A photo of reading glasses resting upon a book.

The ORC has landed. It kinda sucks.

The Law and Intellectual Property

Two things that are commonly not widely understood about the Law is that it is always evolving, and a lot of what drives that evolution is that cases often involve scenarios that were not considered or even foreseeable at the time the law was drafted. A high profile example of this was the FortNite dances, which encountered the issue that the people who concluded, in the era before video games, you should never be allowed to own a dance could not foresee a future where a company would charge $8.00 to make a fully 3D rendered avatar for the player perform a dance from their favourite sitcom.

Intellectual Property has been prone to a lot of problems with this: FortNite Dances, DMCA takedowns, Automated Content Identification, Copyright Strikes, Amazon pirating, etc. Intellectual Property has also been increasing in value as we now have the potential to be enjoying media every waking our thanks to our phones and the rise of platforms like YouTube and online shops.

Another popular misconception is that all Intellectual Property law operates in a similar manner to the USA. This is just not the case. The much discussed “Fair Use” affirmative defence does not exist outside of the USA – there are usually similar rights, but they operate on different principles and rules. This can create a kind of double jeopardy when you find something like this:

A screenshot from the ORC AxE with a section highlighted:
"What is sufficiently delineated character?
* The term *highlight*"sufficiently delineated character" is a test under US copyright law*end highlight* that describes when a character has sufficient attributes to rise above substantial similarity to a single specific expression and relates more broadly to a collection"

In the event that you have legal proceedings in a different jurisdiction you’ll need to get a legal opinion on if this test can apply in your jurisdiction, if so to what degree and quite possibly pay a lot of money to have your counsel research the rulings to find out if the test is compatible with the laws, standards and legal tests of your particular jurisdiction.

There is also, inevitably, a lot of involvement in other areas of law such as Contract and Human Rights. Anything involving a business agreement pretty much always involves the principles of contract, even if it’s only an informal or verbal agreement. In most jurisdictions there are also rules that cannot be contracted out of and overrule other aspects – such as Human Rights (which commonly includes Freedom of Expression – a right that generally has complex case/common law associated with it).

So, it’s extremely difficult to make a precise license or contract that will apply to all jurisdictions and a wide variety of products – that’s why Creative Commons is such a blunt and simplified instrument, it’s a tool – not a conclusive solution and certainly not an eternal, unchanging one as evidence by us being on version 4.0 of it (despite its more limited and modest goals).

OGL Part 2. OGL Boogaloo?

As previously mentioned, Brian Lewis was the attorney who drafted the original Open Games License for Wizards of the Coast – which is a document that (as per the Opening Arguments episode) was extremely minimal to a point that it didn’t make sense given the current size of the market involved.

At the time of the OGL fiasco there was a lot of debate over various issues, and while there were no shortage of people who are apparently lawyers who were happy to jump on camera and make vague, inflammatory statements about how terrifying everything was… the reality is a lot of it was ambiguous.

Brian seems to have realized this and seen ORC as an opportunity for a do-over to create an immortal, industry changing piece of work that would be his eternal legacy as an industry standard. It’s an understandable ambitious, but one that compels me to remember the parable of Icarus.

A classical painting of Icarus falling as Apollo rides his chariot above, Daedalus watches helplessly over his shoulder.
The Sun or the Fall of Icarus by Merry-Joseph Blondel (1819)
© Marie-Lan Nguyen / Wikimedia Commons / CC-BY 2.5

Only in this version Daedalus concludes the problem was not the impulsiveness of youth, or human fallibility, but the wings just needed some more engineering so he set off to have another son to affix some wings too…

Azora Law seems to have recognized that the vagueness and minimalism was an issue, and now has gone the complete opposite direction in loading it up with legalese, definitions and a nine page summary of intentions to be submitted as evidence and the ability to be applied to any work. It also includes all the limitations and qualifiers one would expect for a corporate license.

