#kit walsh

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:

https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634

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:

https://en.wikipedia.org/wiki/CDDB#History

(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.)

https://musicbrainz.org/

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 Rob Bodine— 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.

https://gsllcblog.com/2019/08/26/part3ogl/

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?):

https://onezero.medium.com/crypto-copyright-bdf24f48bf99

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:

https://pluralistic.net/2021/08/14/angels-and-demons/#owning-culture

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:

https://web.law.duke.edu/cspd/openip/#q01

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.”

https://www.eff.org/deeplinks/2023/01/beware-gifts-dragons-how-dds-open-gaming-license-may-have-become-trap-creators

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”:

https://evilhat.com/product/thirsty-sword-lesbians/

happy pride from me and my legacy!! i love queerness and i love all of you!! stay stafe and have a wonderful june :)

Lord Christopher "Kit" Walsh has a fundamental belief that in order to design good clothing, one must dress well. Almost always in suits and slacks, Kit appreciates the stylized look of the wealthy and white-collar workers of the 1960s, tailored to his personal taste, with vibrant colors, but never so much to be considered corny or distasteful (in his opinion, at least). Even his jeans are designer. Style inspiration calls back to the early seasons of Mad Men (Janie Bryant I love you) with some hints of later 60s fashion worn by male celebrities like Steven McQueen. Links and credits under the cut!

After spending nearly three years just making movies in French, Ludivine found acting in English odd, even if it was what she started with. The film was a stark difference from Dust Storms, a comedy set in the 1780s. Weekdays were spent in the countryside, and on the weekends, Ludivine stayed with Kit in London. She missed London, and seeing her cousin finally in a serious relationship made her very happy, and even though they had only been seeing one another for four months, she could tell that Kit was enamored with Raúl.

“Do Mama and Papa know you and Lenny are back together?”

She shook her head. “I’m waiting until I finish A Scandalous Lady before I say anything. Aunt Eleora actually called me to commend how mature I was to be able to be friends with my ex.” She laughed. “They are going to be so disappointed. Especially when I tell them I’m planning to move to America next year to live with him.”

Raúl chuckled. “All family members are the same everywhere: always butting into your love life.”

“Don’t I know it? Doesn’t help that he just out of prison.”

Kit’s eye widened. “Prison?!”

“Tony-nominated actor Lenny Kremensky arrested for aggravated assault on a police officer during protests in Selma,” Raúl stated monotonously, like he reading the news headline for the camera. “Happened in March.”

“He pulled a cop off of a teenage girl he was beating with a baton, got whacked in the face with said baton and responded by punching the lights of out of the cop,” Ludivine explained. “Carl was the one who called me about it. There were witnesses to say that the cop punched first thank god, so he got lucky with pleading guilty and serving two months.”

“Good God,” Kit muttered. Ludivine waved her hand. “He says that when he came back to New York, everyone now wants to fuck him because now he’s the biggest hot shot in the leftist artist circles. He’s fine.”

Kit sighed. “Why is it always America at the root of anything? First with what is happening in the South, and now Vietnam? Bloody hell.”

Raúl gave his boyfriend a fixed look. “That’s rich coming from the Englishman.”

Kit scowled. “You know what I mean.”

Ludivine chuckled. “You and Lenny would get along.”

“Isn’t he supposed to ring today?” Kit asked, eager to change the subject.

She nodded. “He promised to call here since I told him I was in London for the weekend, and it’s slightly cheaper to call a large city internationally than a small town.”

Almost right on cue, the phone began to ring, and Ludivine jumped up from the floor. “That’s my cue!”

She walked over to the pink telephone, picked it up, excited to hog Kit’s phone for a good while, talking about the latest gossip and news with Lenny. Instead, when she held the phone to her answer, accepting the international call from the operator, she was greeted with heavy sobs.

“Lenny?”

He gasped into the phone. “I got fuckin’ drafted.”

It had been some time since Kit had last found himself in an establishment catered to men like him. It was the same one he had frequented in uni, the same one where he had met Lenny Kremensky. It hadn’t changed much. It was still somewhat run-down. Still hidden in a basement. He sat alone at the bar, nursing a beer. If he didn’t end up leaving with someone, he was definitely leaving drunk. 

Across the bar, he noticed, was a man looking right at him, the same beer Kit was drinking in his hand. He was handsome, wearing thick glasses, and dressed in a suit Kit would wear. Well, there was someone at least minimally interested. Kit would take it.

Slowly, Kit raised his beer toward the man and nodded. He said the same. Then after a moment, the man nodded his head over, beckoning. Kit stood up and followed. Their bottles met with a clink.

“Come here often?”

The man shook his head. “I don’t really have the time. …And well, I like my job.”

“I know that feeling.” His eyes narrowed. “What accent is that? Spanish, but you don’t like a Spaniard. You also sound a bit American.”

“Puerto Rican,” the man corrected. 

“Ah. Near Bermuda and Cuba, yes?”

“Sí. And you?”

“Henford-on-Bagley. South of Liverpool and Manchester.”

“You sound a bit too… what’s the word you people use—ah, posh!”

Kit chuckled. “I am posh, I’m afraid.”

“How posh?”

He knew it was silly to use a fake name, and his sexuality was practically an open secret anyway. “I have Lord in front of my name.”

“Mierda. …What follows Lord?”

“Christopher, but everyone calls me Kit. And you?”

“Raúl.” The name rolled off his tongue like butter. 

Kit liked it, he decided, reaching out to touch Raúl’s waist.

