# Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.



## DavyGreenwind

Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.

*First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext 

The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.

The good news is that, because of the reliance principle, third party creators who have already created a work under the OGL likely could continue to sell that work even if the OGL were revoked. They just could not create any new works. Kobold Press's "Tome of Beasts" would not have to be removed from the market, for instance. But they might have trouble doing a new one down the line.

*Second, *some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law. In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.

It is likely that the SRD is a combination of "game mechanics" and original copyrightable content. The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.

It is all about a larger copyright concept, wherein "ideas" cannot be copyrighted, but "expressions" can. This is super complex, famously confounding even to legal scholars, and a little beside the point, so I won't go into it here. If you are interested in reading more on the subject, I recommend an article called "Games and other uncopyrightable systems," 18 Geo. Mason L. Rev. 439.

"But even if the SRD is protected by copyright, I won't violate WotC's copyrights as long as I don't print SRD word-for-word, right?" 

Wrong. That brings me to my third point.

*Third, *not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it.  Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.

There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader. A 5e sourcebook, however, might compete with official 5e sourcebooks in the eyes of a reviewing court.

Bottom line. Without the OGL and SRD, any person wanting to make content for 5e without WotC's permission would have to parse through the document and try to determine what is really "game mechanics" and what are expressions of WotC's original creation. And _then, _when writing their document, they would have to determine if their work is derivative of WotC's. Are subclasses derivative of the original class? Are new dragon statblocks derivative of existing dragon statblocks? I don't know the answer to this, and neither does any lawyer on Earth, because it has almost never been tested in litigation. Even small differences in the doc could make a huge difference in court.

I post this as a PSA, because, based on the advice I have been seeing from nonlawyers, people are being steered in the wrong direction. I know this will be bad news to most people, so don't shoot the messenger.


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## Alzrius

Thanks for posting that.

What about the idea put forward that, if someone wants to create new material under the OGL v1.0a (after its revocation), they can do so as long as they make use of preexisting Open Game Content from an OGL v1.0a product that was published prior to the revocation, under the idea that they're sub-licensing with that publisher, rather than with WotC directly?


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## Yaarel

If WotC did (try to) revoke the OGL, the gaming community would need to migrate to a new gaming engine that did offer an irrevocable license. And build new settings and features.


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## DavyGreenwind

Alzrius said:


> Thanks for posting that.
> 
> What about the idea put forward that, if someone wants to create new material under the OGL v1.0a (after its revocation), they can do so as long as they make use of preexisting Open Game Content from an OGL v1.0a product that was published prior to the revocation, under the idea that they're sub-licensing with that publisher, rather than with WotC directly?



I think it would be tricky to pull off, and depend upon the answers to unsettled questions. For instance, if a court were to find that Druid subclasses were fundamentally derivative of the Druid Class in the SRD, it might be tough to publish a Druid subclass, even if you claim to be basing it off of a Druid subclass, or even an alternate Druid class, from a third-party supplement.

But then again, a court could find that classes are game mechanics (I don't think so, but who knows), and then we could have Druid subclasses galore.


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## Art Waring

Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF1e/2e SRD?


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## Alzrius

Art Waring said:


> Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF12/2e SRD?



Actually, I don't believe that Paizo ever put out an SRD per se. They had an incomplete repository of Open Game Content from some of their books that they called the PRD (Pathfinder Reference Document), but that website was eventually shelved in favor of letting other websites archive their Open Game Content.

But I don't think that makes a difference, since as far as I know all Pathfinder content is based off of the 3.5 SRD anyway.


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## Yaarel

@DavyGreenwind 

The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?


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## DavyGreenwind

Art Waring said:


> Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF12/2e SRD?



Oooo, that's a tricky one. I doubt WotC would ever go after anyone publishing under the Pathfinder License. They would basically have to go after Pathfinder themselves. I'd have to think about that one, crack open the textbooks again.


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## mhd

"Hey Paizo, here's Greyhawk and a promise of perpetual friendship, now just do this…"


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## S'mon

Yaarel said:


> @DavyGreenwind
> 
> The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?




They generally look at what the words would mean to a reasonable person at the time. I think WoTC's 2000 FAQ explaining their intent would certainly be relevant.


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## Art Waring

Alzrius said:


> Actually, I don't believe that Paizo ever put out an SRD per se. They had an incomplete repository of Open Game Content from some of their books that they called the PRD (Pathfinder Reference Document), but that website was eventually shelved in favor of letting other websites archive their Open Game Content.
> 
> But I don't think that makes a difference, since as far as I know all Pathfinder content is based off of the 3.5 SRD anyway.



They do have their own SRD on the hypertext d20 website called the Pathfinder Reference Document or PRD. & the pfd20srd has the PF2e SRD.


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## GMforPowergamers

DavyGreenwind said:


> Oooo, that's a tricky one. I doubt WotC would ever go after anyone publishing under the Pathfinder License. They would basically have to go after Pathfinder themselves. I'd have to think about that one, crack open the textbooks again.



if you are doing thought experiments how does this effect retroclones and other genre games (like say mutants and masterminds). Heck could they slap down a C&D on enworld for level up?


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## DavyGreenwind

Yaarel said:


> @DavyGreenwind
> 
> The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?



In Europe and other parts of the world, yes. In the United States, a big nope.

Protecting the original intent of the creator in copyright law falls under the umbrella of what are called "moral rights." (I'm paraphrasing and nutshelling here). Basically, content creators under moral-rights systems have some control over the way their content is used and displayed, even after they sell it to someone else. If I'm a painter, and I sell my painting to someone, I could sue them if they destroyed it, even though it is "theirs," because I have a moral right to not have my painting destroyed.

In the US, there generally are no moral rights. If I buy a painting, I can throw it into the ocean if I want, and no one could do a thing about it (there may be some weird exception to paintings I don't know about. I'm just using paintings as an example).

All this to say that WotC can revoke the license for any reason or no reason. The best way to think about an open license is like a "lost dog, $500 if found" sign. As long as that sign is up, anyone who brings me my dog is legally entitled to $500. But if I change my mind, take down the sign, and put up a new sign that says "never mind, I revoke my offer," a person could not show up 5 years later with my dog and demand $500.


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## RangerWickett

Yaarel said:


> @DavyGreenwind
> 
> The original intent of the persons in WotC was precisely to make the OGL irrevocable. Would courts take original intent into account if a dispute arose against revocation?



I mean, check out the FAQ WotC had on their own site in 2004, available from Archive.org Open Game License:Frequently Asked Questions

*Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?*

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

---

I'm sure we could just ask Ryan Dancey what his intentions were. I'm pretty sure they did not include "letting hungry hungry Hasbro crush any game publisher that refused to serve as a vassal."


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## S'mon

DavyGreenwind said:


> Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.
> 
> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext
> 
> The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.
> 
> The good news is that, because of the reliance principle, third party creators who have already created a work under the OGL likely could continue to sell that work even if the OGL were revoked. They just could not create any new works. Kobold Press's "Tome of Beasts" would not have to be removed from the market, for instance. But they might have trouble doing a new one down the line.
> 
> *Second, *some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law. In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.
> 
> It is likely that the SRD is a combination of "game mechanics" and original copyrightable content. The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.
> 
> It is all about a larger copyright concept, wherein "ideas" cannot be copyrighted, but "expressions" can. This is super complex, famously confounding even to legal scholars, and a little beside the point, so I won't go into it here. If you are interested in reading more on the subject, I recommend an article called "Games and other uncopyrightable systems," 18 Geo. Mason L. Rev. 439.
> 
> "But even if the SRD is protected by copyright, I won't violate WotC's copyrights as long as I don't print SRD word-for-word, right?"
> 
> Wrong. That brings me to my third point.
> 
> *Third, *not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it.  Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.
> 
> There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader. A 5e sourcebook, however, might compete with official 5e sourcebooks in the eyes of a reviewing court.
> 
> Bottom line. Without the OGL and SRD, any person wanting to make content for 5e without WotC's permission would have to parse through the document and try to determine what is really "game mechanics" and what are expressions of WotC's original creation. And _then, _when writing their document, they would have to determine if their work is derivative of WotC's. Are subclasses derivative of the original class? Are new dragon statblocks derivative of existing dragon statblocks? I don't know the answer to this, and neither does any lawyer on Earth, because it has almost never been tested in litigation. Even small differences in the doc could make a huge difference in court.
> 
> I post this as a PSA, because, based on the advice I have been seeing from nonlawyers, people are being steered in the wrong direction. I know this will be bad news to most people, so don't shoot the messenger.




I agree with you about game mechanics. I also think that WoTC can cease to licence material under the OGL 1.0 (and almost certainly can stop ONE D&D being licenced under the 1.0 OGL). However I don't think they can stop the third party sub-licensing permitted via the OGL 1.0. If I'm right then a 3PP can still sub-licence the contents of the 5e SRD from eg 5th Edition SRD under the OGL 1.0. If I'm wrong then Open Software goes away too.


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## DavyGreenwind

GMforPowergamers said:


> if you are doing thought experiments how does this effect retroclones and other genre games (like say mutants and masterminds). Heck could they slap down a C&D on enworld for level up?



Forgive my squirreliness, but that would be tiptoeing dangerously close to legal advice. I must generally refrain from commenting on specific works. I will say that other genres that are merely using a D20 system are probably on better footing than something that is specifically a 5e supplement.


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## Alzrius

Art Waring said:


> They do have their own SRD on the hypertext d20 website called the Pathfinder Reference Document or PRD. & the pfd20srd has the PF2e SRD.



I'm not sure about PF2E, but the Hypertext one is just a clone of Paizo's defunct PRD, though looking at the Open Game License listing, there's a 2011 listing for a Pathfinder Reference Document, which I'm guessing is the original website.


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## S'mon

DavyGreenwind said:


> In Europe and other parts of the world, yes. In the United States, a big nope.
> 
> Protecting the original intent of the creator in copyright law falls under the umbrella of what are called "moral rights." (I'm paraphrasing and nutshelling here). Basically, content creators under moral-rights systems have some control over the way their content is used and displayed, even after they sell it to someone else. If I'm a painter, and I sell my painting to someone, I could sue them if they destroyed it, even though it is "theirs," because I have a moral right to not have my painting destroyed.
> 
> In the US, there generally are no moral rights. If I buy a painting, I can throw it into the ocean if I want, and no one could do a thing about it (there may be some weird exception to paintings I don't know about. I'm just using paintings as an example).
> 
> All this to say that WotC can revoke the license for any reason or no reason. The best way to think about an open license is like a "lost dog, $500 if found" sign. As long as that sign is up, anyone who brings me my dog is legally entitled to $500. But if I change my mind, take down the sign, and put up a new sign that says "never mind, I revoke my offer," a person could not show up 5 years later with my dog and demand $500.




This is confusing Moral Rights of the Author (which I did my PhD on!) with interpretation of contract terms.  'Intent' of the author in Droit D'Auteur is a completely separate issue from interpreting what a contract means.

The second 'lost dog' point is mixing up revocation of an offer (in a unilateral contract) with the question of whether WoTC can terminate an existing contract. Or even stop third parties contracting via a sub-licence.

(Sorry if I'm persnickety, I have a pile of student contract problem papers I'm marking!)


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## DavyGreenwind

S'mon said:


> They generally look at what the words would mean to a reasonable person at the time. I think WoTC's 2000 FAQ explaining their intent would certainly be relevant.



Intent matters. but the words on the page always trump intent. And open licenses are strange things anyway, not like normal contracts. Especially when it comes revocability, the word on the page matters. "Irrevocable" is a very common word used in licenses, and if it is not there, the license is generally presumed revocable.


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## kenada

Art Waring said:


> Pathfinder has two separate SRD's for 1e & 2e, these aren't owned by wotc, so presumably one could continue to use the 1.0a in conjunction with the PF1e/2e SRD?



Pathfinder 1e and 2e both use the 3e SRD. It doesn’t seem like using Pathfinder instead would be any more safe.


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## RangerWickett

I feel like the family in Knives Out, trying to argue about legal things because we don't like what's happening, and the actual lawyer has to keep shooting down our hopes.


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## Art Waring

Alzrius said:


> I'm not sure about PF2E, but the Hypertext one is just a clone of Paizo's defunct PRD, though looking at the Open Game License listing, there's a 2011 listing for a Pathfinder Reference Document, which I'm guessing is the original website.



Ah ok, I did also find this link to the original PRD. 



> 9/13/2018 - The Pathfinder Reference Document will no longer be updated, but is available for reference in its last updated state. Paizo has partnered with Archives of Nethys to provide the community with online versions of the Pathfinder RPG rules at *pfrd.info*. You can learn more about this change on the Paizo blog.


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## DavyGreenwind

S'mon said:


> This is confusing Moral Rights of the Author (which I did my PhD on!) with interpretation of contract terms.  'Intent' of the author in Droit D'Auteur is a completely separate issue from interpreting what a contract means.



You make a great point, and I will defer to Ph.D. I agree that an author's "intent" qua work of art is distinct from a party's "intent" qua contract. But I think the question posed, which I attempted to answer, blurs the two. Is the SRD a legal contract, or a work of art? One could argue that the OGL is a legal contract, with the SRD attached, for reference, as a work of art. In any case, the SRD author's "intent" as to revocability is irrelevant as a matter of copyright law, and the OGL author's intent is probably irrelevant as a matter of license law.

I totally agree that a distinction should be made between the two.


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## Art Waring

kenada said:


> Pathfinder 1e and 2e both use the 3e SRD. It doesn’t seem like using Pathfinder instead would be any more safe.



Its possible, that's why I asked.


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## S'mon

DavyGreenwind said:


> Intent matters. but the words on the page always trump intent.




Well in English law we have "over riding oral undertaking" - even where the words on the page are clear, if you tell someone they mean something different...

From what I can tell, the meaning of 'perpetual' has been held to depend on the context.


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## Haplo781

DavyGreenwind said:


> In Europe and other parts of the world, yes. In the United States, a big nope.
> 
> Protecting the original intent of the creator in copyright law falls under the umbrella of what are called "moral rights." (I'm paraphrasing and nutshelling here). Basically, content creators under moral-rights systems have some control over the way their content is used and displayed, even after they sell it to someone else. If I'm a painter, and I sell my painting to someone, I could sue them if they destroyed it, even though it is "theirs," because I have a moral right to not have my painting destroyed.
> 
> In the US, there generally are no moral rights. If I buy a painting, I can throw it into the ocean if I want, and no one could do a thing about it (there may be some weird exception to paintings I don't know about. I'm just using paintings as an example).
> 
> All this to say that WotC can revoke the license for any reason or no reason. The best way to think about an open license is like a "lost dog, $500 if found" sign. As long as that sign is up, anyone who brings me my dog is legally entitled to $500. But if I change my mind, take down the sign, and put up a new sign that says "never mind, I revoke my offer," a person could not show up 5 years later with my dog and demand $500.



So couldn't (for example) Paizo just create a dummy corporation based in the EU and register everything under that, leaving WotC without recourse?


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## S'mon

DavyGreenwind said:


> I think it would be tricky to pull off, and depend upon the answers to unsettled questions. For instance, if a court were to find that Druid subclasses were fundamentally derivative of the Druid Class in the SRD, it might be tough to publish a Druid subclass, even if you claim to be basing it off of a Druid subclass, or even an alternate Druid class, from a third-party supplement.
> 
> But then again, a court could find that classes are game mechanics (I don't think so, but who knows), and then we could have Druid subclasses galore.




The issue is that the Druid class was released - licenced - under the OGL 1.0 in the 3e, 3.5e, and 5e SRDs.  The OGL licenced the creation of derivative works based on that. They included a sample subclass in the 5e SRD so that 3PPs could make their own subclasses on the same model.


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## Snarf Zagyg

DavyGreenwind said:


> Intent matters. but the words on the page always trump intent. And open licenses are strange things anyway, not like normal contracts. Especially when it comes revocability, the word on the page matters. "Irrevocable" is a very common word used in licenses, and if it is not there, the license is generally presumed revocable.




I would quibble a little with the phrasing here. It's not that the words on the page _trump _intent; it's that the words on the page are the evidence of the intent! After all, you memorialized your intent in writing.

The reason we have these complicated rules about parol evidence (extrinsic evidence) is not because intent doesn't matter, but because we are trying to avoid situations wherein people are pointing to other documents (or conversations) instead of the actual text of the contract as the evidence of the intent of the parties.

That said, given that there appears to be some ambiguity in the license, a lack of any merger clause (or similar), and the repeated contemporaneous statements of intent by the author of the contract that it was meant to be irrevocable- I am less certain than you about the results of a court action.


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## Mistwell

I am also a lawyer, and this is my 28th year as an attorney. I also have represented RPG companies using the OGL. Companies almost everyone here know. I am familiar with these topics as I've had to work with them, on a practical basis not just a theoretical one, for decades now.

I disagree with your legal interpretation. I am not interested in that debate as I think it's unwise to be posting definitively on this topic. But I think you're legally in error on several important points.


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## Siberys

Even if this is all true, does the fact that Wizards claimed in an official capacity (via the FAQ) that it was unrevocable factor in at all? Wizards is essentially claiming they lied to the entire industry about intent, and a large number of people worked based off of that statement. Like, even if 1.0 and 1.0a are revocable, is it enforceable?


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## DavyGreenwind

RangerWickett said:


> I mean, check out the FAQ WotC had on their own site in 2004, available from Archive.org Open Game License:Frequently Asked Questions
> 
> *Q: Can’t Wizards of the Coast change the License in a way that I wouldn’t like?*
> 
> A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.
> 
> ---
> 
> I'm sure we could just ask Ryan Dancey what his intentions were. I'm pretty sure they did not include "letting hungry hungry Hasbro crush any game publisher that refused to serve as a vassal."



This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.

So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."

I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.

So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their _current policy, _but I don't think it is an accurate representation of their own legal rights.


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## h4b3rm4s

On copyright of RPG classes, wouldn't protecting these general classes amount to a restriction on the use of a straightforward concept and thus restrict creativity, countering the purpose of copyright? There aren't many ways to effectively express that a character is a fighter or a monk etc.


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## S'mon

DavyGreenwind said:


> So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
> 
> I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.




You think writing a contract is like writing legislation? I think @pemerton would have a thing or two to say about that!  

Corporations are not Legislators (yet!), and unlike legislatures, they can't bind you with terms you've not agreed to. They can withdraw an offer, and they can usually terminate an indefinite contract agreement, on reasonable notice.


----------



## Snarf Zagyg

DavyGreenwind said:


> This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.
> 
> So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
> 
> I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.
> 
> So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their _current policy, _but I don't think it is an accurate representation of their own legal rights.




Well, yes ... but legislation is _sui generis_ and not the same as contract law. It's well settled that legislatures cannot bind future legislatures with basic legislation- but that's neither here nor there when it comes to contract law.


----------



## RangerWickett

DavyGreenwind said:


> This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.
> 
> So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
> 
> I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.
> 
> So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their _current policy, _but I don't think it is an accurate representation of their own legal rights.



I think you're perhaps putting the horse after the cart. Yes, a law can be revoked, but you GENERALLY can't say after the fact that something was illegal if it happened during a period when the law clearly said it was legal.

There's already established copyright law, and the OGL was an agreement saying that the rights holder of anything released as Open Gaming Content waives their ability to prevent copying, so long as that content is published with the OGL. 

Once you waive a right, you cannot post hoc assert that right for things you did while you had waived it.

WotC can certainly say "We're not releasing any more OGC material," but I don't think they can say, "That stuff we released is ours again."


----------



## DavyGreenwind

S'mon said:


> Well in English law we have "over riding oral undertaking" - even where the words on the page are clear, if you tell someone they mean something different...
> 
> From what I can tell, the meaning of 'perpetual' has been held to depend on the context.



For this, I refer you to the parol evidence rule, which basically says that discussions or agreements outside of the contract are generally only acceptable to prove the meaning of _ambiguous _terms (or to prove fraud). If a term is not ambiguous, a court generally will not look at outside evidence to ascertain the meaning of the term. See this link: 
(https://content.next.westlaw.com/pr...construction,or contradict a written contract).

In some states, the context-dependent approach is indeed the dominant principle by which contracts are interpreted, and parol evidence (or evidence outside of the contract) can often be introduced (even in these states, the words on the page will generally trump words not on the page).

But in the majority of states, the dominant approach is the "four corners" approach, whereby a court will not look past the four corners of a document to ascertain its meaning (with very limited exceptions). This is the approach New York takes, and because of this, many companies will specify that their contract is under New York law, even if none of the parties lives in New York or even the United States.


----------



## S'mon

DavyGreenwind said:


> For this, I refer you to the parol evidence rule, which basically says that discussions or agreements outside of the contract are generally only acceptable to prove the meaning of _ambiguous _terms (or to prove fraud). If a term is not ambiguous, a court generally will not look at outside evidence to ascertain the meaning of the term. See this link:
> (https://content.next.westlaw.com/practical-law/document/Ibcb5f94d7cfa11e79bef99c0ee06c731/Parol-Evidence-Rule?viewType=FullText&transitionType=Default&contextData=(sc.Default)&firstPage=true#:~:text=A rule of contractual construction,or contradict a written contract).
> 
> In some states, the context-dependent approach is indeed the dominant principle by which contracts are interpreted, and parol evidence (or evidence outside of the contract) can often be introduced (even in these states, the words on the page will generally trump words not on the page).
> 
> But in the majority of states, the dominant approach is the "four corners" approach, whereby a court will not look past the four corners of a document to ascertain its meaning (with very limited exceptions). This is the approach New York takes, and because of this, many companies will specify that their contract is under New York law, even if none of the parties lives in New York or even the United States.




Yes, I'm aware of the parol evidence rule. I teach it. 

It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.


----------



## GMforPowergamers

S'mon said:


> Yes, I'm aware of the parol evidence rule. I teach it.
> 
> It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.



as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.


----------



## DavyGreenwind

Snarf Zagyg said:


> Well, yes ... but legislation is _sui generis_ and not the same as contract law. It's well settled that legislatures cannot bind future legislatures with basic legislation- but that's neither here nor there when it comes to contract law.



True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.

The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.


----------



## DavyGreenwind

GMforPowergamers said:


> as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.



That is absolutely the nature of law.


----------



## Yora

Haplo781 said:


> So couldn't (for example) Paizo just create a dummy corporation based in the EU and register everything under that, leaving WotC without recourse?



Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.


----------



## Art Waring

Yora said:


> Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.



Ouch, that's pretty harsh.


----------



## GMforPowergamers

Yora said:


> Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.



is there a Pathfinder international market worth doing that?


----------



## Yora

I would assume it would be much easier to create a new Pathfinder 3rd edition system from scratch.


----------



## Deset Gled

I find it very hard to believe that WotC would attempt to revoke earlier versions of the OGL.  That wouldn't just be burning bridges, it would be nuking their relationship with the community and third party creators.  It would come with a guarantee of bad press and extreme likelihood of litigation.  Not to mention how it would leave a huge opening for someone else to come along with a true open licence and challenge D&Ds market position.

I suppose it's a small possibility that they would try, but I find it very hard to believe they would go that far.  I guess stranger things have happened.


----------



## h4b3rm4s

DavyGreenwind said:


> I have not been able to find any games mechanics cases on RPGs.



Did you find any case at all regarding RPGs specifically?

Also, would you (and other lawyers in the thread) recommend any casebook / book / resources regarding game law? I am a foreign lawyer with much interest in studying aspects of gaming (tabletop, videogames etc.) related to the law. Thx


----------



## Snarf Zagyg

DavyGreenwind said:


> True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.
> 
> Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.
> 
> It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.
> 
> The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.




So, no. I don't agree with your certainty, or the legislative analogy. Contract law varies greatly from state-to-state, and basic issues like whether or not reliance (and subsequent work) on a non-exclusive license makes it irrevocable turns on issues of state law, or even whether a license might be an implied contract. None of these are similar to legislation binding future legislatures- which is (afaik) incredibly settled.

Given the inherent complexities of the issues involved, I would be very hesitant to offer any kind of opinion without reviewing the pertinent parts of the Restatement of Contracts and Nimmer, and having a plausible jurisdiction to think about in terms of the law.

Also? It seems like work. I'm more into unicorns and stuff.

ETA- that said, I appreciate your efforts, although I am wondering when someone is going to start talking about the differences with broilers and young chickens.


----------



## S'mon

DavyGreenwind said:


> True. But it is apt as an example, because of the strange nature of an open license. An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.
> 
> Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.
> 
> It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.
> 
> The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.




I agree the licence is a unilateral contract offer, and that offers can be revoked. But the real issue is that the OGL licences (eg) the 5e SRD to Party X, and permits Party X to sub-licence work including the 5e SRD to Party Y, on the same terms. That's how Open Source works. Since all WoTC OGC has already been republished by 3PPs, and is available for sub-licensing, the most important question is whether the third party publishers can continue to sub-licence, or whether (eg) 5eSRD.com can be taken down by WOTC. I think not, but obviously I can't be 100% certain how a judge would rule.

If sub-licencing continues, then WoTC de-authorising the 1.0 OGL is moot for publishers who don't sign the 1.1 OGL. They can just refer to another 3PP for their licencing.


----------



## DavyGreenwind

S'mon said:


> Yes, I'm aware of the parol evidence rule. I teach it.
> 
> It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.



Wow! I loved my Contracts class. And I think our disagreement highlights the difficulty of the question.

The reliance principle _might _be enough to overcome parol evidence issues, but there are other issues which, in my opinion, tip the balance away from irrevocability. 1. In licensing law, courts have expressed a strong inference against irrevocability unless irrevocability is explicitly stated. 2. The consideration given by licensees to WotC is exceptionally weak. They only have to agree to abide by the terms of the license, which basically reiterates what they are already not allowed to do under copyright and trademark law. In return, they've been given access to WotC material that has given some of them a living. (In in WotC's best interest to foster a healthy fan community, but that is beside the point legally speaking). Consideration makes a contract binding, no matter how minor, but as a factor in determining the strength of a reliance interest, it does not help.

And as I have mentioned above, this being an open license essentially makes it a unilateral contract, which has its own weird rules about offer, acceptance, and revocability.

Third, looking at WotC's language in the Q&A, they are not, strictly speaking, claiming the license is irrevocable. They could say they were merely describing the status of the current license (which does not revoke prior licenses), which does not preclude a future license that does revoke prior licenses.

It would certainly be strong evidence against them in court. It may even tip the scales towards irrevocability. But I just don't see a United States judge saying that the 5e SRD must be open for all time.

Gosh, this is some good debate.


----------



## S'mon

DavyGreenwind said:


> It would certainly be strong evidence against them in court. It may even tip the scales towards irrevocability. But I just don't see a United States judge saying that the 5e SRD must be open for all time.




That would imply that Open Software is not open either - the licence can be revoked? 

My feeling is that if WoTC-Hasbro really pushes it, they will get a massive fight from interested parties. And they would probably get mauled, at least. They would be sensible not to try to 'revoke' the OGL 1.0. _But_ conversely I do think they can get away with saying Section 9 of OGL 1.0 no longer applies to material published under OGL 1.1, and your legislation analogy I think may have some merit there.


----------



## DavyGreenwind

Snarf Zagyg said:


> So, no. I don't agree with your certainty, or the legislative analogy. Contract law varies greatly from state-to-state, and basic issues like whether or not reliance (and subsequent work) on a non-exclusive license makes it irrevocable turns on issues of state law, or even whether a license might be an implied contract. None of these are similar to legislation binding future legislatures- which is (afaik) incredibly settled.
> 
> Given the inherent complexities of the issues involved, I would be very hesitant to offer any kind of opinion without reviewing the pertinent parts of the Restatement of Contracts and Nimmer, and having a plausible jurisdiction to think about in terms of the law.
> 
> Also? It seems like work. I'm more into unicorns and stuff.
> 
> ETA- that said, I appreciate your efforts, although I am wondering when someone is going to start talking about the differences with broilers and young chickens.



Hahaha, I thought about the young chickens.

And if I sound _certain, _that's on me. You are right, none of this is remotely settled and could have totally different outcomes depending on state and federal circuit. 

For me, the bottom line is *I don't see a United States judge making irrevocable a license that does not say "irrevocable."* That's totally contrary to US common law _and_ the restatement.

For the legislative analogy, I respect your opinion, but stand by it as a useful academic comparison.


----------



## DavyGreenwind

S'mon said:


> That would imply that Open Software is not open either - the licence can be revoked?
> 
> My feeling is that if WoTC-Hasbro really pushes it, they will get a massive fight from interested parties. And they would probably get mauled, at least. They would be sensible not to try to 'revoke' the OGL 1.0. _But_ conversely I do think they can get away with saying Section 9 of OGL 1.0 no longer applies to material published under OGL 1.1, and your legislation analogy I think may have some merit there.



Open software is different, because software code and copyright is a _huge _can of worms. I only know enough about it to know to stay the hell away from it.


----------



## S'mon

DavyGreenwind said:


> Open software is different, because software code and copyright is a _huge _can of worms. I only know enough about it to know to stay the hell away from it.




The code is copyright protected as a literary work. Normal contract rules apply to software licensing.


----------



## Snarf Zagyg

DavyGreenwind said:


> Hahaha, I thought about the young chickens.
> 
> And if I sound _certain, _that's on me. You are right, none of this is remotely settled and could have totally different outcomes depending on state and federal circuit.
> 
> For me, the bottom line is *I don't see a United States judge making irrevocable a license that does not say "irrevocable."* That's totally contrary to US common law _and_ the restatement.
> 
> For the legislative analogy, I respect your opinion, but stand by it as a useful academic comparison.




Eh, I try to avoid definite statements. For example, I know that judges can, and do, make licenses irrevocable by construing them as a contract supported by consideration ..... given that there are mutual obligations, an actual termination clause, and the possibility of the proverbial peppercorn (not to mention the change in status), it's rather hard to say.

But who knows? It's all idle speculation at this point.


----------



## Mistwell

DavyGreenwind said:


> This, I believe, is the trickiest argument of all. But I stand by my original comment. Let me give you an example.
> 
> So, quick humble brag, I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
> 
> I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.
> 
> So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their _current policy, _but I don't think it is an accurate representation of their own legal rights.



You know government legislative drafting isn't private open licensing and doesn't even draw from the same body of law and rules.


----------



## DavyGreenwind

Mistwell said:


> You know government legislative drafting isn't private open licensing and doesn't even draw from the same body of law and rules.



It is a useful analogy nonetheless. See my response above.


----------



## Mistwell

DavyGreenwind said:


> Open software is different, because software code and copyright is a _huge _can of worms. I only know enough about it to know to stay the hell away from it.



Wait, you're speaking to open licensing rules but you stay away from open software, where all the court cases about open licensing can be found?

I'm going to give some genuine advice which you're free to ignore - you're making a mistake by speaking with authority on this topic. This is a complicated field and if you don't know open licensing software caselaw, you're probably a tad outside your areas of legal focus as there is a great deal of overlap.


----------



## S'mon

Mistwell said:


> Wait, you're speaking to open licensing rules but you stay away from open software, where all the court cases about open licensing can be found?
> 
> I'm going to give some genuine advice which you're free to ignore - you're making a mistake by speaking with authority on this topic. This is a complicated field and if you don't know open licensing software caselaw, you're probably a tad outside your areas of legal focus as there is a great deal of overlap.




I think OP underestimated how many _other_ lawyer nerds frequent EN World.


----------



## Snarf Zagyg

S'mon said:


> I think OP underestimated how many _other_ lawyer nerds frequent EN World.




Three lawyers, four opinions. 

Same as it ever was.


----------



## Ulfgeir

Snarf Zagyg said:


> Three lawyers, four opinions.
> 
> Same as it ever was.



And all are mutually exclusive... As if it was done by deception, trickery and vaguely formulated statements. Everyone likens lawyers to devils, but seems Fey is more appropriate.


----------



## MGibster

Snarf Zagyg said:


> Also? It seems like work. I'm more into unicorns and stuff.



That's just sick.


----------



## DavyGreenwind

Mistwell said:


> Wait, you're speaking to open licensing rules but you stay away from open software, where all the court cases about open licensing can be found?
> 
> I'm going to give some genuine advice which you're free to ignore - you're making a mistake by speaking with authority on this topic. This is a complicated field and if you don't know open licensing software caselaw, you're probably a tad outside your areas of legal focus as there is a great deal of overlap.



As a matter of open licensing jurisprudence, those cases are indeed important. My comments about software being a can of worms is more about the copyright aspect (source code vs object code and all that nonsense).

So you are right, case law regarding open software is important in licensing context. Here's one holding licenses without a specific duration are terminable at will: _Walthal v. Rusk_, 172 F.3d 481 (7th Cir.1999). Here's another: _Korman v. HBC Fla., Inc._, 182 F.3d 1291, 1297 (11th Cir. 1999).

Here's some jurisprudence stating that, essentially, open licenses are a revocable permission: 25 AM. JUR. 2D Easements and Licenses § 122 (2011); 53 C.J.S. Licenses § 143 (2011).

I don't speak with authority about what _is, _but rather what _isn't. _I am responding to the people who say they are certain that WotC cannot revoke the license. My bottom line is that they likely can. I just don't see them losing that litigation.


----------



## Snarf Zagyg

MGibster said:


> That's just sick.


----------



## DavyGreenwind

Snarf Zagyg said:


> Three lawyers, four opinions.
> 
> Same as it ever was.



But only one of us has cited any sources.


----------



## DavyGreenwind

S'mon said:


> I think OP underestimated how many _other_ lawyer nerds frequent EN World.



It is a pleasant surprise!


----------



## RangerWickett

GMforPowergamers said:


> as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.



Look, there is no rule that says that I have to fall when I stand over an empty space. If the rulebook doesn't say that I fall when I set off a cliff, I think I should be allowed to walk across thin air.


----------



## overgeeked

Snarf Zagyg said:


> Three lawyers, four opinions.
> 
> Same as it ever was.



What I'm getting from this thread is: it all comes down to a judge deciding in your favor. Which means either you have the money to fight a long legal battle against Hasbro, or you roll over and don't bother.


----------



## Snarf Zagyg

overgeeked said:


> What I'm getting from this thread is: it all comes down to a judge deciding in your favor. Which means either you have the money to fight a long legal battle against Hasbro, or you roll over and don't bother.




Eh, not exactly? It's hard to just sit around and debate abstractions without making them more concrete with, you know, _facts, _like actual analysis of the prior OGL, the new OGL, the theory that Hasbro is using, and the jurisdiction(s) that are at play.

It's sort of like this- people can argue about something like "a statute of limitations," and what that means, and the difference between that and a statute of repose. But until you know the cause of action (what SOL applies) and what jurisdiction, and other important issues (could there be equitable tolling?) it's hard to address an issue definitively.

_Most _legal issues are _fairly _predictable. But as one good friend explained to me- they don't pay the lawyers the really big bucks to explain the black letter law; any half-wit that passed the bar should be able to do that. Instead, the big bucks go to the people who understand the black letter law and can successfully argue _why it doesn't apply to their client in this case_.


----------



## GMforPowergamers

Yora said:


> I would assume it would be much easier to create a new Pathfinder 3rd edition system from scratch.



they had a card game out I liked... they could use that as a framework


----------



## Reynard

Yaarel said:


> If WotC did (try to) revoke the OGL, the gaming community would need to migrate to a new gaming engine that did offer an irrevocable license. And build new settings and features.



Without an installed user base on the order of D&D's, that's a non-starter.


----------



## Whizbang Dustyboots

S'mon said:


> Corporations are not Legislators (yet!)



There are several state legislatures where the line is basically non-existent.


----------



## Whizbang Dustyboots

DavyGreenwind said:


> Gosh, this is some good debate.



Like a lot of lay people, I always thought the law sounded interesting, based on TV and movies, until I actually looked at what's involved in it. (I have to turn legal arguments into English periodically, and it's like translating calculus into English, if calculus involved opinions rather than math.)


----------



## overgeeked

Snarf Zagyg said:


> Eh, not exactly? It's hard to just sit around and debate abstractions without making them more concrete with, you know, _facts, _like actual analysis of the prior OGL, the new OGL, the theory that Hasbro is using, and the jurisdiction(s) that are at play.
> 
> It's sort of like this- people can argue about something like "a statute of limitations," and what that means, and the difference between that and a statute of repose. But until you know the cause of action (what SOL applies) and what jurisdiction, and other important issues (could there be equitable tolling?) it's hard to address an issue definitively.
> 
> _Most _legal issues are _fairly _predictable. But as one good friend explained to me- they don't pay the lawyers the really big bucks to explain the black letter law; any half-wit that passed the bar should be able to do that. Instead, the big bucks go to the people who understand the black letter law and can successfully argue _why it doesn't apply to their client in this case_.



Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen. 

So again, whatever's said here doesn't matter and it's clearly not binding in any meaningful way. It all comes down to someone with the money and time to actually fight a long legal battle in court against Hasbro. Until there's something akin to a settled case on this, WotC will still be able to bully people into not publishing or accepting their poisoned-pill GSL 2.


----------



## Remathilis

Ulfgeir said:


> And all are mutually exclusive... As if it was done by deception, trickery and vaguely formulated statements. Everyone likens lawyers to devils, but seems Fey is more appropriate.



This is why I never signed the check to my lawyer. I don't need him knowing my real name.


----------



## Alzrius

Whizbang Dustyboots said:


> Like a lot of lay people, I always thought the law sounded interesting, based on TV and movies, until I actually looked at what's involved in it. (I have to turn legal arguments into English periodically, and it's like translating calculus into English, if calculus involved opinions rather than math.)



I dunno, I remember when that movie _Double Jeopardy_ came out; even at the time I was pretty sure that its interpretation of that particular clause was completely bogus.


----------



## Nylanfs

Quite possibly the best result of this whole issue is that the OGL may be actually be tested in court.


----------



## Snarf Zagyg

overgeeked said:


> Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen.




In fairness, I'm trying very hard to take no position! 



overgeeked said:


> So again, whatever's said here doesn't matter and it's clearly not binding in any meaningful way. It all comes down to someone with the money and time to actually fight a long legal battle in court against Hasbro. Until there's something akin to a settled case on this, WotC will still be able to bully people into not publishing or accepting their poisoned-pill GSL 2.




I partially agree- in another thread I mentioned the _in terrorem _effect of litigation, and I meant it. Many people settle cases even when they know that they are right simply to avoid the cost, time, and uncertainty of litigation.

_That said, _I think a lot of the uncertainty right now is simply because we don't have the source document, especially a hard copy of the proposed OGL1.1 to look at. It's really hard to discuss something that's complicated in more than general platitudes unless you have specifics. 

Also? I just don't feel like working all this up myself right now. Maybe (maybe) after we see a real copy of the official 1.1, I'll change my mind.


----------



## FallenRX

So i figured Wizards might come at this from this angle, and looked into it a bit, and i came across this casetext






						The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext
					






					casetext.com
				






> " Conversely, courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration. "



Does this matter to this case at all? Im genuinely curious. I feel this is where the idea the OGL was irrevocable.


----------



## Whizbang Dustyboots

Reynard said:


> Without an installed user base on the order of D&D's, that's a non-starter.



I think we'd be much more likely to see a diaspora. Back to the OSR, where WotC would have to play whack-a-mole trying to shut down systems that have already proliferated like rabbits, back to Pathfinder, where Paizo would likely put up some sort of fight, etc.

And some systems, like Castles & Crusades, if allowed to publish under previous licenses, are already promoting the ability to produce third party content through them. It would be irritating, but not impossible, for me to jump backwards to them, especially if new stuff I liked was being produced to be compatible with their game. (Basically, AD&D on a 3E D20 chassis.)

I find it hard to believe that a cost-conscious Hasbro would bother going after all of them, especially once someone goes Hacker Manifesto on them and puts something out anonymously, explicitly written to both use new terminology and genuinely be impossible to retract.


----------



## mhd

If DT and itch play along with WotC, it's more a business matter than a legal one anyway.


----------



## GMforPowergamers

Whizbang Dustyboots said:


> There are several state legislatures where the line is basically non-existent.



not to vere too far off but yes I agree


----------



## estar

DavyGreenwind said:


> Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.
> 
> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext



Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.

The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes.  The OGL was patterned after these licenses and share their strengths.

I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.



			Front Page — Free Software Foundation — working together for free software
		






						News from the blog | Open Source Initiative
					






					opensource.org


----------



## Bolares

Ulfgeir said:


> And all are mutually exclusive... As if it was done by deception, trickery and vaguely formulated statements. Everyone likens lawyers to devils, but seems Fey is more appropriate.



I link Snarf to bards...


----------



## overgeeked

Whizbang Dustyboots said:


> I find it hard to believe that a cost-conscious Hasbro would bother going after all of them, especially once someone goes Hacker Manifesto on them and puts something out anonymously, explicitly written to both use new terminology and genuinely be impossible to retract.



This is probably the best, easiest, and safest way forward. Put out a close enough but legally-distinct clone of the rules. And release it under Creative Commons.


----------



## Bacon Bits

FallenRX said:


> So i figured Wizards might come at this from this angle, and looked into it a bit, and i came across this casetext
> 
> 
> 
> 
> 
> 
> The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext
> 
> 
> 
> 
> 
> 
> 
> casetext.com
> 
> 
> 
> 
> 
> 
> Does this matter to this case at all? Im genuinely curious. I feel this is where the idea the OGL was irrevocable.




My guess would be that it depends on if "perpetual" qualifies as a "set duration". Is a "set duration" one of a fixed duration with a start and end point, or is it one of an explicitly specified duration which might include an unending license?


----------



## mhd

overgeeked said:


> This is probably the best, easiest, and safest way forward. Put out a close enough but legally-distinct clone of the rules. And release it under Creative Commons.



The "legally-distinct" part might be rather hard, though. Wouldn't it be easier to get an already D&D-esque system to open up? Not sure whether "Why didn't you sue them because they're too similar in the last 30 years?" has any legal merit…

Dear Kevin Siembida…


----------



## DavyGreenwind

estar said:


> Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.
> 
> Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.
> 
> The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
> I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes.  The OGL was patterned after these licenses and share their strengths.
> 
> I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.
> 
> 
> 
> Front Page — Free Software Foundation — working together for free software
> 
> 
> 
> 
> 
> 
> 
> News from the blog | Open Source Initiative
> 
> 
> 
> 
> 
> 
> 
> opensource.org



Now there's an interesting case! I just read it. I believe it is relevant, but does not quite hit the mark. In that case, the licensor sued the licensee for breaching the license, or publishing outside the scope of the license. That case is about publications before the license is revoked. Their statement that "a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement and can sue only for breach of contract," would only apply during a period of time in which an open license is not revoked.

If it was otherwise, the simple creation of an open license would be basically the same as relinquishing their copyrights forever.

Which, who knows, it might be the case. I have yet to find any cases addressing what would happen if someone tried to revoke an open license. But based on the way existing law works, I am unconvinced that the OGL is irrevocable.


----------



## S'mon

estar said:


> Sorry while I am not a lawyer, I am also a software developer who uses open source software and content since the early 90s. The case law behind open source licenses like the Artistic License or the GNU Public doesn't support this interpretation. See Jacobsen v. Katzer.
> 
> Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions. Free to be used by any subsequent parties provided the terms and conditions of the license are met.
> 
> The reality is that intent counts as well as the letter of the license or contract. The courts are not going to ignore the fact that Wizards repeatably stated that the license can not be revoked. This was one of the early concerns that was clarified by Wizards when asked.
> I talk to enough lawyers to know that the whole idea behind open content is foreign. That the law is meant to be adjudicated between two self-interested parties. Has trouble dealing with altruistic behavior. But the folks who made the first round of open licenses were pretty savvy about this and designed the licenses in such a way that the stricter copyright law is and the more rigid contract law becomes, the stronger their license becomes.  The OGL was patterned after these licenses and share their strengths.
> 
> I recommend people who want to be educated about open licenses contact either the Free Software Foundation or the Open Source Initiative.
> 
> 
> 
> Front Page — Free Software Foundation — working together for free software
> 
> 
> 
> 
> 
> 
> 
> News from the blog | Open Source Initiative
> 
> 
> 
> 
> 
> 
> 
> opensource.org




Indeed (thanks Rob!) and it seems to me there must be many billions of software dollars riding on this issue, probably more than the value of D&D. So if it has to go to court, WoTC won't necessarily even have the deeper pockets.


----------



## Vaalingrade

So in terms of what is actual legal language is 'deauthorizes' legal language?


----------



## S'mon

overgeeked said:


> Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen.
> 
> So again, whatever's said here doesn't matter and it's clearly not binding in any meaningful way. It all comes down to someone with the money and time to actually fight a long legal battle in court against Hasbro. Until there's something akin to a settled case on this, WotC will still be able to bully people into not publishing or accepting their poisoned-pill GSL 2.




_"I need ammunition, not a taxi!"_

I think if 3PPs stick together and refuse to be intimidated, this is going to go away. Nobody should be left alone vs Hasbro when everyone is in the same boat here.


----------



## S'mon

overgeeked said:


> Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen.




I have a PhD and I teach law in England to baby lawyers (and to international Masters students who are often qualified lawyers in their home jurisdictions). I mostly do Intellectual Property, including copyright, and I teach Contract, but we mostly focus on sales & service supply contracts, rather than licencing (I recently was instructed to teach 1st year students 'Introduction to Business Law', but I'm still learning on the job). And I'm not an expert on US law, but it does have a lot of similarities with English law.


----------



## Dausuul

Here's a question: Would a company relying on the OGL 1.0 (such as Paizo) be able to file suit proactively to clarify its status? My sense is that this is generally not how the law works -- you can't go to the court and ask them to settle a hypothetical question, there has to be some allegation that a law was broken, a contract was breached, et cetera. But when it comes to civil law, I've seen some cases that _appear_ (to my layman's eyes) to violate this principle.


----------



## DavyGreenwind

Update: if this gizmodo article is to be believed, it looks like they are going to try and revoke the old license. I also want to clarify, that I'm pro-open source stuff. I just think the foundations are shakier than people think.

I hope WotC does not revoke it! And if they do, well, we'll just have to see what happens in court.

Article: Dungeons & Dragons’ New License Tightens Its Grip on Competition


----------



## GMforPowergamers

Dausuul said:


> Here's a question: Would a company relying on the OGL 1.0 (such as Paizo) be able to file suit proactively to clarify its status? My sense is that this is generally not how the law works -- you can't go to the court and ask them to settle a hypothetical question, there has to be some allegation that a law was broken, a contract was breached, et cetera. But when it comes to civil law, I've seen some cases that _appear_ (to my layman's eyes) to violate this principle.



what they need is for one of the 3pp that was using the OGL for there own product to do so and say "We are using this and they can't retract it" (I would think as a business' guy but not a lawyer.)


----------



## mhd

Business side? Well…
"Until the legal differences between our partner WotC and 3PP Inc. are settled, we at One Book Shelf decided to stop selling 3PP products. Of course you can still download them from your library if previously purchased and I hope this isn't misconstrued as censorship…"


----------



## Thanlis

estar said:


> Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions.



The CC licenses are explicitly irrevocable as of at least version 4 (see section 2.a.1 of the CC-BY license, for example). So is the GPL 3.

I don’t have an informed opinion on the legal debate but I have always wished Dancey and/or the lawyers involved were better at this. It’s also just good to have a funded non-profit defending and updating the licenses or you wind up with problems like this.


----------



## Mistwell

DavyGreenwind said:


> I am responding to the people who say they are certain that WotC cannot revoke the license.  My bottom line is that they likely can.



We disagree


----------



## Dausuul

GMforPowergamers said:


> what they need is for one of the 3pp that was using the OGL for there own product to do so and say "We are using this and they can't retract it" (I would think as a business' guy but not a lawyer.)



The thing is, Wizards does not have to file a lawsuit against that person immediately -- or indeed ever. They could turn a blind eye to minor infringements, while retaining the ability to bring suit against anybody at any time. That sword of Damocles hanging over their collective head would chill the entire 3PP market, effectively negating the safe harbor that the OGL was meant to provide, until and unless the matter was tried in court.

So what I'm wondering is whether there is any way for a 3PP to force that court trial, rather than having to live with the sword of Damocles and never know when Wizards might decide to bring it down.


----------



## GMforPowergamers

Dausuul said:


> The thing is, Wizards does not have to file a lawsuit against that person immediately -- or indeed ever. They could turn a blind eye to minor infringements, while retaining the ability to bring suit against anybody at any time. That sword of Damocles hanging over their collective head would chill the entire 3PP market, effectively negating the safe harbor that the OGL was meant to provide... until and unless the matter was tried in court.
> 
> So what I'm wondering is whether there is any way for a 3PP to force that court trial, rather than having to live with the sword of Damocles and never know when Wizards might decide to bring it down.



100% this.  0 lawsuits and maybe 1 or 2 C&D could kill the entire 3pp movement.


----------



## Staffan

DavyGreenwind said:


> The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.



This is the bit that confuses me (as a non-lawyer).

The core part of the OGL is this:
4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

"Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

"Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"

So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.

And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.


----------



## GMforPowergamers

Staffan said:


> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



this is what I wonder...

PF made a variant and then put it up as OGL (as far as I know) so does that 'grandfather' in NEW pf books or is it only ones published through the withdrawn date?


----------



## jgbrowning

Staffan said:


> This is the bit that confuses me (as a non-lawyer).
> 
> The core part of the OGL is this:
> 4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
> 
> "Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."
> 
> "Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"
> 
> So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.
> 
> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



I am also quite interested in this as well.
-
1) For instance, X person publishes a 100% open content work work the day before the new OGL goes into effect saying that all prior OGLs are now invalid. 20% of the content of this work was derived from WotC's SRD, 80% wasn't.
2) Two days later Y person sees something in the work that they like and they look at the licensing on the back page and then follow that licensing and release something new of their own including only the material contained in the product that person X just declared as open content.
3) How is the current validity of any open license supposed to know _what content was derived from WotC content and what content was opened by person X? _And is the license agreement between X and Y still valid,_ or is *too_ made invalid because WotC has decided that that OGL version is no longer valid, so no one else can use it between themselves for their solely-created content?

joe b.


----------



## Scars Unseen

S'mon said:


> _"I need ammunition, not a taxi!"_
> 
> I think if 3PPs stick together and refuse to be intimidated, this is going to go away. Nobody should be left alone vs Hasbro when everyone is in the same boat here.




The customers as well.  At the very least, if the OGL revision as suggested goes official, I refuse to buy any WotC product or any product published under it until it is rescinded.  I have other games I can play, and I'd rather limit my options than contribute money to a company willing to burn down the gaming sphere around them.


----------



## Reynard

mhd said:


> The "legally-distinct" part might be rather hard, though. Wouldn't it be easier to get an already D&D-esque system to open up? Not sure whether "Why didn't you sue them because they're too similar in the last 30 years?" has any legal merit…
> 
> *Dear Kevin Siembida…*



Sometimes the cure is worse than the disease...


----------



## Reynard

Scars Unseen said:


> The customers as well.  At the very least, if the OGL revision as suggested goes official, I refuse to buy any WotC product or any product published under it until it is rescinded.  I have other games I can play, and I'd rather limit my options than contribute money to a company willing to burn down the gaming sphere around them.



I have two emotional responses ready. if the new OGL simply states that 3PPsthat want to support 1D&D must abide by the new rules, I will just cease supporting WotC and not buy any 1D&D material. If, on the other hand, it makes an attempt to actually kill existing 3PPs and their products, I will do my (meager) best to actively support whoever fights them and to hurt WotC and Hasbro by boycotting everything and anything they are involved with. I know it isn't much, but that's where the distinction lies for me.


----------



## Scars Unseen

Reynard said:


> I have two emotional responses ready. if the new OGL simply states that 3PPsthat want to support 1D&D must abide by the new rules, I will just cease supporting WotC and not buy any 1D&D material. If, on the other hand, it makes an attempt to actually kill existing 3PPs and their products, I will do my (meager) best to actively support whoever fights them and to hurt WotC and Hasbro by boycotting everything and anything they are involved with. I know it isn't much, but that's where the distinction lies for me.



The hardest part for me will be going back to hunting down overly expensive used copies of 2E settings material instead of using PoD at DriveThruRPG.  I'm less interested in the collector aspect than in just having a hard copy to read, so PoD has been great, but even contributing to them in that regard is going to leave a bad taste in my mouth if this goes through, so back to spending hundreds on a book instead of three or four I go.


----------



## GMforPowergamers

Reynard said:


> I have two emotional responses ready. if the new OGL simply states that 3PPsthat want to support 1D&D must abide by the new rules, I will just cease supporting WotC and not buy any 1D&D material. If, on the other hand, it makes an attempt to actually kill existing 3PPs and their products, I will do my (meager) best to actively support whoever fights them and to hurt WotC and Hasbro by boycotting everything and anything they are involved with. I know it isn't much, but that's where the distinction lies for me.



may I suggest pushing non d20 games. find a game (fate, rifts, savage world, vampire ect ect) and try to get everyone you know that plays D&D to try them... and make it a big visual loud change. Go on FB and tell everyone you are leaving D&D and D&D like games for ________.


----------



## GMforPowergamers

Scars Unseen said:


> The hardest part for me will be going back to hunting down overly expensive used copies of 2E settings material instead of using PoD at DriveThruRPG.



that is still supporting WotC


----------



## Reynard

GMforPowergamers said:


> that is still supporting WotC



How is buying from the second hand market supporting WotC?


----------



## Henry

GMforPowergamers said:


> as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.



What I love is that I can come to a place like ENWorld and get this level of discourse


----------



## GMforPowergamers

Reynard said:


> How is buying from the second hand market supporting WotC?



by buying up part of the limited (and as you said high priced) books you drive up the demand, and as such the price. As you drive up the price you make it more likely for someone to buy the PDF and or POD from wotc.

Lets say I make self sealing stem bolts.  Out in the wild there are 200 self sealing stem bolts, you can buy one of those on 2ndary market or form me. It makes common sense that buying 1 or more of that 200 is not supporting or helping me, BUT what you just did was drive down the number of self sealing stem bolts.

With a game like D&D it gets worse. If tomorrow I go to my crawl space and grab my 2e books, I am not buying anything. HOWEVER if I walk into a con or gaming store and start a 2e game I am introducing new players and they if they like my game may then go buy from WotC books.

The only way to not support the IP holder of D&D is to leave D&D behinde. Now I don't advocate leaving. IF I was going to I would have in 2014.


----------



## Reynard

GMforPowergamers said:


> by buying up part of the limited (and as you said high priced) books you drive up the demand, and as such the price. As you drive up the price you make it more likely for someone to buy the PDF and or POD from wotc.



People should not feel compelled to take responsibility for what others do.


----------



## Steel_Wind

DavyGreenwind said:


> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *



I have been practicing law for 28 years now. I don't agree with this statement. At all. I think it is wrong in law.

Now, that does not mean that WotC could not get MANY parties to agree to the terms of a new contract, which includes provisions which, through express agreement, has the explicit effect of bringing those specific parties' rights under previous version of the OGL and SRD to an end. In fact, that approach was previously floated by WotC ca. 2008. It never really went anywhere; and new corporations would not be bound by such an explicit waiver of rights under the provisions of prior OGLs.

But that's not something which can unilaterally be forced on anyone by WotC.

Anyways, while there is a lot of non-lawyer "sky is falling" discussion about this, that does not mean that each and every post, even if written by a lawyer, is necessarily correct.


----------



## GMforPowergamers

Reynard said:


> People should not feel compelled to take responsibility for what others do.



that is perfectly fine. I just want to make sure it is an informed decision, because I have worked with companies that buy up there own secondary market but not all of it, so they can raise scarcity and as such raise the price and make the price of working for them look better.


----------



## DavyGreenwind

Staffan said:


> This is the bit that confuses me (as a non-lawyer).
> 
> The core part of the OGL is this:
> 4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
> 
> "Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."
> 
> "Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"
> 
> So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.
> 
> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



This is a common misconception: "perpetual" does not mean "irrevocable." "Perpetual" means it has no expiration date (as opposed to a license that is only good for five years, for instance), but even a perpetual license can be revoked.

And though WotC gave Paizo permission to sublicense the SRD, that permission could be revoked too, if the rest of the agreement is revoked. No one gets to claim the SRD as their own licensable property just by printing it.


----------



## GMforPowergamers

Steel_Wind said:


> Anyways, while there is a lot of non-lawyer "sky is falling" discussion about this, that does not mean that each and every post, even if written by a lawyer, is necessarily correct.



it's that physics cat...

the OGL is both revoked and not revoked until a judge rules (aka open the box)


----------



## Dausuul

GMforPowergamers said:


> by buying up part of the limited (and as you said high priced) books you drive up the demand, and as such the price. As you drive up the price you make it more likely for someone to buy the PDF and or POD from wotc.



Strictly speaking, this is true, but it's a miniscule sliver compared to buying directly from Wizards.

What's really important is publicizing what you're doing. If you just quit buying WotC material, it will get lost in the market noise and it won't push them to change their ways. Quit buying _and raise a stink_ -- in concert with many other people doing the same -- and there's a decent chance to get their attention.


----------



## GMforPowergamers

Dausuul said:


> Strictly speaking, this is true, but it's a miniscule sliver compared to buying directly from Wizards.



yup. it is small support but it is support. now if (since I have not priced 2e books in 20 years) the poster had not said they were already expensive I would not even have thought of my experience. 


Dausuul said:


> What's really important is publicizing what you're doing. If you just quit buying WotC material, it will get lost in the market noise and it won't push them to change their ways. Quit buying _and raise a stink_ -- in concert with many other people doing the same -- and there's a decent chance to get their attention.



again quiting WotC is great, but moving away from any IP they own is better. Again I just want everyone clear on this. The IP of D&D is what WotC seems (IMO) to care about. So playing and buying and talking D&D is helping that IP


----------



## S'mon

This US contract lawyer is currently agreeing with everything I've said 


One thing he just pointed out is that the OGL says sub-licences shall survive termination of the original licence. He also agrees that 1.0 doesn't look to be revocable, and was clearly 'authorised'.


----------



## jgbrowning

S'mon said:


> This US contract lawyer is currently agreeing with everything I've said
> 
> 
> One thing he just pointed out is that the OGL says sub-licences shall survive termination of the original licence. He also agrees that 1.0 doesn't look to be revocable, and was clearly 'authorised'.




I've published material that is 100% OGC content under this license that is _not_ derivative of WotC's SRD, if they revoke the license, is all the material I released now suddenly not open material? Or is that the kind of stuff that is part of "all sublicenses shall survive the termination of this License."


----------



## DavyGreenwind

Steel_Wind said:


> I have been practicing law for 28 years now. I don't agree with this statement. At all. I think it is wrong in law.
> 
> Now, that does not mean that WotC could not get MANY parties to agree to the terms of a new contract, which includes provisions which, through express agreement, has the explicit effect of bringing those specific parties' rights under previous version of the OGL and SRD to an end. In fact, that approach was previously floated by WotC ca. 2008. It never really went anywhere; and new corporations would not be bound by such an explicit waiver of rights under the provisions of prior OGLs.
> 
> But that's not something which can unilaterally be forced on anyone by WotC.
> 
> Anyways, while there is a lot of non-lawyer "sky is falling" discussion about this, that does not mean that each and every post, even if written by a lawyer, is necessarily correct.



I see what you mean, and I think your interpretation is reasonable. I just don't think it'll be the winning one, if it ever gets to court. The lack of the word "irrevocable" really cinches it for me. Licenses with no duration specified are often considered to be revocable at will (not in some states, but then it could end up being a state-by-state issue). An earlier post of mine has some citations.


----------



## FallenRX

DavyGreenwind said:


> I see what you mean, and I think your interpretation is reasonable. I just don't think it'll be the winning one, if it ever gets to court. The lack of the word "irrevocable" really cinches it for me. Licenses with no duration specified are often considered to be revocable at will (not in some states, but then it could end up being a state-by-state issue). An earlier post of mine has some citations.



As the saying goes, when two lawyers disagree the judge decides whos right.


----------



## FallenRX

DavyGreenwind said:


> I see what you mean, and I think your interpretation is reasonable. I just don't think it'll be the winning one, if it ever gets to court. The lack of the word "irrevocable" really cinches it for me. Licenses with no duration specified are often considered to be revocable at will (not in some states, but then it could end up being a state-by-state issue). An earlier post of mine has some citations.



I made a post about thing on casetext that said the opposite that it usually rules as irrevocable if a duration is set

Does Perpetual count as a set duration


----------



## S'mon

jgbrowning said:


> I've published material that is 100% OGC content under this license that is _not_ derivative of WotC's SRD, if they revoke the license, is all the material I released now suddenly not open material? Or is that the kind of stuff that is part of "all sublicenses shall survive the termination of this License."




My view (and his) is that they cannot 'revoke' the 1.0 OGL. So your material stays OGC.


----------



## estar

jgbrowning said:


> 3) How is the current validity of any open license supposed to know _what content was derived from WotC content and what content was opened by person X? _And is the license agreement between X and Y still valid,_ or is *too_ made invalid because WotC has decided that that OGL version is no longer valid, so no one else can use it between themselves for their solely-created content?



That the situation most of the OSR Publishers, like myself are faced with. Most of our stuff like my Majestic Fantasy RPG are now several steps away from the original d20 SRD.


----------



## S'mon

DavyGreenwind said:


> I see what you mean, and I think your interpretation is reasonable. I just don't think it'll be the winning one, if it ever gets to court. The lack of the word "irrevocable" really cinches it for me. Licenses with no duration specified are often considered to be revocable at will (not in some states, but then it could end up being a state-by-state issue). An earlier post of mine has some citations.




Yes, but you need to consider this kind of open-source licence, and how courts have treated them. There is no cast iron rule that 'perpetual' means 'revocable'. And it's clear the expressed intent in 2000 was to make it non-revocable.

At the very least, Reliance/Promissory Estoppel applies to existing users of the licence. This is a strong defence in English law; the US lawyer I'm listening to just said exactly the same for US Contract law.


----------



## Haplo781

Yora said:


> Probably, but it might cause their products to be banned from being important into the US, loosing the entire market.



Oh no if only there were some way to sell some sort of electronic file


----------



## pemerton

h4b3rm4s said:


> On copyright of RPG classes, wouldn't protecting these general classes amount to a restriction on the use of a straightforward concept and thus restrict creativity, countering the purpose of copyright? There aren't many ways to effectively express that a character is a fighter or a monk etc.



I don't think this claim is very strong. Look at the differences between (say) AD&D, 3E D&D, 4e D&D, Rolemaster and Dungeon World.


----------



## jgbrowning

estar said:


> That the situation most of the OSR Publishers, like myself are faced with. Most of our stuff like my Majestic Fantasy RPG are now several steps away from the original d20 SRD.




And that's not including all the different _systems_ that used the OGL, like D6, FATE, Mongoose's Traveller & RuneQuest BRP.

What, WotC is now going to say that those systems aren't open content and are not longer usable under the OGL even when they are completely different games?


----------



## pemerton

DavyGreenwind said:


> I write laws for a living. Sometimes, a senator or representative will tell me, "Write this law that says X, and that also says that no future legislature can ever repeal this law."
> 
> I always tell them this: that won't work. If a future legislature wanted to repeal your law, they would just cross out "X" and also cross out no future legislature can ever repeal this law." They would repeal the law forbidding them from repealing the law.





S'mon said:


> You think writing a contract is like writing legislation? I think @pemerton would have a thing or two to say about that!



The issue of how a legislator can bind itself - in Australia, the UK and some other Commonwealth jurisdictions this is the issue of "manner and form" - doesn't seem to me to bear much on contract law. Because it's pretty clear how a private party can bind themself at common law: make an agreement with the intention to enter legal relations, with a meeting of minds over that bargain, and consideration in both directions. And to me the OGL seems to exhibit that character.

I'm not sure I agree with @DavyGreenwind that the consideration flowing from licensees under the OGL is not much - they agree to allow use of their copyrighted OGC by downstream users, and confer on those downstream users the authority to create further sub-licenses. (But I don't how important adequacy of consideration is in US contract law, either in general or in the licensing context.)

Similarly to @S'mon (who I've discussed this with before, including recently in the "not an open license" thread), I've got doubts that WotC can unpick all those contract unilaterally.



RangerWickett said:


> Yes, a law can be revoked, but you GENERALLY can't say after the fact that something was illegal if it happened during a period when the law clearly said it was legal.



This depends on the constitutional rules in a given jurisdiction. In the UK, for instance, there are no bars on retrospective legislation. In Australian that's also mostly the case, and retrospective legislation is relatively unremarkable.



DavyGreenwind said:


> An open license is not like other contracts, whereby two parties agree to take on mutual obligations for a limited period of time. An open license, strangely enough now that I think about it, acts much like legislation; a right-holding entity publishes a document, generally available to the public and applying to the entire public, specifying how the public's rights interact with the entity's rights, and listing restrictions.
> 
> Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.
> 
> It would be different for a bilateral contract. If WotC had made a specific agreement with Pathfinder, they could not "revoke" their contract without breaching it. But bilateral contracts and unilateral contracts work differently.
> 
> The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.



I agree that WotC can revoke its unilateral offer at any time, and I've posted the same on these boards many times over the years. I'm not so sure, though, that it can unilaterally withdraw the authority conferred on existing licensees to sub-license, especially as section 13 of the OGL v 1.0/1.0a provides that all sub-licences shall survive termination.

Although, having written the above, I can see two arguments to the contrary: (i) the reference to termination is implicitly confined, in virtue of its context, to termination for breach; (ii) sub-licences survive, and hence parties who (eg) contracted directly with Paizo but only indirectly with WotC retain rights to distribute their existing products, but no new sub-licences can be granted.



S'mon said:


> Yes, I'm aware of the parol evidence rule. I teach it.
> 
> It means that if the written contract document is clear, then pre-contractual negotiations won't affect the interpretation of what is on the page. But here we have a different situation (IMO). One where WoTC and 3PPs spent over 20 years acting on the basis that the document meant X, everyone thought it meant X, and now the new WoTC people say it really meant Y.





S'mon said:


> Yes, but you need to consider this kind of open-source licence, and how courts have treated them. There is no cast iron rule that 'perpetual' means 'revocable'. And it's clear the expressed intent in 2000 was to make it non-revocable.
> 
> At the very least, Reliance/Promissory Estoppel applies to existing users of the licence. This is a strong defence in English law; the US lawyer I'm listening to just said exactly the same for US Contract law.



The leading case in Australia on promissory estoppel as analogous to waiver is Commonwealth v Verwayen. It concerned representations made in the course of pre-litigation negotiations, together with policy statements by the responsible minister. (The case concerned personal injury litigation resulting from a collision between two Australian naval vessels.) Chief Justice Mason referred to "a deliberate and considered decision ha[ving] been mad" by the Commonwealth as a defendant, and also noted "express representations to some claimants".

Do you think the FAQ is enough?


----------



## Baron Opal II

DavyGreenwind said:


> I have not been able to find any games mechanics cases on RPGs.



Thank you for posting this.

There was a case of TSR vs. Role Aids in the late 80s (?), but I don't know if it ever went to trial or if they just settled out of court.


----------



## Haplo781




----------



## pemerton

Haplo781 said:


>



The arguments in that letter - both interpretive and estoppel/relliance-based - are the ones that have been canvassed in this thread. I think it's up for grabs whether section 13 is the _sole_ basis for termination, but that does seem to be one candidate reading.

EDIT: corrected "interpretation" to "termination" - mistyping words is apparently a thing that happens when one reaches middle age.


----------



## Steel_Wind

Haplo781 said:


> Oh no if only there were some way to sell some sort of electronic file



Exactly. This further discussion of state-by-state American law on how it might resolve an action this way and that way in a given U.S. state concerning the 1.0 OGL is laughably myopic American navel gazing.

The vast majority of activity under the OGL is via .pdf. There is no way to functionally prevent the sale or importation of those products over the Internet from a foreign jurisdiction.  Even if you could be successful on obtaining an injunction (which I highly doubt -- the balance of convenience test is one WotC could not win under these facts) you cannot get an injunction with teeth under these circumstances; there is an explicit color of right and an explicit derivative works license, too. It won't happen. Any TRO you get in an American state jurisdiction will fail on contact with internet commerce. This isn't Napster or a piracy case.

And if you think a foreign corporation is going to routinely attorn to the jurisdiction of the state of Texas (or wherever you think your litigation will be successful ) you are now *dreaming in technicolor*.  You also aren't going to pick off small companies with impunity to obtain a precedent. There will be *intervenors galore* -- and one of them - Paizo Inc., has all the money it needs to have in order to pay lawyers to litigate this. There will be no injunction; the vicissitudes of systemic delay than accrue to the licensees, not the plaintiff licensor.

And suddenly, the predicted doom and gloom gets blown away in a light spring breeze. 

Accordingly, this is largely an academic discussion. If and when a practical case arises in which rights are engaged and real money is in dispute - I'll give it more attention. Until then, this gets exactly the attention it deserves.


----------



## Cadence

Another lawyer at: Noah "MyLawyerFriend" Downs on Medium


----------



## pogre

Mistwell said:


> I am also a lawyer, and this is my 28th year as an attorney. I also have represented RPG companies using the OGL. Companies almost everyone here know. I am familiar with these topics as I've had to work with them, on a practical basis not just a theoretical one, for decades now.
> 
> I disagree with your legal interpretation. I am not interested in that debate as I think it's unwise to be posting definitively on this topic. But I think you're legally in error on several important points.



And here is why attorneys make money! 

The old saying: If a town has one lawyer they are poor and if it has two lawyers they are rich...

Aside from my nonsensical posting, I'll pipe in as another attorney and say I agree with @Mistwell that there is a lot of room for arguments.


----------



## Greg K

S'mon said:


> This US contract lawyer is currently agreeing with everything I've said
> 
> 
> One thing he just pointed out is that the OGL says sub-licences shall survive termination of the original licence. He also agrees that 1.0 doesn't look to be revocable, and was clearly 'authorised'.



Yeah, after watching that, I posted in another thread asking the lawyers what they thought about the arguments he stated were stacked against WOTC revoking 1.0a at this time, but also a federal statute (?) that would allow for them to end the license in another 12 years  (i.e. 35 years after the 1.0 a was released).


----------



## Steel_Wind

pemerton said:


> This depends on the constitutional rules in a given jurisdiction. In the UK, for instance, there are no bars on retrospective legislation.



I don't believe that's the tradition on the criminal side of the common law; still, that's because the U.K. does not have a constitution, it just _*pretends it does*_.

As a Canadian lawyer in his late-50s, I remember a time when we tried to pass out the "unwritten constitution" Kool-Aid, too.

We don't do that anymore here. Not even a _little bit_.


----------



## FrogReaver

Snarf Zagyg said:


> Three lawyers, four opinions.
> 
> Same as it ever was.



And not one of them right!


----------



## FrogReaver

RangerWickett said:


> Look, there is no rule that says that I have to fall when I stand over an empty space. If the rulebook doesn't say that I fall when I set off a cliff, I think I should be allowed to walk across thin air.



So long as the same reasoning works for the DM, if there's not a rule that prevents it then I can do it to your character.


----------



## FrogReaver

Alzrius said:


> I dunno, I remember when that movie _Double Jeopardy_ came out; even at the time I was pretty sure that its interpretation of that particular clause was completely bogus.



Wait, Double Jeopardy was a lie?

My childhood is being destroyed!


----------



## Levistus's_Leviathan

GMforPowergamers said:


> it's that physics cat...



Schrodinger's Cat.


----------



## MNblockhead

GMforPowergamers said:


> may I suggest pushing non d20 games. find a game (fate, rifts, savage world, vampire ect ect) and try to get everyone you know that plays D&D to try them... and make it a big visual loud change. Go on FB and tell everyone you are leaving D&D and D&D like games for ________.



Will you insist that those non-d20 games have as permissive a licenses as an OGL?  Boycotting WotC for attempting to revoke their open license and instead patronizing a company that doesn't offer an open license, seems a bit hypocritical, or at least counter-productive. 

E.g., Gamesworkshop has a bit of a nasty reputation from what I've read, so going to WFRPG seems like a poor choice if I'm leaving WotC because it is no longer supporting open content. 

So which publishers offer open gaming licenses that are not wrapped up in the WotC OGL mess?  Seems like it would be more effective to say "if you support open gaming, then support these companies" rather than "F!@% WotC, I'm never buying from them again. I'll play other games."


----------



## mamba

MNblockhead said:


> Will you insist that those non-d20 games have as permissive a licenses as an OGL?  Boycotting WotC for attempting to revoke their open license and instead patronizing a company that doesn't offer an open license, seems a bit hypocritical, or at least counter-productive.



not sure it is either… if the other publisher has a more lenient license than the OGL 1.1 is shaping up to be it is still a step in the right direction - and at this rate essentially any freely available license is

If the goal is for WotC to relent, just dropping them is good enough, if it succeeds and you intent to come back then.



MNblockhead said:


> So which publishers offer open gaming licenses that are not wrapped up in the WotC OGL mess?



good question, esp if WotC does stick to 1.1


----------



## MNblockhead

mamba said:


> not sure it is either… if the other publisher has a more lenient license than the OGL 1.1 is shaping up to be it is still a step in the right direction - and at this rate essentially any freely available license is
> 
> If the goal is for WotC to relent, just dropping them is good enough, if it succeeds and you intent to come back then.
> 
> 
> good question, esp if WotC does stick to 1.1



I started a new thread on this topic (which other publishers offer open licenses not tangled up in WotC's OGL): Stop telling me to boycott WotC. If you support open gaming, tell who to support. (+ thread)


----------



## pemerton

Steel_Wind said:


> I don't believe that's the tradition on the criminal side of the common law; still, that's because the U.K. does not have a constitution, it just _*pretends it does*_.
> 
> As a Canadian lawyer in his late-50s, I remember a time when we tried to pass out the "unwritten constitution" Kool-Aid, too.
> 
> We don't do that anymore here. Not even a _little bit_.



I know the UK has a constitution. It doesn't pretend that it doesn't. But it is unwritten in part, and in part (as I'm sure you know) distributed among various statutes that are amenable to repeal or amendment in the ordinary fashion. (Subject to recent judicial doubt about the operation of implied repeal in relation to so-called constitutional statutes.)

There can be retrospective criminal laws in the UK, just as there can be in Australia - for the latter jurisdiction, see eg the Polyukhovich case. In Australia a federal bill of attainder would be an invalid attempt by the legislature to exercise the judicial power of the Commonwealth; a state bill of attainder would be suspect but any argument for its constitutional invalidity would be quite complex (the starting point would be Kable's case). In the UK there would be interpretive questions that arise both under the principle of legality and the Human Rights Act, but a sufficiently clear bill of attainder would have legal effect.


----------



## bmcdaniel

DavyGreenwind said:


> ...
> 
> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext
> 
> The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.




Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.

This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).

It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.

So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. 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." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.

Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.

There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.

None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR  that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option  is what is happening, but it is possible that option (x) is occuring.


----------



## S'mon

pemerton said:


> The issue of how a legislator can bind itself - in Australia, the UK and some other Commonwealth jurisdictions this is the issue of "manner and form" - doesn't seem to me to bear much on contract law. Because it's pretty clear how a private party can bind themself at common law: make an agreement with the intention to enter legal relations, with a meeting of minds over that bargain, and consideration in both directions. And to me the OGL seems to exhibit that character.
> 
> I'm not sure I agree with @DavyGreenwind that the consideration flowing from licensees under the OGL is not much - they agree to allow use of their copyrighted OGC by downstream users, and confer on those downstream users the authority to create further sub-licenses. (But I don't how important adequacy of consideration is in US contract law, either in general or in the licensing context.)
> 
> Similarly to @S'mon (who I've discussed this with before, including recently in the "not an open license" thread), I've got doubts that WotC can unpick all those contract unilaterally.
> 
> This depends on the constitutional rules in a given jurisdiction. In the UK, for instance, there are no bars on retrospective legislation. In Australian that's also mostly the case, and retrospective legislation is relatively unremarkable.
> 
> I agree that WotC can revoke its unilateral offer at any time, and I've posted the same on these boards many times over the years. I'm not so sure, though, that it can unilaterally withdraw the authority conferred on existing licensees to sub-license, especially as section 13 of the OGL v 1.0/1.0a provides that all sub-licences shall survive termination.
> 
> Although, having written the above, I can see two arguments to the contrary: (i) the reference to termination is implicitly confined, in virtue of its context, to termination for breach; (ii) sub-licences survive, and hence parties who (eg) contracted directly with Paizo but only indirectly with WotC retain rights to distribute their existing products, but no new sub-licences can be granted.
> 
> The leading case in Australia on promissory estoppel as analogous to waiver is Commonwealth v Verwayen. It concerned representations made in the course of pre-litigation negotiations, together with policy statements by the responsible minister. (The case concerned personal injury litigation resulting from a collision between two Australian naval vessels.) Chief Justice Mason referred to "a deliberate and considered decision ha[ving] been mad" by the Commonwealth as a defendant, and also noted "express representations to some claimants".
> 
> Do you think the FAQ is enough?




I definitely think that publishers have acted in reliance on representations made by WoTC over the past 20 years, including the FAQ. So certainly under English law a company like EN World should be protected under Promissory Estoppel for its past and current publications, though not future ones (per _High Trees_ et al). But PE is a last ditch defence here. I think the release of the 3e, 3.5e, and 5e SRDs under the 1.0 OGL is by non-revocable licences and sub-licences in any common law jurisdiction and it shouldn't come to PE.


----------



## Greg K

bmcdaniel said:


> Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.
> 
> This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).
> 
> It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." Sec 4 of the OGL recites the consideration for the agreement: "By Using the Open Game Content You indicate Your acceptance of the terms of this License." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that they the person who have said that there is consideration. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.



Not being a lawyer, would WOTC also benefitting from third parties by them offering additional support and help keeping D&D in the public eye and OGL products keeping  people in the D&D orbit (I forget what Dancey called it) also be consideration or otherwise a factor against WOTC?

Aargh, I had one other question, but I brain fogged and can't recall it atthe moment.

Edit: Also, if there is ambiguity in a contract (e.g. if revocation/deauthorization is ambiguous), don't courts typically rule against the company/person that wrote it? (I felt like a goldfish with this question. Three times I recalled the question and forgot a second later (Ok, worse memory than a goldfish)).


----------



## S'mon

Greg K said:


> Yeah, after watching that, I posted in another thread asking the lawyers what they thought about the arguments he stated were stacked against WOTC revoking 1.0a at this time, but also a federal statute (?) that would allow for them to end the license in another 12 years  (i.e. 35 years after the 1.0 a was released).




35 years sounds like reversion of rights where you transfer copyright. We no longer have this in the UK (the interaction of US reversion rights with English contract law was in issue in the _Duran Duran_ case I discussed with the judge, Sir Richard Arnold). As far as I can tell it is not relevant here (it would wreck open software licencing if so). The lawyer did say he was not an IP lawyer. I think you can ignore that bit.

(I thought reversion rights in US copyright were confined to music? Like I said, we don't have them any more though I wish we did! They come from the 1709/10 Statute of Anne, the One True Copyright Act. )


----------



## Greg K

S'mon said:


> 35 years sounds like reversion of rights where you transfer copyright. We no longer have this in the UK (the interaction of US reversion rights with English contract law was in issue in the _Duran Duran_ case I discussed with the judge, Sir Richard Arnold). As far as I can tell it is not relevant here (it would wreck open software licencing if so). The lawyer did say he was not an IP lawyer. I think you can ignore that bit.



Thank you.


----------



## troff

DavyGreenwind said:


> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext




OGL1.0a clause 2: "No terms may be added or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License"

Doesn't that mean they can't change or de-authorise the license?
In Open Source software, the creation of the GPLv3 didn't stop people from releasing under the pre-existing and less restrictive GPLv2. That's why both versions still exist.


----------



## DiasExMachina

Revoking the original 3.5 OGL is going to open up a huge can of worms. I can see their belief behind revoking 1.0A, but the original 3.5?

Technically, couldn't you create a 5E product using the 3.5 OGL? 

Take any two people, like my wife and I. Biologically quite opposite; but we share %99.5 of our DNA. 3.5 and all its derivative works still share so much with D&D, that it creates a very dangerous precedent if they can kill everything that was ever created by third-party develops ever.


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## pemerton

@bmcdaniel

I enjoyed your post. I find it interesting that you conclude that section 13 is the sole basis for termination. I've thought that's a feasible argument but have not been confident enough in licensing law or general US contract law to form a conclusion.



bmcdaniel said:


> There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.



Your points one to three are consistent with what I and some others have been posting.

I'm interested that you think the position of sub-licensees, following a revocation/termination of offer by WotC, is unclear. Are you prepared to elaborate a bit more on this? (I posted my own thoughts, less well-formed than yours, in post 130 upthread.



bmcdaniel said:


> I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR  that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option  is what is happening, but it is possible that option (x) is occuring.



I share your view that  is more likely the case.


