cats and dogs. Right. And let me tell you, as dog owner, like I own like the only reason you buy Febreaze is to clean up the like stuff in your house that smells like pets. And so all of a sudden there was this, there was a kernel effect, right? That was, Hey, don't spray Febreze in your bird cage, right. Cause birds are super sensitive to this stuff, but like, yeah, it's spray Febreze or I don't take Febreze advice from a podcast, but like you can spray Febreze around your pets. You can spray it on like, you know, that part where you've had to clean up the dog pee 'cause they peed in the same part of your bed sheet. I'm under time, like you can do that.

And all of a sudden, like it, it, as a lawyer, like my, my sense of injustice went out, of like, oh, this rumor is spreading about a product that is just absolutely devastating to the core use of the product, right? And it's not that I love Procter and Gamble, for God's sake. I'm like, I don't give a rat's ass about Procto or Gamble. Or, you know, like when we have defended the garbage use of, you know, attacking GMOs, it is that

0:13:56 Thomas: Remember that at at all, yeah.

0:14:08 Thomas: Yeah. Yeah. Yeah.

0:15:06 Andrew: We are no friends of the Monsanto corporation. So those are the kind of things that came to mind. Like, I don't like it when false stories spread about a product, regardless of whether or not I, how I feel about the underlying company. All right, I liked that, um, third area which I really, really, really felt vindicated was, uh, we, we made some hypothetical predictions about like, if the OGL really means this, then like you could even do, and I came up with what I thought was the craziest thing imaginable, sex Dungeons and Dragons. And as it turns out, there's a sex Dungeons of Dragons.

Of course there is, it's called the Book of Erotic Fantasy. Please don't send me any more about this, um, and, and, and crucially Wizards let that stand, I just want to emphasize how strongly that, like, this is a game that has been, Dungeons and Dragons has been attacked for corrupting kids since I was a child, and they allowed sex Dungeons and Dragons to get made and be sold for money, you can buy it today. Okay, um, if I were Wizards, there's no way I would want somebody to make sex Dungeons of Dragons, right? Like, so

0:15:16 Thomas: Yeah. Yeah. Right.

0:16:17 Thomas: But that's under the old thingy and so is

0:16:20 Andrew: Under the old, so

0:16:20 Thomas: That part of the, like, oh yeah, see, that's how open the old thingy was, and now the new thingy, not, not as open.

0:16:28 Andrew: So I want to say, so it was under the old, the OGL 1.0, and, and what I, I want to say is if I'm that mistaken about how the OGL 1.0 worked and like, uh, a pretty good job of predicting a thing that absolutely happened, um, but this also bears into some incorrect claims that people would say, and I don't know where they're coming from, but multiple people said, oh yes, the original OGL gave Wizards the right to cancel content that was offensive or sexist or racist. And, you know, to which I said, okay, point to me where

0:16:28 Thomas: Oh.

0:16:56 Thomas: Like, therefore they shouldn't even have to make this new one. Kind of like coming from that angle. Okay. OK. Yeah.

0:16:59 Andrew: Right. Right. And That has to be, somebody has to be making that claim somewhere, because it came up from multiple sources, and, and it's not true. It is nowhere in the original OGL. So I'm gonna give you, you sent me, uh, and I'm using this kind of as a an outline for, for some of the points that we're going to discuss, that I could have been made better, uh, it was a a Redditor comment on the opening arguments, uh, thread. And here's their comment, and again, I just want to kind of illustrate how the assumption is is incorrect here, uh, says, "Second, the OGL 1 .0 attempted to solve that problem of racist, sexist comment, because what you, a third -party publisher, give up by agreeing was the right to use Wizards of the Coast trademarks in any claim of compatibility or approval.

The products only reference to Wizards of the Cost would be in the copyright of the OGL license in the back, nowhere else would be there any mention of Dnd or any other protected terms, no brand damage." Um, not true at all.

And I would just say, look at the Book of Erotic Fantasy, and the test here, as an as an IP lawyer, is, uh, likelihood of customer confusion, and I will tell you, I have litigated and one cases on likelihood of customer confusion in which the association was way less than this, right? So in other

0:17:04 Thomas: Yeah, yeah, yeah. Mm hmm.

0:18:16 Andrew: Words, let me try and put this in non-legalese, what the commenter is saying is, well, you can't say, if you use something under the OGL, you can't say Wizards has approved this content, therefore nobody would think sex Dungeons and Dragons would cover, would, would be approved by by TSR and then Wizards of the Coast. And the response back to that is, consumers draw those kinds of inferences all the time. That is at the core of intellectual property litigation. And, absolutely, it is substantially similar, large likelihood of consumer confusion, and large potential, I think, to potentially damage the brand, right?

Commenter then asks, under the, "environment reading, the OGL 1 .1 actually reintroduces this problem because now Wizards claims they will review all OGL based content." Sidebar, don't think that's correct. "Now, if something slips through their review cracks, they do have a connection and a possible liability. Ability I would be curious if Andrew or others agree with this take." Uh, strong disagree. One of the things I flagged as missing in the 1 .0 that was included in the one point one and will be included in any OGL that comes out, uh, I, only in fairness to this commenter, it only got about 10 seconds in the original episode, so, uh, get it, uh, we were having to kind of cram a lot of stuff

0:18:56 Thomas: Yeah yeah.

0:19:36 Andrew: Into 70 minutes, it makes

0:19:36 Thomas: That's a same day editing turnaround, by the way. Andrew always over prepares and very much times constraints are.

0:19:43 Andrew: Your life miserable. Yeah, yeah.

0:19:45 Thomas: Well, there's a massive time crunch on that Thursday episode. So that's that's not a some B .S. hand wavy excuse for Andrew. That is, I'm, every single week, I'm telling him to try to trim it down, and he, he still is always over prepared, which is great, but it's very much a, uh, a serious consideration, that's not just BS, right?

0:19:48 Andrew: Right. I do my best, brother. But you can verify this because it's in my show notes, which I made public, it's on page nine, it's section 1C, and it says, it's under the lawyer stuff I can't believe was not in OGL 1.0, that is is in OGL 1 .1, and there is no clause that says failure to exercise a right is not a waiver. So that's what responds to that question, right? There's no affirmative duty on wizards to investigate offensive content. And even if they did, and they didn't pull X offensive thing, they would have the full right to pull Y offensive thing that's substantively similar, or even identical to X, right. And that's part of why the OGL needs updating, right, Right. So that they can explicitly do that thing and not get caught in this trap that this listener hypothesizes. So good on the listener to hypothesize that that trap could be there. And in fact, the OGL 1.1 is meant to avoid that, that potential trap. So bottom line on all of that, I think folks who understood what we were doing appreciated what we were doing. And I stand by that.

Um, who's a law student, second or third year, hardcore gamer, and a professor wrote this on the Facebook group, and I thought this was just a pithier summary than what the way I had put it, so, uh, advised her that I was going to steal it. Um, the OGL, all these creators would potentially be in copyright violation, and Wizards would have to Disney-style defend their copyright by suing them all.

