Pluralistic: John Deere's repair fake-out; Good riddance to the Open Gaming License (12 Jan 2023)

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A remixed version of David Trampier's 'Eye of Moloch,' the cover of the first edition of the AD&D Player's Handbook. It has been altered so the title reads 'Advanced Copyright Fuckery. Unclear on the Concept. That's Just Not How Licenses Work. No, Seriously.' The eyes of the idol have been replaced by D20s displaying a critical fail '1.' Its chest bears another D20 whose showing face is a copyright symbol.

Good riddance to the Open Gaming License (permalink)

Last week, Gizmodo's Linda Codega caught a fantastic scoop – a leaked report of Hasbro's plan to revoke the decades-old Open Gaming License, which subsidiary Wizards Of the Coast promulgated as an allegedly open sandbox for people seeking to extend, remix or improve Dungeons and Dragons:

The report set off a shitstorm among D&D fans and the broader TTRPG community – not just because it was evidence of yet more enshittification of D&D by a faceless corporate monopolist, but because Hasbro was seemingly poised to take back the commons that RPG players and designers had built over decades, having taken WOTC and the OGL at their word.

Gamers were right to be worried. Giant companies love to rugpull their fans, tempting them into a commons with lofty promises of a system that we will all have a stake in, using the fans for unpaid creative labor, then enclosing the fans' work and selling it back to them. It's a tale as old as CDDB and Disgracenote:

(Disclosure: I am a long-serving volunteer board-member for MetaBrainz, which maintains MusicBrainz, a free, open, community-managed and transparent alternative to Gracenote, explicitly designed to resist the kind of commons-stealing enclosure that led to the CDDB debacle.)

Free/open licenses were invented specifically to prevent this kind of fuckery. First there was the GPL and its successor software licenses, then Creative Commons and its own successors. One important factor in these licenses: they contain the word "irrevocable." That means that if you build on licensed content, you don't have to worry about having the license yanked out from under you later. It's rugproof.

Now, the OGL does not contain the word "irrevocable." Rather, the OGL is "perpetual." To a layperson, these two terms may seem interchangeable, but this is one of those fine lawerly distinctions that trip up normies all the time. In lawyerspeak, a "perpetual" license is one whose revocation doesn't come automatically after a certain time (unlike, say, a one-year car-lease, which automatically terminates at the end of the year). Unless a license is "irrevocable," the licensor can terminate it whenever they want to.

This is exactly the kind of thing that trips up people who roll their own licenses, and people who trust those licenses. The OGL predates the Creative Commons licenses, but it neatly illustrates the problem with letting corporate lawyers – rather than public-interest nonprofits – unleash "open" licenses on an unsuspecting, legally unsophisticated audience.

The perpetual/irrevocable switcheroo is the least of the problems with the OGL. As – an actual lawyer, as well as a dice lawyer – wrote back in 2019, the OGL is a grossly defective instrument that is significantly worse than useless.

The issue lies with what the OGL actually licenses. Decades of copyright maximalism has convinced millions of people that anything you can imagine is "intellectual property," and that this is indistinguishable from real property, which means that no one can use it without your permission.

The copyrightpilling of the world sets people up for all kinds of scams, because copyright just doesn't work like that. This wholly erroneous view of copyright grooms normies to be suckers for every sharp grifter who comes along promising that everything imaginable is property-in-waiting (remember SpiceDAO?):

Copyright is a lot more complex than "anything you can imagine is your property and that means no one else can use it." For starters, copyright draws a fundamental distinction between ideas and expression. Copyright does not apply to ideas – the idea, say, of elves and dwarves and such running around a dungeon, killing monsters. That is emphatically not copyrightable.

Copyright also doesn't cover abstract systems or methods – like, say, a game whose dice-tables follow well-established mathematical formulae to create a "balanced" system for combat and adventuring. Anyone can make one of these, including by copying, improving or modifying an existing one that someone else made. That's what "uncopyrightable" means.

Finally, there are the exceptions and limitations to copyright – things that you are allowed to do with copyrighted work, without first seeking permission from the creator or copyright's proprietor. The best-known exception is US law is fair use, a complex doctrine that is often incorrectly characterized as turning on "four factors" that determine whether a use is fair or not.

In reality, the four factors are a starting point that courts are allowed and encouraged to consider when determining the fairness of a use, but some of the most consequential fair use cases in Supreme Court history flunk one, several, or even all of the four factors (for example, the Betamax decision that legalized VCRs in 1984, which fails all four).