----------



## pemerton

troff said:


> OGL1.0a clause 2: "No terms may be added or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License"
> 
> Doesn't that mean they can't change or de-authorise the license?
> In Open Source software, the creation of the GPLv3 didn't stop people from releasing under the pre-existing and less restrictive GPLv2. That's why both versions still exist.



WotC can refuse to enter into a new licence (eg v 1.1) unless the would-be licensee waives whatever rights they have been granted under existing licences (like v 1.0/1.0a).


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## pemerton

DiasExMachina said:


> Revoking the original 3.5 OGL is going to open up a huge can of worms. I can see their belief behind revoking 1.0A, but the original 3.5?



The 3.5 SRD was licensed under OGL v 1.0a, the same licence that WotC has used to licence the 5e SRD.


----------



## S'mon

bmcdaniel said:


> Disclaimer: While I am also a lawyer, I am not a licensing lawyer and (as usual) this is not legal advice. Legal advice occurs only when you sign an engagement letter with me.
> 
> This is analysis seems incorrect to me. The document titled "OPEN GAME LICENSE Version 1.0a" (the "OGL") appears to fulfill the requirement to be an agreement between Wizards of the Coast, Inc. ("WOTC") and the licensee ("You" within the terminology of the OGL).
> 
> It is black letter law that an agreement is formed by two parties when there exists mutual assent of the two parties, which is expressed by an offer and acceptance of the offer; consideration; capacity; and legality. Capacity and legality are not at issue here. Generally, contract law allows an offeror to state the manner of acceptance. Sec 3 of the OGL states that the manner of offer and acceptance: "By Using [copying, distributing, modifying, etc.] the Open Game Content You indicate Your acceptance of the terms of this License." I dont see any argument there is not an offer and acceptance. Sec 4 of the OGL recites the consideration for the agreement: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." While it is possible for WOTC to claim that there is no consideration, that would be a very difficult argument to make given that WOTC is the party specifying the consideration. More generalky, usage of contract terms like offer, acceptance and consideration by WOTC demonstrates an intent to form an agreement with the licensee. QED, the OGL forms a valid agreement between WOTC and a licensee who has accepted the OGL.
> 
> So long as an agreement is not illegal, a party cannot unilaterally terminate an agreement except to the extent that the agreement permits them to terminate the agreement. The sole statement relating to termination in the OGL is Sec 13 which states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."
> 
> The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. 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." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation. First, a principle of contract interpretation is "expresio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement. Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.
> 
> Finally, aside from the contractual analysis there are equitable doctrines that make additional difficulties if WOTC advanced this claim. For example, there is a doctrine called "detrimental reliance" that says, even in the absence of a contract, if one person induces another person to change their position in reliance on a statement by the first person, the second person can reasonably rely on the statement. The WOTC Q&A by itself could support a claim for detrimental reliance. Other equitable doctrines such as "laches" and "unclean hands" would prevent WOTC from enforcing the OGL is they waited too long to enforce or acted inequitably. Again, the public statements by WOTC and its representatives would support a claim under equitable doctrines.
> 
> There are limits to this analysis: First, WOTC could release new content only under an updated license that is different than the OGL, i.e. OneD&D (similar to 4e) could be released under a different license. Second, WOTC could make termination of the OGL agreement for one licensee a condition of a different agreement. For example, WOTC could make a licensee agree to cease using OGL as a condition for the license for using OneD&D. Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.
> 
> None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR  that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option  is what is happening, but it is possible that option (x) is occuring.




I agree with this analysis (which seems very good, thanks). 

I agree WotC can revoke their offer to licence under the OGL 1.0, but AFAICT this should not affect sub-licencing of OGC, including of the entire (eg) 5e SRD, so very little practical effect. They may indeed have ceased to offer to licence the 3e SRD when they removed it from their site years ago, but that didn't affect those (already) licencing & (future) sub-licencing it.


----------



## Greg K

If I posted some house rules for 3e and 5e on these boards, are they considered covered by OGL 1.0/1.0a?


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## pemerton

Greg K said:


> If I posted some house rules for 3e and 5e on these boards, are they considered covered by OGL 1.0/1.0a?



No. You're not even purporting to use the licence, nor complying with any of the requirements it imposes on you.


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## Greg K

pemerton said:


> No. You're not even purporting to use the licence, nor complying with any of the requirements it imposes on you.



Ok, I wasn't sure if Morrus had some rule about content posted on the site.


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## pemerton

Greg K said:


> Ok, I wasn't sure if Morrus had some rule about content posted on the site.



He would then need to establish a section 15 statement which incorporates the copyright for everyone's contributions.


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## DiasExMachina

What is stopping someone from creating a new OGL titled 5.75 and establishing new rules based on OSR that people all find familiar but have enough proper names changed in order to skirt copyright, and then offer that up to everyone for free...


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## DiasExMachina

Another point to consider, back in 2008, when 4E released the GSL, few companies signed on, but one of the few that did was Goodman Games.  I was working with them back then, and one of the stipulations about the GSL was a moratorium on releasing adventures. I think you couldn't release books until November of 2008. But Goodman, wanting to release product immediately, published a series of 4E-compatible adventures. I own all of these--NONE of them have any OGL dialogue at all within their pages. They just say 4E-Compatible, and that was it. Only one of three featured a copy of the original 2000 OGL within their pages.


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## S'mon

DiasExMachina said:


> Another point to consider, back in 2008, when 4E released the GSL, few companies signed on, but one of the few that did was Goodman Games.  I was working with them back then, and one of the stipulations about the GSL was a moratorium on releasing adventures. I think you couldn't release books until November of 2008. But Goodman, wanting to release product immediately, published a series of 4E-compatible adventures. I own all of these--NONE of them have any OGL dialogue at all within their pages. They just say 4E-Compatible, and that was it. Only one of three featured a copy of the original 2000 OGL within their pages.




Yes, there was quite a lot of publishing for 4e by 3PPs early on that did not use any licence. It's very doable, especially if you have legal knowledge of IP (copyright & trademark) law, as I think Goodman does. Indeed you can legally do stuff like put "Compatible with D&D. TM used without authorisation" on your work, that is forbidden under the OGL.


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## S'mon

DiasExMachina said:


> What is stopping someone from creating a new OGL titled 5.75 and establishing new rules based on OSR that people all find familiar but have enough proper names changed in order to skirt copyright, and then offer that up to everyone for free...




OSR rules are based on works for which WoTC hold the copyright. In the absence of a licence, something like OSE or S&W probably infringes a copyright held by WoTC.

Now there are also OSR games like White Star published under the OGL that probably do not include any WotC-owned IP. They use D&D based mechanics, but the mechanics alone are probably not protectable. I think Stars Without Number et al don't even use the OGL, for this reason. I could imagine a licence based off the rules mechanics of SWN. But since those mechanics are non-protectable, you don't really need a licence anyway.

I guess you could create a genericised fantasy game that uses D&D style game mechanics, but no protectable copyright material, and then licence it under an OGL. Getting the balance right would be tricky, and you would need to be ready to defend a civil action/lawsuit from WoTC to establish that your work was non-infringing. I think it (forking D&D like this) is doable, but tricky. Get it wrong and you get squashed.

Conversely, it is legally much easier to create D&D-compatible adventures, campaign sourcebooks etc without a licence, and without infringing copyright. I'd think that was the obvious way to go.


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## mhd

Last year, Germany had a very cheap public transport ticket for a few months, where you just paid 9 Euros once and could use most trains, subways etc.; People weren't happy when this period ended, and so one group formed where you could basically pay the same as a monthly contribution, and if you were caught taking trains illegally, they paid your fine. I think something similar has been going on somewhere in Scandiwegia for years.

Now what about doing that for game authors? Some kind of 'self-defense union' where you try to do that "compatible without licensing" deal, pay $1 monthly, get a neat logo to put on your books/PDFs, a decent FAQ, training for compliance editors, and some friendly lawyers stand ready to swoop in if a C&D letter arises, you're blocked on DT or something like that. Countering the implied terror of WotCs lawyers.

I mean, it might be easy/legal enough to publish "compatible" documents, but the industry still remembers the early TSR and later Palladium threats and thus isn't very keen on risking things.


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## pemerton

S'mon said:


> it is legally much easier to create D&D-compatible adventures, campaign sourcebooks etc without a licence, and without infringing copyright.



Can you say a bit more about why this is so?


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## S'mon

pemerton said:


> Can you say a bit more about why this is so?




A retro-clone game is taking a substantial part of WoTC's copyright work in their game. A partial clone may be, too. An adventure or campaign setting that happens to be D&D compatible probably is not.

The issue is whether a "substantial part" of the copyright work is taken. Something like the Primeval Thule Campaign Setting's non-rules-specific material pretty clearly is not taking from a WoTC copyright work. Nor are generic fantasy settings; even if they share some common Tolkien DNA with eg Forgotten Realms.


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## pemerton

S'mon said:


> A retro-clone game is taking a substantial part of WoTC's copyright work in their game. A partial clone may be, too. An adventure or campaign setting that happens to be D&D compatible probably is not.



Do you think the amount of statted-up material in the adventure or setting would make a meaningful difference here?


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## S'mon

pemerton said:


> Do you think the amount of statted-up material in the adventure or setting would make a meaningful difference here?




Statted up material taken from another work, yes. You can't include an owlbear stat block (IMO) without the OGL. Whether you can include the word Owlbear - as in "2 owlbears live here" - is iffier. I think you probably can, but it's not 100% guaranteed a judge would agree. Safer not to include any unique D&D monsters. If you have Dark Elves, don't make them Drow. You can have trolls and ogres and giants and goblins and dragons and elves and dwarves and giant evil wolves. You can have orcs too, else TSR would have been in trouble.


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## pemerton

S'mon said:


> Whether you can include the word Owlbear - as in "2 owlbears live here" - is iffier. I think you probably can, but it's not 100% guaranteed a judge would agree. Safer not to include any unique D&D monsters.



I've been playing Torchbearer recently. That system (which is classic D&D and OSR-inspired, but is not licensed by WotC) has owlbears, but calls its stirges _stryxes_. I'm curious as to the basis on which they made the different call for one but not the other.


----------



## S'mon

pemerton said:


> I've been playing Torchbearer recently. That system (which is classic D&D and OSR-inspired, but is not licensed by WotC) has owlbears, but calls its stirges _stryxes_. I'm curious as to the basis on which they made the different call for one but not the other.




Well since the owlbear was based off a Japanese toy and is just an owl + bear, you _could _argue it's not copyright protected, but that stirges have more creativity, enough for copyright. It's an argument. 

I'm still getting used to the idea that a monster per se can be a copyright work in the UK. It was only June 2022 that we had the first similar case ever - Shazam v Only Fools held that a fictional character was itself a copyright protected literary work. It's pretty well established in the USA though.


----------



## Cadence

MNblockhead said:


> Will you insist that those non-d20 games have as permissive a licenses as an OGL?  Boycotting WotC for attempting to revoke their open license and instead patronizing a company that doesn't offer an open license, seems a bit hypocritical, or at least counter-productive.
> 
> E.g., Gamesworkshop has a bit of a nasty reputation from what I've read, so going to WFRPG seems like a poor choice if I'm leaving WotC because it is no longer supporting open content.
> 
> So which publishers offer open gaming licenses that are not wrapped up in the WotC OGL mess?  Seems like it would be more effective to say "if you support open gaming, then support these companies" rather than "F!@% WotC, I'm never buying from them again. I'll play other games."




For me, I'm ok-ish with WotC wanting to have a new OGL for "5.5" that is more restrictive, and limiting some of there electronic things to only 5.5 (and vice-versa).  Not my favorite, but I get the business need. Similarly I am great with other companies that don't have an OL.  [Granted it makes me less likely to buy them].

I am emphatically not ok with an attempt to wall off the existing 1.0a products from Paizo, Pelgrane, EN, etc... from further development unless it is under a 1.1 or whatnot.


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## Remathilis

GMforPowergamers said:


> that is perfectly fine. I just want to make sure it is an informed decision, because I have worked with companies that buy up there own secondary market but not all of it, so they can raise scarcity and as such raise the price and make the price of working for them look better.



This is inadvertently the best argument I've seen for pirating WotC's material.


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## malakia

For self-publishing (as a 3PP), would it be worth putting essentially blank placeholder pdfs up on drivethru, of adventures you intend to release sometime in the future, dated for copyright before the OGL deadline? OGL 1.0a text included in them already.
And then subsequently "filling-in" all or part of the adventure, later?


----------



## mamba

Remathilis said:


> This is inadvertently the best argument I've seen for pirating WotC's material.



if you are ok with PDFs you can get a lot easily and cheaply (not talking about the pirating part here, but that obviously is true too  )


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## Remathilis

mamba said:


> if you are ok with PDFs you can get a lot easily and cheaply (not talking about the pirating part here, but that obviously is true too  )



I'm just saying that if the second hand market drives scarcity and thus a desire for low cost official alternatives, then freely distributed versions that undercut both would appear to be the solution.

I'm sure there are a whole bunch of ethics lawyers with steam coming out of their ears right now, but if the goal is to starve the beast so thoroughly that they can't even absorb minor benefits from secondary sales, then piracy could be an acceptable method of acquisition.


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## DavyGreenwind

I see people saying that "perpetual" is ambiguous or depends on the context. This is not the case in American licensing law; "perpetual" has a very specific, standard, boilerplate meaning, and irrevocable is absolutely distinct.

Here is an example: an agreement between GlassHouse and Dell (link below) states that GlassHouse grants Dell "a perpetual, irrevocable, royalty-free, fully-paid, nonexclusive, worldwide license..."

That should seem familiar, because a similar provision is in the OGL. This list of adjectives is standard license boilerplate. Notice, however, in the OGL, the word "irrevocable" is conspicuously absent from the standard list of adjectives. That absence in an otherwise standard boilerplate provision is extremely important in the eyes of an interpreting court. If the OGL was intended to be irrevocable, it would say "irrevocable." In most courts, that argument will beat any other argument about reliance, or promissory estoppel, or breach of contract claims (revoking a license is not the same as breaching a contract), or anything else.

The agreement between GlassHouse and Dell also states: "Irrevocable Grant. In no event will the rights granted in this SECTION 2 be subject to termination, revocation or any further limitation, in whole or in part, for any reason, and all such rights shall remain perpetual, unlimited, and irrevocable under all circumstances."
Intellectual Property License Agreement 

Now THAT is an irrevocable license! THAT should have been in the OGL if the original writers had really wanted to take away WotC's ability to revoke the OGL.

Here I will rest my case.


----------



## dm4hire

A question I have is given the reliance on the OGL the 3pp have on it and that it could potentially cause several competitors to WotC to suffer financial problems if enforced.  Could this move by WotC (given the wording revealed) be construed as grounds for antitrust action? WotC would effectibly be monopolizing by forcing competitors to cowtoe to their demands or go out of business.


----------



## S'mon

DavyGreenwind said:


> I see people saying that "perpetual" is ambiguous or depends on the context. This is not the case in American licensing law; "perpetual" has a very specific, standard, boilerplate meaning, and irrevocable is absolutely distinct.
> 
> Here is an example: an agreement between GlassHouse and Dell (link below) states that GlassHouse grants Dell "a perpetual, irrevocable, royalty-free, fully-paid, nonexclusive, worldwide license..."
> 
> That should seem familiar, because a similar provision is in the OGL. This list of adjectives is standard license boilerplate. Notice, however, in the OGL, the word "irrevocable" is conspicuously absent from the standard list of adjectives. That absence in an otherwise standard boilerplate provision is extremely important in the eyes of an interpreting court. If the OGL was intended to be irrevocable, it would say "irrevocable." In most courts, that argument will beat any other argument about reliance, or promissory estoppel, or breach of contract claims (revoking a license is not the same as breaching a contract), or anything else.
> 
> The agreement between GlassHouse and Dell also states: "Irrevocable Grant. In no event will the rights granted in this SECTION 2 be subject to termination, revocation or any further limitation, in whole or in part, for any reason, and all such rights shall remain perpetual, unlimited, and irrevocable under all circumstances."
> Intellectual Property License Agreement
> 
> Now THAT is an irrevocable license! THAT should have been in the OGL if the original writers had really wanted to take away WotC's ability to revoke the OGL.
> 
> Here I will rest my case.




Please provide a similar licencing case with a Perpetual licence that was held to be Revocable on notice. Other people have been saying that open software licences had the same wording prior to ca 2007, and that they were held to be Irrevocable. A case to the contrary would support your argument. No one is disputing that modern licences do routinely include the word 'Irrevocable'.  Finding a licence that does say Irrevocable doesn't prove much.


----------



## pemerton

dm4hire said:


> A question I have is given the reliance on the OGL the 3pp have on it and that it could potentially cause several competitors to WotC to suffer financial problems if enforced.  Could this move by WotC (given the wording revealed) be construed as grounds for antitrust action? WotC would effectibly be monopolizing by forcing competitors to cowtoe to their demands or go out of business.



As I posted upthread, I find this argument a weak one.

The only pathway I could see to this conclusion would be that WotC is somehow using its rights in respect of its IP in a predatory or unconscionable fashion. But the only argument for _that_ that I can see would be that it is attempting to resile from a previously-stated position.

At which point there is an argument for an estoppel (roughly, at least in UK and Australian law, a contract by way of reliance - I'm not 100% sure of the best way to describe this in US law, but I think the basic notion is much the same), and the anti-trust argument becomes irrelevant.


----------



## DavyGreenwind

S'mon said:


> Please provide a similar licencing case with a Perpetual licence that was held to be Revocable on notice. Other people have been saying that open software licences had the same wording prior to ca 2007, and that they were held to be Irrevocable. A case to the contrary would support your argument. No one is disputing that modern licences do routinely include the word 'Irrevocable'.  Finding a licence that does say Irrevocable doesn't prove much.



I have already provided many citations throughout my arguments. But anyway, here are more:

Here's a quote from a fabulous article on the subject that really drives my point home:

"The contract theory of license also creates obstacles and confusion in other contexts. Some copyright owners - as exemplified by the open-source and Creative Commons movements - wish to grant nonexclusive licenses to large classes of users with whom they cannot bargain and from whom they seek no payment in return. 21 Contract law provides an ill-suited basis for such dealings. 22 For their part, members of the public who understand licenses to be contracts are also likely to believe (erroneously) that their use of copyrighted works is restricted only by express license terms and only if they expressly agree to be bound by them."
ARTICLE: A License Is Not a "Contract Not To Sue": Disentangling Property and Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101, 1107

Here's another quote from a federal court:

"A license by definition is not a permanent entitlement and does not operate to create an estate in land in the licensee. It merely constitutes permission to do certain things on the licensor's land. The licensor ordinarily can revoke it at any time, with or without a reason..." (applies to land, but the concept is the same).
Kapadia v. Chi. Transit Auth., No. 87 C 1919, 1987 U.S. Dist. LEXIS 4156, at *4-5 (N.D. Ill. May 15, 1987)

Here's two more cases:  Mueller, 18 Ill.2d at 340, 164 N.E.2d at 32; O'Hara v. Chicago Title & Trust Co., 115 Ill.App.3d 309, 321, 450 N.E.2d 1183, 1191, 71 Ill.Dec. 304, 312 (1st Dist. 1983). 

Here's three more: Lang, 382 Ill. at 109, 46 N.E.2d at 25; Keck, 80 Ill.App.3d at 836, 400 N.E.2d at 506, 36 Ill.Dec. at 86; Mercer v. Sturm, 10 Ill.App.3d 65, 67, 293 N.E.2d 457, 459 (3d Dist. 1973). 

I can keep going, but I won't.

Because no other lawyer on this thread has cited a _single source _to support their arguments. I am the only one.


----------



## S'mon

DavyGreenwind said:


> Because no other lawyer on this thread has cited a _single source _to support their arguments. I am the only one.




Well the two sources you quoted don't support your argument, they're much too general. Yes we all know that typically a licence is revocable. I could quote general Contract law cases (English ones, mostly) on Terms, Implied Terms, revocation for breach etc, but I don't see much point. I don't know what your other cases say, can you summarise the most relevant? It seems like you only have very tangential & general stuff, yet are speaking with a lot of apparent certainty, which most of us have tried to avoid doing.


----------



## Reynard

Can we get a "verified legal professional" flair for these threads?...


----------



## Snarf Zagyg

Reynard said:


> Can we get a "verified legal professional" flair for these threads?...


----------



## MoonSong

overgeeked said:


> This is probably the best, easiest, and safest way forward. Put out a close enough but legally-distinct clone of the rules. And release it under Creative Commons.



I suggest Heroes against Darkness as a base.


----------



## DavyGreenwind

S'mon said:


> Yes we all know that typically a licence is revocable.



 It doesn't seem like everyone knows that...



S'mon said:


> Well the two sources you quoted don't support your argument, they're much too general..... I don't know what your other cases say, can you summarise the most relevant? It seems like you only have very tangential & general stuff, yet are speaking with a lot of apparent certainty, which most of us have tried to avoid doing.



No, read them yourself if you care. I look forward to any citations you can provide to support your own arguments. I really do recommend that article if you can access it.


----------



## Rabulias

I may have missed it in all of this, but how is a particular version of the OGL "authorized"? Is there a standard legal method/process? If not, shouldn't the OGL define that? And this would include the de-authorization process. In the absence of this defined, how do we know the OGL was authorized to begin with?


----------



## S'mon

DavyGreenwind said:


> I look forward to any citations you can provide to support your own arguments. I really do recommend that article if you can access it.




I'm trying to find info on US law on this, to find out what the precedents are for the revocability of 'perpetual' licences. It would matter a lot whether the court said eg "Normally Perpetual licences are non-revocable, but in THIS case..." or "It is settled law that Perpetual merely means of Indefinite Duration" - or something in between.


----------



## pemerton

DavyGreenwind said:


> Here's a quote from a fabulous article on the subject that really drives my point home:
> 
> "The contract theory of license also creates obstacles and confusion in other contexts. Some copyright owners - as exemplified by the open-source and Creative Commons movements - wish to grant nonexclusive licenses to large classes of users with whom they cannot bargain and from whom they seek no payment in return. 21 Contract law provides an ill-suited basis for such dealings. 22 For their part, members of the public who understand licenses to be contracts are also likely to believe (erroneously) that their use of copyrighted works is restricted only by express license terms and only if they expressly agree to be bound by them."
> ARTICLE: A License Is Not a "Contract Not To Sue": Disentangling Property and Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101, 1107



I read the introduction to that article. The second sentence after n 30 is

The role played by contract in the realm of license is a different one - it provides a means for licensors to protect a licensee's interest in non-revocation without granting an ownership interest in the property.​
That seems to me a fair description of what most people have understood the OGL to involve. A few sentences on, the author says

There is no reason, in principle, why copyright law, like land law, should not permit the creation of irrevocable and exclusive license interests by means of either property conveyance or contract, leaving each to be enforced through the appropriate means. A clear recognition that copyright owners are able to create irrevocable, nonexclusive licenses by unilateral deed would be particularly helpful to owners who wish to grant open-source or Creative Commons licenses.​
I don't think this contradicts the idea that the rights and powers granted under the OGL may be irrevocable, even if WotC were to rescind/revoke its (hitherto) standing offer to license to all comers.



DavyGreenwind said:


> Here's another quote from a federal court:
> 
> "A license by definition is not a permanent entitlement and does not operate to create an estate in land in the licensee. It merely constitutes permission to do certain things on the licensor's land. The licensor ordinarily can revoke it at any time, with or without a reason..." (applies to land, but the concept is the same).
> Kapadia v. Chi. Transit Auth., No. 87 C 1919, 1987 U.S. Dist. LEXIS 4156, at *4-5 (N.D. Ill. May 15, 1987)



This characterises the nature of a licence as a non-proprietary interest. Which I think everyone understands and agrees with.

But surely it is possible, by way of contract, to bind oneself not to exercise the power of revocation? What the remedy would then be for purported revocation - a voiding of the purported revocation, or damages for the consequences that flow from it - I don't know, as far as US contract law is concerned.



DavyGreenwind said:


> Because no other lawyer on this thread has cited a _single source _to support their arguments. I am the only one.



Well, I think the passages from the Iowa LR article provide support.

Of the cases you linked to, the only one I looked at is the Mueller one - which concerns oral licences giving a right of way to neighbours, and is primarily concerned with whether or not they can give rise to an easement by way of long user. It doesn't seem to me to have much bearing on whether or not a contract with the intricate written terms of the OGL can bind the parties not to revoke. The Court, at 33, even allows that "the agreement that the mutual use was to continue "as long as both houses stood" might give rise to a claim that defendants' revocation at this time operates as a fraud upon the plaintiffs" - but puts that matter to one side, as even so that would not establish the easement the plaintiff sought to claim.

I'm not saying that you are definitely wrong, but I'm not seeing how the two sources you point to that I've reviewed support the claim you're making. (It's late at night where I am, so I'm not going to check the other sources. Do they bear more directly on the issue at hand?)


----------



## S'mon

DavyGreenwind said:


> I look forward to any citations you can provide to support your own arguments. I really do recommend that article if you can access it.




Looking for some case to give your position any support, I found one on revocation of Perpetual software licence - _BMS Computer Solutions v AB Agri _- comment at BMS v AB Agri

I post an extract discussing it here - if I have more time I'll dig up the case report on Westlaw later.

Basically it says some perpetual licences are terminable, depending on the specific facts. It definitely does not say Perpetual = Terminable.

Edit: I really need to be back marking papers... but thanks @pemerton for the above!


----------



## S'mon

Found this US law office page, discussion Can You Terminate a Perpetual Licensing Agreement? - as I expected, they say it's a grey area. I'd like to find an actual case on this though.

_A perpetual licensing agreement, as the name implies, runs for an indefinite period of time. The agreement allows a licensee rights of access and use in perpetuity, usually for a one-time fee paid to the licensor.

But do these agreements really run until the end of time, or are there circumstances in which you can terminate a perpetual licensing agreement? The answer typically turns on your answers to two other questions:

*What language is inside your licensing agreement?*

In the United States, the issue of *terminating a perpetual licensing agreement is not exactly settled. *The law is somewhat gray on the matter. However, if you have included certain language in your licensing agreement, termination could be a simpler question. For instance, if your agreement says it is “revocable at will,” it is quite likely you can terminate the agreement for any reason at any time.

On the other hand, if your agreement contains the term “irrevocable,” it could be far more difficult to terminate. The possibility of termination will rest on the entirety of the agreement and its interpretation. These two scenarios demonstrate how important it is to make sure your original agreement contains the right language for your business._


----------



## Ulorian - Agent of Chaos

S'mon said:


> I really need to be back marking papers... but thanks @pemerton for the above!



B+ across the board, then you can get back to what's really important. You're welcome.


----------



## Steel_Wind

DavyGreenwind said:


> I can keep going, but I won't.
> 
> Because no other lawyer on this thread has cited a _single source _to support their arguments. I am the only one.



The practice of law is not an academic discussion. Corporate/commercial litigation (which is what I do) is not a theoretical exercise.  There is no point in trying to write a _factum_ before the fact.

I won't even get into a discussion about the minefield and inapplicability of any principles of real property, easements, licensees and adverse possession on this issue - which is the legal context in which a license to enter onto land is considered. The entire principle under discussion of a license to enter property is, therefore, _dramatically_ different. Indeed, it is so different, your reference to it confirms to me that you must be a junior lawyer with no experience in this area at all. It should be a cue to just _stop_.

I know that this is of great interest to you and others here. Your interest is natural and laudable. Your definitive expression of opinion on the interpretation of these agreements and in predicting the outcome would, however, greatly benefit from the perspective that a few more decades of practice would bring: *nothing is certain in litigation*.

There is no prize to win by pronouncing definitive conclusions of law before there is any need to do so -- and especially before all the facts and circumstances are known.

tl;dr: *slow down*


----------



## Steel_Wind

S'mon said:


> Found this US law office page, discussion Can You Terminate a Perpetual Licensing Agreement? - as I expected, they say it's a grey area. I'd like to find an actual case on this though.
> 
> _A perpetual licensing agreement, as the name implies, runs for an indefinite period of time. The agreement allows a licensee rights of access and use in perpetuity, usually for a one-time fee paid to the licensor.
> 
> But do these agreements really run until the end of time, or are there circumstances in which you can terminate a perpetual licensing agreement? The answer typically turns on your answers to two other questions:
> 
> *What language is inside your licensing agreement?*
> 
> In the United States, the issue of *terminating a perpetual licensing agreement is not exactly settled. *The law is somewhat gray on the matter. However, if you have included certain language in your licensing agreement, termination could be a simpler question. For instance, if your agreement says it is “revocable at will,” it is quite likely you can terminate the agreement for any reason at any time.
> 
> On the other hand, if your agreement contains the term “irrevocable,” it could be far more difficult to terminate. The possibility of termination will rest on the entirety of the agreement and its interpretation. These two scenarios demonstrate how important it is to make sure your original agreement contains the right language for your business._



The larger issue here is not whether WotC can revoke the OGL going forward, it is what the impact of previous uses of the OGL -- and then use of that material by sub-licensees means and whether that can be stopped.  If it can be stopped, can that be stopped via injunction?

I think, that result to be _unlikely_. An injunction, under these circumstances? Won't happen. They might win at trial, or on appeal -- but an injunction? No, that is not a litigation bet I would make. 

WotC can put the brakes on 1.0a and the 5.1 SRD, going forward concerning D&DOne (let's just call it 5.5 for now) and it can do whatever it and another party wants via express agreement (including clauses which wipe out rights under the OGL 1 and 1.0a.) But those are prospective concerns, not retrospective ones. I don't think WotC can easily put the Genie that has already been released back in the bottle in terms of the current and prior editions of the game -- and most importantly, what it based and derived from that already licensed material. There is a veritable _boatload of commercial reliance_ premised upon the legal use of derivations of that initially licensed work, especially by Paizo Inc. in PF1 and PF2. To say that nobody else could make derivative use of Pathfinder products in the future, say?

I doubt that result would come after 23 years -- and so much reasonable commercial reliance. Indeed, there are banks and other lenders that have been granted security over the value of the marks and assets of businesses premised upon the legality of those ongoing rights and the underlying business, too.

I think we should wait and see where this is all going. Getting our knickers in a knot before there has been any new definitive statements by WotC on the topic is simply not helpful.


----------



## S'mon

Steel_Wind said:


> I think we should wait and see where this is all going. Getting our knickers in a knot before there has been any new definitive statements by WotC on the topic is simply not helpful.




Well I'm an academic, we are inclined to speculation!  But yes, the 3PPs definitely should be sitting tight and waiting for clarification. It may very well be that WoTC is only seeking to stop OGL 1.1 users from also using OGL 1.0. Which is bad, but not the Apocalypse.


----------



## DavyGreenwind

pemerton said:


> I read the introduction to that article. The second sentence after n 30 is
> 
> The role played by contract in the realm of license is a different one - it provides a means for licensors to protect a licensee's interest in non-revocation without granting an ownership interest in the property.​
> That seems to me a fair description of what most people have understood the OGL to involve. A few sentences on, the author says
> 
> There is no reason, in principle, why copyright law, like land law, should not permit the creation of irrevocable and exclusive license interests by means of either property conveyance or contract, leaving each to be enforced through the appropriate means. A clear recognition that copyright owners are able to create irrevocable, nonexclusive licenses by unilateral deed would be particularly helpful to owners who wish to grant open-source or Creative Commons licenses.​
> I don't think this contradicts the idea that the rights and powers granted under the OGL may be irrevocable, even if WotC were to rescind/revoke its (hitherto) standing offer to license to all comers.
> 
> This characterises the nature of a licence as a non-proprietary interest. Which I think everyone understands and agrees with.
> 
> But surely it is possible, by way of contract, to bind oneself not to exercise the power of revocation? What the remedy would then be for purported revocation - a voiding of the purported revocation, or damages for the consequences that flow from it - I don't know, as far as US contract law is concerned.
> 
> Well, I think the passages from the Iowa LR article provide support.
> 
> Of the cases you linked to, the only one I looked at is the Mueller one - which concerns oral licences giving a right of way to neighbours, and is primarily concerned with whether or not they can give rise to an easement by way of long user. It doesn't seem to me to have much bearing on whether or not a contract with the intricate written terms of the OGL can bind the parties not to revoke. The Court, at 33, even allows that "the agreement that the mutual use was to continue "as long as both houses stood" might give rise to a claim that defendants' revocation at this time operates as a fraud upon the plaintiffs" - but puts that matter to one side, as even so that would not establish the easement the plaintiff sought to claim.
> 
> I'm not saying that you are definitely wrong, but I'm not seeing how the two sources you point to that I've reviewed support the claim you're making. (It's late at night where I am, so I'm not going to check the other sources. Do they bear more directly on the issue at hand?)



Licenses CAN be irrevocable. That's not my point. My point is that the OGL is not. The presumption against irrevocability is so strong that courts generally do not hold a license irrevocable unless it says "irrevocable." The OGL doesn't say "irrevocable." Period. End. 

That's all most courts need to look at. They may entertain claims of reliance or promissory estoppel, but do not overestimate the strength of those arguments. In the United States, reliance will trump property rights in extraordinary circumstances. But here, WotC has basically been giving it away for for free.


----------



## GMforPowergamers

DavyGreenwind said:


> Licenses CAN be irrevocable. That's not my point. My point is that the OGL is not. The presumption against irrevocability is so strong that courts generally do not hold a license irrevocable unless it says "irrevocable." The OGL doesn't say "irrevocable." Period. End.
> 
> That's all most courts need to look at. They may entertain claims of reliance or promissory estoppel, but do not overestimate the strength of those arguments. In the United States, reliance will trump property rights in extraordinary circumstances. But here, WotC has basically been giving it away for for free.



(Not a lawyer here) 
that period sounds WAY more definitive then any lawyer I have ever delt with has been willing to put out.  If I were in a meeting and a lawyer told a company I work for something that definitive I would be shocked and start to work on the fact that it isn't going to work.


----------



## Morrus

bmcdaniel said:


> Third, as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.



Reading that, it seems to me that, while we don't know how this will ultimately play out, anybody who thinks they might conceivably want to use the OGL 1.0a in the future should do so immediately by releasing a tiny 'product' into the wild under the OGL before WotC stops 'offering' it. If this version turns out to be the way it goes, those people will perpetually have the right to use the current SRD contents.


----------



## overgeeked

One thing I was wondering about is the sublicensees bit. It reads as if anyone using the OGL "down the line" would be covered. So if I put out a product after WotC "de-authorizes" 1.0/a, but I used OGC from someone else who did publish prior to that point, I would therefore be a sublicensee of that person/content, so I'd be covered.


----------



## Ruin Explorer

Morrus said:


> Reading that, it seems to me that, while we don't know how this will ultimately play out, anybody who thinks they might conceivably want to use the OGL 1.0a in the future should do so immediately by releasing a tiny 'product' into the wild under the OGL before WotC stops 'offering' it. If this version turns out to be the way it goes, those people will perpetually have the right to use the current SRD contents.



That sounds like extremely good advice, Morrus.


----------



## DavyGreenwind

S'mon said:


> Well I'm an academic, we are inclined to speculation!  But yes, the 3PPs definitely should be sitting tight and waiting for clarification. It may very well be that WoTC is only seeking to stop OGL 1.1 users from also using OGL 1.0. Which is bad, but not the Apocalypse.



I agree, this is all speculative. Anyway, it's been a fun debate with you specifically. I apologize if my last couple of comments were snippy. Only time will tell who is right!


----------



## S'mon

overgeeked said:


> One thing I was wondering about is the sublicensees bit. It reads as if anyone using the OGL "down the line" would be covered. So if I put out a product after WotC "de-authorizes" 1.0/a, but I used OGC from someone else who did publish prior to that point, I would therefore be a sublicensee of that person/content, so I'd be covered.



Yup, that's what it says. That's how it was intended to work.


----------



## overgeeked

Ruin Explorer said:


> That sounds like extremely good advice, Morrus.



Sorry for the clutter, but I just posted a short PDF of my monster design system, including the OGL. If you're still interested, swing by.









						D&D 5E - Monsters & Obstacles (partial draft)
					

Just an experiment with all this OGL stuff going on. This isn't an OGL thread, so please let's not make this into one.  This is a draft of an OGL 5E product I am/was working on. Not sure about it going forward. But here it is anyway.  The explanation is missing as I was still working on that bit...




					www.enworld.org


----------



## Alzrius

Morrus said:


> Reading that, it seems to me that, while we don't know how this will ultimately play out, anybody who thinks they might conceivably want to use the OGL 1.0a in the future should do so immediately by releasing a tiny 'product' into the wild under the OGL before WotC stops 'offering' it. If this version turns out to be the way it goes, those people will perpetually have the right to use the current SRD contents.



To add to this, insofar as I'm aware this can constitute something as minor as a blog post, so long as you make sure to 1) repost the full text of the OGL v1.0a, 2) post a clear notice of what's Open Game Content in the material you release, 3) post a clear notice of what's Product Identity in the material you release, and 4) make sure to have all of the requisite copyright notices in the Section 15 of the copy of the OGL that you repost.


----------



## GMforPowergamers

Morrus said:


> Reading that, it seems to me that, while we don't know how this will ultimately play out, anybody who thinks they might conceivably want to use the OGL 1.0a in the future should do so immediately by releasing a tiny 'product' into the wild under the OGL before WotC stops 'offering' it. If this version turns out to be the way it goes, those people will perpetually have the right to use the current SRD contents.



THAT might be the best non lawyer advice I have seen yet (I shouldn't be surprise it comes from you)


----------



## jgbrowning

DavyGreenwind said:


> But here, WotC has basically been giving it away for for free.




This statement sounds somewhat contrary to WotC's publicly declared reasons for creating the OGL: to benefit from it.

joe b.


----------



## FrogReaver

Practically speaking I don’t know how much who would win in court really matters. 

The major distribution channels are all that WOTC needs to go after.  Get the content to be pulled from those sites by the sites themselves instead of by the content creators and the remaining legal questions about OGL and deauthorization/revocability really are mostly moot.


----------



## Steel_Wind

FrogReaver said:


> Practically speaking I don’t know how much who would win in court really matters.
> 
> The major distribution channels are all that WOTC needs to go after.  Get the content to be pulled from those sites by the sites themselves instead of by the content creators and the remaining legal questions about OGL and deauthorization/revocability really are mostly moot.



_Translation:_ you suggest WotC persuade and/or bully Drive-Thru RPG to take down a large swath of OGL content.

Seeing as being the font of commercially available OGL content it its very reason for existence and most of its entire business model, I'm not sure that Drive-Thru would willingly do this, or why.

More to the point, what you are advocating for is called _interference with contractual relations_. It's actionable by the affected part(ies) against both WotC and Drive-Thru RPG. In the circumstances, it would likely meet the test for certification as a class proceeding, too. If you want to dump chum & blood in the water? That would certainly do it.

I'd ease off on the practical business advice, maybe?


----------



## Greg K

DavyGreenwind said:


> I have already provided many citations throughout my arguments. But anyway, here are more:
> 
> Here's a quote from a fabulous article on the subject that really drives my point home:
> 
> "The contract theory of license also creates obstacles and confusion in other contexts. Some copyright owners - as exemplified by the open-source and Creative Commons movements - wish to grant nonexclusive licenses to large classes of users with whom they cannot bargain and from whom they seek no payment in return



Question. Would the money WOTC receives from all third party sales on DMsGuild be considered compensation? (edit: I don't know all terms WOTC set out for publishers to sell on the DMsGuild).


----------



## Maxperson

Bolares said:


> I link Snarf to bards...



He does like song.


----------



## FrogReaver

Steel_Wind said:


> _Translation:_ you suggest WotC persuade and/or bully Drive-Thru RPG to take down a large swath of OGL content.
> 
> Seeing as being the font of commercially available OGL content it its very reason for existence and most of its entire business model, I'm not sure that Drive-Thru would willingly do this, or why.
> 
> More to the point, what you are advocating for is called _interference with contractual relations_. It's actionable by the affected part(ies) against both WotC and Drive-Thru RPG. In the circumstances, it would likely meet the test for certification as a class proceeding, too. If you want to dump chum & blood in the water? That would certainly do it.
> 
> I'd ease off on the practical business advice, maybe?



No different than a song writer asking YouTube to remove a video of their song due to copyright claims.

It never ceases to amaze me how people can be soo certain things don’t work the way we have all seen them work throughout our whole lives.


----------



## Steel_Wind

FrogReaver said:


> No different than a song writer asking YouTube to remove a video of their song due to copyright claims.
> 
> It never ceases to amaze me how people can be soo certain things don’t work the way we have all seen them work throughout our whole lives.



But it *is* different. Youtube provides essentially no compensation to the random person who posted it.

In your example, the author of material under the OGL has a property interest in it, and unlike a poster on YouTube -- they have a _prima facie_ legal right to sell it. Drive Thru is in a position, practically speaking, as a monopolist in selling OGL content online and has a contract with that author to provide a portion of the sale to him, her or it. It's not the same thing as a Youtube takedown notice. At all.

You want to go down that road? Be my guest. As long as greed and stupidity are legal, litigators will always have work!

Seriously though, your proposal will lead to a class action against WotC. It would be reckless and likely _extremely_ costly, in an environment where _treble damages_ for punitives is the presumptive rule.  

It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. The Olympic Judge from Austria won't deduct marks from your perfect score of 10 for saying so.


----------



## Greg Benage

Steel_Wind said:


> But it *is* different. Youtube provides essentially no compensation to the random person who posted it.



I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.

Here's a link to the Amazon IP Policy:

Here's a link to an article about the takedown process.


----------



## FrogReaver

Steel_Wind said:


> But it *is* different. Youtube provides essentially no compensation to the random person who posted it.



You tube does pay those random people though…



Steel_Wind said:


> In your example, the author of material under the OGL has a property interest in it, and unlike a poster on YouTube -- they have a _prima facie_ legal right to sell it.



A distribution channel isn’t legally bound to carry your products. Doesn’t work that way. 




Steel_Wind said:


> Drive Thru is in a position, practically speaking, as a monopolist in selling OGL content online and has a contract with that author to provide a portion of the sale to him, her or it. It's not the same thing as a Youtube takedown notice. At all.



Sounds like exactly the same situation youtube is in with their users. 



Steel_Wind said:


> Seriously though, your proposal will lead to a class action against WotC. It would be reckless and likely _extremely_ costly, in an environment where _treble damages_ for punitives is the presumptive rule.



I’ve never seen anyone do a class action against youtube take down notices. 




Steel_Wind said:


> It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. The Olympic Judge from Austria won't deduct marks from your perfect score of 10 for saying so.



So take your own advice.


----------



## FrogReaver

Greg Benage said:


> I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.
> 
> Here's a link to the Amazon IP Policy:
> 
> Here's a link to an article about the takedown process.



Amazon is a much better example.


----------



## Steel_Wind

Greg K said:


> Question. Would the money WOTC receives from all third party sales on DMsGuild be considered compensation? (edit: I don't know all terms WOTC set out for publishers to sell on the DMsGuild).



Arguably yes, but really, the answer is *No.*

Products sold on DMs Guild (and Pathfinder Infinite) may include some OGL content, but their chief distinguishing feature is that they include protected content that is exempt from the OGL. Many (most?) products sole on DMs Guild don't include the OGL 1.0a notice within them as a consequence. Because they are selling protected content, that's why they sell it on DMs Guild instead of on the Drive-Thru page (yes I know they are hosted on the same site).  

The key difference between the two is in compensation - DMs Guild sales take 50% off of the top.  You only sell on DMs Guild/Pathfinder Infinite page if you have to. Revenue to the author is much higher % wise to sell it via the main Drive-Thru page.


----------



## bmcdaniel

DavyGreenwind said:


> I have already provided many citations throughout my arguments. But anyway, here are more:
> 
> ...
> 
> Here's another quote from a federal court:
> 
> "A license by definition is not a permanent entitlement and does not operate to create an estate in land in the licensee. It merely constitutes permission to do certain things on the licensor's land. The licensor ordinarily can revoke it at any time, with or without a reason..." (applies to land, but the concept is the same).
> Kapadia v. Chi. Transit Auth., No. 87 C 1919, 1987 U.S. Dist. LEXIS 4156, at *4-5 (N.D. Ill. May 15, 1987)
> 
> ...
> 
> I can keep going, but I won't.
> 
> Because no other lawyer on this thread has cited a _single source _to support their arguments. I am the only one.



I don't have time to refute this point-by-point (given that I have actual work to do for clients), but the above, while not false, is extremely misleading. 

For the non-lawyers out there: whenever you see the word "license" in this context you should interpret it as "permission to use." So, it is 100% correct to say that if person A gives person B a license (permission to use) some property or entitlement of person A, the license (permission to use) does not itself create an irrevocable right for person B to continue to use the property/entitlement. Or to put it differently, a mere license can be revoked by the licensor.

However, if person A and person B reach an agreement pursuant to which person A grants person B a license (permission to use) some property/entitlement of person A, then person A can revoke the license only pursuant to the terms of the agreement.

This is the difference between: (1) "I grant you permission to attend a dinner party in my dining room at 8 pm tonight" (mere license - revocable at will by the licensor); and (2) "If you sign this document and pay me $5, I grant you permission to live in the bedroom of my house for one month" (license to use land embedded in an agreement - not revocable by licensor except pursuant to the agreement). In context, this makes intuitive sense. If the user does not pay for the use of the land, there is no agreement, and the licensor can revoke the license. However, if the user does pay for the use of the land (and there is an otherwise valid agreement), then the licensor cannot unilaterally revoke the license. 

Bringing this back to the OGL: this is why it is important to establish whether the OGL is an agreement. If the OGL is not an agreement, but is a mere license, then it can be revoked at will by the licensor. If the OGL is an agreement, then the license embedded in the agreement can be revoked only to the extent permitted by the agreement. 

Cases and commentary that reference a license but which do not involve an agreement are completely beside the point. As a practical matter, people (including courts) often conflate a mere license and a license embedded in an agreement because (in context) it is clear what is under discussion. However, citation to caselaw or commentary that discusses the revocability of a mere license does not say anything at all about a license embedded in an agreement.   

As noted in my prior post, the OGL has all the hallmarks of an agreement, i.e. an offer, a specified method of acceptance and a description of consideration. (Legal capacity of parties and illegality are not at issue).

Accordingly, a proponent of the view that WOTC may unilaterally revoke the OGL must take one of two positions:
1. Either the OGL does not constitute an agreement between WOTC and the user; or
2. The agreement constituting the OGL permits WOTC to unilaterally revoke the license.*

[* For the sake of completeness, this would include the position that the OGL agreement is revocable because the license failed to use "magic words" such as the word "irrevocable." Sometimes, legal agreements do require certain precise words for their meaning, such as in the creation of a power of attorney or the conveyance of land in certain states. Although I am willing to be convinced otherwise, a brief review of two copyright treatises (Epstein on Intellectual Property and Goldstein on Copyright), I believe that there no such magic words needed to license intellectual property. Instead, the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.] 

For what it is worth, the law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. 

The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

Cheerio


----------



## Vaalingrade

Greg Benage said:


> I hope this becomes irrelevant because WotC elects not to go this route, but I'd be interested in further discussion, using Amazon as an example instead of YouTube. They take down allegedly copyright- and trademark-infringing products all the time.
> 
> Here's a link to the Amazon IP Policy:
> 
> Here's a link to an article about the takedown process.



They also copy and undercut people's products under their brand all the time too, so it's very relevant to OGL 1.1.


----------



## GMforPowergamers

bmcdaniel said:


> I don't have time to refute this point-by-point (given that I have actual work to do for clients)



do you have ANY idea how many billable work hours many of us spend talking about this silly make believe game... come on you don't need to work...

This may also be why I am not better at and better paid at my job!!!


Edit: my tone doesn't always come through, that was sarcasm and my way of saying thanks for what you did do and say.


----------



## S'mon

bmcdaniel said:


> I don't have time to refute this point-by-point (given that I have actual work to do for clients), but the above, while not false, is extremely misleading.
> 
> For the non-lawyers out there: whenever you see the word "license" in this context you should interpret it as "permission to use." So, it is 100% correct to say that if person A gives person B a license (permission to use) some property or entitlement of person A, the license (permission to use) does not itself create an irrevocable right for person B to continue to use the property/entitlement. Or to put it differently, a mere license can be revoked by the licensor.
> 
> However, if person A and person B reach an agreement pursuant to which person A grants person B a license (permission to use) some property/entitlement of person A, then person A can revoke the license only pursuant to the terms of the agreement.
> 
> This is the difference between: (1) "I grant you permission to attend a dinner party in my dining room at 8 pm tonight" (mere license - revocable at will by the licensor); and (2) "If you sign this document and pay me $5, I grant you permission to live in the bedroom of my house for one month" (license to use land embedded in an agreement - not revocable by licensor except pursuant to the agreement). In context, this makes intuitive sense. If the user does not pay for the use of the land, there is no agreement, and the licensor can revoke the license. However, if the user does pay for the use of the land (and there is an otherwise valid agreement), then the licensor cannot unilaterally revoke the license.
> 
> Bringing this back to the OGL: this is why it is important to establish whether the OGL is an agreement. If the OGL is not an agreement, but is a mere license, then it can be revoked at will by the licensor. If the OGL is an agreement, then the license embedded in the agreement can be revoked only to the extent permitted by the agreement.
> 
> Cases and commentary that reference a license but which do not involve an agreement are completely beside the point. As a practical matter, people (including courts) often conflate a mere license and a license embedded in an agreement because (in context) it is clear what is under discussion. However, citation to caselaw or commentary that discusses the revocability of a mere license does not say anything at all about a license embedded in an agreement.
> 
> As noted in my prior post, the OGL has all the hallmarks of an agreement, i.e. an offer, a specified method of acceptance and a description of consideration. (Legal capacity of parties and illegality are not at issue).
> 
> Accordingly, a proponent of the view that WOTC may unilaterally revoke the OGL must take one of two positions:
> 1. Either the OGL does not constitute an agreement between WOTC and the user; or
> 2. The agreement constituting the OGL permits WOTC to unilaterally revoke the license.*
> 
> [* For the sake of completeness, this would include the position that the OGL agreement is revocable because the license failed to use "magic words" such as the word "irrevocable." Sometimes, legal agreements do require certain precise words for their meaning, such as in the creation of a power of attorney or the conveyance of land in certain states. Although I am willing to be convinced otherwise, a brief review of two copyright treatises (Epstein on Intellectual Property and Goldstein on Copyright), I believe that there no such magic words needed to license intellectual property. Instead, the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.]
> 
> For what it is worth, the law, including law relating to contracts and copyright is almost infinitely complex and nuanced. There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post.
> 
> The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.
> 
> Cheerio




Again, thanks very much for this. Good to have it from a US contract lawyer who clearly knows his stuff.


----------



## pemerton

overgeeked said:


> One thing I was wondering about is the sublicensees bit. It reads as if anyone using the OGL "down the line" would be covered. So if I put out a product after WotC "de-authorizes" 1.0/a, but I used OGC from someone else who did publish prior to that point, I would therefore be a sublicensee of that person/content, so I'd be covered.



That's the suggestion that @S'mon and I (and some others) have been entertaining. I think it's open (as in, not obviously wrong) but not certain:



bmcdaniel said:


> as a matter of contract law, an offeree is generally permitted to terminate an ongoing offer. I can imagine that WOTC could announce "no more licensees" under the OGL and a court might enforce that, but it would not affect the current licensees who have accepted the terms of the OGL. Its not clear as a practical matter WOTC would prove that someone has not previously accepted the terms of the OGL. Its also not clear how this would affect sub-licensees who take a license from an existing licensee.


----------



## pemerton

Greg K said:


> Question. Would the money WOTC receives from all third party sales on DMsGuild be considered compensation? (edit: I don't know all terms WOTC set out for publishers to sell on the DMsGuild).



Products sold on DMG are published under a different licence, not the OGL.


----------



## GMforPowergamers

pemerton said:


> Products sold on DMG are published under a different licence, not the OGL.



that is the other thought... will that ALSO change for 1D&D


----------



## Greg K

Another question. The leaked 1.1 OGL listed specific items that WOTC claims were not intended to be covered by the 1.0a, but some lawyers and others have pointed out that the 1.0a faq specifically ok'd some of those items and even told licensees how they could do it. If WOTC was misleading regarding those items (intentional or not) in the 1.1, could it result in a judge questioning the veracity of their argument to revoke/deauthorize 1.0a? (not sure how well I phrased that last part).*
*Obviosuly, what we saw might not be the final draft and WOTC has stated they might make changes based on community response.
(edit: added clarification in first sentence that it is WOTC claiming that some items were not intended to be covered by 1.0a)


----------



## Clint_L

Does it need to be pointed out that Hasbro/WotC employ very good contract lawyers?

A lot of these assumptions about alleged "leaks" and so forth are basically gossip. We don't actually know what is going on, and it is likely that much/most of what folks are responding to is wrong or taken out of context. For example, I enjoyed reading the post explaining the difference between a license and an agreement. I didn't know any of that, because not a lawyer. But I'm pretty sure that Hasbro's lawyers will be quite familiar.

There has been a rush to assume ill intent on the part of various entities, but I do not feel confident rendering any kind of judgement. I'm not qualified to do so, and there are virtually no solid facts available even if I were. But I do not think that the professionals involved are not aware of the potential complexities of the OGL, and I have very strong doubts that what is actually going on bears much resemblance to the assumptions that are being made on forums like this.


----------



## pemerton

Greg K said:


> Another question. The leaked 1.1 OGL listed specific items that were not intended to be covered by the 1.0a, but some lawyers and others have pointed out that the 1.0a faq specifically ok'd some of those items and even told licensees how they could do it. If WOTC was misleading regarding those items (intentional or not) in the 1.1, could it result in a judge questioning the veracity of their argument to revoke/deauthorize 1.0a? (not sure how well I phrased that last part).*
> *Obviosuly, what we saw might not be the final draft and WOTC has stated they might make changes based on community response.



If WotC has changed its mind about what sorts of works it wants to license, it is entitled to offer a new licence on new terms. As far as I can see, there is no obstacle to it making the revocation of prior rights under prior licences a condition of entering into the new licence. (EDIT: I assume that US contract law, in its various jurisdictions, protects to some extent against unconscionability in commercial transactions. But I don't see how what WotC is proposing would count as unconscionable.)

I don't think the idea of WotC being "misleading" has work to do here. The issue of what the current OGL licenses is a matter of interpretation, and past statements by WotC may be relevant to that (either as informing the interpretation of the terms of the OGL, or establishing further rights outside the OGL itself on the basis of reasonable reliance).

I don't see that the matters in my two paragraphs above are legally related, in the sense that I don't see how it burdens WotC's entitlements I describe in the first paragraph that it loses an argument about the matters I discuss in the second paragraph.

But there is a practical connection, in the sense that uncertainty over the stuff in the second paragraph may give a publisher/content producer a reason to enter into a new licensing agreement with WotC.


----------



## pemerton

Clint_L said:


> I do not think that the professionals involved are not aware of the potential complexities of the OGL, and I have very strong doubts that what is actually going on bears much resemblance to the assumptions that are being made on forums like this.



The posts from @bmcdaniel are excellent, in my view.


----------



## Greg K

pemerton said:


> I don't think the idea of WotC being "misleading" has work to do here. The issue of what the current OGL licenses is a matter of interpretation, and past statements by WotC may be relevant to that (either as informing the interpretation of the terms of the OGL, or establishing further rights outside the OGL itself on the basis of reasonable reliance).



This is what I was inquiring about. WOTC is now claiming that certain things were not intended to be covered despite evidence to the contrary in the FAQ and people relied on the FAQ, If a lawyer shows that, despite WOTCs claims to the contrary, the FAQ states that people were authorized to use OGL 1.0a in additonal ways, may a judge be more inclined to use the FAQ to determine intended interpretation of terms regarding deauthorization and reasonable reliance.


----------



## bmcdaniel

Clint_L said:


> Does it need to be pointed out that Hasbro/WotC employ very good contract lawyers?
> 
> A lot of these assumptions about alleged "leaks" and so forth are basically gossip. We don't actually know what is going on, and it is likely that much/most of what folks are responding to is wrong or taken out of context....




This is about right. 

It is possible that WOTC could take a position that has very limited legal strength such as the OGL 1.0a being revocable. In any business, management has final say over the lawyers, and its possible that WOTC management will take the position that OGL 1.0a is unilaterally revocable despite contrary advice from lawyers in order to spread fear, uncertainty and doubt. However, its unlikely that they would do so because by doing so they risk a declaratory judgement (from a motivated population!) that would actually undermine their intellectual property rights. For example, they would be risking a judgement that clarifies, contrary to their interest, the scope of non-copyrightability of game mechanics in the context of complex games like TTRPGs.

My own view is likely that the language that has been circulated regarding the revocation of OGL 1.0a either (a) would apply only to persons who accept and use OGL 1.1, or (b) was a "trial balloon"/early draft that will not ultimately be adopted. Thats not a legal conclusion; thats a probabilistic view of behaviour based off of public evidence that I've seen.

In any event, it behooves everyone not to get too emotionally invested in any particular facts until WOTC clarifies what their position is.


----------



## bmcdaniel

PS For those of you who don't have access to an actual legal library but want to understand the interplay between "perpetual" and "irrevocable" licenses presented for lay persons, a colleague recommended this primer by Fenwick & West: https://assets.fenwick.com/legacy/FenwickDocuments/Technology_Licensing.pdf


----------



## pemerton

Greg K said:


> This is what I was inquiring about. WOTC is now claiming that certain things were not intended to be covered despite evidence to the contrary in the FAQ and people relied on the FAQ, If a lawyer shows that, despite WOTCs claims to the contrary, the FAQ states that people were authorized to use OGL 1.0a in additonal ways, may a judge be more inclined to use the FAQ to determine intended interpretation of terms regarding deauthorization and reasonable reliance.



There are two different issues here, I think.

One concerns the interpretation of the agreement. Unless there is ambiguity that needs appeal to further evidence to resolve, that would be done on the basis of the text itself. The FAQ is not part of the text of the agreement.

The other is whether there is a reliance-based argument that licensees can rely on. In my jurisdiction this is called estoppel - I think the same term is used in US law, and the rough idea is of a contract based on reasonable reliance rather than on a bargain. The argument here would be that rights have arisen that are outside of the terms of the OGL.

If I was arguing for WotC, I would be suggesting that a public-facing FAQ is not something that a commercial publisher would reasonably rely on in order to determine the scope and content of their legal rights. As I mentioned upthread (or in one of the other threads?), one of the leading cases in Australia dealing with this issue found that the estoppel arose out of multiple factors including public statements of policy (where these were made by government ministers - the defendant in the law suit, which was a private law claim, was the Australian government) and also particular things said during pre-litigation negotiations. That is more than just a generic, public-facing FAQ.

But I don't know how US law treats the issue of reasonableness of reliance. And maybe I'm underestimating the weight that might reasonably be given to WotC's FAQ. In this thread, @Steel_Wind in post 195 is more optimistic than my previous paragraph about the merits of a reliance-based argument, and I'm confident that Steel_Wind knows the relevant North American law better than I do.


----------



## Steel_Wind

pemerton said:


> There are two different issues here, I think.
> 
> One concerns the interpretation of the agreement. Unless there is ambiguity that needs appeal to further evidence to resolve, that would be done on the basis of the text itself. The FAQ is not part of the text of the agreement.



On a practical basis, if this goes to court - there are going to be arguments tendered about the ambiguity of the 1 and 1.0a OGL. WotC will say it means "*A*" and it isn't ambiguous, and the other party(ies) will say it plainly is ambiguous, it means "*B*" and will offer a MASSIVE weight of evidence that points to how the parties were lead to rely upon a contractual meaning by WotC itself over a course of DECADES including in print, on its website for the whole world to see and rely upon - and from the mouths of the corporate officers who directed its preparation and spoke to the litigants about what it meant. THAT will be tendered as evidence of the ambiguity.

And they will also offer evidence on how this financially benefitted WotC for many decades, too, in the context of explaining why "*B*" is a commercially reasonable interpretation.

And they will also offer evidence about the meaning in use of 1.0a, and how relying upon the use of others for derivative work operated in the industry in terms of the carve out for protected content. And that evidence will come from Clark Peterson, formerly of Necromancer Games (and now a judge in the State of Illinois).

And Ryan Dancey will give his evidence and others in the industry will as well. All of this is _all but certain_ to happen, because Lisa Stevens will ask them to do it.

_Oh but you only go to parol evidence if it is ambiguous, so you might not get there, right?_

Wrong. *DEAD wrong*. That's not the way a trial works (and I am quite certain about that).

Let's not kid ourselves here. The judge (assuming it is a judge who deals with it and not a jury; America can be odd about this stuff) will hear a MASSIVE amount of evidence, principally from WotC's own mouth and its former corporate officers who will give evidence about what WotC said to others about that language and what it meant and was intended to mean -- and how they often and repeatedly persuaded people to rely upon that meaning in terms of its interpretation in use.

The judge will hear all of this _*before the court makes up its mind on the ambiguity issue*_. Supposedly, the judge who has magical powers to compartmentalize evidence, will not rely upon that evidence until he or she holds it is ambiguous.

In my experience, that is utter nonsense they teach you in law school. That's not how a trial or a motion _actually_ works. The judge will hear that evidence and it will lead to an emotional reaction which will engender a plain feeling of injustice.... or it won't. If it's a suitably significant emotional reaction of injustice? It will be held to be ambiguous. If it isn't, then it won't be.

We can argue all day -- indeed, every day for a decade, and we will never come up with an adequate intellectual definition of justice, be it political or legal that we can unanimously agree upon. But injustice? That's an emotional reaction to a given set of facts. That is what injustice is. And nine times out of ten, it is _injustice_ which motivates a judge. They don't teach you that in law school -- but they teach that in the courtroom: every hour of every day of every week of every year. That's how human beings work in the real world.

Having heard that evidence, despite their magical powers to compartmentalize, the court will not actually compartmentalize it (and so ignore it) when the judge hears that this evidence is literally so longstanding it went on for _decades. _To change the playing field now, especially after it has been reasonably and demonstrably relied upon not by a few, but by _an entire industry_, is unlikely AF to happen, imo.

And so it will be held to be ambiguous, that evidence (which the judge has already admitted and supposedly compartmentalized) will be relied upon and it's then it's all over but the crying.

There is no way I would tell WotC, were it my client, that a contrary result would be likely if the matter went to a hearing on the merits. Possible? Sure, but _not likely_. And I would write them a letter well before any hearing explaining to them my view of the likely outcome - to cover my own ass. And so will any other careful litigator.  Maybe WotC listens... and maybe they don't.  Either way, I'm covered.

Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance. That evidence isn't MAYBE getting in -- it is _all but certain_ to go in. And without a very good reason to decide it to the contrary? _That will likely be that. _


----------



## Tazawa

pemerton said:


> If I was arguing for WotC, I would be suggesting that a public-facing FAQ is not something that a commercial publisher would reasonably rely on in order to determine the scope and content of their legal rights.




But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.

Considering the intended audience, statements in an FAQ are very likely relevant.


----------



## FormerLurker

DavyGreenwind said:


> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.



As I've commented elsewhere, if this is true, I wonder what it means for Fate and other non-D&D games that used the Open Game License but not the D&D SRD. 
WotC would be revoking a license used by other companies that doesn't involve them.


----------



## bmcdaniel

Steel_Wind said:


> _Oh but you only go to parol evidence if it is ambiguous, so you might not get there, right?_
> 
> Wrong. *DEAD wrong*. That's not the way a trial works (and I am quite certain about that).
> 
> Let's not kid ourselves here. The judge (assuming it is a judge who deals with it and not a jury; America can be odd about this stuff) will hear a MASSIVE amount of evidence, principally from WotC's own mouth and its former corporate officers who will give evidence about what WotC said to others about that language and what it meant and was intended to mean -- and how they often and repeatedly persuaded people to rely upon that meaning in terms of its interpretation in use.
> 
> The judge will hear all of this _*before the court makes up its mind on the ambiguity issue*_. Supposedly, the judge who has magical powers to compartmentalize evidence, will not rely upon that evidence until he or she holds it is ambiguous.
> 
> In my experience, that is utter nonsense they teach you in law school. That's not how a trial or a motion _actually_ works. The judge will hear that evidence and it will lead to an emotional reaction which will engender a plain feeling of injustice.... or it won't. If it's a suitably significant emotional reaction of injustice? It will be held to be ambiguous. If it isn't, then it won't be.
> ...
> 
> Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance. That evidence isn't MAYBE getting in -- it is _all but certain_ to go in. And without a very good reason to decide it to the contrary? _That will likely be that. _




Quoted to endorse. 

If revocability of the OGL 1.0a ever goes to trial, that WOTC statement posted on their website stating that it isn't revocable is going to be front and center. 

Doctrinally, the court's decision might be based on resolution of an ambiguous contract term, promissory estoppel, detrimental reliance, etc. But dollars-to-donuts, its a fatal piece of evidence.


----------



## Mistwell

Steel_Wind said:


> The practice of law is not an academic discussion. Corporate/commercial litigation (which is what I do) is not a theoretical exercise.  There is no point in trying to write a _factum_ before the fact.
> 
> I won't even get into a discussion about the minefield and inapplicability of any principles of real property, easements, licensees and adverse possession on this issue - which is the legal context in which a license to enter onto land is considered. The entire principle under discussion of a license to enter property is, therefore, _dramatically_ different. Indeed, it is so different, your reference to it confirms to me that you must be a junior lawyer with no experience in this area at all. It should be a cue to just _stop_.
> 
> I know that this is of great interest to you and others here. Your interest is natural and laudable. Your definitive expression of opinion on the interpretation of these agreements and in predicting the outcome would, however, greatly benefit from the perspective that a few more decades of practice would bring: *nothing is certain in litigation*.
> 
> There is no prize to win by pronouncing definitive conclusions of law before there is any need to do so -- and especially before all the facts and circumstances are known.
> 
> tl;dr: *slow down*



He wouldn't listen to me when I gave this advice. I hope he listens to you. But I think you're correct - we're dealing with someone who can't have been practicing very long.


----------



## GMforPowergamers

FormerLurker said:


> As I've commented elsewhere, if this is true, I wonder what it means for Fate and other non-D&D games that used the Open Game License but not the D&D SRD.
> WotC would be revoking a license used by other companies that doesn't involve them.



I would think those companies would have to put out there own OGL then. this one ALWAYS was wotc and it felt odd those other games used it. BUT they can reprint almost word for word... BUT label it irrevocable and say it is "REALLY an OGL"

IF I were one of them I might even make it an ad for the system "A True OGL System"


----------



## Steel_Wind

Tazawa said:


> But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.
> 
> Considering the intended audience, statements in an FAQ are very likely relevant.



While it is likely that such a trial would be held in the USA and apply American state law, the FAQ would also be admitted under any pleading of unconscionability in Canada under the principle set out by the SCC in Uber Technologies v. Heller.

In that case, Uber relied upon a commercial arbitration clause with its drivers, presented to them in a "click here to agree" standard form document to compel the resolution of all disputes before an arbitrator in the Netherlands.  Practically speaking, this meant that a driver could never afford to litigate any dispute with Uber.

"_Too bad, so sad_", said Uber's lawyers. That was the agreement and the I_nternational Commercial Arbitration Act_ applied. There was no discretion in the court to hold otherwise.  So no, you can't sue us in a class proceeding commenced in the Ontario Superior Court.  Please uphold the dismissal, said Uber.

"_Like hell_", said the Supreme Court of Canada, which significantly expanded and re-wrote the law of unconscionable bargains in setting the arbitration clause aside.

The take-away? _Injustice motivates the court. _


----------



## estar

For folks who are interested here is an analysis of GPL version 2 which unlike version 3 doesn't contain the term irrevocable.  Since the one of the sources for the OGL was the current GPLv2 it may be relevant.



			7 Defending Freedom on Many Fronts
		


I recommend looking at section 7.4.1 which among other things talks about the sublicensing clauses that the OGL has as well.



> More specifically, the downstream license grant says “the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions.” (GPLv2§6). So in this step, the contributor has granted a license to the downstream, on the condition that the downstream complies with the license terms.
> 
> That license granted to downstream is irrevocable, again provided that the downstream user complies with the license terms: “[P]arties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance” (GPLv2§4).
> 
> Thus, anyone downstream of the contributor (which is anyone using the contributor’s code), has an irrevocable license from the contributor. A contributor may claim to revoke their grant, and subsequently sue for copyright infringement, but a court would likely find the revocation was ineffective and the downstream user had a valid license defense to a claim of infringement.


----------



## Xyxox

Mistwell said:


> We disagree



I agree with you. They likely cannot. By using the verbiage that OGL 1.0a is unauthorized, it would specifically apply to anything released under the OGL 1.1 license based upon everything I've seen, meaning that nobody can release anything covered by OGL 1.1 under OGL 1.0a because section 9 of that license cannot be applied as that license is not authorized for "open" content released under OGL 1.1. I believe this is a CYA for moving forward so that new content must abide by the terms of OGL 1.1, similar to how under the GSL you gave up the rights to release the content under the OGL.

Furthermore, I do not believe the WotC C-level leadership has any understanding how pulling such a move with D&D 4E was devastating to desired sales and growth of that product and more than anything else, hindered the success of that product. Had it continued under the same model, you would have never had a Pathfinder and it would have been far more successful. Overall, it was not a bad product, but the licensing held it back from the heights and growth reached by 3.0/3.5, This bears out after releasing 5E under OGL 1.0a as demonstrated by the growth of that product.

And really, the OGL 1.0a accomplished something Hasbro could have never done alone. It allowed smaller creators to produce the niche products that would have never produced the profit margins or desired revenue for a company so large, but fulfilled itches that needed scratching by the community as a whole and further drove sales of core products. Bottom line, the Crunch is where a Hasbro/WotC experiences large revenues/profits and the Fluff comes at too high a cost with too low of a volume to be meaningful to the bottom line of a Hasbro/WotC, but fulfills the needs of medium creation companies to small and independent creators. A single creator that produces a product with a single year profit of $50K is good for a basement creator, but would never see the light of day for a Hasbro/WotC. There is a two way quid pro quo in the OGL 1.0a.


----------



## Xyxox

S'mon said:


> This US contract lawyer is currently agreeing with everything I've said
> 
> 
> One thing he just pointed out is that the OGL says sub-licences shall survive termination of the original licence. He also agrees that 1.0 doesn't look to be revocable, and was clearly 'authorised'.




I think it can still be considered unauthorized for any content released under OGL 1.1, which is what I believe the lifted portion of the leak is actually doing. In other words, ANY content released under OGL 1.1  would not be authorized to be released under OGL 1.0a. I think that is the entire point of this. I think when it's finally released, WotC will admit they cannot revoke OGL 1.0a but they can control how licensing works with content released under OGL 1.1 and they can make all prior versions of the OGL unauthorized with regards to content released under OGL 1.1. Furthermore this would apply to any 3pp content released under the OGL 1.1, meaning if Thirdguy Press releases The Wonderworld of Amazement under OGL 1.1, it can NEVER be released under OGL 1.0a after as that is an unauthorized version of the OGL with regards to OGL 1.1. However, if OGL 1.2 comes out in 2026 and they want to re-release The Wonderworld of Amazement under OGL 1.2, then it would be an authorized version of the OGL to release under.


----------



## pemerton

Tazawa said:


> But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.
> 
> Considering the intended audience, statements in an FAQ are very likely relevant.



I don't think those non-commercial users will be arguing that they have rights protected by an estoppel.


----------



## pemerton

Steel_Wind said:


> Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance.



I've read the whole of your post. My take-away from this particular bit is that it is not just the FAQ that you are pointing to in your argument for reasonable reliance. Which makes sense to me.


----------



## S'mon

DavyGreenwind said:


> I have already provided many citations throughout my arguments. But anyway, here are more:
> 
> Here's a quote from a fabulous article on the subject that really drives my point home:
> 
> "The contract theory of license also creates obstacles and confusion in other contexts. Some copyright owners - as exemplified by the open-source and Creative Commons movements - wish to grant nonexclusive licenses to large classes of users with whom they cannot bargain and from whom they seek no payment in return. 21 Contract law provides an ill-suited basis for such dealings. 22 For their part, members of the public who understand licenses to be contracts are also likely to believe (erroneously) that their use of copyrighted works is restricted only by express license terms and only if they expressly agree to be bound by them."
> ARTICLE: A License Is Not a "Contract Not To Sue": Disentangling Property and Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101, 1107




Looks like Lexis' UK version https://www.lexisnexis.com/uk/ doesn't have that article, and the US site won't let me log in


----------



## S'mon

bmcdaniel said:


> It is possible that WOTC could take a position that has very limited legal strength such as the OGL 1.0a being revocable. In any business, management has final say over the lawyers, and its possible that WOTC management will take the position that OGL 1.0a is unilaterally revocable despite contrary advice from lawyers in order to spread fear, uncertainty and doubt. However, its unlikely that they would do so because by doing so they risk a declaratory judgement (from a motivated population!) that would actually undermine their intellectual property rights. For example, they would be risking a judgement that clarifies, contrary to their interest, the scope of non-copyrightability of game mechanics in the context of complex games like TTRPGs.
> 
> My own view is likely that the language that has been circulated regarding the revocation of OGL 1.0a either (a) would apply only to persons who accept and use OGL 1.1, or (b) was a "trial balloon"/early draft that will not ultimately be adopted. Thats not a legal conclusion; thats a probabilistic view of behaviour based off of public evidence that I've seen.
> 
> In any event, it behooves everyone not to get too emotionally invested in any particular facts until WOTC clarifies what their position is.




Yes, this is my feeling - it's certainly possible that WoTC management could send their lawyers into battle with a weak case, but it seems unlikely they'd risk going as far as a judgement. I've seen a lot of cases settle last minute when one side called the others' bluff. Often the result, the settlement, is better than previously offered terms.

On the last point, I agree, but the chilling effect is inevitable. Whatever happens now, WoTC have already damaged both the 3PP ecosystem and their own reputation, I think.


----------



## S'mon

Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly

_I wish you were right, but unfortunately I believe you are wrong. 
	

	
	
		
		

		
			





By the misfortune of having studied law, I have a wide network of attorneys in my contacts. I already consulted with one of the top IP lawyers in the United States about this issue and the situation is grim. *The attorney I spoke to is personally familiar with Hasbro and he said that Hasbro's litigation war chest is absolutely huge and they are out for blood. He said to expect them to litigate to win back their IP rights with a courtroom battle lasting 3-4 years.* I asked him if I could fight back with a $100,000 GoFundMe and he literally laughed. He said it would cost $500,000 simply to get through pre-trial motions and $2-3M to see it through to completion. Hasbro will utterly bury any opponent in motions. The expense alone makes it impossible for anyone at all to fight this except the likes of Paizo. He stressed this over and over in the call: It doesn't matter how good my argument is because I will never get to make that argument. I'll be bankrupt before then.

Moreover, Wizards doesn't even need to litigate. It just needs to persuade Kickstarter and DriveThruRPG that the bread is buttered on their side. Then they can simply have my game, Pundit's game, anyone's game they don't like, shut off from the crowdfunding and distribution we need to be viable. They can do the same on YouTube, just as music companies and Nintendo do, on anyone they want to tread on. We already know how platforms behave in the face of corporate bullies. It will happen in our industry, too, if we're not careful.

I asked what my options were, given this dire situation, and he said "try not to let them notice you." Well, they've already noticed me. "Release anything you can before the new license drops." Well, what about my future product? "Never use the OGL and SRD again in the future and hope they don't care enough to sue you anyway."

The attorney I spoke to is a gamer, has impeccable credentials, and is a trusted friend of 20 years; he has no reason to lie to me or dissuade me. So, based on the advice of the best expert I know, I believe the situation is quite dire. I wish it were a case of crying wolf, but there is literally a wolf and it's here to feast.

I wish I had better news but that's the cold splash of water I got in my face yesterday._

If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims. The parrallel of Russia's invasion of Ukraine comes to mind.


----------



## jgbrowning

S'mon said:


> Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly
> 
> _I wish you were right, but unfortunately I believe you are wrong.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> _
> 
> [snip]




I sincerely hope that this is not the case.

joe b.


----------



## Aldarc

Steel_Wind said:


> It's okay to say "I didn't know that" or "I never considered that" as part of an online discussion. *The Olympic Judge from Austria* *won't deduct marks from your perfect score of 10 for saying so.*



Don't tempt me!


----------



## Nikosandros

S'mon said:


> Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly



To put some levity in this rather grim developments, I'll point out that when people on rpg.net and therpgsite generally have the same sentiment about some issue, you indeed know that the End Times Are Nigh!


----------



## S'mon

Nikosandros said:


> To put some levity in this rather grim developments, I'll point out that when people on rpg.net and therpgsite generally have the same sentiment about some issue, you indeed know that the End Times Are Nigh!




Yes. Almost no one thinks WoTC are behaving decently or morally. I think on therpgsite you're more likely to see posts along the lines of "Let the (RPG) world burn - a new and better world will arise from the ashes!" - but no one thinks WoTC is in the right, and very few people think this strategy of theirs will ultimately benefit them. Even if they do destroy the 3PP world, they'll be left sitting atop a heap of ruins and in a much worse position than they were before.


----------



## jgbrowning

S'mon said:


> If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims. The parrallel of Russia's invasion of Ukraine comes to mind.




Question: is this case that is complicated enough to where such expensive legal maneuverings could be done? Obviously, I'm not a lawyer, but it doesn't seem like there's a lot of depth to it? It honestly doesn't seem that complex.

joe b.


----------



## S'mon

jgbrowning said:


> Question: is this case that is complicated enough to where such expensive legal maneuverings could be done? Obviously, I'm not a lawyer, but it doesn't seem like there's a lot of depth to it? It honestly doesn't seem that complex.
> 
> joe b.




I only know the English legal system. Here I don't think it would cost millions of pounds to reach a judgement on revocability of the OGL 1.0, and WoTC would probably lose, and be saddled with the other side's legal costs. I assume Macris' lawyer friend is telling the truth as he sees it. Lawyers do tend towards the pessimistic side though.


----------



## Yaarel

S'mon said:


> I only know the English legal system. Here I don't think it would cost millions of pounds to reach a judgement on revocability of the OGL 1.0, and WoTC would probably lose, and be saddled with the other side's legal costs. I assume Macris' lawyer friend is telling the truth as he sees it. Lawyers do tend towards the pessimistic side though.



Is it possible for the UK to enforce the OGL 1.0a, and indy publishers elsewhere do their business via UK?


----------



## S'mon

Yaarel said:


> Is it possible for the UK to enforce the OGL 1.0a, and indy publishers elsewhere do their business via UK?




The OGL 1.0 has no choice-of-jurisdiction clause. This is why OSRIC was authored and first published in the UK - WoTC would have had to sue the author, Marshall, in the UK. This looks to apply equally to EN Publishing (as far as I know). AFAICT, UK companies and sole traders (like several friends of mine) who use the OGL in the UK would have to be sued in the UK.

I don't think it looks good for existing US based publishers. AFAICT they agreed the OGL in the USA and would need to go before a US court. Where the Law would be on their side AFAICT, but Macris' friend thinks they can be buried in Lawfare before ever getting to court.

It is conceivable that the OGL could be held revocable in some jurisdictions and non-revocable in others. Personally I think it's unlikely it would be held revocable in a US court, or at least I don't think that finding would survive an appeal, but (a) I'm not a US Contract lawyer and (b) it sounds like WoTC's strategy is to not actually go to a court judgment, but rather use 'the process is the punishment' to intimidate 3PPs.

In future, should OGL works be authored and first published in a jurisdiction like England less amenable to lawfare than the USA? That seems like a reasonable tactic to me; but if you are a US based publisher I don't think that is a foolproof defence to lawfare attacks. In lawfare the claims can be spurious, the point is to inflict pain. I don't see anything stopping WotC lawyers from _claiming_ the case should go before a US court and inflicting pain that way. Maybe not millions of $, but enough to hurt.


----------



## S'mon

The thing about the OGL 1.0 is that it was specifically designed to protect against future attacks from the kind of bad actor that WoTC now appears to be. This puts 3PP in a very strong legal position - *at judgement*. But in the US legal system it's almost impossible to protect against lawfare attacks. And that's what WoTC appear to be counting on.


----------



## UngainlyTitan

I wonder how much a crowd funded "Save the OGL" effort would garner now? It looks to me like that the OGL will die unless someone bites the bullet and goes to court on this.


----------



## TheSword

Xyxox said:


> And really, the OGL 1.0a accomplished something Hasbro could have never done alone. It allowed smaller creators to produce the niche products that would have never produced the profit margins or desired revenue for a company so large, but fulfilled itches that needed scratching by the community as a whole and further drove sales of core products. Bottom line, the Crunch is where a Hasbro/WotC experiences large revenues/profits and the Fluff comes at too high a cost with too low of a volume to be meaningful to the bottom line of a Hasbro/WotC, but fulfills the needs of medium creation companies to small and independent creators. A single creator that produces a product with a single year profit of $50K is good for a basement creator, but would never see the light of day for a Hasbro/WotC. There is a two way quid pro quo in the OGL 1.0a.