There is frequent restressing of the eternal nature that it’s going to irrevocable and only one version of it will ever be released that can never be altered. But like… wasn’t one of the major problems with OGL that the world changed around it, and the license went way out of scope for the original purpose?

This aspect alone seems to indicate to me that this license too is destined to be burned with hot wax before drowning in the ocean.

The “Morality Clause”

By far the hottest topic of debate in the ORC Discord, and about the Wizards of the Coast proposed OGL 1.1 was the “morality clause” (which more accurately is a “brand protection clause”).

The objection to the clause is that terms used to qualify unacceptable content are always broad and so would be susceptible to manipulation and abuse, thus would be used by Wizards of the Coast to sabotage competitors, engage in the culture wars as a litigant and even allow executives to weaponize it in petty vendettas against past critics.

ORC not only doesn’t include a morals clause, but effectively demands that any creator who is granted Moral Rights to waive them or agree not to employ them if they’re in a jurisdiction where you can’t waive them. (see ORC License, I. d. ii.)

A screenshot of the section of text, with a highlight.
"Moral rights, such as the right of integrity, are not licensed under this ORC License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor *highlight*waives and/or agrees not to assert any such rights held by the Licensor*end highlight* to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise."

This was largely predetermined since one of the Paizo leads on the project, Erik Mona, was vehemently opposed to a morals clause from day one and both promised it would only be added if there was community support for it, and banned “the community” from having discussions that could lead to that:

An announcement post by Paizo: "OFFICIAL ANNOUNCEMENT: There will be NO "Morality Clause" in the first draft of the ORC license. Much later, when we start discussing how individual publishers can contribute their own System Reference Documents to the corpus of Open Game Content covered by the license, we will discuss whether that mechanism might allow companies to put additional limitations on their use of their content, but the time for that conversation is not now. Anyone spending time or energy worrying or spinning wheels about a Morality Clause is wasting time and energy better spent on things that WILL be included in the license. If folks want to re-open the conversation on this topic in February when we are actually looking at the contract's first draft, that discussion is welcome again, but until that point, any discussion about a Morality Clause in the ORC license is a SIDELINE and a DISTRACTION that pulls us away from our common goals. Consider this as close to a "ban" on the topic as possible, and please do your best to politely steer conversation away from this topic. We have more important things to discuss than this. We are closing the morality-clause-archived channel. The discussion on the topic to date has value as a reference point, but continuing the conversation at this point in any channel on this server does not. Please help us to avoid it going forward. It is a waste of everyone's time. Thank you."

Which is quite interesting stance if read as a statement for Paizo, given their compatibility licenses include perhaps the vaguest of moral clauses:

You may not use this License for material that the general public would classify as “adult content,” offensive, or inappropriate for minors.

Paizo Inc. Pathfinder® Second Edition Compatibility License, 4. Usage Restrictions

(These guys released a comic which has heaps of gore, and a non-gory scene of a goblin literally eating a live baby… so like I would assume this means “no boobs” but consider all the ways you could interpret that phrase and how it could vary from location to location.)

Now, the reality of this is that companies don’t really have morals – morals are private thoughts on right and wrong. Employees and owners have morals, companies have ethics and brands. Wizard of the Coast LLC and Paizo Inc don’t want to prevent people from putting out objectional content because the fictional entity will have panic attacks – it’s because they have a brand that makes money and serves the interests of the shareholders.

The main thing that you need to know is that if you release something under ORC, there is literally nothing to stop people who are politically opposed to your existence from grabbing it and making their own product – that includes credits to you.

This also applies to the Creative Commons License, but again, it’s basically a tool and if you look at the the officially listed items a lot of it is stock photos, scientific information, music, policy statements, treatises, etc. Not roleplaying games systems with bits of fiction, artwork, etc included.

Odds are good that Paizo isn’t going to drop that moral clause on their official compatibility license, and is working on having pre-made responses to when someone uses their content in a manner they don’t like – they’re just not advertising it.

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