The OGL allows Wizards to essentially selectively enforce their copyright, by saying you're agreeing to a revocable use, and Wizards can decide to create classes who can't use it, Nazis, or classes who owe royalties, people making a boatload of money.

0:20:18 Thomas: Hmm.

0:20:50 Thomas: Someone

0:21:48 Andrew: From the standpoint of a gamer who is used to D&D being ubiquitous, it's hard to imagine a world in which you can't just do whatever you want with it for free, but from the legal standpoint, it's mind-boggling to hear anyone express entitlement to make money off of someone else's intellectual property without an express contract. And I thought, oh good, so gets it, so so at least I'm happy we made Jenessa happy, and uh, I think there are three broad areas of things that we could have covered in more depth, I'm gonna call this "and Andrew was wrong," I'll, the one that I feel I'll hang the L on, and that was, um, area, this discussion of Paizo. Okay.

0:22:07 Thomas: Else gets. I'm Yeah.

0:22:25 Andrew: Oh boy, I thought this was clear, but obviously it was not, and that's on me. Um, let me give some, some context, and I've talked about this elsewhere. Um, of the things that I think makes this a good show is that I, I come into these deep dives and I don't just like read you stuff, like I think about how to tell a story, right, and the Paizo stuff was a side story for color, and I thought I was being crystal clear that I was, that it was about why Wizards wants to change their license, and thus my characterization of Paizo was from the perspective of Wizards of the Coast, who I can tell you absolutely believe that Paizo ripped off their game mechanics and and then outsold them for four years.

How do I know this? Because Wizards keep saying it, right? Latest press release, right, to press, had statement, quote, "And third, we wanted to ensure that the OGL is for the content creator, the home brewer, the aspiring designer, our players, and the community, not major corporations to use for their own commercial and promotional purpose." Us, so everything I said about, you, them off, and that I, I didn't say it clearly enough, that was my understanding of what I think Hasbro thinks about

0:22:41 Thomas: Yeah. Yeah. Yeah.

0:23:40 Andrew: Paizo. Um,

0:23:41 Thomas: Were paraphrasing in a loose language their thought process, their stance toward Paizo. And look, I can back you up because, as should be abundantly obvious, I don't know shit about any of this. I don't play D&D, I don't follow it, and I got, I got a lot of accusations because I made some comments too of like, "You're just dissing Paizo." I don't know what Paizo is. I've never heard of pies. I literally never heard of it until that episode. And so I'll tell you this, Andrew, want I, us both say that if enough people misunderstand something, obviously that's on us on us.

0:24:15 Andrew: It's on us, yeah. Absolutely.

0:24:16 Thomas: And, but I will say completely, objectively honestly speaking, uh, from my point of view as someone who a had never heard the name Paizo, or if I did, it went through my mind, like through my two ears and out. I just don't, I don't play D &D. I don't know. I don't care. Um, and had no conception of what Paizo was, no idea, no feelings about Paizo, no feelings about D &d. Actually took from that exactly what you just said there. My understanding was, oh yeah, Andrew's saying from wizard's perspective, they're stealing our IP. They're profiting off of our IP that wasn't meant to be our moral condemnation of Paizo. That's how I I took it, again, not having had this separate discussion with you, having heard this the first time that day, you I didn't even discuss this after or before the show. And yet when I went to kind of put my theory behind what you were saying, I said exactly what you just said now.

0:24:17 Andrew: Absolutely.

0:25:05 Thomas: And so I think it was actually pretty clear, unless the only thing I'll say is, A, there are a lot of people who were just, again, goalpost shifting, looking for ways for to have been wrong. Are a lot of people who probably very justifiably feel some to this company that I don't know anything about. And so are, you know, on the lookout for, maybe a little sensitive to any perceived slights about the company because maybe they're loyal to it and they are not loyal to Wizards or whatever. And that's valid. Like, and so we, you know, had I known that context, which I, again, admittedly did not know any of that context personally, you Now, I probably would have couched it a little differently. Maybe we could have given one more disclaimer of, Hey, hey, this is not, we don't think this is like morally what it is, but this is how Wizards is looking at it.

0:25:49 Andrew: I actually had, again, deleted from the show notes, but I did some research into how Paizo came to be. Right. In 30 seconds, this OGL came about after the Dungeons and Dragons third edition. And then there was a major revision to that called amongst the fandom as D&D 3.5. That that was really well received.

0:26:12 Thomas: That the one everybody hated? Oh,

0:26:15 Andrew: Right. Then they shifted over to D &B fourth edition and everybody hated that. Right? Right. And so Paiso, I don't know if it's themselves, but certainly among people who play Pathfinder, they refer to that Pathfinder first edition as D&D 3.75. Right. Like so, you know, again.

0:26:16 Thomas: Okay. That's the one everybody hated. Okay.

0:26:33 Thomas: Right. Yeah. That was what I've gathered since is that fans were really pissed about that new version and Pathfinder kind of said, oh, what if that never happened, and kind of took it on there from there. And you, yeah, cool. That is fine, no problem

0:26:37 Andrew: Yeah. Yeah, that is it. That is exactly right. And I was I was going to ad lib this example and now I am going to do it. It is as if someone said, boy, that Game of Thrones season seven sucked. So let's pick up Game of Thrones at the end of season six. And I'm going to write my own ending to that.

0:26:49 Thomas: Oh

0:27:07 Andrew: And if you it would be an excellent fanfic idea, not for profit. If you tried to film that, you would be sued by everyone on Earth.

0:27:07 Thomas: That's a good idea, can someone do that? Yeah.

0:27:18 Thomas: Yeah.

0:27:18 Andrew: Right. Because that's the way these things typically, like, you can't just say, oh, I don't like that so I'm gonna, like, pretend, you know, this part, and then, and then use their intellectual property and sell it and make money off of it, except under the OGL you can, so this just, you know, kind of continues to reinforce, uh, yep yep so

0:27:18 Thomas: Yeah.

0:27:33 Thomas: That a very unique situation for IP terms um, and so if, if RR Martin or HBO or somebody was like, yeah, you know, whatever, anybody wants to fix the season, you can, whatever, and because they didn't think anybody cared or was going to do it or whatever, and then somebody did it, and it, the the season vastly outsold anything they ever did or something, then they're like, maybe this was a business mistake. And this is where I wanted to emphasize again, that is a money-making endeavor by Wizards. That's not some, we're not like pretending that wizards isn't trying to make money. I very much think corporations try to make money and wizards, especially so. And that is the way they are trying to make money is

0:27:44 Andrew: Didn't yeah correct yeah yeah so Let me be super crystal clear here, Paizo played by the rules, they use the OGL to make hundreds of millions of dollars, um, their revenues being, uh, million dollars a year, right, uh, and they've been, yeah, I mean that's, that's my back of the envelope math, right, um, uh, has about 160 employees and 37 million in revenue, that Wizards of the Coast only has a hundred, only has 1000 employees, and so I, I have am befuddled by the, we hate big companies, Wizards boo, Paizo yay, like that the Paizo, the

0:28:23 Thomas: That much hundreds of millions? Yeah. Wow. Sure. But yeah, there's Well, yeah, Hasbro owns Wizards, though. And so they kind of do that shift of like, therefore, you can they actually call it they will refer to it as Hasbro to emphasize how big it is. But in reality, I mean, it is, you know, more one to one.