Can I ask how 3pp increase core D&D sales? I get that they are good for consumers because it gives us alternatives and choices…. But are you suggesting that people come to D&D through 3pp and not the other way around? Or is it that 3pp sustain people playing 5e and then prolong future buying from WOC.

I haven’t bought anything from WOC for 2 1/2 years and test spend £20-£30 a month on average on 5e and D&D. All from 3rd parties, roll20 marketplace, Paizo, a couple of Patreons etc. With the exception of Roll20 which has its own license agreement with WoTC, all my purchases would be totally unaffected by the change to the licence.


----------



## jgbrowning

S'mon said:


> The thing about the OGL 1.0 is that it was specifically designed to protect against future attacks from the kind of bad actor that WoTC now appears to be. This puts 3PP in a very strong legal position - *at judgement*. But in the US legal system it's almost impossible to protect against lawfare attacks. And that's what WoTC appear to be counting on.




And it's this that has me wondering about the timing. If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is no longer discussing it? [[EDIT: somehow I ended up saying the opposite of what I meant to say. I meant to say "If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is still discussing it?]] It was intended for release on January 4, and if they had already committed to that view, there isn't a reason I can see for the delay in discussion.

PR reasons maybe? But if lawfare was already the intended, the PR ramifications would have already been prepared beforehand. Incompetence is always an option (Glass Onions), but it really seems to me beyond incompetent to have _not_ run a "how's this going to affect our PR" _before_ releasing such an industry-changing announcement.

joe b.


----------



## jgbrowning

UngainlyTitan said:


> I wonder how much a crowd funded "Save the OGL" effort would garner now? It looks to me like that the OGL will die unless someone bites the bullet and goes to court on this.




I wouldn't be surprised if there would be a crowd-funding for the legal costs for Paizo, of which almost the entire OGL community would gladly support. It would be a _huge_ boon for Paizo as they are, IMO, being effectively forced to go to court if the "revoked" aspect is not relented upon. But again, i'm not a lawyer.

joe b.


----------



## S'mon

jgbrowning said:


> And it's this that has me wondering about the timing. If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is no longer discussing it? It was intended for release on January 4, and if they had already committed to that view, there isn't a reason I can see for the delay in discussion.
> 
> PR reasons maybe? But if lawfare was already the intended, the PR ramifications would have already been prepared beforehand. Incompetence is always an option (Glass Onions), but it really seems to me beyond incompetent to have _not_ run a "how's this going to affect our PR" _before_ releasing such an industry-changing announcement.
> 
> joe b.




Yes, I agree. I still think most likely there is right now a lot of internal turmoil at WoTC-Hasbro as they decide how to move forward. Most likely there are scorched-earth policy advocates and there are relative doves who want to salvage the situation. I'm guessing Macris's lawyer friend most likely was only in contact with the scorched-earth nuke-em-all side.


----------



## jgbrowning

S'mon said:


> Yes, I agree. I still think most likely there is right now a lot of internal turmoil at WoTC-Hasbro as they decide how to move forward. Most likely there are scorched-earth policy advocates and there are relative doves who want to salvage the situation. I'm guessing Macris's lawyer friend most likely was only in contact with the scorched-earth nuke-em-all side.




What I'm wondering is if it may hint that the lawfare option actually _wasn't_ on the table when the NoOgl was conceived and planned for release on the 4th. If it had been discussed and agree upon as the course of action beforehand, there shouldn't _be_ any internal dissension right now as that dissention would have already happened and been put aside because they'd decided to approve the release for the 4th.

It makes me entirely question if the lawfare scenario is actually a real one within WotC or just a person's private take on how large corporations view eliminating competition as highly desirable, or more highly desirable, than creating competitive product. There is always the chance of personal bias. I dunno. Just some thoughts.

joe b.


----------



## Xyxox

TheSword said:


> Can I ask how 3pp increase core D&D sales? I get that they are good for consumers because it gives us alternatives and choices…. But are you suggesting that people come to D&D through 3pp and not the other way around? Or is it that 3pp sustain people playing 5e and then prolong future buying from WOC.
> 
> I haven’t bought anything from WOC for 2 1/2 years and test spend £20-£30 a month on average on 5e and D&D. All from 3rd parties, roll20 marketplace, Paizo, a couple of Patreons etc. With the exception of Roll20 which has its own license agreement with WoTC, all my purchases would be totally unaffected by the change to the licence.



Simple. Thirdguy Press releases The Wonderworld of Amazement. Tom, who is a DM, buys The Wonderworld of Amazement to run for his group. Dick And Harry each bring Sally and Mary to the game to try and get them involved since some of the aspects of The Wonderworld of Amazement will probably be enjoyed by Sally and Mary. Low and behold, they both have a good time and to prepare for the next session, they each run out and buy The Players Handbook.

OGL 1.0a is how WotC/Hasbro has been increasing sales to players for years.


----------



## Xyxox

jgbrowning said:


> I wouldn't be surprised if there would be a crowd-funding for the legal costs for Paizo, of which almost the entire OGL community would gladly support. It would be a _huge_ boon for Paizo as they are, IMO, being effectively forced to go to court if the "revoked" aspect is not relented upon. But again, i'm not a lawyer.
> 
> joe b.



If lawfare is really what WotC/Hasbro are up to, I would make a recurring monthly donation of $100 for litigation. That's what I've been spending on WotC IP lately.


----------



## S'mon

jgbrowning said:


> What I'm wondering is if it may hint that the lawfare option actually _wasn't_ on the table when the NoOgl was conceived and planned for release on the 4th. If it had been discussed and agree upon as the course of action beforehand, there shouldn't _be_ any internal dissension right now as that dissention would have already happened and been put aside because they'd decided to approve the release for the 4th.




Maybe so, yes. It seems naive, but much stranger things have happened. I remember in the mid 1990s when TSR seemed completely divorced from reality. Some kind of bunker mentality had taken hold. Conceivably something like that has happened following Hasbro's recent problems. Looking at their 21st December press release OGLs, SRDs, & One D&D words like _The OGL needs an update to ensure that it keeps doing what it was intended to do—allow the D&D community’s independent creators to build and play and grow the game we all love—without allowing things like third-parties to mint D&D NFTs and large businesses to exploit our intellectual property _sounds to me rather like it's coming from people who are psychologically not in a very good place. Macris' friend said they were "out for blood". They may not be thinking very rationally. There's stuff in that announcement that plainly was not true. It reminds me of Karl Rove's "We're an empire now. We create our own reality".


----------



## jgbrowning

Xyxox said:


> If lawfare is really what WotC/Hasbro are up to, I would make a recurring monthly donation of $100 for litigation. That's what I've been spending on WotC IP lately.




I think a lot of people are underestimating the amount of money that passionate gamers will donate to prevent the games they like to play from no longer being able to be supported by the companies that (in many cases) wouldn't be able to continue to exist without the revenue streams from those games. I wouldn't be surprised to see a million (or more) $s in donations, and Paizo to gladly take up the banner of "we are _the open gaming_ company!" in the process.

joe b.


----------



## jgbrowning

S'mon said:


> Maybe so, yes. It seems naive, but much stranger things have happened. I remember in the mid 1990s when TSR seemed completely divorced from reality. Some kind of bunker mentality had taken hold. Conceivably something like that has happened following Hasbro's recent problems. Looking at their 21st December press release OGLs, SRDs, & One D&D words like _The OGL needs an update to ensure that it keeps doing what it was intended to do—allow the D&D community’s independent creators to build and play and grow the game we all love—without allowing things like third-parties to mint D&D NFTs and large businesses to exploit our intellectual property _sounds to me rather like it's coming from people who are psychologically not in a very good place. Macris' friend said they were "out for blood". They may not be thinking very rationally. There's stuff in that announcement that plainly was not true. It reminds me of "We create our own reality".




Yeah, that's the truth. I can absolutely see the nuclear option being considered now, but I do think that means that it hadn't been decided upon _before_ the NoOgl was released (or in this case, leaked right before release). And for me, that does change how I weigh things.

joe "it's very tiring to even have to be considering these destructive, and self-destructive behaviors" b.


----------



## pemerton

S'mon said:


> If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims.





S'mon said:


> Even if they do destroy the 3PP world, they'll be left sitting atop a heap of ruins and in a much worse position than they were before.



I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.

If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.


----------



## S'mon

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.
> 
> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.




I think D&D's success is to a large extent goodwill-dependent, unlike the success of Microsoft Windows. I do think D&D's recent success benefitted directly from 3PP support, but more than that they benefitted from community goodwill from 2014 onwards.

No one is obliged to play D&D or buy D&D product, the way we may feel obliged to use Microsoft Windows (or Apple). I feel they are salting their own fields in a way they don't seem to understand. It's like how many companies care about comments on Twitter and media sites from 'thought leaders'; the atmosphere created by a relatively small group flows downstream to the general mass of consumers.


----------



## Xyxox

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.
> 
> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.



If lawfare is really their intention, then they are definitely trying to vindictively destroy the present ecosystem.


----------



## Reynard

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.
> 
> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.



I think they want to make sure they define what D&D is in the marketplace since they intend on leveraging the brand effectively. It isn't that WotC doesn't want 3PP support, they just want to control it. And if the big 3PP companies they are courting go along, they will.


----------



## pemerton

S'mon said:


> I think D&D's success is to a large extent goodwill-dependent, unlike the success of Microsoft Windows. I do think D&D's recent success benefitted directly from 3PP support, but more than that they benefitted from community goodwill from 2014 onwards.
> 
> No one is obliged to play D&D or buy D&D product, the way we may feel obliged to use Microsoft Windows (or Apple). I feel they are salting their own fields in a way they don't seem to understand. It's like how many companies care about comments on Twitter and media sites from 'thought leaders'; the atmosphere created by a relatively small group flows downstream to the general mass of consumers.



Maybe.

But I'm not sure if the relevant "thought leaders" are Paizo-philes or Critical Role. If WotC haven't reached some sort of understanding with Critical Role (and similar performers who seem to provide a huge outreach function), _that_ would seem to be a major mis-step.


----------



## S'mon

pemerton said:


> Maybe.
> 
> But I'm not sure if the relevant "thought leaders" are Paizo-philes or Critical Role. If WotC haven't reached some sort of understanding with Critical Role (and similar performers who seem to provide a huge outreach function), _that_ would seem to be a major mis-step.




I don't think they have. Matt Mercer seems to have indicated he's not happy. 
I was actually thinking primarily of mainstream gaming media coverage, which seems uniformly hostile to WoTC.


----------



## mamba

jgbrowning said:


> And it's this that has me wondering about the timing. If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is no longer discussing it?



who says they aren’t?



jgbrowning said:


> It was intended for release on January 4, and if they had already committed to that view, there isn't a reason I can see for the delay in discussion.



much more 3PP and fan pushback than they anticipated



jgbrowning said:


> PR reasons maybe? But if lawfare was already the intended, the PR ramifications would have already been prepared beforehand. Incompetence is always an option (Glass Onions), but it really seems to me beyond incompetent to have _not_ run a "how's this going to affect our PR" _before_ releasing such an industry-changing announcement.



I am sure they ran some kind of analysis, that doesn’t mean it was close to accurate


----------



## Reynard

S'mon said:


> I don't think they have. Matt Mercer seems to have indicated he's not happy.
> I was actually thinking primarily of mainstream gaming media coverage, which seems uniformly hostile to WoTC.



Mercer is going to have to test the wind carefully. The relationship between CR and D&D is a weird circular one. Years ago, CR brought people to D&D. But more recently I bet D&D brought people to CR. And as I understand it, CR fans skew older than most new D&D fans - 30-ish rather than late teens. I don't recall where I read that, though, so I won't plant a flag on it. In either case, knowing what percentage of his fans will follow him anywhere will be really important if he chooses to drop D&D for idealistic reasons.


----------



## jgbrowning

mamba said:


> who says they aren’t?
> 
> 
> much more 3PP and fan pushback than they anticipated
> 
> 
> I am sure they ran some kind of analysis, that doesn’t mean it was close to accurate




Somehow I managed to say the opposite of what I meant. _sigh_ Sorry about that!

I meant to say is, "If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is still discussing it?"

ie. if they had already decided that nuking-it-all was the plan they were going with when they'd created the NoOgl, there's no reason for them to be delaying now.

joe b.


----------



## mamba

jgbrowning said:


> Somehow I managed to say the opposite of what I meant. _sigh_ Sorry about that!
> 
> I meant to say is, "If lawfare is the intended process for the "revoke it" idea, what is the reason as to why WotC is still discussing it?"
> 
> ie. if they had already decided that nuking-it-all was the plan they were going with when they'd created the NoOgl, there's no reason for them to be delaying now.
> 
> joe b.



you are still saying the same thing and my answer is still the same 

They delay because there is more pushback than they expected. 3PPs rather get rid of the OGL and rework their products than signing on to the new one, while customers threaten to boycott D$D or even everything Hasbro. Right now that looks like the downside is larger than the upside, or at a minimum larger than they expected, so they are reevaluating


----------



## pemerton

S'mon said:


> I don't think they have. Matt Mercer seems to have indicated he's not happy.



That strikes me as a miscalculation - though @Reynard's post at 275 is interesting. (I've got no independent knowledge about any of those details.)



S'mon said:


> I was actually thinking primarily of mainstream gaming media coverage, which seems uniformly hostile to WoTC.



How influential is that? I'm a fairly serious RPGer and have only encountered that stuff a few times when linked to on ENworld. But I may be out of touch!


----------



## jgbrowning

mamba said:


> you are still saying the same thing and my answer is still the same
> 
> They delay because there is more pushback than they expected. 3PPs rather get rid of the OGL and rework their products than signing on to the new one, while customers threaten to boycott D$D or even everything Hasbro. Right now that looks like the downside is larger than the upside, or at a minimum larger than they expected, so they are reevaluating




Ah, I see. Yes, we do differ there. I'd expect that all of those responses are something that anyone with a modicum of foresight would have fully anticipated before deciding upon something as significant as a lawfare "revoke the OGL" decision. I assume that all of these downsides would have already been fully weighted and found short-term compared to the reclamation of the IP they were seeking to "un-open."

But, I am fully acceptant to the belief that I am attributing far more wisdom, foresight, and market knowledge than is actually present in the decision makers at WotC.

joe b.


----------



## Art Waring

S'mon said:


> Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly
> 
> _I wish you were right, but unfortunately I believe you are wrong.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> By the misfortune of having studied law, I have a wide network of attorneys in my contacts. I already consulted with one of the top IP lawyers in the United States about this issue and the situation is grim. *The attorney I spoke to is personally familiar with Hasbro and he said that Hasbro's litigation war chest is absolutely huge and they are out for blood. He said to expect them to litigate to win back their IP rights with a courtroom battle lasting 3-4 years.* I asked him if I could fight back with a $100,000 GoFundMe and he literally laughed. He said it would cost $500,000 simply to get through pre-trial motions and $2-3M to see it through to completion. Hasbro will utterly bury any opponent in motions. The expense alone makes it impossible for anyone at all to fight this except the likes of Paizo. He stressed this over and over in the call: It doesn't matter how good my argument is because I will never get to make that argument. I'll be bankrupt before then.
> 
> Moreover, Wizards doesn't even need to litigate. It just needs to persuade Kickstarter and DriveThruRPG that the bread is buttered on their side. Then they can simply have my game, Pundit's game, anyone's game they don't like, shut off from the crowdfunding and distribution we need to be viable. They can do the same on YouTube, just as music companies and Nintendo do, on anyone they want to tread on. We already know how platforms behave in the face of corporate bullies. It will happen in our industry, too, if we're not careful.
> 
> I asked what my options were, given this dire situation, and he said "try not to let them notice you." Well, they've already noticed me. "Release anything you can before the new license drops." Well, what about my future product? "Never use the OGL and SRD again in the future and hope they don't care enough to sue you anyway."
> 
> The attorney I spoke to is a gamer, has impeccable credentials, and is a trusted friend of 20 years; he has no reason to lie to me or dissuade me. So, based on the advice of the best expert I know, I believe the situation is quite dire. I wish it were a case of crying wolf, but there is literally a wolf and it's here to feast.
> 
> I wish I had better news but that's the cold splash of water I got in my face yesterday._
> 
> If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims. The parrallel of Russia's invasion of Ukraine comes to mind.



And here I was trying to stay at least a little bit optimistic about things. This deal keeps getting worse all the time...


----------



## Reynard

Art Waring said:


> And here I was trying to stay at least a little bit optimistic about things. This deal keeps getting worse all the time...



Remember that a lot of attorneys on these boards are disagreeing, so don't immediately assume this one that apparently confirms your worst fears is right. We don't know. We can't know until at least the final release of OGL 1.1, and probably not then either since it is likely to have to go to court.


----------



## Art Waring

Reynard said:


> Remember that a lot of attorneys on these boards are disagreeing, so don't immediately assume this one that apparently confirms your worst fears is right. We don't know. We can't know until at least the final release of OGL 1.1, and probably not then either since it is likely to have to go to court.



Yeah its certainly all up in the air right now. I honestly wish they never went down this road, but whats done is done.


----------



## wingsandsword

S'mon said:


> They generally look at what the words would mean to a reasonable person at the time. I think WoTC's 2000 FAQ explaining their intent would certainly be relevant.



The fact they kept that FAQ up for over 20 years, and if they've taken it down it's only come down within the last few days, also goes a long way to saying that this interpretation that they can "de authorize" the OGL 1.0a is a _very _new one and that they spent 22 years saying that if they ever released a new OGL version then people could always use the older versions.

Combine that with Ryan Dancey's statements as the exec at WotC who authorized the OGL to be released (and conceived of it in the first place) that he doesn't think the OGL can be rescinded and it was never meant to be rescinded also goes very far with regards to intent.

I keep thinking this was the result of some WotC execs telling the legal dept. to come up with ANY excuse to rescind the OGL and they went with the first vaguely plausible thing anyone in the dept. came up with after most of the lawyers told them it couldn't be done.


----------



## kenada

wingsandsword said:


> The fact they kept that FAQ up for over 20 years, and if they've taken it down it's only come down within the last few days, also goes a long way to saying that this interpretation that they can "de authorize" the OGL 1.0a is a _very _new one and that they spent 22 years saying that if they ever released a new OGL version then people could always use the older versions.



The FAQ went offline several years ago after a website redesign. I doubt it had anything to do with the proposed OGL changes.


----------



## Maxperson

jgbrowning said:


> Question: is this case that is complicated enough to where such expensive legal maneuverings could be done? Obviously, I'm not a lawyer, but it doesn't seem like there's a lot of depth to it? It honestly doesn't seem that complex.
> 
> joe b.



Complexity isn't needed to make litigation very expensive.  The discovery process is lengthy and costly.  And then there are the motions, attorney phone calls to discuss the case, mandatory conferences, mediations, court appearances, etc. It adds up very quickly and if one side is trying to make things more expensive, they can very easily.


----------



## rcade

Steel_Wind said:


> And Ryan Dancey will give his evidence and others in the industry will as well. All of this is _all but certain_ to happen, because Lisa Stevens will ask them to do it.



The archive of the mailing lists OGF-L and OGF-D20-L will have a lot of posts where he (and by extension WOTC) reassures RPG publishers that the license can be relied on forever.

Instead of using a dubious legal retcon to crush 23 years of OGL 1.0-licensed work, Hasbro should be finding ways to make the most successful companies using the OGL want to be into business with them. If they left OGL 1.0 alone and released the next D&D under a new license, everything that was different in the new edition would be back in their walled garden.


----------



## Mistwell

Art Waring said:


> And here I was trying to stay at least a little bit optimistic about things. This deal keeps getting worse all the time...



Alexander Macris is a "controversial figure" is all I will say on that.


----------



## Mistwell

wingsandsword said:


> The fact they kept that FAQ up for over 20 years, and if they've taken it down it's only come down within the last few days,



Years. It came down years ago, long before all of this, at the same time tons of other stuff was taken down when they did a re-vamp. It's just that some only now noticed.


----------



## Reynard

Mistwell said:


> Years. It came down years ago, long before all of this, at the same time tons of other stuff was taken down when they did a re-vamp. It's just that some only now noticed.



I just visited the FAQ yesterday. It's linked here on the site in different threads.


----------



## GMforPowergamers

S'mon said:


> Yes, this is my feeling - it's certainly possible that WoTC management could send their lawyers into battle with a weak case, but it seems unlikely they'd risk going as far as a judgement. I've seen a lot of cases settle last minute when one side called the others' bluff. Often the result, the settlement, is better than previously offered terms.



see that's the thing... since you used "call your bluff" lets look at a poker anology... 1 side had $10,000,000 the other side has $1,250,500 both are saying they have winning hands, then the side with more money raises the pot to $1,251,000... the other side can go all in and "Call the bluff" and if they win the game goes on and they doubled there stake... if they lose they are out. The safe bet is to fold... becuse even if they are bluffing they just 'bought the pot'

SO yeah, if WotC has a weak case and takes it right up to the end MAYBE the 3pp can force a better deal... but if they lose they lose everything.


----------



## Mistwell

Reynard said:


> I just visited the FAQ yesterday. It's linked here on the site in different threads.



The 3rd edition one? There is surely an SRD FAQ up at Wizards but it's the 5e one. They have a 3rd edition one somewhere on their servers still but the main linked one went away years ago as far as I know. It is however all over the web elsewhere.


----------



## Reynard

Mistwell said:


> The 3rd edition one? There is surely an SRD FAQ up at Wizards but it's the 5e one. They have a 3rd edition one somewhere on their servers still but the main linked one went away years ago as far as I know. It is however all over the web elsewhere.



I think there's some confusion. Both 3.5 and 5E use the same OGL v 1.0a. There aren't different licenses for each. The SRDs for those editions were both released under the OGL 1.0a.


----------



## Mistwell

Reynard said:


> I think there's some confusion. Both 3.5 and 5E use the same OGL v 1.0a. There aren't different licenses for each. The SRDs for those editions were both released under the OGL 1.0a.



I know we're talking about that old 3e FAQ. The one Ryan Dancey probably wrote.


----------



## estar

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.



Oh? And where is this magical manpower that Wizards conjured up that singerly handily expanded the D&D to its largest audience ever?

I understand what you are trying to say here and I apologize for the sarcastic tone. But figuring out how D&D expanded to its largest audience ever is about the logistics of how people become aware of D&D in the first place. And the answer is pretty obvious when you consider the logistics.

Historically Wizard's staff devoted to D&D has been relatively small. Much of their creative and logistical support was outsourced to freelancers and licensed outlets.  But those outlets and freelancers are dwarfed by the number of people actively involved in publishing RPG whether it is 3PP or not. The 2010s saw a huge expansion of creative output across the board enabled by the low barriers to publication created by the internet and digital technology. What is relevant here is not the sales or dollar volume here but the social network effect of all these creatives.

Whatever the ratio is it magnified that most of these folks are referee types which mean they are surrounded by a far larger group of folks just here to play. 

But then growing throughout the 2010s is what I would call effective third party promotion. Sure we had blogs, articles, zines, and forums, but the rise of Youtube and more importantly the examples of the effective use of Youtube like the one set by the Critical Role crew meant that now instead mostly referee types being plugged into the wider hobby, we see more the wider player base becoming engage.

The next piece of the puzzle is the goodwill generated by the runup and initial release of D&D 5e. While it didn't have a open content SRD until later the "era of good feeling" meant that for several years D&D 5e became everybody's 2nd favorite RPG. For this Wizards at the time deserve the credit for being the primary movers behind this. 

But this set the stage for a multiplier effect on 5e when effective third party promotion started to come into play. As a well-liked system, the decentralized network of promotors started talking up 5e. Then the OGL was released along with popular programs like the DM's Guild, D&D Beyond, and licensed content for VTTs.  

The stage was set for a larger consumer market to become aware of the potential of tabletop roleplaying and D&D 5e.  When lockdowns of the pandemic came into the picture, many turned to the internet for their primary form of entertainment and social interaction. The odds of an unconnected individual stumbling on something RPG or D&D related was at a high point. This ignited sales of 5e and propelled D&D and the hobby to its high point.

This is the nuts and bolts of how the current market situation with D&D came to be. Wizards is responsible only for the goodwill in the 5e runup, and the then-current licensing situation. The rest was driven by third parties. 



pemerton said:


> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.



This is a case of bad generalship plain and simple. The executive at Wizards are fighting the last war and failed to consider how the battlefield works today. If they were good generals then they would be aware that by restricting people's use of the original content they created is a lines that when crossed will ignite a firestorm of criticism and a collapse of the value of their goodwill.


----------



## GMforPowergamers

jgbrowning said:


> I think a lot of people are underestimating the amount of money that passionate gamers will donate to prevent the games they like to play from no longer being able to be supported by the companies that (in many cases) wouldn't be able to continue to exist without the revenue streams from those games. I wouldn't be surprised to see a million (or more) $s in donations, and Paizo to gladly take up the banner of "we are _the open gaming_ company!" in the process.
> 
> joe b.



$100 a month form 300 people is $30,000 a month over a year that is $360,000
I doubt you will find 300 people willing to donate $100 a month for no return. and all you got is 1/3 of a mil when it will take multi mil to do it... 
lets say you can Also get double that to put in $25 per month for a year. 600x25 so another $15,000 a month or 180,000 a year... we are now up to $540,000

lets say you can get 1,000 MORE people to pay $10 per month thats 10,000 per month and 120,000 per year for that year end total to be $660,000

You just got about 2,000 gamers to donate 2/3 of a million dollars that is going to cost millions (and this is before the crowd found site takes a cut remember) 

would not this effort and money be better spent getting 2,000ish gamers to play a non D&D non OGL game?


----------



## GMforPowergamers

Maxperson said:


> Complexity isn't needed to make litigation very expensive.  The discovery process is lengthy and costly.  And then there are the motions, attorney phone calls to discuss the case, mandatory conferences, mediations, court appearances, etc. It adds up very quickly and if one side is trying to make things more expensive, they can very easily.



ask anyone who has ever delt with corp law. You can if you want make the simplist case cost millions... now this is (When both sides are equal) not a good tactic, you are after all costing yourself what you cost them... the problem becomes when all else is NOT equal. like say 1 company can throw 3 million dollars in a woodchipper and flinch a little while the other 5 combined will go broke raising 1 million...


----------



## Yaarel

Xyxox said:


> Simple. Thirdguy Press releases The Wonderworld of Amazement. Tom, who is a DM, buys The Wonderworld of Amazement to run for his group. Dick And Harry each bring Sally and Mary to the game to try and get them involved since some of the aspects of The Wonderworld of Amazement will probably be enjoyed by Sally and Mary. Low and behold, they both have a good time and to prepare for the next session, they each run out and buy The Players Handbook.
> 
> OGL 1.0a is how WotC/Hasbro has been increasing sales to players for years.



And often, the DM that bought the Wonderworld of Amazement isnt actually playing it. Instead the DM is borrowing cool ideas from it for the D&D game. The DM makes D&D more enjoyable. Sally and Mary each run out and buy a Players Handbook too.


----------



## Yaarel

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.
> 
> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.



Part of the current mainstreaming success of 5e is because of internet enthusiasm via Critical Role, YouTube, etcetera.

All of this freedom to discuss, enjoy, watch, and promote D&D is self-generated without Hasbro, and comes 100% from the freedom of the OGL 1.0a.

OGL 1.0a = D&D success


----------



## GMforPowergamers

Xyxox said:


> Simple. Thirdguy Press releases The Wonderworld of Amazement. Tom, who is a DM, buys The Wonderworld of Amazement to run for his group. Dick And Harry each bring Sally and Mary to the game to try and get them involved since some of the aspects of The Wonderworld of Amazement will probably be enjoyed by Sally and Mary. Low and behold, they both have a good time and to prepare for the next session, they each run out and buy The Players Handbook.
> 
> OGL 1.0a is how WotC/Hasbro has been increasing sales to players for years.



The problem is that the more common (IME) is Tom buys the PHB, and the DMG (maybe he even reads it) and the MM, then 5-10 other supplements some by wotc and some by 3pp... he runs games and 1/3 those players buy a PHB.

New players don't always buy PHB. They use the srd, they borrow a book, they pirate the book... ext. 

And if WOnderworld of Amazement isn't on the market is Tom just not going to run the game? IS there not a chance that Tom would buy Strixhaven or the carnavel one from WotC instead?


----------



## Yaarel

mamba said:


> you are still saying the same thing and my answer is still the same
> 
> They delay because there is more pushback than they expected. 3PPs rather get rid of the OGL and rework their products than signing on to the new one, while customers threaten to boycott D$D or even everything Hasbro. Right now that looks like the downside is larger than the upside, or at a minimum larger than they expected, so they are reevaluating



If there is going to be a boycott, it has to be "everything Hasbro".

Sadly, that would include the D&D movie. Which I was looking forward to.

Hopefully things resolve to the satisfaction of the D&D community before then.


----------



## GMforPowergamers

Yaarel said:


> If there is going to be a boycott, it has to be "everything Hasbro".



so no GI joe no power rangers no transformers no playdough... like 1/3 the board games out there...


Yaarel said:


> Sadly, that would include the D&D movie. Which I was looking forward to.
> 
> Hopefully things resolve to the satisfaction of the D&D community before then.


----------



## overgeeked

Reynard said:


> Mercer is going to have to test the wind carefully. The relationship between CR and D&D is a weird circular one. Years ago, CR brought people to D&D. But more recently I bet D&D brought people to CR. And as I understand it, CR fans skew older than most new D&D fans - 30-ish rather than late teens. I don't recall where I read that, though, so I won't plant a flag on it. In either case, knowing what percentage of his fans will follow him anywhere will be really important if he chooses to drop D&D for idealistic reasons.



As someone who's nominally a critter and regularly engages with that community, I'd say 80-90%. Easily. Just look at their Kickstarter.


----------



## Xyxox

Mistwell said:


> Years. It came down years ago, long before all of this, at the same time tons of other stuff was taken down when they did a re-vamp. It's just that some only now noticed.



Yeah, there was tons of RTF and JPG files from the 2E era on the site for years and years that came down in the revamps. You used to be able to get the original Ravenloft module for free that way, just the text in RTF and the illustrations and maps in JPG.


----------



## Xyxox

Reynard said:


> I just visited the FAQ yesterday. It's linked here on the site in different threads.



You're seeing it on the wayback machine.


----------



## Xyxox

GMforPowergamers said:


> The problem is that the more common (IME) is Tom buys the PHB, and the DMG (maybe he even reads it) and the MM, then 5-10 other supplements some by wotc and some by 3pp... he runs games and 1/3 those players buy a PHB.
> 
> New players don't always buy PHB. They use the srd, they borrow a book, they pirate the book... ext.
> 
> And if WOnderworld of Amazement isn't on the market is Tom just not going to run the game? IS there not a chance that Tom would buy Strixhaven or the carnavel one from WotC instead?



Tom is an avid DM and not only has the core three, but multiple other rules books. Tom already has Strixhaven and is sure it wouldn't work for his group, but there are key elements in The Wonderlands of Amazement that he knows his group will like (considering Tom has stuff going back decades, he'll pull stuff from Ptolus and all sorts of other products, too). When he tells Dick and Harry about what to expect in the new campaign set in The Wonderlands of Amazement (that uses OGL 1.0a), they both know that this is PERFECT for introducing Sally and Mary to the game.

As an aside I now feel compelled to write a rules agnostic setting that I do not release under OGL 1.0a called The Wonderlands of Amazement.


----------



## mamba

Yaarel said:


> If there is going to be a boycott, it has to be "everything Hasbro".
> 
> Sadly, that would include the D&D movie. Which I was looking forward to.



weirdly the TTRPG part might be the only thing I have to even think about. The rest of Hasbro is easily parted with 



Yaarel said:


> Hopefully things resolve to the satisfaction of the D&D community before then.



highly unlikely


----------



## mamba

GMforPowergamers said:


> so no GI joe no power rangers no transformers no playdough... like 1/3 the board games out there...



yep, none of that


----------



## Yaarel

GMforPowergamers said:


> so no GI joe no power rangers no transformers no playdough... like 1/3 the board games out there...



Yeah. Someone would have to put together a convenient list of "all things Hasbro" for me.

Hopefully, it doesnt come to that.

So far, it looks like rough days ahead.


----------



## p_johnston

Yaarel said:


> Yeah. Someone would have to put together a convenient list of "all things Hasbro" for me.
> 
> Hopefully, it doesnt come to that.
> 
> So far, it looks like rough days ahead.



Yeah as a MTG fan ive been on the fence about full boycotting WOTC for years but they hadn't quite gotten me there. This'll probably change things which will suck because i love both D&D and MTG.


----------



## Yaarel

Hasbro-WotC appears to be banking on the "youth" to make the money for them.

But I doubt the "youth" want to see "greedy privileged big-corporation capitalists" win this struggle.

If a boycott happens, and all that social-media goodwill becomes poison against Hasbro-WotC

I doubt Hasbro-WotC will prevail. At all. Perhaps never recover.


----------



## Cadence

p_johnston said:


> Yeah as a MTG fan ive been on the fence about full boycotting WOTC for years but they hadn't quite gotten me there. This'll probably change things which will suck because i love both D&D and MTG.




It might finally make me build all those EDH decks I haven't gotten to with the cards I already own, instead of jumping on the exciting new one.

(If they make a Sigarda, Host of Herons, Mayael, or Kaseto with good art I will have to get it... and I might cave on the LotR ones...)


----------



## mamba

Yaarel said:


> I doubt Hasbro-WotC will prevail. At all.



not so sure


Yaarel said:


> Perhaps never recover.



best possible outcome


----------



## GMforPowergamers

Yaarel said:


> I doubt Hasbro-WotC will prevail. At all. Perhaps never recover.



if Hasbro notices us boycotting it will be a small %... our best hope is to not be a rounding error.


----------



## mamba

GMforPowergamers said:


> if Hasbro notices us boycotting it will be a small %... our best hope is to not be a rounding error.



no idea, do not care, they do not deserve my money even if it makes no difference to them


----------



## AbdulAlhazred

S'mon said:


> Alexander Macris of Autarch has a very grim post on therpgsite WOTC, SRD, Gettin' Lawyerly
> 
> _I wish you were right, but unfortunately I believe you are wrong.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> By the misfortune of having studied law, I have a wide network of attorneys in my contacts. I already consulted with one of the top IP lawyers in the United States about this issue and the situation is grim. *The attorney I spoke to is personally familiar with Hasbro and he said that Hasbro's litigation war chest is absolutely huge and they are out for blood. He said to expect them to litigate to win back their IP rights with a courtroom battle lasting 3-4 years.* I asked him if I could fight back with a $100,000 GoFundMe and he literally laughed. He said it would cost $500,000 simply to get through pre-trial motions and $2-3M to see it through to completion. Hasbro will utterly bury any opponent in motions. The expense alone makes it impossible for anyone at all to fight this except the likes of Paizo. He stressed this over and over in the call: It doesn't matter how good my argument is because I will never get to make that argument. I'll be bankrupt before then.
> 
> Moreover, Wizards doesn't even need to litigate. It just needs to persuade Kickstarter and DriveThruRPG that the bread is buttered on their side. Then they can simply have my game, Pundit's game, anyone's game they don't like, shut off from the crowdfunding and distribution we need to be viable. They can do the same on YouTube, just as music companies and Nintendo do, on anyone they want to tread on. We already know how platforms behave in the face of corporate bullies. It will happen in our industry, too, if we're not careful.
> 
> I asked what my options were, given this dire situation, and he said "try not to let them notice you." Well, they've already noticed me. "Release anything you can before the new license drops." Well, what about my future product? "Never use the OGL and SRD again in the future and hope they don't care enough to sue you anyway."
> 
> The attorney I spoke to is a gamer, has impeccable credentials, and is a trusted friend of 20 years; he has no reason to lie to me or dissuade me. So, based on the advice of the best expert I know, I believe the situation is quite dire. I wish it were a case of crying wolf, but there is literally a wolf and it's here to feast.
> 
> I wish I had better news but that's the cold splash of water I got in my face yesterday._
> 
> If this is accurate, it implies WoTC-Hasbro really are set on the nuclear option, and that they would rather destroy the 3PP ecosystem created by the OGL than see it continue to use 'their IP'. I think this would destroy the RPG industry as we know it and set things back to something more like the 1990s. The reputational damage to WoTC would be even greater than what TSR suffered. I think the actual economic effect on WoTC would be almost as devastating as that suffered by their victims. The parrallel of Russia's invasion of Ukraine comes to mind.



OK, look, this was ALWAYS the case! Hasbro, big company with probably tons more lawyers than the entire RPG industry put together. US is a Lawyerarchy, has been for many decades, at least. Publishing a new OGL may be a discrete legal move that signals the initiation of a war on the Community, but the stockpile of weaponry was always there.

Something most people do not really appreciate about ALL Open Source type licenses, is they are all controlled by someone. It is not logically possible to have it any other way. There has to be a provision for revision, the real world doesn't stand still and agreements must evolve. Someone must be privileged to make those revisions, otherwise you don't really have a single stable license to agree on and anyone can morph it into anything. The best you can ever get is something like the GPL where the FSF is a trusted set of community representatives with no iron of its own in the fire. We can generally trust them not to produce the GPLv4 as some sort of monstrosity that betrays the Community's values. Unfortunately the OGL lacks any sort of similar stewardship. Many people have noted this and many of us have long been hesitant to use OGL for that reason.

I mean, again, OGL isn't actually the central issue here, Lawyerarchy is really the central issue. In the US WotC is backed with lots of money and whatever the heck they say, that is how it is. The guy with the lawyers MAKES THE LAW. I mean, this is a game forum, there's nothing more that should really be said here!


----------



## Bill Zebub

GMforPowergamers said:


> as a non lawyer (unless you count rules lawyer) I find it facinating that two people read legal documents and statutes and run into the same thing we do all day everyday on this very site... we have similar training/background, read the same text, and get two opposing answers.




Mathematics > Law


----------



## Warpiglet-7

Don’t be a slave to the cult of the new.  Vote with your wallets if this offends you.

Just talking is worthless.  And I would submit that a lot of people grabbing 3rd party’s stuff are not usually the casuals—-and are maybe represented by ENWorld better than other places.

Also keep talking about it on public fora like this one.  Word gets around.  

And if they don’t listen and bend don’t buy in.


----------



## AbdulAlhazred

pemerton said:


> I'm not as sure about the commercial implications for WotC. I'm not denying that there are some sales made by them that are driven/supported by 3PP materials, but I have doubts about how big this is as a proportion of the overall recent growth of D&D.
> 
> If Hasbro wants to "win back their IP rights" is this really directed at Paizo's present position? Or any other 3PP? Or at controlling further growth that they envisage flowing from the anticipated success of the movie? To me, it makes more sense as a future-oriented concern than vindictively trying to destroy the present ecosystem.



Well, IF this is true, then why would they even hint that their position is that everyone MUST accept the new NOGL and use it? I mean, if they're happy with the EXISTING 'ante-bellum' situation, they need not wage a war! If they simply want to stop people from 'minting an NFT', well then yes they may want a new license GOING FORWARD, but it would also in that case behoove them to state "yeah, we have no interest in all you guys that are doing this existing 3PP stuff over there, if you keep doing what you're doing now, we will assume that OGL 1.0a covers it, but if you try to use that to 'mint an NFT' then we'll sic our dogs on you!" 

Now, maybe their messaging is just crap, and this IS what they are trying to say, hard to know... If so its all a big stink about nuthin' and we can relax. We shall see, but the second they come after an existing publisher that isn't doing something new, then we know! The other problem being, even if they don't do that now, the mailed fist has been revealed, and it may be hard for them to put it back in the velvet glove very convincingly... Maybe still possible though as of today.


----------



## GMforPowergamers

mamba said:


> no idea, do not care, they do not deserve my money even if it makes no difference to them



as long as we are clear that is a great way to look at it


----------



## AbdulAlhazred

estar said:


> This is a case of bad generalship plain and simple. The executive at Wizards are fighting the last war and failed to consider how the battlefield works today. If they were good generals then they would be aware that by restricting people's use of the original content they created is a lines that when crossed will ignite a firestorm of criticism and a collapse of the value of their goodwill.



Yup! you have hit the nail on the head. Heck even in '08 when they released the GSL it was a bad move.


----------



## Yaarel

AbdulAlhazred said:


> Now, maybe their messaging is just crap, and this IS what they are trying to say, hard to know... If so its all a big stink about nuthin' and we can relax. We shall see, but the second they come after an existing publisher that isn't doing something new, then we know! The other problem being, even if they don't do that now, the mailed fist has been revealed, and it may be hard for them to put it back in the velvet glove very convincingly... Maybe still possible though as of today.



That word "unauthorized" is a smoking gun.

People who look into this, at first cant believe it, then realize something disastrous is in process.


----------



## mamba

GMforPowergamers said:


> as long as we are clear that is a great way to look at it



I was never under the impression that the majority would just up and leave, but hopefully enough do and rally around a new open and permissable center to make a difference.


----------



## FrogReaver

Yaarel said:


> Part of the current mainstreaming success of 5e is because of internet enthusiasm via Critical Role, YouTube, etcetera.
> 
> All of this freedom to discuss, enjoy, watch, and promote D&D is self-generated without Hasbro, and comes 100% from the freedom of the OGL 1.0a.
> 
> OGL 1.0a = D&D success



I wasn't initially convinced of this but more and more I am.  

Part of what happened in the 4e era was that companies that were supporting 3e stopped supporting 4e because of the lack of the OGL 1.0.  Instead, they quickly became direct competitors.  Many of those companies that become direct competitors wouldn't have done so had 4e remained under OGL 1.0.  They would have happily kept creating 4e supplemental material.

Thus, I find the argument compelling that the OGL has actually decreased competition towards D&D while simulataneously increasing D&D's desirability by incentivizing companies to focus more on D&D supplemental products than on full-fledged competing products. Consider the reasons someone may choose a windows machine over a unix one - especially in the earlier days.  There was just alot more software available for windows and it tended to work better because they had so many developers developing for their platform.  So while Microsoft didn't get Royalities on that software, it did make their OS more desirable.


----------



## Xyxox

Warpiglet-7 said:


> Don’t be a slave to the cult of the new.  Vote with your wallets if this offends you.
> 
> Just talking is worthless.  And I would submit that a lot of people grabbing 3rd party’s stuff are not usually the casuals—-and are maybe represented by ENWorld better than other places.
> 
> Also keep talking about it on public fora like this one.  Word gets around.
> 
> And if they don’t listen and bend don’t buy in.



Like I've said, it's D&Done for me. I'll never buy into this, nor will I purchase anything from WotC/Hasbro regardless of how this all turns out. I moved to Pathfinder 1E with the introduction of 4E and can move elsewhere now. I'll carefully consider where and how, because I don't know if I can trust the OGL 1.0a to remain viable after this even without WotC/Hasbro throwing down and declaring Lawfare.


----------



## Yaarel

FrogReaver said:


> I wasn't initially convinced of this but more and more I am.
> 
> Part of what happened in the 4e era was that companies that were supporting 3e stopped supporting 4e because of the lack of the OGL 1.0.  Instead, they quickly became direct competitors.  Many of those companies that become direct competitors wouldn't have done so had 4e remained under OGL 1.0.  They would have happily kept creating 4e supplemental material.
> 
> Thus, I find the argument compelling that the OGL has actually decreased competition towards D&D while simulataneously increasing D&D's desirability by incentivizing companies to focus more on D&D supplemental products than on full-fledged competing products. Consider the reasons someone may choose a windows machine over a unix one - especially in the earlier days.  There was just alot more software available for windows and it tended to work better because they had so many developers developing for their platform.  So while Microsoft didn't get Royalities on that software, it did make their OS more desirable.



Now, the same thing is going to happen again.

Indies want nothing to do with OGL 1.1. Now indies are even rethinking the need for the OGL 1.0a in the first place, and rewriting their products without it. Because nobody trusts Hasbro-WotC to honor the OGL 1.0a.

These indies will − again − become direct competitors against Hasbro-WotC.

And the creative community will follow the companies that offer legal terms that protect the creative community.

Hasbro-WotC is causing a tidal wave of direct competitors.

It is probably too late. Because now, every one has seen that Hasbro-WotC is acting in bad faith.

No business wants to deal with that.


----------



## FrogReaver

Is there an organization devoted to open RPG licenses?  Because if not someone should start one and create an actual open license that can be used by the community that is not dependent on WOTC.


----------



## Remathilis

GMforPowergamers said:


> so no GI joe no power rangers no transformers no playdough... like 1/3 the board games out there...



Sadly, it reminds me of the calls to boycott Disney/EA/Google/Amazon and others I'm probably forgetting. They're so big and ubiquitous that avoiding them is akin to quitting a given market.

Last year, Kellogg went on strike. Boycotts were called for, but trying to avoid all the various subsidiaries and such to honor the strike meant a lot of research into what brands were owned by them. Any similar boycott would be the same or more work. I'm not saying it's not doable, but the fact that you're going to have to convince collectors of dozens of unrelated brands to care is a Herculean task.


----------



## mamba

FrogReaver said:


> Is there an organization devoted to open RPG licenses?  Because if not someone should start one and create an actual open license that can be used by the community that is not dependent on WOTC.



Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good


----------



## FrogReaver

Yaarel said:


> Now, the same thing is going to happen again.
> 
> Indies want nothing to do with OGL 1.1. Now indies are even rethinking the need for the OGL 1.0a in the first place, and rewriting their products without it. Because nobody trusts Hasbro-WotC to honor the OGL 1.0a.
> 
> These indies will − again − become direct competitors against Hasbro-WotC.
> 
> And the creative community will follow the companies that offer legal terms that protect the creative community.
> 
> Hasbro-WotC is causing a tidal wave of direct competitors.
> 
> It is probably too late. Because now, every one has seen that Hasbro-WotC is acting in bad faith.
> 
> No business wants to deal with that.



Yep.  Used to OGL 1.0a brought peace of mind.  Now it brings nothing but doubts and risks.  If I was a 3pp I would increasingly limit my exposure to it asap.

In many ways this is worse than 4e because the GSL was indeed a new independent license but only envisioned for 4e material and WOTC wasn't potentially out to kill the OGL 1.0a as the current leaks seem to suggest they are now.


----------



## FrogReaver

mamba said:


> Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good



OGL 1.0a is copyrighted by Wizards.  No idea on CC.


----------



## GMforPowergamers

Remathilis said:


> Sadly, it reminds me of the calls to boycott Disney/EA/Google/Amazon and others I'm probably forgetting. They're so big and ubiquitous that avoiding them is akin to quitting a given market.
> 
> Last year, Kellogg went on strike. Boycotts were called for, but trying to avoid all the various subsidiaries and such to honor the strike meant a lot of research into what brands were owned by them. Any similar boycott would be the same or more work. I'm not saying it's not doable, but the fact that you're going to have to convince collectors of dozens of unrelated brands to care is a Herculean task.



the thing is on a personal level I am sure some of us can try to make a list and do it... but most of us can't keep up with such a boycott.


----------



## GMforPowergamers

mamba said:


> Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good



take the idea and change it to update it. Make a creative commons OGL for things... but make sure Irrevocable is in there. But you have to keep it up to date every few years


----------



## mamba

FrogReaver said:


> OGL 1.0a is copyrighted by Wizards.  No idea on CC.



yes, obviously you cannot just take it and change a few words, but if e.g. Paizo wanted to come up with their own open license now, I am sure it would not look all that different regardless.


----------



## FrogReaver

GMforPowergamers said:


> take the idea and change it to update it. Make a creative commons OGL for things... but make sure Irrevocable is in there. But you have to keep it up to date every few years



I'm not lawyer but I don't think it can say irrevocable if it says it can be terminated for not following license terms


----------



## Nylanfs

FrogReaver said:


> Is there an organization devoted to open RPG licenses?  Because if not someone should start one and create an actual open license that can be used by the community that is not dependent on WOTC.



That is the Open Gaming Foundation that Ryan started. But it never really went anywhere. Maybe it will now.


----------



## Yaarel

Nylanfs said:


> That is the Open Gaming Foundation that Ryan started. But it never really went anywhere. Maybe it will now.



Here is a link to the Open Gaming Foundation:



			OPEN GAMING FOUNDATION
		


Where Ryan Dancey founded it, I trust it.


----------



## Cadence

mamba said:


> Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good




Does Creative Commons have anything like the product identity/open game split the OGL did?   If someone wanted that, would they put a section at the end of online that was like an SRD excerpt that they would say was CC?


----------



## overgeeked

Cadence said:


> Does Creative Commons have anything like the product identity/open game split the OGL did?   If someone wanted that, would they put a section at the end of online that was like an SRD excerpt that they would say was CC?



You could always include a notice specifically indicating what’s released under the CC license. AFAIK it’s not all or nothing.


----------



## S'mon

FrogReaver said:


> I'm not lawyer but I don't think it can say irrevocable if it says it can be terminated for not following license terms




"Irrevocable other than for breach".


----------



## pemerton

rcade said:


> The archive of the mailing lists OGF-L and OGF-D20-L will have a lot of posts where he (and by extension WOTC) reassures RPG publishers that the license can be relied on forever.



My view is that, if arguing for an estoppel in the Australian context, these sorts of messages that are specific responses to specific queries, and/or that are individual-to-individual communications, would provide a firmer foundation than the generic FAQ.


----------



## sigfried

DavyGreenwind said:


> So, it really comes down to this. "You can use any prior version of this License" is true until it isn't. They can revoke that, just like they can revoke the rest of the license, Q&A notwithstanding. The Q&A indicates the status quo, certainly, but is not binding forever. I always thought that the section saying you can use prior versions was only a clarification. I think WotC's answer here is a little disingenuous. It may be a statement of their _current policy, _but I don't think it is an accurate representation of their own legal rights.



It sounds like you are arguing that anyone who writes a contract and enters into an agreement with it can modify that contract in any way at any time.  That a clause that specifies how the contract works can simply be removed at will as a default.

Perhaps that is not what you are saying, but that's how it comes across.

I find that to be highly dubious. Such a principle would make the whole notion of a contract meaningless. The core understanding of a contract is that it binds two parties in a legal agreement based on the terms of the contract that both mutually agreed to.

This is a contract that has been in force and unchallenged for 25 years and during that time a specific understanding of its meaning has been in place. That what is shared as OGC remains free for all when using the license. To try to revoke those rights unilaterally, including agreements between other parties sharing copyrighted material with each-other, is both a violation of the language of the contract, what that language is clearly trying to convey, and the way it has been used in practice for decades.

This is not a one-sided contract where WOTC gives and everyone else takes. Both parties agree to give their OGC material over to any licensed user. Its terms specify consideration from both/all parties of the contract.


----------



## pemerton

Yaarel said:


> All of this freedom to discuss, enjoy, watch, and promote D&D is self-generated without Hasbro, and comes 100% from the freedom of the OGL 1.0a.



I don't agree with this. D&D players enjoy a lot of freedom to discuss, enjoy, watch and promote D&D independently of the OGL 1.0a.

@estar's argument (if I've understood it correctly) that the OGL v 1.0a creates an ecosystem in which talented D&D designers can emerge and be recruited by WotC (whether as staff or freelancers) is more plausible to me, particularly because it focuses on the supply side (where cultivating talent is important) than the demand side. An analogy would be the recruitment of indie film talent to help make Marvel movies.


----------



## Clint_L

FrogReaver said:


> D&D Consider the reasons someone may choose a windows machine over a unix one - especially in the earlier days.  There was just alot more software available for windows and it tended to work better because they had so many developers developing for their platform.  So while Microsoft didn't get Royalities on that software, it did make their OS more desirable.



I think, from Hasbro's point of view, the issue is that no one is paying for the D&D OS.

They are in a situation where they had a tough year, and they are looking at how to turn things around. They go through their list of properties to see what they can focus on, and they've got this thing that has incredible brand recognition. But it's not making them very much money, especially compared to Magic, which is far more of a niche product but which has historically been a very strong earner that they strongly control.

So their financial people are looking at all the money that is being made in conjunction with D&D. They look at Kickstarters, they look at media (especially on the web, but you can bet they look hard at _Stranger Things_ and _Legend of Vox Machina_). They look at Paizo. They look at tie in after tie in and work out that they are actually earning very little of the money that D&D contributes to. And then they inevitably start reassessing what the OGL has done for them.

And what the OGL has done for _them_ is a lot less tangible. It has definitely been good for some small 3PP and companies like Paizo. It's been great for Matt Mercer. It has been fantastic for fans. But how, exactly, do you measure what it has brought to Hasbro/WotC? Nobody really knows how much it contributed to the success of 5e. So it's not like the Microsoft OS because Microsoft still got paid for every OS sold, whereas Hasbro doesn't currently receive a dime for a lot of products made under the OGL. What is happening now is that Hasbro is trying to make the OGL (or at least the updated OGL) _like_ the Microsoft OS.


----------



## Clint_L

Further: I think most of us look at the OGL situation and think that obviously it has been great for everyone, including Hasbro/WotC. Because it has definitely been great for _us_. That's because it has grown the economic pie, and so everyone's slice of that pie has gotten larger. But Hasbro might be looking at that pie and saying, "you know, we could do better with a _smaller_ pie that we own more of. Especially since we are about to launch into a whole bunch of huge media expansions where control of the pie going forward could turn out to be really, really valuable."


----------



## pemerton

AbdulAlhazred said:


> Now, maybe their messaging is just crap



It's hard to work out exactly what is going on, because most of the leaks about the messaging are coming through channels that are unclear about the legal concepts in play (eg the difference between "revoking the licence" in the sense of rescinding the offer: "revoking the licence" in the sense of trying to require parties to the new licence to give up all their existing rights under the old licence; and "revoking the licence" in the sense of undoing the existing set of interlocking agreements that have arisen out of the existing OGL).

Upthread I agree with this post:


bmcdaniel said:


> None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR  that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option  is what is happening, but it is possible that option (x) is occuring.



And I am still inclined to do so.

Which is to say, of the three options I have flagged in parentheses above, the first and second would be in play, but not the third.

Which would make this a rerun of the GSL, probably with a more permissive SRD based around copyrighted text more than trade dress (which I think is also implied by the press release calling it a revision to the OGL - this suggests a licence primarily focused on copyrighted text) _but_ with the demand for royalties. My personal guess would be that someone at WotC is looking at royalties coming in via DM's Guild and wanting to secure something similar from other licensed publications.

The fact that Paizo have said nothing significant makes me wonder whether (i) they have had discussions with WotC and are waiting for the next step, or (ii) they are consulting with their own legal team. To me, (i) seems slightly more likely given that we know their are 3PPs under NDAs.


----------



## Sidhanei

mamba said:


> Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good



The OGL 1.0a was in 2000, and the Creative Commons license became a thing in 2001. It predates it. The OGL 1.0a was the industry's Creative Common/open-source license. This is why it is not D&D-specific. The SRD was D&D specific and was included under it, but the OGL itself is system agnostic.


----------



## Xyxox

Yaarel said:


> Here is a link to the Open Gaming Foundation:
> 
> 
> 
> OPEN GAMING FOUNDATION
> 
> 
> 
> Where Ryan Dancey founded it, I trust it.



Well, it appears teh stance of the Open Gaming Foundation is that OGL 10.a CANNOT have permissions changed because it includes it as a listed open game license and this is one of the requirements:



> 2. The license must ensure that material distributed using the license cannot have those permissions restricted in the future.


----------



## S'mon

Clint_L said:


> It's been great for Matt Mercer.




I don't see how Critical Role the stream has anything to do with the OGL. They play 5e D&D, they don't play the SRD or even an OGL game.


----------



## mamba

Clint_L said:


> I think, from Hasbro's point of view, the issue is that no one is paying for the D&D OS.



yeah, clearly no one is, D&D just had its best year ever.

Not everything under the OGL is a different RPG, much is 5e content.


Clint_L said:


> They are in a situation where they had a tough year, and they are looking at how to turn things around.



they had that on the MtG side, and I am not seeing this helping them have better years ahead


----------



## pemerton

Yaarel said:


> Indies want nothing to do with OGL 1.1. Now indies are even rethinking the need for the OGL 1.0a in the first place, and rewriting their products without it. Because nobody trusts Hasbro-WotC to honor the OGL 1.0a.
> 
> These indies will − again − become direct competitors against Hasbro-WotC.



If a game - like PF2, or Delta Green - can be published in substantially the same form but without needing to enjoy the protection of a licence from WotC, I don't think that is a good example of the OGL operating to support WotC's interests in promoting D&D. That RPG was already in competition with D&D!


----------



## mamba

Clint_L said:


> Further: I think most of us look at the OGL situation and think that obviously it has been great for everyone, including Hasbro/WotC. Because it has definitely been great for _us_. That's because it has grown the economic pie, and so everyone's slice of that pie has gotten larger. But Hasbro might be looking at that pie and saying, "you know, we could do better with a _smaller_ pie that we own more of.



yeah, that is what they are thinking, we will find out whether they were right. Given that D&D had its best year ever, there was not really a reason to change things up, it's not like they were struggling and had to try to turn things around


----------



## mamba

Sidhanei said:


> The OGL 1.0a was in 2000, and the Creative Commons license became a thing in 2001. It predates it. The OGL 1.0a was the industry's Creative Common/open-source license. This is why it is not D&D-specific. The SRD was D&D specific and was included under it, but the OGL itself is system agnostic.



not sure what this has to do with anything. We are discussing having an new go-to RPG under a truly open license


----------



## mamba

pemerton said:


> If a game - like PF2, or Delta Green - can be published in substantially the same form but without needing to enjoy the protection of a licence from WotC, I don't think that is a good example of the OGL operating to support WotC's interests in promoting D&D. That RPG was already in competition with D&D!



there is a lot of material under the OGL that actually is *for* 5e instead of an alternative RPG


----------



## Clint_L

S'mon said:


> I don't see how Critical Role the stream has anything to do with the OGL. They play 5e D&D, they don't play the SRD or even an OGL game.



I'm thinking of the Critical Role shop, of _The Legend of Vox Machina_, of their new Tal'Dorei sourcebook (which has the OGL printed on the last page; I just checked). But more generally, I meant that the bean counters are probably looking at all the money being made in conjunction with D&D and trying to figure out how they can keep a tighter lid on things so more of it comes to them.


----------



## pemerton

Remathilis said:


> Sadly, it reminds me of the calls to boycott Disney/EA/Google/Amazon and others I'm probably forgetting. They're so big and ubiquitous that avoiding them is akin to quitting a given market.



I haven't purchase anything published by WotC in about 10 years - I ordered my last 4e D&D book from the Book Depository in 2012, and in 2013 had a brief subscription to D&D insider to download all the 4e Dungeon and Dragon content.

I don't recall having purchased anything published under the OGL in the intervening period. My RPG purchases have been from "competitors" of WotC.

I wouldn't know for sure if I've bought anything produced by Hasbro - they're a pretty ubiquitous toy producer - but I don't think it would be much. I don't think they publish many of the more "speciality" boardgames that I've purchased in that time.


----------



## pemerton

mamba said:


> there is a lot of material under the OGL that actually is *for* 5e instead of an alternative RPG



Sure. But I don't think those publishers are going to quite so easily move towards publishing without a licence from WotC. And if they can do so, then they will still not be competitors!


----------



## Starfox

DavyGreenwind said:


> In Europe and other parts of the world, yes. In the United States, a big nope.



Refugees welcome! You can host your websites and VTT platforms here - in the worst case, customers will need WPN to access as you likely can't direct sales towards the USA.


----------



## FrogReaver

Clint_L said:


> I think, from Hasbro's point of view, the issue is that no one is paying for the D&D OS.
> 
> They are in a situation where they had a tough year, and they are looking at how to turn things around. They go through their list of properties to see what they can focus on, and they've got this thing that has incredible brand recognition. But it's not making them very much money, especially compared to Magic, which is far more of a niche product but which has historically been a very strong earner that they strongly control.
> 
> So their financial people are looking at all the money that is being made in conjunction with D&D. They look at Kickstarters, they look at media (especially on the web, but you can bet they look hard at _Stranger Things_ and _Legend of Vox Machina_). They look at Paizo. They look at tie in after tie in and work out that they are actually earning very little of the money that D&D contributes to. And then they inevitably start reassessing what the OGL has done for them.
> 
> And what the OGL has done for _them_ is a lot less tangible. It has definitely been good for some small 3PP and companies like Paizo. It's been great for Matt Mercer. It has been fantastic for fans. But how, exactly, do you measure what it has brought to Hasbro/WotC? Nobody really knows how much it contributed to the success of 5e. So it's not like the Microsoft OS because Microsoft still got paid for every OS sold, whereas Hasbro doesn't currently receive a dime for a lot of products made under the OGL. What is happening now is that Hasbro is trying to make the OGL (or at least the updated OGL) _like_ the Microsoft OS.



The thing is (and I don't have a definitive source) but all the other D&D SRD reliant games combined amount to pennies on the dollar compared to D&D.  Asking all these other creators to pay Royalties isn't doing really anything for WOTC's bottom line.


----------



## mhd

"Hey, guys, I got this bangin' software straight from my Dutch source…"


----------



## mamba

pemerton said:


> Sure. But I don't think those publishers are going to quite so easily move towards publishing without a licence from WotC. And if they can do so, then they will still not be competitors!



I am expecting many of them to go away entirely, making the D&D ecosystem poorer for it


----------



## Starfox

Snarf Zagyg said:


> Instead, the big bucks go to the people who understand the black letter law and can successfully argue _why it doesn't apply to their client in this case_.



A lot of people have a very high opinion of common law. But this... I am pretty happy to live in a country with our own weird mix of germanic and roman law.


----------



## overgeeked

FrogReaver said:


> The thing is (and I don't have a definitive source) but all the other D&D SRD reliant games combined amount to pennies on the dollar compared to D&D.  Asking all these other creators to pay Royalties isn't doing really anything for WOTC's bottom line.



No, but it is going to drive them out of business. That appears to be the whole point.


----------



## Prime_Evil

Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties  survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?


----------



## pemerton

Prime_Evil said:


> Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties  survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?



If you agree to license your copyrighted work to me under the terms of the OGL, we have an agreement. WotC is not a party to our agreement.

But WotC have two roles in our agreement that I can see. First, they own the copyright in the text of the OGL itself. So if we reproduce that text in our agreement, and require others to do so when they enter into licences with us, we may be infringing WotC's copyright. I don't know if there is a fair use argument here, as I'm not a US copyright lawyer. There may also be an argument from reliance or estoppel or waiver or implied permission, based on (eg) the statements on the OGF website that you refer to.

The other role that WotC has is that, under section 9 of the OGL, we would have agreed with each other to allow our licensed material to be re-licensed under other versions of the OGL authorised by WotC.


----------



## mamba

Prime_Evil said:


> Do independent licenses issued by third parties  survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?



They are in the same boat as everyone else using 1.0a when it comes to being able to continue using it

They can however simply remove the OGL and switch to a very similar license (that might need to be created for that purpose, or pick a CC one). How easy it is to make that work when there is a web of parties involved is another matter.


----------



## UngainlyTitan

Prime_Evil said:


> Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties  survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?



No body knows unless the licence is defended in court. There is a case to be made that it can but if everybody runs for cover now then the licence become unreliable and dangerous to use unless you are willing to defend it in court.
The same really applies to any alternative "Open Licence"


----------



## kjdavies

DavyGreenwind said:


> Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.



The situation as I understand it today is closer to

I lost my dog.
I made an offer of $500 if my dog is found [and presumably returned to me]
You found my dog and returned it.
I gave you $500
[some time later] I decide I don't want my dog anymore, and demand you give me my money back.
If I'd taken down the sign before you returned the dog, depending on the timing it might be rude to not give you the money (like, I took the sign down yesterday and you showed up today) but it should be legitimate. At which point you could decide instead to keep my dog, since I won't give you money for a dog in your possession (also rude, but could be legitimate).


DavyGreenwind said:


> The open license will always be valid for any products _published while the open license was open. _WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any _new material _as of the date it was revoked.



This is how I would think it would work... but does not appear to be how WotC is trying to make it work.

I wonder how it works for other material previously licensed under v1.0a. That is, pretend 5e is moved entirely under v1.1 and v1.0a is not valid for 5e at all... what does it mean for open content licensed 20 years ago (3e in 2000, 3.5 in 2003, etc.)? Does this mean that third party publishers for Pathfinder (derived from 3e according to their Section 15 information) could no longer publish content for that game? Paizo was a licensee of WotC for that version, but I'm a licensee of Paizo as a third-party publisher of Pathfinder. Where's the breakdown?

(and yes, I realize this is getting into specifics and that you're not comfortable speaking in specifics, but I am having difficulty framing this as a generic question... but it does apply to other publishers and games as well, such as Green Ronin -- True20 and Mutants & Masterminds games, which are even farther from the original SRDs.)


----------



## Myrdin Potter

As a “suit” and specifically a public company finance professional, I can easily see where Hasbro is coming from. The tangible benefit to them is hard to measure. Royalty payments are sweet, sweet profits that boosts their investor relations (I am a Hasbro shareholder even). They pay a ton of fees to sell Star Wars toys and have a long tradition of protecting and using their trademarked properties. Senior leadership is from Microsoft which is all about locking others out and exploring their IP to the fullest.

One definite benefit they received is IP peace. If they kept a hardline, they could have easily faced a challenge to the game mechanics that are core to D&D. Instead, they bought peace and walled off their core rules.

I also chuckle at the lawyer conversations here. I ran a legal department and spent 10’s of millions of external legal fees annually and still had issues getting definitive answers to questions and often had to make the call myself in the end.

Litigation is quite different than contract writing.

I think that all of a smaller pie is more revenue for Hasbro and many players only buy the official books and 3PP has little influence.

Hasbro just needs to target a super small sub-segment and influence them to be hostile to selling non-OGL 1.1 materials. A couple of high profile 5e 3PP can be cut a sweetheart deal and fracture the unity of a defense.

My gut feel is that they will lose if this can get in front of a judge. I also think that fans can be counted on for $1M of funding but if this costs $3M or more then Hasbro can wear them down.


----------



## kjdavies

Deset Gled said:


> I find it very hard to believe that WotC would attempt to revoke earlier versions of the OGL.  That wouldn't just be burning bridges, it would be nuking their relationship with the community and third party creators.  It would come with a guarantee of bad press and extreme likelihood of litigation.  Not to mention how it would leave a huge opening for someone else to come along with a true open licence and challenge D&Ds market position.
> 
> I suppose it's a small possibility that they would try, but I find it very hard to believe they would go that far.  I guess stranger things have happened.



And yet, that appears to be what they're trying to do. And I believe your expectation of the consequences is accurate.

If they manage to revoke OGL v1.0a and invalidate anything currently licensed under that, they won't have a friend left on the planet, I can't imagine anyone would trust them or their licenses again.


----------



## pemerton

mamba said:


> They are in the same boat as everyone else using 1.0a when it comes to being able to continue using it



In my view this is not correct. See my post not far upthread.


----------



## Starfox

pemerton said:


> WotC can refuse to enter into a new licence (eg v 1.1) unless the would-be licensee waives whatever rights they have been granted under existing licences (like v 1.0/1.0a).



In which case the publisher can create a new company devoted to the 1.1 version, distinct from the company operating under the 1.0 version? Note the question mark, this is a proposition, not a statement.


----------



## FrogReaver

kjdavies said:


> And yet, that appears to be what they're trying to do. And I believe your expectation of the consequences is accurate.
> 
> If they manage to revoke OGL v1.0a and invalidate anything currently licensed under that, they won't have a friend left on the planet, I can't imagine anyone would trust them or their licenses again.



That's an interesting point.  Licenses are to some degree about trust.  If WOTC and by extension Hasboro pulls a fast one on a D&D license, the lack of trust may filter into the rest of their license agreements as well.


----------



## pemerton

Starfox said:


> In which case the publisher can create a new company devoted to the 1.1 version, distinct from the company operating under the 1.0 version? Note the question mark, this is a proposition, not a statement.



That would depend on how the requirement is worded. Eg does it refer to "You", "You and any related entities", etc?


----------



## kjdavies

DavyGreenwind said:


> Wow! I loved my Contracts class. And I think our disagreement highlights the difficulty of the question.
> 
> The reliance principle _might _be enough to overcome parol evidence issues, but there are other issues which, in my opinion, tip the balance away from irrevocability. 1. In licensing law, courts have expressed a strong inference against irrevocability unless irrevocability is explicitly stated. 2. The consideration given by licensees to WotC is exceptionally weak. They only have to agree to abide by the terms of the license, which basically reiterates what they are already not allowed to do under copyright and trademark law. In return, they've been given access to WotC material that has given some of them a living. (In in WotC's best interest to foster a healthy fan community, but that is beside the point legally speaking). Consideration makes a contract binding, no matter how minor, but as a factor in determining the strength of a reliance interest, it does not help.



If I'm not mistaken, trademark law would allow us to indicate compatibility, etc., something explicitly restricted in the OGL. That is, I can't say "compatible with D&D 3e" unless I have a separate license with WotC saying so. This is a consideration, yes?

Ditto, by using open content I have to allow others to use my open content.

OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right? They get something, we get something. This is, if I'm not mistaken, a big part of the reason for token payments such as a $1 retainer to a lawyer, to establish client-lawyer privilege... a contract doesn't need to be objectively even, just acceptable consideration on both sides.


DavyGreenwind said:


> And as I have mentioned above, this being an open license essentially makes it a unilateral contract, which has its own weird rules about offer, acceptance, and revocability.
> 
> Third, looking at WotC's language in the Q&A, they are not, strictly speaking, claiming the license is irrevocable. They could say they were merely describing the status of the current license (which does not revoke prior licenses), which does not preclude a future license that does revoke prior licenses.



How does Section 9 measure up then, that says "if we update the license, you can continue to use whichever one you want"?

It seems to mean that (for example) if v1.1 says "v1.0a is no longer valid", but I do not accept v1.1 (and according to the license I have accepted, I don't have to) then v1.1 does not apply to me.

If they took it to a different meta level and revoked 1.0a 'publicly' then it seems clear I'm out of luck, but if it's done via a license I don't accept, does it still apply?

Hmm. Even then I wonder, if they stopped using v1.0a themselves even for stuff they licensed that way 20 years ago, but the license is still valid for those works and lets us sublicense, what does it mean for those cases?

(as you might have guessed, I'm not worried about 5e, I'm worried about stuff I've been working with for longer than 5e has been a thing...)


----------



## FrogReaver

Starfox said:


> In which case the publisher can create a new company devoted to the 1.1 version, distinct from the company operating under the 1.0 version? Note the question mark, this is a proposition, not a statement.



That seems the proper way to bypass that issue.  Speaking of - couldn't the same by done with the income bits.  House each product under it's own company?


----------



## pemerton

FrogReaver said:


> That's an interesting point.  Licenses are to some degree about trust.  If WOTC and by extension Hasboro pulls a fast one on a D&D license, the lack of trust may filter into the rest of their license agreements as well.



Maybe, maybe not. I would think that in many cases the _trust_ around big commercial licences is modest, and that the players rely on a modus vivendi structured around tightly-drafted legal instruments rather than on sentiment.

The OGL licensing of the SRD seems to me to be in a bit of a category of its own.


----------



## Yaarel

pemerton said:


> I don't agree with this. D&D players enjoy a lot of freedom to discuss, enjoy, watch and promote D&D independently of the OGL 1.0a.



The popculture talks about Drow and Tiefling. These depend on the OGL 1.0a.

To put it into "bean counting" terms, the creative community is doing billions of dollars of free advertising for Hasbro-WotC.


----------



## overgeeked

FrogReaver said:


> That's an interesting point.  Licenses are to some degree about trust.  If WOTC and by extension Hasboro pulls a fast one on a D&D license, the lack of trust may filter into the rest of their license agreements as well.



It's already started. Monte Cook made a statement about how people were looking at his license agreement for Cypher and calling it into question as a result of this mess. I'm sure similar things are happening with others.


----------



## mamba

pemerton said:


> In my view this is not correct. See my post not far upthread.



Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("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."). Doesn't it no longer being an authorized version affect everyone?


----------



## mamba

Starfox said:


> In which case the publisher can create a new company devoted to the 1.1 version, distinct from the company operating under the 1.0 version? Note the question mark, this is a proposition, not a statement.



no one wants to use 1.1


----------



## FrogReaver

pemerton said:


> Maybe, maybe not. I would think that in many cases the _trust_ around big commercial licences is modest, and that the players rely on a modus vivendi structured around tightly-drafted legal instruments rather than on sentiment.
> 
> The OGL licensing of the SRD seems to me to be in a bit of a category of its own.



I feel like up until now everyone felt the OGL was a tightly drafted legal instrument.


----------



## FrogReaver

mamba said:


> Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("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."). Doesn't it no longer being an authorized version affect everyone?



I think-

1.  You could agree in 1.1 to not use 1.0.  Or agree that for you it would be treated as no longe authorized.
2.  However, if it's not worded that way then presumably it would be a statement about the OGL 1.0 as a whole.  Which is where the largest fear comes from.


----------



## Prime_Evil

mamba said:


> Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("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."). Doesn't it no longer being an authorized version affect everyone?



And what is the effect on the reliance of third parties upon this wording to enter into independent agreements with licensees covering IP not under WoTC control? Must they cease using the OGL version 1.0a? Or do these sublicenses survive termination of the parent license?


----------



## pemerton

kjdavies said:


> OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right?



I agree that consideration flows in both directions.

But a licence does not need consideration in both directions. I can invite a friend into my home, thus granting them a licence to be on my property, without them having to pay me. Of course a gratuitous licence is almost always going to be revocable at will - eg I can insist that my friend leave at any time.

The OGL is, in my view, not a gratuitous licence however.



kjdavies said:


> How does Section 9 measure up then, that says "if we update the license, you can continue to use whichever one you want"?
> 
> It seems to mean that (for example) if v1.1 says "v1.0a is no longer valid", but I do not accept v1.1 (and according to the license I have accepted, I don't have to) then v1.1 does not apply to me.



Section 9 authorises a licensee under the OGL v 1.0a to pick and choose among versions of the licence when exercising the rights the OGL grants them in respect of OGC.

It doesn't (in my view) give WotC any unilateral power to rescind/revoke a licence that it has granted.

That is why I think that the likeliest scenario is that v 1.1 contains a provision similar to that found in one of the GSL iterations - whereby parties to 1.1 agree to give up their rights under v 1.0a.

If you don't become a party to v 1.1 you will not have given up those rights. And as I said, I'm of the view that WotC lacks the legal power to unilaterally withdraw them. But I'm not an expert on US contract and licensing law, so my view is necessarily tentative and subject to revision (i) in the face of more expert opinion, and (ii) in the face of more information about what WotC is claiming.


----------



## kjdavies

Staffan said:


> This is the bit that confuses me (as a non-lawyer).
> 
> The core part of the OGL is this:
> 4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
> 
> "Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."
> 
> "Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"
> 
> So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.
> 
> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



I see two potential challenges here.

First, PF1 was built on the SRD from WotC. If that is no longer licensed (because OGL v1.0a that granted them license is gone), do they still have the right to license the formerly-licensed open content?

Second, if OGL v1.0a is revoked (WotC has the copyright on the license itself and can revoke our right to copy it, rendering it impossible for us to comply with its terms that we include it in derived works), does Paizo even have a license they can use to license their open content, if they still can do so because they no longer are licensed themselves?


----------



## Prime_Evil

pemerton said:


> If you don't become a party to v 1.1 you will not have given up those rights. And as I said, I'm of the view that WotC lacks the legal power to unilaterally withdraw them. But I'm not an expert on US contract and licensing law, so my view is necessarily tentative and subject to revision (i) in the face of more expert opinion, and (ii) in the face of more information about what WotC is claiming.



So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?


----------



## overgeeked

mamba said:


> no one wants to use 1.1



That's very likely false. There are some who would. A few defenders of 1.1 are already popping up here, on reddit, on twitter, etc. There are some 3PP who are so locked into the D&D ecosystem that they won't really have a choice but to move on to 1.1 no matter how bad the terms are. Because it's either that or go out of business. Or try to fight WotC's lawyers and lose.


----------



## pemerton

Yaarel said:


> The popculture talks about Drow and Tiefling. These depend on the OGL 1.0a.



How does it depend on the OGL 1.0a?

I have participated in countless threads talking about those things, and read more of them, on these very boards. And that did not depend on the OGL v 1.0a.


----------



## pemerton

Prime_Evil said:


> So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?



I think that's the better view, but as I said it is tentative. The posts on this thread by @bmcdaniel are in my view the best ones on this point. @Steel_Wind also has good posts, focusing more on the litigation aspect than the abstract contractual analysis.

For a brief summary, have a look at my post 345 upthread.


----------



## Xyxox

kjdavies said:


> If I'm not mistaken, trademark law would allow us to indicate compatibility, etc., something explicitly restricted in the OGL. That is, I can't say "compatible with D&D 3e" unless I have a separate license with WotC saying so. This is a consideration, yes?
> 
> Ditto, by using open content I have to allow others to use my open content.
> 
> OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right? They get something, we get something. This is, if I'm not mistaken, a big part of the reason for token payments such as a $1 retainer to a lawyer, to establish client-lawyer privilege... a contract doesn't need to be objectively even, just acceptable consideration on both sides.
> 
> How does Section 9 measure up then, that says "if we update the license, you can continue to use whichever one you want"?
> 
> It seems to mean that (for example) if v1.1 says "v1.0a is no longer valid", but I do not accept v1.1 (and according to the license I have accepted, I don't have to) then v1.1 does not apply to me.
> 
> If they took it to a different meta level and revoked 1.0a 'publicly' then it seems clear I'm out of luck, but if it's done via a license I don't accept, does it still apply?
> 
> Hmm. Even then I wonder, if they stopped using v1.0a themselves even for stuff they licensed that way 20 years ago, but the license is still valid for those works and lets us sublicense, what does it mean for those cases?
> 
> (as you might have guessed, I'm not worried about 5e, I'm worried about stuff I've been working with for longer than 5e has been a thing...)



What I am about to argue assumes that WotC/Hasbro has decided to declare Nuclear Lawfare. You are probably legally right. You would also be served a Cease and Desist letter when you publish your OGL 1.0a content, if anybody will let you publish it, that is (DriveThruRPG will likely not, KickStarter will probably not. Am not sure how you get it published but let's assume you do). Let's assume your content is WILDLY successful! Let's assume you decide to tell WotC/Hasbro to shove their C&D and move forward. Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.

WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,


----------



## pemerton

FrogReaver said:


> I feel like up until now everyone felt the OGL was a tightly drafted legal instrument.



I still think it's pretty tightly drafted. But I can't imagine the licensing agreements that support (eg) Star Wars action figures or Marvel Lego fit on a single sheet of paper!


----------



## Prime_Evil

pemerton said:


> I think that's the better view, but as I said it is tentative. The posts on this thread by @bmcdaniel are in my view the best ones on this point. @Steel_Wind also has good posts, focusing more on the litigation aspect than the abstract contractual analysis.
> 
> For a brief summary, have a look at my post 345 upthread.



We probably won't know for certain until we see the final draft of the new licence. There have been hints it was supposed to drop a few days ago, but that community feedback is leading WoTC to reconsider their position.


----------



## Prime_Evil

Xyxox said:


> What I am about to argue assumes that WotC/Hasbro has decided to declare Nuclear Lawfare. You are probably legally right. You would also be served a Cease and Desist letter when you publish your OGL 1.0a content, if anybody will let you publish it, that is (DriveThruRPG will likely not, KickStarter will probably not. Am not sure how you get it published but let's assume you do). Let's assume your content is WILDLY successful! Let's assume you decide to tell WotC/Hasbro to shove their C&D and move forward. Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.
> 
> WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,



Remember that WoTC have a major blockbuster film riding on the brand. This changes the equation substantially.


----------



## pemerton

FrogReaver said:


> I think-
> 
> 1.  You could agree in 1.1 to not use 1.0.  Or agree that for you it would be treated as no longe authorized.
> 2.  However, if it's not worded that way then presumably it would be a statement about the OGL 1.0 as a whole.  Which is where the largest fear comes from.



I don't 100% know what your (2) means. I think you're saying that WotC would declare, to all its current licensees under the OGL v 1.0/1.0a, that it now revokes the licence it has granted to them.

On its own, such a declaration doesn't seem to do very much. If someone kept publishing, WotC would then have to sue them for copyright infringement.

If 3PP's start publishing close-to-D&D RPGs without the OGL, WotC can also try and sue them for copyright infringement.

So to the extent that WotC is planning a litigation-oriented strategy, changes to the OGL just seem like a vehicle rather than the main game.


----------



## Xyxox

FrogReaver said:


> I feel like up until now everyone felt the OGL was a tightly drafted legal instrument.