Beyond fair use, there are other exceptions and limitations, like the di minimis exemption that allows for incidental uses of tiny fragments of copyrighted work without permission, even if those uses are not fair use. Copyright, in other words, is "fact-intensive," and there are many ways you can legally use a copyrighted work without a license.

Which brings me back to the OGL, and what, specifically, it licenses. The OGL is a license that only grants you permission to use the things that WOTC can't copyright – "the game mechanic [including] the methods, procedures, processes and routines." In other words, the OGL gives you permission to use things you don't need permission to use.

But maybe the OGL grants you permission to use more things, beyond those things you're allowed to use anyway? Nope. The OGL specifically exempts:

Product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark…

Now, there are places where the uncopyrightable parts of D&D mingle with the copyrightable parts, and there's a legal term for this: merger. Merger came up for gamers in 2018, when the provocateur Robert Hovden got the US Copyright Office to certify copyright in a Magic: The Gathering deck:

If you want to learn more about merger, you need to study up on Kregos and Eckes, which are beautifully explained in the "Open Intellectual Property Casebook," a free resource created by Jennifer Jenkins and James Boyle:

Jenkins and Boyle explicitly created their open casebook as an answer to another act of enclosure: a greedy textbook publisher cornered the market on IP textbook and charged every law student – and everyone curious about the law – $200 to learn about merger and other doctrines.

As EFF Senior Staff Attorney Kit Walsh writes in her must-read analysis of the OGL, this means "the only benefit that OGL offers, legally, is that you can copy verbatim some descriptions of some elements that otherwise might arguably rise to the level of copyrightability."

But like I said, it's not just that the OGL fails to give you rights – it actually takes away rights you already have to D&D. That's because – as Walsh points out – fair use and the other copyright limitations and exceptions give you rights to use D&D content, but the OGL is a contract whereby you surrender those rights, promising only to use D&D stuff according to WOTC's explicit wishes.

"For example, absent this agreement, you have a legal right to create a work using noncopyrightable elements of D&D or making fair use of copyrightable elements and to say that that work is compatible with Dungeons and Dragons. In many contexts you also have the right to use the logo to name the game (something called “nominative fair use” in trademark law). You can certainly use some of the language, concepts, themes, descriptions, and so forth. Accepting this license almost certainly means signing away rights to use these elements. Like Sauron’s rings of power, the gift of the OGL came with strings attached."

And here's where it starts to get interesting. Since the OGL launched in 2000, a huge proportion of game designers have agreed to its terms, tricked into signing away their rights. If Hasbro does go through with canceling the OGL, it will release those game designers from the shitty, deceptive OGL.

According to the leaks, the new OGL is even worse than the original versions – but you don't have to take those terms! Notwithstanding the fact that the OGL says that "using…Open Game Content" means that you accede to the license terms, that is just not how contracts work.

Walsh: "Contracts require an offer, acceptance, and some kind of value in exchange, called 'consideration.' If you sell a game, you are inviting the reader to play it, full stop. Any additional obligations require more than a rote assertion."

"For someone who wants to make a game that is similar mechanically to Dungeons and Dragons, and even announce that the game is compatible with Dungeons and Dragons, it has always been more advantageous as a matter of law to ignore the OGL."

Walsh finishes her analysis by pointing to some good licenses, like the GPL and Creative Commons, "written to serve the interests of creative communities, rather than a corporation." Many open communities – like the programmers who created GNU/Linux, or the music fans who created Musicbrainz, were formed after outrageous acts of enclosure by greedy corporations.

If you're a game designer who was pissed off because the OGL was getting ganked – and if you're even more pissed off now that you've discovered that the OGL was a piece of shit all along – there's a lesson there. The OGL tricked a generation of designers into thinking they were building on a commons. They weren't – but they could.

This is a great moment to start – or contribute to – real open gaming content, licensed under standard, universal licenses like Creative Commons. Rolling your own license has always been a bad idea, comparable to rolling your own encryption in the annals of ways-to-fuck-up-your-own-life-and-the-lives-of-many-others. There is an opportunity here – Hasbro unintentionally proved that gamers want to collaborate on shared gaming systems.