0:29:05 Andrew: Employee at Hasbro could not tell you what Dungeons and Dragons is yeah in any event, I mean, that's just a sidebar on the, like, I stand by that point though, like, like, you know, don't, don't cry for them, Argentina. Right. Like

0:29:09 Thomas: Yeah, yeah. That's definitely true. And on that node, at this, where I just wanted to bring up, uh, I had made a joke that was like, oh, does Paizo give away their game, and I had a number of people that like, yeah, they do, and, um, I just want to say, look, again, when people are gunning for, um, finding a way that we're wrong, because they don't like, you know, what it seems like the stance we're taking or something, um, I get it, you're gonna be some collapse, lapse in terms of context and how you interpret things, but very clearly that was said in the context of, this is also a multi-million dollar company, they are making money off of this thing, you know how I know that? Without having ever heard of Paizo or knowing anything about it, if they didn't make any fucking money on it, we wouldn't be here, the controversy is that people who make money off the thing might now have to give Wizards more money.

Well, if Paizo didn't make any money on Paizo, then we wouldn't be here, they'd be like, oh, we make zero money on, we give all our games away, sure, they give away parts of their whatever, I don't know the rules or the whatever DND thing, that, that's not a counter example to the sentiment of, they make money off the thingy, otherwise we wouldn't even be here right now, sorry, I got, I got too angry for that one, I probably, it wasn't really that, I get, some of it was just like cheeky, like, oh, it turns out they do give away their thing, yeah, okay, that's fair, I, I shouldn't have been that angry, sorry about that, yeah

0:29:49 Andrew: Yeah. Yeah, I approve of your passion. Yeah.

0:30:35 Thomas: It's, yeah, it, it gets a little frustrating when people are trying to pedant you, you a little bit on stuff. And I get that technically speaking, you found an example of a thing Paizo gives away, but clearly that's not their business model. You know how I know that their revenue is not zero.

0:30:44 Andrew: It's they have a business model. Right, exactly. Yeah, and that was, that was the biggest thing, and again just an area that I felt like was unfair, right? I didn't, and I was very careful in the Codeca article to to call out things that were wrong versus things that were misleading versus things that were just unfair, and to me the like won't somebody please think of the Paizo would just felt unfair, right? Like yeah, one big company with a bunch of lawyers is talking to another big company with a bunch bunch of lawyers, it's cool.

0:30:47 Thomas: Yeah. Yeah, yeah, yeah. Well, as you said, they're on hunt virtually guaranteed to work out their own deal, right? Don't you think?

0:31:18 Andrew: Yeah. Yes, it's all throughout this, so okay, all, first category, that's, I hope that kind of brings Paizo in for a landing, no,

0:31:28 Thomas: Yeah. I do want to, I do want to give more of A, uh, maybe an olive branch or whatever. I will take that as a Thomas was wrong on the, had I known anything about these companies, I think I would have just in terms of how we couched it, you know, just like I substantively, I, I think what we're saying makes sense, but you know I might've been more sensitive to the situation had I been a D and D player who knew more about that situation. So, you know, thanks to everybody with their D and D experience and knowledge who wrote in and informed us of that. So sorry if I gave the impression that we were castigating Paizo for, or something uniquely, it wasn't that, it was more like they're, they're not a charity basically.

0:32:04 Andrew: Second area is kind of the larger discussion over what it means to be open source, is the OGL an open, open source document, and an article published at Medium by Ryan S. Dancy, a former Wizards employee. Again, I want to point out this article was published on Friday. Our show came out on Thursday. So for folks asking, why didn't we cover the Dancy article? Because I can't see the future. I have to tell you, in fairness, I would not have covered it even if I had. And that's because of a law thing that I think I now realize this is really useful. I now realize I need to explain, but I did not think I had to explain at the time.

0:32:44 Andrew: Has come up again and again and again. And so, again, even though the criticisms have ranged from kind of questions to bad faith, I'm happy to have an opportunity to explain this. And that is, contract interpretations are not originalist. So, the Dancy piece, I'll link in the show notes, it's, um, is an ex Wizards employee who says, I absolutely wrote the OGL to be an open source document, and

0:32:44 Thomas: What, I'm sorry. What would any of this mean? I don't know what an open source document is.

0:33:17 Andrew: I'm going to go through what it means to be an open source document. I talked about it again at the very, very beginning of episode, right about six or seven minutes in. I included in the show notes at the top of page two, a link to the Open Source Initiative, because I thought it was stunningly obvious. And I still think that it is that if you look at the text of the Open Gaming License, right, OGL, that it's not open source, as that term is defined in the industry.

0:33:48 Thomas: You're talking about the 1 .0.

0:33:50 Andrew: 1 .0, but a bunch OF people think I'm wrong and their evidence. And again, sometimes this is, hey, what do you make of this? And sometimes it was.

0:33:50 Thomas: Okay. Yeah. Asshole.

0:33:59 Andrew: Less so was, Well, the guy who wrote it thinks that it it is, and so I'm going to parse that, but the first thing that you have to get your head around, and I hadn't realized that this is a challenge for non-lawyers, is doesn't matter literally. He could think that, and it is of zero legal import. So let's explain that first and then kind of zoom back out to the Open Gaming, to the Open Source stuff. Let's say, Thomas, that you and and I sign a contract that says, and this is all it says, every right? Month, on the first of the month, the company, Opening Arguments Media LLC, will pay you, Thomas Smith, 50% of our ad revenues, period, quote, end of contract. Okay, now suppose you and I subjectively believe, we both believe and would testify under oath in court, would pass a polygraph, even if polygraphs worked, right.

0:34:00 Thomas: Yeah, all right.

0:34:51 Andrew: That when we wrote that, what we meant to say was each partner gets their proportionate share of the ad revenues. Right, doesn't matter what we mean. That's not what the contract says. It It doesn't say what Andrew Torres gets, and it doesn't say, for example, suppose we bring in a third partner and now our ownership gets reduced to 33, 33, 33, right? Did that, and we never modified that contract, and the third partner sues for 33 percent of our ad revenues, that third partner would lose. They would have no grounds to stand on on the contract. Now, could they prevail on, you know, know unjust enrichment or yeah, maybe, but matter none of it, yeah.

0:35:30 Thomas: Some other, yeah. What if we had sent them emails saying, yeah, we'll probably all three get 33% or something. Wouldn't matter. Oh, really? Because the contract's

0:35:40 Andrew: Because Contracts do not follow a rule of subjective interpretation. It does not matter what either party intended. It doesn't matter what the other party said, unless you could show that it amounted to fraud.

0:35:40 Thomas: The contract, huh?