It was. That is meaningless in today's overworked court system. It no longer matters which position is correct and which is not under the law if one side has much more funding than the other side. It's all about using legal instruments to force additional litigation cost on the opponent that they simply cannot afford, not what is legally correct and what is not. A Corporation worth billions facing a combined value of litigants that may be worth a few million can make sure there is not a single argument  as to fact heard in any court ever, and every one of those litigants go bankrupt or simply walk away from it all.


----------



## overgeeked

Xyxox said:


> What I am about to argue assumes that WotC/Hasbro has decided to declare Nuclear Lawfare. You are probably legally right. You would also be served a Cease and Desist letter when you publish your OGL 1.0a content, if anybody will let you publish it, that is (DriveThruRPG will likely not, KickStarter will probably not. Am not sure how you get it published but let's assume you do). Let's assume your content is WILDLY successful! Let's assume you decide to tell WotC/Hasbro to shove their C&D and move forward. Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.
> 
> WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,



Exactly. It doesn't matter how right you are or how just your cause. Your access to justice in the USA is _only_ determined by the depth of your bank account. And if not yours, then someone else's on your behalf. Either deep pockets show up to save the tiny RPG industry or the OGL is already de facto gone.


----------



## Xyxox

Prime_Evil said:


> Remember that WoTC have a major blockbuster film riding on the brand. This changes the equation substantially.



I would say we are likely six months away from the release of OLG 1.1 and the leak was a purposeful instrument to sew fear, uncertainty, and doubt before the document is ever released in full if, in fact, WotC/Hasbro has decided to engage in Nuclear Lawfare. The movie will be released.

Honor Amongst Thieves is to be released March 31, 2023, long before the ACTUAL OGL 1.1 will see the light of day, if they are declaring Nuclear Lawfare.


----------



## S'mon

S'mon said:


> Looking for some case to give your position any support, I found one on revocation of Perpetual software licence - _BMS Computer Solutions v AB Agri _- comment at BMS v AB Agri




I got around to downloading it off Westlaw - from the Held section: 

_"Perpetual" had different shades of meaning, including *"incapable of being brought to an end"* and *"of indefinite duration, but subject to any contractual provisions governing termination"*. The latter interpretation of "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L terminated the support agreement, it also terminated the licence._

I would say this pretty strongly supports the position that _Perpetual_ in the OGL 1.0 would be interpreted as meaning "capable of being brought to an end only through *the contractual provisions governing termination*" - which are specified in the licence.


----------



## overgeeked

S'mon said:


> I got around to downloading it off Westlaw - from the Held section:
> 
> _"Perpetual" had different shades of meaning, including *"incapable of being brought to an end"* and *"of indefinite duration, but subject to any contractual provisions governing termination"*. The latter interpretation of "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L terminated the support agreement, it also terminated the licence._
> 
> I would say this pretty strongly supports the position that _Perpetual_ in the OGL 1.0 would be interpreted as meaning "capable of being brought to an end only through *the contractual provisions governing termination*" - which are specified in the licence.



Here's to hoping. Now who's going to step up and fight WotC in court to get a judge to say that?


----------



## S'mon

kjdavies said:


> OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right?




A licence can be a 'bare promise' that is not a contract. But as you say the OGL is a contract supported by consideration, not a bare promise.


----------



## mamba

overgeeked said:


> That's very likely false. There are some who would. A few defenders of 1.1 are already popping up here, on reddit, on twitter, etc.



defenders of WotC who are not actually 3PPs ? Yeah, I can see some trolls coming out of the woods


overgeeked said:


> There are some 3PP who are so locked into the D&D ecosystem that they won't really have a choice but to move on to 1.1 no matter how bad the terms are.



does not sound like they want to, which is what I wrote


----------



## Xyxox

S'mon said:


> I got around to downloading it off Westlaw - from the Held section:
> 
> _"Perpetual" had different shades of meaning, including *"incapable of being brought to an end"* and *"of indefinite duration, but subject to any contractual provisions governing termination"*. The latter interpretation of "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L terminated the support agreement, it also terminated the licence._
> 
> I would say this pretty strongly supports the position that _Perpetual_ in the OGL 1.0 would be interpreted as meaning "capable of being brought to an end only through *the contractual provisions governing termination*" - which are specified in the licence.




I would say that WotC/Hasbro would stand less than a 10% chance of winning if the right IP and contract attorneys were to actually argue the case before a judge in a court of law. WotC/Hasbro would never want a jury trial because their chance would likely drop to less than 1%.

The problem is, how do you fund such litigation? You would need at least as much money as Critical Role raised for the Vox Machina cartoon series.


----------



## overgeeked

mamba said:


> defenders of WotC who are not actually 3PPs ? Yeah, I can see some trolls coming out of the woods
> 
> does not sound like they want to, which is what I wrote



The difference between "want to" and "will" is academic.


----------



## mamba

Xyxox said:


> I would say we are likely six months away from the release of OLG 1.1



it was supposed to come out on 1/4 with 3PPS having to decide by 1/13 whether to accept the terms


----------



## mamba

overgeeked said:


> The difference between "want to" and "will" is academic.



to the outcome yes, but that is about it

There is a lot of difference between me giving you $100 as a gift or at gunpoint


----------



## S'mon

Xyxox said:


> Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.
> 
> WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,




So how did Chapter House fight Games Workshop? That seems a much more complicated case than this one. I don't understand where this $500,000 Discovery cost is coming from? For a sole trader? I can certainly appreciate it being very expensive to fight one of these big corporations, but the numbers being bandied around seem excessive to me, compared to my (fairly meagre) knowledge of other cases.


----------



## kjdavies

Xyxox said:


> I agree with you. They likely cannot. By using the verbiage that OGL 1.0a is unauthorized, it would specifically apply to anything released under the OGL 1.1 license based upon everything I've seen, meaning that nobody can release anything covered by OGL 1.1 under OGL 1.0a because section 9 of that license cannot be applied as that license is not authorized for "open" content released under OGL 1.1. I believe this is a CYA for moving forward so that new content must abide by the terms of OGL 1.1, similar to how under the GSL you gave up the rights to release the content under the OGL.
> 
> Furthermore, I do not believe the WotC C-level leadership has any understanding how pulling such a move with D&D 4E was devastating to desired sales and growth of that product and more than anything else, hindered the success of that product. Had it continued under the same model, you would have never had a Pathfinder and it would have been far more successful. Overall, it was not a bad product, but the licensing held it back from the heights and growth reached by 3.0/3.5, This bears out after releasing 5E under OGL 1.0a as demonstrated by the growth of that product.



One of the simplest ways to resolve this (for WotC) is to do as 4e did: create a new license for 5.5 and not release the new stuff under OGL anything.

The GSL didn't need to 'unauthorize' OGL v1.0a because it was not relevant, and they left it alone for not-4e (i.e. 3e and 3.5) open content. No problem.

WotC wants to have their cake and eat it too: to be able to say 'OGL v1.1' is an open license despite not being consistent with open licensing. If they can take out OGL v1.0a for previously-licensed material I'm sure they'd be delighted, but really it seems they want to be able to claim not-open stuff actually is open.


----------



## overgeeked

mamba said:


> to the outcome yes, but that is about it



That's all that really matters.


mamba said:


> There is a lot of difference between me giving you $100 as a gift or at gunpoint



Not really. Wouldn't be the first time someone's put a gun in my face. Likely won't be the last. Either way, I'm spending it on game stuff and booze.


----------



## S'mon

overgeeked said:


> Here's to hoping. Now who's going to step up and fight WotC in court to get a judge to say that?




Maybe Stuart Marshall of OSRIC can give his old Solicitors' firm a call.


----------



## pemerton

Prime_Evil said:


> And what is the effect on the reliance of third parties upon this wording to enter into independent agreements with licensees covering IP not under WoTC control? Must they cease using the OGL version 1.0a? Or do these sublicenses survive termination of the parent license?



What you're describing don't sound to me like sub-licences.

But anyway, the use of the OGL by parties to licence IP among one another that is independent of WotC's IP claims seems to me to be unaffected by any decision WotC takes, _except for_ the points I made in post 364 in reply to you.



kjdavies said:


> First, PF1 was built on the SRD from WotC. If that is no longer licensed (because OGL v1.0a that granted them license is gone), do they still have the right to license the formerly-licensed open content?



You wording is a bit confusing. The issue is not whether "OGL v 1.0a which granted the licence is gone". Its whether or not Paizo continues to enjoy a licence in virtue of its entering into a licensing agreement with WtoC. And this has been discussed upthread. @bmcdaniel said that the better view is that WotC can't unilaterally end its agreement with Paizo, but that if it now revokes the offer to enter into new licences, it's unclear how that would effect Paizo's ability to sub-license into the future.

One view, which I think is quite plausible as a matter of contractual construction, is that insofar as Paizo retains its rights under the agreement, one of the rights that it retains is to continue to license OGC to other parties. But given that an expert has said this matter is unclear, the view that I think is plausible can't be regarded as anything close to certain!



kjdavies said:


> Second, if OGL v1.0a is revoked (WotC has the copyright on the license itself and can revoke our right to copy it, rendering it impossible for us to comply with its terms that we include it in derived works), does Paizo even have a license they can use to license their open content, if they still can do so because they no longer are licensed themselves?



Paizo's right to reproduce the text of the OGL is conveyed to them by the terms of their licensing agreement with WotC (which are the terms set out in the text of the OGL). So if it retains its rights under the agreement, it retains its right to reproduce the OGL text as best I can see.

Whether WotC really has the power to render it impossible for others to copy the text of the OGL I don't know - see my post 364 upthread.



Prime_Evil said:


> So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?



Perhaps. I think this is a plausible view. I suspect that it is the best view. But as I've said, in this post and my earlier reply to you, I don't think it is certain.

Particularly because different categories of rights enjoyed under v 1.0a might be affected differently by decisions made by WotC - eg whether one can continue to publish existing licensed OGC involves a different right conferred by WotC under the agreement (namely, the right to reproduce their copyrighted work), compared to whether one can create new sub-licences for the use of WotC's work (which is about a power of agency or similar conferred by the OGL v 1.0/1.0a on existing licensees). A decision by WotC to retract its standing offer to licence the 5e SRD under the OGL v  1.0a could effect these two rights held by existing licensees differently.


----------



## Xyxox

mamba said:


> it was supposed to come out on 1/4 with 3PPS having to decide by 1/13 whether to accept the terms



If the leak was planned, then that gives WotC/Hasbro plausible deniability until they actually release it. Again, that ssumes WotC/Hasbro plan to go the Nuclear Lawfare route. The likelihood of that increases the longer WotC/Hasbro goes without commenting on the leak, IMO.


----------



## Xyxox

S'mon said:


> So how did Chapter House fight Games Workshop? That seems a much more complicated case than this one. I don't understand where this $500,000 Discovery cost is coming from? For a sole trader? I can certainly appreciate it being very expensive to fight one of these big corporations, but the numbers being bandied around seem excessive to me, compared to my (fairly meagre) knowledge of other cases.



Chapter House fought all the way to the end. then they went bankrupt and are now no more. They did not enjoy a single benefit from their win. They went down. Games Workshop just could not fight the Nuclear Lawfare expensive enough to end them before it went to arguments. They also fought in European courts, not US courts. If the case was fought in US courts, they would never have made it to the motions phase.


----------



## S'mon

Xyxox said:


> I would say that WotC/Hasbro would stand less than a 10% chance of winning if the right IP and contract attorneys were to actually argue the case before a judge in a court of law. WotC/Hasbro would never want a jury trial because their chance would likely drop to less than 1%.
> 
> The problem is, how do you fund such litigation? You would need at least as much money as Critical Role raised for the Vox Machina cartoon series.



In England: the law firm agrees no win no fee; knowing that the court will order the loser to pay the winner's costs. They know they have an over 90% chance of getting their fees paid by a nice fat US corporation.

The actual legal fees here in England would I think be most likely in the high tens of thousands of pounds for this kind of case, maybe more, but in any case the defendant shouldn't have any problem getting a firm to take it on no-win no-fee. This actually seems an even stronger case than Marshall's position that OSRIC was OGL compliant, which 2005/6 WoTC backed off on disputing.


----------



## S'mon

Xyxox said:


> Chapter House fought all the way to the end. then they went bankrupt and are now no more. They did not enjoy a single benefit from their win. They went down. Games Workshop just could not fight the Nuclear Lawfare expensive enough to end them before it went to arguments. They also fought in European courts, not US courts. If the case was fought in US courts, they would never have made it to the motions phase.



No, they fought in US courts too. I saw US court judgements.


----------



## mamba

Prime_Evil said:


> And what is the effect on the reliance of third parties upon this wording to enter into independent agreements with licensees covering IP not under WoTC control? Must they cease using the OGL version 1.0a? Or do these sublicenses survive termination of the parent license?



as I said IANAL. From my understanding the following is true

1) everything already under 1.0a can stay under 1.0a, that is the perpetual part of the license
2) nothing new can be released under the license, as it is revoked / no longer authorized


----------



## mamba

overgeeked said:


> That's all that really matters.



not to me


----------



## overgeeked

Nvm.


----------



## Staffan

mamba said:


> Why not use Creative Commons ? Heck, I'd say the OGL was a good start too, fix it up a little and you are good



One of the clever things about the OGL was the distinction of Open Game Content, which other people could use under the terms of the license, and Product Identity, which they could not. That's what allows Paizo to claim Golarion and related things as PI while still sharing the game mechanics as OGC. I do not know if CC allows for a similar distinction, nor what hoops you must jump through to make it happen if it does.


----------



## pemerton

mamba said:


> Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("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."). Doesn't it no longer being an authorized version affect everyone?



Only if you interpret section 9 as conferring on WotC a unilateral power to revoke their licensing agreements. Which I think is an implausible construction, given that it appears in the context of a provision dealing with updates, not with revocation/termination.


----------



## kenada

Staffan said:


> One of the clever things about the OGL was the distinction of Open Game Content, which other people could use under the terms of the license, and Product Identity, which they could not. That's what allows Paizo to claim Golarion and related things as PI while still sharing the game mechanics as OGC. I do not know if CC allows for a similar distinction, nor what hoops you must jump through to make it happen if it does.



You’d probably want to create a separate SRD of just the stuff you want to release under a CC license. That’s what Blades in the Dark does with its SRD, which is released under CC-BY-3.0. None of the setting information (including crews and playbooks) is included, but the core of the system is there.


----------



## pemerton

kjdavies said:


> One of the simplest ways to resolve this (for WotC) is to do as 4e did: create a new license for 5.5 and not release the new stuff under OGL anything.



As best I can tell that is what they are doing. The leaks seem to indicate that the OGL v 1.1 will not refer to OGC but rather to licensed content. Thus it is probably not a version of the OGL v 1.0/1.0a. It's a new set of licensing terms that happen to be labelled the same way.


----------



## mamba

pemerton said:


> Only if you interpret section 9 as conferring on WotC a unilateral power to revoke their licensing agreements. Which I think is an implausible construction, given that it appears in the context of a provision dealing with updates, not with revocation/termination.



ok, but that seems to be what WotC is aiming for in order to revoke the license. I am not agreeing with them there, but that does not mean it is currently safe to ignore WotC's stance


----------



## mamba

pemerton said:


> As best I can tell that is what they are doing. The leaks seem to indicate that the OGL v 1.1 will not refer to OGC but rather to licensed content. Thus it is probably not a version of the OGL v 1.0/1.0a. It's a new set of licensing terms that happen to be labelled the same way.



I would agree if WotC were not also trying to revoke 1.0 in the process


----------



## pemerton

mamba said:


> as I said IANAL. From my understanding the following is true
> 
> 1) everything already under 1.0a can stay under 1.0a, that is the perpetual part of the license
> 2) nothing new can be released under the license, as it is revoked / no longer authorized



There is also the possibility that existing licensees, who currently enjoy rights under the OGL v 1.0a to distribute OGC provided they do so consistently with the licence terms and requiring sub-licensees to agree to the same terms, would retain those rights even were WotC to decline to enter into new licences on the terms of the OGL v 1.0/1.0a.


----------



## mamba

pemerton said:


> There is also the possibility that existing licensees, who currently enjoy rights under the OGL v 1.0a to distribute OGC provided they do so consistently with the licence terms and requiring sub-licensees to agree to the same terms, would retain those rights even were WotC to decline to enter into new licences on the terms of the OGL v 1.0/1.0a.



I am not dismissing the possibility, I just think you will need to fight WotC over this


----------



## Prime_Evil

pemerton said:


> Only if you interpret section 9 as conferring on WotC a unilateral power to revoke their licensing agreements. Which I think is an implausible construction, given that it appears in the context of a provision dealing with updates, not with revocation/termination.




If that is true and the OGL is a contract with consideration rather than a mere promise, does it not logically follow that the only mechanism by which WoTC can revoke the license is by invoking the termination provisions in Section 13?


----------



## pemerton

mamba said:


> ok, but that seems to be what WotC is aiming for in order to revoke the license. I am not agreeing with them there, but that does not mean it is currently safe to ignore WotC's stance



I reiterate my post not far upthread:



pemerton said:


> I don't 100% know what your (2) means. I think you're saying that WotC would declare, to all its current licensees under the OGL v 1.0/1.0a, that it now revokes the licence it has granted to them.
> 
> On its own, such a declaration doesn't seem to do very much. If someone kept publishing, WotC would then have to sue them for copyright infringement.
> 
> If 3PP's start publishing close-to-D&D RPGs without the OGL, WotC can also try and sue them for copyright infringement.
> 
> So to the extent that WotC is planning a litigation-oriented strategy, changes to the OGL just seem like a vehicle rather than the main game.






mamba said:


> I would agree if WotC were not also trying to revoke 1.0 in the process



See just above: if the concern is with legal entitlements, then the better view, I think, is that they can't. If the concern is with "lawfare" then any purported revocation of the OGL is just a vehicle. Publishing without a licence from WotC won't make anyone any safer from lawfare, as best I can tell.



mamba said:


> I am not dismissing the possibility, I just think you will need to fight WotC over this



Only if they strike the first blow.

I guess if WotC make a declaration purporting to unilaterally terminate all existing licence agreements someone could go to court seeking a declaratory judgement that WotC's declaration is ineffective, but why would someone else want to strike first?

I think @S'mon's OSRIC-inspired suggestion makes more sense - wait for WotC to send its correspondence, and then respond asserting one's rights and see if WotC really want to proceed, or rather back off.


----------



## pemerton

Prime_Evil said:


> If that is true and the OGL is a contract with consideration rather than a mere promise, does it not logically follow that the only mechanism by which WoTC can revoke the license is by invoking the termination provisions in Section 13?



No. It may follow, but it may not: it's a question of interpretation rather than logic.

Here's a re-post from another thread:


pemerton said:


> Here is the text of section 13 of the OGL v 1.0a:
> 
> Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.​
> This is the only provision in the OGL that deals expressly with the issue of termination. But it does not say that it is the sole basis for termination/revocation. The letter sent on behalf of Sad Fishe says that
> 
> Section 13 sets forth the sole condition of termination of the license . . . Outside of what is given, Wizards has no authority to terminate the license, both with respect to prior published content and future published content under the license.​
> _That_ claim rests on the premise that the specification of one mode of termination, and the failure to specify any others. confines the power of termination to that which has been specified. This is what I mean by identifying an implication based on construction/interpretation of the instrument as a whole.
> 
> The Sad Fishe claim also leans heavily on the statement about survival of sublicenses. (At least, that seems to me to be the basis for the claim about future published content.)
> 
> As I said, I don't think these claims are hopeless, but nor do I think they are certain. bmcdaniel, who clearly is more of an expert than me, says the status of sub-licensees following WotC's revocation of its standing offer is not clear. I'm not going to contradict that!


----------



## mamba

pemerton said:


> If the concern is with "lawfare" then any purported revocation of the OGL is just a vehicle. Publishing without a licence from WotC won't make anyone any safer from lawfare, as best I can tell.



No idea really. My theory was that if I have a separate RPG that just used the OGL 'for convenience' then I would be safer removing it as then WotC has nothing to sue over (which was the case I replied to). If however I am relying on OGC for my product then yes, you are probably better off keeping it.


----------



## kjdavies

FrogReaver said:


> I'm not lawyer but I don't think it can say irrevocable if it says it can be terminated for not following license terms



I'm pretty sure it can. 'Irrevocable' just means you can't back out, that the contracting parties are committed to the contract until it is terminated. Possible termination reasons include

a specific period (irrevocable three-month contract; three months from now it ends, but not before then -- unless another termination reason happens);
a specific event (contracted until certain conditions are met);
completion (I contracted you to paint my house; when you finish painting my house you get paid and go home, the contract is complete and ended);
breach (you didn't paint my house by the deadline, you (might) have to make restitution so I can hire another painter and the contract ends));
This would be the one that causes termination for not following license terms

impossibility (I contract you to paint my house and my house burns down; might not be considered a breach if it fits under 'act of war' or 'act of god', or maybe it is, situation depends).


----------



## Jack Daniel

kjdavies said:


> One of the simplest ways to resolve this (for WotC) is to do as 4e did: create a new license for 5.5 and not release the new stuff under OGL anything.
> 
> The GSL didn't need to 'unauthorize' OGL v1.0a because it was not relevant, and they left it alone for not-4e (i.e. 3e and 3.5) open content. No problem.




The big problems with that are 5.0–5.5 compatibility and the fact that _Pathfinder_ exists now. Nothing like _Pathfinder_ existed when the GSL scheme was dreamed up.

I'm convinced that this whole mess has come about because WotC is desperate to prevent the emergence of an OGL-protected 5.0-compatible fork of D&D à la _Pathfinder_ that could potentially do to OneD&D what they believe _Pathfinder_ did to 4e. And, to a lesser extent, to prevent 3PPs from using the OGL v1.0a and the 5.1 SRD to produce content compatible with OneD&D.

The _only_ way to prevent these things is to nuke the OGL, and if that means going scorched earth on the 3PP ecosystem and wiping out Paizo and the rest of the competition as collateral damage, so much the better for them, they still get everything they want and more.


----------



## S'mon

pemerton said:


> See just above: if the concern is with legal entitlements, then the better view, I think, is that they can't. If the concern is with "lawfare" then any purported revocation of the OGL is just a vehicle. *Publishing without a licence from WotC won't make anyone any safer from lawfare, as best I can tell.*
> 
> Only if they strike the first blow.
> 
> I guess if WotC make a declaration purporting to unilaterally terminate all existing licence agreements someone could go to court seeking a declaratory judgement that WotC's declaration is ineffective, but why would someone else want to strike first?
> 
> I think @S'mon's OSRIC-inspired suggestion makes more sense - wait for WotC to send its correspondence, and then respond asserting one's rights and see if WotC really want to proceed, or rather back off.




Yes, I agree strongly on both points. I think the point I bolded above is in danger of being overlooked by the non-lawyers here; some seem to think that the way to stay safe is to stampede away from the OGL. Heck, maybe that was WoTC's evil plan.  The reality is that the OGL remains a powerful shield, and AFAICT you are much safer with it, rather than throwing it away. 

Disclaiming all liability for advice (I am not your lawyer, I'm not even a qualified practioner): the best thing to do IMO, certainly in the UK, is to sit tight with the OGL 1.0, and be ready to defend if necessary, if WoTC do come after you. Also be ready to reach out to the rest of the 3PP community for support. You guys are stronger together.


----------



## Staffan

kenada said:


> You’d probably want to create a separate SRD of just the stuff you want to release under a CC license. That’s what Blades in the Dark does with its SRD, which is released under CC-BY-3.0. None of the setting information (including crews and playbooks) is included, but the core of the system is there.



This would seem to work for one step downstream, but I don't see how it can work for multiple "generations" of content – at least not with a CC-BY-SA license (which I think would be the closest to the OGL).

With the OGL, Paizo could release Pathfinder. Then Dreamscarred Press could make Ultimate Psionics, based on Pathfinder and the psionics rules in the SRD. Another party could then make an adventure that included the psionics stuff. I don't see how that's possible when the CC:ed version is separated into a separate work.


----------



## mamba

Jack Daniel said:


> I'm convinced that this whole mess has come about because WotC is desperate to prevent the emergence of an OGL-protected 5.0-compatible fork of D&D à la _Pathfinder_ that could potentially do to OneD&D what they believe _Pathfinder_ did to 4e.



given how close 5e and 1DD are supposed to be, there would not be a rift like going from 3e to 4e. If anything, this act is creating such a rift


----------



## pemerton

mamba said:


> No idea really. My theory was that if I have a separate RPG that just used the OGL 'for convenience' then I would be safer removing it as then WotC has nothing to sue over (which was the case I replied to).



I don't see how including the OGL v 1.0/1.0a, whether or not that is "for convenience", can make you _more_ vulnerable to being sued, except in the following way: if you are publishing content that in itself would not infringe any of WotC's IP rights, but that is something the OGL requires you to not publish because you agree that it is WotC's Product Identity.

But other than that, all including the OGL v 1.0/1.0a can do - as best I can see - is to strengthen your claim to enjoy permission to publish your stuff without being liable to WotC.

EDITED to add: I saw @S'mons post just upthread. While we're not on the same page about the commercial aspects of this, we seem to be very much on the same page about the legal aspects!


----------



## kjdavies

pemerton said:


> I don't agree with this. D&D players enjoy a lot of freedom to discuss, enjoy, watch and promote D&D independently of the OGL 1.0a.
> 
> @estar's argument (if I've understood it correctly) that the OGL v 1.0a creates an ecosystem in which talented D&D designers can emerge and be recruited by WotC (whether as staff or freelancers) is more plausible to me, particularly because it focuses on the supply side (where cultivating talent is important) than the demand side. An analogy would be the recruitment of indie film talent to help make Marvel movies.



I understand part of the hoped-for outcome of the OGL was that WotC could focus on profitable evergreen products (core rulebooks, etc.) and leave much-less-profitable products such as modules and other supplements to third party publishers. I think Ryan (primary architect behind the OGL) didn't expect it to work out that way, that he expected it to play out much as he did, creating a richer TTRPG ecosystem than existed before... that played well with (and to some degree depended on) the core that WotC published. That is, WotC and the third party publishers would both gain quite a bit from it.


----------



## kjdavies

Xyxox said:


> Well, it appears teh stance of the Open Gaming Foundation is that OGL 10.a CANNOT have permissions changed because it includes it as a listed open game license and this is one of the requirements:



Ooh, I'd overlooked that. I'm not sure it would hold up, but well caught.


----------



## pemerton

Staffan said:


> This would seem to work for one step downstream, but I don't see how it can work for multiple "generations" of content – at least not with a CC-BY-SA license (which I think would be the closest to the OGL).
> 
> With the OGL, Paizo could release Pathfinder. Then Dreamscarred Press could make Ultimate Psionics, based on Pathfinder and the psionics rules in the SRD. Another party could then make an adventure that included the psionics stuff. I don't see how that's possible when the CC:ed version is separated into a separate work.



Just to follow up on this - it would require everyone to release two versions, wouldn't it? The "bare bones" version which is licensed under the viral scheme, and the full version that includes PI. The licences for the bare-bones version would then need to include one-way doors into full versions ie you can include bare bones stuff in your full version, but your full version is not itself subject to a viral licence, which operates only over your "bare bones" version.


----------



## mhd

kjdavies said:


> I understand part of the hoped-for outcome of the OGL was that WotC could focus on profitable evergreen products (core rulebooks, etc.) and leave much-less-profitable products such as modules and other supplements to third party publishers.



I wonder whether it would have happened at all without the wounds of past conflicts in third party D&D publishing. Not having to be afraid of the TSR-du-jour was a big deal.

And now we're back to square one.


----------



## Jack Daniel

mamba said:


> given how close 5e and 1DD are supposed to be, there would not be a rift like going from 3e to 4e. If anything, this act is creating such a rift




Yes, the irony has already been noticed.


----------



## kjdavies

pemerton said:


> If you agree to license your copyrighted work to me under the terms of the OGL, we have an agreement. WotC is not a party to our agreement.
> 
> But WotC have two roles in our agreement that I can see. First, they own the copyright in the text of the OGL itself. So if we reproduce that text in our agreement, and require others to do so when they enter into licences with us, we may be infringing WotC's copyright. I don't know if there is a fair use argument here, as I'm not a US copyright lawyer. There may also be an argument from reliance or estoppel or waiver or implied permission, based on (eg) the statements on the OGF website that you refer to.



Seeing as accepting the license and using open content licensed under that license requires that you copy that license, you actually can't lose copyright as long as the agreement is in place.

That is, the requirement to copy the text implicitly grants copyright (I don't own it but I have the right to copy it) because I am required to do so by the terms of the license.

... or so it seems to me. I think 'copyright' is not grounds for not using the license.

If the license is revoked, so is the need to copy it, which could mean I no longer have permission to do so.



pemerton said:


> The other role that WotC has is that, under section 9 of the OGL, we would have agreed with each other to allow our licensed material to be re-licensed under other versions of the OGL authorised by WotC.



"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" means it's up at the discretion of the licensee, not the contributor. I can't force a licensee to use any particular version of the license, they can choose which one they want.

I suppose it _could_ happen that an updated version could put additional onus on the contributor and thus be of interest to the licensee -- "contributor must pay licensee for each use" sort of clause, but it seems greatly unlikely the author of an OGL update would want a clause like that in it...


----------



## Cadence

This came up in Twitter in relationship to promissory estoppel, and reminded me of some folks bringing up different state laws on EN.  Any thoughts on if this is vaguely a relevant thing from those of you in the field?






Edit: Any thoughts @Snarf Zagyg @S'mon 
Otherwise I'll keep googling random things like in #452.


----------



## kjdavies

Myrdin Potter said:


> I think that all of a smaller pie is more revenue for Hasbro and many players only buy the official books and 3PP has little influence.
> 
> Hasbro just needs to target a super small sub-segment and influence them to be hostile to selling non-OGL 1.1 materials. A couple of high profile 5e 3PP can be cut a sweetheart deal and fracture the unity of a defense.



Honestly, if it was just "5.5 is OGL v1.1 and no other licenses", and they leave OGL v1.0a (and all "not-5.5" games) alone, pretty much everyone will be pretty chill.

The potential damage if they somehow revoke OGL v1.0a is very, very scary, so people are decidedly not chill.


Myrdin Potter said:


> My gut feel is that they will lose if this can get in front of a judge. I also think that fans can be counted on for $1M of funding but if this costs $3M or more then Hasbro can wear them down.



I suspect your gut is more or less accurate (not sure about numbers, but the shape of the answer feels likely). Just because you're right doesn't mean you'll win in court.


----------



## Starfox

Say I have published a game under the 1.0a license. I now publish a second printing, omitting the 1.0a license. I have now broken the license. I can claim to do this because the 1.0a license is now invalid, having been negated by WotC.

I can now be sued by others who use the 1.0a license. Which would give WotC/Hasbro reason to come to my legal aid in order to uphold their right to cancel the 1.0a license. Because if I lost the 1.0a license would have been shown to apply in a court of law.

Oh joy...


----------



## kjdavies

Yaarel said:


> The popculture talks about Drow and Tiefling. These depend on the OGL 1.0a.
> 
> To put it into "bean counting" terms, the creative community is doing billions of dollars of free advertising for Hasbro-WotC.



'Drow' evidently goes back to Scots dialect hundreds of years ago or to the Norse saga, depending on which etymology you believe, and in at least one of them describes fey creatures black as pitch.

The concept of a tiefling, a creature of fiendish descent, also goes back centuries... might need to find a new name ('cambion' comes to mind, comes to us from Late Latin by way of Celtic language and refers to a changeling of fey and demonic descent) but the concept predates D&D and WotC (and even TSR!) by just a little.


----------



## Alzrius

Jack Daniel said:


> The big problems with that are 5.0–5.5 compatibility and the fact that _Pathfinder_ exists now. Nothing like _Pathfinder_ existed when the GSL scheme was dreamed up.



I'm pretty sure it did. The very first Pathfinder release, _Burnt Offerings_, came out in late August, 2007. The original release of the GSL, according to my local copy, came out in mid-June, 2008. 

Now, to be fair, you did say "dreamed up" rather than "released," but Gen Con 2007 was not only the debut of _Burnt Offerings_, but also when WotC held a meeting asking for input about how their third-party compatibility license for 4E should work (I know because I attended that meeting), which made it pretty clear that they didn't have a firm plan in mind at that point.


----------



## kjdavies

pemerton said:


> I agree that consideration flows in both directions.
> 
> But a licence does not need consideration in both directions. I can invite a friend into my home, thus granting them a licence to be on my property, without them having to pay me. Of course a gratuitous licence is almost always going to be revocable at will - eg I can insist that my friend leave at any time.
> 
> The OGL is, in my view, not a gratuitous licence however.



Hmm. Right, wasn't thinking totally clearly, a license is 'just' permission to do something. I was thinking agreement or contract.


pemerton said:


> Section 9 authorises a licensee under the OGL v 1.0a to pick and choose among versions of the licence when exercising the rights the OGL grants them in respect of OGC.
> 
> It doesn't (in my view) give WotC any unilateral power to rescind/revoke a licence that it has granted.
> 
> That is why I think that the likeliest scenario is that v 1.1 contains a provision similar to that found in one of the GSL iterations - whereby parties to 1.1 agree to give up their rights under v 1.0a.
> 
> If you don't become a party to v 1.1 you will not have given up those rights. And as I said, I'm of the view that WotC lacks the legal power to unilaterally withdraw them. But I'm not an expert on US contract and licensing law, so my view is necessarily tentative and subject to revision (i) in the face of more expert opinion, and (ii) in the face of more information about what WotC is claiming.



That's how I interpret it -- if v1.1 says "I agree to no longer use v1.0a" or "I agree this content is not eligible for v1.0a despite v1.0a saying it should be", then that would stand for those who accept v1.1 and not for others.

But IANAL, and this is only logical, sensible, and potentially actually fair. It doesn't mean that's how it'll play out


----------



## mhd

Alzrius said:


> I'm pretty sure it did. The very first Pathfinder release, _Burnt Offerings_, came out in late August, 2007.



And was a D&D 3.5 game. Back then at least "Pathfinder" just appeared to be their name for their Golarion-based adventure paths. Was a separate system already in play then?


----------



## kjdavies

Xyxox said:


> What I am about to argue assumes that WotC/Hasbro has decided to declare Nuclear Lawfare. You are probably legally right. You would also be served a Cease and Desist letter when you publish your OGL 1.0a content, if anybody will let you publish it, that is (DriveThruRPG will likely not, KickStarter will probably not. Am not sure how you get it published but let's assume you do). Let's assume your content is WILDLY successful! Let's assume you decide to tell WotC/Hasbro to shove their C&D and move forward. Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.
> 
> WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,



Sadly, I expect that's how it would play out. I long ago learned (from observation, thankfully, not experience) that just because you're right doesn't mean you'll win in court.

If they keep it to 5e I'm not concerned. I don't play 5e and I'm not interested in publishing for it.

My much bigger concern is that SRD/RSRD/MSRD open content (i.e. from 15+ years ago) licensed under OGL v1.0a gets an 'v1.1 or else' ultimatum. If I can continue to use that content (and derived content) under v1.0a I couldn't care less what happens with 5e. My post was trying to play that situation out.


----------



## kjdavies

S'mon said:


> A licence can be a 'bare promise' that is not a contract. But as you say the OGL is a contract supported by consideration, not a bare promise.



Right, I was thinking 'agreement' when I wrote 'license'. License is 'just' permission to do/have something, it might have considerations going both ways but is not required to.


----------



## Alzrius

mhd said:


> And was a D&D 3.5 game. Back then at least "Pathfinder" just appeared to be their name for their Golarion-based adventure paths. Was a separate system already in play then?



No, but it was still Paizo splitting from WotC and using the OGL to do it; at the time it was already clear that they were charting their own course via breathing new life into an older edition of the game, and that this was a very big deal.

Also, Paizo announced in March of 2008 that they'd be putting out their own Pathfinder RPG, with the first alpha-playtest packet coming out then, months ahead of the GSL.


----------



## Cadence

Cadence said:


> This came up in Twitter in relationship to promissory estoppel, and reminded me of some folks bringing up different state laws on EN.  Any thoughts on if this is vaguely a relevant thing from those of you in the field?
> 
> View attachment 271618



Cases touching on it that is laughably beyond my ability to see if it is relevant (in Wisconsin and Indiana anyway)...





						Neff Grp. Distribs. v. Cognex Corp., Civil Action 22-11270-NMG | Casetext Search + Citator
					

Read Neff Grp. Distribs. v. Cognex Corp., Civil Action 22-11270-NMG, see flags on bad law, and search Casetext’s comprehensive legal database



					casetext.com
				




and









						WFDL Is Broader Than You Think - Lessons From Golf Pros (Wisconsin Fair Dealership Law)
					

On June 22, 2017, the Wisconsin Supreme Court took a 3-Iron to common intuitions about who is, and who is not, a dealer protected by the Wisconsin Fair Dealership Law (WFDL). In Benson v. City of




					www.natlawreview.com


----------



## kenada

Staffan said:


> This would seem to work for one step downstream, but I don't see how it can work for multiple "generations" of content – at least not with a CC-BY-SA license (which I think would be the closest to the OGL).
> 
> With the OGL, Paizo could release Pathfinder. Then Dreamscarred Press could make Ultimate Psionics, based on Pathfinder and the psionics rules in the SRD. Another party could then make an adventure that included the psionics stuff. I don't see how that's possible when the CC:ed version is separated into a separate work.



I don’t follow. How is having a separate document with the reusable content different from having the reusable content mixed in with non-reusable content? It seems like it should be easier to know what you are allowed to use and under what terms.


----------



## Prime_Evil

Does it matter that Section 9 of the OGL provides a mechanism for updating the licence but does not specify a mechanism for de-authorizing previous versions of the OGL? Is there a meaningful distinction between updating the terms and revocation of the license itself?


----------



## kenada

pemerton said:


> Just to follow up on this - it would require everyone to release two versions, wouldn't it? The "bare bones" version which is licensed under the viral scheme, and the full version that includes PI. The licences for the bare-bones version would then need to include one-way doors into full versions ie you can include bare bones stuff in your full version, but your full version is not itself subject to a viral licence, which operates only over your "bare bones" version.



Personally, I’d just use CC-BY for the SRD. While it’s not quite in the same spirit, games can use your OGC and contribute nothing back by declaring their mechanics Product Identity, so the practical effect seems about the same.


----------



## Reynard

Yaarel said:


> Hasbro-WotC appears to be banking on the "youth" to make the money for them.
> 
> But I doubt the "youth" want to see "greedy privileged big-corporation capitalists" win this struggle.



So, none of the other major missteps in.the last couple years have mobilized these youths, but dropping a license those youths probably didn't even know existed will do it? I somehow doubt it. The people that are mad are the people that saw it come in and save D&D in the first place.


Yaarel said:


> If a boycott happens, and all that social-media goodwill becomes poison against Hasbro-WotC
> 
> I doubt Hasbro-WotC will prevail. At all. Perhaps never recover.



Lol. No.


----------



## Yaarel

Reynard said:


> So, none of the other major missteps in.the last couple years have mobilized these youths, but dropping a license those youths probably didn't even know existed will do it? I somehow doubt it. The people that are mad are the people that saw it come in and save D&D in the first place.
> 
> Lol. No.



Wait and see what the "youth" will do when the Hasbro-WotC lawyers assault them.


----------



## Reynard

Yaarel said:


> Wait and see what the "youth" will do when the Hasbro-WotC lawyers assault them.



With baited breath.


----------



## mamba

pemerton said:


> I don't see how including the OGL v 1.0/1.0a, whether or not that is "for convenience", can make you _more_ vulnerable to being sued, except in the following way: if you are publishing content that in itself would not infringe any of WotC's IP rights, but that is something the OGL requires you to not publish because you agree that it is WotC's Product Identity.
> 
> But other than that, all including the OGL v 1.0/1.0a can do - as best I can see - is to strengthen your claim to enjoy permission to publish your stuff without being liable to WotC.



I agree, you can afford to wait until the Eye of Sauron has found you. My original reply was more for the worst case scenario of WotC having succeeded in revoking 1.0a


----------



## Yaarel

Reynard said:


> With baited breath.



Personally, I hope it doesnt come to that.

I want to celebrate 2024, not relive the death of 4e.



The main difference now, is D&D is popculture and newsworthy.

"Roleplayers boycott Dungeons & Dragons" is a soapopera that will pique international attention.

No corporation wants that.

Neither do the D&D fans want what Hasbro-WotC is doing.


----------



## kjdavies

pemerton said:


> kjdavies said:
> 
> 
> 
> First, PF1 was built on the SRD from WotC. If that is no longer licensed (because OGL v1.0a that granted them license is gone), do they still have the right to license the formerly-licensed open content?
> 
> 
> 
> 
> You wording is a bit confusing. The issue is not whether "OGL v 1.0a which granted the licence is gone". Its whether or not Paizo continues to enjoy a licence in virtue of its entering into a licensing agreement with WtoC. And this has been discussed upthread. @bmcdaniel said that the better view is that WotC can't unilaterally end its agreement with Paizo, but that if it now revokes the offer to enter into new licences, it's unclear how that would effect Paizo's ability to sub-license into the future.
> 
> One view, which I think is quite plausible as a matter of contractual construction, is that insofar as Paizo retains its rights under the agreement, one of the rights that it retains is to continue to license OGC to other parties. But given that an expert has said this matter is unclear, the view that I think is plausible can't be regarded as anything close to certain!
Click to expand...


I don't doubt my wording is confusing, I'm trying to describe a scenario I think is hypothetical and I hope is nonsensical because That's Not How It Works...

What I meant was

If OGL v1.0a is revoked and Paizo thus loses the license to use the open content previously licensed under OGL v1.0a (which I think most of us believe _cannot_ be the case, that while the license might no longer be offered existing licensees would be grandfathered); and
Paizo has sublicensed the Pathfinder Reference Document (PRD) to their third-party publishers (as they have); and
the PRD contains (now 'formerly') open content from the SRD that (in this scenario) Paizo no longer has license to use...
... does this invalidate the license they have given their third party publishers, because Paizo no longer has license to use the open content that was part of the content they licensed to us?

I see OGL v1.0a says that if a licensee loses the license due to their breach that sublicensees are still licensed for the contributor's content (i.e. in this scenario, if Paizo lost the license due to breach then they could no longer use SRD content but still have obligations to let Paizo licensees use Paizo open content), but I think that doesn't apply in this case because 1. Paizo wasn't in breach, the license was revoked, and 2. if OGL v1.0a is no longer a valid license then Paizo can't use it to license their open content to their licensees.


----------



## kjdavies

pemerton said:


> kjdavies said:
> 
> 
> 
> One of the simplest ways to resolve this (for WotC) is to do as 4e did: create a new license for 5.5 and not release the new stuff under OGL anything.
> 
> 
> 
> 
> As best I can tell that is what they are doing. The leaks seem to indicate that the OGL v 1.1 will not refer to OGC but rather to licensed content. Thus it is probably not a version of the OGL v 1.0/1.0a. It's a new set of licensing terms that happen to be labelled the same way.
Click to expand...


Which is one of the major sources of contention, I expect.

If they just called it something else (GSL 2.0, let's say) and said "this is not compatible with OGL and is not an OGL license, and if you accept this license you cannot use OGL v1.0a for any of this", even if it looks a lot like OGL v1.0a (and like a lot of OGL v1.0a, I understand it's something like ten times the word count!) then it is clear it does not supersede OGL v1.0a and is a net new license. A big part of the complication we have right now is that it seems to be positioning itself not as a new license but as an update that overrules the previous in ways many of us think are not supportable under normal legal interpretation.

As I've said, it looks like they want their cake (be able to say it's OGL and open content) while making something that actually is not OGL and not open content.


----------



## kjdavies

Jack Daniel said:


> The big problems with that are 5.0–5.5 compatibility and the fact that _Pathfinder_ exists now. Nothing like _Pathfinder_ existed when the GSL scheme was dreamed up.
> 
> I'm convinced that this whole mess has come about because WotC is desperate to prevent the emergence of an OGL-protected 5.0-compatible fork of D&D à la _Pathfinder_ that could potentially do to OneD&D what they believe _Pathfinder_ did to 4e. And, to a lesser extent, to prevent 3PPs from using the OGL v1.0a and the 5.1 SRD to produce content compatible with OneD&D.
> 
> The _only_ way to prevent these things is to nuke the OGL, and if that means going scorched earth on the 3PP ecosystem and wiping out Paizo and the rest of the competition as collateral damage, so much the better for them, they still get everything they want and more.



I suspect you are correct, both in what they're trying to prevent, in how they're trying to prevent it, and that they might even hope that how they try to prevent it has additional effect.


----------



## Reynard

Yaarel said:


> The main difference now, is D&D is popculture and newsworthy.
> 
> "Roleplayers boycott Dungeons & Dragons" is a soapopera that will pique international attention.



Sure. There will be an article in Forbes.


Yaarel said:


> Neither do the D&D fans want what Hasbro-WotC is doing.



Which fans? I have not seen any evidence yet this is going to result in mass exodus from D&D.


----------



## Xyxox

kjdavies said:


> Which is one of the major sources of contention, I expect.
> 
> If they just called it something else (GSL 2.0, let's say) and said "this is not compatible with OGL and is not an OGL license, and if you accept this license you cannot use OGL v1.0a for any of this", even if it looks a lot like OGL v1.0a (and like a lot of OGL v1.0a, I understand it's something like ten times the word count!) then it is clear it does not supersede OGL v1.0a and is a net new license. A big part of the complication we have right now is that it seems to be positioning itself not as a new license but as an update that overrules the previous in ways many of us think are not supportable under normal legal interpretation.
> 
> As I've said, it looks like they want their cake (be able to say it's OGL and open content) while making something that actually is not OGL and not open content.



This is what happens when you put former Microsoft people in charge of something released under an open license. They have absolutely no understanding of how open licensing functions and consider it a virus to be wiped out from everything they were taught under Ballmer.


----------



## Prime_Evil

Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?


----------



## Matt Thomason

Prime_Evil said:


> So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?



This is currently my own interpretation.  If you never actually _agree_ to the OGL 1.1 (or even _read_ it in the first place), on what legal basis are you being bound by any text within it?  Surely 1.0 continues its perpetual agreement _until_ you make an alternative agreement via 1.1.  Even if WotC do have revocation powers, they would have to actually _contact you_ in order to revoke the 1.0 license, and can't rely on the fact they revoked it in a clause in a brand new license you never agreed to or even knew existed (honest, guv, I never heard of no 1.1 license and neither has my dog!)


----------



## Matt Thomason

Prime_Evil said:


> Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?



The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.


----------



## Reynard

Matt Thomason said:


> The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.



Why would that be? If they put a character sheet in the back of a book and tell you that you are allowed to reproduce it, that doesn't mean they are giving up the copyright on it.


----------



## Staffan

pemerton said:


> Just to follow up on this - it would require everyone to release two versions, wouldn't it? The "bare bones" version which is licensed under the viral scheme, and the full version that includes PI. The licences for the bare-bones version would then need to include one-way doors into full versions ie you can include bare bones stuff in your full version, but your full version is not itself subject to a viral licence, which operates only over your "bare bones" version.



Not a lawyer, but I don't think that would work, at least not in a way that's in any way friendly to actual use.

Generation 1 could easily split things out into two documents. That's basically what Wizards has already done: the "real" version that's the PHB, DMG, and MM; and the OGC version that is the SRD.

But generation 2 can't do that easily, because if it includes open stuff it itself has to be open. Under the OGL I could include an NPC with a name, backstory, description, and a stat block. I could then declare the "fluff" as PI and the stat block as OGC. But if using separate documents I can't do that, because if I include the stat block, that's derived from the open content and thus the entire work has to be open. The only way out I see is if I make one work that's pure "fluff" and then another that's pure "crunch" and then have one work refer to the other. And that's really, really inconvenient for the end user.


----------



## Matt Thomason

Reynard said:


> Why would that be? If they put a character sheet in the back of a book and tell you that you are allowed to reproduce it, that doesn't mean they are giving up the copyright on it.



I'm answering the question that asked about if they were to use their copyright of the OGL 1.0 to prevent anyone printing (and therefore using) it in the future.
As their license agreement with $publisher already requires $publisher to reprint the OGL 1.0, any attempt by them to _prevent_ the OGL 1.0 being reproduced through copyright litigation would be in conflict with the terms of the license $publisher already has.  I'm guessing there is some established legal process to sort out exactly what happens if they create a paradoxical situation such as this, which hopefully would include good faith arguments (I may be expecting too much of the law here!) and therefore point out that they just can't do that.


----------



## Prime_Evil

Matt Thomason said:


> The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.



Section 2 of the OGL v1.0a requires licensees to attach a copy of the OGL to derivative works distributed under the license. It also binds sublicensees to the same condition. Does this amount to permission to use the text of the licence without infringing on WoTC copyrights?


----------



## kjdavies

Prime_Evil said:


> Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?



I _think_ not, in that if you are using the license and the license requires you to copy the license text, that implicitly/inherently gives you right to copy it.


----------



## Matt Thomason

Prime_Evil said:


> Section 2 of the OGL v1.0a requires licensees to attach a copy of the OGL to derivative works distributed under the license. It also binds sublicensees to the same condition. Does this amount to permission to use the text of the licence without infringing on WoTC copyrights?



I would hope (again, I may be expecting too much here) that the law would recognize that the binding terms of the license upon the third party publisher would mean attempt to prevent that reproduction through copyright litigation is in contradiction to the existing good faith agreement under said OGL.


----------



## Xyxox

Matt Thomason said:


> This is currently my own interpretation.  If you never actually _agree_ to the OGL 1.1 (or even _read_ it in the first place), on what legal basis are you being bound by any text within it?  Surely 1.0 continues its perpetual agreement _until_ you make an alternative agreement via 1.1.  Even if WotC do have revocation powers, they would have to actually _contact you_ in order to revoke the 1.0 license, and can't rely on the fact they revoked it in a clause in a brand new license you never agreed to or even knew existed (honest, guv, I never heard of no 1.1 license and neither has my dog!)



Have you got millions upon millions of dollars to defend that position in a lawsuit file by WotC/Hasbro?


----------



## mamba

Xyxox said:


> Have you got millions upon millions of dollars to defend that position in a lawsuit file by WotC/Hasbro?



that is not a way of proving his position wrong


----------



## pemerton

Starfox said:


> Say I have published a game under the 1.0a license. I now publish a second printing, omitting the 1.0a license. I have now broken the license. I can claim to do this because the 1.0a license is now invalid, having been negated by WotC.
> 
> I can now be sued by others who use the 1.0a license.



I think your bigger worry would be being sued by WotC for copyright infringement!


----------



## pemerton

kenada said:


> I don’t follow. How is having a separate document with the reusable content different from having the reusable content mixed in with non-reusable content? It seems like it should be easier to know what you are allowed to use and under what terms.



Did you see my response to the post you're quoting:



pemerton said:


> Just to follow up on this - it would require everyone to release two versions, wouldn't it? The "bare bones" version which is licensed under the viral scheme, and the full version that includes PI. The licences for the bare-bones version would then need to include one-way doors into full versions ie you can include bare bones stuff in your full version, but your full version is not itself subject to a viral licence, which operates only over your "bare bones" version.


----------



## pemerton

kjdavies said:


> Seeing as accepting the license and using open content licensed under that license requires that you copy that license, you actually can't lose copyright as long as the agreement is in place.



I think you may have lost track of the scenario under discussion? When you talk about "accepting the licence" I assume you mean entering into a licence agreement with WotC; but I was talking about a scenario in which someone with no licensing relationship to WotC nevertheless uses the OGL to license their own work.

Consider four parties: W(otC), X, Y and Z.

W publishes a piece of text, titled the OGL v 1.0a, and asserts its copyright in that text.

X publishes a document and decides to license it to Y. X wants the license to be an open license with a viral character, and so decides to use the terms set out in the text published by W. At this point, X is copying text in which W enjoys the copyright. X is also requiring Y to (i) reproduce that text in its licensed works, and (ii) require that further downstream licensees, like (say) Z, to do the same.

Where do X, Y and Z get any permission to reproduce W's copyrighted text? My view is that it must be an implicit permission that results from W having promulgated the text and encouraged others party to use it to create licenses in exactly the way that X has done and that Y may do in the future.

But what if W now makes it clear that they are revoking any such permission? Then X and Y would have to rely on some sort of estoppel or waiver argument, which is not out of the question but (I think) is more complex.

There is also the possibility that X, Y and Z don't need permission because they are making fair use of W's text; but I don't know if US copyright law considers this sort of use as fair use.

Note that the problem I've just outlined does not arise for parties to the OGL with WotC, because in that case WotC is clearly conferring permission to reproduce the copyrighted text because that's is exactly what they require via the terms of their licence (especially sections 2 and 4). I believe that Evil Hat mention WotC's SRD in their own section 15 notice when they offer Fate under the OGL v 1.0a (though I'm not sure - I'm going on what others have posted) and if they do so, it seems to me that this may be why they do so.



kjdavies said:


> If the license is revoked, so is the need to copy it, which could mean I no longer have permission to do so.



Again, you seem to be talking about _WotC purporting to revoke the existing licensing agreements to which it is party_, whereas my post to which you replied was an attempt to analyse the situation of publishers who are not party to any licensing agreement with WotC but who want to license their own work via an open licence that has the terms of the OGL v 1.0/1.0a.



kjdavies said:


> "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" means it's up at the discretion of the licensee, not the contributor. I can't force a licensee to use any particular version of the license, they can choose which one they want.



The way to "force" someone to use one or other version of the licence is to introduce such a requirement into your licensing agreement. This is what I assume that WotC will do with its OGL v 1.1, and what it did do with one iteration of the GSL - thus obliging parties to the new licence to renounce their rights under the old one.

But again this does not bear upon the scenario I was discussing in my post. I was pointing out that in the sort of situation I've spelled out above, even though X, Y and Z have no contractual relationship with W, they have agreed as between themselves (via the terms of their licences, which are the terms of the OGL) to permit W to vary the terms on which they may license to one another (if W were to exercise its power under section 9 of the licence between X, Y and Z).



kjdavies said:


> Honestly, if it was just "5.5 is OGL v1.1 and no other licenses", and they leave OGL v1.0a (and all "not-5.5" games) alone, pretty much everyone will be pretty chill.
> 
> The potential damage if they somehow revoke OGL v1.0a is very, very scary, so people are decidedly not chill.



It's not clear that WotC is doing anything other than the first thing you describe. See the first post upthread by @bmcdaniel.

I think you are running together different legal interpretations of the notion of "revoking" the OGL v 1.0a - namely, (i) ceasing to offer licences on those terms, (ii) purporting to remove from existing licensees the power to create new sub-licences of WotC's existing OGC, and (iii) purporting to unilaterally revoke all existing agreements under the OGL v 1.0a.

The first thing WotC can obviously do, and that's been obvious for 20 years. I believe I was the first person to post about the possibility on ENworld, 10+years ago.

The third thing is something that I, and various other legally trained posters (but not all of them) think can't be done. See eg that first post by bmcdaniel, or my other posts, or @S'mon's post.

The second thing is the least certain - @S'mon and I doubt that WotC can do that, because it is contractually precluded from doing so. bmcdaniel described it as not being clear.


----------



## pemerton

Prime_Evil said:


> Does it matter that Section 9 of the OGL provides a mechanism for updating the licence but does not specify a mechanism for de-authorizing previous versions of the OGL? Is there a meaningful distinction between updating the terms and revocation of the license itself?



Yes, there is a very big difference between those two things. Section 9 is a provision whereby parties to the OGL agree that WotC can promulgate new candidate terms under which certain uses of OGC is licensed, enabling parties to then use those alternative terms as part of their licensing offers without being in breach of their section 2 and section 4 obligations.

As per my post just upthread the notion of "revocation of the licence" is ambiguous, and I don't know in which sense you are using it. But section 9 is not a provision (at least on any natural reading that I can see) that permits WotC to unilaterally terminate/revoke/rescind anyone else's rights.


----------



## Xyxox

mamba said:


> that is not a way of proving his position wrong



Unforunately, it is the ONLY way to prove the position of WotC/Hasbro wrong if their intent is nuclear  lawfare.


----------



## pemerton

kenada said:


> Personally, I’d just use CC-BY for the SRD. While it’s not quite in the same spirit, games can use your OGC and contribute nothing back by declaring their mechanics Product Identity, so the practical effect seems about the same.



I see that you did see my post.

I'm personally not 100% convinced that declaring mechanics as Product Identity is consistent with the OGL, which sets out a definition for product identity and also for OGC.

But anyway, without the two-documents-by-everyone approach I don't see how a network of interlocking agreements creating an ecology of OGC could be created.


----------



## pemerton

mamba said:


> I agree, you can afford to wait until the Eye of Sauron has found you. My original reply was more for the worst case scenario of WotC having succeeded in revoking 1.0a



Suppose that were to happen (whatever exactly it means - "revoking 1.0a" is an ambiguous phrase). What harm would it then do to include the text of the OGL v 1.0a in one's publication?


----------



## mamba

Xyxox said:


> Unforunately, it is the ONLY way to prove the position of WotC/Hasbro wrong if their intent is nuclear  lawfare.



spending the money will be required to find out, agreed. But you saying now 'you won't have the money' is not proving his argument wrong


----------



## Xyxox

pemerton said:


> Yes, there is a very big difference between those two things. Section 9 is a provision whereby parties to the OGL agree that WotC can promulgate new candidate terms under which certain uses of OGC is licensed, enabling parties to then use those alternative terms as part of their licensing offers without being in breach of their section 2 and section 4 obligations.
> 
> As per my post just upthread the notion of "revocation of the licence" is ambiguous, and I don't know in which sense you are using it. But section 9 is not a provision (at least on any natural reading that I can see) that permits WotC to unilaterally terminate/revoke/rescind anyone else's rights.



Legally, what I think Section 9 is inferring is that yes, you can release under OGL 1.0 or even an OGL 1.x as it will be authorized, but you CANNOT operate under the ABCGenericLicense1.0 as it has never been authorized in this line of Open Gaming Licenses and I bet if you go back to Ryan Dancey, he would agree with that.

None of that matters in Nuclear Lawfare if that is what WotC/Hasbro is going to do. All that matters in that case is funding and if you can get the funding, you can definitely win in a court of law. With the right legal team, although the cost would be high, you can probably get an injunction against OGL 1.1 until such a time as the case has been decided, too. The cost would be extreme.


----------



## mamba

pemerton said:


> Suppose that were to happen (whatever exactly it means - "revoking 1.0a" is an ambiguous phrase). What harm would it then do to include the text of the OGL v 1.0a in one's publication?



WotC could tell you to remove it because it has been revoked whereas otherwise (and assuming you do have an independent RPG) they do nothing, but agreed, you can always comply then with no harm


----------



## pemerton

kjdavies said:


> What I meant was
> 
> If OGL v1.0a is revoked and Paizo thus loses the license to use the open content previously licensed under OGL v1.0a (which I think most of us believe _cannot_ be the case, that while the license might no longer be offered existing licensees would be grandfathered); and
> Paizo has sublicensed the Pathfinder Reference Document (PRD) to their third-party publishers (as they have); and
> the PRD contains (now 'formerly') open content from the SRD that (in this scenario) Paizo no longer has license to use...
> ... does this invalidate the license they have given their third party publishers, because Paizo no longer has license to use the open content that was part of the content they licensed to us?



What do you mean by _OGL v 1.0a is revoked_? As I've posted, in this and other threads, that phrase does not have any determinate legal meaning.

In my post to which you replied, I already said what I think happens if WotC ceases to offer to license its SRD(s) under the terms of the OGL: although it's not clear (as @bmcdaniel said), I think one plausible view is that Paizo retains its right, conferred by its contract with WotC the terms of which are set out in the OGL, to sub-license WotC's OGC. But my view about this is tentative. I don't think you're going to get a more certain view without getting legal advice!

If WotC finds some way - which few legally trained people seem to think exists, but the OP of this thread is one of those few - to actually revoke its existing licence agreement with Paizo, then Paizo would no longer have permission from WotC to publish those licensed works. If it continued nevertheless to do so, then as I posted upthread it would need to be ready to argue that its works do not infringe any WotC-owned copyrights.


----------



## Xyxox

mamba said:


> spending the money will be required to find out, agreed. But you saying now 'you won't have the money' is not proving his argument wrong



I don't intend to prove his argument wrong because I think there is about a 95% chance it would absolutely win in any court of law in the United States and I agree with it 100%. That's why I ask about the funding because that is what it will take to get it before any court in the United States. Get the money and it's a slam dunk. If the EFF can be brought on board it stands a damn good chance. They have beaten bigger corporations than Hasbro many times before.


----------



## pemerton

kjdavies said:


> Which is one of the major sources of contention, I expect.
> 
> If they just called it something else (GSL 2.0, let's say) and said "this is not compatible with OGL and is not an OGL license, and if you accept this license you cannot use OGL v1.0a for any of this", even if it looks a lot like OGL v1.0a (and like a lot of OGL v1.0a, I understand it's something like ten times the word count!) then it is clear it does not supersede OGL v1.0a and is a net new license. A big part of the complication we have right now is that it seems to be positioning itself not as a new license but as an update that overrules the previous in ways many of us think are not supportable under normal legal interpretation.



I don't think anyone thinks the OGL v 1.1 is going to be an update in the sense intended by section 9 of the OGL v 1.0a, do they? That seemed to be ruled out as soon as the press release was issued last month.


----------



## kenada

pemerton said:


> I see that you did see my post.



Yep. 



pemerton said:


> I'm personally not 100% convinced that declaring mechanics as Product Identity is consistent with the OGL, which sets out a definition for product identity and also for OGC.



I feel the same, but people do it anyway.



pemerton said:


> But anyway, without the two-documents-by-everyone approach I don't see how a network of interlocking agreements creating an ecology of OGC could be created.



That ends up sounding a lot like the OGL except probably custom and possibly MacGyvered out of other licenses.


----------



## pemerton

Prime_Evil said:


> Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?



I've made multiple posts addressing this question - most recently post 479 upthread.


----------



## Matt Thomason

Xyxox said:


> Have you got millions upon millions of dollars to defend that position in a lawsuit file by WotC/Hasbro?



I absolutely agree this is the biggest problem - the _actual_ legal position is purely academic if nobody can actually afford to fight it in court.  I'd imagine a class action suit by a large number of 3PPs _might_ work, possibly backed by crowdfunding, but I don't know how likely that would be.

That said, we still don't know WotC's real intent here.  As others have mentioned, this may simply be a communications error in that they intend _only_ users of the OGL 1.1 to have their 1.0 rights revoked by it (which would fit with the majority of legal interpretations over what they can and cannot do) , and that everything else is speculation by people running scared.  Although I can't blame anyone for running scared, seeing as many of us have our very livelihoods at stake over this.

The real question is still what do they _intend_, which we can't answer until they make an official statement.  I would _assume_ simply by prior actions (the GSL) and that they didn't revoke 1.0 on the multiple occasions that it would have made sense to do so, that it's just that by accepting the 1.1 OGL you agree to waive your 1.0 rights, and that they don't actually have any intention of suing people into oblivion to stop them using 1.0.  

I would also think it best that anyone with OGL ties makes plans for me being wrong on this


----------



## pemerton

Matt Thomason said:


> This is currently my own interpretation.  If you never actually _agree_ to the OGL 1.1 (or even _read_ it in the first place), on what legal basis are you being bound by any text within it?  Surely 1.0 continues its perpetual agreement _until_ you make an alternative agreement via 1.1.  Even if WotC do have revocation powers, they would have to actually _contact you_ in order to revoke the 1.0 license, and can't rely on the fact they revoked it in a clause in a brand new license you never agreed to or even knew existed (honest, guv, I never heard of no 1.1 license and neither has my dog!)



I suspect that if there is a power of revocation then some sort of reasonable notice will probably be sufficient. But you're right that the proper framework for analysing this is a private law one, making sense of what binding agreements exist between which parties. The OGL (any version) is not a statute.


----------



## pemerton

Matt Thomason said:


> The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.



I don't agree with this. See my post 479.


----------



## pemerton

Prime_Evil said:


> Section 2 of the OGL v1.0a requires licensees to attach a copy of the OGL to derivative works distributed under the license. It also binds sublicensees to the same condition. Does this amount to permission to use the text of the licence without infringing on WoTC copyrights?



Yes, if you are a party to the OGL with WotC.

But, as per my post 479 and earlier posts, it's not as clear what the situation is for parties who have no licensing agreement with WotC yet are using the OGL to state the terms of their licensing agreements with other parties.


----------



## estar

Prime_Evil said:


> Does it matter that Section 9 of the OGL provides a mechanism for updating the licence but does not specify a mechanism for de-authorizing previous versions of the OGL? Is there a meaningful distinction between updating the terms and revocation of the license itself?



Also, I see little to no discussion of Section 13 the termination clause where it is explicitly stated the condition under which the license may be terminated. Along with a standalone provision that explicitly states that if the license is terminated the sublicenses are continued.


----------



## mamba

pemerton said:


> I don't think anyone thinks the OGL v 1.1 is going to be an update in the sense intended by section 9 of the OGL v 1.0a, do they? That seemed to be ruled out as soon as the press release was issued last month.



To me that was pretty much the only point to call it OGL 1.1 instead of literally anything else. This way a newer version revokes the old version, otherwise some unrelated license says something meaningless


----------



## pemerton

Xyxox said:


> Legally, what I think Section 9 is inferring is that yes, you can release under OGL 1.0 or even an OGL 1.x as it will be authorized, but you CANNOT operate under the ABCGenericLicense1.0 as it has never been authorized in this line of Open Gaming Licenses and I bet if you go back to Ryan Dancey, he would agree with that.



What prohibits you using a different licence is not section 9 but sections 2 and 4.

Section 9 does not impose any restriction that I can see. It seems to me to confer a permission - namely, (i) on licensees who (as licensors) go on to license OGC to further parties, to depart from the requirement set out in sections 2 and 4 provided that the variations they make appear in "authorised updates" issued by WotC.

The practical effect of this permission should be to create a "race to the top" where "the top" is defined by the interests of parties both as licensors and licensees. Everyone will use the version of the licence that they take to optimise their interests in these two respects.


----------



## pemerton

mamba said:


> WotC could tell you to remove it because it has been revoked whereas otherwise (and assuming you do have an independent RPG) they do nothing, but agreed, you can always comply then with no harm



If WotC is going to sue you for infringing their copyright in their various published D&D books, a C&D that refers to your use of the text of the OGL v 1.0a is the least of your problems!


----------



## Matt Thomason

pemerton said:


> I don't agree with this. See my post 479.



I _think_ I follow your thinking there - they can't stop $publisher if $publisher is using the OGL directly from WotC (say, from the SRD) because it's WotCs license requiring you to reproduce WotC's copyrighted license text, but can potentially do if $publisher is using the OGL via a third party because thats _not_ WotC's license (because it's the third party's distributed copy of the OGL) putting that requirement on you.  Yes?


----------



## pemerton

kenada said:


> I feel the same, but people do it anyway.



I think they're probably in breach. But no one appears to have attempted to enforce their contractual rights by way of litigation.

I recently re-read the OGC declaration in Monte Cooke's Arcana Unearthed. I think it is very interesting to see where Monte (and/or Monte's lawyer) saw the mechanics(OGC)/product identity line to fall, and also some of the defensive wording used.



kenada said:


> That ends up sounding a lot like the OGL except probably custom and possibly MacGyvered out of other licenses.



Well it would be different from the OGL in that one of the terms would have to be a promise to publish a work consisting solely of the OGC, and to license that in the same terms to any one else who wants to take it up.

I think the greater onerousness of the two-documents approach might be a barrier to uptake - there is both the need to create the second PDF, and the need to host it somewhere so its accessible. And of course if the work ceased to be published (eg the host fails for whatever reason) then the licensee would be in breach.


----------



## mamba

pemerton said:


> If WotC is going to sue you for infringing their copyright in their various published D&D books, a C&D that refers to your use of the text of the OGL v 1.0a is the least of your problems!



that runs against the "assuming you do have an independent RPG" part, unless the idea is that it is a fraudulent claim, at which point nothing I do really matters


----------



## pemerton

Matt Thomason said:


> I _think_ I follow your thinking there - they can't stop $publisher if $publisher is using the OGL directly from WotC (say, from the SRD) because it's WotCs license requiring you to reproduce WotC's copyrighted license text, but can potentially do if $publisher is using the OGL via a third party because thats _not_ WotC's license (because it's the third party's distributed copy of the OGL) putting that requirement on you.  Yes?



I think not quite - depending on who you mean by "third party".

Given that WotC has a licence agreement with Paizo (on the terms set out in the OGL v 1.0/1.0a), and that agreement requires Paizo both to (i) reproduce the text of the OGL, and (ii) requires Paizo to require sub-licensees to reproduce the text of the OGL, then it must be the case that WotC has authorised that reproduction of its copyrighted text.

Now if WotC is trying to argue that it can revoke some or all of the rights it has conferred on Paizo, it will also (in passing) be arguing that it can revoke that permission granted to Paizo. But in such circumstances losing the right to reproduce the text of the OGL would be the least of Paizo's worries! -because Paizo only needs to use such a right if it also has the more important rights (ie to use and distribute WotC's OGC) that WotC has granted on it as a party to the OGL.

But my post 479 was considering a scenario in which a RPG publisher who is not WotC, and is not in a licensing arrangement with WotC, wants to licence its own copyrighted work to other parties under a licence having the exact terms of the OGL. (In other words, it wants to create its own ecology of OGC.) That person is a stranger to WotC's licensing arrangements with Paizo and sub-licensees who enter into agreements with Paizo. So they don't have the same argument for permission to reproduce WotC's copyrighted text. In my post I tried to suggest some other bases on which they might nevertheless be able to assert such a right.


----------



## pemerton

estar said:


> Also, I see little to no discussion of Section 13 the termination clause where it is explicitly stated the condition under which the license may be terminated. Along with a standalone provision that explicitly states that if the license is terminated the sublicenses are continued.



I've discussed it extensively, in this and other threads.


----------



## wunkburger

DavyGreenwind said:


> In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext




That's not what your link says, at all:

"Conversely, courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration. Results, however, may vary based on applicable state contract law and federal law preemption principles."


----------



## pemerton

mamba said:


> To me that was pretty much the only point to call it OGL 1.1 instead of literally anything else. This way a newer version revokes the old version, otherwise some unrelated license says something meaningless



It seemed pretty clear from the posting of the announcement that v 1.1 was going to differ in its terms from v 1.0a in a way that made no sense as a section 9 update.

The reason for calling it OGL 1.1, as far as I can see, is purely rhetorical.

I don't know what you mean by "a newer version revokes the old version" - that's not a concept that is part of the terms of the OGL as a licensing agreement. (Compared to, say, my contract with my bank under which I agree to let them modify the terms and conditions pretty much as they like.)


----------



## Malchor Flubbit

DavyGreenwind said:


> I have not been able to find any games mechanics cases on RPGs.




Check out DaVinci Editrice S.R.L. v. ZiKo Games, LLC:

For Lawyers: Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F. Supp. 3d 820 | Casetext Search + Citator
For the rest of us: Texas court affirms game mechanics not protected under copyright law


----------



## Matt Thomason

pemerton said:


> But my post 479 was considering a scenario in which a RPG publisher who is not WotC, and is not in a licensing arrangement with WotC, wants to licence its own copyrighted work to other parties under a licence having the exact terms of the OGL. (In other words, it wants to create its own ecology of OGC.) That person is a stranger to WotC's licensing arrangements with Paizo and sub-licensees who enter into agreements with Paizo. So they don't have the same argument for permission to reproduce WotC's copyrighted text. In my post I tried to suggest some other bases on which they might nevertheless be able to assert such a right.



Yes, I was thinking of, for example, the use of the OGL by the Year Zero Engine, which stands alone and doesn't originate with the D&D SRD.


----------



## pemerton

mamba said:


> No idea really. My theory was that if I have a separate RPG that just used the OGL 'for convenience' then I would be safer removing it as then WotC has nothing to sue over (which was the case I replied to). If however I am relying on OGC for my product then yes, you are probably better off keeping it.





mamba said:


> that runs against the "assuming you do have an independent RPG" part, unless the idea is that it is a fraudulent claim, at which point nothing I do really matters



PF1 is a separate RPG from D&D. So is C&C, and arguably so are OSRIC, Swords & Wizardry, etc. But publishing any of them without a licence from WotC would (in my view) risk losing a claim to copyright infringement. I'm not expert enough to say how big the risk is, but clearly greater than - eg -the risk of Vincent Baker losing a claim to copyright infringement by Apocalypse World, and even than the chance of Luke Crane et al losing such a claim of infringement by Torchbearer.

If what you have in mind is, say, PF2 which - as per a recent post (or announcement?) Paizo are saying they could have published without a licence from WotC, then I still think the risk of keeping the OGL in their product is extremely low, as (i) they have a permission from WotC to reproduce it (conferred on them by their licensing agreement with WotC) and (ii) the worst possible outcome is a C&D from WotC in respect of it.


----------



## pemerton

Matt Thomason said:


> Yes, I was thinking of, for example, the use of the OGL by the Year Zero Engine, which stands alone and doesn't originate with the D&D SRD.



OK, for that scenario my analysis in that post (479) is my best attempt to unpack the possibilities.


----------



## mamba

pemerton said:


> The reason for calling it OGL 1.1, as far as I can see, is purely rhetorical.



might be that too, as in 'the OGL is not going away'


pemerton said:


> I don't know what you mean by "a newer version revokes the old version" - that's not a concept that is part of the terms of the OGL as a licensing agreement.



wasn't the leak say something along the lines of 'this license revokes / de-authorizes the OGL 1.0a', to me saying something like that in an OGL 1.1 is more convincing than in a GSL 2.0


----------



## mamba

pemerton said:


> PF1 is a separate RPG from D&D. So is C&C, and arguably so are OSRIC, Swords & Wizardry, etc. But publishing any of them without a licence from WotC would (in my view) risk losing a claim to copyright infringement



I tend to agree, I was saying independent, not separate. Might not be a meaningful legal term though  Think of Savage Worlds or something else clearly not D&D derived 



pemerton said:


> I'm not expert enough to say how big the risk is, but clearly greater than - eg -the risk of Vincent Baker losing a claim to copyright infringement by Apocalypse World, and even than the chance of Luke Crane et al losing such a claim of infringement by Torchbearer.



I agree there is a gradient, no idea anyone knows where exactly the line is between something that violates WotC's copyright and something that no longer does. Would be great if this were less gray 



pemerton said:


> If what you have in mind is, say, PF2 which - as per a recent post (or announcement?) Paizo are saying they could have published without a licence from WotC, then I still think the risk of keeping the OGL in their product is extremely low, as (i) they have a permission from WotC to reproduce it (conferred on them by their licensing agreement with WotC) and (ii) the worst possible outcome is a C&D from WotC in respect of it.



agreed, there isn't any legal harm in having the 1.0a in it, whether it is needed or not


----------



## pemerton

mamba said:


> wasn't the leak say something along the lines of 'this license revokes / de-authorizes the OGL 1.0a', to me saying something like that in an OGL 1.1 is more convincing than in a GSL 2.0



The leak said that one of the terms (or, more likely I think, a summary of one of the terms) in the draft v 1.1 states that the OGL v 1.0a is no longer an authorised licence agreement. But to me that seems like it will be part of the terms of the new agreement. It is not a legislative act by WotC, or an attempt to "de-authorise" the OGL v 1.0a for existing parties whose licences remain on foot.


----------



## mamba

pemerton said:


> The leak said that one of the terms (or, more likely I think, a summary of one of the terms) in the draft v 1.1 states that the OGL v 1.0a is no longer an authorised licence agreement. But to me that seems like it will be part of the terms of the new agreement. It is not a legislative act by WotC, or an attempt to "de-authorise" the OGL v 1.0a for existing parties whose licences remain on foot.



I guess the answer is 'no one knows', but I am asking anyway  What does de-authorize mean ? My interpretation is anything under 1.0 can / does remain under 1.0 and can continue to be published, but nothing new can use that license any more, even if the 3PP already published other OGL 1.0 products in the same line.


----------



## pemerton

mamba said:


> I guess the answer is 'no one knows', but I am asking anyway  What does de-authorize mean ? My interpretation is anything under 1.0 can / does remain under 1.0 and can continue to be published, but nothing new can use that license any more, even if the 3PP already published other OGL 1.0 products in the same line.



"De-authorise" doesn't mean anything in the abstract, and I would be very surprised if that phrase appears in v 1.1. (It is not part of the leak that I saw: We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!).

If v 1.1 describes v 1.0/1.0a as not an authorised licence agreement, that will have meaning only in the context of the rest of the contract, which will explain the significance of a licence being authorised or not authorised.

Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.


----------



## FrogReaver

pemerton said:


> "De-authorise" doesn't mean anything in the abstract, and I would be very surprised if that phrase appears in v 1.1. (It is not part of the leak that I saw: We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!).
> 
> If v 1.1 describes v 1.0/1.0a as not an authorised licence agreement, that will have meaning only in the context of the rest of the contract, which will explain the significance of a licence being authorised or not authorised.
> 
> Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.



I think the gizmodo article had fuller details.

Link below:
Dungeons & Dragons’ New License Tightens Its Grip on Competition


----------



## mamba

FrogReaver said:


> I think the gizmodo article had fuller details.
> 
> Link below:
> Dungeons & Dragons’ New License Tightens Its Grip on Competition



this one was fine it had '1.0a is no longer an authorized version' right in the first sentence, which is what I referred to as de-authorized. The rest of the answer covered my question.


----------



## AbdulAlhazred

GMforPowergamers said:


> take the idea and change it to update it. Make a creative commons OGL for things... but make sure Irrevocable is in there. But you have to keep it up to date every few years



As someone who's been around the FSF and OSS since it got its start, I beg to differ about the OGL. It is an utterly crap license. It is written poorly, and since it is with a trustworthy steward, it is unusable. It is barely a coherent legal document at all. Read the CC licenses sometime, When we share, everyone wins - Creative Commons Note how much more carefully they are constructed, by experts in the field of open licensing, not random corporate lawyers plus a gamer or two. OGL has unsolvable issues, which WotC is likely to start exploiting. I mean, the very fact that they think they can construe it to be terminable or revocable at all makes it virtually worthless as an agreement (I think think it was a reasonable success as a PR instrument which conveyed WotC's intent back in 2001 fairly well).

So it is absolutely time for everyone to roll on over to CC Org and license themselves up using CC-BY-SA, which provides very similar licensing to what OGL intended, but works!


----------



## pemerton

FrogReaver said:


> I think the gizmodo article had fuller details.
> 
> Link below:
> Dungeons & Dragons’ New License Tightens Its Grip on Competition



I think this sentence in the article - "One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement." - is a bit misleading from the point of view of addressing technical questions.

There won't be an update to the OGL v 1.0. OGL v 1.0 can't be updated in the literal sense - what section 9 permits is the use of alternative versions that are promulgated by WotC. This contrasts with (for instance) my contract with my bank, which the bank does have the authority to update while it remains the very same contract.

And the OGL v 1.0 will not state, of itself, that it is no longer an authorised licence agreement.

Rather, there will be a term in v 1.1 which says something to the effect that parties to the OGL v 1.1 agree not to use the v 1.0/1.0a licence; and if v 1.1 has an analogue of section 9, which to me seems likely given it will probably be a (quasi-)open copyright licence, that provision may expressly state that v 1.0/1.0a is not an authorised version for the purposes of that provision.

But no terms of v 1.1 can be binding on anyone who is not a party to it.


----------



## AbdulAlhazred

Cadence said:


> Does Creative Commons have anything like the product identity/open game split the OGL did?   If someone wanted that, would they put a section at the end of online that was like an SRD excerpt that they would say was CC?



You could certainly create a work where you indicated which license applied to which pieces. So you could have NC-ND sections, and NC-SA sections, or purely SA sections, etc. I see no reason why that would not work fine. Wikimedia has a mixture of all sorts of stuff by the different licenses, they simply indicate for each 'thing' which way it is licensed. OGL allowed, practically required, that you indicate parts that were and were not PI and not covered, so its no different really.


----------



## Prime_Evil

pemerton said:


> OK, for that scenario my analysis in that post (479) is my best attempt to unpack the possibilities.



The copy of the OGL available via the Open Gaming Foundation includes the following preamble: "THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST". See Open Game License v1.0a

This seems to indicate an intention for third-parties to distribute the license.