That's the true lesson here: if you want a commons, you're not alone. You've got company, like Kit Walsh herself, who happens to be a brilliant game-designer who won a Nebula Award for her game "Thirsty Sword Lesbians":

Hieronymus Bosch's painting, 'The Conjurer.' The Conjuror's shell-game table holds a small John Deere tractor that the audience of yokels gawps at. One yokel is wearing a John Deere hat. The conjurer is holding a wrench.

John Deere's repair fake-out (permalink)

Last week, a seeming miracle came to pass: John Deere, the Big Ag monopolist that – along with Apple – has led the Axis of Evil that killed, delayed and sabotaged dozens of Right to Repair laws, sued for peace, announcing a Memorandum of Understanding with the American Farm Bureau Federation to make it easier for farmers to fix their own tractors:

This is a move that's both badly needed and long overdue. Deere abuses copyright law to force farmers to pay for official repairs – even when the farmer does the repair. That's possible thanks to a practice called VIN locking, in which engine parts come with DRM that prevents the tractor from recognizing them until they pay hundreds of dollars for a John Deere technician to come to their farm and type an unlock code into the tractor's console:

Like all DRM, VIN locks are covered by Section 1201 of the Digital Millennium Copyright Act (DMCA), a 1998 law that criminalizes distributing tools to bypass "access controls," even if you do so for a lawful purpose (say, to fix your own tractor using a part you paid for). Violations of DMCA 1201 carry a penalty of 5 years in prison and a $500k fine – for a first offense.

This means that Deere owners are locked into using Deere for repairs, which also means that if Deere decides something isn't broken, a farmer can't get it fixed. This is very bad news indeed, because John Deere tractors are just computers in a fancy, mobile case, and John Deere is incredibly bad at digital security:

That's scary stuff, because John Deere is a monopolist, and a successful attack on the always-connected, networked tractors and other equipment it supplies to the world's farmers could endanger the global food supply.

Deere doesn't want to make insecure tractors, but it also doesn't want to be embarrassed by security researchers who point out that its security is defective. Because security researchers have to bypass Deere tractors' locks to probe their security, Deere can leverage DMCA1201 into a veto over who gets to warn the public about the mistakes it made.

It's not just security researchers that Deere gets to gag: the company uses its repair monopoly to threaten farmers who complain about its business practices, holding their million-dollar farm equipment hostage to their silence:

This all adds up to what Jay Freeman calls "felony contempt of business model," an abuse of copyright law that allows a monopolistic corporation to reach beyond its own walls and impose its will on it customers, critics and competitors:

If Deere was finally suing for peace in the Repair Wars, well, that was wonderful news indeed – as I said, a seeming miracle.

But – like all miracles – it was too good to be true.

The MOU that Deere and the Farm Bureau signed is full of poison pills, gotchas, fine-print and mendacity, as Lauren Goode documents in her Wired article, "Right-to-Repair Advocates Question John Deere’s New Promises":

For starters, the MOU makes the Farm Bureau promise to end its advocacy for state Right to Repair bills, which would create a repair system governed by democratically accountable laws, not corporate fiat. Clearly, Deere has seen the writing on the wall, after the passage in 2022 of Right to Repair laws in New York and Colorado:

These two bills broke the corporate anti-repair coalition's winning streak, which saw dozens of state R2R bills defeated:

Deere's deal-with-the-devil is a cynical ploy to brake R2R's momentum and ensure that any repairs are carried out on Deere's terms. Now, about those terms…

Deere's deal offers independent repair shops access to diagnostic tools and parts "on fair and reasonable terms," a murky phrase that can mean whatever Deere decides it means. Crucially, the deal is silent on whether Deere will supply the tools needed to activate VIN locks, meaning that farmers will still be at Deere's mercy when they effect their own repairs.

What's more, the deal itself isn't legally binding, and Deere can cancel it at any time. Once you dig past the headline, the Deere's Damascene conversion to repair advocacy starts to look awfully superficial – and deceptive.

One person who wasn't fooled is, the hacker who has done the most important work on reverse-engineering Deere's computer systems, culminating in last summer's live, on-stage hack of a John Deere tractor at Defcon:

Shortly after the announcement, tweeted how the fine-print in the MOU would have prevented him from doing the work he's already done (including "a direct stab at me lol"):

As with other instances of monopolistic, corporate copyfraud – like, say, the deceptive Open Gaming License – the John Deere capitulation is really a bid to take away your rights, dressed up as a gift of more rights:

Hey look at this (permalink)

A Wayback Machine banner.

This day in history (permalink)

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Colophon (permalink)

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