0:35:50 Andrew: Right like you know

0:35:50 Thomas: Yeah, right, right. That's kind of, yeah okay. So, that would be a protection. If, I could imagine this happening in the real world. I mean, if you were were going into business with someone and you just happened to not read like something that was stuck in an old contract. And, but if they represented to you that they would give you a third of it, that could be fraud if they didn't. Okay. Gotcha.

0:35:52 Andrew: Yeah yep absolutely or If they say to you, yeah, yeah, the contract says this, but but we promise we'll make it this, that that would also be valid. But if it doesn't say and I'm like, hey, what do you think that contract means? And you say, oh, well, we've always used that to mean X. Bad. What matters is what does the contract say? Right. There is even a rule. It is called the parol evidence rule, P-A-R-O-L. So that's how you know it's from 13th century Saxony, because it doesn't have anything to do with, you know, being out on parole, P-A-R-O-L-E. It says you cannot introduce extrinsic testimony to vary the terms of a contract. Right. So those emails, you don't get to, you don't get to bring them into court.

0:36:11 Thomas: Ah, right. Right.

0:36:49 Thomas: Literally not even admissible. Wow.

0:36:51 Andrew: Not admissible as evidence. OK. Vary the turns of the contract. No, admissible for potentially other purposes. So let's let's be clear on that. But yeah.

0:36:58 Thomas: Okay, let me say this though, as the non -lawyer on the show, I do not blame anyone who's a non-lawyer for being like, well, you know, it's pretty solid evidence of my point, the guy who wrote it in a YouTube video. I don't blame a non-lawyer for thinking that, but you know what? That's a great reason to listen to Opening Arguments, because an actual lawyer will tell you that that's not true. And maybe you should give them a little bit of the benefit of the doubt rather than thinking there's some shill for wizards and that's why they're going against your point, rather than thinking, you know, they know something about the law.

0:37:10 Andrew: Yep.

0:37:29 Thomas: I would have thought that.

0:37:27 Andrew: 100%, though. And this again, this is why this is this

0:37:30 Thomas: Yeah, I don't know.

0:37:31 Andrew: Is in the section of I learned something. I learned a thing that I needed to explain, which is that this aspect of contracts are objective, not subjective, even though they're based on right. Right. Like one of the questions of a contract being legal is, was there a meeting of the minds?

0:37:44 Thomas: I was going to ask that, but then it was like, well, we don't have time for this, but yeah, how does that work if we both meet minds, but it's different than what the contract said? Wow.

0:37:46 Andrew: Yeah. Yeah. The written contract prevails. I know that seems bonkers. So I'm learning. So folks who said that, didn't good. I understand why you asked. Doesn't matter. Here's what Ryan's Medium post says, though. And again, notice that this is there can be some interesting things here in this. In 1999, I, Ryan, was made the VP of tabletop role -playing games at Wizards and the Dnd brand manager. Also in 1999, Hasbro bought Wizards of the Coast. They've been a wholly owned subsidiary ever since. My team and I diagnosed the many problems that beset Dnd, and we engineered a multi -pronged solution. We released a new edition of the game, the third edition, and we convinced the company to take a huge risk licensing the Dnd game system and the content that game system used via an innovative copy left license modeled on the successful open source software licenses. That is called the OGL, and the version that's authorized for release was 1.0a

0:37:54 Thomas: Yeah yeah totally is copy

0:38:46 Andrew: Okay

0:38:47 Thomas: Left, just a play on copyright, to be like a more open I

0:38:49 Andrew: Literally comes from a joke in Tiny BASIC, uh, that had a line that would come up that says, "copy left, all wrongs reserved," right? What copy left has come to mean is based on, and again, I'm going to go back to your Reddit commenter who said, well, you should take a look at the, um, and here I don't know how to pronounce this so I'm gonna go with the Great Space Coaster version of it, but GNU, right? GNU, GNU's not Unix, or GNU's not Linux. However, I know the animal is pronounced with a silent G.

0:39:18 Thomas: Don't I don't know what you're talking about what, what is this

0:39:20 Andrew: Capital G, capital N, capital U. It's an operating system. It is a piece of software. Yeah. And it has, it is a recursive acronym that now stands for GNU's not Unix, excuse me, yeah. Anyway, in any event, that piece of software, that's all you need to know is this is sort of the quintessential piece of open source software. If you look up copy left in Wikipedia, it says take a look at the GNU general public license. OK.

0:39:21 Thomas: Oh it's an operating system, oh, okay oh

0:39:49 Andrew: And again, as as as the example of what this means. OK, so that's what I'm going to do. That's what your Redditor commenter friend so I'm gonna do that again. I don't know whether to call it GNU or GNU or GNu. The Great Space Coaster, they called it GNU, so that's, I think, where I'm going to go with it. So, there are two major principles of open sourcing software that are just not in the terms of the OGL. And in my view, you could say modeled after, right? That's all Ryan says is modeled after. But make this not open source. And those are, point number one, all all of the original work must be open sourced. Okay. How does that play out for GNU? GNU's entire source code is freely available for me or anybody to use. And what they mean by that.

0:39:49 Thomas: As an example of what? Okay, gotcha. Oh

0:40:36 Andrew: I can sell it as is to anyone dumb enough to buy it from me, right? Could buy it from, you know, they could download it themselves.

0:40:41 Thomas: Wow, so that means literally, no, there's just no like licensing type restrictiony thing, like you just can profit off it all you want, I

0:40:51 Andrew: Are some restrictions about how it's use. That's going to get to be point two, but yeah, the the, and and fundamental idea of open source is exactly that. This is the source, it is open, you can use it, you can sell it, and we have no claims against you for selling it. It's paragraph four, and I'm going to read you the first sentence. You may convey verbatim copies of the program source code as you receive it in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice. Keep intact all notices stating that this license and any non -permissive terms, blah, blah, blah. Keep in tact all notice of the absence of any warranty, and give all recipients a copy of this license along with the program. You may charge any price or no price for each copy that you convey, and you may offer support or warranty protection for a fee. So I can say, hey man, I, I got opening arguments GNU for you.

0:41:46 Thomas: I typed up this code yeah, yeah

0:41:49 Andrew: Yep. Now, go back to the OGL. You may not convey verbatim copies of D&D as you receive it. You

0:41:54 Thomas: Well a, if you're Wizards and you own this IP, why would you do that? Like, why, why would I ever think that? Oh, the OGL, you know what that does, it lets anyone do anything, anything with that and sell it in profit. But there's some people who think that, or

0:42:06 Andrew: Don't know. But let's be clear. This was 2000. So there's a bad faith element here. And again, if wizards in bad faith decided to imply that the OGL 1.0 was really an open source code thing, then bad on them. Right. I don't know. I do not care.

0:42:27 Thomas: Why why would they do that? I don't understand. I'm just no, I'm literally trying to understand what the claim be, so when people are coming at you with this claim, oh, it's open, so what are they, what are THEY trying to say? I know, I've lost track of

0:42:30 Andrew: Not know. I do know. What they are saying is the OGL 1.1 was open source. Open source does not let you modify it like this. Therefore, when Wizards tried to modify it into the OGL 1.1, they're not allowed to. And yeah, right.