A search of the website on Archive.org reveals the following FAQ for the version of the OGL published on 9/15/00:



> A Brief Q&A;:
> 
> Q: What does "Approved" mean?
> A: It means that the license has been approved by the WotC legal team. WotC has agreed to support these terms for the upcoming release of Open Game Content.
> 
> Q: Who can use this license?
> A: Anyone can use this license. Permission to distribute the license is now granted.
> 
> Q: Do I have to use this license with material from WotC or based on something WotC publishes?
> A: Not at all. You can use this license to provide a strong copyleft to any material, including an entirely new project.
> 
> Q: How do I indicate what is "Open Game Content"?
> A: The exact method is up to you. You are required to "clearly" do so. Assume a "reasonable person" standard - if a reasonable person would be able to determine what is Open Game Content, your method will be acceptable.
> 
> Q: Do you have any suggestions as to how to do that?
> A: Two simple methods recognized by the Open Gaming community (but by no means the only possible methods) are to place Open Game Content in boxed text and indicate in the publication that the boxed text content is Open Game Content; or place Open Game Content in a unique font, color or style not elsewhere used in the publication and indicate that any material in that unique font, color or style is Open Game Content.
> 
> Q: What is "Product Identity"?
> A: Product identity means things that might be mixed in with Open Game Content that you do not wish to apply the terms of the License to.
> 
> Q: That's not very Open then, is it?
> A: The License specifically limits the Product Identity to non-Game Rule content. The Open Gaming License is primarily designed to provide a strong copyleft and an Open (meaning "freedom to copy, modify and distribute") License for Game Rules and materials that use Game Rules. Content that is not Game Rules or material that uses Game Rules that is aggregated with such content need not be subject to the terms of this License.
> 
> Q: How do I identify "Product Identity"?
> A: The method that Wizards of the Coast will probably be using will be to include a list of things it considers "Product Identity" in a given publication as an enumerated list under a heading of that name.
> 
> Q: What will happen to me if I use someone else's Product Identity without permission?
> A: You will be in breach of the Open Gaming License. If the owner of that Product Identity notifies you of the breach, and you fail to cure that breach as described in the License, your rights to use the Open Gaming License will terminate, and you could be sued for copyright violations and breach of contract.
> 
> Q: Just by the person who owns the Product Identity?
> A: No. Once your rights have terminated, if you continue to Use Open Gaming Content without those rights, you could be sued by each and every person who has contributed to the work you are Using.
> 
> Q: Do I really have to include a copy of the entire license when I Use Open Gaming Content?
> A: Technically, the answer is yes. Any time you Use Open Game Content, you should also include a copy of the license. Practically, in the case of email messages or other very short material where you do not do so, you will be in breach of the License but you are unlikely to be so notified, and even if you were, you are unlikely to be repeatedly distributing the same email message, so you can cure your breach by agreeing not to continue to distribute the offending message without the full text of the License.
> 
> One copy of the License is sufficient for each publication; you do not need to publish a copy of the License for every item of Open Game Content in a given publication. You can also use one copy of the License for content on a web site, but if any part of that web site is designed to be downloaded and used separately by a user, you need to provide for an inclusion of the License with that download.
> 
> You cannot merely refer to a web location or an offer to provide the License on request - you must actually include the full text of the License.
> 
> I'm sure there will be other questions that need to be answered. Please let me {EMAIL ADDRESS REDACTED} know what they are, and I will try to create an effective response, ASAP.



(Open Game License v0.1 Simplified)

This would seem to seem to contain a clear statement of intent. Note that Ryan Dancey was vice president in charge of Dungeons & Dragons at Wizards of the Coast when he posted this FAQ, so he may have been in a position to articulate corporate policy at that time. However, the OGF is a separate legal entity to WoTC. 

Something I didn't realize is that early versions of the OGL were marked Copyright 2000, Open Gaming Foundation. I'm not sure when the copyright was reassigned to WoTC.

The FAQ published on the WotC website on  January 26, 2004 contains a number of statements aligned to this document: 



> *Q: Why does Wizards of the Coast hold the copyright to the license?*
> 
> A: Wizards of the Coast wrote the License and wants to control the right to make changes to the License in the future.
> 
> *Q: Does Wizards of the Coast's copyright to the License mean that anything I publish using the License is owned by Wizards of the Coast?*
> 
> A: No. The copyright on the License pertains to the terms of the License itself, not to materials distributed using the License.
> 
> *Q: How can I distribute the License if Wizards of the Coast owns the copyright to the License?*
> 
> A: Wizards of the Coast has granted a free and unrestricted right to distribute exact copies of the License.​



That seems unambiguous. The existence of this FAQ might strengthen arguments based upon reliance.

Ryan Dancey has just updated the OGF website, presumably to clarify the position:


> ​
> *Update January 4th 2023*​It's been nearly 20 years since this site was last updated. During that time there's been a tremendous amount of Open Game Content published; the objectives of the Foundation were exceeded in every way. Open Game Content is now a standard and accepted method of publishing games. Thanks to all who have participated in this great project since its inception.
> This site is not actively maintained (maybe someday!). For now, we've updated the site to use SSL so that if you're visiting using a browser that requires a secure connection you'll be able to use one. We've also trimmed a lot of links to projects and services that are not immediately relevant to the current time.
> We're aware that Hasbro/Wizards of the Coast is considering issuing a new Open Gaming License and we're tracking that process. If and when they do release an authorized update to the OGL, if it remains in compliance with the philosophy of Open Gaming we'll include links to it here on this site.
> The Open Gaming Foundation is a private organization, dedicated to supporting the ideals of the Open Gaming philosophy: That game rules and material that use those rules, should be free to copy, modify and distribute.​


----------



## AbdulAlhazred

pemerton said:


> The fact that Paizo have said nothing significant makes me wonder whether (i) they have had discussions with WotC and are waiting for the next step, or (ii) they are consulting with their own legal team. To me, (i) seems slightly more likely given that we know their are 3PPs under NDAs.



OF COURSE THEY ARE!!!! The fact that they are saying nothing means their lawyers told them to 'shut up', which is exactly what lawyers, rightly, ALWAYS tell their clients to do, like 99.99999% of the time. Being fairly prudent people, they are doing it. I mean, it costs them nothing to wait and see. Frankly, suppose they decided they would just keep using OGL 1.0a under advice, they will NEVER say anything, period. They will just do it. If WotC is really going to sue people for that, then there you go, its still not going to be talked about, and if they aren't, then what does Paizo have to discuss? Some rumors about their competition? I don't think they have a big history of talking about WotC ANYWAY.


----------



## FrogReaver

pemerton said:


> I think this sentence in the article - "One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement." - is a bit misleading from the point of view of addressing technical questions.
> 
> There won't be an update to the OGL v 1.0. OGL v 1.0 can't be updated in the literal sense - what section 9 permits is the use of alternative versions that are promulgated by WotC. This contrasts with (for instance) my contract with my bank, which the bank does have the authority to update while it remains the very same contract.
> 
> And the OGL v 1.0 will not state, of itself, that it is no longer an authorised licence agreement.
> 
> Rather, there will be a term in v 1.1 which says something to the effect that parties to the OGL v 1.1 agree not to use the v 1.0/1.0a licence; and if v 1.1 has an analogue of section 9, which to me seems likely given it will probably be a (quasi-)open copyright licence, that provision may expressly state that v 1.0/1.0a is not an authorised version for the purposes of that provision.
> 
> But no terms of v 1.1 can be binding on anyone who is not a party to it.



Does anything prevent them from providing their notice that they are deauthorizing the OGL 1.0a within the body of the OGL 1.1?

You seem to be thinking they are going to use the 1.1 license in order to get agreement that 1.0a is effectively deauthorized for the OGL 1.1 licensees.  From everything I am seeing they are just going to post that notice in their new license.  Unless there's some legal reason not to do that, then that's what it sounds like they are doing to me.


----------



## Prime_Evil

pemerton said:


> I think this sentence in the article - "One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement." - is a bit misleading from the point of view of addressing technical questions.
> 
> There won't be an update to the OGL v 1.0. OGL v 1.0 can't be updated in the literal sense - what section 9 permits is the use of alternative versions that are promulgated by WotC. This contrasts with (for instance) my contract with my bank, which the bank does have the authority to update while it remains the very same contract.
> 
> And the OGL v 1.0 will not state, of itself, that it is no longer an authorised licence agreement.
> 
> Rather, there will be a term in v 1.1 which says something to the effect that parties to the OGL v 1.1 agree not to use the v 1.0/1.0a licence; and if v 1.1 has an analogue of section 9, which to me seems likely given it will probably be a (quasi-)open copyright licence, that provision may expressly state that v 1.0/1.0a is not an authorised version for the purposes of that provision.
> 
> But no terms of v 1.1 can be binding on anyone who is not a party to it.



I suspect you are right here. If v1.1 of the OGL is like the GSL, acceptance of the license would prohibit you from using OGC licenced under v.1.0a - even if it for a game system unrelated to any WoTC intellectual property. The viral nature of this will be toxic for any publishers who work with multiple systems. Could publishers get around this by creating separate corporate entities to deal with material released under v1.1 of the OGL, firewalling them from other areas of their business?


----------



## pemerton

Prime_Evil said:


> The copy of the OGL available via the Open Gaming Foundation includes the following preamble: "THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST". See Open Game License v1.0a
> 
> This seems to indicate an intention for third-parties to distribute the license.



Agreed. My post 479 suggested an implicit permission - in fact at one point in time it was express.

WotC could retract that permission at any time, as it is purely gratuitous. My post analysed possible arguments that an entitlement to reproduce the text of the licence might survive such a retraction.


----------



## pemerton

Prime_Evil said:


> Could publishers get around this by creating separate corporate entities to deal with material released under v1.1 of the OGL, firewalling them from other areas of their business?



As I posted upthread:


pemerton said:


> That would depend on how the requirement is worded. Eg does it refer to "You", "You and any related entities", etc?


----------



## sigfried

Xyxox said:


> I don't intend to prove his argument wrong because I think there is about a 95% chance it would absolutely win in any court of law in the United States and I agree with it 100%. That's why I ask about the funding because that is what it will take to get it before any court in the United States. Get the money and it's a slam dunk. If the EFF can be brought on board it stands a damn good chance. They have beaten bigger corporations than Hasbro many times before.



I think it depends....
If WOTC is suing you, it doesn't cost you all that much to take it to court.  They are the ones that pay the fees to file the lawsuit and submit most of the motions etc... The defendant has to pay for their legal representation and costs like transportation and so forth. If you have cheap representation or choose to represent yourself, it doesn't cost all that much to get the case into court on your side.

Most folks that get sued don't want to go to court, and some of the things you might want to do to stop it from happening can indeed cost money, filing various motions and the like if you are happy to carry forward to the trial, not so much. (Obviously, there is a time commitment required and that may well have a big financial opportunity cost.) 

WOTC has to spend a lot more to sue you than you have to spend to defend yourself, but they also have a much better chance of kicking your ass if you don't have some stellar legal counsel.  That said, I'm pretty sure if you were the test case for the whole industry, you could probably find some folks willing to chip in for your defense, enough to get decent counsel for the trial and to make sure you follow the correct steps in the process.

I don't think you will find many companies that want to do this, and I don't think WOTC will want to go after some small fry who can afford to say, "naughty word it, my new job is to win this court case and I've got almost nothing to lose here even if they win."


----------



## pemerton

FrogReaver said:


> Does anything prevent them from providing their notice that they are deauthorizing the OGL 1.0a within the body of the OGL 1.1?



Notice to whom? And what do you mean here by "deauthorising"?

To put it another way, what legal power are you envisaging WotC exercising?



FrogReaver said:


> You seem to be thinking they are going to use the 1.1 license in order to get agreement that 1.0a is effectively deauthorized for the OGL 1.1 licensees.



This is what I think will be a term of v 1.1, yes, because it's completely straightforward. And I think it is reinforced by the fact that the v 1.1 seems not to use the term OGC but rather Licensed Content.



FrogReaver said:


> From everything I am seeing they are just going to post that notice in their new license.  Unless there's some legal reason not to do that, then that's what it sounds like they are doing to me.



I don't understand what legal power you are conjecturing WotC will exercise. Are you talking about them trying to revoke all their existing licence agreements?


----------



## Prime_Evil

I suspect that WoTC may have difficulties "extinguishing" the OGL v1/0a but may simply lean on Drivethrurpg / Kickstarter to enforce the usage of v1.1 only. That will kill the legacy licensing arrangements, regardless of the legal position.

I think the new licence will be offered on an opt-in basis, but it will become impossible to publish anything under the old version even if you don't opt in.


----------



## pemerton

Prime_Evil said:


> I suspect that WoTC may have difficulties "extinguishing" the OGL v1/0a but may simply lean on Drivethrurpg / Kickstarter to enforce the usage of v1.1 only. That will kill the legacy licensing arrangements, regardless of the legal position.



That sort of thing seems a possibility, yes. Although depending on the details it might actually get closer to raising competition law concerns. (But a big caveat: my knowledge of competition law is weaker than my knowledge of contract law!)


----------



## Enrahim2

pemerton said:


> The reason for calling it OGL 1.1, as far as I can see, is purely rhetorical.



What is wrong with my reasoning:

The main suspicion seem to be that wizards want to prevent new things to be published under 1.0a
There are as far as I can see nothing we know indicating they will not try to formulate it so that 1.0a is still valid for the content already published under 1.0a.
In this case section 9 of those still valid 1.0a licenses stipulate that you can build on 1.0a content if and only if the new content is an version of OGL.
Everything about this screams to me that what they are trying to do is to lock down all existing 1.0a content so that wizards of the coast get (effectively) exclusive lisence to publish it in any non-static electronic format. In other words they are setting up a royalty free monopoly based 10/20 years worth of content made by 3PP. Calling it OGL is esential for this scheme to work. (IANAL)


----------



## FrogReaver

pemerton said:


> Notice to whom?



Everyone.



pemerton said:


> And what do you mean here by "deauthorising"?



Section 9 says to the licensee: "you may used any authorized version of this License to copy, modify and distribute any open Game content originally distributed under any version of this License".

Since authorization is ambiguous, WOTC would be making the argument that they have sole prerogative in determining what versions of the OGL are currently authorized and which are not.  Contrast with the hypothetical - 'you can use any version of this License that has ever been authorized at the time of your Use to copy, modify and distribute any open Game content originally distributed under any version of this License'.  

*Note I don't think this is a great argument but it's certainly one they can make.



pemerton said:


> To put it another way, what legal power are you envisaging WotC exercising?



Only one that they can argue is implied within the license agreement.



pemerton said:


> This is what I think will be a term of v 1.1, yes, because it's completely straightforward.



It doesn't seem to me to match what we have seen from the leaks.  Also, you could be right, but it feels more like you are saying this is how a reasonable company would likely do things and i'm not sure WOTC is being a reasonable company at the moment.



pemerton said:


> And I think it is reinforced by the fact that the v 1.1 seems not to use the term OGC but rather Licensed Content.



I'm not understanding the significance of this observation



pemerton said:


> I don't understand what legal power you are conjecturing WotC will exercise. Are you talking about them trying to revoke all their existing licence agreements?



If they deauthorize OGL 1.0a for all then it would effectively revoke all their existing license agreements utilizing OGL 1.0a as well.


----------



## pemerton

Enrahim2 said:


> Everything about this screams to me that what they are trying to do is to lock down all existing 1.0a content so that wizards of the coast get (effectively) exclusive lisence to publish it in any non-static electronic format.



What legal technique are you suggesting they are using to do this?

For instance, how do you think they are proposing to retain rights to other's OGC under the OGL v 1.0/1.0a while at the same time terminating those parties' rights under that licence?

I reiterate this post from upthread, which in my view is the most expert posted on this thread:



bmcdaniel said:


> I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR  that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option  is what is happening, but it is possible that option (x) is occuring.


----------



## Prime_Evil

pemerton said:


> That sort of thing seems a possibility, yes. Although depending on the details it might actually get closer to raising competition law concerns. (But a big caveat: my knowledge of competition law is weaker than my knowledge of contract law!)



Even if it is anti-competitive behaviour, I do not think any publisher has the deep pockets necessary to fight that case through the court system. 

I do believe this whole debate is a public relations disaster for WoTC though. It has effectively destroyed the goodwill they accumulated through the 5e era through responsible management of the D&D brand. Most of the gamers I know (which may not be a representative sample) have revised their expectations of OneDnD downwards. But that's not a legal argument.


----------



## pemerton

Prime_Evil said:


> Even if it is anti-competitive behaviour, I do not think any publisher has the deep pockets necessary to fight that case through the court system.



I assume that, in the US, public authorities play a significant role in tackling anti-competitive behaviour. 



Prime_Evil said:


> I do believe this whole debate is a public relations disaster for WoTC though. It has effectively destroyed the goodwill they accumulated through the 5e era through responsible management of the D&D brand.



As per my posts upthread, I'm not so convinced of this. I suspect that for many many people who purchase D&D material because they enjoy playing D&D, this is largely a non-issue.


----------



## Prime_Evil

pemerton said:


> I reiterate this post from upthread, which in my view is the most expert posted on this thread...




I suspect the latter option may be true, but there's no reason they can't combine the two motivations.


----------



## Prime_Evil

pemerton said:


> As per my posts upthread, I'm not so convinced of this. I suspect that for many many people who purchase D&D material because they enjoy playing D&D, this is largely a non-issue.




I'm basing this assumption on the collapse of sales after 4e came out. The market contracted for several years because WoTC lost the confidence of a portion of their fanbase. The terms of the GSL were unacceptable to most publishers. This hurt their bottom line, leading to the premature termination of 4e. 

Maybe the composition of the market has changed to an extent this is no longer a concern. But I don't have any evidence to support this one way or the other. 

(NOTE: This is not a comment on the virtues or failings of 4e, but merely upon the market reaction to it).


----------



## pemerton

FrogReaver said:


> Section 9 says to the licensee: "you may used any authorized version of this License to copy, modify and distribute any open Game content originally distributed under any version of this License".
> 
> Since authorization is ambiguous, WOTC would be making the argument that they have sole prerogative in determining what versions of the OGL are currently authorized and which are not.  Contrast with the hypothetical - 'you can use any version of this License that has ever been authorized at the time of your Use to copy, modify and distribute any open Game content originally distributed under any version of this License'.
> 
> *Note I don't think this is a great argument but it's certainly one they can make.
> 
> <snip>
> 
> If they deauthorize OGL 1.0a for all then it would effectively revoke all their existing license agreements utilizing OGL 1.0a as well.



I don't think it's an argument they can make at all. 

To see why I say that, think through who would they be making it to, and in what context. I mean, suppose that WotC make some public statement purporting to give notice to all OGL v 1.0/1.0a licensees that from hereon in WotC is revoking their rights under that licence by exercise of a power under section 9. (Which is what you are suggesting they might do. There is no difference between what you are calling "deauthorisation" and unilateral revocation of existing licences.)

Then suppose that publishers keep publishing, exercising their rights under the OGL v 1.0/1.0a. And suppose that WotC sues them for copyright infringement, arguing that the infringement is the result of the licence having been retracted by exercise of a power conferred on WotC by section 9. In my view that is a ludicrous scenario, and WotC will not do it.

I think it's clear that section 9 confers a power on WotC - to issue variant licence terms - and confers a permission on licensees - to use those variant terms in their licensing. And that's it.

I'm yet to see an argument that WotC has a power to revoke the contracts unilaterally, but if it purports to do so I'm pretty sure that it won't be by a spurious appeal to a notional power under section 9.

I mean, if WotC argue that the term is ambiguous, then they open themselves up to all the extrinsic evidence as to what the parties understood it to mean. But if they don't, there is no basis at all for their claim to enjoy a power of the sort you're conjecturing they might argue they enjoy.



FrogReaver said:


> Only one that they can argue is implied within the license agreement.



There is no argument I've heard, or can envisage, that section 9 - which refers to WotC publishing updated versions of the licence (ie licences with variant terms) - also by implication confers a power on WotC to revoke existing licences unilaterally.



FrogReaver said:


> It doesn't seem to me to match what we have seen from the leaks.



I don't know what you are thinking of: the leaks I have seen all point to a term of the new licence being an acceptance that no OGC or Licensed Content will be distributed by the party pursuant to the OGL v 1.0/1.0a. 



FrogReaver said:


> I'm not understanding the significance of this observation



It is a further way of making clear that the OGL v 1.1 is not a version of the sort contemplated by section 9 of the OGL v 1.0/1.0a. As @S'mon pointed out in some of his early posts on this issue, if WotC is not clear about this then licensees under the OGL v 1.0/1.0a could claim to be already licensed to use OGC issued by WotC under a different licence, by arguing that it is exactly the sort of variation that section 9 contemplates.


----------



## pemerton

Prime_Evil said:


> I'm basing this assumption on the collapse of sales after 4e came out.



There was no such collapse of sales until WotC stopped producing new material for 4e, at least to the best of my understanding.


----------



## Clint_L

I don't think there is a huge mystery as to why 4e was unsuccessful. We seem to be getting way off topic.


----------



## Enrahim2

pemerton said:


> For instance, how do you think they are proposing to retain rights to other's OGC under the OGL v 1.0/1.0a while at the same time terminating those parties' rights under that licence?



When reading the leak, I was quite certain the leaked "deauthorized" language was only refering to the asymmetry formulation in section 9. Hence the only legal meaning of the term would be that 1.1 content could not be distributed under 1.0a, while 1.0a content could still be freely copied, modified and distributed under 1.1. Under this interpretation 1.0a content would still be permitted used in new 1.0a publications according to section 4 of the lisence.

If this had been the case, it is obvious that wizards would still retain all rights involved. However when no actual lawyers seem to pick up on this to me obvious interpretation, along with a 13th of january deadline floating around without any leaked quotes about the legal formulation around the importance of this date, there seem clear that I am likely missing something.

However even if I accept what seem to be the consensus opinion that wizards try to prevent publication of new 1.0a material, without understanding the legal framework that could possibly support such a claim - I cannot see why refusing anyone to make new 1.0a material would prevent anyone from using existing 1.0a material in 1.1 publications, as that appear to be a logically orthogonal concern.

To illustrate how these are orthogonal, at least for a layman as me, imagine the following mechanism at work: Wizards asserts their copyright to 1.0a, denying anyone to produce new copies of this. That would naievly prevent further 1.0a publications, as the condition in section 10 couldn't be legaly be fulfilled. Meanwhile there would be no obvious legal grounds I could see for section 9 to not still be fully in effect.


----------



## FrogReaver

pemerton said:


> I don't think it's an argument they can make at all.
> 
> To see why I say that, think through who would they be making it to, and in what context. I mean, suppose that WotC make some public statement purporting to give notice to all OGL v 1.0/1.0a licensees that from hereon in WotC is revoking their rights under that licence by exercise of a power under section 9. (Which is what you are suggesting they might do. There is no difference between what you are calling "deauthorisation" and unilateral revocation of existing licences.)
> 
> Then suppose that publishers keep publishing, exercising their rights under the OGL v 1.0/1.0a. And suppose that WotC sues them for copyright infringement, arguing that the infringement is the result of the licence having been retracted by exercise of a power conferred on WotC by section 9. In my view that is a ludicrous scenario, and WotC will not do it.
> 
> I think it's clear that section 9 confers a power on WotC - to issue variant licence terms - and confers a permission on licensees - to use those variant terms in their licensing. And that's it.
> 
> I'm yet to see an argument that WotC has a power to revoke the contracts unilaterally, but if it purports to do so I'm pretty sure that it won't be by a spurious appeal to a notional power under section 9.
> 
> I mean, if WotC argue that the term is ambiguous, then they open themselves up to all the extrinsic evidence as to what the parties understood it to mean. But if they don't, there is no basis at all for their claim to enjoy a power of the sort you're conjecturing they might argue they enjoy.
> 
> There is no argument I've heard, or can envisage, that section 9 - which refers to WotC publishing updated versions of the licence (ie licences with variant terms) - also by implication confers a power on WotC to revoke existing licences unilaterally.
> 
> I don't know what you are thinking of: the leaks I have seen all point to a term of the new licence being an acceptance that no OGC or Licensed Content will be distributed by the party pursuant to the OGL v 1.0/1.0a.
> 
> It is a further way of making clear that the OGL v 1.1 is not a version of the sort contemplated by section 9 of the OGL v 1.0/1.0a. As @S'mon pointed out in some of his early posts on this issue, if WotC is not clear about this then licensees under the OGL v 1.0/1.0a could claim to be already licensed to use OGC issued by WotC under a different licence, by arguing that it is exactly the sort of variation that section 9 contemplates.



Let me phrase it this way.  Take the word 'authorized' out of section 9.  If our interpretation is correct does any meaning change in that section?  Thus, what 'work' is the word authorized doing in that section and why does the 2nd time that section 9 mentions version is the phrase authorized not included?

My understanding of contract law is that when you include words they should normally change the meaning.  Authorized if read our way just doesn't appear to be doing that.  

Maybe WOTC's potential argument here while not flawless is a bit better than we are giving them credit for?


----------



## David Spake

First off, I want to thank everyone for their reasoned, coherent posts.  This thread, with it's plethora of knowledgeable people posting their best 'experienced' *opinion* here has done a world of good to my overall outlook.  Of course this is a fluid situation, and nobody but NOBODY knows what the lay of the land is (other than perhaps WoTC/Hasbro), so an observation, and a few questions.

Observation: I saw a post over on Reddit from a Paizo 'Design Manager' for PF2E (dated about 10 months ago).  From the tone of that thread, I got the impression that Paizo was aware of issues with the OGL, or simply uneasy with it.  The poster bluntly said "_Not using the OGL was a serious consideration for PF2_".  That the decision to keep using the OGL came down to keeping down costs (extra copyright/trade dress scrutiny requirements), and other reasons (3PP Comfort, etc..).  Unfortunately instead of seeing the license for the sheer academic compare/contrast interests, I fear WoTC's actions have now made it more likely to be seen for simple 'CYA' reasons.
Then when I saw the post post about WoTC/Hasbro going nuclear though, I had to wonder... There are/were lots of former WoTC people at Paizo, and I'd have no problem believing that if WoTC/Hasbro was even glancing at a 'nuclear' option approach, Paizo would have probably heard about it.  I also have no hesitation in believing Paizo has a "Wing Defense Plan R"(*) directive somewhere in their headquarters too.

Anyone feeling like giving a wild a** guess (WAG) on what kind of things would/should we expect from a publisher when they move from one license to another (GPL/Paizo/OpenLicense x.x/whatever).  Does the producer simply issue an update to their existing product, including the new license along side the OGL? Or would they need to make a material/substantive change to their current product before releasing it as a new version/edition with the new license and no OGL?

Secondly, what's a good WAG on the timeframe here? Something we'll see go down in the next 3-4 months, or does WoTC keep treating this as a FUD campaign, and drag it out as long as possible? I (like many here) think the longer this goes on, the worse the poisoning damage to WoTC, but then again I'm occasionally accused of being rational. 

(*) Reference to the 'Wing Attack Plan R' in Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.


----------



## kjdavies

pemerton said:


> I don't think anyone thinks the OGL v 1.1 is going to be an update in the sense intended by section 9 of the OGL v 1.0a, do they? That seemed to be ruled out as soon as the press release was issued last month.



Eh... when something goes from version 1.0a to 1.1, it seems like an update to the parent item.

I mean, if I published a piece of software called Organized Gaming Library and released v1.0a, and some time -- perhaps a long time, I'm a busy person -- related Organized Gaming Library v1.1, people could reasonably expect this to be an update to the same program.

Unlike Game Sorting Library v4... Game Sorting Library v4 might do much the same thing, or just sound like maybe it does, but it's unlikely people would expect it's an update to Organized Gaming Library v1.0a.

Now, if I published Organized Gaming Library v1.0a some time ago and then released Organized Gaming Library v1.1 and said it's _not_ an upgrade, but you can either switch to and continue organizing your gaming library _or_ stop organizing your gaming library, but either way cannot continue using the old version... I think my user base might be some combination of confused, upset, and angry. Even if I was entirely clear in my notice that this... not update, this new version, would do that.


----------



## kjdavies

pemerton said:


> What do you mean by _OGL v 1.0a is revoked_? As I've posted, in this and other threads, that phrase does not have any determinate legal meaning.
> 
> In my post to which you replied, I already said what I think happens if WotC ceases to offer to license its SRD(s) under the terms of the OGL: although it's not clear (as @bmcdaniel said), I think one plausible view is that Paizo retains its right, conferred by its contract with WotC the terms of which are set out in the OGL, to sub-license WotC's OGC. But my view about this is tentative. I don't think you're going to get a more certain view without getting legal advice!
> 
> If WotC finds some way - which few legally trained people seem to think exists, but the OP of this thread is one of those few - to actually revoke its existing licence agreement with Paizo, then Paizo would no longer have permission from WotC to publish those licensed works. If it continued nevertheless to do so, then as I posted upthread it would need to be ready to argue that its works do not infringe any WotC-owned copyrights.



This uncertainty is fundamental to the current unrest, I think.

If WotC is saying "we are no longer offering open content under v1.0a but those who are current licensees can continue as they were, including the sublicensing and producing new works because that was the agreement we had", I'm content. Bit of a bummer for those who would have wanted to use open content directly from WotC, but they can still be sublicensed by someone who already a licensee. (This is probably hard to police, actually... but not my problem.)

If what they're saying is that existing agreements are ended, that makes things way less clear and much more disruptive.


----------



## kjdavies

pemerton said:


> I think you may have lost track of the scenario under discussion? When you talk about "accepting the licence" I assume you mean entering into a licence agreement with WotC; but I was talking about a scenario in which someone with no licensing relationship to WotC nevertheless uses the OGL to license their own work.



(much removed above because I concur that I was mixing several topics in a way that was unclear)

Short form, I was trying to understand several potential scenarios. Short answer is almost entirely "it depends, and even then it's not clear".


----------



## kjdavies

pemerton said:


> What prohibits you using a different licence is not section 9 but sections 2 and 4.
> 
> Section 9 does not impose any restriction that I can see. It seems to me to confer a permission - namely, (i) on licensees who (as licensors) go on to license OGC to further parties, to depart from the requirement set out in sections 2 and 4 provided that the variations they make appear in "authorised updates" issued by WotC.
> 
> The practical effect of this permission should be to create a "race to the top" where "the top" is defined by the interests of parties both as licensors and licensees. Everyone will use the version of the licence that they take to optimise their interests in these two respects.



I believe this was the intent and what those using the OGL understand.

Which is why, I would think, WotC declared in v1.1 that v1.0a is 'unauthorized'.

My understanding of 'authorized' in this context is along the lines of 'issued by an entity with the authority to do so. That is, you or I can't issue an update to OGL because I'm not with the right organization, and the janitor at WotC can't because he doesn't have the authority in the organization, etc. It can only be done by or at the direction of an appropriate officer of WotC, sort of thing. On the other hand, WotC seems to be saying either that OGL v1.0a is not authorized for use with this content (least bad interpretation) or 'OGL v1.0a is no longer a valid license' (much more bad).


----------



## kjdavies

pemerton said:


> I think not quite - depending on who you mean by "third party".
> 
> Given that WotC has a licence agreement with Paizo (on the terms set out in the OGL v 1.0/1.0a), and that agreement requires Paizo both to (i) reproduce the text of the OGL, and (ii) requires Paizo to require sub-licensees to reproduce the text of the OGL, then it must be the case that WotC has authorised that reproduction of its copyrighted text.
> 
> Now if WotC is trying to argue that it can revoke some or all of the rights it has conferred on Paizo, it will also (in passing) be arguing that it can revoke that permission granted to Paizo. But in such circumstances losing the right to reproduce the text of the OGL would be the least of Paizo's worries! -because Paizo only needs to use such a right if it also has the more important rights (ie to use and distribute WotC's OGC) that WotC has granted on it as a party to the OGL.
> 
> But my post 479 was considering a scenario in which a RPG publisher who is not WotC, and is not in a licensing arrangement with WotC, wants to licence its own copyrighted work to other parties under a licence having the exact terms of the OGL. (In other words, it wants to create its own ecology of OGC.) That person is a stranger to WotC's licensing arrangements with Paizo and sub-licensees who enter into agreements with Paizo. So they don't have the same argument for permission to reproduce WotC's copyrighted text. In my post I tried to suggest some other bases on which they might nevertheless be able to assert such a right.



BTW, I just checked the Legal file from the RSRD (3.5 SRD). It includes:


> The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.



I take this to mean that while I can (in fact, must) copy the text of the OGL when I publish open content, this does not give me the right to copy the text of the OGL _unless_ it is so I can publish licensed open content. Though I do also see (from the 2004 OGL FAQ, via Wayback Machine)


> *Q: How can I distribute the License if Wizards of the Coast owns the copyright to the License?*
> 
> A: Wizards of the Coast has granted a free and unrestricted right to distribute exact copies of the License.​



I don't see where they did so, except here, but it appears to be a thing.

And @Prime_Evil found and shared better evidence already.



Prime_Evil said:


> The copy of the OGL available via the Open Gaming Foundation includes the following preamble: "THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST". See Open Game License v1.0a
> 
> This seems to indicate an intention for third-parties to distribute the license.


----------



## S'mon

pemerton said:


> PF1 is a separate RPG from D&D. So is C&C, and arguably so are OSRIC, Swords & Wizardry, etc. But publishing any of them without a licence from WotC would (in my view) risk losing a claim to copyright infringement. I'm not expert enough to say how big the risk is, but clearly greater than - eg -the risk of Vincent Baker losing a claim to copyright infringement by Apocalypse World, and even than the chance of Luke Crane et al losing such a claim of infringement by Torchbearer.




Looking at UK cases on non-literal infringement such as Herbert v Ravenscroft _The Spear_ case and the Baigent & Leigh v Random House (Dan Brown) _Da Vinci Code_ case, I'd be fairly confident in saying that in UK Copyright Law Torchbearer definitely falls on the _Da Vinci Code_ side of the line, non-infringing, whereas the retro-clones fall on the Ravenscroft side, infringing. Worse, if they still contain any actual 3e SRD text then without the OGL they are literally infringing. It may well be possible to publish a mechanical clone of D&D in the fantasy genre without infringing copyrights, using only non-protected ideas & mechanics, but that's a distinctly tricky operation. For a start I think you'd want to do a kind of white room operation where the game was written without any copies of D&D on hand, to avoid literal infringement. Even then you could well take too much of the structure and expression of a D&D version. I think you really need to start with a kind of clean text describing a fantasy world/genre, no rules stuff, then add in rules mechanics at the end. As an academic it would be very interesting to see the court judgement on that!  But far from ideal when you have the OGL & SRD.


----------



## S'mon

sigfried said:


> WOTC has to spend a lot more to sue you than you have to spend to defend yourself, but they also have a much better chance of kicking your ass if you don't have some stellar legal counsel.  That said, I'm pretty sure if you were the test case for the whole industry, you could probably find some folks willing to chip in for your defense, enough to get decent counsel for the trial and to make sure you follow the correct steps in the process.




That matches my experience and what I've seen.
Lawfare threats of spurious litigation forcing compliance are definitely a real thing in the USA; Patent Trolls are an obvious example.  But I don't see how WoTC could force the defendant/respondent to spend millions pre-trial; and AFAICT that did not happen in the GW vs Chapter House saga where the issues on copyright were far more complex than the simple question here: non-terminability of a perpetual licence.


----------



## Prime_Evil

@S'mon - what's your opinion on the likely impact on third-party licensees using the OGL for game systems unrelated to any WoTC IP? Are these licensing arrangements extinguished too? I'm thinking of things like FATE, OpenD6, Cepheus Engine, Legend, OpenQuest, etc.


----------



## S'mon

Looks like Tenkar is putting out his minamalist 'S&W Continual Light' game as non-SRD, non-OGL. Time to Scrape Out the SRD Parts of Continual Light
Continual Light AFAIR contains only the very barest, non-protectable D&D style mechanics, making it potentially a good option for other publishers wanting to write fantasy campaign settings, monster books, adventures, etc without needing the OGL & SRD.

Current version here - Swords & Wizardry Continual Light - Tenkar's Tavern Gamen | DriveThruRPG.com - check the free preview.

Edit: I do think that legally you are still safer using the OGL than going this way. The OGL gives you a contract defence vs claims of copyright infringement, and IMO contract law is more certain than copyright law (I teach both). But practically & commercially I understand why publishers now feel more afraid of using the OGL than of relying on the limits of copyright law.


----------



## S'mon

Prime_Evil said:


> @S'mon - what's your opinion on the likely impact on third-party licensees using the OGL for game systems unrelated to any WoTC IP? Are these licensing arrangements extinguished too? I'm thinking of things like FATE, OpenD6, Cepheus Engine, Legend, OpenQuest, etc.




As far as I can tell, OGL 1.0 authorises its own use for this purpose. AFAICT existing publishers should be ok, and future publishers can use the OGL from one of those existing publishers. These would be sub-licences.

The OGL definitely does not require that you use material from the SRD. You can use it with completely original material.


----------



## Olrox17

S'mon said:


> That matches my experience and what I've seen.
> Lawfare threats of spurious litigation forcing compliance are definitely a real thing in the USA; Patent Trolls are an obvious example.  But I don't see how WoTC could force the defendant/respondent to spend millions pre-trial; and AFAICT that did not happen in the GW vs Chapter House saga where the issues on copyright were far more complex than the simple question here: non-terminability of a perpetual licence.



It some 3pp decided to band together and produce a D&D "clone" game, it would probably be good idea to do that as a EU based brand new company, right? It should make waging lawfare for WotC more difficult.


----------



## S'mon

Olrox17 said:


> It some 3pp decided to band together and produce a D&D "clone" game, it would probably be good idea to do that as a EU based brand new company, right? It should make waging lawfare for WotC more difficult.




Companies based outside the USA are in a better position re lawfare, yes. Civil Law jurisdictions like Germany tend to be slow, but they have the advantage of lower legal fees and especially that they emphasise good faith & intent in contract dealings, rather than literal intrerpretation of terms. If WoTC might have say an 8% chance to 'revoke the OGL' in the England & Wales High Court, I think that would fall to say 4% in France Germany or Italy.


----------



## pemerton

FrogReaver said:


> Let me phrase it this way.  Take the word 'authorized' out of section 9.  If our interpretation is correct does any meaning change in that section?  Thus, what 'work' is the word authorized doing in that section and why does the 2nd time that section 9 mentions version is the phrase authorized not included?



Here is the text of section 9:

Wizards or its designated Agents may publish updated versions of this License. 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.​
"Authorised" means published with appropriate authority, ie by WotC or one of its designated agents. There is no need to use the word "authorised" in the last occurrence of "version" because it would be tautologous - OGC can by definition only be distributed under an authorised licence, because otherwise it wouldn't be OGC (which is a category of content constituted by the operation of a valid licence along the lines of the OGL).

Thus, the meaning of the provision is:

WotC or its designated agents may publish versions of this Licence that contain different terms, and you may use this version or any other such version to [use] any OGC originally distributed under this Licence or any other such version.​
As I've posted already, this confers a power on WotC, to make available OGLs with variant terms, and any licensee can choose from among the candidate OGLs which one to use when they use OGC.

I mean, if someone else has a credible alternative construction I'm happy to hear it, but what I've set out just above seems reasonably straightforward to me. 



FrogReaver said:


> My understanding of contract law is that when you include words they should normally change the meaning.  Authorized if read our way just doesn't appear to be doing that.



I've just explained what work it is doing.



FrogReaver said:


> Maybe WOTC's potential argument here while not flawless is a bit better than we are giving them credit for?



My view is that there is no argument of the sort you are positing.

If WotC wish to argue - implausibly in my view - that they can unilaterally revoke all the existing licences, they will not do so by pointing to section 9 which says nothing about revocation. They will do so by pointing to the sorts of general considerations concerning the interpretation of licences that are set out in the OP of this thread.


----------



## pemerton

David Spake said:


> Anyone feeling like giving a wild a** guess (WAG) on what kind of things would/should we expect from a publisher when they move from one license to another (GPL/Paizo/OpenLicense x.x/whatever).  Does the producer simply issue an update to their existing product, including the new license along side the OGL? Or would they need to make a material/substantive change to their current product before releasing it as a new version/edition with the new license and no OGL?



I'll quote S'mon from another thread, and just upthread:


S'mon said:


> The *text* of the SRD is fully copyright protected.





S'mon said:


> Looking at UK cases on non-literal infringement such as Herbert v Ravenscroft _The Spear_ case and the Baigent & Leigh v Random House (Dan Brown) _Da Vinci Code_ case, I'd be fairly confident in saying that in UK Copyright Law Torchbearer definitely falls on the _Da Vinci Code_ side of the line, non-infringing, whereas the retro-clones fall on the Ravenscroft side, infringing. Worse, if they still contain any actual 3e SRD text then without the OGL they are literally infringing. It may well be possible to publish a mechanical clone of D&D in the fantasy genre without infringing copyrights, using only non-protected ideas & mechanics, but that's a distinctly tricky operation. For a start I think you'd want to do a kind of white room operation where the game was written without any copies of D&D on hand, to avoid literal infringement. Even then you could well take too much of the structure and expression of a D&D version. I think you really need to start with a kind of clean text describing a fantasy world/genre, no rules stuff, then add in rules mechanics at the end. As an academic it would be very interesting to see the court judgement on that!  But far from ideal when you have the OGL & SRD.


----------



## Art Waring

Prime_Evil said:


> I suspect that WoTC may have difficulties "extinguishing" the OGL v1/0a but may simply lean on Drivethrurpg / Kickstarter to enforce the usage of v1.1 only. That will kill the legacy licensing arrangements, regardless of the legal position.
> 
> I think the new licence will be offered on an opt-in basis, but it will become impossible to publish anything under the old version even if you don't opt in.



Back on topic, this is one of the big concerns going forward. 

Regardless of the legal arguments, wotc could very well go directly to platforms like kickstarter and get them to simply prohibit 1.0a material from seeing the light of day.


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## S'mon

Re publishing without OGL, fine for eg Yoon-Suin, but personally I don't really see how Paizo's Golarion can work without the OGL. If James Bond is copyright protected (per _MGM v Honda_) then surely Aboleths are copyright protected too. Paizo would need to go over Golarion scrubbing every unique-to-D&D monster taken from the 3e SRD. Spells and magic items would need a look too. Character class design & structure is iffy, IMO. There's a huge amount there that the OGL shields from liability.


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## pemerton

kjdavies said:


> Eh... when something goes from version 1.0a to 1.1, it seems like an update to the parent item.



In this case there is no "parent item", and nothing is "going" from version 1.0a to 1.1.

These are just names given to privately-drafted instruments. WotC could call the instrument whatever it wants.

The issue of whether or not it is a "version" within the meaning of section 9 of the OGL v 1.0/1.0a will depend on its terms. Given what WotC has said in its press release, and given the leak, I think it is pretty clear that v 1.1 is not an "update" to anything. It is a distinct licence that will not be part of the OGL v 1.0/1.0a ecosystem.



kjdavies said:


> I mean, if I published a piece of software called Organized Gaming Library and released v1.0a, and some time -- perhaps a long time, I'm a busy person -- related Organized Gaming Library v1.1, people could reasonably expect this to be an update to the same program.



I'll take your word for that. I don't know much about software. I'm talking about contract law.

The OGL contains no provision for its own updating. Section 9 is not such a provision (despite using the word "update"). What it permits is (i) for WotC to issue new licences which (ii) licensees are free to pick and choose from when they use OGC.



kjdavies said:


> Now, if I published Organized Gaming Library v1.0a some time ago and then released Organized Gaming Library v1.1 and said it's _not_ an upgrade, but you can either switch to and continue organizing your gaming library _or_ stop organizing your gaming library, but either way cannot continue using the old version... I think my user base might be some combination of confused, upset, and angry. Even if I was entirely clear in my notice that this... not update, this new version, would do that.



Sure, OK? Again, I have no expertise in market responses to software variations. I will say that when my computer updated itself form Windows 8 to Windows 10 (? or something like that - I'm remembering an event from years ago) I didn't get angry, even though it seemed to me that what had happened was a replacement of my Windows version which meant I could no longer use the old version.

But anyway, we're not talking here about software naming and marketing practices. We're talking about contract law.



kjdavies said:


> I believe this was the intent and what those using the OGL understand.
> 
> Which is why, I would think, WotC declared in v1.1 that v1.0a is 'unauthorized'.
> 
> My understanding of 'authorized' in this context is along the lines of 'issued by an entity with the authority to do so. That is, you or I can't issue an update to OGL because I'm not with the right organization, and the janitor at WotC can't because he doesn't have the authority in the organization, etc. It can only be done by or at the direction of an appropriate officer of WotC, sort of thing. On the other hand, WotC seems to be saying either that OGL v1.0a is not authorized for use with this content (least bad interpretation) or 'OGL v1.0a is no longer a valid license' (much more bad).



Until the whole text of v 1.1 is seen, we can't know what role "authorisation" plays under that licence, and hence what it means for that licence to state that OGL v 1.0/1.0a is not an authorised licence agreement. (I doubt very much that the formal contractual text will use the phrase "no longer".)

You say "WotC seems to be saying either that OGL v1.0a is not authorized for use with this content (least bad interpretation) or 'OGL v1.0a is no longer a valid license' (much more bad)", but there's no reason I can see to think that they are saying either of those things.

WotC has given an outline of the content of their draft OGL v 1.1, and have indicated that under that licence, v 1.0/1.0a will not be an authorised licence. So the most obvious conjecture, I think, is that the OGL v 1.1 is going to be a (quasi-)open copyright licence, and hence will have a provision similar to section 9 of OGL v 1.0/1.0a, and furthermore will expressly state that v 1.0/1.0a is not an authorised version of the licence for the purposes of that provision.

Whether or not that is a bad thing is not a legal question, and I express no opinion on it. My only point is that it is neither of the alternatives that you are putting forward.


----------



## Malchor Flubbit

pemerton said:


> "De-authorise" doesn't mean anything in the abstract, and I would be very surprised if that phrase appears in v 1.1. (It is not part of the leak that I saw: We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!).
> 
> If v 1.1 describes v 1.0/1.0a as not an authorised licence agreement, that will have meaning only in the context of the rest of the contract, which will explain the significance of a licence being authorised or not authorised.
> 
> Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.



Layman here, however looking at the www.opengamingfoundation.org site using the wayback machine on archive.org shows there were early drafts posted for comment (
example: OPEN GAME LICENSE (Simplified), Version .02). Was the intent of "authorized" to differentiate between the draft version and a version actually put in use?


----------



## pemerton

S'mon said:


> personally I don't really see how Paizo's Golarion can work without the OGL. If James Bond is copyright protected (per _MGM v Honda_) then surely Aboleths are copyright protected too. Paizo would need to go over Golarion scrubbing every unique-to-D&D monster taken from the 3e SRD. Spells and magic items would need a look too. Character class design & structure is iffy, IMO. There's a huge amount there that the OGL shields from liability.



I'm mostly just QFT, but also want to elaborate a little bit.

I think some of this discussion is really suffering from a lack of focus on the clear legal issues, and associated risks.

Also, some posters are writing as if this is mostly about corporate or commercial morality, and as if the OGL was a type of gratuity that WotC bestowed, thus creating trust and confidence; and is now cruelly removing in an unfair way. But that sort of moralised framework isn't useful for analysis, in my view. The OGL was a framework for vesting both WotC and the other parties to it with contractual obligations, contractual entitlements, and contractual powers. 

With that framework for analysis in mind: a lot of people, it seems to me, have misinterpreted the legal significance of the leaked information because (to be a bit blunt) they don't understand the legal framework that the OGL operates within - ie basic principle of private law agreement-making and interpretation. Because they read the OGL as a statute, rather than a private law instrument, they then read the leaked stuff from WotC through that lens and see "Oh no - the OGL is going to be 'de-authorised'!"

Whereas once you look at the leaks through a private law lens, the most natural conjecture is that WotC wants to try an alternative but somewhat parallel path to the GSL - they still want a quasi-open copyright licence with a real SRD as its subject-matter, rather than a trademark and trade-dress licence (which is basically what the GSL was). This will require a parallel notion to OGC (they seem to have settled for the rather boring Licensed Content) and also a parallel clause to the current section 9 (allowing new licences to be issued so that publishers can "race to the top"); but for the royalty scheme to work, they will need to wall off this new ecosystem from the existing one (where the "race to the top" would always take publishers to the royalty-free OGL v 1.0/1.0a) and therefore will need a provision in the new licence that makes it clear that the old licence is not authorised for the distribution etc of new-licence Licensed Content.

It also seems possible, likely even though not certain, that they will have a GSL-style "poison pill" that means once you come into the new ecosystem your promise to leave the old one behind, to some extent at least, perhaps altogether.

And it seems pretty clear that they will revoke their standing offer under the current licence in respect of the current SRD.

This does create some legal question-marks, like the status of existing licensees authority to issue future sub-licences in respect of that current SRD content. We can put forward plausible conjectures (ie that that power survives the revocation of the offer, because it is part of the grant under the existing licence) but given that @bmcdaniel said it's not clear, I'm not prepared to be anything like definitive on this.

I think we can also say it's unlikely that WotC is going to try and terminate, unilaterally, all existing agreements, given that it seems to lack any power to do so. Though the OP disagrees, and so "unlikely" isn't the same as "it's certain they won't". But if they tried to do this, an existing licensee can sit tight on the rights they are confident they still enjoy, and wait for WotC to commence against them. And then plead their licence in their defence.

The idea that the best way forward is to run away from the OGL - which in fact, as you explain, opens up a far greater risk of genuine infringement of WotC's IP claims - is in my view rather dubious.


----------



## pemerton

Malchor Flubbit said:


> Layman here, however looking at the www.opengamingfoundation.org site using the wayback machine on archive.org shows there were early drafts posted for comment (
> example: OPEN GAME LICENSE (Simplified), Version .02). Was the intent of "authorized" to differentiate between the draft version and a version actually put in use?



I don't believe so.

The word "authorised" means, in the abstract, "done with authority". In the OGL, it appears in the second sentence of section 9, after the first sentence refers to WotC or its agents issuing new licences (so-called "updates"). The word authorised in the second sentence is harking back to that first sentence - an _authorised version_ is a licence produced by WotC or its agents.


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## Enrahim2

pemerton said:


> The issue of whether or not it is a "version" within the meaning of section 9 of the OGL v 1.0/1.0a will depend on its terms. Given what WotC has said in its press release, and given the leak, I think it is pretty clear that v 1.1 is not an "update" to anything. It is a distinct licence that will not be part of the OGL v 1.0/1.0a ecosystem.



If not taking into consideration the highly problematic use of the word "deauthorized": What is there there in the press release/leak that make you think wizards do not want to be part of the ogl1.0a ecosystem in the sense of allowing things to be published under 1.1 using material from 1.0a?


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## estar

I have a simple question about the requirement of adding the term irrevocable to make a license like the GPL or OGL truly unable to be revoked. What is the court case that decided this in various common law jurisdictions?

I was told that this was an addition added only in the late 2000s.

And if that was the case, why? What were the circumstances that led the courts to rule this way? Because it is my understanding courts don't like to create sweeping changes. Instead, if they find a corner situation not handled by existing jurisprudence they tend to craft a ruling to handle that situation and no more.


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## S'mon

pemerton said:


> This does create some legal question-marks, like the status of existing licensees authority to issue future sub-licences in respect of that current SRD content. We can put forward plausible conjectures (ie that that power survives the revocation of the offer, because it is part of the grant under the existing licence) but given that @bmcdaniel said it's not clear, I'm not prepared to be anything like definitive on this.




Given the wording of the OGL I'm a bit more confident than you that *the right to sub-licence for existing licencees survives termination of the offer to licence*. Certainly that is what the creators of the OGL intended, and I believe that is what they achieved. The OGL does of course say that sub-licences survive termination of a licence. I'm not sure if bmcdaniel analysed that section.

Certainly I admit that from his posts he seems much more of an expert on US contract law than you or I  - and if he came out strongly against that position for some reason, I'd take that seriously. But I got the impression he simply wasn't speaking on that matter.


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## Xyxox

estar said:


> I have a simple question about the requirement of adding the term irrevocable to make a license like the GPL or OGL truly unable to be revoked. What is the court case that decided this in various common law jurisdictions?
> 
> I was told that this was an addition added only in the late 2000s.



EVERY early version of open source software licensing used the term perpetual. Ryan Dancey and WotC/TSR chose to use that licensing as a model for the OGL. As things changed, attorneys determined the use of the word irrevocable was a better way to define the license lives forever and cannot be revoked. This happened with GPL v3 on June 29, 2007 which is the earliest use of the term I can find in open source software licensing. The term perpetual used in earlier versions of the licensing has still held up, though.


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## pemerton

Enrahim2 said:


> If not taking into consideration the highly problematic use of the word "deauthorized"



Who used this word? In what I have seen, the leak identifies as one term of the new OGL that the existing OGL is not an authorised licence agreement.

I've posted not far upthread (posts 560 and 562) what I think the most natural way is to make sense of that.



Enrahim2 said:


> What is there there in the press release/leak that make you think wizards do not want to be part of the ogl1.0a ecosystem in the sense of allowing things to be published under 1.1 using material from 1.0a?



Publishers who have licensed their work under the OGL v 1.0a oblige future licensees to conform to the terms of that licence. Section 9 allows a future licensee to use any authorised licence to use OGC. So the only way to bring OGC into the new scheme that I can see is to make v 1.1 an authorised licence for existing section 9 purposes. But that would then mean that existing licensees (plus future sub-licensees of those existing licensees) could use new OGC under the existing OGC (and presumably would do so, so as to avoid the royalty obligation).

So to me it seems that WotC must create a new ecosystem. I'm calling it (quasi)open because in structural terms it seems they want it to work something like a viral open licence, but with reporting and royalty obligations that are not part of an open licence scheme.


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## S'mon

estar said:


> I have a simple question about the requirement of adding the term irrevocable to make a license like the GPL or OGL truly unable to be revoked. What is the court case that decided this in various common law jurisdictions?
> 
> I was told that this was an addition added only in the late 2000s.




Despite searching, I've not been able to find a clear US case on this. Indeed instead I've actually found US sources referencing the UK case I *did* find - _BMS v AB Agri (2010). _This decision seems well within mainstream jurisprudence. It says that the meaning of Perpetual depends on the context, and that Perpetual does not always mean irrevocable. I can see why this would encourage people to put Irrevocable in their contract drafts.

Here's the abstract I got from Westlaw:

*BMS Computer Solutions Ltd v AB Agri Ltd*
No Substantial Judicial Treatment
Court
Chancery Division
Judgment Date
*10 March 2010*
Where Reported
[2010] EWHC 464 (Ch)
[2010] 3 WLUK 294
Judgment
Subject
Contracts
Other related subjects
Information technology
Keywords
Licensing agreements; Technical support; Termination; Variation
Judge
Sales J
Counsel
For the applicant: Vernon Flynn QC, Jonathan Hill.
For the respondent: Neil Kitchener QC, Philip Roberts.
Solicitor
For the applicant: Greene & Greene (Bury St Edmunds).
For the respondent: Addleshaw Goddard.

Case Digest
*Summary
A variation to a software licensing agreement to make it perpetual rather than of limited duration extended the original agreement
rather than superseded it. The termination provisions in the original agreement had not been expressly deleted and they continued
to have effect.*

Abstract
The applicant computer software business (B) applied for summary judgment on two points in a claim it had brought against
the respondent licensee of its software (L).
B had entered into a licence agreement licensing a predecessor company of L to use a software package for its animal feed
mill. The licence agreement included provisions as to its termination and stated that it would expire after 10 years unless it was
terminated earlier. On the same date, the parties entered into a technical support agreement, which also contained provisions as
to its termination. The licence agreement required the support agreement to be kept in place, otherwise the licence agreement
would terminate. By a variation agreement some years later, the licence and support agreements were novated to take effect
as licence and support agreements between B and L. The variation agreement stated that the licence would be extended to
be a "perpetual licence usable ... at all [L's] operations ... up to a maximum aggregate annual tonnage". It further provided
for payments to be made in respect of tonnage above the maximum, and that new licence and support agreements were to be
negotiated for all non-organic tonnage growth. L gave notice to terminate the support agreement as it was developing its own
software, but it asserted that its licence to use B's software continued, contrary to B's contention that continuation of the licence
was conditional on the support agreement continuing. L had also used the software at an additional mill without negotiating
new licence and support agreements. The annual tonnage of compound feed of L's operations remained less than the maximum.
B made its application on the issues of (i) whether, on the construction of the three agreements, the licence had been terminated,
notwithstanding its description in the variation agreement as "perpetual"; (ii) whether L was required to obtain a further licence
in respect of the additional mill.
Held
Application granted.
(1) The licence had been terminated. *"Perpetual" had different shades of meaning, including "incapable of being brought to an
end" and "of indefinite duration, but subject to any contractual provisions governing termination". The latter interpretation of
"perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement
and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L
terminated the support agreement, it also terminated the licence. The variation agreement had plainly not been intended wholly
to displace the licence agreement: it stated that the licence would be extended rather than replaced.* That indicated that the
licence referred to in the variation agreement was subject to the same termination provisions as in the licence agreement. The
fact that the variation agreement did not refer to the termination provisions in the licence and support agreements indicated that
those provisions were intended to continue in force. Further, the termination provisions were very important terms: if the parties
had intended to delete them, they would have referred to them in terms to make that intention clear rather than leaving it to be
inferred from the use of "perpetual", a term of uncertain meaning. There was also a clear commercial need for the termination
provisions to continue to operate since otherwise there would be no mechanism to bring potentially onerous obligations under
the agreement to end. (2) Use of the software to produce feed above the maximum tonnage was clearly contemplated as being
authorised under the variation agreement, since it had made provision for the additional payments. The maximum tonnage figure
did not therefore provide a limit on the extent of the licence granted by B when L's business grew or was added to. It would
not be commercially realistic to suppose that the parties intended that there should be no protection for B if L expanded its
activities. It was possible and necessary to interpret the variation agreement by giving it its ordinary and natural meaning so as
to require new licence and support agreements to be negotiated for all non-organic tonnage growth.
BMS Computer Solutions Ltd v AB Agri Ltd, 2010 WL 783753 (2010)
© 2023 Thomson Reuters. 2


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## pemerton

S'mon said:


> The OGL does of course say that sub-licences survive termination of a licence. I'm not sure if bmcdaniel analysed that section.



It does, and I don't think he did.

But my view is that it's highly arguable that the reference there to survival is only a reference to survival in the event of termination for breach. Again, I don't think this is definitive! But I'm thinking about arguments in similar cases of construction of public law instruments (statutes and constitutions), and I don't think there is anything distinctive about the public law context that would preclude those sorts of arguments being brought to bear here.



S'mon said:


> Certainly I admit that from his posts he seems much more of an expert on US contract law than you or I  - and if he came out strongly against that position for some reason, I'd take that seriously. But I got the impression he simply wasn't speaking on that matter.



Fair enough. I'm just being cautious! And not making strong claims when I'm not fully confident.

I like to think this gives those strong claims I _do_ make - like rejection of the whole fraud notion in the other thread, and my doubts that any wholesale revocation is possible - more weight!


----------



## pemerton

estar said:


> I have a simple question about the requirement of adding the term irrevocable to make a license like the GPL or OGL truly unable to be revoked. What is the court case that decided this in various common law jurisdictions?
> 
> I was told that this was an addition added only in the late 2000s.
> 
> And if that was the case, why? What were the circumstances that led the courts to rule this way? Because it is my understanding courts don't like to create sweeping changes. Instead, if they find a corner situation not handled by existing jurisprudence they tend to craft a ruling to handle that situation and no more.



Just adding to @S'mon's reply:

There doesn't need to be a case establishing a "requirement" - it can be enough that a case expressed a view about how general interpretive principles might operate in respect of certain words and certain contexts, and so drafters decide its better to start including an express reference to irrevocability.


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## jgbrowning

S'mon said:


> Given the wording of the OGL I'm a bit more confident than you that *the right to sub-licence for existing licences survives termination of the offer to licence*. Certainly that is what the creators of the OGL intended, and I believe that is what they achieved. The OGL does of course say that sub-licences survive termination of a licence. I'm not sure if bmcdaniel analysed that section.
> 
> Certainly I admit that from his posts he seems much more of an expert on US contract law than you or I  - and if he came out strongly against that position for some reason, I'd take that seriously. But I got the impression he simply wasn't speaking on that matter.




(Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A. 

Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.

Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?

(ie. can WotC actually remove _any_ of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).

joe b.


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## S'mon

pemerton said:


> I like to think this gives those strong claims I _do_ make - like rejection of the whole fraud notion in the other thread, and my doubts that any wholesale revocation is possible - more weight!




Heh. Yeah, your jurisprudential tone is more magisterial than mine.


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## S'mon

pemerton said:


> Just adding to @S'mon's reply:
> 
> There doesn't need to be a case establishing a "requirement" - it can be enough that a case expressed a view about how general interpretive principles might operate in respect of certain words and certain contexts, and so drafters decide its better to start including an express reference to irrevocability.




Yes, as Pemerton says, you can get _obiter dicta_ (side comments) that raise doubt where none existed before. Then to be safe the lawyers adjust their advice accordingly.


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## pemerton

S'mon said:


> Heh. Yeah, your jurisprudential tone is more magisterial than mine.



I just thought that fraud thing needed shutting down! I mean, idle speculation is a thing, but at the moment I think accurate commentary is more useful.


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## S'mon

jgbrowning said:


> (Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A.
> 
> Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.
> 
> Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?
> 
> (ie. can WotC actually remove _any_ of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).
> 
> joe b.




You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.


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## pemerton

jgbrowning said:


> (Potentially silly) Question: There have been several 3PP of the SRD (cleaned up [formatting wise] and grouped together into a single searchable [sometimes hyperlinked] document) that have been released as independently-named works with a separate section 15 entry. Lets call this type of work "Work A" All of the content in Work A has been declared open game content by publisher A of Work A.
> 
> Publisher B then uses the open material from Work A (as indicated in their section 15) to make a new 3PP version of the SRD called Work B.
> 
> Is there then a surviving sub-licensing issue for Publisher C who then desires to use the work of Publisher B for a new product?
> 
> (ie. can WotC actually remove _any_ of their copyrighted material that they had once termed Open Game Content which was then subsequently declared Open Game Content is a series of other works in a license that does not require specificity regarding where or what the OGC is other than a title, date, publisher).





S'mon said:


> You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.



Just to follow up on S'mon's post:

You are asking about the thing he and I have been discussing, over the most recent page or two of this thread but also in other recent threads, and in earlier threads going back 10 years or so!

I think S'mon is probably right.

Part of what WotC has conferred on A in your scenario is a power to licence the OGC to B, which is what makes B's publication lawful vis-a-vis WotC's copyright in the SRD. Now WotC rescinds its standing offer to license the SRD under the OGL v 1.0a. I think the better view is S'mon's: because WotC can't unilaterally end any of these contracts, B continues to enjoy a contractual power to license the OGC to C.

Thus, to put it in colloquial terms, WotC can't put the genie back in the bottle.

The reason I'm more hesitant than S'mon is not for any concrete reason, but (i) another expert poster, who is more expert than me, was less certain than I had been up to that point, and than S'mon still is - and so I'm dialling back my own certainty a little bit; and (ii) there may be relevant principles of US copyright and licensing law that come into play in this sort of situation, and if there are I don't know about them! Admittedly no one has pointed to any such principles, but again I'm not wanting to be more certain than I feel my expertise permits.

TL;DR - I think S'mon is probably right.


----------



## estar

Appreciate you digging into this.



S'mon said:


> *Summary
> A variation to a software licensing agreement to make it perpetual rather than of limited duration extended the original agreement
> rather than superseded it. The termination provisions in the original agreement had not been expressly deleted and they continued
> to have effect.*
> 
> 
> Held
> Application granted.
> (1) The licence had been terminated. *"Perpetual" had different shades of meaning, including "incapable of being brought to an
> end" and "of indefinite duration, but subject to any contractual provisions governing termination". The latter interpretation of
> "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement
> and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L
> terminated the support agreement, it also terminated the licence. The variation agreement had plainly not been intended wholly
> to displace the licence agreement: it stated that the licence would be extended rather than replaced.*



So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?

Also @pemerton what is the key case in an Australian jurisdiction that references the need to include the use of irrevocable in the license to achieve the goals of the licenses like the GPL and OGL?

*Rob's Notes:* I am not a lawyer in my day job I am a software systems engineer who deals with the control (operations, motion) of complex machinery. My skill, the reason I get paid, is that I am very good at analysis. I can be asked about a feature or problem with one of these machines and usually figure it out pretty fast and accurately

When I got involved in my local government I found these skills useful there in coming up with solutions using the existing by-laws, laws, and regulations. What I don't know are the details of the various important procedures one has to do in the legal field. And I have to know enough to ask the right questions. But that is also one thing you learn as a systems engineer, how to ask the right questions to get that knowledge so you learn what needs to be done.

Also like the law, in the field, the problems associated with complex machinery rarely have black and white causes. There is a certain degree of fuzziness caused by factors like fatigue, the operating environment, and so on that often can be maddeningly hard to deal with.


----------



## jgbrowning

S'mon said:


> You're asking about sub-licencing of SRD OGC by eg 5eSRD.com using the OGL 1.0, following revocation of WoTC's continuing offer to licence. As far as I can see, that is fine, and not something WoTC can stop. But Pemerton is less sure than I am, so take that with a grain of salt maybe.






pemerton said:


> Just to follow up on S'mon's post:
> 
> [snip]




I just want to say thanks to both of you for taking the time to discuss this.

joe b.


----------



## Enrahim2

pemerton said:


> Who used this word? In what I have seen, the leak identifies as one term of the new OGL that the existing OGL is not an authorised licence agreement.



Sorry my mistake, correct formulation is "no longer authorized" as you say. By the way, this source give a bit more context to that statement tha the Gizmodo quote more clearly showing that the language us used in the explicit context of stating that 1.1 is an "update to the previously available OGL 1.0(a)" This context is missing from the Gizmodo quote, hence making the likely association with the section 9 update wording less clear.



pemerton said:


> Publishers who have licensed their work under the OGL v 1.0a oblige future licensees to conform to the terms of that licence. Section 9 allows a future licensee to use any authorised licence to use OGC. So the only way to bring OGC into the new scheme that I can see is to make v 1.1 an authorised licence for existing section 9 purposes. But that would then mean that existing licensees (plus future sub-licensees of those existing licensees) could use new OGC under the existing OGC (and presumably would do so, so as to avoid the royalty obligation).



I think this is what you get upside down. Section 9 is asymmeticly stated, but not in terms of "future" and "past", but rather in terms of "any authorized" and plain "any". Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), it could still be considered a version of this lisence per section 9. Hence anyone can distribute any 1.0a content as long as they use an _authorized_ lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.


----------



## pemerton

estar said:


> So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?



I haven't read the case, only the headnote that @S'mon posted.

But I think a basic principle is that each provision of the instrument will be interpreted so as to ensure that the whole thing is coherent.

So imagine a 3-clause licence:

1. I grant you a perpetual licence to use [my specified IP in certain specified ways].

2. The use permitted by section 1 is subject to [various conditions].

3. This licence will terminate in 7 days if any of the conditions set out in section 2 is breached, unless I give express notice to you within 7 days of such breach that the licence is to remain on foot despite the breach.​
It's clear that "perpetual" in this licence doesn't mean "irrevocable", because clause 3 sets out circumstances in which the licence can be revoked (namely, if you breach and I don't give you notice that the licence is to remain on foot).

Whether section 3 of my hypothetical licence sets out the _only_ conditions in which revocation is possible is a further matter of construction. Without more context, I don't think it's possible to say.



estar said:


> Also @pemerton what is the key case in an Australian jurisdiction that references the need to include the use of irrevocable in the license to achieve the goals of the licenses like the GPL and OGL?



I don't know. I'm not an expert in Australian copyright licensing law. I will go so far as to say the situation is likely to be similar to the UK, meaning that there probably is no such _requirement_, but everything else being equal its better to be express than to rely on context.


----------



## jgbrowning

Enrahim2 said:


> Hence anyone can distribute any 1.0a content as long as they use an _authorized_ lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.




I'd add the caveat, excepting when the 1.1 released OGC is _exactly_ the same as the 1.0 released OGC, which I suspect a lot of it going to be if things are supposed to be as powerfully backwards compatible as insinuated.


----------



## S'mon

estar said:


> Appreciate you digging into this.
> 
> So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?




Thanks Rob. Yes, the termination clause over rides any interpretation that Perpetual means Irrevocable. In the OGL likewise, the termination for breach clause would override the interpretation that Perpetual means Irrevocable in that specific instance.


----------



## Enrahim2

jgbrowning said:


> I'd add the caveat, excepting when the 1.1 released OGC is _exactly_ the same as the 1.0 released OGC, which I suspect a lot of it going to be if things are supposed to be as powerfully backwards compatible as insinuated.



Well, if 1.0 a is not revoked, but rather just not considered "authorised" in the section 9 sense, then that caveat wouldn't really be needed? The exact content is already available under 1.0a, and hence usable per section 4.


----------



## estar

pemerton said:


> Whether section 3 of my hypothetical licence sets out the _only_ conditions in which revocation is possible is a further matter of construction. Without more context, I don't think it's possible to say.



And what supplies that context if it is something else other than what the terms of the license says.

So in software, when creating something that is called a subclass, it means that certain features and functionality are inherited from a parent class.  As far as contracts goes, if I include an explicit termination clause is there some feature or functionality that the contract can "inherit" that can also affect termination under current jurisprudence? Assuming that the termination clause itself is judged fair and equitable. Or does the termination clause always take precedence as the UK case seems to hold?


----------



## estar

S'mon said:


> Thanks Rob. Yes, the termination clause over rides any interpretation that Perpetual means Irrevocable. In the OGL likewise, the termination for breach clause would override the interpretation that Perpetual means Irrevocable in that specific instance.



Thanks and again appreciate you digging this up.
Another question, do you think there is a distinction between deauthorization and termination? Or as in some cases, they are just two ways of saying the same thing. In this case, the license has been terminated?

If so wouldn't the explicit Termination Clause in Section 13 override the implicit consequences of deauthorization? Just as the UK court held, that a explicit Termination Clause overridden the Perpetual license grant?


----------



## S'mon

estar said:


> And what supplies that context if it is something else other than what the terms of the license says.
> 
> So in software, when creating something that is called a subclass, it means that certain features and functionality are inherited from a parent class.  As far as contracts goes, if I include an explicit termination clause is there some feature or functionality that current jurisprudence has the contract "inherit" that can also affect termination? Assuming that the termination clause itself is judged fair and equitable. Or does the termination clause always take precedence as the UK case seems to hold?




In English law the validity of a clause in strict Contract law is unaffected by whether it's fair & equitable, except in Consumer contracts and exclusion clauses. Neither applies here.

The termination clause is read in context with the rest of the document. Typically specific terms tends to beat more general terms, eg imagine a contract that says:

"1. This contract is perpetual and irrevocable.
2. Notwithstanding 1, this contract may be terminated for breach of term X."

The court will normally still allow termination for breach of term X under clause 2, despite the wording of clause 1.


----------



## pemerton

Enrahim2 said:


> Sorry my mistake, correct formulation is "no longer authorized" as you say. By the way, this source give a bit more context to that statement tha the Gizmodo quote more clearly showing that the language us used in the explicit context of stating that 1.1 is an "update to the previously available OGL 1.0(a)" This context is missing from the Gizmodo quote, hence making the likely association with the section 9 update wording less clear.



I don't believe that is the wording of the draft licence (which Gizmodo says is 9,000 words, or well into double digit pages). I think its a gloss or summary, for explanation of the proposal.



Enrahim2 said:


> I think this is what you get upside down. Section 9 is asymmeticly stated, but not in terms of "future" and "past", but rather in terms of "any authorized" and plain "any". Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), *it* could still be considered a version of this lisence per section 9.



I don't know what the bolded "it" refers to.

There is no doubt that OGL v 1.0a counts as an authorised version of the licence for the purposes of section 9 of itself. If WotC want to stop publishers participating in both the old and new ecosystems they will need an express "poison pill" provision similar to the one in an early iteration of the GSL.

The question I was posting about is whether OGL v 1.0a will be an authorised version for the purposes of OGL v 1.1's section 9 equivalent., and whether OGL v 1.1 will be an authorised version for the purposes of section 9 of the OGL v 1.0a. And for the reasons I gave, I very much doubt that either will be. The structure of a viral open licence means the two ecosystems need to be kept distinct if the royalty scheme is going to work. Because if they're not kept distinct, then every existing licensee will be able to use new content under v 1.0a which grants them a royalty-free licence. And this is exactly what WotC is trying to change!



Enrahim2 said:


> Hence anyone can distribute any 1.0a content as long as they use an _authorized_ lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.



The only way I can see to enable existing OGC to be licensed via new v 1.1 would be for v 1.1 to create rights in respect of OGC. But at that point it would be an authorised version of OGL v 1.0/1.0a within the meaning of their section 9, which would mean existing licensees could publish new content under the old licence.

You suggest that "using 1.1 content as source would require you to accept that 1.0a cannot be described as 'authorised'", but don't explain how that is going to work. I have said how I think it will work: there will be Licensed Content, governed by 1.1; and OGC, governed by 1.0/1.0a. And they are separate categories of content. I don't see how v 1.1 could both mingle them and keep them separate in the way you seem to be suggesting.


----------



## S'mon

estar said:


> Thanks and again appreciate you digging this up.
> Another question, do you think there is a distinction between deauthorization and termination? Or as in some cases, they are just two ways of saying the same thing. In this case, the license has been terminated?
> 
> If so wouldn't the explicit Termination Clause in Section 13 override the implicit consequences of deauthorization? Just as the UK court held, that a explicit Termination Clause overridden the Perpetual license grant?




As Pemerton has said,' deauthorise' isn't a legal term & doesn't have a clear legal meaning, whereas terminate does. I can't really answer this as it's a bit technical & the kind of thing the case would hinge on.


----------



## Malchor Flubbit

pemerton said:


> an _authorised version_ is a licence produced by WotC or its agents.




The draft was a license produced by WotC or its agents. Draft v. authorized seems like the language used to indicate which licenses are available for use and which were released for other purposes, such as discussion. This is of course based on the license being open.

Again, laymen here and basing the above on the specific language choices on v.2 and v1


----------



## Staffan

S'mon said:


> In English law the validity of a clause in strict Contract law is unaffected by whether it's fair & equitable, except in Consumer contracts and exclusion clauses. Neither applies here.
> 
> The termination clause is read in context with the rest of the document. Typically specific terms tends to beat more general terms, eg imagine a contract that says:
> 
> "1. This contract is perpetual and irrevocable.
> 2. Notwithstanding 1, this contract may be terminated for breach of term X."
> 
> The court will normally still allow termination for breach of term X under clause 2, despite the wording of clause 1.



As I understand the specific case, it was more like:

1. This contract lasts for X years.
2. This contract can be terminated under circumstances Y.

Then a new contract was made which said:
Replace 1. with "1. This contract is perpetual."

What the court held was that since the new contract didn't say anything about 2, the old termination clause still applied.


----------



## pemerton

Malchor Flubbit said:


> The draft was a license produced by WotC or its agents. Draft v. authorized seems like the language used to indicate which licenses are available for use and which were released for other purposes, such as discussion. This is of course based on the license being open.
> 
> Again, laymen here and basing the above on the specific language choices on v.2 and v1



My view is that a draft licence is not a licence. WotC and its agents actually have to have intended to issue a licence, not just promulgate a draft. Like a marriage in a TV soap opera is not a marriage, even if all the magic words are said and even if the actor playing the celebrant happens to be a licensed celebrant in real life.


----------



## Enrahim2

pemerton said:


> The only way I can see to enable existing OGC to be licensed via new v 1.1 would be for v 1.1 to create rights in respect of OGC. But at that point it would be an authorised version of OGL v 1.0/1.0a within the meaning of their section 9, which would mean existing licensees could publish new content under the old licence.



You still seem to get the wording backwards. According to 1.0a section 9 you can always use content using any version of ogl independent of their outhorization status. Hence defining 1.1 as authorized or not have no bearing on if you are allowed to use 1.1 material when you publish something under 1.0a lisence according to section 9.

However the "authorization" of the license you for your work when distributing/copying/modifying is of importance. Hence the only way for 1.1 to call it self legaly an "update" to ogl1.0a (which is a concept clearly in 1.0a section 9 what entails), which they do in the leak you suspect being a summary (despite containing the exact quots given in the Gizmodo leak) while preventing cross lisence use to 1.0a would be to either somehow revoke 1.0a (which would also prevent anyone including themselves to use 1.0a material as source, as section 9 would no longer be valid), or manipulate the meaning of the keyword "authorized" of 1.0a section 9.


----------



## pemerton

estar said:


> And what supplies that context if it is something else other than what the terms of the license says.



Context can be pretty varied.

There might be a contract that refers to the licence. This contract might set out expressly, or establish by implication, circumstances in which the licence can be revoked or simply comes to an end.

There might be an established relationship within which the licence is granted, and that might inform the understanding of the rights of the licensor and licensee.

There might be established industry practices which were presupposed by the parties to the licence.

Etc.



estar said:


> So in software, when creating something that is called a subclass, it means that certain features and functionality are inherited from a parent class.  As far as contracts goes, if I include an explicit termination clause is there some feature or functionality that the contract can "inherit" that can also affect termination under current jurisprudence?



The whole instrument has to be read and interpreted.

One upshot of that might be a recognition that a particular clause has been drafted a certain way in order to ensure it operates in the way that an earlier court case adjudicating the same drafting held the earlier clause would operate. But this won't always mean the new clause works the same way, because the overall content of the instrument might be different.



estar said:


> wouldn't the explicit Termination Clause in Section 13 override the implicit consequences of deauthorization? Just as the UK court held, that a explicit Termination Clause overridden the Perpetual license grant?



_Overriding_ is not the right word, I think. Rather, the presence of the termination clause helps establish the meaning of the clause that refers to a "perpetual" licence.

I've posted a bit about section 13, including not too far upthread in reply to S'mon.

Section 13 does not expressly state that it is the sole basis for termination/revocation. So to interpret it in that fashion would require drawing an implication from its inclusion, and from the failure to include any other reference to revocation or termination, that it is the sole basis.

I agree with @S'mon that in a thread like this it's not really feasible to canvass the arguments for drawing such an implication. We would need to consider in detail what exactly WotC licensed in its SRD, the full technical character of the powers granted to licensees under the licence, what industry understandings are about revocation of licensing contracts and how such revocation interacts with granted rights, etc. I think the OP overstates the case for revocability at will to quite an extent; but I want to be careful not to overstate the case in the other direction. I have an intuition that section 13 is the sole basis for termination, but an intuition isn't an argument!

After reading S'mon's and @Steel_Wind's posts I'm more persuaded that the stronger argument is not a technical reading of section 13, but an estoppel-type argument based on WotC's encouragement, via its FAQ but also I think via individual communications from Ryan Dancey (which I  think have more significance here) and also by its acquiescence for 20-odd years, of an understanding that it cannot unilaterally revoke the licensing agreements it has entered into.

CODA: Here's an idea I just had to strengthen the argument that there is no power of revocation outside section 13. Section 9 is labelled "updating the licence" but doesn't really deal with updates at all. Rather, it enables new variations of the licence to be issued by WotC, and gives parties a choice of which variant (including the original) to use. So if WotC has no power even to unilaterally update, does it make sense that it nevertheless has a power to unilaterally revoke? Furthermore, if parties could unilaterally revoke, that would render this conferral of a power on other parties to choose their licence potentially nugatory, as the exercise of that power could be thwarted by the OGC contributor simply revoking.

I don't think the above argument is anywhere close to a knock-down one: it's just something I came up with in the past 5 minutes or so. But hopefully it gives you (and others) an idea of how arguments about legal interpretation work, and the sorts of ideas that will figure in resolving any legal contest over the existence of a power to unilaterally revoke/terminate.


----------



## Enrahim2

Enrahim2 said:


> Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), *it* could still be considered a version of this lisence per section 9.





pemerton said:


> I don't know what the bolded "it" refers to.



Even if revoking the Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), *1.0a* could still be considered a version of this lisence per section 9.


----------



## estar

S'mon said:


> I can't really answer this as it's a bit technical & the kind of thing the case would hinge on.



Again thanks. And one more thing about the case you found, of course it has to be about f****ng software. I love doing my job and software development but holy cow all the IP issues we cause.


----------



## pemerton

Enrahim2 said:


> Even if revoking the Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), *1.0a* could still be considered a version of this lisence per section 9.



As I said, it is not in doubt that v 1.0a is authorised under its own section 9. Anything else would be contradictory, because section 9 would cease to have any force and hence the notion of authorisation wouldn't even be in play.


----------



## Greg Benage

pemerton said:


> There is no doubt that OGL v 1.0a counts as an authorised version of the licence for the purposes of section 9 of itself. If WotC want to stop publishers participating in both the old and new ecosystems they will need an express "poison pill" provision similar to the one in an early iteration of the GSL.



Assuming the attached is accurate (it's apparently a Q&A rather than the text of the license itself), how do we reconcile it with the idea that WotC would need a poison pill in OGL 1.1. This appears to explicitly contemplate what happens when a publisher does _not_ accept the terms of OGL 1.1. If you've already addressed this (likely, IME), just point me to it.


