Dear all,
I like the openness to discuss the new YZE Free Tabletop License draft very much and I would like to provide my personal opinion here to add to the discussion.
A. Summary:
Overall, there are many provisions in the draft of the new YZE Free Tabletop License which I find legally problematic because they are out of proportion. I suggest to replace it completely with a
Creative Commons license (CC-BY-4.0) or (better) just the
“human-readable summary“ of that license
https://creativecommons.org/licenses/by/4.0/ or something similar concise.
B. Details:
I am concerned about the negative effect the license as drafted could have on the attitude of the customers towards the licensor. In my opinion, most of the fans just apply such licenses by using the SRD and placing the license with their documents without knowing the implications. But they act in good faith. Because they believe in the good deal between fans and publishers, which should be behind offering an SRD under such a license to the fans:
- The publisher provides to the fans the permission (= license) to copy and paste from the SRD. This helps the fans to use their creativity for their favourite rpg and produce modules and games.
- In exchange for that, the fans produce modules and games for the rpg (it directs their creativity to this rpg and away from other possibly), which helps the publisher to strengthen the relationship to the fans, gain more market visibility and share, and the activity shows potential new customers that the rpg is active, the fans are willing to buy more from the publisher and will probably bring more customers to the publisher by suggesting their fellow players to play the rpg of the publisher.
This already is a sufficiently balanced exchange. There is no need for further protection of the licensor, in my opinion. The risk of any third party claims against the licensor because of something the licensee did seems very low. If the licensee violates the rights of the licensor, this should be resolved on the basis of the law existing outside the license. I cannot see a justification to strengthen the legal position of the publisher (licensor) just because of the grant of the license. But if there are such disproportional “protections” in the license, the publisher might lose the goodwill of the fans when they learn about the “protections” written into the license and see attempts of the publishers to execute them.
I. My opinions on the license draft at this moment
The license draft strengthens the legal position of the licensor to the detriment of the licensees disproportionally.
Section 1. License: not ok
The last sentence seems too harsh. There is no need for automatic termination. Especially if it did not happen intentionally or if it is doubtful whether there was a breach. Automatic termination leaves a (former) licensee with the risk of infringing copyright by having copied from the SRD, making already produced but not sold units of (formerly licensed) YZE-games illegal.
Section 2. Exclusions: ok
Section 3. Ownership of the YZE SRD: not ok
The first sentence could mean firstly, that licensees agree that all rights in the SRD (copyright and possibly patents) are owned by Free League, even if that was (theoretically) not true. Secondly, the licensees actually waive (= give up) their rights to contest any of those (alleged) rights. So even if it was obvious or doubtful whether Free League infringed on the rights of the licensees, the license would hereby cut off the way to independent courts.
Section 4. Ownership of your game: not ok
While section 4 in my opinion is mostly only unnecessary, I do not like the last sentence. It states something which (in respect of copyright law) is self-understanding, but – and this is my point – lacks reciprocity to the licensees. Moreover, section 3 could deprive licensees of this natural right of independent creation.
Section 5. Logo: ok
Section 6. Notice: ok
Section 7. Restrictions: not ok
What means “imply” in this context? In my opinion, section 7 is not necessary, because any such issue could be resolved by the law anyhow. It is not too problematic for me, so deleting “or imply” could be sufficient for this to be ok for me.
Section 8. Representations: not ok
The representation is useless, in my opinion (legally, of course as a threat to the unknowing it could work). The rest, the non-infringement of third party rights is none of the licensor’s business (and how are the licensees to know for sure?). Unless a court of last instance has ruled, nobody can be sure, not even publishers of roleplaying games, that their products do not infringe other persons rights… And the same goes for compliance with all applicable laws, rules, and regulations in every jurisdictions in which the works are distributed.
Section 9. Indemnity: not ok
An indemnity can be an extremely severe type of liability, depending on how it is understood. The language in section 9 implies, that this indemnity has to be understood in the classical, harsh way: even if the “demands” of the third parties are unsubstantiated, unproven and (as a court would rule if it would go to court) unjustified, still the licensees are to keep the licensor free of the usual and everyone’s risk of being subjected to unjustified claims. There is no monetary limitation of the liability of the licensees here. The last sentence is limited to copyrights of third parties, but leaves out any other rights. This appears unfair.
Section 10. Disclaimer: ok (disregarding possible invalidity by law)
Good lawyers would recommend this to protect their client. But I would consider deleting this, as the risks seem low.
Section 11. Miscellaneous: not ok
The recommendation to review this with a lawyer is unrealistic. I assume, that no fan will consult a lawyer about this, but will just start creating (unknowingly about the full implications) on the basis of the license.
The sentence “Free League may update this agreement at its sole discretion, but you will continue to have the right to use the YZE SRD under the terms of the version that was in effect at the time you created your game.” sounds ok at first glance, but it is not in my opinion. This would give Free League the opportunity to change the license and possibly cut off future YZE business of persons who have invested considerably into this.
II. Conclusion
I would like to see this draft of the YZE Free Tabletop License dropped (all sections, even those I marked as “ok”). My preference would be to instead to see a license for the YZE SRD offered, which is either a Creative Commons license or (better) a reduced version of a Creative Commons License. It should be the CC-BY-4.0, but more or less only in its “human readable form” as on this page:
https://creativecommons.org/licenses/by/4.0/ (yes, used as a substitute for the
https://creativecommons.org/licenses/by/4.0/legalcode).
The advantage would be that a Creative Commons license is beyond doubts of its fairness (arguably). I think that the “legalcode version” in this case does not provide anything necessary over the reduced “human readable summary”.
While Creative Commons do not suggest to use the “human-readable summary” instead of the “legalcode version”, I do so.
I like Free League and the Free League games very much and hope that my thoughts are useful.
Kind regards
ChrisTN