0:42:39 Thomas: Oh they're oh, oh well, that hold on, why would that be? So now I get, well, okay, I'll go along with the ride, for the open source, let's say for some whatever reason Wizards was like, yeah, the first OG, that's open source, anyone can do whatever, I, I feel like that would be, as IP owners, it feels like that would be something they could rescind whenever they want, couldn't they? Or no, and then B, even if, let's say they couldn't, why would that make it so they couldn't modify the contract at all? I guess that's kind of the same question, but yeah, put

0:43:19 Andrew: No. So, so the answer depends on what's in the contract. But what I will say is that they're sort of reading the restrictions that GNU put on its license and saying, see, you should act as if this was in the OGL. So, for example, under versions of this license, this is the GNU license, General License, it says, the Free Software Foundation, that's the publishers of the license, may publish revised and or new versions of the GNU General Public license from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the program specifies that a certain numbered version of the GNU general public license, quote, or any later version, end quote, applies to it, you have the option of following the terms and conditions either of that numbered version or of any later version published by the Free Software Foundation. If the program does not specify a version number, you may choose any version ever published by The Free Software Foundation.

0:43:40 Thomas: That in English, please? Can

0:44:30 Andrew: Yeah. So what that says basically is may make future changes, but you can pick previous versions and and continue to publish under those previous versions.

0:44:41 Thomas: You just ignore the changes, and this, this is the GNU thing, basically.

0:44:42 Andrew: Okay. Yeah, exactly. Effectively, you can ignore those changes. Now, paragraph 9 doesn't say of the OGL. We're back to Wizards. This is the 2000. Does not say that. It says 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, and that's it, and that is a very different thing. I mean, from what I just read, right, the kind of put that all together. The argument being made here is, notwithstanding the language of the OGL, the Oglo was intended to be open source, the designer said it was open. And in open source, you can't change stuff. Or if you do later, people can come along and go, OK, well, I don't like those new changes, I'm going to go with the old one. OK, the argument layered on. And

0:44:46 Thomas: Okay. Okay, now can I ask, already right away, I, unless I'm misunderstanding, I feel like those are, those two separate but related things. I mean, if you could be, could you be open source but still have a provision that's like, no, you have to use the latest version of this agreement? Like, those, those things necessarily go together?

0:45:54 Andrew: That's a great question. I don't know. But I think that the implication would be that they do. Right. Because everything

0:46:02 Thomas: Like they have to go together.

0:46:03 Andrew: Everything I've read about open source and copyleft agreements is like, yeah, take a look at the GNU agreement. And so I think the idea is that this

0:46:13 Thomas: Hmm. Okay. Well, we'll, we'll stipulate that then.

0:46:16 Andrew: They said it was open source, and open source means you can't change it. And they tried to change it. QED. And so I'm trying to show you, number one, the guy who was involved with it, number one, they're sort of exaggerating that, you know, that says he was involved and it was modeled after, not that he said that it was open source. But he certainly implies that in that, that Medium article. But his opinion means nothing compared to what the contract actually says. And if you look at the contract, if you litigate it, is this an open source copy left agreement? It is not. You know that it's not because and we only got through the first part. Number one, a copy left open source agreement gives you the right to convey verbatim copies of the entire thing. This does not give you the Right to convey for BATEM copies of The entire thing, it reserves a whole bunch of stuff, right, and not just the trademarks,

0:46:40 Thomas: Yeah. Yeah, yeah.

0:47:14 Thomas: And that, well, hold on. That's even in the original, the 1.0. Okay, so that tells you that's not open source. Case closed.

0:47:21 Andrew: And said not open source but let's place closed her right because The most important part of an open source environment is that everyone who uses the original work, so I can do so I can take GNU and I can just slap my own name on it and resell it, okay? I can resell it and say, "Oh, but I but if you buy the Opening Arguments version of GNU, I will give you you, you know, it comes with customer service or whatever, right?"

0:47:25 Thomas: Yeah okay, close it even more.

0:47:46 Thomas: Sure.

0:47:46 Andrew: Whatever. I can also take GNU and add my own code to it, right, create opening argument O -A -G -N -U, right. Then I can sell that. Everyone who uses the original work must agree to the same licensing terms for their work, including their additional content on the same terms. That's what creates the open open environment.

0:47:47 Thomas: Oh, so someone else could come and sell OA GNU. Oh. Interesting.

0:48:12 Andrew: Yup. And all of it, including the code that I've added. So that is, and let's be very clear about this. This is paragraph 5C of the GNU GPL. Okay. So it says, conveying modified source versions. You may convey a work based on the program or the modifications to produce it from the program in the form of source codes under the terms of section four. That was the one we just read, provided that you meet all of these conditions, and it is okay. Prominent notice, blah, blah, blah, section C, you must license the entire work as a whole under this license to anyone who comes into possession of a copy. This

0:48:17 Thomas: Interesting, okay.

0:48:51 Thomas: Hmm.

0:48:51 Andrew: License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work and all of its parts, regardless of how they're packaged. This license gives no permission to license the work in any other way. Somebody,

0:48:59 Thomas: Ah. Right. So that answers the question of like, hey, I was wondering with open source stuff, like, oh, it seems like everyone would just sell this stuff all day under their own branding. Well, I guess this kind of answers why that wouldn't proliferate necessarily, because any labor you put into that, anyone else can profit off that.

0:49:19 Andrew: But yeah, that's that's exactly somebody else can come around and sell my stuff. Right. So not only could D &D not, you know, could wizards not withhold mind flayers, umber hulks in the seven mounding heavens of whatever. But if I create the module, I'm now giving up my exclusive right to normal the half wombat on the same terms.

0:49:20 Thomas: Yeah. Yeah, So I could sell all of Pathfinder's stuff for profit if I, if this were true, if this were an open source -y thing, as this claim is, I could go copy everybody else's work on D &D stuff, derivative stuff, and just sell it as mine.

0:49:42 Andrew: If this were true you

0:49:54 Thomas: Wow. Well, that can't be right.

0:49:52 Andrew: For word right entire work as a whole so that's yeah that's why and again I know I only gave it 10 seconds in the show so I thought this was a great discussion but I thought it was super duper clear that the OGL is just not an open open source environment it just isn't and, um, misled you into believing that it was, then keep those pitchforks handy, I don't know, but like, I get why this would happen in the software world, right, I totally Get why it would happen because you create a core piece of code that's sort of optimized and everyone is like, okay, well, I'm just going to use that, like, optimized bit of code here. I, I just not, it, it's not, it's not the case here, okay. And this is the real open question and I'll explain. I mean, the biggest reason I didn't get to it is, you know, time. Um, that is a question, question about the copyrightability of game mechanics, and I flagged this in the beginning, I called this the, the Cory Doctorow argument, right? Um, didn't cover it because we were already at 70 minutes.

0:50:07 Thomas: Yeah. Yeah. Mm -hmm.