----------



## Enrahim2

pemerton said:


> As I said, it is not in doubt that v 1.0a is authorised under its own section 9. Anything else would be contradictory, because section 9 would cease to have any force and hence the notion of authorisation wouldn't even be in play.



Now you are mixing in other more common meanings of the term "authorised" as far as I can see? (A fully reasonable one, but my suspicion is that wizards big headache now is that they didn't think properly trough that common use of a word us of importance in law, and rather tried to treat is as a magic the gathering keyword they would be completely free to assign any meaning they wanted independent of any everyday use. I strongly suspect their big strategy was to make a one-way passage from 1.0a to 1.1 a using this mechanism. And the reason it is not published yet and they have not commented is that they have realised that this attempt had much more far reaching potential legal ramifications than they had thought. They might have repeated that 1.0a was revokable so much that they didnt think that "no longer authorised" could actually from a legal standpoint be reasonably construed as an attempt at revoking it. Sorting out this legal mess that possibly their entire strategy might hinge on might take a while..)


----------



## Enrahim2

Enrahim2 said:


> They might have repeated that 1.0a was revokable so much



Irrevokable it should have been of course,,


----------



## pemerton

Enrahim2 said:


> You still seem to get the wording backwards. According to 1.0a section 9 you can always use content using any version of ogl independent of their outhorization status.



No.

Section 9 says "Wizards or its designated Agents may publish updated versions of this License. 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."

So section 9 does two things.

It gives WotC a permission to publish new licences.

And it gives licensees a permission to use those licences (which are, ipso facto, authorised licences) to use (in the indicated ways) OGC distributed under any version of the licence. Those versions must of necessity be authorised versions, because if not then they don't create OGC!

You seem to be assuming that authorisation is a variable property of a licence, analogous to how (say) being an employee is a variable property of a person (often they are, but maybe they retire or lose their job and so cease to be). But that's not correct. Authorisation is a constant property of a licence, that it enjoys in virtue of having been published as a licence by WotC (or its agent).



Enrahim2 said:


> Hence defining 1.1 as authorized or not have no bearing on if you are allowed to use 1.1 material when you publish something under 1.0a lisence according to section 9.



Material can be used under v 1.0/1.0a only if it is "OGC originally distributed under any version of the OGL v 1.0/1.0a".

And material that is licensed only under v 1.1 will not be "OGC originally distributed under a version of the OGL v 1.0/1.0a". The drafting of v 1.1 will ensure that. We've already seen one way it does this: it doesn't create OGC at all, but rather Licensed Content.



Enrahim2 said:


> However the "authorization" of the license you for your work when distributing/copying/modifying is of importance. Hence the only way for 1.1 to call it self legaly an "update" to ogl1.0a (which is a concept clearly in 1.0a section 9 what entails), which they do in the leak you suspect being a summary (despite containing the exact quots given in the Gizmodo leak) while preventing cross lisence use to 1.0a would be to either somehow revoke 1.0a (which would also prevent anyone including themselves to use 1.0a material as source, as section 9 would no longer be valid), or manipulate the meaning of the keyword "authorized" of 1.0a section 9.



What you say about "the only way for 1.1 to call itself legally an "update"" isn't correct. WotC can publish a new licence and call it whatever they want. There is no legal restriction on this, other than general decency laws and bars on using protected public names (in Australia these are names to do with the Crown, the government, ANZACs and Don Bradman; I assume the US has similar sorts of protected names).

"Authorised" is not a "keyword" - I've explained above, as well as in an earlier post upthread (#556, and see also my post #562) that it appears with its ordinary English meaning. And it does not need to be "manipulated". All WotC has to do is establish new contractual rights that do not intersect with the existing rights of licensees under the existing OGL. And I've explained how they can do this, pretty straightforwardly. The upshot is two ecosystems.


----------



## pemerton

Greg Benage said:


> Assuming the attached is accurate (it's apparently a Q&A rather than the text of the license itself), how do we reconcile it with the idea that WotC would need a poison pill in OGL 1.1. This appears to explicitly contemplate what happens when a publisher does _not_ accept the terms of OGL 1.1. If you've already addressed this (likely, IME), just point me to it.
> View attachment 271696



I agree it's clearly a summary or gloss, not the licence text.

I assume that WotC, when they wrote that, were proposing to retract their standing offer to license their SRD under the OGL v 1.0a, and replace that with an offer to license under the new OGL v 1.1, on Jan 13. In which case what they say would be true _if you want to enter into a licence directly with WotC_. To me, they seem to be sidestepping the issue of sub-licensing from an existing licensee, or (if one is already an existing licensee) continuing to exercise one's rights. (This is the issue that @S'mon and I have been discussing - see eg my post 577 not far upthread.)

Perhaps WotC really believe that they enjoy some unilateral power to terminate all the licence agreements they've entered into in respect of their existing SRD, but that seems improbable to me.


----------



## Malchor Flubbit

pemerton said:


> My view is that a draft licence is not a licence. WotC and its agents actually have to have intended to issue a licence, not just promulgate a draft. Like a marriage in a TV soap opera is not a marriage, even if all the magic words are said and even if the actor playing the celebrant happens to be a licensed celebrant in real life.



Makes sense, thank you.


----------



## Greg Benage

pemerton said:


> I assume that WotC, when they wrote that, were proposing to retract their standing offer to license their SRD under the OGL v 1.0a, and replace that with an offer to license under the new OGL v 1.1, on Jan 13. In which case what they say would be true _if you want to enter into a licence directly with WotC_.



I'm with you this far, but it seems they are making the additional claim that (1) using OGL 1.1 (Commercial) or (2) a direct deal with WotC are the ONLY ways to commercially publish "SRD-based content" after January 13, 2023.


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## Malchor Flubbit

Enrahim2 said:


> You still seem to get the wording backwards. According to 1.0a section 9 you can always use content using any version of ogl independent of their outhorization status. Hence defining 1.1 as authorized or not have no bearing on if you are allowed to use 1.1 material when you publish something under 1.0a lisence according to section 9.



Does the OGL 1.0/1.0a's creation and promotion to be useable by 3rd parties for their own non-derivative works just as much as those creating works that were based on D20, have any bearing here?

If the OLG was strictly for the licensing of D20 or other WotC material, then surely being able to kill the earlier version makes sense, however, the OGL was never only just that, others created work from scratch (as much as any RPG can be, post-Blackmoor and the 1974 D&D rules) have been using the OGL to make their own games open. WotC authored the license but surely can't nullify those designers' and publishers' use fo the OGL. Can they?


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## Princessmaker

Something I can see WoTC doing and being an ass about is "updating their Terms of service" of D&D beyond and such, which would mean that if you had an account there or any WoTC website, you would agree with 1.1 and then relinquish (?) your rights to use 1.0a.
Is that even possible?


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## Enrahim2

pemerton said:


> You seem to be assuming that authorisation is a variable property of a licence, analogous to how (say) being an employee is a variable property of a person (often they are, but maybe they retire or lose their job and so cease to be). But that's not correct. Authorisation is a constant property of a licence, that it enjoys in virtue of having been published as a licence by WotC (or its agent).



I dont assume it. The phrasing "which is no longer an authorized license agreement." does. As far as I can see? Or do you have any way to construe any meaning to that formulation that do not involve the idea that the license is percieved to at one time have had the "authorized" state, and now do not have it anymore (hence being a variable in time)?


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## pemerton

Enrahim2 said:


> Now you are mixing in other more common meanings of the term "authorised" as far as I can see? (A fully reasonable one, but my suspicion is that wizards big headache now is that they didn't think properly trough that common use of a word us of importance in law, and rather tried to treat is as a magic the gathering keyword they would be completely free to assign any meaning they wanted independent of any everyday use. I strongly suspect their big strategy was to make a one-way passage from 1.0a to 1.1 a using this mechanism. And the reason it is not published yet and they have not commented is that they have realised that this attempt had much more far reaching potential legal ramifications than they had thought. They might have repeated that 1.0a was revokable so much that they didnt think that "no longer authorised" could actually from a legal standpoint be reasonably construed as an attempt at revoking it. Sorting out this legal mess that possibly their entire strategy might hinge on might take a while..)



I think this is basically all wrong.

Authorisation is not, _as a word_, of especial legal importance. All it means is _done with authority_. It appears in section 9 with its ordinary meaning - that is, to describe a licence published with authority ie either by WotC or its designated agent. There's no magic to it.

WotC can afford decent legal advice. Their lawyers won't have told them that section 9 of the OGL v 1.0a has magical powers. But they will have advised on how a v 1.1 can be drafted so as to cut off future licensed material from the 1.0a ecosystem.

Whether that existing ecosystem can be shut down is a further matter - @S'mon and I have explained why we disagree with the OP and think it can't be - but section 9 doesn't play any role in that. Principles of contract and licensing law are what do the work.


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## pemerton

Greg Benage said:


> I'm with you this far, but it seems they are making the additional claim that (1) using OGL 1.1 (Commercial) or (2) a direct deal with WotC are the ONLY ways to commercially publish "SRD-based content" after January 13, 2023.



Sure. In my view, they're exaggerating. What legal power do they think they are able to exercise to terminate the rights of existing licensees?


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## pemerton

Princessmaker said:


> Something I can see WoTC doing and being an ass about is "updating their Terms of service" of D&D beyond and such, which would mean that if you had an account there or any WoTC website, you would agree with 1.1 and then relinquish (?) your rights to use 1.0a.
> Is that even possible?



Yes it is.

EDITed to add: assuming that they are able to update those terms of service at will.

I think they'd probably want to give you the chance to cancel your account rather than forfeit your rights, or else there might be an argument that they were being oppressive or unconscionable.


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## Greg Benage

31


Enrahim2 said:


> I dont assume it. The phrasing "which is no longer an authorized license agreement." does. As far as I can see? Or do you have any way to construe any meaning to that formulation that do not involve the idea that the license is percieved to at one time have had the "authorized" state, and now do not have it anymore (hence being a variable in time)?



In case this helps, I think @pemerton will resist any effort to entice him to interpret the leaked materials and what they may mean. He'll tend to redirect your questions about the leaked material (for example, "what do they mean by 'authorized license agreement' here?") to his legal understanding of the terms in the actual license agreement. This can be frustrating, but I understand why that's the approach he takes.


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## pemerton

Enrahim2 said:


> I dont assume it. The phrasing "which is no longer an authorized license agreement." does. As far as I can see? Or do you have any way to construe any meaning to that formulation that do not involve the idea that the license is percieved to at one time have had the "authorized" state, and now do not have it anymore (hence being a variable in time)?



I've already posted about this upthread, and pointed you to the posts.

I very much doubt that the phrase "no longer" will appear in the OGL text. It is a loose form of speaking used in a summary.

What is being conveyed is that the OGL v 1.1 will not treat the OGL v 1.0a as an authorised version for its purposes. So for those who which to enter into a licence agreement with WotC in respect of its new SRD, v 1.0a is "no longer" authorised.


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## Princessmaker

pemerton said:


> Yes it is.
> 
> EDITed to add: assuming that they are able to update those terms of service at will.
> 
> I think they'd probably want to give you the chance to cancel your account rather than forfeit your rights, or else there might be an argument that they were being oppressive or unconscionable.



Then it's all dire, they'll just make their commercial partners to accept the new OGL and enforce it if you ever wants to use their services again. Any VTT will likely agree, and as a user you could:
A) Stop using whatever hundreds of bucks of content you've already paid (theft?)
B) Be forced to agree to use your digital licenses

That is, without counting for software and such which no one ever naughty word reads, so you want to play baldurs' gate 3? Too bad, now you're under OGL1.1

edit: adding the quote


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## Greg Benage

pemerton said:


> Sure. In my view, they're exaggerating. What legal power do they think they are able to exercise to terminate the rights of existing licensees?



I'm not a lawyer, but I think what we're seeing is a combination of excerpts from 1.1 drafts and propaganda from WotC, and the two are all mixed up together. All of the "deauthorization" stuff might fall purely into the propaganda category.

If WotC _did _take legal action against a publisher, I'd expect a three- (er, four-) pronged attack:

1. OGL 1.0a doesn't say it's irrevocable, which is the clearest possible evidence that we did not intend it to be irrevocable.
2. This publisher violated our copyright by using work that was not released as Open Game Content (many counts and exhibits here).
3. This publisher is otherwise in breach of the agreement (many counts and exhibits related to Section 15s, etc.)
4. Even if the court rules against us on (1), if the court finds violations on (2) or (3), the license allows us to terminate.


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## Enrahim2

pemerton said:


> I very much doubt that the phrase "no longer" will appear in the OGL text. It is a loose form of speaking used in a summary.



Ah, ok. If the leaks are not acceped as (potential) legal facts in terms of this discussion, I guess I have no more to contribute


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## pemerton

Greg Benage said:


> I think @pemerton will resist any effort to entice him to interpret the leaked materials and what they may mean. He'll tend to redirect your questions about the leaked material (for example, "what do they mean by 'authorized license agreement' here?") to his legal understanding of the terms in the actual license agreement. This can be frustrating, but I understand why that's the approach he takes.



In my defence: the leaked materials are not a legal instrument. They're a gloss on one, or a summary of it. I think that's pretty obvious.

So they don't need to be interpreted in a legal sense at all - they have no legal meaning. Rather, they (plus the press release) tell us what the new legal instrument will look like. I've set out my conjecture, with reasons, in post 562 upthread.

WotC appear to make some claims that are at odds with my conjecture. That's not something I've overlooked. It's because they are making claims about their legal powers that I think are extremely doubtful at best. Whether someone wants to describe them as lying, or misleading, or exaggerating, or omitting, or being confused about their own legal position, is up to them - I'm just trying to give people as accurate a picture I can of the legal details of the situation.

In relation to section 9 in particular, there is a lot of speculation about it which rests (in my view) on a failure to actually read it closely so as to ascertain its legal meaning. When this is done, I think it's pretty clear what "authorised" means and what the legal operation of the section is.

WotC have full power to retract their standing offer to license their work under the current OGL. In that sense they can "de-authorise" OGL v 1.0a. But that doesn't effect any existing rights (including, I slightly tentatively suggest and @S'mon more confidently suggests, the power to sub-license licensed OGC).

They can also draft a v 1.1 that cuts off the 1.0/1.0a eco-system. Upthread I've explained, in general terms, how I would draft this.

Perhaps they also think they can revoke all existing licence agreements. It's mysterious to me where they think this power comes from, given that a basic principle of contract law is that contracts are binding and can't be unilaterally terminated. But I find it almost inconceivable that they think it comes from section 9; as opposed to from general principles of the sort that the OP of this thread discusses. I disagree with the OP, but his arguments are quite coherent. Whereas I find the section 9 argument strained at best.


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## Greg Benage

pemerton said:


> In my defence: the leaked materials are not a legal instrument.



No defence (sic ) was needed. I'm just trying to play interpreter for y'all.


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## pemerton

Enrahim2 said:


> Ah, ok. If the leaks are not acceped as (potential) legal facts in terms of this discussion, I guess I have no more to contribute



No one thinks the leaks are draft legal text, do they? They are a draft PowerPoint summary or similar.

I've done my best over the past few pages of this thread to explain what I think the legal text will look like (in general terms) and what its operation and effects will be.



Greg Benage said:


> I'm not a lawyer, but I think what we're seeing is a combination of excerpts from 1.1 drafts and propaganda from WotC, and the two are all mixed up together.



Agreed. "Propaganda" is another word that could be added to my list of possible descriptions!



Greg Benage said:


> All of the "deauthorization" stuff might fall purely into the propaganda category.



I think they are quite serious about (i) ceasing to offer to licence under the existing terms, and (ii) making sure the new ecosystem, with its royalties regime, is separated from the existing one. And this will include, I think, an express statement in OGL v 1.1 that OGL v 1.0/1.0a is not an authorised version of 1.1, for the purposes of 1.1's equivalent of section 9 in the current OGL.

But (at the risk of repetition, but for the sake of clarity) I don't think this (or anything else) will terminate existing rights of existing licensees.



Greg Benage said:


> If WotC _did _take legal action against a publisher, I'd expect a three- (er, four-) pronged attack:
> 
> 1. OGL 1.0a doesn't say it's irrevocable, which is the clearest possible evidence that we did not intend it to be irrevocable.
> 2. This publisher violated our copyright by using work that was not released as Open Game Content (many counts and exhibits here).
> 3. This publisher is otherwise in breach of the agreement (many counts and exhibits related to Section 15s, etc.)
> 4. Even if the court rules against us on (1), if the court finds violations on (2) or (3), the license allows us to terminate.



I think 3 is possible, but its effectiveness for WotC's purposes may be doubtful because of the express provision for survival of sub-licences.

I have no idea about how common 2 is (ie 3PPs using unlicensed material). If they do that and get pinged, my sympathy for them is limited. Whether this would allow termination would depend on the details, I think. Copyright infringement is not per se a breach of the OGL But, eg, use of Product Identity is.

They would want to argue 1 - ie we revoked, hence there is no licence, hence the reproduction of our SRD or a work derived from it infringes our copyright (and if the publisher has the SRD in their section 15, they will be hard-pressed to contest the factual element of the complaint). The publisher will plead the licence in their defence. And this is where the issue of unilateral revocation will be worked out.

Upthread @S'mon and I discussed the risk of retreating from the OGL v 1.0/1.0a, and hopefully this post brings them out again - you continue to run all the risks of liability but without being able to plead the contract in your defence.


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## Steel_Wind

pemerton said:


> After reading S'mon's and @Steel_Wind's posts I'm more persuaded that the stronger argument is not a technical reading of section 13, but an estoppel-type argument based on WotC's encouragement, via its FAQ but also I think via individual communications from Ryan Dancey (which I  think have more significance here) and also by its acquiescence for 20-odd years, of an understanding that it cannot unilaterally revoke the licensing agreements it has entered into.



I don't think that it will end up as promissory estoppel, though I appreciate that you can put that lipstick on it and it seems to look bright and red and fits the outline. The problem is, estoppel is weak on the remedy side and uncertain (if not poor) in the context of ongoing commerce. The part(ies) who want to continue to keep using the 1.0a will not want it decided on that basis. There's a poor contractual future when the argument is based on promissory estoppel. 

So instead, it's a "true construction of the contract" argument, with the evidence replete with reference to evidence of reasonable reliance on a particular interpretation to persuade the court that it's doing the right thing and enforcing an interpretation that the parties all understood to be commercially reasonable.

In that sense, it's simply an interpretation of the "plain meaning of the words", and resolving the supposed ambiguity and "true construction of the contract" by reference to how the parties actually conducted themselves over a very long period of time. This has always been held by the court as demonstrative of contractual meaning and intent. There is no better way to understand how the parties treated the wording of the agreement than to look at how they actually conducted themselves under it.

If that sounds a little like some tautology b.s. -- that's because, in part, it is. Nevertheless, that's how cases are actually decided in court, in my experience.

What is really happening in these cases is not an intellectual contractual analysis that leads to a result; rather, it is an evidentiary presentation that convinces the court as to the just outcome. The court then looks for reasons to justify it.

It's not about doctrine, it's about evidence.


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## Greg Benage

pemerton said:


> I have no idea about how common 2 is (ie 3PPs using unlicensed material). If they do that and get pinged, my sympathy for them is limited. Whether this would allow termination would depend on the details, I think. Copyright infringement is not per se a breach of the OGL But, eg, use of Product Identity is.



I believe if a publisher (1) uses material not designated as Open Game Content (i.e. possible copyright infringement) and then (2) designates that material as OGC, that would be a breach in a case where the court affirmed the copyright infringement.



> If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.




This is very likely IMO where a publisher plays fast and loose with what is actually in the SRD and is then lazy with their OGC declaration, "All game mechanics are designated as Open Game Content."

Now, a finding of copyright infringement _in itself_ may be enough for WotC to "finish" a publisher. Using that finding to ALSO find a violation of the license agreement would, I expect, fall in line with the above.


----------



## pemerton

Malchor Flubbit said:


> Does the OGL 1.0/1.0a's creation and promotion to be useable by 3rd parties for their own non-derivative works just as much as those creating works that were based on D20, have any bearing here?
> 
> If the OLG was strictly for the licensing of D20 or other WotC material, then surely being able to kill the earlier version makes sense, however, the OGL was never only just that, others created work from scratch (as much as any RPG can be, post-Blackmoor and the 1974 D&D rules) have been using the OGL to make their own games open. WotC authored the license but surely can't nullify those designers' and publishers' use fo the OGL. Can they?



I think you're running two distinct things together.

For my earlier post on this issue, see #479 upthread.

In brief (hopefully!): there is a difference between the OGL as a text, which is copyright WotC, and hence which can only be reproduced with WotC's permission; and the OGL as the terms of a contractual agreement between (at least) two parties, where that text states those terms.

When we talk about revocation of the licence, we are talking about the second thing, ie, about the terms of a contractual agreement. Can that agreement (the terms of which are stated in the text of the OGL) be revoked?

The possibility of WotC denying that other publishers have a right to use their copyrighted licence text is a real one. It seems obviously hopeless in the case of parties who have licence agreements with WotC, as they are required by WotC to reproduce the text as a licence condition, and hence are clearly permitted by WotC to do so.

When it comes to parties who are not in a licensing agreement with WotC, but are using the OGL text to establish their own licensing and OGC ecosystem, the basis for their permission is not as straightforward, but probably exists. My post 479 explains why I think this.


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## pemerton

Greg Benage said:


> I believe if a publisher (1) uses material not designated as Open Game Content (i.e. possible copyright infringement) and then (2) designates that material as OGC, that would be a breach in a case where the court affirmed the copyright infringement.



Yes, that would be correct. Because (as you note) they would lack the authority to contribute that section 5 requires them to have.



Greg Benage said:


> This is very likely IMO where a publisher plays fast and loose with what is actually in the SRD and is then lazy with their OGC declaration, "All game mechanics are designated as Open Game Content."



Without pressing you to name names, how common is this?

I don't know the 3PP world very well, especially the last 15 years or so of it. I have some 3E-era stuff - from Monte Cook (whose OGC declaration looked sound to me, when I gave one a quick look-over the other day), from Necromancer (I assume they're in order), from Atlas/Penumbra (ditto), from whoever published Wonders Out of Time (seems professional), from Mongoose (ditto), I think Chaosium (dunno how compliant they would be), and then some stuff from more obscure publishers (at least to me) that I've never reviewed but wouldn't necessarily rely upon for accuracy in technical legal details!

I guess it almost goes without saying that the more careless 3PPs have been in their licence compliance, the more vulnerable they are to being sued by WotC. And as I said my sympathy in these cases is limited: if you're going to publish under a licence, you need to take your licence obligations seriously.


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## Sanji Himura

See, here's the only possible issue that I see with OGL 1.1.  It doesn't allow 30 days to cure whatever breaches that WotC will CAUSE by saying that 1.0a is an unauthorized document under 1.0a.  Even if you are going with 4e as a base of your OGL content, if WotC says that 1.0a is no longer an effective agreement, you do not get 30 days to cure the conversion to 1.1.

1.1 was alleged to have taken from the date that it was supposed to go public, Jan 4th to the effective date, Jan 13.  9 Days is not enough time to cure those alleged breaches that WotC are causing by making 1.0a an unauthorized document under 1.0a.


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## pemerton

@Steel_Wind

Thanks for the post, which makes sense.

(The remedy issue in Australia is a bit vexed. In this sort of case I think there would be a plausible argument that WotC would be held to the assumption. But running it as a contractual interpretation argument would be a sounder way to do it.)


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## pemerton

Sanji Himura said:


> See, here's the only possible issue that I see with OGL 1.1.  It doesn't allow 30 days to cure whatever breaches that WotC will CAUSE by saying that 1.0a is an unauthorized document under 1.0a.  Even if you are going with 4e as a base of your OGL content, if WotC says that 1.0a is no longer an effective agreement, you do not get 30 days to cure the conversion to 1.1.
> 
> 1.1 was alleged to have taken from the date that it was supposed to go public, Jan 4th to the effective date, Jan 13.  9 Days is not enough time to cure those alleged breaches that WotC are causing by making 1.0a an unauthorized document under 1.0a.



I don't think that OGL v 1.0a can declare itself to be an unauthorised licence. Because if it's unauthorised, it is of no legal effect - including in respect of its own status. Nor would there be any licence breaches to cure, as there would no longer be a licence.


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## Greg Benage

pemerton said:


> Without pressing you to name names, how common is this?



I wouldn't even begin to guess, and honestly, I wouldn't be qualified to really make judgments anyway. I think probably...not that uncommon.

But it's just also completely uncertain, at least to me, what a court would find to be copyright infringement. Are the character creation rules in _Pathfinder_ close enough to 3.5 to be found, on one or more counts, to be copyright infringement? And are character creation rules designated as OGC? Are they in the Pathfinder SRD? I don't actually know.

I love _Basic Fantasy_. Would _anything_ in it, starting with but not limited to character creation, infringe on B/X? If so, its OGC declaration is: "The entire text as well as all maps and floorplans incorporated in BFRPG (except the Open Game License, as noted above, and the Product Identity License, below) is Open Game Content, released under the Open Game License, Version 1.0a (reproduced below) as described in Section 1(d) of the License." So if there's any copyright infringement, there's also breach of the license agreement.


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## AbdulAlhazred

pemerton said:


> "De-authorise" doesn't mean anything in the abstract, and I would be very surprised if that phrase appears in v 1.1. (It is not part of the leak that I saw: We got an official leak of One D&D OGL 1.1! Watch Our Discussion And Reactions!).
> 
> If v 1.1 describes v 1.0/1.0a as not an authorised licence agreement, that will have meaning only in the context of the rest of the contract, which will explain the significance of a licence being authorised or not authorised.
> 
> Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.



Here is the whole problem with the idea of WotC having any power to 'de-authorize' earlier versions of the OGL. I enter into the OGL 1.0a agreement between myself and "the Contributors" (section 4), which is defined as everyone who ever put content under the OGL (section 2). Furthermore I UNILATERALLY have the option to decide which version 1.0, 1.0a, 1.1, etc. of 'authorized' (by WotC presumably) version of the OGL (IE its a genuine OGL, they get to make that determination, but they cannot 'unmake' it) I am receiving/giving my rights under. 1.0 and 1.0a do not speak of any power of WotC to rescind the license, and once other Contributors begin distributing the OGC under either of those licenses, they -literally as a fact- cannot 'undistribute' it anymore. 

I can simply, at any time now, claim my rights, by abiding by OGL 1.0(a), to distribute that content, and as a fact I have said content, because it has long since been distributed to me by other Contributors as part of their exercise of the same rights. That's it, as long as I don't choose to use 1.1 and whatever 'deauthorize logic' is in it, that license doesn't exist in reference to my rights and obligations. I never have to even read it, or be aware of it. WotC can say THEY now choose to use it, but the cat is already out of the bag! This is EXACTLY HOW PETER ADKINSON INTERPRETED IT. In his and Ryan Dancy's own words, repeated many many times in many places this is the interpretation intended by the authors of the license, and the interpretation that was accepted by the other Contributors, plain and simple. The license is intended to be, and is stated to be, 'perpetual'. Its rights and obligations exist 'in perpetuity', which is a time period without end. Only failure to abide by the terms, or the finding of the whole license as legally invalid, would end them (and only WRT the specific parties and/or jurisdictions). 

Furthermore, even if WotC actually believes that the OGL can be 'revoked' and existing license holders severed from it, what stops these holders from asserting either laches (WotC 'slept on its rights' and thus harmed them by not asserting this 20 years ago), or that WotC is estopped from even making a claim in court that the license asserts such a right, because they have asserted otherwise for 20 years (these types of assertions are complex and somewhat overlapping in fact). OGL is also a bad license in that it talks about the copyright of the LICENSE, but it never clearly discusses the copyright of the MATERIAL THAT IS LICENSED. So there may be issues of what is called 'waiver' involved. Normally a good contract/license (see the CC Org licenses) includes a 'non-waiver clause' which specifically states that the copyright, and all other rights, to the licensed material remain with the original holder. OGL doesn't specifically do that, which is OK in a general sense, but weakens the overall force of the thing and might cause some doubt as to exactly what the terms actually are.

This is all just more of the general argument, do not use the OGL! Even the 1.0a OGL is a BAD LICENSE. It wasn't well written to start with, and aside issues of WotC being privileged, stands a much lesser chance of actually working correctly than a CC license.


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## Sanji Himura

pemerton said:


> I don't think that OGL v 1.0a can declare itself to be an unauthorised licence. Because if it's unauthorised, it is of no legal effect - including in respect of its own status. Nor would there be any licence breaches to cure, as there would no longer be a licence



Then honestly, if that's true, then content that originally was released under 1.0a should then be allowed to be modified at the very least under 1.0a.  I honestly don't think that WotC can deauthorize 1.0a for existing works, only for new ones.


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## pemerton

@Greg Benage 

The 3.5 SRD has ability scores, races and classes, but not rules for character creation as such.

The 5e SRD seems pretty similar in these respects.

For character creation, I think you need to (i) write it without reference to WotC's copyrighted texts (or anyone else's, for that matter, if they're not licensed to you), and (ii) be sure that it's not infringing. You don't want to violate your authority to contribute; you also don't want to infringe someone else's copyright!


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## Steel_Wind

pemerton said:


> They would want to argue 1 - ie we revoked, hence there is no licence, hence the reproduction of our SRD or a work derived from it infringes our copyright (and if the publisher has the SRD in their section 15, they will be hard-pressed to contest the factual element of the complaint). The publisher will plead the licence in their defence. And this is where the issue of unilateral revocation will be worked out.



This contractual approach misses the real teeth that the OGL 1.0a has always had, and that's if that if somebody uses the 1.0a licence to create something, others can then use THAT licensed OGL work as the premise for its further sublicensed derived work.  And because you can't take that valid sublicense right away under the OGL 1.0a under the termination clause - you can't take it away by a declaration or unilateral revocation, either.  WotC is stuck with those ongoing valid sublicensed works, moving forward through time.

So WotC can modify (or terminate) the OGL going forward as to how it might apply to a work that was never released under the OGL or SRD. But that doesn't get them out of the ongoing rights of others to use what has already been released under the OGL 1.0a hitherto and declare its work as derived from that -- and those rights continue to spawn new sublicensing rights in the future. Those sublicense rights and may not be suspended or stopped.  The OGL is not static.

Practically speaking, if a game system uses a D20 and there is any attempt at all at broad-brush compatibility with prior editions, it becomes functionally very difficult to escape the ongoing future reach of any OGL 1.0a product to be used to continue to publish compatible products into the future. 

If that makes the word "perpetual" sound a whole lot like "irrevocable", that's because that was always the intention behind it. Hasbro bought WotC in 1999. The OGL came out after that event, when those corporate officers in charge of D&D at WotC knew that later management teams at WotC would inevitably come to see the OGL as something they would at that future point in time want to escape.  The OGL was drafted in a manner so as to make that practically impossible.

Remember, the OGL was a virus that WotC created in ~2000 at a time when its prior version of the game had COMMERCIALLY FAILED and the prior owner of the IP became insolvent. In order to focus the entire RPG business into embracing 3.0, WotC willingly infected itself with the OGL virus -- and then spread it to the entire industry. The incurability of that virus was not a bug -- it was a deliberately crafted "feature" and marketed on that basis. *It worked.  *

Everyone knew that at some point, new management at WotC would try to undo it. When they moved from 3.xx to 4E, WotC did just that with the GSL in 2008. Commercially, it didn't work. WotC relented with the SRD in 2014, but now appear to be trying to go down that road again. None of this is a surprise, all of it was foreseen by the sub-license language in the OGL that it would inevitably occur at some future point in time.

The OGL was drafted to make the virus incurable. It was marketed to the industry on that basis. The fact it is a incurable virus should not be seen as a contractual oddity, but as a commercial success.


----------



## AbdulAlhazred

pemerton said:


> Trying to guess what terms WotC will actually insist on is commercial speculation, not legal speculation. From the legal point of view, they could do what you suggest, or they could make it a requirement of entering into the new licence that a party cease to distribue any work licensed under the current OGL. I don't see that either would pose any legal problem.



Right, this is BY FAR IMHO the most likely scenario, 1.1 will simply lack a 'or other version' clause, or it will be an 'or newer version' clause instead, and it will contain a 'you must cease to distribute under any content under other versions of the OGL' clause. WotC can absolutely do THAT. And they can then only ever release anything under the 1.1 OGL terms ever again, and utilize their Section 9 right to effectively stop letting people directly license from them under 1.0a even for 5e stuff. I just assert that doesn't destroy OTHER CONTRIBUTORS rights to still do so WRT to currently 1.0a OGL licensed material. 

The problem with ANY ARGUMENT to the contrary is that the only value of the OGL is that WotC couldn't revoke it at a moment's notice. Without that surety the license never had any value whatsoever, it was simply a sham. The whole thing was a Potemkin Village of an 'agreement' in which one side would simply use the other side's reliance on it as a weapon against them! The THEORY was that WotC was also relying, but I know of no instance where they have ever distributed anything they didn't author themselves under OGL terms. They benefited from the good will and much enlarged D&D community that the license created, maybe, but in effect they seem to, at least now think, the license is simply a form of control they can exercise over the community. If that has been their intent, then the license is a sham. It purports to put everyone on an even footing so we can all distribute this content, but in effect if it is revocable then it merely served to dupe us all into putting on a slave collar!


----------



## Greg Benage

pemerton said:


> The 3.5 SRD has ability scores, races and classes, but not rules for character creation as such.
> 
> The 5e SRD seems pretty similar in these respects.
> 
> For character creation, I think you need to (i) write it without reference to WotC's copyrighted texts (or anyone else's, for that matter, if they're not licensed to you), and (ii) be sure that it's not infringing. You don't want to violate your authority to contribute; you also don't want to infringe someone else's copyright!



Agreed. It does seem that character creation rules are included in the Pathfinder Reference Document and are therefore designated as Open Game Content. Hopefully they were written from scratch with no _Players Handbooks _in the room and don't reproduce anything that a court would construe as expression.


----------



## Enrahim2

pemerton said:


> No one thinks the leaks are draft legal text, do they? They are a draft PowerPoint summary or similar.



Given how the leak and quotes were presented, I for one did think it was exerps from actual legal texts. And I am very surprised if I am alone. This might be good to be aware of when interacting with non-lawyers, if this indeed is obvious to a lawyer.

I will definitely defer to your assesment if we are assuming this leak is a very poorly restated version of an underlying legal document that us actually sound according to your understanding of the law. My main issue with that approach is that this approach seem to leave more mysteries than my atemt at understanding it from a reading of it as a corporate greed instructed legalese mistake. After all, wizards should be able to afford competent legal cunsil, but they also should be able to afford decent community management. And it seem obvious that at least one of this groups managed to screw this up big time.

So with your approach to the issue we are left with questions like why wizards would go trough the hoops of calling the new licence an ogl, rather than just making a new lisence outright? After all the positive pr that might be generated by the name is quite easy to se would be grossly outweighed by the negativity from the contrast. Or where could whoever actually writing the nonsensical "no longer an authorized" get the highly inflammatory ambigous, uncommon and poorly matching word "authorised" for describing what you as a lawyer managed to describe in much better and non-indlamatory terms.

With my legalese reading these mysteries has clear answers. And as to the mystery, where could wizards possibly have gotten such a terrible legalese draft from? I have a potential answer to that. Imagine wizards/hasbroo explicitely asked several lawyers if they could help draft a new version of the ogl that would allow them to use 1.0a material in it, but would disallow using material from the new edition in 1.1. How hard is it to imagine that they would come across someone incompetent (or geedy) enough to say yes? Even if they later realise their mistake, they might have gotten themselves in a situation that might make it hard for them to back out of the promise of delivering a draft with (apparently) this property..


----------



## Greg Benage

Enrahim2 said:


> Given how the leak and quotes were presented, I for one did think it was exerps from actual legal texts.



The Gizmodo reporter claimed to have the actual text of the license. Even then, what we were actually seeing was, at best, her excerpts from the draft. And of course, it's possible that she misinterpreted what she was given as the actual text of the license.

It seems clear that some 3PP were given a package of materials or a presentation. That presentation definitely contained a summary of the new license terms, a Q&A, and some statement (I call it "propaganda") of Wizards' legal claims.


----------



## overgeeked

Greg Benage said:


> The Gizmodo reporter claimed to have the actual text of the license. Even then, what we were actually seeing was, at best, her excerpts from the draft. And of course, it's possible that she misinterpreted what she was given as the actual text of the license.
> 
> It seems clear that some 3PP were given a package of materials or a presentation. That presentation definitely contained a summary of the new license terms, a Q&A, and some statement (I call it "propaganda") of Wizards' legal claims.



She was specific in her article that they did consult lawyers before "printing" the article.


----------



## AbdulAlhazred

pemerton said:


> @Greg Benage
> 
> The 3.5 SRD has ability scores, races and classes, but not rules for character creation as such.
> 
> The 5e SRD seems pretty similar in these respects.
> 
> For character creation, I think you need to (i) write it without reference to WotC's copyrighted texts (or anyone else's, for that matter, if they're not licensed to you), and (ii) be sure that it's not infringing. You don't want to violate your authority to contribute; you also don't want to infringe someone else's copyright!



Yeah, I always got the impression that what WotC focused on putting in the SRDs (and thus OGC) was more 'stuff that you need to use in play' vs other more supporting material. So parts of the DMGs that talk about how to play and whatnot, they're not OGC because, even if they can be construed in a sense as rules, they don't arise at the table in a direct way. Character creation is similar; you play with the character sheet you have and how it got filled out is more of a procedural issue and not a 'rule of play' in the same sense. How Fireball works is a rule, you invoke it in play, how you decide which ability scores you have on your sheet is a procedure, and subject to wide variation in actual practice. Few people change the definition of fireballs, but lots of them make up different character generation procedures, and how the character was generated has only the most indirect link to how a fireball works.

The upshot being, neither 3.x nor 5e can be PLAYED from the SRDs, as the SRD is not a structurally complete game system. It contains what is needed to utilize a D&D-style Fireball at the table (IE the text of the spell and at least implicitly definitions of things like hit points, etc.). This is fine in practice, as each game naturally will want to discuss 'how to play' and quite possibly incorporate significantly different overall play processes than what WotC's D&D utilizes. It is also fine from the perspective of "I want to just publish another list of spells and a class to use them" since that will just 'plug in' to the existing D&D rules structure, which need not be recapitulated, and all I might need to do is reprint a few existing spell/monster/item/class/feat descriptions. Or again if I want to just write a D&D adventure, I can recapitulate the monsters/treasures/spells that are required for play as a reference along with my material. WotC certainly never envisaged people simply republishing its books entire, or even nearly entire, and that was easily accomplished via the SRD mechanism. I think the original architects of this approach really did a pretty good job, WotC gave up very little that was really key to its success with D&D, while enabling a LOT of 3PPs to participate in the 'ecology' of the game, or make substantively different games that wouldn't generally cannibalize D&D (though PF1 certainly tested the limits of that).


----------



## Sanji Himura

Greg Benage said:


> The Gizmodo reporter claimed to have the actual text of the license. Even then, what we were actually seeing was, at best, her excerpts from the draft. And of course, it's possible that she misinterpreted what she was given as the actual text of the license.
> 
> It seems clear that some 3PP were given a package of materials or a presentation. That presentation definitely contained a summary of the new license terms, a Q&A, and some statement (I call it "propaganda") of Wizards' legal claims.




Actually, I have the section that everyone is fighting over (the revoke of 1.0a) *as allegedly formatted* by WotC.  Not going to share it here, due to possible issues, but suffice it to say that I think that the document that was passed to the reporter was genuine to the best of my knowledge.


----------



## Greg Benage

overgeeked said:


> She was specific in her article that they did consult lawyers before "printing" the article.



That's fine, but when the article states things like this...



> According to the document procured by io9, the new agreements states that “the Open Game License was always intended to allow the community to help grow _D&D _and expand it creatively. It wasn’t intended to subsidize major competitors, especially now that PDF is by far the most common form of distribution.”




The article claims that "the new agreement states..." but then goes on to quote language that is clearly, even to this non-lawyer, _not_ legal language from the license itself. This is not commentary that we should expect to appear in the text of the actual license.


----------



## kenada

Princessmaker said:


> Something I can see WoTC doing and being an ass about is "updating their Terms of service" of D&D beyond and such, which would mean that if you had an account there or any WoTC website, you would agree with 1.1 and then relinquish (?) your rights to use 1.0a.
> Is that even possible?



This is why I put in a ticket ahead of time requesting my account be deleted. I do not trust WotC not to do something sneaky. I provided the information they requested on Thursday, but I have not heard back. I’m guessing account deletion is a manual process.


----------



## Sanji Himura

Greg Benage said:


> That's fine, but when the article states things like this...
> 
> 
> 
> The article claims that "the new agreement states..." but then goes on to quote language that is clearly, even to this non-lawyer, _not_ legal language from the license itself. This is not commentary that we should expect to appear in the text of the actual license.




The lawyer was probably necessary to prevent legal backlash by WotC.   It isn't a bad idea when considering that you just handed leaked content.


----------



## Steel_Wind

AbdulAlhazred said:


> Right, this is BY FAR IMHO the most likely scenario, 1.1 will simply lack a 'or other version' clause, or it will be an 'or newer version' clause instead, and it will contain a _*'you must cease to distribute under any content under other versions of the OGL' clause. WotC can absolutely do THAT.*_ And they can then only ever release anything under the 1.1 OGL terms ever again, and utilize their Section 9 right to effectively stop letting people directly license from them under 1.0a even for 5e stuff. I just assert that doesn't destroy OTHER CONTRIBUTORS rights to still do so WRT to currently 1.0a OGL licensed material.



The point emphasized above is true, but only technically true. The devil is in the details of the meaning of "*you*".

The problem is that "*you*" is a corporation, and so "you" is a paper creation involving a minute book and some corporate documents. It doesn't ordinarily mean the people, skills, money, or even the associated marks behind that particular "you". The party bound by the contract (the "you" referred to above) is a different entity in law with that of another corporate "you", which is a different corporation that wasn't directly involved in the 1.1 OGL. So there becomes a 1.1 publishing corp and a corporate affiliate that is a 1.0a publishing corp, and the legal/commercial objective of stomping out the 1.0a licensed work is not achieved.

Could you write a provision in an OGL 1.1 that attempts to look behind the identity of a single corporation, and focuses on its corporate affiliates, officers, directors, shareholders and guarantors, and licensed marks or other trade-name or branding in terms of who is caught by the word "you"  when entering into the new agreement?

Long Answer: *Yes*.
Short Answer: *Ya*.

These commercial terms, while not "standard form" are nevertheless so common, I am used to reading them in the context of agreements involving closely held corporations. (In Canada, the term of art used for a truly separate "*you*" is "_*at arm's length*_" and involves reference to a definition in our _Income Tax Act_). That is a feasible approach in most jurisdictions. THAT would give a new OGL some real teeth.


----------



## AbdulAlhazred

Steel_Wind said:


> This contractual approach misses the real teeth that the OGL 1.0a has always had, and that's if that if somebody uses the 1.0a licence to create something, others can then use THAT licensed OGL work as the premise for its further sublicensed derived work.  And because you can't take that valid sublicense right away under the OGL 1.0a under the termination clause - you can't take it away by a declaration or unilateral revocation, either.  WotC is stuck with those ongoing valid sublicensed works, moving forward through time.



Yeah, but this is why I argue that the OGL is a TERRIBLE license. Go read the GPL (any version really) and it is INCREDIBLY clear about this! It EXACTLY defines the relationship between the parties and what happens when someone accepts a GPL application, when they modify it, when they combine it with another work, and describes the 'viral' nature of the license in exact terms. So a question like this could NEVER ARISE under the GPL! However, with the OGL and its crappy articulation, the argument is quite commonly made that there IS NO SUB-LICENSE and that the OGL represents an agreement between you and WotC alone and gives them complete and total control over the duration of their participation in the license, even to the point where they can now 'unmake' the whole OGL entire. No such question/risk could arise under the GPL, or the CC licenses, etc.


Steel_Wind said:


> So WotC can modify (or terminate) the OGL going forward as to how it might apply to a work that was never released under the OGL or SRD. But that doesn't get them out of the ongoing rights of others to use what has already been released under the OGL 1.0a hitherto and declare its work as derived from that -- and those rights continue to spawn new sublicensing rights in the future. Those sublicense rights and may not be suspended or stopped.  The OGL is not static.



Except it never says there are 'sub-licenses' (except in IIRC section 13 where it seems rather inconsistent with the rest of the license text). I mean, I actually AGREE with you that this is the effective structure, but it is not spelled out and that is a very dangerous situation to be in when some lawyers are breathing down your neck.


Steel_Wind said:


> Practically speaking, if a game system uses a D20 and there is any attempt at all at broad-brush compatibility with prior editions, it becomes functionally very difficult to escape the ongoing future reach of any OGL 1.0a product to be used to continue to publish compatible products into the future.
> 
> If that makes the word "perpetual" sound a whole lot like "irrevocable", that's because that was always the intention behind it. Hasbro bought WotC in 1999. The OGL came out after that event, when those corporate officers in charge of D&D at WotC knew that later management teams at WotC would inevitably come to see the OGL as something they would at that future point in time want to escape.  The OGL was drafted in a manner so as to make that practically impossible.



Yeah, again we agree, Ryan and Peter fully intended the OGL to be an irrevocable commitment of essential aspects of D&D into a common pool of material that anyone could use without fear of it ever disappearing. Unfortunately their actual license text appears to fall far short of the standard of incontrovertibly doing so. I guess in their defense the state of the art in open licenses was less developed than it is today 23 years later.


Steel_Wind said:


> Remember, the OGL was a virus that WotC created in ~2000 at a time when its prior version of the game had COMMERCIALLY FAILED and the prior owner of the IP became insolvent. In order to focus the entire RPG business into embracing 3.0, WotC willingly infected itself with the OGL virus -- and then spread it to the entire industry. The incurability of that virus was not a bug -- it was a deliberately crafted "feature" and marketed on that basis. *It worked.  *
> 
> Everyone knew that at some point, new management at WotC would try to undo it. When they moved from 3.xx to 4E, WotC did just that with the GSL in 2008. Commercially, it didn't work. WotC relented with the SRD in 2014, but now appear to be trying to go down that road again. None of this is a surprise, all of it was foreseen by the sub-license language in the OGL that it would inevitably occur at some future point in time.
> 
> The OGL was drafted to make the virus incurable. It was marketed to the industry on that basis. The fact it is a incurable virus should not be seen as a contractual oddity, but as a commercial success.



Yes, but did it? The question at hand is not what the intent was 23 years ago, but what WotC can practicably threaten people with in court TODAY if they so choose.


----------



## overgeeked

kenada said:


> This is why I put in a ticket ahead of time requesting my account be deleted. I do not trust WotC not to do something sneaky. I provided the information they requested on Thursday, but I have not heard back. I’m guessing account deletion is a manual process.



Same. I did that this morning.


----------



## Sanji Himura

Steel_Wind said:


> The point emphasized above is true, but only technically true. The devil is in the details of the meaning of "*you*".
> 
> The problem is that "*you*" is a corporation, and so "you" is a paper creation involving a minute book and some corporate documents. It doesn't ordinarily mean the people, skills, money, or even the associated marks behind that particular "you". The party bound by the contract (the "you" referred to above) is a different entity in law with that of another corporate "you", which is a different corporation that wasn't directly involved in the 1.1 OGL. So there becomes a 1.1 publishing corp and a 1.0a publishing corp, and the legal/commercial objective of stomping out the 1.0a licensed work is not achieved.
> 
> Could you write a provision in an OGL 1.1 that attempts to look behind the identity of a single corporation, and focuses on its affiliates, officers, directors, and shareholders, and licensed marks or other trade-name or branding in terms of who is caught by the word "you"  when entering into the new agreement?
> 
> Long Answer: *Yes*.
> Short Answer *Ya*.
> 
> These commercial terms, while not "standard form" are nevertheless so common, I am used to reading them in the context of agreements involving closely held corporations. That is a feasible approach in most jurisdictions. THAT would give a new OGL some real teeth.



Also another point about this is that while WotC can absolutely say that (insert language that makes 1.0a unauthorized), there is language in 1.0a that absolutely prevents them from doing that.



			
				Section 9 of 1.0a (emphasis added) said:
			
		

> 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.




This implies to me that they can certainly TRY to impose 1.1, and they could do to new work, stuff that was already published under 1.0a can't be stopped from being distributed under any circumstances.


----------



## Steel_Wind

Sanji Himura said:


> Also another point about this is that while WotC can absolutely say that (insert language that makes 1.0a unauthorized), there is language in 1.0a that absolutely prevents them from doing that.
> 
> 
> 
> This implies to me that they can certainly TRY to impose 1.1, and they could do to new work, stuff that was already published under 1.0a can't be stopped from being distributed under any circumstances.



Let me be very clear about this in a plain and unambiguous manner:

Can WotC enter into an agreement with a party, wherein the terms of that new agreement, rights that could otherwise be exercised under another prior contract, even if expressed to last until the end of time itself, be declared to be at an end?

*Yes it can. 100% FOR SURE.* 

You can ALWAYS amend a contract by express agreement, provided the parties have the capacity to enter into a new contract. 

ALWAYS. 

Always is a *Big Word *in law and I am using it intentionally here to make a significant point so that any potential misunderstanding is dispelled. It doesn't matter what another contract says if the new contract you willingly enter into says something else about the other contract in clear language.  Unless there is some independent reason that would prevent the old contract from being terminated or modified (a statute, legal inability to enter into a contract, or some other over-riding issue that goes to the root of contractual capacity) then you can ALWAYS do so.  Contracts are contracts, they aren't Constitutions of a sovereign state.  If the parties consent to do so, they can be routinely amended.  Always.


----------



## bmcdaniel

AbdulAlhazred said:


> However, with the OGL and its crappy articulation, the argument is quite commonly made that there IS NO SUB-LICENSE and that the OGL represents an agreement between you and WotC alone and gives them complete and total control over the duration of their participation in the license, even to the point where they can now 'unmake' the whole OGL entire. No such question/risk could arise under the GPL, or the CC licenses, etc.




I note you indicate that you are not making the argument that the OGL 1.0a represents an agreement between WOTC and the licensee. However, anyone who makes this argument simply has not read the OGL 1.0a: "In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." Contributors is defined as "(a)"Contributors" means the copyright and/or trademark owners who have contributed Open Game Content;"

Its not clear to me who the "Contributors" would be in the context of any use of Open Game Content. Possibly it could mean everyone (who is a copyright/trademark holder) that has contributed Open Game Content under OGL 1.0a. Possibly it could be restricted to those persons that have contributed Open Game Content under OGL 1.0a that is actually being used by the licensee. 

However, under any interpretation, if a licensee is using material from both WOTC and Paizo designated as Open Game Content OGL 1.0a, then OGL 1.0a does not represent an agreement solely between WOTC and the licensee.   

To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. The fact that I don't know what exceptions, complexity and nuance are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.


----------



## Sanji Himura

Steel_Wind said:


> Let me be very clear about this in a plain and unambiguous manner:
> 
> Can WotC enter into an agreement with a party, wherein the terms of that new agreement, rights that could otherwise be exercised under another prior contract, even if expressed to last until the end of time itself, be declared to be at an end?
> 
> *Yes it can. 100% FOR SURE.*
> 
> You can ALWAYS amend a contract by express agreement, provided the parties have the capacity to enter into a new contract.
> 
> ALWAYS.
> 
> Always is a *Big Word *in law and I am using it intentionally here to make a significant point so that any potential misunderstanding is dispelled. It doesn't matter what another contract says if the new contract you willingly enter into says something else about the other contract in clear language.  Unless there is some independent reason that would prevent the old contract from being terminated or modified (a statute, legal inability to enter into a contract, or some other over-riding issue that goes to the root of contractual capacity) then you can ALWAYS do so.  Contracts are contracts, they aren't Constitutions of a sovereign state.  If the parties consent to do so, they can be routinely amended.  Always.



I should have clarified something, and something did get lost in the transition from brain to fingers:

WotC can most certainly have agreements that overwrite prior contracts.  The point that I was trying to make is that things that were made under 1.0a that were previously published should not cease to be distributable just because there is a new license that overwrote the old agreement.

However, I think that we both agree that court intervention can and should be required to sort the mess out.


----------



## kjdavies

This has been a very illuminating discussion and I've learned a lot. Thank you everyone for taking part and sharing your wisdom, knowledge, and weird interpretations  with me.

I see several ways this might turn out: how I hope, how I think it should, how I think it will, and how I hope it doesn't.

It's like worrying about the weather: I believe I cannot do anything about it, so struggling to predict it is not bringing me peace, it is stressful.

Instead, time to put my energy into deciding what I will do if it is sunny, if it is cloudy if it rains, and if it snows.

(bowing out of the conversation... thanks all!)


----------



## Clint_L

A question for lawyers: how would you even begin to frame what game elements can be copyrighted and what cannot in the case of a game as complicated as D&D?

Like, I think we all get that concepts such as rolling dice and taking turns cannot be copyrighted. But how do you draw the line between uncopyrightable gameplay mechanics and, say, character creation? And how does a court rule on something like that without having a really intimate knowledge of the game? I can see how you could explain _Monopoly_ in a court proceeding, but explaining _Dungeons and Dragons_?

Basically, I am wondering if it is even possible to determine where the line between protected and unprotected  game content would be drawn.

Would the most salient law be drawn from video games?


----------



## AbdulAlhazred

sigfried said:


> I think it depends....
> If WOTC is suing you, it doesn't cost you all that much to take it to court.  They are the ones that pay the fees to file the lawsuit and submit most of the motions etc... The defendant has to pay for their legal representation and costs like transportation and so forth. If you have cheap representation or choose to represent yourself, it doesn't cost all that much to get the case into court on your side.



You are sadly mistaken here... They can drag you into court every week, maybe several times a week, for months at a time, force you attend conferences and mandated arbitration hearings, demand endless discovery, try to subpeona everyone under the Sun you work with, and then drag the proceedings out for months and years, all while a cloud of doubt hangs over your business. They can make motions for summary judgement, dismissal, ask for interim restraining orders stopping you from doing business, etc. etc. etc. This all gets very expensive and eats away any value your business has. It is TYPICAL for these sorts of cases to take years to reach resolution, years of paying retainers, fees, and hourly rate charges for lawyers. These are also, often, FEDERAL cases, because copyright is Federal law, which increases the complexity and potentially opens things up to nasty strategies like suing you in New York when you are based in L.A. Care to fly to NYC every other week? Yeah, I don't think so... (I mean, sure you can fight that, YET ANOTHER legal battle!).


sigfried said:


> Most folks that get sued don't want to go to court, and some of the things you might want to do to stop it from happening can indeed cost money, filing various motions and the like if you are happy to carry forward to the trial, not so much. (Obviously, there is a time commitment required and that may well have a big financial opportunity cost.)
> 
> WOTC has to spend a lot more to sue you than you have to spend to defend yourself, but they also have a much better chance of kicking your ass if you don't have some stellar legal counsel.  That said, I'm pretty sure if you were the test case for the whole industry, you could probably find some folks willing to chip in for your defense, enough to get decent counsel for the trial and to make sure you follow the correct steps in the process.
> 
> I don't think you will find many companies that want to do this, and I don't think WOTC will want to go after some small fry who can afford to say, "naughty word it, my new job is to win this court case and I've got almost nothing to lose here even if they win."



Don't hold your breath. WotC can put aside $2 million, which is not a lot of money for a big company and beat you to death with it. Once you've been pounded into dust, the rest of the industry is VERY unlikely to go down the same road, they will cave. They won't support you in the first place either, because then they've alienated WotC themselves, and to no advantage. At best it is risky AND expensive for them. I guarantee you are going to fork out more money than a house in Seattle costs, just to START mounting a defense. I mean, there MAY be a very small select number of RPG community people who are wealthy enough to do that, but not many. Most likely you are 90% on your own.


----------



## Bohandas

I've said it before and I'll say it again: Intellectual property law should be abolished


----------



## Clint_L

Bohandas said:


> I've said it before and I'll say it again: Intellectual property law should be abolished



This is a great suggestion if you want every good idea to be de facto owned (or at least monetized) by mega-corporations.

Edit: I think when folks state something like this they are imagining a world where everyone can start stencilling Mickey Mouse on a t-shirt and selling it to make a few bucks if they want. They aren't imagining a world where every original song or invention is immediately stolen from the little guy and sold to the masses by a massive corporation.


----------



## AbdulAlhazred

pemerton said:


> As per my posts upthread, I'm not so convinced of this. I suspect that for many many people who purchase D&D material because they enjoy playing D&D, this is largely a non-issue.



I don't agree. I think that the influence of 'thought leaders', though far from absolute, has a pretty significant impact on the overall success of D&D and the health of the community. This was made very clear during the 4e era when a pretty limited sub-segment of community members relentlessly poisoned the perception of D&D. The effects of the GSL fed into this, and that seems awfully similar to the likely effects of this putative 'NOGL' license change. No, I can potentially see a case for an unhappy industry that feels ripped off and devalued, a consequent drought in new material, and a general tone of ill-will and suspicion towards WotC (which was definitely a tendency during the 'Edition Wars' when we got endless repeats of the story of how WotC 'dissed everyone under the Sun who liked 3.5' ad nauseum).


----------



## AbdulAlhazred

pemerton said:


> I don't think it's an argument they can make at all.
> 
> To see why I say that, think through who would they be making it to, and in what context. I mean, suppose that WotC make some public statement purporting to give notice to all OGL v 1.0/1.0a licensees that from hereon in WotC is revoking their rights under that licence by exercise of a power under section 9. (Which is what you are suggesting they might do. There is no difference between what you are calling "deauthorisation" and unilateral revocation of existing licences.)
> 
> Then suppose that publishers keep publishing, exercising their rights under the OGL v 1.0/1.0a. And suppose that WotC sues them for copyright infringement, arguing that the infringement is the result of the licence having been retracted by exercise of a power conferred on WotC by section 9. In my view that is a ludicrous scenario, and WotC will not do it.
> 
> I think it's clear that section 9 confers a power on WotC - to issue variant licence terms - and confers a permission on licensees - to use those variant terms in their licensing. And that's it.
> 
> I'm yet to see an argument that WotC has a power to revoke the contracts unilaterally, but if it purports to do so I'm pretty sure that it won't be by a spurious appeal to a notional power under section 9.
> 
> I mean, if WotC argue that the term is ambiguous, then they open themselves up to all the extrinsic evidence as to what the parties understood it to mean. But if they don't, there is no basis at all for their claim to enjoy a power of the sort you're conjecturing they might argue they enjoy.
> 
> There is no argument I've heard, or can envisage, that section 9 - which refers to WotC publishing updated versions of the licence (ie licences with variant terms) - also by implication confers a power on WotC to revoke existing licences unilaterally.
> 
> I don't know what you are thinking of: the leaks I have seen all point to a term of the new licence being an acceptance that no OGC or Licensed Content will be distributed by the party pursuant to the OGL v 1.0/1.0a.
> 
> It is a further way of making clear that the OGL v 1.1 is not a version of the sort contemplated by section 9 of the OGL v 1.0/1.0a. As @S'mon pointed out in some of his early posts on this issue, if WotC is not clear about this then licensees under the OGL v 1.0/1.0a could claim to be already licensed to use OGC issued by WotC under a different licence, by arguing that it is exactly the sort of variation that section 9 contemplates.



RIGHT! That's the problem with a 'Section 9 Revocation' argument, because as soon as you make it, you must effectively assert that OGL 1.1 is not an OGL in the sense that 1.0a allows you to choose a version of. It either IS, in which case I exercise my rights under 1.0a to not use that version, OR it ISN'T in which case its some completely new beast that isn't even relevant to a discussion of OGL at all. 

I think the best WotC could achieve would be to 'split the baby' and assert that it is using the 'or other version' clause to now assert a distribution of its OGC under that new version, which seems to be quite reasonable, though its unclear they can RETROACTIVELY do that with existing already released content that 3rd parties have already distributed (again, by estoppel or some form of laches/waiver kind of argument, etc.). Its also dangerous for them as they have to open the door to discussing the reasoning behind the whole 'or any other version' clause, which can ONLY have been put in the license for very purpose of making any such attempt futile! At that point the defense calls Peter Adkinson and Ryan Darcy to testify... lol.


----------



## Bohandas

Clint_L said:


> This is a great suggestion if you want every good idea to be de facto owned (or at least monetized) by mega-corporations.
> 
> Edit: I think when folks state something like this they are imagining a world where everyone can start stencilling Mickey Mouse on a t-shirt and selling it to make a few bucks if they want. They aren't imagining a world where every original song or invention is immediately stolen from the little guy and sold to the masses by a massive corporation.




The only way the megacorporations can sell anything is because of copyright law. Do you really think anyone would subscribe to Disney+ or HBOMAX if all that content was just out there for free?


----------



## Cadence

Bohandas said:


> The only way the megacorporations can sell anything is because of copyright law. Do you really think anyone would subscribe to Disney+ or HBOMAX if all that content was just out there for free?



Who would pay for the special effects and actors and etc... to make it in the first place then?


----------



## Incenjucar

Bohandas said:


> The only way the megacorporations can sell anything is because of copyright law. Do you really think anyone would subscribe to Disney+ or HBOMAX if all that content was just out there for free?



Eh. You can still have fans pay for something to get it made. Works for indie cartoons like Helluva Boss.


----------



## Clint_L

Bohandas said:


> The only way the megacorporations can sell anything is because of copyright law. Do you really think anyone would subscribe to Disney+ or HBOMAX if all that content was just out there for free?



No, because I don't think any of that content would be out there if no one was paying for it.

Edit: NM. let's not turn this into a thread about capitalism vs. anarchy. I want to learn more about what actual lawyers have to say about the OGL.


----------



## Bohandas

Clint_L said:


> No, because I don't think any of that content would be out there if no one was paying for it.




Yes it would. I was there in the early days of the internet before Adobe screwed over the flash sites and before professionals took over Youtube. I've seen it happen.


----------



## Clint_L

Bohandas said:


> Yes it would. I was there in the early days of the internet before Adobe screwed over the flash sites and before professionals took over Youtube. I've seen it happen.



edit: deleted


----------



## slaymaker1907

DavyGreenwind said:


> Hahaha, I thought about the young chickens.
> 
> And if I sound _certain, _that's on me. You are right, none of this is remotely settled and could have totally different outcomes depending on state and federal circuit.
> 
> For me, the bottom line is *I don't see a United States judge making irrevocable a license that does not say "irrevocable."* That's totally contrary to US common law _and_ the restatement.
> 
> For the legislative analogy, I respect your opinion, but stand by it as a useful academic comparison.



There is strong precedent for an open license that allows for sub licensing to be irrevocable. In fact, it would cost the software industry tens of billions in dollars if this were not the case almost overnight. The MIT license mentions nothing about being irrevocable yet it widely assumed to be as such (otherwise there would be huge risk in using any software library under the MIT license).

What companies can (and have done) do to move away from an open license is to release any new versions of said software under a more restrictive license. However, users can and have either just used the old and open version or even just forked said code to have do things like security updates.

WotC is playing a stupid game here and is going to win stupid prizes. I think their lawyers are awful (ones that know what they are doing will either just use an existing license or carefully modify an existing open license) and this is going to cost them huge amounts money in legal fees.


----------



## mamba

Bohandas said:


> The only way the megacorporations can sell anything is because of copyright law. Do you really think anyone would subscribe to Disney+ or HBOMAX if all that content was just out there for free?



do you think anyone would produce content (the kind of content we are talking about here, high production value movies and tv series, not tik toks and youtube)  if it were?


----------



## Xyxox

AbdulAlhazred said:


> You are sadly mistaken here... They can drag you into court every week, maybe several times a week, for months at a time, force you attend conferences and mandated arbitration hearings, demand endless discovery, try to subpeona everyone under the Sun you work with, and then drag the proceedings out for months and years, all while a cloud of doubt hangs over your business. They can make motions for summary judgement, dismissal, ask for interim restraining orders stopping you from doing business, etc. etc. etc. This all gets very expensive and eats away any value your business has. It is TYPICAL for these sorts of cases to take years to reach resolution, years of paying retainers, fees, and hourly rate charges for lawyers. These are also, often, FEDERAL cases, because copyright is Federal law, which increases the complexity and potentially opens things up to nasty strategies like suing you in New York when you are based in L.A. Care to fly to NYC every other week? Yeah, I don't think so... (I mean, sure you can fight that, YET ANOTHER legal battle!).



This, folks, is what is known as Nuclear Lawfare. It's completely legal and is how larger corporations have been sticking it to smaller corporations for decades upon decades. If the smaller litigant has enough, it can become a mutually assured destruction scenario, but it requires a major amount of funding to get there.


----------



## Steel_Wind

Enrahim2 said:


> Given how the leak and quotes were presented, I for one did think it was exerps from actual legal texts. And I am very surprised if I am alone. This might be good to be aware of when interacting with non-lawyers, if this indeed is obvious to a lawyer.



You are missing the nuanced point here: it isn't that the documents that were leaked were not the work of lawyers engaged by WotC; rather, it is that those documents themselves are still in draft form. They have not been released by WotC or acted upon.  It appears that right now, matters are still in flux. To what degree? We simply don't know.

This is not unusual. I draft legal documents daily and some time later, send them to the client for approval. With complicated documents, there are follow up meetings and discussions. 

*tl;dr:* just because a lawyer wrote it does not mean it is a "final" draft. It might be -- and it might not be, too. Let's wait and see what happens.


----------



## Xyxox

Based upon what was revealed here:


Ogl 1.1 is real, it was planned to be released on the 4th with sign on required by the 13th. It was attached to contracts they sent out to big third party companies with the idea being they get the big third parties to sign on to sweetheart contracts and OGL 1.1 is a done deal because none of the smaller third parties would be capable of affording litigating it.

WotC/Hasbro was actually going down this dirty road and only stopped because somebody leaked it before it could be announced.

WotC/Hasbro was 10 seconds from midnight on Nuclear Lawfare.


----------



## overgeeked

Xyxox said:


> WotC/Hasbro was actually going down this dirty road and only stopped because somebody leaked it before it could be announced.



Even if they properly stop and never proceed, there are too many big name 3PP who’ve publicly and privately said they’re walking away.


----------



## Xyxox

Steel_Wind said:


> You are missing the nuanced point here: it isn't that the documents that were leaked were not the work of lawyers engaged by WotC; rather, it is that those documents themselves are still in draft form. They have not been released by WotC or acted upon.  It appears that right now, matters are still in flux. To what degree? We simply don't know.
> 
> This is not unusual. I draft legal documents daily and some time later, send them to the client for approval. With complicated documents, there are follow up meetings and discussions.
> 
> *tl;dr:* just because a lawyer wrote it does not mean it is a "final" draft. It might be -- and it might not be, too. Let's wait and see what happens.



It wasn't a draft. It was a final version. It was attached to multiple contracts sent out to large third party creators with contracts that were sweetheart deals before Christmas. The only reason it is not in force right now is it was leaked before it was released and WotC/Hasbro blinked. See post 664.


----------



## Xyxox

overgeeked said:


> Even if they properly stop and never proceed, there are too many big name 3PP who’ve publicly and privately said they’re walking away.



I am firmly convinced they are still going to do it, they are just regrouping on how to implement.

This will be locked up in courts for years.


----------



## overgeeked

Xyxox said:


> It wasn't a draft. It was a final version. It was attached to multiple contracts sent out to large third party creators with contracts that were sweetheart deals before Christmas. The only reason it is not in force right now is it was leaked before it was released and WotC/Hasbro blinked. See post 664.



Now we just need to know who among the 3PP signed on to screw over everyone else.


----------



## Xyxox

overgeeked said:


> Now we just need to know who among the 3PP signed on to screw over everyone else.



It will be easy to tell what third parties sold out the community for thirty pieces of silver. My guess is Critical role probably did because they probably got the best deal of all, but time will tell.


----------



## Steel_Wind

Xyxox said:


> It wasn't a draft. It was a final version. It was attached to multiple contracts sent out to large third party creators with contracts that were sweetheart deals before Christmas. The only reason it is not in force right now is it was leaked before it was released and WotC/Hasbro blinked. See post 664.



That may be correct - and it may not be, too. I'll wait and let the dust settle on this one.

There is no prize awarded to those who act in haste without any reason to do so.


----------



## overgeeked

Xyxox said:


> It will be easy to tell what third parties sold out the community for thirty pieces of silver. My guess is Critical role probably did because they probably got the best deal of all, but time will tell.



I hope not, but you’re probably right.


----------



## Xyxox

Steel_Wind said:


> That may be correct - and it may not be, too. I'll wait and let the dust settle on this one.
> 
> There is no prize awarded to those who act in haste without any reason to do so.



It's correct. Multiple sources confirm. Go here:


----------



## S'mon

Steel_Wind said:


> I don't think that it will end up as promissory estoppel, though I appreciate that you can put that lipstick on it and it seems to look bright and red and fits the outline. The problem is, estoppel is weak on the remedy side and uncertain (if not poor) in the context of ongoing commerce. The part(ies) who want to continue to keep using the 1.0a will not want it decided on that basis. There's a poor contractual future when the argument is based on promissory estoppel.
> 
> So instead, it's a "true construction of the contract" argument, with the evidence replete with reference to evidence of reasonable reliance on a particular interpretation to persuade the court that it's doing the right thing and enforcing an interpretation that the parties all understood to be commercially reasonable.
> 
> In that sense, it's simply an interpretation of the "plain meaning of the words", and resolving the supposed ambiguity and "true construction of the contract" by reference to how the parties actually conducted themselves over a very long period of time. This has always been held by the court as demonstrative of contractual meaning and intent. There is no better way to understand how the parties treated the wording of the agreement than to look at how they actually conducted themselves under it.
> 
> If that sounds a little like some tautology b.s. -- that's because, in part, it is. Nevertheless, that's how cases are actually decided in court, in my experience.
> 
> What is really happening in these cases is not an intellectual contractual analysis that leads to a result; rather, it is an evidentiary presentation that convinces the court as to the just outcome. The court then looks for reasons to justify it.
> 
> It's not about doctrine, it's about evidence.




Yes, I completely agree. Estoppel is a last ditch defence for current licensees, but I don't think it would ever come to that.


----------



## Maxperson

Steel_Wind said:


> This contractual approach misses the real teeth that the OGL 1.0a has always had, and that's if that if somebody uses the 1.0a licence to create something, others can then use THAT licensed OGL work as the premise for its further sublicensed derived work.  And because you can't take that valid sublicense right away under the OGL 1.0a under the termination clause - you can't take it away by a declaration or unilateral revocation, either.  WotC is stuck with those ongoing valid sublicensed works, moving forward through time.



If WotC does end up revoking the OGL 1.0a, will new sublicenses be possible? Saying that sublicences *survive the termination* seems to imply that they would need to exist prior to termination.


----------



## Xyxox

OMG! They want ANYBODY doing podcasts about D&D that make money YOU HAVE TO REPORT YOUR EARNINGS TO WotC/Hasbro! ANYTHING AT ALL ON D&D YOU MUST REPORT INCOME TO THEM!


----------



## overgeeked

Maxperson said:


> If WotC does end up revoking the OGL 1.0a, will new sublicenses be possible? Saying that sublicences *survive the termination* seems to imply that they would need to exist prior to termination.



Which is why some people are rushing out their products to get in before the deadline, if there is one.


----------



## sigfried

AbdulAlhazred said:


> You are sadly mistaken here...



Everyone's circumstances are different. I've been sued a couple of times and never had to spend a dime to defend myself. While it's possible they could spend 2 million going after me, it would be completely insane to do so as I've got hardly any tangible assets and the only product I personally publish is free, my work is being a freelance writer so I can do that anywhere in the world at any time of day or night, being sued by WOTC over use of the OGL would only enhance my reputation. My defense would cost them exponentially more than it would cost me.

If everyone is afraid of the bully, the bully wins. Some folks have too much riding to take a risk like that, I totally understand. But there are ways to fight as the underdog and people can win when they are crafty and wise, especially when they have good legal standing.

Right now, the best way to fight is to convince WOTC this is a mistake, and arguing that no one could stop them... I don't think that helps the cause much.


----------



## Ruin Explorer

Xyxox said:


> It will be easy to tell what third parties sold out the community for thirty pieces of silver. My guess is Critical role probably did because they probably got the best deal of all, but time will tell.



God I was kind of assuming everyone would wait until pretty much the last minute before actually signing any deals, including sweetheart ones because of fear of something like this happening.

But if some 3PPs have gone "Full Judas" (never go full Judas), then hoo boy this is going to be the some WW3-type stuff on the RPG internet for a while.

God if Critical Role have locked themselves in, and WotC _does_ release the OGL 1.1 replete with the deauthorization clause, that's going to be insane. The CR people will get criticised to hell and back. "Matt Mercer" will become a name of ill-repute, and the huge army of blindly loyal hyperfans CR has, who see it as unable to do any wrong, will be open warfare with anyone criticising CR, include a hordes of less-extreme CR fans.

On a positive note, though, this gives CR an incredibly strong incentive to make WotC see sense on the OGL 1.1, and make the actual final document significantly less extreme (particularly removing the deauthorization or turning it into a "mere" poison pill).


Xyxox said:


> I am firmly convinced they are still going to do it, they are just regrouping on how to implement.



Is that a gut instinct or evidence-based? Not a criticism either way, but if the latter, what are you basing it on?

For me the delay and all-round silence is strongly suggestive of "OH CRAP WE DUN MESSED UP". I feel like if they were still intending to go ahead with the OGL 1.1 as received by io9/Linda, there would be messaging from 3PPs who'd already signed onto sweetheart contracts that "It's not going to be that bad!" (even though it would be), and AFAICT no-one is saying that.


Xyxox said:


> OMG! They want ANYBODY doing podcasts about D&D that make money YOU HAVE TO REPORT YOUR EARNINGS TO WotC/Hasbro! ANYTHING AT ALL ON D&D YOU MUST REPORT INCOME TO THEM!



What lol?

Wow. I think that alone would be enough to convince an awful lot of podcasts to go "Hey guys now we're a Pathfinder podcast!".


----------



## mamba

Xyxox said:


> This, folks, is what is known as Nuclear Lawfare. It's completely legal and is how larger corporations have been sticking it to smaller corporations for decades upon decades.



I wish 'legal' and 'right, ethical and moral' had a lot more overlap than they actually do


----------



## mamba

overgeeked said:


> Even if they properly stop and never proceed, there are too many big name 3PP who’ve publicly and privately said they’re walking away.



I hope they evaluate their options, figure out how to best get away from the OGL and then do, because WotC cannot be trusted any more


----------



## mamba

overgeeked said:


> Now we just need to know who among the 3PP signed on to screw over everyone else.



1) you will notice when their products come up with the mandatory badge, 2) I am not sure I consider them caving the same as screwing over others, WotC screwed all of them, every single one is a victim


----------



## Steel_Wind

Maxperson said:


> If WotC does end up revoking the OGL 1.0a, will new sublicenses be possible? Saying that sublicences *survive the termination* seems to imply that they would need to exist prior to termination.



I don't think that's necessarily follows at all.

It could mean that, sure.

It could also mean that only the original OGL work by another party needs to be created. The sublicensing rights continue. The ongoing nature of the OGL was how other producers might obtain brand value out of the OGL, too, just as WotC was receiving. That was the carrot.


----------



## sigfried

S'mon said:


> The OGL definitely does not require that you use material from the SRD. You can use it with completely original material.



The one reason I could see smaller publishers going non-OGL as a strategic move is detectability.  If you have the OGL text, its easy scrape that up in a search to send letters to etc...

If you are "running dark" and not copy-pasting SRD material, it's harder to get a 100% certain hit on your material in an automated search. They could, but they would get a lot of false positives doing that as well, making things costlier and messier. I don't think that helps a larger publisher who everyone knows, but the little guys who are basically under the radar go a bit darker by dropping the OGL and any associated marks like 5e.

Still, I think folks would be wise to prepare but not act until we see what WOTC actually does.


----------



## S'mon

Xyxox said:


> Based upon what was revealed here:
> 
> 
> Ogl 1.1 is real, it was planned to be released on the 4th with sign on required by the 13th. It was attached to contracts they sent out to big third party companies with the idea being they get the big third parties to sign on to sweetheart contracts and OGL 1.1 is a done deal because none of the smaller third parties would be capable of affording litigating it.
> 
> WotC/Hasbro was actually going down this dirty road and only stopped because somebody leaked it before it could be announced.
> 
> WotC/Hasbro was 10 seconds from midnight on Nuclear Lawfare.


----------



## Xyxox

Ruin Explorer said:


> Is that a gut instinct or evidence-based? Not a criticism either way, but if the latter, what are you basing it on?



Gut instinct. It already went out attached to contracts to convince third parties to sign the sweetheart deal. If even one of those contracts has been exercised, they MUST release it, it all comes down to when and how.


----------



## Bohandas

mamba said:


> I wish 'legal' and 'right, ethical and moral' had a lot more overlap than they actually do




They have overlap?


----------



## Xyxox

mamba said:


> 1) you will notice when their products come up with the mandatory badge, 2) I am not sure I consider them caving the same as screwing over others, WotC screwed all of them, every single one is a victim



And I will never buy a product from any of those who sign.

Your mileage may vary.


----------



## Bohandas

mamba said:


> I wish 'legal' and 'right, ethical and moral' had a lot more overlap than they actually do




"When morality is forgotten, there is law" -Lao Tzu


----------



## mamba

Bohandas said:


> They have overlap?



not by design it seems, but sometimes accidentally


----------



## Xyxox

Looking like Paizo will be fighting this. Sounds like a very good chance of them doing it any way.


----------



## overgeeked

Xyxox said:


> Looking like Paizo will be fighting this. Sounds like a very good chance.



Good. Source?


----------



## kenada

Xyxox said:


> Looking like Paizo will be fighting this. Sounds like a very good chance.



Do you have a source? I don’t see anything on their social media or website.


----------



## Uta-napishti

DavyGreenwind said:


> Open software is different, because software code and copyright is a _huge _can of worms. I only know enough about it to know to stay the hell away from it.



Boy, While I think that you are bringing interesting points to this discussion, this is IMHO an admission you are way out of your field.  If you think Open source licenses are weird and unique...despite the fact that they run much of the world intellectual property economy, I don't know what to tell you.  

Also on the presense or absense of the word "irrevocable" the GPL 2.0 an open source lisence tested more than any other in court, doesn't include the word irrevocable, but it is irrevocable, say the courts. It was written in 1991.  A later version of the license, GPL 3.0, written in 2007 does include the work "irrevocable", probably because a lawyer in your vein told them it was a good idea these days.  The OGL, written in 2001, was aping earlier opensource licenses at the time like the GPL 2.0, which did not bother to include that word.  Those earlier licenses have been considered irrevocable in court nonetheless.

I do agree with you completely about the fact that OneDND won't be available back under the old OGLs, but I don't think there is any reasonable way that the 5.0 SRD could be said to no longer be available to all under the OGL 1.0a.  The 5E SRD already out there with that license attached, and anyone can use that document under the attached license -- no Backsies.


----------



## Xyxox

kenada said:


> Do you have a source? I don’t see anything on their social media or website.



the stream I'm watching on Youtube right now


----------



## Myrdin Potter

There is a certain amount of hyperbole about the ability to go completely nuclear in this type of lawsuit. Federal lawsuits do not allow you to blindly select a location. Usually there needs to be a nexus and a reason. So many 3PP are in the greater Seattle area as is WoTC that any defense lawyer worth paying can easily fight that.

WoTC is actually much more vulnerable to discovery and discovery costs that the average 3PP. What exactly is there to discover? About the only damaging thing would be some internal document saying that they well understood that the license was at the whim of WoTC or something.

I also think that there is too much reliance on game mechanics not being able to be copyrighted. The bare mechanics, yes. The expression of the mechanics? That I would have to see case law examples, especially for RPG which are different than a more simple board game.

WoTC certainly can make the defense somewhat expensive but it is more the cloud over the product and the ability to sell it while defending it that I see is the main threat. Start a slow burn of cash on defense and stop replacement cash via revenue. Even a short term hurting of overall 5e revenue will hit 3PP.

I also can easily place myself in their shoes and see why Hasbro might think this is a sound business decision.

Monday is the start of the workweek so I guess we might see something more there.


----------



## Xyxox

overgeeked said:


> Good. Source?




There is also a tiny chance Paizo sells to WotC as it would make sense for WotC to buy them.


----------



## overgeeked

Xyxox said:


> There is also a tiny chance Paizo sells to WotC as it would make sense for WotC to buy them.



So is that him speculating or is that something he knows that Paizo is going but just haven’t announced yet?


----------



## Xyxox

overgeeked said:


> So is that him speculating or is that something he knows that Paizo is going but just haven’t announced yet?



It was based on his inside knowledge of Paizo. He stated outright the best chance the community has is Paizo fighting it and that there is a good chance they will, but did caution there is also a small chance they just sell the company to WotC to avoid the fight.