“Well, Raúl, if you don’t mind my impertinence, I would love to know more about you.” 

Raúl’s hand groped his bottom. “I don’t mind at all, my lord.”

Kit set his beer down with a soft laugh, feeling giddy. “Don’t call me that.” He gently pushed the other man into the bar as their lips met, smelling and tasting like beer. He very much hoped that Raúl would be leaving with him.

Months of preparation finally led to this moment. Guests had come from across the United States, across the Atlantic Ocean, and even as far as Hong Kong. Carl knew their marriage was peculiar, though since the war, interracial marriages had increased, and in a diverse city like Detroit, Carl figured they would have little trouble compared to if they lived in the South. They had decided to have a small ceremony and a large reception, planning made easier for the church and all those coming from across the world, to keep the ceremony family, intimate friends, and the wedding party only, saving the large party and celebration for the reception.  

When the organ began to play the familiar Wedding March, Carl’s heart pounded against his chest as Lydia walked into the room, escorted by her father, and he couldn’t help but gasp at the sight of her dress. She looked like the most beautiful thing in the room, radiant in white.

That very March Saturday, in the afternoon, Carl Jedidiah Carmichael and Lydia Leung were married at the Second Baptist Church in Detroit, Michigan. 

The end of March came, as did the premiere of the latest production of William Shakespeare’s iconic tragedy. Previews had raved about the performance of the two newcomer leads, commending the director for the idea of having veterans in side roles and allowing new talent to shine. More so that an American like Lenny Kremensky could pull off a perfect posh accent. 

Byron and Eleora were proud of their niece, even if they hadn’t approved of her choice to skip school, but seeing her perform on the West End stage, it was clear that she had the talent needed to have her name on posters and billboards. Even her boyfriend, which they were both miffed that she hadn’t said anything until New Year’s, when Shelley had asked about him, was an absolute force to be reckoned with. Eleora and Byron were both shocked when Kit had told them that Lenny’s real accent was a very thick Appalachian one. 

Kit was hosting a fancy (and catered) dinner at his newly renovated flat, and Byron was shocked by how different it all looked compared to when it had been his sister’s. The new-age style was very different from what he was used to, and he wasn’t sure if he liked all the color and interestingly designed furniture. Shelley seemed enamored with Lenny, asking him a million questions about his life in West Virginia, what living in London was like, his favorite movie, and most importantly, his thoughts on some new band from Liverpool, The Beatles. In all honesty, Lenny reminded Byron of himself, or at least when he was that age—cocky, proud, and determined to face the world head-on. He remembered how he was when he had eloped with Stella. He remembered how it turned out, and it worried him. He didn’t want Ludivine to end up resentful and angry with a partner who couldn't truly give her the support she needed.  

With Lenny leaving to check on his aunt, Shelley off to bed in the guestroom, and Kit taking care of some last-minute business in his office downstairs, Ludivine was left alone with her aunt and uncle. 

“You look so beautiful in that dress,” The older woman declared, admiring the red dress and jewelry get-up Ludivine was wearing. “And in my mother’s old ruby set.”

“Kit made it,” She said with a shy shrug. “So, what did you think about Lenny?” Ludivine asked eagerly, a nervous smile spreading onto her face.

“He’s very funny,” Eleora answered with an easy grin, “and he’s smart, and he loves his family. All good things to look for in a boyfriend. I cannot believe how you met and that he knew Kit as well. Forgive me, I’m sounding like my mother, but I just love that he’s Jewish on top of it—not that it matters, of course,” she assured, gesturing to her former goy husband. “I’m quite pleased.”

“He was very nervous about meeting you, being a duke and duchess after all.”

“Well, I doubt anyone from his hometown in West Virginia has ever or will ever meet a duke or duchess.”

“What did you think of Lenny, Uncle Byron?”

Byron swallowed before sighing. “Like your aunt said. He’s good with kids, he’s intelligent.”

Ludivine frowned. “But?”

“I don’t know, it’s just… he reminds me of me when I was that age. Stubborn, cocky, that kind of self-determined attitude isn’t healthy. It ruined my relationship with Stella. I was immature, and I don’t want that for you.”

Ludivine’s face twisted into anger, and she stood up. “You’re just pushing your idea of what you want for me! I know he’s not what the British upper class wants for marriage, and I honestly don’t care! You say that you support and believe in workers’ rights, but when was the last time you actually spoke to someone who lives in public housing? You’re the reason why Simon-Elliot never said anything about Lydia, so why should I listen to you about relationship advice?!”

“Ludivine Eugenia Balass!” Eleora shouted, but the younger woman stomped away without a second word.

It was Ludivine’s last night in London. Her flight to Los Angeles was tomorrow afternoon, where she was almost immediately going to film her American debut the day after. Kit was upset, but he didn’t tell his cousin. Sure, she had lived in Paris for the last few years, but Paris and Los Angeles were very different in terms of distance and culture. They gossiped and laughed like normal, but Kit still couldn’t shake the feeling of impending loneliness. He and Ludivine had been tied to the hip for as long as he could remember, even when they were going to different boarding schools. They were twenty-five and twenty-three, making their way into the world. Ludivine had wanted to go to Hollywood since she was a child, and now she was finally doing it. 

Kit’s mood improved when Ludivine explained her “temporary breakup” with Lenny, which had Raúl crying from laughter. Lenny and Ludivine were arguably the most interesting couple Kit knew, and he said that for good reasons and bad reasons. It was never a dull moment concerning his cousin’s love life.