0:50:51 Thomas: Well, I thought you kind of covered it. I, I, if I thought you came out on the position of, yes, you definitely can copyright this stuff if there's enough of them in combination, because I thought I brought up the specific example.

0:50:52 Andrew: Um yep you absolutely did but I went through very very quickly I would say and and The the other reason that I didn't, that I specifically, that I was the one moving on there, and I just want to make this crystal clear while we're on this follow-up episode, and that is this. This claim is the exact opposite claim of the one that Kodega was making in their article. OK, so let me unpack that for you. Right. The article was Kodaga is saying OGL 1 .O is awesome and 1 .1 is a screw job. Right.

0:51:07 Thomas: Sure. Okay.

0:51:35 Andrew: The open gaming license was amazing. And the new one is taking away your right to breathe in a particular direction. OK. This argument is an argument that 1 .0 was a screw job. It led you to believe that more stuff was covered than could possibly have been protected by wizards. And you're better off without a license at all. So in a way, good on them for overreaching, because now everybody knows that this whole licensing thing is just nonsense. Yeah.

0:52:06 Thomas: Interesting. Under this argument, it's of this stuff, and I don't know this in detail yet. I'm curious to hear, but because none of this, for whatever reason, none of this stuff is copyrightable. Were kind of going along with OG1, you the sake of it they're worried about a big company suing them. But really, that was never enforceable. So that would mean OG1 was kind of, I'm not going to say fraudulent, but was kind of like, you know, lying to you. And now that OG1 .1 has overstepped, everybody is now that that That position is, well, cat's out of the bag. Just do whatever you want. You can ignore both of them. You don't even need to follow the first one, right? Because under this theory, none of that is enforceable. So therefore, do whateveryou want. Dogs and cats living together, rolling dice.

0:52:50 Andrew: I think is a a an excellent summary of and Doctor Oh Cory Doctor made his argument over a series of tweets that just I couldn't find a good like thread unroller uh but he's part of the Electronic Frontier Foundation um which by the way made it really you know funny when people are like well you disagree with Legal Eagle, Cory Doctorow, and the Electronic Frontier Foundation, and I'm like well that that that's the same thing that they weighed in with an article that was entitled "Beware the Gifts of Dragons. How D&D's open gaming license may have become a trap for creators." OK, so, yes, I think you have accurately summarized that article.

0:53:05 Thomas: Ah.

0:53:27 Thomas: Is that contemporaneous with OG 1 .0, or is that like now?

0:53:29 Andrew: Yep. It is about 1 .0 coming out right now in this kerfuffle. Right. So you have appropriately summarized, I think, that view. You, I will link the article in the show notes because if somebody wanted to pick nits with what you said they, they could, but but I think you have accurately described the argument. Okay, let's unpack it. It begins with a claim of you can't copyright game mechanics, and I want to say number one, uh, that this is a little bit misleading because everybody who is saying you can't copyright game mechanics is omitting the next sentence that you need for context, which is you can't copyright them, but you can patent them, right?

The patent process is the process you use for mechanistically describing how something occurs. And I could talk to you historically about how Monopoly was patented in 1935. And so, you know, you didn't see knockoffs until that patent expired. But how about I give you one that is near and dear to your heart. In 1995, Wizards patented Magic: The Gathering's game mechanics. That is patent number 5,662,332. Link in the show notes. That patent expired in 2014. So if you're thinking about it from a gaming brand, you know, patents are a smaller term, right, but

0:53:35 Thomas: Okay.

0:54:13 Thomas: Interesting. Okay. Oh,

0:54:52 Andrew: They had 20 years of exclusive use to those mechanics, and that's why you saw card games in like the 2000, but you, you know, you really see, at least, you know, from my perspective, the things that I would call like knockoffs of Magic, you, you see that now because the patents expired, right?

0:54:52 Thomas: Yeah. Oh, I did not know that. I mean, I don't pay much attention to other things beyond the thing that I like. Like, I just like magic, so I play that. So you're telling me that someone now can come up with a magic clone, not using any of the images, the whatever, all that stuff, but rules -wise can say, yeah, there's the rules. It's exactly magic.

0:55:11 Andrew: Yep.

0:55:28 Andrew: So here's what the patent says, and this is how short it is. Provided herein is a novel method of gameplay and game components that in one embodiment are the form of trading cards. However, the game components may take other forms, such as a board game, or the game may be played in different media, such as electronic games, video games, computer games, and interactive network. In one version, the game opponents comprise energy or mana cards and command or spell cards having than commands or spells associated therewith that utilize the energy to enable a player to attack, defend, and modify the effect of other mana cards, spell cards, and the fundamental rules of play. The goal of the game is to reduce the life points of other players to a level below one. In this game of strategy and chance, players construct their own library of cards, preferably from trading cards, and play their library or deck of cards against the deck of cars of an opposing player.

0:56:17 Andrew: Cards may be obtained from retail outlets, trading with other players or collectors, and winning cards at games and tournaments. So that game mechanic, congratulations again, don't take legal advice from podcast, uh, now an expired patent, uh, the exclusive property of Wizards of the Coast for 20 years, is no longer. So just want to say, you hear somebody saying that, you know, a sexy YouTuber told them about game mechanics aren't intellectual property, that's not correct, right? Aren't copyright, right, or trademark, they can be patent, yeah.

0:56:43 Thomas: However, patented. Here's a couple observations. For one, that was a very, very general description of Magic, and so that there's so much more to the game that they've invented subsequently, would that fall under that, or, you know, like if they've inventing new rules, which they do every set, there's new mechanics and stuff, would that be protected by that if this were still in effect, or do they do a new patent every set or something, yeah?

0:56:52 Andrew: So that would so Gonna try and confine this sidebar, um, would love to discuss that in an episode about how biotech companies do do this. Because this is really kind of at the core of what happened that, to degrees, contributed to the opioid crisis, right? And that is that pharmaceutical companies have to invest millions in a new pharmaceutical and taking it to clinical trials Because most of them fail. And the compensation that they get for that is the patent period that gives them exclusive period to license it over a period of time, and then the question is, what about when they create modifications to that original patented work, that then, uh, for example, in the by in the in of Oxycontin, it was creating a long release capsule, right? So taking the original, original design patent and then saying, oh, also we're going to do this to it, uh, that's going to cause it to have a slow timed release, does that, do you get to extend the full patent term, right?

There are, I am, I am describing the conflict over the issue, right, that is just sort of a rich vein of, uh, patent of law to discuss and one that I think has really, really significant, significant social impacts of, you know, do you have to change the first patent to renew it?

0:57:38 Thomas: Yeah. Sure. So You're saying this is an unresolved question or it's an arguable, you know, okay. Gotcha.

0:58:35 Andrew: I'm so that's right.

0:58:37 Thomas: Sure. And

0:58:37 Andrew: That's a long way of saying that.