He has also said that there are multiple third parties in the background talking with lawyers and getting prepared.


----------



## Uta-napishti

Staffan said:


> This is the bit that confuses me (as a non-lawyer).
> 
> The core part of the OGL is this:
> 4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
> 
> "Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."
> 
> "Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"
> 
> So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.
> 
> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



You have as a non lawyer hit the actual crux of the matter, and the reason why OGL 1.0a lisenced content like the old SRDs are safe.  New content like a future OneDnD SRD, will not use an open license, so that is a completely separate issue how WoTC is killing golden goose there.


----------



## Greg Benage

Xyxox said:


> It was based on his inside knowledge of Paizo. He stated outright the best chance the community has is Paizo fighting it and that there is a good chance they will, but did caution there is also a small chance they just sell the company to WotC to avoid the fight.
> 
> He has also said that there are multiple third parties in the background talking with lawyers and getting prepared.



And what sources is he citing?

I'm sorry, I'm probably just old, but these guys speculating and rumormongering on YouTube while that "SuperChat" money is dinging every few seconds...I don't trust any of it and never will.


----------



## Xyxox

BOOM! It's hitting Mainstream media:



			How DnD Open Gaming License Changes Will Impact Other TTRPGs


----------



## Ruin Explorer

Xyxox said:


> Gut instinct. It already went out attached to contracts to convince third parties to sign the sweetheart deal. If even one of those contracts has been exercised, they MUST release it, it all comes down to when and how.



IANAL of course but must they?

The contract received was a draft. Sure a late draft they seem to have been instructed was "basically final", but not actually final. Presumably they'd have final one to e-sign between the 4th and 13th.

If someone signed a special agreement on the basis of the "Full Evil" OGL 1.1, I suspect it would be acceptable to both them and WotC to dissolve that contract if WotC wanted to change the OGL 1.1.


----------



## Xyxox

Greg Benage said:


> And what sources is he citing?
> 
> I'm sorry, I'm probably just old, but these guys speculating and rumormongering on YouTube while that "SuperChat" money is dinging every few seconds...I don't trust any of it and never will.



He's not speculating. Teh community of third party producers is small and everybody knows everybody else. People working for him wrote Pathfinder 2E. He knows the owner of Paizo. He's not revealing precisely where information came from, but he and people he knows have contact with everybody in the business who is anybody.


----------



## Greg Benage

Xyxox said:


> He's not speculating. Teh community of third party producers is small and everybody knows everybody else. People working for him wrote Pathfinder 2E. He knows the owner of Paizo. He's not revealing precisely where information came from, but he and people he knows have contact with everybody in the business who is anybody.



Sounds like he'd be a great source for a real journalist, but he's not a journalist. He is raking in that SuperChat money, though.


----------



## Xyxox

Ruin Explorer said:


> IANAL of course but must they?
> 
> The contract received was a draft. Sure a late draft they seem to have been instructed was "basically final", but not actually final. Presumably they'd have final one to e-sign between the 4th and 13th.
> 
> If someone signed a special agreement on the basis of the "Full Evil" OGL 1.1, I suspect it would be acceptable to both them and WotC to dissolve that contract if WotC wanted to change the OGL 1.1.



It was not a draft, it was an actual contract they wanted signed onto. If somebody signed their contract and the OGL 1.1 is not released as that was included to induce the signature, then WotC has engaged in fraud to get a signature on a  contract. That's why they must release it or they face not just civil consequenses from the signor, they face criminal consequences for committing fraud.


----------



## Xyxox

Greg Benage said:


> Sounds like he'd be a great source for a real journalist, but he's not a journalist. He is raking in that SuperChat money, though.



He owns and operates Roll For Combat Battlezoo Online Shop

He was not considered big enough to be offered one of these contracts so unlike all the big 3pp, he is not under NDA.


----------



## kenada

Xyxox said:


> the stream I'm watching on Youtube right now



Based on your subsequent comments, it sounds like (informed) speculation. I’d really like to see something official, especially since there is apparently a possibility they sell out.


----------



## Greg Benage

Xyxox said:


> He owns and operates Roll For Combat Battlezoo Online Shop



Never heard of it. Listen, man, I know you're into it and everything, and that's cool. The guy might be spittin' straight truth (trying to sound young and hip, here). But to my ears, what you're saying is one step away from "Q isn't speculating, he's dialed in, he's on the inside, he knows everyone who's worth knowing" yada yada yada.

ETA: If he _isn't_ just speculating and his contacts are where you say there are, Paizo needs to tell him to STFU.


----------



## pemerton

Enrahim2 said:


> why wizards would go trough the hoops of calling the new licence an ogl, rather than just making a new lisence outright?



There's no real difference between these two things.

A reason for calling it OGL is rhetoric, as you note. Another is that (at least at a guess) it will be quasi-open, in that it will still create an ecosystem of Licensed Content, but subject to the royalties regime WotC have set out.



Enrahim2 said:


> Or where could whoever actually writing the nonsensical "no longer an authorized" get the highly inflammatory ambigous, uncommon and poorly matching word "authorised" for describing what you as a lawyer managed to describe in much better and non-indlamatory terms.



On the other hand, this is something I could easily belief is just a communication snafu - whoever prepared the summary information may not have appreciated that the concept of "authorisation" would take on the life of its own that it seems to have.


----------



## Xyxox

Greg Benage said:


> Never heard of it. Listen, man, I know you're into it and everything, and that's cool. The guy might be spittin' straight truth (trying to sound young and hip, here). But to my ears, what you're saying is one step away from "Q isn't speculating, he's dialed in, he's on the inside, he knows everyone who's worth knowing" yada yada yada.
> 
> ETA: If he _isn't_ just speculating and his contacts are where you say there are, Paizo needs to tell him to STFU.



1) I'm as old as he is.
2) He IS connected to every third party provider in the industry that is worth anything big.
3) He has people working for him that have worked for WotC, Paizo, Goodman Games, etc.
4) Think whatever you want, this is real, it is happening, and people better get prepared because it is likely nobody will be able to use OneBookShelf to sell anything that is OGL 1.0a very soon. Same goes for OGL 1.0a content on Kickstarter.


----------



## Ruin Explorer

Xyxox said:


> It was not a draft, it was an actual contract they wanted signed onto. If somebody signed their contract and the OGL 1.1 is not released as that was included to induce the signature, then WotC has engaged in fraud to get a signature on a  contract. That's why they must release it or they face not just civil consequenses from the signor, they face criminal consequences for committing fraud.



This seems like it's making a lot of assumptions about what exactly the contract said. And both sides could agree to dissolve it even if it had entered into force.


----------



## overgeeked

Xyxox said:


> BOOM! It's hitting Mainstream media:
> 
> 
> 
> How DnD Open Gaming License Changes Will Impact Other TTRPGs



That was posted earlier. It’s an aggregator that scooped up CBR’s article from yesterday.


----------



## Xyxox

Ruin Explorer said:


> This seems like it's making a lot of assumptions about what exactly the contract said. And both sides could agree to dissolve it even if it had entered into force.



so long as the signor never reports it to law enforcement when they dissolve, WotCis safe from criminal consequences. Dissolving it will not stop a signor from  reporting it, though. That would only be a position of good faith.


----------



## rcade

Xyxox said:


> 4) Think whatever you want, this is real, it is happening, and people better get prepared because it is likely nobody will be able to use OneBookShelf to sell anything that is OGL 1.0a very soon.



If that happens, I expect Warehouse 23 will get a lot of new customers for third-party PDFs OneBookShelf refuses to sell.


----------



## overgeeked

rcade said:


> If that happens, I expect Warehouse 23 will get a lot of new customers for third-party PDFs OneBookShelf refuses to sell.



Right up until WotC lawyers show up.


----------



## Xyxox

rcade said:


> If that happens, I expect Warehouse 23 will get a lot of new customers for third-party PDFs OneBookShelf refuses to sell.



And I would expect Warehouse 23 to get a cease and desist shortly after. This is Lawfare and it looks like Hasbro is not playing games.


----------



## Ruin Explorer

Xyxox said:


> so long as the signor never reports it to law enforcement when they dissolve, WotCis safe from criminal consequences. Dissolving it will not stop a signor from  reporting it, though. That would only be a position of good faith.



I am incredibly skeptical the police and DA would be willing to actually pursue a case like that. They barely pursue incredibly obvious and quite serious cases of fraud, let alone one which demonstrably had no monetary loss. Especially when the "bad guy" was Hasbro of all people. I don't think it would even be considered Fraud in the UK so long as it was dissolved with no loss (and I'm taking your word that it would be in the US).


----------



## Myrdin Potter

It would be incredibly hard to prove intent to fraud if they were going to release the new license and entered into the agreement in good faith. Why a DA would ever take that up if they cared about their win percentages (and they do) escapes me.

A civil case would have to show damages.


----------



## Clint_L

This particular thread was a lot more useful when it was mostly real lawyers. I regret adding my own "contributions." Could we go back to maybe just asking questions, if we are not lawyers? The opinions of non-lawyers, like me, don't really add anything.

Just this one thread. There are plenty of others for us non-lawyers to share our opinions. But it was nice that there was one that had serious legal analysis happening and I think we are scaring it away.


----------



## rcade

Xyxox said:


> And I would expect Warehouse 23 to get a cease and desist shortly after. This is Lawfare and it looks like Hasbro is not playing games.



Steve Jackson Games sued the Secret Service and won, a court fight that led to the creation of the Electronic Frontier Foundation. It isn't going to stop selling legal PDFs because another RPG publisher wants to do a Thanos snap on 23 years of open games.


----------



## Uta-napishti

Xyxox said:


> This is what happens when you put former Microsoft people in charge of something released under an open license. They have absolutely no understanding of how open licensing functions and consider it a virus to be wiped out from everything they were taught under Ballmer.



Bingo.  Hope they enjoyed having their butts handed to them by the Open Source Software community because they are about to get the same pain, ignominy and scorn from the RPG ecosystem. Heck they may have actually left Microsoft BECAUSE it was learning it's lesson and opening up.


----------



## Prime_Evil

Here's a question. The OGL v.1.0 prohibits licensees from adding or subtracting anything from the terms of the licence:



> No terms may be added to or subtracted from this License except as described by the License itself. No other terms or conditions may be applied to any Open Game Content distributed using this License.



This statement seems to apply only to Open Game Content and not Product Identity. Could a licensee designate most of a derivative work as Product Identity and then release the Product Identity under a different licence (say Creative Commons)? Would this provide any protection against revocation / termination of the parent licence since the Product Identity is embedded in a derivative work?


----------



## Prime_Evil

S'mon said:


>



Invoking Iron Maiden is always a good strategy!


----------



## Azzy

Xyxox said:


> This, folks, is what is known as Nuclear Lawfare. It's completely legal and is how larger corporations have been sticking it to smaller corporations for decades upon decades. If the smaller litigant has enough, it can become a mutually assured destruction scenario, but it requires a major amount of funding to get there.



It's disgusting how the law is the playground of the rich at the expense to the rest of us.


----------



## overgeeked

rcade said:


> Steve Jackson Games sued the Secret Service and won, a court fight that led to the creation of the Electronic Frontier Foundation. It isn't going to stop selling legal PDFs because another RPG publisher wants to do a Thanos snap on 23 years of open games.



What percent of One Shelf's business can it lose before it's no longer viable as a business? What percent of One Shelf's business is due to WotC and its products? Unless that second number is drastically smaller than the first, One Shelf isn't going to fight. They'll roll over.


----------



## GracefulBreath

Staffan said:


> This is the bit that confuses me (as a non-lawyer).
> 
> The core part of the OGL is this:
> 4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
> 
> "Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."
> 
> "Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"
> 
> So, when Paizo released Pathfinder, they used the OGL, and were thus *granted* a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.
> 
> And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.



also NAL, but i think that maybe any 3rd party content for Pathfinder counts as a derivative work for the purpose of what classifies as OGL content since Pathfinder itself is OGL content.


----------



## S'mon

overgeeked said:


> What percent of One Shelf's business can it lose before it's no longer viable as a business? What percent of One Shelf's business is due to WotC and its products? Unless that second number is drastically smaller than the first, One Shelf isn't going to fight. They'll roll over.




I dunno. Rolling over seems akin to a Mafia takeover. If I were them I'd rather take the hit and lose WoTC business while staying independent. As opposed to becoming a client/vassal of an obvious bad actor. After all, WoTC is happy for me to go out of business and drive sales to their owned subsidiary D&D Beyond.


----------



## rcade

overgeeked said:


> What percent of One Shelf's business can it lose before it's no longer viable as a business? What percent of One Shelf's business is due to WotC and its products? Unless that second number is drastically smaller than the first, One Shelf isn't going to fight. They'll roll over.



OneBookShelf may not be as willing to knuckle under as people think.

OneBookShelf is the top site for selling TTRPGs and wargames as PDFs, owning as much as 80-90% of that market. If Hasbro demands it stop selling legal PDFs that puts the company in a quandary. Rolling over for Hasbro and angering other publishers and customers might be an acceptable tradeoff while Hasbro is selling D&D products there, but what happens if Hasbro decides it can make more money by selling PDFs directly instead? It might be in OneBookShelf's best interest long-term to avoid helping Warehouse 23 cut into its market share by kicking legal PDFs off the site and sending their publishers to that storefront.


----------



## Uta-napishti

kenada said:


> This is why I put in a ticket ahead of time requesting my account be deleted. I do not trust WotC not to do something sneaky. I provided the information they requested on Thursday, but I have not heard back. I’m guessing account deletion is a manual process.



It's manual, and yes, I also have put in an account deletion request.


----------



## Remathilis

Xyxox said:


> It was based on his inside knowledge of Paizo. He stated outright the best chance the community has is Paizo fighting it and that there is a good chance they will, but did caution there is also a small chance they just sell the company to WotC to avoid the fight.
> 
> He has also said that there are multiple third parties in the background talking with lawyers and getting prepared.



I'll admit to being wrong on the full nature of 1.1, but you're going to have to do a lot better than "trust my bro" if you're claiming Mercer sold out and Paizo is throwing in the towel. Those are serious claims and I want far better than some YouTuber before I accept that. We're talking "the death of RPGs" level hysteria.


----------



## kjdavies

pemerton said:


> I don't think anyone thinks the OGL v 1.1 is going to be an update in the sense intended by section 9 of the OGL v 1.0a, do they? That seemed to be ruled out as soon as the press release was issued last month.



(I know I said I was bowing out, but this find seems relevant)

"Who thinks this is going to be an update in the sense intended by section 9"?

From the FAQ-looking thing in @Morrus ' "WotC Announces OGL 1.1" thread:



> 2. Will the OGL terms change?
> Yes. We will release version 1.1 of the OGL in early 2023.
> 
> The OGL needs an update to ensure [...]
> 
> *Second,* we’re updating the OGL to offer different terms to creators who choose to make free, share-alike content and creators who want to sell their products.




Seems WotC thinks they're updating the OGL.

Whether this has any meaning or bearing on what happens in court, if it gets there, I cannot say... but the words chosen seem to align with how I was reading things.


----------



## Xyxox

Remathilis said:


> I'll admit to being wrong on the full nature of 1.1, but you're going to have to do a lot better than "trust my bro" if you're claiming Mercer sold out and Paizo is throwing in the towel. Those are serious claims and I want far better than some YouTuber before I accept that. We're talking "the death of RPGs" level hysteria.



I never claimed Mercer sold out, I am saying it's likely because of all the third parties, Critical Role likely got a super sweetheart deal presented because their value for driving people to D&D is incredibly valuable for WotC/Hasbro. Only time will tell if they did.


----------



## GracefulBreath

Remathilis said:


> I'll admit to being wrong on the full nature of 1.1, but you're going to have to do a lot better than "trust my bro" if you're claiming Mercer sold out and Paizo is throwing in the towel. Those are serious claims and I want far better than some YouTuber before I accept that. We're talking "the death of RPGs" level hysteria.



Yeah there seems to be a lot of this damning of anyone who isn't talking about the (technically) speculative leak, I've seen people saying on twitter that Colville has also sold out, which is absolutely crazy talk. Until WotC actually has a public release about official 1.1 documents, it's too big of a risk for people high up in companies to just throw weighty accusations around, no matter how many people confirm the leak sources.


----------



## Greg Benage

I hate all this speculating about who has "sold out." First, it's speculation and rumormongering. Second, I said it before and I'll say it again: It's easy for us to talk about "selling out" when it's not our business, employees, and investors on the line.


----------



## Remathilis

Xyxox said:


> I never claimed Mercer sold out, I am saying it's likely because of all the third parties, Critical Role likely got a super sweetheart deal presented because their value for driving people to D&D is incredibly valuable for WotC/Hasbro. Only time will tell if they did.



Hearsay and possibly libel until proven.


----------



## AbdulAlhazred

Enrahim2 said:


> When reading the leak, I was quite certain the leaked "deauthorized" language was only refering to the asymmetry formulation in section 9. Hence the only legal meaning of the term would be that 1.1 content could not be distributed under 1.0a, while 1.0a content could still be freely copied, modified and distributed under 1.1. Under this interpretation 1.0a content would still be permitted used in new 1.0a publications according to section 4 of the lisence.
> 
> If this had been the case, it is obvious that wizards would still retain all rights involved. However when no actual lawyers seem to pick up on this to me obvious interpretation, along with a 13th of january deadline floating around without any leaked quotes about the legal formulation around the importance of this date, there seem clear that I am likely missing something.
> 
> However even if I accept what seem to be the consensus opinion that wizards try to prevent publication of new 1.0a material, without understanding the legal framework that could possibly support such a claim - I cannot see why refusing anyone to make new 1.0a material would prevent anyone from using existing 1.0a material in 1.1 publications, as that appear to be a logically orthogonal concern.
> 
> To illustrate how these are orthogonal, at least for a layman as me, imagine the following mechanism at work: Wizards asserts their copyright to 1.0a, denying anyone to produce new copies of this. That would naievly prevent further 1.0a publications, as the condition in section 10 couldn't be legaly be fulfilled. Meanwhile there would be no obvious legal grounds I could see for section 9 to not still be fully in effect.



I think the logic is effectively like this:

Suppose WotC published a 1.1 'OGL' who's gist is "nobody can distribute anything under this license, it grant nothing." Now they decree "all WotC content is hereby only distributed under OGL 1.1, including (by force of section 9) ALL content currently designated by WotC as being distributed under any version of OGL. What is asserted is that this effectively destroys any existing obligations WotC had assumed to allow distribution of its OGC, period. That would, in their opinion, prevent even the continued distribution of existing materials containing WotC OGC. Now, the contrary opinion is "wait a minute, everyone else can use Section 9 from the existing license to continue to do what we have always been doing, by simply continuing to abide by OGL 1.0a." Which of these statements takes precedence over the other? Section 9 NEVER SAYS it is in reference only to choosing which license you distribute YOUR OWN content under, it says "any Open Game Content originally distributed under any version of this license." This is one of (several) serious flaws in the OGL's structure. Only a court is ever going to be able to disentangle that, because the license itself cannot.

The fact that version 1.1 seems to try to obliterate the TERM "Open Game Content" is IMHO telling. This seems to be a way of trying to buttress an argument that OGC is non-existent, and that by putting all their material under OGL 1.1 they have effectively made section 9 of OGL 1.0a moot. They would say in effect "but, Your Honor, we don't HAVE any 'Open Game Content' now that we have adopted OGL 1.1!" By THAT logic, you could still try to use the effect of the old section 9, but it would apply to nothing (not that this is a very good argument, IMHO, but its kind of a layered legal strategy, they just need one noodle to stick to the wall in order to win).


----------



## pemerton

Xyxox said:


> It was not a draft, it was an actual contract they wanted signed onto. If somebody signed their contract and the OGL 1.1 is not released as that was included to induce the signature, then WotC has engaged in fraud to get a signature on a  contract. That's why they must release it or they face not just civil consequenses from the signor, they face criminal consequences for committing fraud.



I think the suggestion that WotC is engaged in criminal fraud is highly implausible.


----------



## Xyxox

pemerton said:


> I think the suggestion that WotC is engaged in criminal fraud is highly implausible.



It's only fraud if they don't release the OGL 1.1.


----------



## pemerton

kjdavies said:


> Seems WotC thinks they're updating the OGL.



As I posted a couple of times upthread - I don't think there is any point in trying to read press releases as if they are legal documents. When press releases, or "info packs", are all that we have then we need to look at them and try to imagine what the legal framework is that they are describing.

It seems pretty obvious that WotC wants to create a new ecosystem for licensed content, in which participants are obliged to play them royalties (under certain conditions). They will therefore not make the basic error of releasing a licence which obviously falls within the terms of OGL v 1.0/1.0a's section 9 and thus entitles existing licensees, and probably future sub-licensees also, to use WotC's new content under any the existing royalty-free licence.

Thus, whatever exactly the OGL v 1.1 looks like, it will not be an "update" within the meaning of section 9 of v 1.0/1.0a.

And "update" has no other legal meaning in this context that I can see.

So trying to argue that v 1.1 will nevertheless, in some sense, be an update strikes me as pointless and even quixotic.

This doesn't stop WotC's media and comms team describing things however they like - but why are you taking their choice of words so seriously if what you're actually trying to do is cut through the comms team's spin and make legal sense of what might actually be happening?


----------



## AbdulAlhazred

David Spake said:


> First off, I want to thank everyone for their reasoned, coherent posts.  This thread, with it's plethora of knowledgeable people posting their best 'experienced' *opinion* here has done a world of good to my overall outlook.  Of course this is a fluid situation, and nobody but NOBODY knows what the lay of the land is (other than perhaps WoTC/Hasbro), so an observation, and a few questions.
> 
> Observation: I saw a post over on Reddit from a Paizo 'Design Manager' for PF2E (dated about 10 months ago).  From the tone of that thread, I got the impression that Paizo was aware of issues with the OGL, or simply uneasy with it.  The poster bluntly said "_Not using the OGL was a serious consideration for PF2_".  That the decision to keep using the OGL came down to keeping down costs (extra copyright/trade dress scrutiny requirements), and other reasons (3PP Comfort, etc..).  Unfortunately instead of seeing the license for the sheer academic compare/contrast interests, I fear WoTC's actions have now made it more likely to be seen for simple 'CYA' reasons.
> Then when I saw the post post about WoTC/Hasbro going nuclear though, I had to wonder... There are/were lots of former WoTC people at Paizo, and I'd have no problem believing that if WoTC/Hasbro was even glancing at a 'nuclear' option approach, Paizo would have probably heard about it.  I also have no hesitation in believing Paizo has a "Wing Defense Plan R"(*) directive somewhere in their headquarters too.
> 
> Anyone feeling like giving a wild a** guess (WAG) on what kind of things would/should we expect from a publisher when they move from one license to another (GPL/Paizo/OpenLicense x.x/whatever).  Does the producer simply issue an update to their existing product, including the new license along side the OGL? Or would they need to make a material/substantive change to their current product before releasing it as a new version/edition with the new license and no OGL?
> 
> Secondly, what's a good WAG on the timeframe here? Something we'll see go down in the next 3-4 months, or does WoTC keep treating this as a FUD campaign, and drag it out as long as possible? I (like many here) think the longer this goes on, the worse the poisoning damage to WoTC, but then again I'm occasionally accused of being rational.
> 
> (*) Reference to the 'Wing Attack Plan R' in Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.



Well, the thread has moved fast, but in terms of a strategy for publishing a "D&D-like RPG" under a non-OGL license, its clearly a theoretical possibility. I'm not aware of anyone who has done it, though honestly it probably HAS happened. I'd note that some games tread rather close, like Dungeon World has classes and races and a lot of tropes that clearly are rooted at least partially in 'D&D-isms' (like every class is found somewhere in 3e and represents a similar character archetype). Yet it is published under no license at all, simply containing an ordinary copyright notice. Now, DW is not a LOT like D&D in some ways, but it still has hit points, the classic 6 ability scores, ability score bonuses, magic items that (sometimes give pluses), etc. It has players, a Game Master, etc. It is clearly kissing cousins with D&D in some sense. Note that WotC has certainly never said anything about DW. It is unlikely the developers of that game have paid for some sort of license, etc. (though anything is possible I suppose).

So, really, since you cannot patent or trademark RULES THEMSELVES, even to an original game like D&D, we can more than 'Wild A** Guess' that you can make an RPG that is a LOT LIKE D&D, and still not tread too close to the line. My own game isn't really a 'published work', but it also doesn't claim to be OGL and has many similarities to 4e D&D (and thus D&D generally). Obviously I cannot say it would be safe to distribute without drawing the attention of WotC, but there is a very plausible theory that it would be, as any congruence of rules between it and some version of D&D SHOULDN'T tread on any of WotC's rights (IE if I don't plagiarize their rules, basically). Another aspect might be the concept of 'design patents' that they might hold, say on the formats of spells or monster stat blocks, potentially, or the layout of a character sheet. Clearly the less like any edition of D&D such elements are, the less one has to worry.

The real problem, and what undoubtedly concerns Paizo is simply that there is SOME LINE over which WotC will decide to issue a C&D letter, and that line could change with time and who happens to be making that call this Tuesday vs last Tuesday. Dealing with such an eventuality, almost regardless of its merit, is pretty much a crushing burden when WotC, the 9,000 pound gorilla of the RPG world is in the other corner. Thus nobody has dared, as flawed as the OGL is, it has customarily been respected at the level of its clear intent for 23 years and until now the latent threat inherent in Section 9 et al has lain dormant. The situation today puts that in some question, and thus may tip the scales in some people's minds in favor of reverting to something like CC-BY-SA instead, with the hope that WotC's understanding of IP law restrains them. It seems a scant restraint however. Honestly, I think what we are most likely to see is some people with less skin in the game, and games that are less D&D-like than the clearly 3e-derived PF2 (indirectly by way of PF1) bail on the OGL. WotC may lack the stomach to C&D them, given that the optics will be poor. So once that happens, then others will come along and expand on this body of whatever, CC-BY-SA lets say, content. At some point, aside from stuff that is clearly 'WotC product identity' the whole issue could become so clouded that nobody will ever have a clear cause for action and that will be that. Beholders might forever be WotC's, but "floating eyes" or whatever will be open content. Of course WotC may decide they are going to fight that future tooth and nail, and maybe that is exactly where they are going with this. If so, they are going to Scorched Earth half the RPG industry in the process...


----------



## Myrdin Potter

Any talk or speculation of selling out is pointless. First, selling out what? Is someone strongly on the record promoting open gaming content and then switched or went silent because Hasbro paid them to? If a business makes a business decision, that is not selling out. 

Second, the story is that WoTC approached certain major players with the new OGL (and maybe new contract) under NDA. Their silence now may just be them keeping their legal promise under the NDA.

Finally, any publisher that plans a legal fight would be extremely stupid to say what it is in advance. Any lawyer they hired would have said to shut up. It is also incredibly stupid for Hasbro to comment now.

Actually, the dearth of USA lawyers opining here makes me think they the ones tied into RPG gaming are being hired. 

I view any claims that this silence is anything but following the terms of the NDA and/or their lawyers advice is just a search for YouTube views.


----------



## pemerton

Xyxox said:


> It's only fraud if they don't release the OGL 1.1.



Who is being defrauded? What financial advantage is WotC getting via dishonesty?

As best I can tell, you have no idea what WotC has said to whom, what commitments have been made, and what the state of mind was behind each of those communications. The suggestion of fraud is utterly baseless.

What seems to me to be happening is hardball commercial tactics in the context of a complex distribution of IP rights under a private law scheme. This is the reality of "private orderings" and commercial ownership of cultural content working itself out.

Publishers who signed on to the OGL knew they were hitching their commercial wagon to WotC's copyrighted texts. They knew that WotC retained all its IP rights, and that as publishers their position depended upon the legal effectiveness of the licensing regime.

If the regime is in fact effective - and I fully accept (as per @Steel-Wind's posts in particular) that 20 years of commercial conduct and relationships is part of the contractual regime - then publishers can stand on their rights.

Conversely, if WotC has legal rights and powers that no one noticed up until now, that's how it is. I don't see why WotC is obliged, out of all the parties involved, to renounce its legal rights and powers as a matter of charity. Ryan Dancey certainly didn't present the OGL as a vehicle for charity - he argued quite forcefully that it was a commercial strategy for growing WotC's sales.

If 3PPs thought that their legal position was only sound so long as they were buttressed by a presumed commercial or PR reality that WotC would would refrain from asserting its full rights, well now they're discovering that WotC see the commercial and PR reality differently. And it's not as if there is no precedent for this - a similar thing happened with the GSL.

For my part, and building a little bit on @Greg Benage post not far upthread - without suggesting that he would endorse what I'm saying in _this_ post - I don't have sympathy for the view that everyone is entitled to exercise their commercial and legal rights _except_ for WotC which is obliged to act as a charity. And my own view is that 3PPS probably do have rights under the OGL, which they could then rely on for their defence.

The issue of WotC potentially abusing its market power in relation to OBS is a separate thing altogether, and as I posted upthread seems to come closer to raising anti-trust/competition law issues (though my expertise on that is thin enough that I don't pretend to know how close it might actually come to the level of impermissible conduct).


----------



## Matt Thomason

rcade said:


> OneBookShelf may not be as willing to knuckle under as people think.
> 
> OneBookShelf is the top site for selling TTRPGs and wargames as PDFs, owning as much as 80-90% of that market. If Hasbro demands it stop selling legal PDFs that puts the company in a quandary. Rolling over for Hasbro and angering other publishers and customers might be an acceptable tradeoff while Hasbro is selling D&D products there, but what happens if Hasbro decides it can make more money by selling PDFs directly instead? It might be in OneBookShelf's best interest long-term to avoid helping Warehouse 23 cut into its market share by kicking legal PDFs off the site and sending their publishers to that storefront.



The relevant part of this I feel is "but what happens if Hasbro decides it can make more money by selling PDFs directly instead?"

Given that OneD&D's online component effectively does just that, by moving all future electronic D&D sales there.  That only leaves OBS with historical D&D content, which I would hazard a guess is a smaller share of their business than, say, 3PP current edition Pathfinder PDFs, especially in that historical content is by its very nature a limited number of titles that are not expanding so there's a potential tail-off point where pretty much everyone that ever wants it, has bought it all.  That's even before we get into the chance of WotC bringing DM's Guild and even the historical PDFs into their own online system.

So I would take an educated guess that OBS is far more concerned about its non-WotC business than its WotC business for anything short of a long term WotC deal (something which I would hazard a guess is the last thing Hasbro would want to do, given that the whole point of this exercise appears to be to bring everything back under their full control)


----------



## pemerton

Prime_Evil said:


> The OGL v.1.0 prohibits licensees from adding or subtracting anything from the terms of the licence:
> 
> 
> This statement seems to apply only to Open Game Content and not Product Identity. Could a licensee designate most of a derivative work as Product Identity and then release the Product Identity under a different licence (say Creative Commons)? Would this provide any protection against revocation / termination of the parent licence since the Product Identity is embedded in a derivative work?



If you designate derivative work as Product Identity, then you are infringing someone's copyright (ie whoever's work your work is derivative of) as you have no licence for your work.

Or have I misunderstood you?


----------



## Prime_Evil

pemerton said:


> Who is being defrauded? What financial advantage is WotC getting via dishonesty?
> 
> As best I can tell, you have no idea what WotC has said to whom, what commitments have been made, and what the state of mind was behind each of those communications. The suggestion of fraud is utterly baseless.
> 
> What seems to me to be happening is hardball commercial tactics in the context of a complex distribution of IP rights under a private law scheme. This is the reality of "private orderings" and commercial ownership of cultural content working itself out.
> 
> Publishers who signed on to the OGL knew they were hitching their commercial wagon to WotC's copyrighted texts. They knew that WotC retained all its IP rights, and that as publishers their position depended upon the legal effectiveness of the licensing regime.
> 
> If the regime is in fact effective - and I fully accept (as per @Steel-Wind's posts in particular) that 20 years of commercial conduct and relationships is part of the contractual regime - then publishers can stand on their rights.
> 
> Conversely, if WotC has legal rights and powers that no one noticed up until now, that's how it is. I don't see why WotC is obliged, out of all the parties involved, to renounce its legal rights and powers as a matter of charity. Ryan Dancey certainly didn't present the OGL as a vehicle for charity - he argued quite forcefully that it was a commercial strategy for growing WotC's sales.
> 
> If 3PPs thought that their legal position was only sound so long as they were buttressed by a presumed commercial or PR reality that WotC would would refrain from asserting its full rights, well now they're discovering that WotC see the commercial and PR reality differently. And it's not as if there is no precedent for this - a similar thing happened with the GSL.
> 
> For my part, and building a little bit on @Greg Benage post not far upthread - without suggesting that he would endorse what I'm saying in _this_ post - I don't have sympathy for the view that everyone is entitled to exercise their commercial and legal rights _except_ for WotC which is obliged to act as a charity. And my own view is that 3PPS probably do have rights under the OGL, which they could then rely on for their defence.
> 
> The issue of WotC potentially abusing its market power in relation to OBS is a separate thing altogether, and as I posted upthread seems to come closer to raising anti-trust/competition law issues (though my expertise on that is thin enough that I don't pretend to know how close it might actually come to the level of impermissible conduct).



I suspect what you are saying is true. If WotC want to offer content associated with OneDnD under a different licence to the one used by previous editions, that is entirely their prerogative. I suspect they will ring-fence the new material, clearly labelling it as Licensed Content rather than Open Game Content. I also think the use of Licensed Content will require licensees to agree to a waiver of their rights under the OGL v1.0a. The wording will matter as it may be possible for companies to spin off a subsidiary at arm's length to publish OneDnD material if the wording is loose. I suspect lawyers acting for Hasbro will be aware of this potential loophole. 

At the same time, I suspect WoTC will not be able to unilaterally terminate the OGL v.1.0. I am not yet aware of any plausible mechanism they could use to do this. Reliance on the concept of "de-authorisation" as some people have speculated seems risky. It relies upon a specific interpretation of Section 9. Given that a separate termination clause exists, it is possible courts would not support this interpretation. 

If I had to take a guess, I would argue their best chance to kill the old licence would involve copyright law rather than contract law..They could simply withdraw the offer for third-parties to distribute copies of the licence itself. I suspect this approach is viable, but not immune to challenge. Existing licensees could point to the requirement within the licence itself. They might also have a reliance-based argument. New licensees might be I'm a more tenuous position, but given the OGL gives existing licensees the right to grant sublicenses this is not insoluble.

Does this sound like a reasonable interpretation?


----------



## Prime_Evil

pemerton said:


> If you designate derivative work as Product Identity, then you are infringing someone's copyright (ie whoever's work your work is derivative of) as you have no licence for your work.
> 
> Or have I






pemerton said:


> If you designate derivative work as Product Identity, then you are infringing someone's copyright (ie whoever's work your work is derivative of) as you have no licence for your work.
> 
> Or have I misunderstood you?



I believe you can only designate your additions to the corpus as Product Identity. I also believe you can't designate somebody else's OGC as Product Identity. My question was focused on whether a dual.licensing scheme is feasible? If so, it might be possible to release Product Identity under a different licence.


----------



## Myrdin Potter

Prime_Evil said:


> I suspect what you are saying is true. If WotC want to offer content associated with OneDnD under a different licence to the one used by previous editions, that is entirely their prerogative. I suspect they will ring-fence the new material, clearly labelling it as Licensed Content rather than Open Game Content. I also think the use of Licensed Content will require licensees to agree to a waiver of their rights under the OGL v1.0a. The wording will matter as it may be possible for companies to spin off a subsidiary at arm's length to publish OneDnD material if the wording is loose. I suspect lawyers acting for Hasbro will be aware of this potential loophole.
> 
> At the same time, I suspect WoTC will not be able to unilaterally terminate the OGL v.1.0. I am not yet aware of any plausible mechanism they could use to do this. Reliance on the concept of "de-authorisation" as some people have speculated seems risky. It relies upon a specific interpretation of Section 9. Given that a separate termination clause exists, it is possible courts would not support this interpretation.
> 
> If I had to take a guess, I would argue their best chance to kill the old licence would involve copyright law rather than contract law..They could simply withdraw the offer for third-parties to distribute copies of the licence itself. I suspect this approach is viable, but not immune to challenge. Existing licensees could point to the requirement within the licence itself. They might also have a reliance-based argument. New licensees might be I'm a more tenuous position, but given the OGL gives existing licensees the right to grant sublicenses this is not insoluble.
> 
> Does this sound like a reasonable interpretation?



One theory is that they terminate all previous licenses leaving only the new one. They revoke them.


----------



## Prime_Evil

Myrdin Potter said:


> One theory is that they terminate all previous licenses leaving only the new one. They revoke them.



I'm aware of this theory. But I'm not convinced it is plausible. It relies on using the update mechanism in the OGL v1.0a to terminate the licence by declaring it no longer authorised. This may not be possible given no mechanism for superseding old versions is specified and a separate termination clause exists.Indeed, the OGL v1.0a permits licensees to choose amongst different versions of the licence. This assumes multiple revisions can be simultaneously valid.


----------



## Myrdin Potter

Prime_Evil said:


> I'm aware of this theory. But I'm not convinced it is plausible. It relies on using the update mechanism in the OGL v1.0a to terminate the licence by declaring it no longer authorised. This may not be possible given no mechanism for superseding old versions is specified and a separate termination clause exists.Indeed, the OGL v1.0a permits licensees to choose amongst different versions of the licence. This assumes multiple revisions can be simultaneously valid.



This thread was started by a lawyer that feels that they can just revoke/terminate it. The other lawyers in this this thread had not argued against the general right to terminate / revoke a license. Yes, there might be things that would block it, but those are theories and there is a feeling that it does not say it cannot be revoked therefore it can be.

Unless you are a lawyer studied in this area and you have case law/experience to say otherwise?

The above aside, I also do not think just revoking it is such a slam dunk but it will be up to a judge to decide.


----------



## Prime_Evil

Myrdin Potter said:


> This thread was started by a lawyer that feels that they can just revoke/terminate it. The other lawyers in this this thread had not argued against the general right to terminate / revoke a license. Yes, there might be things that would block it, but those are theories and there is a feeling that it does not say it cannot be revoked therefore it can be.
> 
> Unless you are a lawyer studied in this area and you have case law/experience to say otherwise?
> 
> The above aside, I also do not think just revoking it is such a slam dunk but it will be up to a judge to decide.



There are differing opinions on this. We need to wait until the final licence is released to understand the full implications. It is possible WotC may modify their position based upon the level of community pushback.


----------



## FrogReaver

This is what section 9 actually says:

9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. 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.

The lack of 'authorized' in the 2nd underline makes perfect sense if one assumes a version of the license can be deauthorized.  In that case it would read that OGC distributed under any OGL version, even a not currently authorized version, can still be used with currently authorized versions of the OGL.  That makes 100% sense.

It's hard for me to see an alternative reading that makes as much sense, given just the context of section 9.
Consider the scenario:
1.  OGC was distributed under a previous version of this OGL license.
2.  You distribute it under a Wizards updated version of the licensee.
Why would it need to specify that you can use any _authorized_ version when the OGL specifically tells us the sentence before that the only party that can publish an updated version of the license is wizards - Wouldn't it have been clearer to just say 'any version'?  Also, if 'authorized' was necessary in the first underlined part, why wouldn't _authorized _also be necessary in the 2nd underlined part?

Thus, from a purely textual consideration - I personally am starting to find the deauthorization argument more compelling than I previously did.


----------



## mamba

I would focus on the license being perpetual, the fact that at the time it was created this commonly also meant irrevocable (see GPL 2.0, where this was already tried in court), and the fact that everyone involved in the creation of the license said it was irrevocable, so clearly that was the intent.

Once it is irrevocable, there is no authorization issue


----------



## FrogReaver

pemerton said:


> Thus, whatever exactly the OGL v 1.1 looks like, it will not be an "update" within the meaning of section 9 of v 1.0/1.0a.
> 
> And "update" has no other legal meaning in this context that I can see.
> 
> So trying to argue that v 1.1 will nevertheless, in some sense, be an update strikes me as pointless and even quixotic.
> 
> This doesn't stop WotC's media and comms team describing things however they like - but why are you taking their choice of words so seriously if what you're actually trying to do is cut through the comms team's spin and make legal sense of what might actually be happening?



I'm not sure I'm following your reasoning here.  What precisely are you saying prevents 1.1 from saying whatever WOTC wants while still being an updated version of the OGL?


----------



## FrogReaver

pemerton said:


> Who is being defrauded? What financial advantage is WotC getting via dishonesty?



I used 'fraud' before.  It's perhaps not the most legally accurate term.

In the U.S. there are laws against unfair and deceptive business practices.  Here's what my search engine supplied.

'Federal and state law prohibits businesses from engaging in activities that are “unfair” or “deceptive.” The key federal law on this subject for most businesses is the Federal Trade Commission Act, enforced, of course, by the Federal Trade Commission.'

'Deceptive business practices generally involve misleading a customer into believing something that isn’t true through misrepresentation or omission. In contrast, unfair practices are likely to cause or do cause substantial damages to consumers in the form of financial loss or physical injury.'

IMO, the FAQ's would be evidence of 'deceptive'.  Unfair would be the financial loss of companies and induvial that became reliant on the OGL due to WOTC's misrepresentations only to have it ripped out from under them.  For example, if a large bank had a contract with their customers (say an account where the fine print allowed some loop hole where they could update the terms and charge fees but they advertised no fees ever), there is no doubt in my mind that the FTC would rightfully hammer that bank if they tried to charge those customers those fees on those accounts.

Would these laws be applicable in this case?


----------



## Branduil

IANAL, but given that a massive amount of the OGC at this point has been contributed by non-WotC parties, and was never part of D&D in the first place, is there not an argument to be made that "de-authorizing" the OGL is effectively stealing the content created by others, in the expectation that it would be available for all in perpetuity?


----------



## GMforPowergamers

FrogReaver said:


> 'Federal and state law prohibits businesses from engaging in activities that are “unfair” or “deceptive.” The key federal law on this subject for most businesses is the Federal Trade Commission Act, enforced, of course, by the Federal Trade Commission.'
> 
> 'Deceptive business practices generally involve misleading a customer into believing something that isn’t true through misrepresentation or omission. In contrast, unfair practices are likely to cause or do cause substantial damages to consumers in the form of financial loss or physical injury.'



if you can sue a movie studio for a misleading trailer (spoiler that is like every good trailer) then I imagine you COULD sue for this too.


----------



## FrogReaver

Branduil said:


> IANAL, but given that a massive amount of the OGC at this point has been contributed by non-WotC parties, and was never part of D&D in the first place, is there not an argument to be made that "de-authorizing" the OGL is effectively stealing the content created by others, in the expectation that it would be available for all in perpetuity?



Stealing/theft doesn't make sense to me here.  Unfair and deceptive though...


----------



## GMforPowergamers

FrogReaver said:


> Stealing/theft doesn't make sense to me here.  Unfair and deceptive though...



in theory if they had done this back in the 3e to 3.5 move, when it was only out 2 years would you feel that is better or worse?
DOes the 20 years of building into the thought that "all games are D&D now" change it at all?


----------



## Jd Smith1

Branduil said:


> IANAL, but given that a massive amount of the OGC at this point has been contributed by non-WotC parties, and was never part of D&D in the first place, is there not an argument to be made that "de-authorizing" the OGL is effectively stealing the content created by others, in the expectation that it would be available for all in perpetuity?



No. You knew you were building on rented land when you created that content. 

Assuming that you would always have access to someone else's property is a failure of yours, not the owner of the property.


----------



## FrogReaver

Jd Smith1 said:


> No. You knew you were building on rented land when you created that content.
> 
> Assuming that you would always have access to someone else's property is a failure of yours, not the owner of the property.



What about when the property owner promises you that you will and the breaks his promise?


----------



## GMforPowergamers

FrogReaver said:


> What about when the property owner promises you that you will and the breaks his promise?



That's the rub right there...

The guy next door says "You can come use my pool anytime" and 20 years later he changes the locks and says "Nope, if you want to use the pool you have to pay me"

maybe not exactly... but in this case the guy next door with the pool is getting a bunch of people fired or losing there livelihood.


----------



## mamba

Jd Smith1 said:


> No. You knew you were building on rented land when you created that content.
> 
> Assuming that you would always have access to someone else's property is a failure of yours, not the owner of the property.



Except that the owner declared that you could, and even put it in writing


----------



## pemerton

Prime_Evil said:


> I suspect what you are saying is true. If WotC want to offer content associated with OneDnD under a different licence to the one used by previous editions, that is entirely their prerogative. I suspect they will ring-fence the new material, clearly labelling it as Licensed Content rather than Open Game Content. I also think the use of Licensed Content will require licensees to agree to a waiver of their rights under the OGL v1.0a. The wording will matter as it may be possible for companies to spin off a subsidiary at arm's length to publish OneDnD material if the wording is loose. I suspect lawyers acting for Hasbro will be aware of this potential loophole.



Agreed. I've posted exactly these thoughts in multiple posts upthread.



Prime_Evil said:


> At the same time, I suspect WoTC will not be able to unilaterally terminate the OGL v.1.0. I am not yet aware of any plausible mechanism they could use to do this. Reliance on the concept of "de-authorisation" as some people have speculated seems risky. It relies upon a specific interpretation of Section 9. Given that a separate termination clause exists, it is possible courts would not support this interpretation.



Agreed. @S'mon and I have been posting pretty consistently about this for several days now, including before the recent leaks.

Where I disagree is that there is no "specific interpretation of Section 9" that I'm aware of. I haven't seen anyone actually set out an interpretation of Section 9 that confers on WotC a power to unilaterally revoke existing licences. I have set out my own interpretation of section 9 - which I think is a straightforward reading of its natural language in the contractual context - in a couple of posts upthread.

I have also not heard anything that suggests WotC believes section 9 gives them such a power. To the extent that WotC asserts such a power, I would expect them to rely on the sorts of arguments found in the OP to this thread.



Prime_Evil said:


> If I had to take a guess, I would argue their best chance to kill the old licence would involve copyright law rather than contract law..They could simply withdraw the offer for third-parties to distribute copies of the licence itself. I suspect this approach is viable, but not immune to challenge. Existing licensees could point to the requirement within the licence itself. They might also have a reliance-based argument. New licensees might be I'm a more tenuous position, but given the OGL gives existing licensees the right to grant sublicenses this is not insoluble.



I think if existing licensees can't have their substantive rights unilaterally revoked - which in my view they can't - then they can't have their accompanying right to redistribute the text of the OGL revoked either.

For unrelated parties - ie those who want to use the text of the OGL but not enter into a licensing agreement with WotC (eg I write up my own PemertonSRD and then license it to all comers under the OGL) - it could be a bit trickier. I posted my thoughts upthread in post 479.



Prime_Evil said:


> Does this sound like a reasonable interpretation?



Mostly. Our only real point of difference is that I don't understand what is driving the fixation on section 9 in much of this discussion.


----------



## pemerton

Myrdin Potter said:


> This thread was started by a lawyer that feels that they can just revoke/terminate it. The other lawyers in this this thread had not argued against the general right to terminate / revoke a license. Yes, there might be things that would block it, but those are theories and there is a feeling that it does not say it cannot be revoked therefore it can be.



I don't think any other lawyer posting in the thread has agreed with the OP. I don't. @S'mon doesn't. @Steel_Wind doesn't. @bmcdaniel doesn't.

We are all agreed that the licence is not revocable at will because it is not a gratuitous licence, it is granted pursuant to a contract, and WotC can't unilaterally terminate its contracts.

I do agree with you that section 9 is a red herring.

EDIT: That doesn't mean the OP is wrong. I've been careful in this thread to stress the limits of my own expertise and reasoning. But it is not those of us who think the licence can't be terminated who have "theories". We have basic contract law on our side. It is WotC who need a "theory", which will explain how a unilateral right to terminate is to be read into their contract despite the lack of such a right in the text and given that they have been part of, and have fostered, twenty years of industry practice which is premised on the absence of such a right.

No one (including the OP) has yet presented such a theory. Which is not to say that WotC doesn't have one - obviously WotC/Hasbro can afford to pay a lot of clever lawyers, who will be working harder on this than anyone posting in this thread is.


----------



## Prime_Evil

Eric Tenkar claims to have a complete copy of the draft licence and is making a series of YouTube videos working through it. However, his initial video does not add any new information.


----------



## pemerton

FrogReaver said:


> I used 'fraud' before.  It's perhaps not the most legally accurate term.
> 
> In the U.S. there are laws against unfair and deceptive business practices.  Here's what my search engine supplied.
> 
> 'Federal and state law prohibits businesses from engaging in activities that are “unfair” or “deceptive.” The key federal law on this subject for most businesses is the Federal Trade Commission Act, enforced, of course, by the Federal Trade Commission.'
> 
> 'Deceptive business practices generally involve misleading a customer into believing something that isn’t true through misrepresentation or omission. In contrast, unfair practices are likely to cause or do cause substantial damages to consumers in the form of financial loss or physical injury.'
> 
> IMO, the FAQ's would be evidence of 'deceptive'.  Unfair would be the financial loss of companies and induvial that became reliant on the OGL due to WOTC's misrepresentations only to have it ripped out from under them.  For example, if a large bank had a contract with their customers (say an account where the fine print allowed some loop hole where they could update the terms and charge fees but they advertised no fees ever), there is no doubt in my mind that the FTC would rightfully hammer that bank if they tried to charge those customers those fees on those accounts.
> 
> Would these laws be applicable in this case?



I don't see how. Where is the deceptive practice? Where is the unconscionability?

And also, what is the remedy you are seeking?

The reason for pleading unfair and deceptive practices is either to have a transaction rescinded, or to receive compensation for loss. But 3PPs don't want those things - they want the contract they are party to to be recognised and enforced! This is why I have emphasised that, to the extent that evidence was led about WotC's representations about the OGL, it would not be to argue that those were _mis_representations which vitiate the licence but rather to argue that they are genuine representations that establish the meaning of the licence terms in the settled business context.


----------



## pemerton

Branduil said:


> IANAL, but given that a massive amount of the OGC at this point has been contributed by non-WotC parties, and was never part of D&D in the first place, is there not an argument to be made that "de-authorizing" the OGL is effectively stealing the content created by others, in the expectation that it would be available for all in perpetuity?



I don't see it. What would be stolen? If there are no licences, then everyone retains copyright in their works. To the extent that the use of their work might also infringe another's copyright (eg because it is a derivative work) then new licence negotiations would need to take place.


----------



## pemerton

FrogReaver said:


> What about when the property owner promises you that you will and the breaks his promise?



In common law systems, and in the absence of sufficient reasonable reliance to give rise to an estoppel, gratuitous promises can be rescinded at will.

Bargains - ie promises made and accepted with consideration flowing in both directions - are binding. That is the essence of the common law of contract.

The OGL is not a gratuitous licence. It is a licence granted pursuant to contract. (You can see the licence terms refer to offer and acceptance and consideration.) It is precisely because, in the typical case, a party to a contract has no unilateral right to terminate it, that many of us posting in the thread argue that WotC has no unilateral right to terminate the licences it has entered into having the terms of the OGL.


----------



## pemerton

mamba said:


> Except that the owner declared that you could, and even put it in writing



That's not relevant. A gratuitous promise made very solemnly and put into writing is still just a gratuitous promise.


----------



## jgbrowning

pemerton said:


> I don't think any other lawyer posting in the thread has agreed with the OP. I don't. @S'mon doesn't. @Steel_Wind doesn't. @bmcdaniel doesn't.
> 
> We are all agreed that the licence is not revocable at will because it is not a gratuitous licence, it is granted pursuant to a contract, and WotC can't unilaterally terminate its contracts.
> 
> I do agree with you that section 9 is a red herring.
> 
> EDIT: That doesn't mean the OP is wrong. I've been careful in this thread to stress the limits of my own expertise and reasoning. But it is not those of us who think the licence can't be terminated who have "theories". We have basic contract law on our side. It is WotC who need a "theory", which will explain how a unilateral right to terminate is to be read into their contract despite the lack of such a right in the text and given that they have been part of, and have fostered, twenty years of industry practice which is premised on the absence of such a right.
> 
> No one (including the OP) has yet presented such a theory. Which is not to say that WotC doesn't have one - obviously WotC/Hasbro can afford to pay a lot of clever lawyers, who will be working harder on this than anyone posting in this thread is.




I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they _know_ they cannot revoke the license. Lawfare was not the intent in that tactic, but the _threat_ of lawfare was the intent to muscle the big players. Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category.  I am not a lawyer, obvious, but I do hope this is the case.

joe b.


----------



## pemerton

FrogReaver said:


> I'm not sure I'm following your reasoning here.  What precisely are you saying prevents 1.1 from saying whatever WOTC wants while still being an updated version of the OGL?



First, "updated version of the OGL" is not a technical term in the abstract.

Second, to render it into one we have to assume it has meaning within the context and operation of section 9.

Section 9 confers a power on WotC (or its agents) to publish variant licences. And it also confers a permission on all licensees, who use OGC, to use which licence (out of all the variants) that they use it with.

If the OGL v 1.1 were to count as one of those variant licences for the use of OGC, then any licensed user of OGC could choose to use that OGC under any other variant, including v 1.0a which does not require the payment of royalties. This would kill WotC's royalties regime stone dead.

Therefore, v 1.1 will be drafted in such a way as to make clear that it is not one of the variants that existing licensees have permission to use. We have already seen one of the features of that drafting: it does not have OGC but rather Licensed Content. I would expect v 1.1 to have a provision in it similar to section 9 of v 1.0/1.0a, but I would also expect that provision to expressly exclude v 1.0/1.0a from being a relevant authorised variant. (And this is what I believe is meant by the phrase in the info pack that v 1.0a "is no longer an authorized license agreement".)



FrogReaver said:


> This is what section 9 actually says:
> 
> 9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. 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.
> 
> The lack of 'authorized' in the 2nd underline makes perfect sense if one assumes a version of the license can be deauthorized.  In that case it would read that OGC distributed under any OGL version, even a not currently authorized version, can still be used with currently authorized versions of the OGL.  That makes 100% sense.
> 
> It's hard for me to see an alternative reading that makes as much sense, given just the context of section 9.
> Consider the scenario:
> 1.  OGC was distributed under a previous version of this OGL license.
> 2.  You distribute it under a Wizards updated version of the licensee.
> Why would it need to specify that you can use any _authorized_ version when the OGL specifically tells us the sentence before that the only party that can publish an updated version of the license is wizards - Wouldn't it have been clearer to just say 'any version'?  Also, if 'authorized' was necessary in the first underlined part, why wouldn't _authorized _also be necessary in the 2nd underlined part?
> 
> Thus, from a purely textual consideration - I personally am starting to find the deauthorization argument more compelling than I previously did.



There is no deauthorisation argument. You ask "why would it specify that you can use any authorised version"? The answer is that this reinforces that versions that can be used must be those published with appropriate authority, ie by WotC or its agents. That's it.

I already posted a more detailed account of this, in reply to your earlier post, upthread at #556:



pemerton said:


> "Authorised" means published with appropriate authority, ie by WotC or one of its designated agents. There is no need to use the word "authorised" in the last occurrence of "version" because it would be tautologous - OGC can by definition only be distributed under an authorised licence, because otherwise it wouldn't be OGC (which is a category of content constituted by the operation of a valid licence along the lines of the OGL).
> 
> Thus, the meaning of the provision is:
> 
> WotC or its designated agents may publish versions of this Licence that contain different terms, and you may use this version or any other such version to [use] any OGC originally distributed under this Licence or any other such version.​
> As I've posted already, this confers a power on WotC, to make available OGLs with variant terms, and any licensee can choose from among the candidate OGLs which one to use when they use OGC.
> 
> I mean, if someone else has a credible alternative construction I'm happy to hear it, but what I've set out just above seems reasonably straightforward to me.


----------



## pemerton

jgbrowning said:


> I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they _know_ they cannot revoke the license. Lawfare was not the intent in that tactic, but the _threat_ of lawfare was the intent to muscle the big players. Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category.  I am not a lawyer, obvious, but I do hope this is the case.



I think that WotC wants to get this sorted before the movie comes out and (if it successful) creates opportunities for a lot of other parties to publish OGL-licensed works that profit from the movie. (This is not my theory, by the way. I got it from @Hussar.)

There may also be a more generic desire to gather their IP back into the fold, but the movie as a key event makes sense to me as an answer to the question "why now?"

I agree that, as with the GSL, they were presumably hoping to get some big players on board. And for all we know, they have done so - I mean, if it's true that Paizo is thinking of selling to WotC, that seems like a bit of a win for the latter!

Whether they will use "lawfare" to try and crack down on publishers who continue to act upon their rights under the existing OGL I think it's too early to predict. If I was WotC, I'd first be seeing how far I can get via more productive channels - eg arrangements with Kickstarter and OBS, special pathways for access to D&DBeyond, etc. Of course some attempts at monopolisation and exploitation of market power can push against competition/anti-trust law, but I doubt WotC will be worried about that - who will bring the suit against them? Whereas trying to sue people for infringement invites them to plead the licence in their defence, and win on that basis.


----------



## jgbrowning

pemerton said:


> I think that WotC wants to get this sorted before the movie comes out and (if it successful) creates opportunities for a lot of other parties to publish OGL-licensed works that profit from the movie. (This is not my theory, by the way. I got it from @Hussar.)




If you could point me in the right direction of that thought, I'd appreciate it. It's one I haven't seen before.

joe b.


----------



## pemerton

jgbrowning said:


> If you could point me in the right direction of that thought, I'd appreciate it. It's one I haven't seen before.
> 
> joe b.



My searching hasn't turned it up. @Hussar can confirm whether or not I've misattributed the idea to him!


----------



## S'mon

jgbrowning said:


> *I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they know they cannot revoke the license. Lawfare was not the intent in that tactic, but the threat of lawfare was the intent to muscle the big players.* Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category.  I am not a lawyer, obvious, but I do hope this is the case.
> 
> joe b.




This matches my feelings about what's probably going on, especially the bolded bit.
A lot of the language we've seen from WoTC doesn't seem to make a lot of sense legally, eg even calling the licence OGL 1.1 doesn't make a lot of sense if you want to protect your 5.5 SRD from exploitation under  Section 9 of OGL 1.0. A lot of it seems very emotional for a legal document. It makes a lot more sense if this is a strategy to threaten & push major 3PPs into signing up to (better than OGL 1.1) deals.


----------



## pemerton

S'mon said:


> A lot of the language we've seen from WoTC doesn't seem to make a lot of sense legally, eg even calling the licence OGL 1.1 doesn't make a lot of sense if you want to protect your 5.5 SRD from exploitation under  Section 9 of OGL 1.0. A lot of it seems very emotional for a legal document. It makes a lot more sense if this is a strategy to threaten & push major 3PPs into signing up to (better than OGL 1.1) deals.



Agreed. In the leaks, we're seeing the gloss/spin/propaganda presentation intended by WotC to achieve some of its commercial goals in the context of pre-contractual negotiations.

Do we know who leaked? I'm a bit curious about that. I wonder if WotC is also!


----------



## Nikosandros

pemerton said:


> Do we know who leaked? I'm a bit curious about that. I wonder if WotC is also!



I have no evidence, but I believe that there might have been multiple sources for the leaks. Also, since rumors had been circulating for weeks, I wouldn't be surprised if some information came from within WotC itself.


----------



## S'mon

pemerton said:


> As I posted a couple of times upthread -* I don't think there is any point in trying to read press releases as if they are legal documents. When press releases, or "info packs", are all that we have then we need to look at them and try to imagine what the legal framework is that they are describing.*
> 
> It seems pretty obvious that WotC wants to create a new ecosystem for licensed content, in which participants are obliged to play them royalties (under certain conditions). *They will therefore not make the basic error of releasing a licence which obviously falls within the terms of OGL v 1.0/1.0a's section 9 and thus entitles existing licensees, and probably future sub-licensees also, to use WotC's new content under any the existing royalty-free licence.*
> 
> Thus, *whatever exactly the OGL v 1.1 looks like, it will not be an "update" within the meaning of section 9 of v 1.0/1.0a.*
> 
> And "update" has no other legal meaning in this context that I can see.
> 
> So trying to argue that v 1.1 will nevertheless, in some sense, be an update strikes me as pointless and even quixotic.
> 
> This doesn't stop WotC's media and comms team describing things however they like - but why are you taking their choice of words so seriously if what you're actually trying to do is cut through the comms team's spin and make legal sense of what might actually be happening?




I think our perspectives differ here a bit Mr P. I agree that the language we're seeing does not look very legal, but everything we're getting from those who have seen OGL 1.1 seems to show a very high degree of correspondence between the language in the press release and the language in the licence. We can say as lawyer guys "But this language makes no legal sense!  They're torpedoing their own position!" - but if their real goal is intimidation of 3PPs into abandoning OGL 1.0, NOT creating an effective legal document for the courtroom, I think it makes a lot more sense.

I see two interacting possibilities:
1. Externally, they are focused on scaring people, not on creating something legally effective. It's never intended to stand up in court.
2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.


----------



## S'mon

S'mon said:


> 2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.




At the naval Battle of Salamis, Queen Artemisia, a sub-king of the Persian Empire, reportedly attacked and sunk one of her own side's ships. Not because it made any military sense, but because of how it looked to the Persian Great King, Darius I think it was. It would make no sense to sink your own ship - so that _must_ have been a Greek ship! I think we might be seeing similar behaviour here.


----------



## Yaarel

S'mon said:


> I think our perspectives differ here a bit Mr P. I agree that the language we're seeing does not look very legal, but everything we're getting from those who have seen OGL 1.1 seems to show a very high degree of correspondence between the language in the press release and the language in the licence. We can say as lawyer guys "But this language makes no legal sense!  They're torpedoing their own position!" - but if their real goal is intimidation of 3PPs into abandoning OGL 1.0, NOT creating an effective legal document for the courtroom, I think it makes a lot more sense.
> 
> I see two interacting possibilities:
> 1. Externally, they are focused on scaring people, not on creating something legally effective. It's never intended to stand up in court.
> 2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.



Maybe the weird language and abundant pages are to try distract people from the two sentences that matter?

"This agreement is, along with the OGL: Non-Commercial, an update to the previously available *OGL 1.0(a)*, which *is no longer an authorized* license agreement. *We can modify or terminate this agreement for any reason whatsoever*, provided We give thirty (30) days’ notice. We will provide notice of any such changes by posting the revisions on Our website, and by making public announcements through Our social media channels."


----------



## S'mon

Yaarel said:


> Maybe the weird language and abundant pages are to try distract people from the two sentences that matter?
> 
> "This agreement is, along with the OGL: Non-Commercial, an update to the previously available *OGL 1.0(a)*, which *is no longer an authorized* license agreement. *We can modify or terminate this agreement for any reason whatsoever*, provided We give thirty (30) days’ notice. We will provide notice of any such changes by posting the revisions on Our website, and by making public announcements through Our social media channels."




No, I think they definitely want the major 3PPs to have read that. I think they want the major 3PPs to go "OMG, I'm ruined!" and then be psychologically amenable to signing up to better (but still bad) bespoke agreements.

This is speculation of course, and speculation about commercial strategy, not legal strategy. But I think it fits what we've seen.


----------



## Hussar

pemerton said:


> My searching hasn't turned it up. @Hussar can confirm whether or not I've misattributed the idea to him!




I don’t recall exactly but I think I floated the idea that this has less to do with what has happened in the past but with going forward. IOW, they don’t really care about the current 3pp. Why would they? It’s not like any of them are even remotely actual competitors. 

But they might care if someone like ten cent suddenly decided to bang out movie adjacent video games for your iPhone using the ogl. Or character builders. That sort of thing. 

I have no idea how plausible this is but the timing seems suspect.


----------



## Yaarel

S'mon said:


> No, I think they definitely want the major 3PPs to have read that. I think they want the major 3PPs to go "OMG, I'm ruined!" and then be psychologically amenable to signing up to better (but still bad) bespoke agreements.
> 
> This is speculation of course, and speculation about commercial strategy, not legal strategy. But I think it fits what we've seen.



Heh, I am glad your take is, the 1.1 legal document cannot possibly be taken seriously in court.


----------



## Prime_Evil

*I* think the key question is what mechanism they are using to extinguish the rights granted by v1.0a. This is what will attract the most attention.


----------



## sigfried

FrogReaver said:


> It's hard for me to see an alternative reading that makes as much sense, given just the context of section 9.



I can help you with that.

What if I made a version of the OGL and said in it, you get to use everything WOTC has ever published?  Would that be an "Authorised" version of the OGL?

Nope, but it's something someone could try and do if they were feeling cheeky.  The point of the Authorized language is to say you can only use a version of the language written by and authorized by Wizards of the Coast, not variations other people might try to pass off, which is a real concern with a license passed around in the way Open licenses are.


----------



## pemerton

S'mon said:


> I see two interacting possibilities:
> 1. Externally, they are focused on scaring people, not on creating something legally effective. It's never intended to stand up in court.
> 2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.





S'mon said:


> At the naval Battle of Salamis, Queen Artemisia, a sub-king of the Persian Empire, reportedly attacked and sunk one of her own side's ships. Not because it made any military sense, but because of how it looked to the Persian Great King, Darius I think it was. It would make no sense to sink your own ship - so that _must_ have been a Greek ship! I think we might be seeing similar behaviour here.



I think 1 is plausible.

For me, 2 and the Artemisia story seem less likely. TSR in the mid-90s was beginning its fall off the cliff. (Maybe it was even half-way to the bottom!) Whereas WotC is more-or-less at the height of its powers.


----------



## pemerton

Prime_Evil said:


> *I* think the key question is what mechanism they are using to extinguish the rights granted by v1.0a. This is what will attract the most attention.



The better view, at this stage, has to be that there is no such mechanism. I think there is purely assertion on a power point slide, and then a term in v 1.1 whereby licensees agree to release their rights under v 1.0/1/0a.


----------



## S'mon

pemerton said:


> I think 1 is plausible.
> 
> For me, 2 and the Artemisia story seem less likely. TSR in the mid-90s was beginning its fall off the cliff. (Maybe it was even half-way to the bottom!) Whereas WotC is more-or-less at the height of its powers.




Well, remember that Hasbro stock is down 40% on the year, downgraded to a Sell recommendation, and that this is primarily due to WoTC's recent mismanagement of Magic: The Gathering.

Edit: Also I think the suggestion that Microsoft execs tend to be viscerally hostile to Open Source may have some merit.


----------



## jgbrowning

S'mon said:


> Well, remember that Hasbro stock is down 40% on the year, downgraded to a Sell recommendation, and that this is due to WoTC's mismanagement of Magic: The Gathering.




I also think it important to remember that the purchase of D&D Beyond from Fandom for $146.3 million has just occurred. That's a large amount to be moving out, even with WotC's size.

joe b.


----------



## mhd

S'mon said:


> Also I think the suggestion that Microsoft execs tend to be viscerally hostile to Open Source may have some merit.



Maybe the first generation, who are probably now all on their yachts anyway. In recent years, MS has been doing Open Source a lot themselves. Heck, Oracle does now, too. 
I thought the RPG world has caught up a bit, but unsurprisingly any industry that prints with ink is still a few decades behind most of the world.


----------



## Greg K

Indestructoboy is going over the full OGL 1.1  live on YouTube


----------



## pemerton

S'mon said:


> Well, remember that Hasbro stock is down 40% on the year, downgraded to a Sell recommendation, and that this is due to WoTC's mismanagement of Magic: The Gathering.



What happened to all the threads I seem to recall recently celebrating how big a part of Hasbro WotC and D&D are? They weren't that many years ago, were they?



S'mon said:


> Also I think the suggestion that Microsoft execs tend to be viscerally hostile to Open Source may have some merit.



I would expect WotC to have mixed feelings about the OGL, after the experience with PF. And that could be reinforced by intermingling with other corporate cultures. But that doesn't give a reason to sink your own boats, or to cultivate a self-delusion that you can terminate in ways you can't! (Deluding others of course would make sense.)

Leveraging their market power with key sales platforms seems more sensible to me. (It's hard to imagine overworked anti-trust officials turning their attention to the RPG sector in the immediate term.)


----------



## S'mon

pemerton said:


> But that doesn't give a reason to sink your own boats, or to cultivate a self-delusion that you can terminate in ways you can't! (Deluding others of course would make sense.)




Delusions rarely make sense. 

I think this is 90% cold hearted business practice, maybe 10% hate/spite/delusion. It could be 100%/0%, but some of the language feels a bit too spiteful to me.


----------



## Prime_Evil

I just got the following response from @Mongoose_Matt when I asked about the Legend game system:


> We intend to keep Legend Open in whatever capacity that might end up being. However, please bear in mind that no one really knows what is happening yet.



So at least there will be a d100 variant available under an open license if the new OGL makes stuff it impossible to publish stuff derived from D&D.


----------



## S'mon

pemerton said:


> What happened to all the threads I seem to recall recently celebrating how big a part of Hasbro WotC and D&D are? They weren't that many years ago, were they?




What happened was that WoTC became the most important part of Hasbro due to the success of M:tG, with a bit of contribution from D&D. That meant that Hasbro became vulnerable when M:tG then had a very bad 2022, and the investors are not happy.


----------



## jgbrowning

Greg K said:


> Indestructoboy is going over the full OGL 1.1  live on YouTube




Yep, looks like it.

joe b.


----------



## pemerton

S'mon said:


> What happened was that WoTC became the most important part of Hasbro due to the success of M:tG, with a bit of contribution from D&D. That meant that Hasbro became vulnerable when M:tG then had a very bad 2022, and the investors are not happy.



Torpedoing you own vessels seems a desperate response to that!

As opposed to leveraging 3PP "rivals", trying to get Kickstarter and Matt Mercer on side, etc - which all seems like rational commercial action.

Would deliberately-cultivated uncertainty about the strength of Paizo's OGL rights make it harder for them to recruit freelance talent? I don't have any intuition about that, but if it would that would be on technique for trying to undermine Paizo.


----------



## Tazawa

Greg K said:


> Indestructoboy is going over the full OGL 1.1 live on YouTube




And doing a very poor job of it. He’s convinced himself that YouTubers can’t talk about Pathfinder because Pathfinder uses the OGL and WotC’s fan content policy applies to their IP and doesn’t allow sponsorship by competitors.

This obviously isn’t true but it’s clear that WOTC has lost the trust of a large number of people and will need to change their behaviour if they want to regain that trust.

He scrolled up and down a few times. All of the leaks are confirmed.


----------



## pemerton

S'mon said:


> What happened was that WoTC became the most important part of Hasbro due to the success of M:tG, with a bit of contribution from D&D. That meant that Hasbro became vulnerable when M:tG then had a very bad 2022, and the investors are not happy.



I just Googled up and read this: Magic: The Gathering Cards Face Decreasing Value Due to Overproduction.

My takeaway was that a dilution of secondary market values is seen to risk undercutting demand in the primary market. Which doesn't entirely make sense to me, but that's probably why I'm an academic rather than in business!


----------



## S'mon

pemerton said:


> Would deliberately-cultivated uncertainty about the strength of Paizo's OGL rights make it harder for them to recruit freelance talent? I don't have any intuition about that, but if it would that would be on technique for trying to undermine Paizo.




They certainly seem to be seeking to undermine 3PPs, including Paizo. Either bring them under WoTC control via contract, or abandon the OGL and become vulnerable to litigation for copyright infringement.


----------



## jgbrowning

Tazawa said:


> And doing a very poor job of it. He’s convinced himself that YouTubers can’t talk about Pathfinder because Pathfinder uses the OGL and WotC’s fan content policy applies to their IP and doesn’t allow sponsorship by competitors.
> 
> This obviously isn’t true but it’s clear that WOTC has lost the trust of a large number of people and will need to change their behaviour if they want to regain that trust.
> 
> He scrolled up,and down a few times. All of the leaks are confirmed.



Yes, his commentary is less useful than would be a simple slow-scroll through the entire document. (part of the reason why I dislike video as an information distribution method-the creator of the content is far more front-and-centered than I prefer).

joe b.


----------



## S'mon

Tazawa said:


> And doing a very poor job of it. He’s convinced himself that YouTubers can’t talk about Pathfinder because Pathfinder uses the OGL and WotC’s fan content policy applies to their IP and doesn’t allow sponsorship by competitors.




Yes, and I think this is the kind of fear & confusion that WotC intended to engender.


----------



## Greg K

There are a couple of lawyers in the video chat.


----------



## pemerton

S'mon said:


> They certainly seem to be seeking to undermine 3PPs, including Paizo. Either bring them under WoTC control via contract, or abandon the OGL and become vulnerable to litigation for copyright infringement.





S'mon said:


> I think this is the kind of fear & confusion that WotC intended to engender.



Along these lines, from the screen shot of the video we can see this:







Greg K said:


> Indestructoboy is going over the full OGL 1.1  live on YouTube



*This agreement is . . . an update to the previously available OGL 1.0(a) which is no longer an authorized license agreement.*

So they do say that the existing OGL is not authorised for use by parties to v 1.1, which is as expected.

But they describe v 1.1 as an update, which is unexpected (by me at least), but which seems to fit with the "fear and confusion" strategy: because it immediately raises the question of whether or not a party to v 1.1 can publish OGC under v 1.1. To me it seems that they can't, as they cannot make their OGC available to a 1.0/1.0a licensee on the terms to which that licensee is entitled. But the language of "update" makes this obscure, thus (i) opening up the prospect of dispute among 3PPs over whether they are breaching licence obligations to one another, and thereby (ii) generally reducing the resilience of the 3PP ecosystem.

That seems quite clever!


----------



## jgbrowning

Hrm...I was just told by the phone-in-commentator rent-seeking behavior isn't rent-seeking behavior because he thinks that the point of the rent-seeking is to prevent the growth of large competitors, so yeah...

joe b.


----------



## Prime_Evil

It is looking like the update mechanism is key to claims WotC can render v1.0a an "unauthorised" version of the license. It is unclear whether they can unilaterally do this, but it seems the aim is to create fear and confusion.


----------



## S'mon

If WoTC had went to a neutral lawyer for advice, I think the advice would be along the lines of:

"It is unlikely that the OGL 1.0 can be revoked. It was clearly intended to be non-revocable.
"However, you can certainly release the updated version of D&D outside the OGL. You can use a new license to do this, as was done in 2008. That will prevent third parties from using material unique to the updated version of D&D."

But instead of a brand new licence, we're seeing this "OGL 1.1" that explicitly claims to be an update, putting it within section 9 of OGL 1.0. And we're seeing an implicit claim that they can somehow revoke 1.0 - they don't seem to have made this claim explicit, but it's clearly what they want readers of 1.1 to think.

OGL 1.1 is a terror weapon, not a weapon designed for maximum legal efficiency. It's an AT-AT not an MBT. In the cause of sowing fear and confusion, it puts WoTC in a significantly worse legal position. A licence drafted to protect WoTC's legal rights and to stand up well in court would look quite different, IMO.


----------



## Toran Ironfinder

So here are some questions when it comes to IP and WOTC, I didn't go through every page. 

Much of DND's earlier editions were based on rules from wargames, do we know if TSR paid royalties for the use of those rules?

When WOTC acquired TSR, and came out with DND 3.0, they largely abandoned TSR's old rules. Many of the new rules the Player Handbook used bore striking resemblance to rules put forward to competing RPGs, particularly skill based systems, such as those put out by FASA and West End Games, these being TSR's competitors. For example, the presentation of the skills in the SRD with the difficulty class is very similar to the presentation in West End Games Star Wars 2nd expanded and enhanced edition (released prior to DnD 3.0) though that system used difficulty number. The chart changes a few names, and the type of die, but the target numbers on the chart are the same; this is different from the percentile die system 1e and 2e used for thieves or the non-weapon proficiency system used in 2e. 
The function of ability scores also changed in a way that was closer to TSR's competitors than it was to the way ability scores functioned in 1e and 2e. 

So how much of the IP WOTC is attempting to protect is actually original to WOTC or TSR and how much of it is material they borrowed and adapted from non-TSR games? Were royalties paid then, and are they paid now? If it isn't original to WOTC and TSR, on what basis is it being treated as a trademark?

Also, as games with no roots in DND, such as D6 adopted the OGL, how will this affect those properties, since presumably WOTC can't really claim they are WOTC's intellectual property on any basis? The OGL has functioned as a creative commons, even if it is not distinctly written as such. Does 5e borrow concepts from other creative common's games, and if so, does invalidating the license invalidate 5e's use of those concepts?


----------



## S'mon

Game mechanics are not considered protectable. TSR and WotC I am sure paid no royalties.

A chart with DCs that go up by 5 is not a copyright protected concept, IMO.


----------



## Steel_Wind

pemerton said:


> That's not relevant. A gratuitous promise made very solemnly and put into writing is still just a gratuitous promise.



Unless it also under seal; then matters are different. To be clear, the OGL is not purportedly signed & sealed nor are any of the documents under discussion here.


----------



## Catolias

S'mon said:


> But instead of a brand new licence, we're seeing this "OGL 1.1" that explicitly claims to be an update, putting it within section 9 of OGL 1.0. And we're seeing an implicit claim that they can somehow revoke 1.0 - they don't seem to have made this claim explicit, but it's clearly what they want readers of 1.1 to think.
> 
> OGL 1.1 is a terror weapon, not a weapon designed for maximum legal efficiency. It's an AT-AT not an MBT. In the cause of sowing fear and confusion, it puts WoTC in a significantly worse legal position. A licence drafted to protect WoTC's legal rights and to stand up well in court would look quite different, IMO.



This makes some sense to me. It struck me that this was similar to the negotiation tactics I’ve come across in my area of work that intersects with the law. Often ridiculous claims are made to demonstrate reasonableness and fairness (legal, not ethical / moral), or just simply to gain an idea of where the other side believes the line should be drawn.


----------



## Catolias

I’ve separated this from my other post because it is speculative. One suggestion I have seen on another forum suggests wotc’s target in the OGL 1.1 is not 3PPs but VTTs. The argument for this is that VTTs are the mechanism for Hasbro to more effectively monetise D&D. The effect on smaller 3PPs would be collateral damage.


----------



## Prime_Evil

Now significant parts of the licensing document have been revealed, would any lawyers in this thread revise or clarify their previous opinions? In light of the new information, do you think v.1.1 of the OGL successfully terminates the rights granted under v1.0a? Or should we regard this as an attempt to spread FUD (fear, uncertainty, and doubt)?


----------



## Catolias

S'mon said:


> Game mechanics are not considered protectable. TSR and WotC I am sure paid no royalties.
> 
> A chart with DCs that go up by 5 is not a copyright protected concept, IMO.



Would you imagine that if WoTC commenced proceedings that the opposing side would seek to have an expert on the history of ttrpgs to give evidence? I recall Tunnel & Trolls from the 1970s having the same basic 6 abilities. Surely, there’s be others from that time.


----------



## Azzy

S'mon said:


> A chart with DCs that go up by 5 is not a copyright protected concept, IMO.



Agreed, R.Talsorian Games' Interlock system (and probably other companies' game systems) use a difficulty table that used increments of 5 before WotC started dabbling in RPGs.


----------



## S'mon

Catolias said:


> Would you imagine that if WoTC commenced proceedings that the opposing side would seek to have an expert on the history of ttrpgs to give evidence? I recall Tunnel & Trolls from the 1970s having the same basic 6 abilities. Surely, there’s be others from that time.




No one is going to sue over basic game mechanics IMO. I don't think this speculation is very worthwhile.

I guess if they did sue, the defendant might bring an historian/expert in. I saw Games Workshop at one stage convince a judge during the _Chapter House_ litigation that they owned a copyright in large shoulder pads/pauldrons. Chapter House would have benefitted from someone who knew the history, that early WH40K design including Space marine giant shoulder pads was clearly closely inspired by the art of 70s/80s _2000 AD_ comic artists like Brett Ewins, Carlos Ezquerra et al. So if it came to it, yes maybe.


----------



## pemerton

Steel_Wind said:


> Unless it also under seal; then matters are different.



Absolutely. In some contexts, it might also create a trust. But I left those cases out because they seemed needlessly complicated in the context; and as you say the OGL is not signed and sealed, and nor does it create a trust over WotC's IP rights in other parties' favour.


----------



## pemerton

Toran Ironfinder said:


> Does 5e borrow concepts from other creative common's games, and if so, does invalidating the license invalidate 5e's use of those concepts?



5e does not purport to be produced under any sort of licence. WotC asserts ownership of whatever IP rights attach to the 5e works that it publishes. And I've never heard any suggestion that in fact WotC is infringing anyone else's copyright or using anyone else's trademarks.


----------



## pemerton

Catolias said:


> Would you imagine that if WoTC commenced proceedings that the opposing side would seek to have an expert on the history of ttrpgs to give evidence? I recall Tunnel & Trolls from the 1970s having the same basic 6 abilities. Surely, there’s be others from that time.



With T&T it goes the other way - T&T was deliberately modelled on D&D, but intended to be simpler and more intuitive.