0:58:38 Thomas: Other, other observations, I know, I know the D&D is definitely much older than Magic, so even if there were a patent for the rules, that wouldn't apply anymore, right? Okay, what's

0:58:48 Andrew: Right. So what are rules, right, terms of copywriting versus what's in the SRD? And I will flag my My claim up here front. I think the SRD is way more than just rules or mechanics. OK, so

0:59:03 Thomas: The SRD, is that a Dungeon anything? No.

0:59:06 Andrew: SRD is the system reference document. We're on SRD 5 .1. That's the 402 pages of stuff in the OGL that comes after the law stuff. Right. It's the example of what the open game content that you get to use. Right? My argument is that SRD, that 402 pages of stuff that does not include the mind flayers, but does include blue dragons, and does include the fact that dwarves get a plus two to constitution, and a lot of what I would call kind of flavor is than just game mechanics.

Now, I do want to say this open question, legal, right? Eagle and I argued about this for a couple of hours after came out. Think I've got the better of the argument here. And let's talk about it. 17 USC 102B says, in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. If you're thinking, all right, that's not super helpful. Yeah, that's not super helpful. Um, parts of a game are merely, you know, the method of operation versus what parts of the game are protectable original elements of expression, right?

0:59:09 Thomas: Right. Right, okay. Yeah.

1:00:37 Thomas: Side note, just again, uh, non-lawyer thought here, there must be something about games that's, that's IP, that's it's copyrightable, it's protected. Otherwise, first of all, no one would be in the making games business because how can you make any money if anybody could just copy it and do whatever they want with it? So it must be something. And lots of games are, I don't know, they seem like they're just a set of rules. So, I know there's got to be some sense in which games are copyrightable in this way, right?

1:00:39 Andrew: Yeah. Yeah, Think I that's right. And the way in which you would go about analyzing this is by looking at similar cases. And as it turns out, there's not a lot of litigation around board games. Right. There are not a lot of people who have said, oh, well, you this is, you take, for example, like Chutes and Ladders. Right? Right. Like Chutes and Ladders is a very specific mechanic. Right. You move around the board in a particular way and you either go up or you go down and you try and get from point A to point B. Well, there are lots of games that kind of use that mechanic.

1:01:42 Thomas: In general terms, sure.

1:01:44 Andrew: In general terms. But now if I called the things that had you fall from one level to the next, a shoot, would Parker Brothers or whoever makes Shoots and Ladders have grounds to sue me? Like, I think potentially. Right. The best way that I can think of in an area that actually had a fair amount of litigation were early video games. Games, okay, in early video games, you sort of had the question of, um, that was, we talked about, you know, sort of copying source code, yeah, yeah.

1:02:22 Thomas: Yeah, like Pong. Yeah. Pong is like virtually just a set that seems as bare bones as it gets, could you have a copyright on Pong?

1:02:31 Andrew: And and fact lots and lots of people made Pong and Pong derivatives and uh, as far as I know, Atari did not prevail. Atari was a reasonably litigious company.

1:02:35 Thomas: Yeah right okay so that's kind of a point against your point, right? Uh,

1:02:44 Andrew: Once we started adding distinctive elements, yeah, so the very first, I said Atari was a reasonably litigious company, the very first case that I know about, right, a case in the Northern District of Illinois called Centipede vs. War of the Bugs, okay? OK, this was Atari versus Armenia, LLD. Right. Was, did this game that I've never played called War of the Bugs infringe on Centipede? And what the court did was say, look, the worms travel in the same manner. The shots were fired in the samemanner. The whole arrangement was very, very similar. And so they kind of looked at it as a whole and were like, yeah, yeah, yeah, yeah, this is ripping off Centipede. So now we get to another case brought by Atari, Atari

1:02:48 Thomas: Characters, art.

1:03:35 Andrew: Inc. versus North American Phillips Consumer Electronics Corporation, uh, from 1982, uh, which the question was, and here I have played these games, and you can look up, uh, a Google image, because you probably have not played the famous Pac-Man ripoff, Crazy Otto. Uh, Google Casey Munchkin, you will see kind of a green Pac-Man-like character and some three-legged ghost-like characters In a maze with some dots.

1:04:04 Thomas: Interesting. Okay. Oh.

1:04:06 Andrew: Right, um, Atari, you know, fresh off their success from, uh, versus War of the Bugs, was like, yeah, man, Casey Munchken they

1:04:15 Thomas: They won the Centipede War of the Bugs thing.

1:04:16 Andrew: Won dead. War of the Bugs infringes Centipedes, come on, they're basically the same game. Um, here, this you really yeah you really saw the court kind of breaking down the question of what are the game rules versus what's the stuff that you've added that you didn't have to because of the rules, right? So, um, -man, uh, much of it is the rules. Here's what the court said. Pac -Man is a maze chase game in which the player scores points by guiding a central figure through various passageways of a maze and at the same time avoiding collision with certain opponents or pursuit figures which move independently about the maze. Under certain conditions, the central figure may temporarily become empowered to chase and overtake the opponents, thereby scoring bonus points. Uh, seems like a pretty fair description of pac -man to me. I'm assuming

1:04:16 Thomas: Okay. Sure. Point back in your favor then yep Yep.

1:05:02 Andrew: Everybody listening to this show has at least played Pac-Man. So, the court says, you know, what is not protected by copyright? The maze in Pac-Man, anybody can make any kind of maze game they want. How about the scoring table? How about that fact that you go through the little door on the left and you come out on the right, or vice versa, right about dots? Right. Said all of those were either standard game devices or common video game tropes or elements of the gameplay, and therefore not copyrightable under 17 USC 102b. But here's what it found to be expressive. Rather, and this is an appellate decision, it is the substance. So Atari lost it at trial and then won on appeal. It is a substantial appropriation of the Pac-Man characters that requires reversal of the district for court. The expression of the

1:05:05 Thomas: Okay. Sure. He's

1:05:59 Andrew: Central figure as a gobbler and the pursuit figures as ghost monsters distinguishes Pac-Man from conceptually similar video games. Pac-Man's particular artistic interpretation of the game was designed to create a certain impression which would appeal to a non-violent player personality. The game as such, however, does not dictate the use of a gobble and ghost monsters. And again, if you, if you Google Casey Munchkin, did they, they look like, it looks, looks like Pac-Man. And goes he's a gobbler

1:06:26 Thomas: A gobbler let's be, come on. Definitely. A goppler, look, it was that famous case, the justice said, I know a goabbler when I see a goebler, okay, that's what he said.

1:06:28 Andrew: Um, that idea, right, between the idea of the game, right, as articulated through the game mechanics versus the copyrightable expression, the unique things you're doing with those rules has been consistently the way courts have dealt with this in the video game context. So, couple more examples.

1:06:49 Thomas: Yeah. Yeah. Well.

1:06:59 Andrew: Where

1:06:58 Thomas: Yeah, and now we're kind of, now we're talking about music copyright, we're, we're bordering on a lot of those same concepts, sure. The C chord is uncopyrightable, and a couple more more chords aren't copyrightable, and maybe some other simple elements are copyrightable. Start putting enough of them together, and not very many of them together, by the way, and you get something copyrightable. I had

1:07:03 Andrew: Yeah. That's Exactly right, and did you ever play Golden Tee in the arcade, you know, well, I'm

1:07:23 Thomas: Parents who gave me quarters, so I played almost nothing in the arcade. Sad. For more information, listen to Dear Old Dad.

1:07:26 Andrew: Sorry, I I, I know I know this. Yeah, no, I know this from our friendship and also from dear old dad. So oh, yeah.

1:07:34 Thomas: But I did do the thing where I pretended that I was playing with the game demo went you know, because that's, that's basically all the entertainment I got out of arcades.

1:07:40 Andrew: Yeah. Of cases, Data East USA versus Epix, in involved karate fighting games. Right. So Epix created World Karate Champ, and Data East made Champ, and there were 15 features, yeah, in common between the two games, most of which were karate game moves, right, so, uh, the court said that you procedure common karate moves, kicking somebody in the head, the idea of, of their, of their being background scenes, a time element, a referee, computer graphics, bonus points, those all resulted from constraints inherent in the sport of karate, or constraints inherent in the computer, once those similarities were removed, the court found no infringement, right, so your karate men look differently, right, differently as 8-bit graphics could look, right, so

1:07:58 Thomas: Regional karate sure yeah Sure.

1:08:19 Thomas: Yeah

1:08:32 Andrew: Um, thing, Golden Tee golf game, uh, versus, uh, there's Incredible Technologies Inc. versus Virtual Technologies, but the two games were PGA Tour Golf and Golden Tee, and again, uh, the question is you layout how you controlled Golden Tea, very famously, you know, you like pulled the trackball back and then spun it to hit the golf ball, and, um, know, so, so this is what's kind of being set up, right, the idea of, is an an element part of the gameplay, or is, is it a unique expression, and so I, I think a good way of thinking about this is, um, Tetris Holding LLC versus Xio Interactive, um, which is questioning whether a game called Mino infringed upon Tetris, right, Mino looks like Tetris, and interestingly,

1:08:32 Thomas: All right.

1:09:19 Thomas: Well, those, I mean, those shapes are, you, yes, they are just shapes, but like, that's a specific selection of shapes that I feel like is not inevitable to games or something. So So it feels like you might be able to copyright that.

1:09:33 Andrew: Enough, Thomas, the court agrees with you. The court says Tetris is a puzzle game where a user manipulates pieces composed of square blocks made into a, each made into different, different geometric shape, that fall from the top of the game board to the bottom, where the pieces accumulate. The user is given a new piece after the current one reaches the bottom. While a piece is falling, the user rotates it in order to fit in with the accumulated pieces.

The object of the puzzle is to fill all spaces along the horizontal line. If that's accomplished, the line is erased, points are earned, and more of the Game Board is available for play. But if the pieces accumulate, reach the top of the screen, the game is over. These general abstract ideas underlying Tetris cannot be protected by copyright, nor can the expressive elements that are inseparable from them, okay, the style, design, shape, and movement of the pieces are individual expression, they're not part of the ideas, rules, or functions of the game. Thus, using the same seven shapes, the same board dimensions, and the lateral rotating movement of the shapes through the board resulted in a finding of infringement. So, yeah, let's unpack that. Tetris, if I want to make a shape dropping game, frame in which you fill up horizontal lines, I can do that. Right. If I take the exact shapes from Tetris, and I put it on the exact field of Tetris, and it rotates in the same way, and the pieces look the same, then eventually you kind of put it all together, and you're like, yeah, um, this,

1:10:55 Thomas: Made Tetris.

1:10:56 Andrew: You made, you, you make Tetris. That's exactly right. And so I could continue to, through this. I want to tell you is that is not, in my view, an easy open and shut case.

1:10:56 Thomas: Congrats. You've made it.

1:11:08 Thomas: Yeah.

1:11:09 Andrew: But I think, right, if you want to say if you're going to figure out what the elements of Dungeons and Dragons are as a role playing game and describe it the way I described Tetris, the way I described Pac-Man, the way, you know, you could do that, right? You could say the concept of multiple players sit around and engage in a role playing, envision themselves to be, you know, medieval fantasy heroes. Yeah. All of that is not protectable. Is, you know, they roll dice protectable?

No, that's going to be game rules. But, and I think I didn't make this very clear on the episode. If you think about kind of applying the Tetris concepts, saying you have to roll dice in order to meet certain saving throws, if you want to call that a game element of Dungeons and Dragons is one thing, but why do you roll three six-sided dice for your stats and one 20-sided die for your saving throw? Right, seem to be expressive elements of the game. And even if they're not, right, you put all of it together, right? Blue dragons spit the lightning bolts that are in a cone that does this kind of damage to this group of people, that that just feels like that is specific. That is unique. And I use the dragons because that's one of the things I remember from playing Dungeons and Dragons, that that is kind of unique to that world, is the idea that different colors of dragons corresponded to different elemental categories of weapons. Happens. Seems like a thing that is protectable. And to a different conclusion, I think the OGL absolutely gave away some rights.

1:12:54 Andrew: And I think in the absence of an OGL, taking those 402 pages and sticking some new stuff on there would have led to a lawsuit. Suit. And I think the fact that it didn't, uh, to and without, you know, I'm not saying that that's what Paizo did, uh, I think the fact that that never sued Paizo is an indication that they believed that they were bound by that as well. Right. So I think not only do I disagree, you know, if you want to say, uh, Legal Legal disagrees with me, and and EFF disagrees with me, uh, would say I think there's some pretty good evidence that, uh, the players in the industry have agreed with me over the past 23 years. So, there we go. Correct, it

1:13:34 Thomas: Yeah. And not only that, the article was not written from that perspective, right? So the thing you came there to debunk was that underlying theory.

1:13:43 Andrew: Was the exact opposite, that's

1:13:45 Thomas: Yeah. So, yeah.

1:13:45 Andrew: Exactly right, and I did not want, I mean, you saw, you know, we did a half an hour here, plus it would have confused that original discussion. Yeah, um, I'm, I'm off of Dungeons Dragons for a while, people, so, uh, go to Yodel Mountain and know if you want, uh, you want to be a part of that discussion, feel free to be part of the discussion, uh, uh, think we've kind of covered the landscape of everything I've seen, and I hope for our non-gamer listeners that this was at least, you know, a couple of interesting deep dives here on, uh, on copyright write, on patent, and open source. So there

1:13:47 Thomas: Yeah. Well, there you go. I'm sure that'll satisfy everybody's objections and we won't get any more emails. So well done. Yeah, yeah, all right,

1:14:28 Andrew: You go.

1:14:29 Thomas: I'm just gonna go check my shares in Hasbro, see if they've gone up while we're doing this. I mean, oh, sorry, still recording, uh, definitely not a shield for whatever. No, that was a lot of fun, uh, really interesting issues and, uh, yeah, I'm sure people will still have a ton of thoughts, but I think this answered a lot the questions that I saw. So, uh, well done and thanks for listening everybody, and we will see you very soon.

1:14:51 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:15:25 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.