Whether T&T infringed any TSR-owned copyrights I leave for others to try and work out!


----------



## pemerton

S'mon said:


> If WoTC had went to a neutral lawyer for advice, I think the advice would be along the lines of:
> 
> "It is unlikely that the OGL 1.0 can be revoked. It was clearly intended to be non-revocable.
> "However, you can certainly release the updated version of D&D outside the OGL. You can use a new license to do this, as was done in 2008. That will prevent third parties from using material unique to the updated version of D&D."
> 
> But instead of a brand new licence, we're seeing this "OGL 1.1" that explicitly claims to be an update, putting it within section 9 of OGL 1.0. And we're seeing an implicit claim that they can somehow revoke 1.0 - they don't seem to have made this claim explicit, but it's clearly what they want readers of 1.1 to think.
> 
> OGL 1.1 is a terror weapon, not a weapon designed for maximum legal efficiency. It's an AT-AT not an MBT. In the cause of sowing fear and confusion, it puts WoTC in a significantly worse legal position. A licence drafted to protect WoTC's legal rights and to stand up well in court would look quite different, IMO.



As per my post not too far upthread, I think I agree that it is designed to cause confusion.

My thought about its relationship to v 1.0/1.0a might be different from yours, though, and I'm interested to work out if that's so.

A party to the OGL v 1.1 agrees, via the screenshot clause, that they are becoming a party to an updated version of the OGL. That suggests, therefore, that they also agree to allow v 1.1 to be used to distribute (etc) their OGC. They also agree that v 1.0/1.0a is no longer authorised by WotC, and hence renounce the right to distribute any OGC under that licence.

A key question is, what is the status of OGC contributed by licensees who are not party to v 1.1. I don't think that they have agreed to have their content distributed by other parties under v 1.1, as those parties (it seems to me) are not conferring on v 1.0a licensees the rights those licensees are entitled to, including the right to choose which licence to use (because v 1.1 parties can't confer that right - at a minimum they have renounced their previous power to confer the right on others to use v 1.0/1.0a).

So I'm not sure that WotC have failed to protect their own rights. Because anyone who enters into a new licence with them now, ie via 1.1, is passing through a one-way door (I think, as per the above). And those parties bring their own OGC with them, but cut off their membership of the 1.0/1.0a ecosystem. Or at least perhaps _some_ of their OGC - because those parties cannot both enter the 1.1 ecosystem and honour obligations they might owe to parties to 1.0/1.0a, and so perhaps can't bring all of their OGC with them - only OGC that is licensed by another 1.1 party.

Which to me seems to fracture the 3PP ecosystem in a much weirder fashion than I think the GSL did, or than your proposal would.


----------



## S'mon

Prime_Evil said:


> Now significant parts of the licensing document have been revealed, would any lawyers in this thread revise or clarify their previous opinions? In light of the new information, do you think v.1.1 of the OGL successfully terminates the rights granted under v1.0a? Or should we regard this as an attempt to spread FUD (fear, uncertainty, and doubt)?




My opinion stands. The latter - FUD.


----------



## pemerton

Prime_Evil said:


> Now significant parts of the licensing document have been revealed, would any lawyers in this thread revise or clarify their previous opinions?



See my post just upthread.



Prime_Evil said:


> In light of the new information, do you think v.1.1 of the OGL successfully terminates the rights granted under v1.0a?



What do you mean by your question? As various of us anticipated, parties to v 1.1 renounce their rights to use the v 1.0/1.0a licence terms.

Parties to v 1.0/1.0a who do not become parties to v 1.1 retain their rights for all the reasons discussed at length in this thread. But to me, it seems their relationship to members of the v 1.0/1.0a OGC ecosystem is changed in weirder ways than was the case with the GSL. But I'm waiting to see what @S'mon and any others think of my analysis I've just posted. It's possible I've made mistakes in my reasoning.


----------



## S'mon

pemerton said:


> 5e does not purport to be produced under any sort of licence. WotC asserts ownership of whatever IP rights attach to the 5e works that it publishes. And I've never heard any suggestion that in fact WotC is infringing anyone else's copyright or using anyone else's trademarks.




I guess if monsters do enjoy copyright protection, as I've been assuming, then the Displacer Beast may well infringe A E Van Vogt's copyright in the Couerl! 

And you could argue about Tolkien estate having a copyright in his monsters like Ents, Wargs, Orcs, Balrogs etc - but to me they seem simpler and more generic concepts than the Displacer Beast/Couerl.


----------



## S'mon

pemerton said:


> As per my post not too far upthread, I think I agree that it is designed to cause confusion.
> 
> My thought about its relationship to v 1.0/1.0a might be different from yours, though, and I'm interested to work out if that's so.
> 
> A party to the OGL v 1.1 agrees, via the screenshot clause, that they are becoming a party to an updated version of the OGL. That suggests, therefore, that they also agree to allow v 1.1 to be used to distribute (etc) their OGC. They also agree that v 1.0/1.0a is no longer authorised by WotC, and hence renounce the right to distribute any OGC under that licence.
> 
> A key question is, what is the status of OGC contributed by licensees who are not party to v 1.1. I don't think that they have agreed to have their content distributed by other parties under v 1.1, as those parties (it seems to me) are not conferring on v 1.0a licensees the rights those licensees are entitled to, including the right to choose which licence to use (because v 1.1 parties can't confer that right - at a minimum they have renounced their previous power to confer the right on others to use v 1.0/1.0a).
> 
> So I'm not sure that WotC have failed to protect their own rights. Because anyone who enters into a new licence with them now, ie via 1.1, is passing through a one-way door (I think, as per the above). And those parties bring their own OGC with them, but cut off their membership of the 1.0/1.0a ecosystem. Or at least perhaps _some_ of their OGC - because those parties cannot both enter the 1.1 ecosystem and honour obligations they might owe to parties to 1.0/1.0a, and so perhaps can't bring all of their OGC with them - only OGC that is licensed by another 1.1 party.
> 
> Which to me seems to fracture the 3PP ecosystem in a much weirder fashion than I think the GSL did, or than your proposal would.




It's an interesting thought. I can imagine a judge getting pretty exasperated trying to disentangle this. I think it's a good example of how WoTC is seeking to disrupt & degrade the OGL ecosystem. It also means additional potential liability (to their previous OGL 1.0 sub-licensors) for any company that signs OGL 1.1.

It's an additional reason why the OGL 1.1 is utterly toxic and I think no one in their right mind should sign it!


----------



## Xyxox

If you have the time, Indestructoboy has the entire OGL 1.1 and spent about 3:38 going over it in a live stream this morning:


----------



## pemerton

S'mon said:


> It's an interesting thought. I can imagine a judge getting pretty exasperated trying to disentangle this. I think it's a good example of how WoTC is seeking to disrupt & degrade the OGL ecosystem.* It also means additional potential liability (to their previous OGL 1.0 sub-licensors) for any company that signs OGL 1.1.*
> 
> It's an additional reason why the OGL 1.1 is utterly toxic and I think no one in their right mind should sign it!



The bit that I've bolded is what I'm particularly intrigued by.

Setting aside the normative question of toxicity, I think it's potentially a rather clever bit of drafting that manages to protect WotC's rights _and_ cause disruption in the ecosystem. (I do agree it could cause exasperation for a judge.)


----------



## S'mon

S'mon said:


> I guess if monsters do enjoy copyright protection, as I've been assuming, then the Displacer Beast may well infringe A E Van Vogt's copyright in the Couerl!
> 
> And you could argue about Tolkien estate having a copyright in his monsters like Ents, Wargs, Orcs, Balrogs etc - but to me they seem simpler and more generic concepts than the Displacer Beast/Couerl.




Oh, and there are issues with the Fiend Folio monsters that originated in White Dwarf. The original contributors all owned copyright in their published material, eg Charles Stross for Githyanki, Githzerai, & Slaad. TSR believed they had acquired full rights to those monsters from Games Workshop. Did Games Workshop _really_ effect a transfer of copyright in all those monsters from the authors to themselves? That's really tricky. Even if they transferred copyright in what appeared in the 1e FF, under UK law the copyright in the original published literary works (the versions appearing in White Dwarf magazine) would normally stay with the authors. I suspect that under UK law WoTC may possess licences but not actually own the copyrights. A monster concept per se has never been held to be a copyright work anyway, just the words describing it. Quite the can of rot grubs.


----------



## Matt Thomason

A legal case that might be applicable:

Jacobsen v Katzer (2008) ruled that a non-exclusive copyright license with no revocation clause (the same thing being argued here over the OGL) can only be revoked _*if*_ there was no consideration involved. 
It also ruled that in the case of FOSS software, "the lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration"

The consideration in that case being that there were economic benefits from the license itself from being able to redistribute and modify it, and "being able to create new works" from it.


----------



## Malchor Flubbit

Questions for the contract lawyers here.

Does the situation around OGL 1.1 fit the definition of coercion for designers and publishers?

Does the situation around OGL 1.1 fit the definition of undue Influence for designers and publishers?

Does the situation around OGL 1.1 fit the definition of unconscionability in the terms given to designers and publishers?

Does OGL 1.1 fit the definition of misrepresentation as it claims to be an open license, but does not fit the generally accepted definition, not being copyleft?

If yes to any of the above, does that undermine the ability of WotC to enforce OGL 1.1?


----------



## jgbrowning

Matt Thomason said:


> A legal case that might be applicable:
> 
> Jacobsen v Katzer (2008) ruled that a non-exclusive copyright license with no revocation clause (the same thing being argued here over the OGL) can only be revoked _*if*_ there was no consideration involved.
> It also ruled that in the case of FOSS software, "the lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration"
> 
> The consideration in that case being that there were economic benefits from the license itself from being able to redistribute and modify it, and "being able to create new works" from it.




Well that makes Section 4 look that much more important. "4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."

joe b.


----------



## Matt Thomason

Something else to consider in fighting any attempt to retroactively remove OGL 1.0 without the consent of both parties:

EU law tends to have a lot more consumer protections than US law.  It also considers a license a contract, and I'm not sure if the same is true in the US.
So I'm hoping someone with knowledge of EU law is looking into this too.  There may even be legal means to return products for a refund if they were purchased with the OGL 1.0 being active and with this being retroactively removed, which could be a way to pressure any 3PPs considering taking any under-the-table deal being offered by WotC.


----------



## pemerton

Matt Thomason said:


> A legal case that might be applicable:
> 
> Jacobsen v Katzer (2008) ruled that a non-exclusive copyright license with no revocation clause (the same thing being argued here over the OGL) can only be revoked _*if*_ there was no consideration involved.
> It also ruled that in the case of FOSS software, "the lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration"
> 
> The consideration in that case being that there were economic benefits from the license itself from being able to redistribute and modify it, and "being able to create new works" from it.



In one of these threads I posted that I don't know the US law on adequacy of consideration.

But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.


----------



## pemerton

jgbrowning said:


> Well that makes Section 4 look that much more important. "4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."



All the arguments in this thread against the OP have been built around an understanding of the OGL as a contract. As well as section 4, you'll see that section 3 refers to offer and acceptance.



Matt Thomason said:


> Something else to consider in fighting any attempt to retroactively remove OGL 1.0 without the consent of both parties:
> 
> EU law tends to have a lot more consumer protections than US law.  It also considers a license a contract, and I'm not sure if the same is true in the US.



A licence is a relationship to property - roughly, a permission to use it while not actually getting any interest in it. When you have people over to your house, your are granting them a licence. (That's what makes them not trespassers.)

A licence can be granted gratuitously - as when you have your friends over - or can be granted pursuant to a contract. The OGL is clearly a contract.



Matt Thomason said:


> So I'm hoping someone with knowledge of EU law is looking into this too.  There may even be legal means to return products for a refund if they were purchased with the OGL 1.0 being active and with this being retroactively removed, which could be a way to pressure any 3PPs considering taking any under-the-table deal being offered by WotC.



@S'mon understands EU consumer protection law, I am guessing. But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!


----------



## Matt Thomason

pemerton said:


> But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!




I think there might be a case to be made here that the OGL also allows you a safe harbor to put various materials online for your gaming group without having to worry about copyright violation, even if you're not intending to be an actual 3PP publisher.  I'm also not sure where exactly this puts a freelancer who doesn't do this for a living, but only as an extended part of their hobby.  But I'm really just grasping at straws here and hoping someone with more knowledge than I might get an idea from it


----------



## pemerton

Matt Thomason said:


> I think there might be a case to be made here that the OGL also allows you a safe harbor to put various materials online for your gaming group without having to worry about copyright violation, even if you're not intending to be an actual 3PP publisher.



I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.

But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.



Matt Thomason said:


> I'm also not sure where exactly this puts a freelancer who doesn't do this for a living, but only as an extended part of their hobby.



If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.


----------



## Ulfgeir

pemerton said:


> I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.
> 
> But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.
> 
> If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.



As far as I know, we don't really have the concept of "Fair Use" here in the EU. I am most certainly NOT a lawyer though.

edit: and the law-courses I have taken were 25+ years ago, so definitively not up-to-date.


----------



## Matt Thomason

pemerton said:


> I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.
> 
> But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.
> 
> If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.




Yeah, I think it's more likely going to be worth focusing on the OGL being a legal contract, and whether one side has the rights to unilaterally make changes to a contract.


----------



## Jd Smith1

FrogReaver said:


> What about when the property owner promises you that you will and the breaks his promise?



HIs power to extend the offer, his power to withdraw it. It is, at the end of the day, his property.

Look at marriage: a spouse vows for life, but can still file for divorce.


----------



## Staffan

pemerton said:


> In one of these threads I posted that I don't know the US law on adequacy of consideration.
> 
> But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.



Another consideration on the part of the licensee: they agree not to use any trademarks unless given a separate license to do so.

My understanding is that if I were to write and publish a D&D adventure without violating Wizards' copyright (let's for the sake of the argument assume I successfully navigated that legal minefield), I would be well within my rights to write "A Dungeons & Dragons (R) adventure for level 7 characters", as long as I have a disclaimer saying D&D is a registered trademark blah blah, and I don't use actual logos (which are probably copyrighted as well as trademarked). By using the OGL, I give up that right. That's not nothing.


----------



## Jd Smith1

mamba said:


> Except that the owner declared that you could, and even put it in writing



Marriage licenses are in writing, and are a legal contract with no expiration date. Yet they are regularly dissolved.

The bottom line is this: WotC owns the property.


----------



## GMforPowergamers

Jd Smith1 said:


> Look at marriage: a spouse vows for life, but can still file for divorce.



man looking at this as a divorce makes me both sad and upset...


----------



## Jd Smith1

GMforPowergamers said:


> maybe not exactly... but in this case the guy next door with the pool is getting a bunch of people fired or losing there livelihood.



But not WotC employees (at least as applies in this situation). People who made business decisions based upon assumptions. Building on rented ground, as I mentioned earlier.

Small businesses fold regularly because the rent goes up or the owner wants to do other things with the property. Unpleasant, but reality.


----------



## Jd Smith1

GMforPowergamers said:


> man looking at this as a divorce makes me both sad and upset...



It is a very accurate metaphor, I believe.


----------



## Prime_Evil

pemerton said:


> See my post just upthread.
> 
> What do you mean by your question? As various of us anticipated, parties to v 1.1 renounce their rights to use the v 1.0/1.0a licence terms.
> 
> Parties to v 1.0/1.0a who do not become parties to v 1.1 retain their rights for all the reasons discussed at length in this thread. But to me, it seems their relationship to members of the v 1.0/1.0a OGC ecosystem is changed in weirder ways than was the case with the GSL. But I'm waiting to see what @S'mon and any others think of my analysis I've just posted. It's possible I've made mistakes in my reasoning.



Does it matter that the termination clause in v1.0a specifies that all sublicenses shall survive the termination of this License? Does this mean that OGC contributed prior to signing up to v1.1 remains usable?


----------



## GMforPowergamers

Staffan said:


> My understanding is that if I were to write and publish a D&D adventure without violating Wizards' copyright (let's for the sake of the argument assume I successfully navigated that legal minefield), I would be well within my rights to write "A Dungeons & Dragons (R) adventure for level 7 characters", as long as I have a disclaimer saying D&D is a registered trademark blah blah, and I don't use actual logos (which are probably copyrighted as well as trademarked). By using the OGL, I give up that right. That's not nothing.



my understanding is that in 3e companies did this... I know for a fact that in 2e Mayfair Games tried, and was sued but settled out of court before we got the definitive answer.


----------



## pemerton

Staffan said:


> Another consideration on the part of the licensee: they agree not to use any trademarks unless given a separate license to do so.
> 
> My understanding is that if I were to write and publish a D&D adventure without violating Wizards' copyright (let's for the sake of the argument assume I successfully navigated that legal minefield), I would be well within my rights to write "A Dungeons & Dragons (R) adventure for level 7 characters", as long as I have a disclaimer saying D&D is a registered trademark blah blah, and I don't use actual logos (which are probably copyrighted as well as trademarked). By using the OGL, I give up that right. That's not nothing.



Agreed, although I would probably not say "A Dungeons and Dragons adventure" which to me looks like you might be claiming the trademark for your work. "An adventure for use with Dungeons and Dragons" might be a better way to put it.


----------



## mamba

Jd Smith1 said:


> Marriage licenses are in writing, and are a legal contract with no expiration date. Yet they are regularly dissolved.
> 
> The bottom line is this: WotC owns the property.



and the other bottom line is that ‘perpetual’ also meant ‘irrevocable’ back  in 2000, and courts have upheld that for the GPL 2.0, which is a lot closer to what we are discussing here than a marriage


----------



## rcade

Jd Smith1 said:


> Marriage licenses are in writing, and are a legal contract with no expiration date. Yet they are regularly dissolved.



By another contract agreed to by both parties.

A lot of bad analogies are being thrown around. The Open Game License is not a marriage or a rental agreement. It's an open source license, a type of agreement that courts have become increasingly familiar with in the last 33 years. These licenses don't get torn out from the roots to eliminate the entire corpus of work that was created with them over the span of decades.


----------



## Steel_Wind

Malchor Flubbit said:


> Questions for the contract lawyers here.
> 
> Does the situation around OGL 1.1 fit the definition of coercion for designers and publishers?
> 
> Does the situation around OGL 1.1 fit the definition of undue Influence for designers and publishers?
> 
> Does the situation around OGL 1.1 fit the definition of unconscionability in the terms given to designers and publishers?
> 
> Does OGL 1.1 fit the definition of misrepresentation as it claims to be an open license, but does not fit the generally accepted definition, not being copyleft?
> 
> If yes to any of the above, does that undermine the ability of WotC to enforce OGL 1.1?



1. No, very probably not.  Moreover, questions like this are wrong-headed in terms of the legal remedy which flows from it. Are you trying to escape a contract, or claim reliance damages?  If not, this has no application. Going beyond that, _*coercion amounting to the tort of intimidation*_ is to employ unlawful means towards a goal, to deny or discourage the other party of a right to do something he was otherwise lawfully entitled to do. A new contract, even if it contains some legally uncertain terms within it, is not _clearly_ intimidation.  You are off course and adrift at sea here. This isn't a helpful line of questioning.

2. *Undue influence* is an area of the law which arises in Estate litigation (re validity of a will), or less often, under a power of attorney  for an _inter vivos_ gift. It has no application here.

3. *Unconscionability* is an aspect of contract law which after _Uber  v. Heller_ now varies widely, even among common law jurisdictions. Again, its purpose is to avoid a contract or a part thereof - so the court can "blue pencil" and strike out a plainly unconscionable term(s), while keeping the rest of the contract as enforceable.  I don't see how that has any application to the issues discussed here - at least _so far_. It might arise later though. Leave that one with a pink post-it note stuck to it and shuffle it off to the side for the time being. Unlike the first two questions above (which have no application here) this one _might_, depending on the context and circumstances.


----------



## pemerton

Prime_Evil said:


> Does it matter that the termination clause in v1.0a specifies that all sublicenses shall survive the termination of this License? Does this mean that OGC contributed prior to signing up to v1.1 remains usable?



This looks a bit tricky to me.

Suppose X is a party to the OGL v 1.0/1.0a with one or more licensees.

X now enters into the OGL v 1.1 with WotC. They thereby renounce their rights under OGL v 1.0/1.0a, and promise WotC that henceforth they will use v 1.1 as their licence.

X is still bound by their promise to those other licensees to permit them to use X's OGC under the terms of v 1.0/1.0a. Prima facie, though, if that takes place then X is breaching their promise to WotC under v 1.1

However, if WotC is also a licensor to those other licensees under v 1.0/1.0a, then it has made the section 13 promise to them. Which means that X's prima facie breach of obligations to WotC is not actually a breach, because WotC has promised the other licensees that it can happen.

What is a bit weirder, though, is if those other licensees are _not_ licensees of WotC. For instance, they might be part of a non-WotC-owned-SRD-derived ecosystem. In that case, WotC has not made any promise to them, and so X cannot honour both X's obligations to WotC and X's obligations to the other licensees. So in this case, it looks like X breached their licence obligations to those other licensees when they entered into v 1.1 with WotC.

I've worked the above out as I typed it, so I don't promise that it's the prize-winning answer to the exam! It's more of a first attempt to work through your question.


----------



## jgbrowning

rcade said:


> By another contract agreed to by both parties.
> 
> A lot of bad analogies are being thrown around. The Open Game License is not a marriage or a rental agreement. It's an open source license, a type of agreement that courts have become increasingly familiar with in the last 33 years. These licenses don't get torn out from the roots to eliminate the entire corpus of work that was created with them over the span of decades.




I concur. I don't find much value in analogies when discussing the OGL issues at hand as one can simply discus the thing directly without using analogies.

joe b.


----------



## GMforPowergamers

mamba said:


> and the other bottom line is that ‘perpetual’ also meant ‘irrevocable’ back  in 2000, and courts have upheld that for the GPL 2.0, which is a lot closer to what we are discussing here than a marriage



now I keep seeing this posted both ways. That courts at one point upheld that perpetual meant irrevocable, AND that at one point they had to change all the open contracts (and OGL did not update with it) to SAY irrevocable. 

If the going legal theory is perpetual means irrevocable then there was no reason to update. If there was a reason to update to add irrevocable, that is an opening. 

Now, could 2000 have considered it and 2022 NOT... sure, then you have "is this a living document that will be interpreted in todays meaning, or is this a static document that we will interpret using only the terms form 22 years ago" and my understanding is THAT will vary from judge to judge and can get turned over on an appeal... and even though I still have not hotkeyed it yet "I am not a lawyer"


----------



## Prime_Evil

It seems to me that the new version of the OGL is utterly toxic and viral in ways designed to destroy the industry. Nobody should agree to the terms. Any publisher who does may taint their existing OGC. The updated license is designed to sow division and mistrust. The community should quarantine those who accept the new licence to prevent the "infection" from spreading.


----------



## rcade

GMforPowergamers said:


> my understanding is that in 3e companies did this... I know for a fact that in 2e Mayfair Games tried, and was sued but settled out of court before we got the definitive answer.




 The Role Aids line from Mayfair Games had text like this on the cover of its books:

"Suitable for use with Advanced Dungeons & Dragons."

"Presented by the editors of Role Aids for use with Advanced Dungeons & Dragons role-playing game."

TSR ultimately had to buy Role Aids from Mayfair to get them off the market because it couldn't accomplish that with the courts.


----------



## Prime_Evil

Jd Smith1 said:


> Marriage licenses are in writing, and are a legal contract with no expiration date. Yet they are regularly dissolved.
> 
> The bottom line is this: WotC owns the property.



Keep in mind that many games unrelated to WoTC IP adopted the OGL due to representations made by WotC about its universal applicability.


----------



## reelo

Prime_Evil said:


> It seems to me that the new version of the OGL is utterly toxic and viral in ways designed to destroy the industry. Nobody should agree to the terms. Any publisher who does may taint their existing OGC. The updated license is designed to sow division and mistrust. The community should quarantine those who accept the new licence to prevent the "infection" from spreading.



Hasbro/WotC and all those that sign on to 1.1 should be treated as pariahs and utterly shunned by the whole TTRPG community, yes.


----------



## GMforPowergamers

pemerton said:


> This looks a bit tricky to me.
> 
> Suppose X is a party to the OGL v 1.0/1.0a with one or more licensees.
> 
> X now enters into the OGL v 1.1 with WotC. They thereby renounce their rights under OGL v 1.0/1.0a, and promise WotC that henceforth they will use v 1.1 as their licence.
> 
> X is still bound by their promise to those other licensees to permit them to use X's OGC under the terms of v 1.0/1.0a. Prima facie, though, if that takes place then X is breaching their promise to WotC under v 1.1
> 
> However, if WotC is also a licensor to those other licensees under v 1.0/1.0a, then it has made the section 13 promise to them. Which means that X's prima facie breach of obligations to WotC is not actually a breach, because WotC has promised the other licensees that it can happen.
> 
> What is a bit weirder, though, is if those other licensees are _not_ licensees of WotC. For instance, they might be part of a non-WotC-owned-SRD-derived ecosystem. In that case, WotC has not made any promise to them, and so X cannot honour both X's obligations to WotC and X's obligations to the other licensees. So in this case, it looks like X breached their licence obligations to those other licensees when they entered into v 1.1 with WotC.
> 
> I've worked the above out as I typed it, so I don't promise that it's the prize-winning answer to the exam! It's more of a first attempt to work through your question.



I am sure every word of what you just wrote makes perfect sense. I am sure that any 1st year prelaw student could laugh off this 'break down' and make it work. However the fact that this is even a thought experiment shows how they can kill the OGL.
How can this be a 'safe harbor' when it's full of mines?


----------



## Prime_Evil

GMforPowergamers said:


> now I keep seeing this posted both ways. That courts at one point upheld that perpetual meant irrevocable, AND that at one point they had to change all the open contracts (and OGL did not update with it) to SAY irrevocable.
> 
> If the going legal theory is perpetual means irrevocable then there was no reason to update. If there was a reason to update to add irrevocable, that is an opening.
> 
> Now, could 2000 have considered it and 2022 NOT... sure, then you have "is this a living document that will be interpreted in todays meaning, or is this a static document that we will interpret using only the terms form 22 years ago" and my understanding is THAT will vary from judge to judge and can get turned over on an appeal... and even though I still have not hotkeyed it yet "I am not a lawyer"




Given that the termination clause in the OGL v1.0a specifies circumstances under which the rights granted by the licence can be revoked, it is clearly not irrevocable. The question might be whether these are the only conditions under which the licence may be revoked.


----------



## GMforPowergamers

reelo said:


> Hasbro/WotC and all those that sign on to 1.1 should be treated as pariahs and utterly shunned by the whole TTRPG community, yes.



wait you think if some company or person says "Hey I don't make $750k, I don't even make $50k, I can sign up and just keep putting out my very small pdfs" that the few people buying them should stop buying them because they made a choice that this isn't there fight?!


----------



## pemerton

Malchor Flubbit said:


> Questions for the contract lawyers here.
> 
> Does the situation around OGL 1.1 fit the definition of coercion for designers and publishers?
> 
> Does the situation around OGL 1.1 fit the definition of undue Influence for designers and publishers?
> 
> Does the situation around OGL 1.1 fit the definition of unconscionability in the terms given to designers and publishers?
> 
> Does OGL 1.1 fit the definition of misrepresentation as it claims to be an open license, but does not fit the generally accepted definition, not being copyleft?
> 
> If yes to any of the above, does that undermine the ability of WotC to enforce OGL 1.1?



I missed this before. Just adding to @Steel_Wind's reply:

I don't see any coercion here, only offers - and why would 3PPs want to argue coercion in any event? They want to uphold and enforce their contractual rights under the OGL v 1.0/1.0a, not argue that they were coerced into becoming party to it.

The same point about not wanting to vitiate or read down the contract applies to your other questions too. But setting that to one side, and replying from the perspective of the Australian law that I am familiar with:

There is no undue influence here. These are all arm's length transactions between informed business parties. (In Australian and English law undue influence can operate in contexts other than estates, but it requires showing that someone's mind was overborne by the will of another. Nothing of that sort is happening here.)

There is no unconscionability that I can see. WotC is not taking advantage of its position vis-a-vis other parties to unfairly obtain a contractual benefit.

And WotC is not misrepresenting anyone about its contract, as far as I can see. Everyone who (to date) has been offered the chance to become a party has been shown the terms.

More generally: it doesn't serve the interests of 3PPs, as far as I can see, to argue that WotC is not entering into contracts in a valid fashion. This is at its core a straightforward case about contractual rights: 3PPs who have become party to the OGL thereby obtained contractual entitlements and contractual powers, as well as subjecting themselves to contractual obligations. WotC is now threatening to proceed as if those rights don't exist (eg by suing licensed parties for copyright infringement). The most obvious solution is for 3PPs to assert their contractual rights.


----------



## Greg Benage

rcade said:


> TSR ultimately had to buy Role Aids from Mayfair to get them off the market because it couldn't accomplish that with the courts.



That's one way of putting it, but I think it leaves out the best parts IIRC. TSR's complaint of trademark infringement didn't go anywhere...except that Mayfair was persuaded to settle it with a royalty-free license from TSR to use the trademark in specified ways. A few years later, TSR sued on the grounds that Mayfair had violated the terms of _that agreement_, a judge found some violations, and Mayfair had to sell the product line to TSR to disentangle themselves from the mess.


----------



## pemerton

Prime_Evil said:


> It seems to me that the new version of the OGL is utterly toxic and viral in ways designed to destroy the industry. Nobody should agree to the terms. Any publisher who does may taint their existing OGC. The updated license is designed to sow division and mistrust.



As I've posted upthread, I basically agree with this although I personally would not use such strongly normative language.

Also I don't think its designed to destroy the industry. All the RPGs I love and play - some old, some very new - will survive just fine! It's designed - at least as it seems to me - to disrupt and perhaps destroy the existing OGL-and-WotC-owned-SRD-derived industry.


----------



## Xyxox

GMforPowergamers said:


> wait you think if some company or person says "Hey I don't make $750k, I don't even make $50k, I can sign up and just keep putting out my very small pdfs" that the few people buying them should stop buying them because they made a choice that this isn't there fight?!



I wouldn't buy anything from them.


----------



## Prime_Evil

pemerton said:


> This looks a bit tricky to me.
> 
> Suppose X is a party to the OGL v 1.0/1.0a with one or more licensees.
> 
> X now enters into the OGL v 1.1 with WotC. They thereby renounce their rights under OGL v 1.0/1.0a, and promise WotC that henceforth they will use v 1.1 as their licence.
> 
> X is still bound by their promise to those other licensees to permit them to use X's OGC under the terms of v 1.0/1.0a. Prima facie, though, if that takes place then X is breaching their promise to WotC under v 1.1
> 
> However, if WotC is also a licensor to those other licensees under v 1.0/1.0a, then it has made the section 13 promise to them. Which means that X's prima facie breach of obligations to WotC is not actually a breach, because WotC has promised the other licensees that it can happen.
> 
> What is a bit weirder, though, is if those other licensees are _not_ licensees of WotC. For instance, they might be part of a non-WotC-owned-SRD-derived ecosystem. In that case, WotC has not made any promise to them, and so X cannot honour both X's obligations to WotC and X's obligations to the other licensees. So in this case, it looks like X breached their licence obligations to those other licensees when they entered into v 1.1 with WotC.
> 
> I've worked the above out as I typed it, so I don't promise that it's the prize-winning answer to the exam! It's more of a first attempt to work through your question.



This does make it sound like the primary purpose of the new licence is to fracture the OGL community. Future publishers under 1.0a might need to perform due diligence to ensure no upstream OGC sources have been tainted by v1.1. 

Could downstream publishers have a case against upstream publishers sign v1.1, breaching their Section 13 responsibilities?


----------



## Steel_Wind

pemerton said:


> There is no unconscionability that I can see. WotC is not taking advantage of its position vis-a-vis other parties to unfairly obtain a contractual benefit.



I would slow down on that one. We have yet to see an announcement and the plain text of OGL 1.1 in a form we can be certain about.

It is possible that a term which appropriates the IP in an OGL 1.1 released product to WotC could be held under the principles of Uber v. Heller as  unconscionable. I'm not saying it is, or even that it is *likely* (indeed, I think it is _unlikely_)-- but I'm not closing the door on that one.


----------



## mamba

GMforPowergamers said:


> now I keep seeing this posted both ways. That courts at one point upheld that perpetual meant irrevocable, AND that at one point they had to change all the open contracts (and OGL did not update with it) to SAY irrevocable.



no, it’s not both ways. The GPL 2.0 won, it is irrevocable and does not say so to this day.

What happened is that other licenses decided to add it, so no one is even tempted to go to court over it



GMforPowergamers said:


> Now, could 2000 have considered it and 2022 NOT... sure, then you have "is this a living document that will be interpreted in todays meaning, or is this a static document that we will interpret using only the terms form 22 years ago" and my understanding is THAT will vary from judge to judge



we have more than interpretation of the meaning, we have statements from everyone involved that it was intended to be irrevocable, some repeated that now / can testify to that in court.
There is no need to interpret what the founding fathers could have meant by it, we can simply ask them


----------



## Prime_Evil

pemerton said:


> As I've posted upthread, I basically agree with this although I personally would not use such strongly normative language.
> 
> Also I don't think its designed to destroy the industry. All the RPGs I love and play - some old, some very new - will survive just fine! It's designed - at least as it seems to me - to disrupt and perhaps destroy the existing OGL-and-WotC-owned-SRD-derived industry.



I basically agree with you here, but I'm coming at it from the angle of somebody who has contributed OGC to an RPG not derived from any WoTC SRD. The collateral damage to these companies is substantial. But I suppose it will be easier to ensure upstream contributors do not sign up to v1.1 since it is focused on derivative works based on the WoTC SRD.


----------



## pemerton

GMforPowergamers said:


> I am sure every word of what you just wrote makes perfect sense. I am sure that any 1st year prelaw student could laugh off this 'break down' and make it work. However the fact that this is even a thought experiment shows how they can kill the OGL.
> How can this be a 'safe harbor' when it's full of mines?



It won't kill the OGL if no one becomes a party to v 1.1.

But the bigger point, which I've made in a few posts since the first press release, is that this is the reality of "private ordering", particularly when the private ordering is all based around a cultural artefact produced and more-or-less owned by a single dominant commercial player.

Within the "private ordering" framework, the obvious solution is for 3PPs to stand on their legal rights within that ordering: keep doing their thing (including complying with the terms of the OGL v 1.0a), and if they get a C&D or statement of claim from WotC, plead their contractual rights in their defence. And if 3PPs don't really believe they have those contractual rights, then my view is that they willingly opted to put themselves at the mercy of WotC and so can't really complain about the quality of that mercy.


----------



## mamba

Prime_Evil said:


> Given that the termination clause in the OGL v1.0a specifies circumstances under which the rights granted by the licence can be revoked, it is clearly not irrevocable. The question might be whether these are the only conditions under which the licence may be revoked.



the entire license is not revoked, you entering into the agreement is, because you actually violate it

If e.g. NuTSR published something under the OGL but violated the terms, the remedy is not to pull the OGL for everyone, it is to pull it for NuTSR / that product


----------



## pemerton

Prime_Evil said:


> Could downstream publishers have a case against upstream publishers sign v1.1, breaching their Section 13 responsibilities?



My analysis you quoted answers this: no, if the downstream publisher has a v 1.0/1.0a licence from WotC; yes, if they don't.


----------



## Prime_Evil

pemerton said:


> It won't kill the OGL if no one becomes a party to v 1.1.



I think this is the critical point. We need to spread the word about the dangers of accepting the terms of v1.1. We also need to watch carefully for sneaky attempts to bind people to the new OGL via clickwrap agreements on DnD Beyond and similar outlets. I'm sure some people will accept the new terms, but we need to minimise the potential fallout.


----------



## pemerton

Steel_Wind said:


> I would slow down on that one. We have yet to see an announcement and the plain text of OGL 1.1 in a form we can be certain about.
> 
> It is possible that a term which appropriates the IP in an OGL 1.1 released product to WotC could be held under the principles of Uber v. Heller as  unconscionable. I'm not saying it is, or even that it is *likely* (indeed, I think it is _unlikely_)-- but I'm not closing the door on that one.



Fair enough. I was thinking of the Australian principles of _Amadio_ and similar cases, which require establishing a special disability on the part of the party alleging unconscionability.


----------



## pemerton

Prime_Evil said:


> I basically agree with you here, but I'm coming at it from the angle of somebody who has contributed OGC to an RPG not derived from any WoTC SRD. The collateral damage to these companies is substantial. But I suppose it will be easier to ensure upstream contributors do not sign up to v1.1 since it is focused on derivative works based on the WoTC SRD.



If I've parsed your last sentence correctly, I think I agree.

The issue for participants in your ecosystem will be if they _also_ want to be part of the v 1.1 WotC-based ecosystem. I have no idea how big an issue that will be.


----------



## S'mon

pemerton said:


> All the arguments in this thread against the OP have been built around an understanding of the OGL as a contract. As well as section 4, you'll see that section 3 refers to offer and acceptance.
> 
> A licence is a relationship to property - roughly, a permission to use it while not actually getting any interest in it. When you have people over to your house, your are granting them a licence. (That's what makes them not trespassers.)
> 
> A licence can be granted gratuitously - as when you have your friends over - or can be granted pursuant to a contract. The OGL is clearly a contract.
> 
> @S'mon understands EU consumer protection law, I am guessing. But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!



If you are using the OGL you are not dealing as a consumer imo.

OTOH Civil Law jurisdictions have a requirement of good faith in business dealings. I think WOTC would be seen as having fallen severely short there.


----------



## pemerton

S'mon said:


> Civil Law jurisdictions have a requirement of good faith in business dealings. I think WOTC would be seen as having fallen severely short there.



My grasp of good faith is pretty weak. But I would think perhaps that these apparent exaggerations of the capacity of WotC to revoke licences, used to then encourage becoming a party to v 1.1, might fall short of good faith? And would this then be a basis for rescission by those particular parties?


----------



## Jd Smith1

Prime_Evil said:


> Keep in mind that many games unrelated to WoTC IP adopted the OGL due to representations made by WotC about its universal applicability.



Ok. So? Were contracts signed? Or was it just assumptions made?


----------



## Jd Smith1

rcade said:


> By another contract agreed to by both parties.
> 
> A lot of bad analogies are being thrown around. The Open Game License is not a marriage or a rental agreement. It's an open source license, a type of agreement that courts have become increasingly familiar with in the last 33 years. These licenses don't get torn out from the roots to eliminate the entire corpus of work that was created with them over the span of decades.



That sounds like emotion, not legal fact.


----------



## S'mon

pemerton said:


> My grasp of good faith is pretty weak. But I would think perhaps that these apparent exaggerations of the capacity of WotC to revoke licences, used to then encourage becoming a party to v 1.1, might fall short of good faith? And would this then be a basis for rescission by those particular parties?




You're asking how it would work across dozens of Civil Law jurisdictions when I'm not even French. I'm not going to attempt to answer that.


----------



## Jd Smith1

mamba said:


> and the other bottom line is that ‘perpetual’ also meant ‘irrevocable’ back  in 2000, and courts have upheld that for the GPL 2.0, which is a lot closer to what we are discussing here than a marriage



Close, maybe. But 'close' doesn't count. 

But lets say this comes down to a court ruling. WotC can accept the costs of legal representation and an extended legal process. Who among the d20 splatbook community has tens of thousands of dollars for such a battle? There are regular threads here whining about how poor RPG writers are.


----------



## pemerton

S'mon said:


> You're asking how it would work across dozens of Civil Law jurisdictions when I'm not even French. I'm not going to attempt to answer that.



Fair enough!

I had a colleague who worked on the CISG, and so was into comparative Civil and Common Law contract law. Her view was that there was more overlap on good faith in contracting than is sometimes thought, once common law doctrines that govern pre-contractual negotiations are fully taken into account (eg estoppel, undue influence, unconscientious dealing/"catching bargains", misrepresentation, fiduciary law in some cases, etc).

But as I said it's not something I've ever really tried to get my head around.


----------



## mamba

Jd Smith1 said:


> Close, maybe. But 'close' doesn't count.



I take feet away from miles away, which is what your comparison was 


Jd Smith1 said:


> But lets say this comes down to a court ruling. WotC can accept the costs of legal representation and an extended legal process. Who among the d20 splatbook community has tens of thousands of dollars for such a battle? There are regular threads here whining about how poor RPG writers are.



I agree and said so a few times already. WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).

At that point it no longer is a legal argument though, but might makes right


----------



## GMforPowergamers

mamba said:


> no, it’s not both ways. The GPL 2.0 won, it is irrevocable and does not say so to this day.



if it's not needed then why update the other ones? I don't understand how someone can say "This company updated there open licences to close this loophole" (and paying your law team to do that and redraft isn't cheap) but also say "but it's settled there is no loophole"

maybe it's because I don't have a law background but those two statements can't make sense in my mind.


mamba said:


> What happened is that other licenses decided to add it, so no one is even tempted to go to court over it



right so lawyers for those other companies felt the need to change it... and that there was a chance to be brought to court over it, even though they themselves must be the authorizer so if they want it open they have no reason to want to take it to court, but they see some future where a new CEO (or what ever) comes in and tries to close it. So if that team saw a loop hole and thought it was worth closing, doesn't that by default show that some lawyers see an argument that has some merit?


mamba said:


> we have more than interpretation of the meaning, we have statements from everyone involved that it was intended to be irrevocable, some repeated that now / can testify to that in court.
> There is no need to interpret what the founding fathers could have meant by it, we can simply ask them



big points for both seeing what I meant and not making it political.


----------



## Steel_Wind

pemerton said:


> There is no undue influence here. These are all arm's length transactions between informed business parties. (In Australian and English law undue influence can operate in contexts other than estates, but it requires showing that someone's mind was overborne by the will of another. Nothing of that sort is happening here.)



Yes, undue influence can also affect contractual capacity, but that does not seem to arise on these facts.

While this case has nothing to do with the OGL at all, it is of interest to those in the U.K. and Australia as an odd development in the Canadian common law you might not otherwise hear about. The law of unconscionable procurement, in the Estates/ Power of Attorney context received a _*resurrection*_ spell in 2020 in an Ontario decision Gefen v Gefen Estate . The trial decision was appealed, but not on the unconscionable procurement point, so it remains good law.

The right case (I am currently counsel on one of those cases which might be the "right" case) may well go to the Supreme Court of Canada  for ultimate clarification. The test for unconscionable procurement to challenge an _inter vivos_ transaction is much easier than the test to meet for undue influence, as once you meet certain criteria under unconscionable procurement, the onus is on the recipient to prove the validity of the gift, not on the challenger to prove it was ill founded.  _*Gefen v Gefen Estate*_ is, accordingly, a rare weapon to keep in your back pocket in case you might need it.


----------



## GMforPowergamers

Prime_Evil said:


> We also need to watch carefully for sneaky attempts to bind people to the new OGL via clickwrap agreements on DnD Beyond and similar outlets.



nobody reads the DMG... I mean terms of service. I would LOVE to say business minded people are exempt from this, but they are not.


----------



## pemerton

mamba said:


> WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).



I'm curious about this.

If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?

I'm not and have never been a litigator, and so am probably missing something (or many things) - but stopping the matter from coming before a court sounds to me more like a defendant's strategy than a plaintiff's strategy.

Perhaps @Steel_Wind could chime in?


----------



## Jd Smith1

mamba said:


> I take feet away from miles away, which is what your comparison was



Actually, you didn't change anything. You stated an opinion.  


mamba said:


> I agree and said so a few times already. WotC’s best strategy is to prevent everyone from getting in front of a judge, because if they are there is a good chance they will win. And WotC probably has the funds to accomplish this (depending on who the opposition is and how determined they are).
> 
> At that point it no longer is a legal argument though, but might makes right



Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.

In the courts, the ability to pay legal costs often equals the ability to win. Particularly since this is WotC against a group.


----------



## GMforPowergamers

pemerton said:


> I'm curious about this.
> 
> If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?



I don't know if the phrase 'coming in front of' has a different meaning to lawyers then it does to us, but in my mind until the judge bangs his gavel and rules, there is A LOT WotC/Hasbro lawyers can do to delay and cost money... all the time making it hard for any 3pp from doing anything.


----------



## Myrdin Potter

pemerton said:


> I'm curious about this.
> 
> If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?
> 
> I'm not and have never been a litigator, and so am probably missing something (or many things) - but stopping the matter from coming before a court sounds to me more like a defendant's strategy than a plaintiff's strategy.
> 
> Perhaps @Steel_Wind could chime in?



I think they can delay it to add cost and grind down their opponents who are much smaller than them by dragging out the pre-trial steps as long as possible, but they will be fighting against defense lawyers who will be trying for a speedy trial. Hard to say, some of it goes to the judge and how busy they are and how pissed they get over such tactics.


----------



## GMforPowergamers

Jd Smith1 said:


> Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.



SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons.  I don't understand the legal things, but it's very possible.


----------



## pemerton

GMforPowergamers said:


> I don't know if the phrase 'coming in front of' has a different meaning to lawyers then it does to us, but in my mind until the judge bangs his gavel and rules, there is A LOT WotC/Hasbro lawyers can do to delay and cost money... all the time making it hard for any 3pp from doing anything.



This is what I'm saying. When you're a plaintiff, what strategies are you using to delay. I mean if a defendant want to expedite bringing the matter on for a hearing, how far can the plaintiff go in preventing that before the court tells them to go away and come back when they're ready?

Is the suggestion that there will be interlocutory claims for injunctions, etc? I can see that. But equally those claims give the defendant a chance to show that their claim of right is a strong one.

Anyway, as I said, I'm not a litigator.


----------



## Jd Smith1

GMforPowergamers said:


> SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons.  I don't understand the legal things, but it's very possible.



So some guy told you... and you don't recall the reasons.

Got it.


----------



## Myrdin Potter

GMforPowergamers said:


> SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons.  I don't understand the legal things, but it's very possible.



I think this is a hard argument for Hasbro to make because they have grown and prospered with this being in place for quite a while. Maybe they can claim their new edition launch might be irreparably harmed if there is competition but that seems like a stretch when there are plenty of non-OGL alternatives.


----------



## S'mon

GMforPowergamers said:


> SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons.  I don't understand the legal things, but it's very possible.




It seemed unlikely to me, but I only really know English procedure on interim injunctions. They are decided on balance of convenience. Shutting down an entire company (eg Paizo) over this kind of dispute just would not happen.

I did a mini-pupillage many years ago with a Barristers' chambers (that of Robin Jacob). Vogue magazine got an injunction to have black fashion magazine "Vogue in Black" taken off the shelves of WH Smith newsagents, on the basis of likely infringement of the Vogue TM. That's the kind of thing that can happen. It would be much much less likely if Vogue in Black had a licence from Vogue to use the word Vogue, and Vogue claimed to be able to terminate the licence, despite the lack of such a term in the licence.


----------



## Jd Smith1

Myrdin Potter said:


> I think they can delay it to add cost and grind down their opponents who are much smaller than them by dragging out the pre-trial steps as long as possible, but they will be fighting against defense lawyers who will be trying for a speedy trial. Hard to say, some of it goes to the judge and how busy they are and how pissed they get over such tactics.



Keep in mind that this is a civil matter, so a speedy trial is not as serious an issue. And it involves a relatively small amount of money.

Meanwhile, multi-billion-dollar suits over issues that literally involve life & death are in the same courts, entering their 6th+ plus year....

Mann v. Ford is a good example: five years from filing to a token settlement ($8000 per on the average) for actions that are linked to numerous deaths.


----------



## Jd Smith1

Myrdin Potter said:


> I think this is a hard argument for Hasbro to make because they have grown and prospered with this being in place for quite a while. Maybe they can claim their new edition launch might be irreparably harmed if their is competition but that seems like a stretch when there are plenty of non-OGL alternatives.



Not hard to make at all. Its their property.


----------



## pemerton

GMforPowergamers said:


> SOmeone in another thread told me that the injunction thing that could shut down the 3pp from continueing until the case is resolved is unlikely to happen... for reasons.  I don't understand the legal things, but it's very possible.



If WotC thinks they have a weak claim, because the defendant has a strong contract-based defence, it's not obvious to me that it's good to get this going from the outset by seeking an interlocutory injunction, thereby inviting the defendant to make the case about how strong their contractual claim is.



Myrdin Potter said:


> I think they can delay it to add cost and grind down their opponents who are much smaller than them by dragging out the pre-trial steps as long as possible, but they will be fighting against defense lawyers who will be trying for a speedy trial. Hard to say, some of it goes to the judge and how busy they are and how pissed they get over such tactics.



Your bit about wanting a speedy trial is exactly what I have in mind.

The most obvious reason in principle, for me at least, to commence early is to protect the plaintiff's rights with an interlocutory injunction. But in this scenario, for the reasons I gave above, it's not clear that's a winner for WotC.

And it's not like WotC needs a heap of discovery: the factual question of the relationship between the defendant's work and SRD's work is suggested, even if not fully resolved, by the OGL section 15 declaration.

I don't want to suggest that litigation is a piece of cake or anything. I'm just curious about delay as a plaintiff-side strategy when the defendant wants to bring on the hearing.


----------



## Steel_Wind

pemerton said:


> I'm curious about this.
> 
> If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?
> 
> I'm not and have never been a litigator, and so am probably missing something (or many things) - but stopping the matter from coming before a court sounds to me more like a defendant's strategy than a plaintiff's strategy.
> 
> Perhaps @Steel_Wind could chime in?



Well, the old addage is that plaintiffs run *TO* the courtroom; defendants run away *FROM* the courtroom. That much is true; however, it can change depending on.

What WotC would want is to run TO the courtroom to obtain an injunction -- WIN -- and then RUN AWAY from the courtroom to delay the ultimate hearing on the merits so that the underlying injunctive remedy (which it has already received the benefit of) is not displaced or otherwise undone. As a term of obtaining an injunction, most jurisdictions require that the party seeking the injunction gives an undertaking in damages, too. So ultimately, if the injunction was wrongly granted, the party that obtained the injunction is writing a cheque for damages to the other side, even if they win the underlying case. That's another reason why you don't want the ultimate hearing on the merits.

Injunctions turn upon the unique facts of each case. As I indicated earlier in this thread, I am highly skeptical that WotC could obtain an injunction under the 1.0a OGL based on some revision to the OGL in 1.1, as it is unlikely to meet the 3 part test for an injunction. The test was set down by the House of Lords in _American Cyanamid Co. v. Ethicon Ltd._, [1975] l All E.R. 504 and is the law which is followed in all common law jurisdictions, including the United States, though there is variation as to when it applies and WHAT it applies to between jurisdictions.

The injunction test requires the moving party who seeks injunctive relief to prove on a balance or probabilities:


it appears to have a strong case and a _prima facie_ right to the relief in dispute;
it would suffer _irreparable harm_ were the injunction not granted; and
the balance of convenience favours granting the injunction.

While every injunction case turns upon its own specific facts, I do not think based on what we have seen so far that WotC would get an injunction under the OGL 1.0a.... but PLEASE take that well-salted. This stuff is _highly fact dependent_ and every case is different. Trying to moot something like this absent facts is not terribly helpful - or an accurate projection, okay?

Anyway, if WotC DID get an injunction, after that, they would seek to delay any ultimate hearing on the merits.  Those would be the typical circumstances that reverses the addage of who runs to the courtroom and who runs away from it.


----------



## pemerton

Thanks @Steel_Wind, that's a great analysis even with all its salt.

I think the relative weakness of WotC's claim - or to put it the other way around, the apparent strength of the defendant's claim of right - would be one aspect that would tend to tell against an interlocutory injunction. @S'mon has also suggested upthread that the balance of convenience is likely to run against WotC. So on this we all seem to be ad idem.


----------



## GMforPowergamers

Jd Smith1 said:


> Mann v. Ford is a good example: five years from filing to a token settlement ($8000 per on the average) for actions that are linked to numerous deaths.



how... I mean that is insane cases that are about deaths can take 5 year!?! I know people can drag things out but I would think that would step on the gas... I guess I hold too much hope in some ways.


----------



## mamba

GMforPowergamers said:


> if it's not needed then why update the other ones?



I explained why, so the others do not have to get this clarified in court as well. Adding a word to a license is much cheaper than proving in court that it was not needed in the first place


----------



## mamba

pemerton said:


> I'm curious about this.
> 
> If WotC commences against a 3PP who continues to publish under the OGL v 1.0a, alleging that that licensee is infringing WotC's copyrights, how are they going to prevent their matter from coming in front of a court?



Making it expensive to get there (discovery, dragging things out, ...), offering a good enough deal to avoid litigation altogether


----------



## David Spake

Jd Smith1 said:


> That sounds like emotion, not legal fact.



If you want to understand where the Agreement argument comes from, I point you to Page 11 of this thread. User 'bmcdaniel' lines out a very coherent and compelling *opinion* as to why that is the case.  I have no problem believing that opinion comes from a position of considerable experience with these kinds of matters.


----------



## Steel_Wind

It is worth mentioning that injunctions are special for another reason: they are EXPENSIVE, top-shelf Big Ticket items in terms of legal costs. It doesn't matter WHO the client is, you are paying premium retail dollars in terms of legal expenses for an injunction motion. 

Practically speaking, they are brought on a hurry-up, in the fastest lane possible basis. Burning the midnight oil is routinely required by them -- and you PAY BIG TIME FOR THAT. The timetable for the conduct of the motion is fast as all hell. This increased premium rate in terms of legal costs applies to _both_ parties.

In terms of interlocutory motions, injunction motions are at the top of the heap in terms of cost. Summary judgment motions are really the only other thing which comes close -- and even then, they tend to lack the urgent 4:30 a.m. factum writing that seems routinely present on injunction motions.

*My point:* An _*injunction motion*_? Better bring your chequebook. That one is an expensive motion to fight.


----------



## mamba

Jd Smith1 said:


> Actually, you didn't change anything. You stated an opinion.



as did you, yours was just a much worse example



Jd Smith1 said:


> Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.
> 
> In the courts, the ability to pay legal costs often equals the ability to win.



That is like saying you win an argument by hitting the other guy over the head. You might get him to shut up, you have not proven your position to be correct (not that at that point there is an appreciable difference for the other guy)


----------



## Greg Benage

Steel_Wind said:


> While every injunction case turns upon its own specific facts, I do not think based on what we have seen so far that WotC would get an injunction under the OGL 1.0a.... but PLEASE take that well-salted. This stuff is _highly fact dependent_ and every case is different. Trying to moot something like this absent facts is not terribly helpful - or an accurate projection, okay?



Do they need to apply separately for injunctions on different grounds? For example, if they claim...

1. The license doesn't say it's irrevocable, so we can revoke it.
2. Notwithstanding (1), this publisher violated the terms of the license agreement.
3. Notwithstanding (1) or (2), this publisher infringed on our copyrights.

If they bring all these complaints at once, do they need to meet the three-part test @Steel_Wind describes for each complaint separately? Or is it, there's a strong case and _prima facie _right to relief on at least one of (1), (2), or (3), etc.?


----------



## GMforPowergamers

Steel_Wind said:


> *My point:* An _*injunction motion*_? Better bring your chequebook. That one is an expensive motion to fight.



is it expensive enough that bringing one can tip the scales to the person with the bigger bank account? I am sure that to those of us in the "under 70K a year) range in the US EVERYTHING dealing with this kind of case costs a ton of money... I would not be surprised if my annual salary got spent in a few days on a case like this.


----------



## Steel_Wind

Greg Benage said:


> Do they need to apply separately for injunctions on different grounds? For example, if they claim...
> 
> 1. The license doesn't say it's irrevocable, so we can revoke it.
> 2. Notwithstanding (1), this publisher violated the terms of the license agreement.
> 3. Notwithstanding (1) or (2), this publisher infringed on our copyrights.
> 
> If they bring all these complaints at once, do they need to meet the three-part test @Steel_Wind describes for each complaint separately? Or is it, there's a strong case and _prima facie _right to relief on at least one of (1), (2), or (3), etc.?



All factors must be met in order for the injunction to be granted.

I can't anticipate all of the many grounds on which somebody might seek an injunction and I'm not going to do so here; it's not helpful.

Whatever the case, in order to get one? You must ski through each of those gates.  Miss one? You lose the motion. No exceptions.


----------



## DavyGreenwind

S'mon said:


> I'm trying to find info on US law on this, to find out what the precedents are for the revocability of 'perpetual' licences. It would matter a lot whether the court said eg "Normally Perpetual licences are non-revocable, but in THIS case..." or "It is settled law that Perpetual merely means of Indefinite Duration" - or something in between.



Here's an interesting case on the subject: RPD Holdings, L.L.C. v. Tech Pharm. Servs. (In re Provider Meds, L.L.C.), 907 F.3d 845, 856 (5th Cir. 2018)


----------



## David Spake

Jd Smith1 said:


> Actually, there is a better chance that WotC would win. They own the property, and they have the means to sustain a extended legal battle. All the more so because it is very likely a judge would halt the continued use of the OGL until the matter is resolved.
> 
> In the courts, the ability to pay legal costs often equals the ability to win. Particularly since this is WotC against a group.



Don't underestimate the international aspect of this (S'Mon and others on pg 11 is a good start).  Additionally, other jurisdictions have much stronger protections for wealth inequality between litigating parties (See S'Mon's post #253 on). In the US though, user AbdulAlhazred's #651 post is probably spot-on for how ugly it'd be (aka 'nuclear lawfare').


----------



## Steel_Wind

GMforPowergamers said:


> is it expensive enough that bringing one can tip the scales to the person with the bigger bank account? I am sure that to those of us in the "under 70K a year) range in the US EVERYTHING dealing with this kind of case costs a ton of money... I would not be surprised if my annual salary got spent in a few days on a case like this.



Interlocutory motions range in price from $5k to $20k CAN, typically. To go beyond that in cost (many do) it tends to be something special. An Injunction would be one of those times.

Again, it depends on the circumstances and the timetable, but I have conducted injunction motions where the costs of the motion awarded by the court (as distinct from the retail cost charged to the client) have been as high as $225,000. You would expect the actual cost of the motion was closer to $600k to the plaintiff on that one (motion to appoint a limited purpose receiver which was opposed).

$20k to $60k is far more typical -- again -- it is _highly_ fact dependent.

Still, the point is, injunctions are expensive motions to fight and the costs awarded for them by the court is also much higher than is typical for other motions (in those jurisdictions which do award significant costs -- the UK, Canada, Australia and New Zealand do so by default; American state courts tend not to).  Injunction motions are litigation that -- if it were gambling? It would be a bet made at a more exclusive casino table, where everybody seems to have fatter wallets, are wearing more flashy jewelry and are drinking more pretentious cocktails.  Get the picture?


----------



## DavyGreenwind

I would also like to talk about the reason for my original post. I'm not trying to defend WotC or anything--I hope they don't even try to revoke the license.

I've just been seeing a lot of videos and stuff going around saying "You don't need the OGL!", or "You can keep using a previous license no matter what they say!" I just want to make sure people don't rely on these statements to keep publishing what they want and disregard any new OGLs. Because they may get sued and lose.

Rather than trying to legally out-maneuver WotC (who have their IP ducks in a row more than I think people realize), the best thing for people to do is to campaign for WotC to keep DnD open. Ultimately it needs to be a business decision, not a legal decision.


----------



## GMforPowergamers

Steel_Wind said:


> Interlocutory motions range in price from $5k to $20k CAN, typically. To go beyond that in cost (many do) it tends to be something special. An Injunction would be one of those times.
> 
> Again, it depends on the circumstances and the timetable, but I have conducted injunction motions where the costs of the motion awarded by the court (as distinct from the retail cost charged to the client) have been as high as $225,000. You would expect the actual cost of the motion was closer to $600k to the plaintiff on that one (motion to appoint a limited purpose receiver which was opposed).
> 
> $20k to $60k is far more typical -- again -- it is _highly_ fact dependent.
> 
> Still, the point is, injunctions are expensive motions to fight and the costs awarded for them by the court is also much higher than is typical for other motions (in those jurisdictions which do award significant costs -- the UK, Canada, Australia and New Zealand do so by default; American state courts tend not to).  Injunction motions are litigation that -- if it were gambling? It would be a bet made at a more exclusive casino table, where everybody seems to have fatter wallets, are wearing more flashy jewelry and are drinking more pretentious cocktails.  Get the picture?



thank you... I like getting an idea of the scale of the numbers involved. Even a 'small' big TTRPG company wont be bullied for $20k


----------



## Steel_Wind

GMforPowergamers said:


> thank you... I like getting an idea of the scale of the numbers involved. Even a 'small' big TTRPG company wont be bullied for $20k



You have just followed the rule that all clients do when quoted an estimated range for a motion that requires all of the facts to be in and work done before the real bill is known.

Firstly, you ignored the exception that it could be higher; and
Secondly, you quoted the low number of $20k and not the higher ranged number of $60k.

This is why lawyers don't like giving estimates. What the lawyer says is not what the client hears.


----------



## S'mon

DavyGreenwind said:


> I've just been seeing a lot of videos and stuff going around saying "You don't need the OGL!", or "You can keep using a previous license no matter what they say!" I just want to make sure people don't rely on these statements to keep publishing what they want and disregard any new OGLs. Because they may get sued and lose.




AFAICS, between these three options:

1. Sign the OGL 1.1
2. Publish with no licence.
3. Publish under the OGL 1.0

#3 remains clearly the safest option, though not risk free, for most 3PP publishers.
#2 may be best for those who never needed the OGL.
As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.

Do you disagree?

Edit: Of course "cease publishing" is also an option, which I think many may end up taking.


----------



## theConjurer177

DavyGreenwind said:


> *First, *the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.
> 
> This is *false. *There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext



I beg to differ. The term "perpetual" implies that the license is irrevocable. "Perpetual" signifies a contract of unlimited duration.

According to the text to which you, yourself, linked, "courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration." Thus, the OGL is _ipso facto_ non-terminable _in perpetuum_, or in other words, _forever_.

*Your "PSA" is in fact false.*


----------



## Steel_Wind

S'mon said:


> AFAICS, between these three options:
> 
> 1. Sign the OGL 1.1
> 2. Publish with no licence.
> 3. Publish under the OGL 1.0
> 
> #3 remains clearly the safest option, though not risk free, for most 3PP publishers.
> #2 may be best for those who never needed the OGL.
> As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.
> 
> Do you disagree?
> 
> Edit: Of course "cease publishing" is also an option, which I think many may end up taking.



To this, I would add the important gloss that we should wait and see what the terms of the OGL 1.1 ultimately are. We don't know for sure yet.

I think we need to strike a balance between "pushing back" and "being patient". 

There's no prize for being hasty here. Let's wait and see what the future brings.


----------



## HomegrownHydra

jgbrowning said:


> Hrm...I was just told by the phone-in-commentator rent-seeking behavior isn't rent-seeking behavior because he thinks that the point of the rent-seeking is to prevent the growth of large competitors, so yeah...
> 
> joe b.



"Rent-seeking" is about getting money from other people's work, but as the commentator explained that is _ not_ the goal of such a punitive royalty. The point of the royalty is to keep all 3PPs below the $750,000 mark and thereby prevent anyone becoming a competitor to D&D as happened with Pathfinder. In other words, if the royalty works as planned WotC will not get any money from it as no one will go above the $750,000 threshold because there would be no point since the royalty would take away all of the 3PP's additional profit. And if a 3PP somehow figured out a way to survive above that level, WotC would simply increase the royalty rate until they are knocked down below that mark.


----------



## kjdavies

pemerton said:


> In one of these threads I posted that I don't know the US law on adequacy of consideration.
> 
> But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.




If I'm not licensed under the OGL, I understand, I could publish a book and mark it 'compatible with D&D' and (potentially) benefit in the marketplace. There are other elements around copyright and using trademarks correctly, but part of using the OGL means giving up that right. Does this count as a consideration from the licensee?

Edit: I see someone else asked this earlier, more concretely, and you've answered that yes, it is.


----------



## jgbrowning

Here it is, apparently.
(Sourced from )

joe b.


----------



## Myrdin Potter

mamba said:


> no, it’s not both ways. The GPL 2.0 won, it is irrevocable and does not say so to this day.
> 
> What happened is that other licenses decided to add it, so no one is even tempted to go to court over it
> 
> 
> we have more than interpretation of the meaning, we have statements from everyone involved that it was intended to be irrevocable, some repeated that now / can testify to that in court.
> There is no need to interpret what the founding fathers could have meant by it, we can simply ask them



Did that GPL case get a court ruling or was it settled in private without a judge ruling on it?


----------



## Maxperson

Xyxox said:


> so long as the signor never reports it to law enforcement when they dissolve, WotCis safe from criminal consequences. Dissolving it will not stop a signor from  reporting it, though. That would only be a position of good faith.



If both sides agree to dissolve, there's nothing at all to report.

WotC: "Here's the new OGL and a contract.  Read it and sign the contract if you want in."
3PP: "We've read the contract and OGL and have signed the contract.  Here it is."
WotC: "Crap. We're getting a lot of flak for this and we would like to change it.  Here are the proposed changes which are better for you. Sign this new contract if you are interested in this one.  Signing it will void the last contract that you just signed."
3PP: "Hey. Sounds good.  We agree to the new one.  The old one is void."

There's no fraud involved if both sides agree to dissolve. And in any case, if the leaked info is to be believed, WotC can unilaterally change what the license says with 30 days notice.


----------



## mamba

Myrdin Potter said:


> Did that GPL case get a court ruling or was it settled in private without a judge ruling on it?



pretty sure it was a court ruling, the big guns (IBM...) were on the GPL 2.0 side and I am sure they wanted to have clarity once and for all

EDIT: emphasis mine

"A non-exclusive copyright license (such as most FOSS licenses) *can be revoked at any time only if there was no consideration involved*. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there _is_ consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions."






						Jacobsen v. Katzer, 535 F. 3d 1373 - Court of Appeals, Federal Circuit 2008 - Google Scholar
					






					scholar.google.com
				




I was thinking of, but upon going through the details I am not sure how well it fits









						SCO Group, Inc. v. International Business Machines Corp. - Wikipedia
					






					en.wikipedia.org


----------



## S'mon

jgbrowning said:


> Here it is, apparently.
> joe b.




Well done getting hold of it!


----------



## DavyGreenwind

S'mon said:


> AFAICS, between these three options:
> 
> 1. Sign the OGL 1.1
> 2. Publish with no licence.
> 3. Publish under the OGL 1.0
> 
> #3 remains clearly the safest option, though not risk free, for most 3PP publishers.
> #2 may be best for those who never needed the OGL.
> As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.
> 
> Do you disagree?
> 
> Edit: Of course "cease publishing" is also an option, which I think many may end up taking.



I agree, more or less depending upon what OGL 1.1 says. I think the primary point where we disagree is how safe it is to publish OGL 1.0. At the end of the day, I looked at it, and it seems pretty revocable to me. And you looked at it, and it seems less so. Only time and some random judge will tell. 

Our disagreement I think is an excellent embodiment of the issues in licensing law in general. You are looking at it more through the lens of contract law, and I am looking at it through the lens of property law (i.e. a license is merely a limited permission to use the property of another). Certainly, and as usual, they are intertwined.


----------



## S'mon

DavyGreenwind said:


> I agree, more or less depending upon what OGL 1.1 says. I think the primary point where we disagree is how safe it is to publish OGL 1.0. At the end of the day, I looked at it, and it seems pretty revocable to me. And you looked at it, and it seems less so. Only time and some random judge will tell.
> 
> Our disagreement I think is an excellent embodiment of the issues in licensing law in general. You are looking at it more through the lens of contract law, and I am looking at it through the lens of property law (i.e. a license is merely a limited permission to use the property of another). Certainly, and as usual, they are intertwined.




I think the correct lens is contract law, yup!

Full text of OGL 1.1 was just posted - http://ogl.battlezoo.com/


----------



## DavyGreenwind

theConjurer177 said:


> I beg to differ. The term "perpetual" implies that the license is irrevocable. "Perpetual" signifies a contract of unlimited duration.
> 
> According to the text to which you, yourself, linked, "courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration." Thus, the OGL is _ipso facto_ non-terminable _in perpetuum_, or in other words, _forever_.
> 
> *Your "PSA" is in fact false.*



Here, a license that "specifies a set duration" is as opposed to a perpetual license. It makes sense that setting a duration on a license means it can't be terminated without cause during that period, because the stated period is part of the consideration for the contract. But a perpetual license is different; not only do courts have a presumption against contracts of perpetual duration, but in licensing law, it is continually distinguished from irrevocable. Imagine the license as a string. A perpetual license is a string of infinite length that can be cut anywhere, and an irrevocable license is a string of any length that cannot be cut.


----------



## reelo

DavyGreenwind said:


> Here, a license that "specifies a set duration" is as opposed to a perpetual license. It makes sense that setting a duration on a license means it can't be terminated without cause during that period, because the stated period is part of the consideration for the contract. But a perpetual license is different; not only do courts have a presumption against contracts of perpetual duration, but in licensing law, it is continually distinguished from irrevocable. Imagine the license as a string. A perpetual license is a string of infinite length that can be cut anywhere, and an irrevocable license is a string of any length that cannot be cut.



Yes, but 1.0 clearly STATES how it is revocable: by a breach of terms. And it clearly states that as the only way.


----------



## Dausuul

reelo said:


> Yes, but 1.0 clearly STATES how it is revocable: by a breach of terms.* And it clearly states that as the only way.*



The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the _only_ way to terminate the license.

Now, that was clearly the intent -- as confirmed by an overall reading of the text, multiple official statements from Wizards, and in-depth commentary by current and former Wizards employees over 20 years. The question is whether that intent would carry the day in court.


----------



## reelo

Dausuul said:


> The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the _only_ way to terminate the license.
> 
> Now, that was clearly the intent -- as confirmed by an overall reading of the text, multiple official statements from Wizards, and in-depth commentary by current and former Wizards employees over 20 years. The question is whether that intent would carry the day in court.



See a comment (a lot) higher up:



> The commentary to-date revolves around Sec 9 which states "Wizards or its designated Agents may publish updated versions of this License. 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." The claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation.
> 
> *First, a principle of contract interpretation is "expressio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement.*
> 
> Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.


----------



## S'mon

There's a general rule of interpretation that a contract licence of indefinite duration can be terminated on reasonable notice - an implied term. I don't think that applies here, due to eg the use of the word Perpetual combined with the specific termination provisions. And the general aim & wording of the licence as a statedly Open Gaming licence, parralleling Open Software licences. 

Not to mention what WotC always said it meant, until a few days ago!


----------



## Jd Smith1

David Spake said:


> If you want to understand where the Agreement argument comes from, I point you to Page 11 of this thread. User 'bmcdaniel' lines out a very coherent and compelling *opinion* as to why that is the case.  I have no problem believing that opinion comes from a position of considerable experience with these kinds of matters.



Well, you can hope.


----------



## Jd Smith1

mamba said:


> as did you, yours was just a much worse example



Quite the opposite, in fact.


mamba said:


> That is like saying you win an argument by hitting the other guy over the head. You might get him to shut up, you have not proven your position to be correct (not that at that point there is an appreciable difference for the other guy)



That is how civil cases generally get resolved: time and money. The side with the most of each generally wins.


----------



## Jd Smith1

GMforPowergamers said:


> is it expensive enough that bringing one can tip the scales to the person with the bigger bank account? I am sure that to those of us in the "under 70K a year) range in the US EVERYTHING dealing with this kind of case costs a ton of money... I would not be surprised if my annual salary got spent in a few days on a case like this.



As a general rule, one day in court with a better-than-average lawyer is $10,000.

For each appearance in court, figure $5000+ in billing hours for preparation. 

An opponent with in-house attorneys faces much less costs, so by dragging things out and maximizing the number of motions and similar court interactions, they can bleed an opponent quickly.


----------



## Jd Smith1

GMforPowergamers said:


> how... I mean that is insane cases that are about deaths can take 5 year!?! I know people can drag things out but I would think that would step on the gas... I guess I hold too much hope in some ways.



It didn't take five years; after five years the people suing Ford gave up and accepted a pocket change settlement. Who knows how many years it would have taken to actually get to trial, assuming it ever did. 

Five years isn't all that long, really.


----------



## mamba

Dausuul said:


> The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the _only_ way to terminate the license.



it does not specify any others, so no others are intended


----------



## mamba

Jd Smith1 said:


> Quite the opposite, in fact.



oh, the marriage comparison was better? good to know, would never have figured that out otherwise, but I guess if you say so I have to take your word for it, I mean you use the word ‘fact’ after all


----------



## Greg Benage

Y'all are just opining at each other about something that could only be decided by a court.


----------



## Umbran

jgbrowning said:


> Here it is, apparently.




*Mod Note:*
Morrus would prefer we not actually host copies of that document on this site.  Please feel free to post links to where it is posted elsewhere.


----------



## Catolias

pemerton said:


> With T&T it goes the other way - T&T was deliberately modelled on D&D, but intended to be simpler and more intuitive.
> 
> Whether T&T infringed any TSR-owned copyrights I leave for others to try and work out!



Thanks! I did not know that about T&T. (Played it in my teens in the 80s).


----------



## jgbrowning

Umbran said:


> *Mod Note:*
> Morrus would prefer we not actually host copies of that document on this site.  Please feel free to post links to where it is posted elsewhere.




Sorry!

joe b.


----------



## bmcdaniel

I note that a purported OGL 1.1 has been posted here: http://ogl.battlezoo.com/ For purposes of convenience, I will assume that this is a document that WOTC has proposed. I also note that it contains two different agreements: one titled "OGL 1.1 Non-Commercial" and one titled "OGL 1.1 Commercial." I will use those names to refer to the agreements, and when discussing both I will use "OGL 1.1 Both".

I will make the following pertinent points:
1. Nature of OGL 1.1 Both Similar to OGL 1.0(a), both OGL 1.1 Non-Commercial and OGL 1.1 Commercial are bilateral agreements between WOTC and the licensee. (Technically multilateral since one counterparty is defined as "Wizards of the Coast, and its parents, affiliates, suppliers and distributors"). In other words, unless OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the licensee, it does not affect the licensee.

2. De-Authorization of OGL 1.0(a). Pursuant to Section VIII (A) of OGL 1.1 Non-Commercial and Section X (A) of OGL 1.1 Commercial, the licensee agrees that OGL 1.0(a) is no longer authorized, and thus the licensee can no longer use OGL 1.0(a).

3. Offer and Acceptance of OGL 1.1 Both. As a result of the foregoing, a key question for current users of OGL 1.0(a) is whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is an agreement between the user and WOTC. If OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement that binds the user, then the user can longer rely on OGL 1.0(a). Contrariwise, if OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial does not bind the user, then (absent other considerations), the user can continue to rely on OGL 1.0(a). As background to determining whether OGL 1.1 Non-Commercial and/or OGL 1.1 Commercial is a valid agreement for the user, it is necessary to discuss offer and acceptance.

One of the requirements for forming an agreement is mutual assent to the terms of the agreement. This is manifested by "offer" and "acceptance" of the offer. In formal settings, an offeror will invite acceptance by signature of a formal written agreement. However, an offeror may invite acceptance by action. (In the world of contract law, this is often called "acceptance by performance.") For example, if Mr X. posts a sign that says "I lost my dog. $100 reward to anyone who brings my dog to me." Mr. X is making an offer to enter into an agreement which can be accepted by the return of his dog. In fact OGL 1.0(a) invites acceptance by performance: "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License." Similarly, OGL 1.1 Both (in the preamble) also invites acceptance by performance. OGL 1.1 Non-Commercial states "Any non-commercial use of Licensed Content (defined below) is subject to this agreement; by using Licensed Content in this manner, You agree to the terms of this agreement."; and OGL 1.1 Commercial states "Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."

In matters of contract law, it is often said that the offeror is "master of his offer"; that is to say that the offeror can specify the manner in which the offer can be accepted and any variation from the method of acceptance would not create a contract. For example, if an offer says that it can be accepted by signing and dating an agreement, and the offeree signs but doesn't date, then no valid agreement is formed and the offeror is not bound by the agreement.

However, courts do impose limits on acceptance by performance. Consider this example: Mr. X publishes an agreement that states "Mr. X hereby licenses you to use my artwork. In exchange, you agree to mail me $1 million. You may accept this offer by going to sleep before December 31, 2023." I have no doubt that every court that considered this would determine that there has been no offer and acceptance. The doctrinal basis used in different jurisdictions may vary. Indeed, because the example is so outrageous, it is likely that the doctrinal basis is under-theorized as a matter of law.

(A side issue: because the offeror is "master of his offer," it is important to consider the posture of whether acceptance is being used offensively or defensively. Returning to the example above, if a licensee wants the agreement to be effective (i.e. licensee wants to use the artwork and is willing to pay $1 million), a court may find the agreement to exist; whereas if a (potential) licensee wanted to disclaim the agreement (i.e. licensee not willing to pay $1 million and doesn't care about the artwork), the same court may find the agreement does not exist. The asymmetry arises because the offeror specified the means of acceptance, not the offeree. In a sense, the offeror's method of acceptance is being held against him.)

From the perspective of the user of OGL 1.0(a) which wishes to reject OGL 1.1 Both, the under-theorization of the doctrinal basis for rejection of performance should not matter very much. Recall that offer and acceptance is a method to demonstrate mutual consent to an agreement. If the user unambiguously demonstrates that it does not assent to the agreement which is OGL 1.1 Both (e.g. by a formal letter to WOTC) then WOTC's purported acceptance by performance would be irrelevant. Of course, putting WOTC on notice in this manner is "poking the bear" and the user should take that into account.

----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.


----------



## estar

Dausuul said:


> The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the _only_ way to terminate the license.



Then cite the key cases from a common law country that state that there are other ways of terminating a license other than via the explicit termination clause. The nuances are important.

Laypeople and lawyers were saying that you needed irrevocable to make a perpetual license stick. But when it was dug into we saw that

It is a relatively recent concept with a key case ruled in 2010 after the creation of the OGL.
That the content wasn't that you needed to have irrevocable as part of a perpetual license grant but rather a termination clause still applied despite the perpetual license grant. 
For something like this the details are important.


----------



## David Spake

Took a look at the thing during the lunch break.  I have a friend who's a lawyer, that's the extent of my legal knowlege. But even my ignorant eye can see some real OMG's in that document.  Like this one from 2
"What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project."​Holy c*ap ('Hooley dooley' for you Ausies.  )


----------



## pedr

I wonder what, exactly, “SRD-based D&D content” is?


----------



## GMforPowergamers

David Spake said:


> "What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project."



I guess that's it... they can sell what they have in inventory but not make new... anything, unless they agree. (until someone stops this in a court that some say is a foregone conclusion others say can't happen but most agree will be hard and no one knows for sure what will happen)


----------



## Greg Benage

@David Spake Keep in mind, that's in the propaganda -- not in the license itself.


----------



## GMforPowergamers

Greg Benage said:


> @David Spake Keep in mind, that's in the propaganda -- not in the license itself.



how do you separate the two?


----------



## jgbrowning

pedr said:


> I wonder what, exactly, “SRD-based D&D content” is?




Yep. There's even ambiguity there. When I got to WotC I only see see 5e content as SRD content. 

joe b.


----------



## Greg Benage

GMforPowergamers said:


> how do you separate the two?



The propaganda is under a "COMMENTS:" subhead.


----------



## Cadence

jgbrowning said:


> Yep. There's even ambiguity there. When I got to WotC I only see see 5e content as SRD content.
> 
> joe b.




The leaked 1.1 has:

"i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition. 

ii. Not Usable D&D Content (“Unlicensed Content”) – This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1. U"


----------



## GMforPowergamers

Greg Benage said:


> The propaganda is under a "COMMENTS:" subhead.



thank you


----------



## Prime_Evil

David Spake said:


> Took a look at the thing during the lunch break.  I have a friend who's a lawyer, that's the extent of my legal knowlege. But even my ignorant eye can see some real OMG's in that document.  Like this one from 2
> "What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project."​Holy c*ap ('Hooley dooley' for you Ausies.  )



Here's a question..This does not place any limit on your ability to continue to earn income from content that does not constitute "SRD-based D&D content" after  January 13, 2023. So if I am publishing material for (say) the Cepheus Engine under OGL v1.0a, does this fit the definition?


----------



## Umbran

bmcdaniel said:


> 2. De-Authorization of OGL 1.0(a). Pursuant to Section VIII (A) of OGL 1.1 Non-Commercial and Section X (A) of OGL 1.1 Commercial, the licensee agrees that OGL 1.0(a) is no longer authorized, and thus the licensee can no longer use OGL 1.0(a).




So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?

And, by extension, if you don't agree to v1.1, then v1.0a is still valid for you?

Ergo - this is an all or nothing deal.  If they present a carrot that makes you agree to v1.1, all your work, past and future, must be on v1.1?

That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.


----------



## Cadence

S


Umbran said:


> So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?
> 
> And, by extension, if you don't agree to v1.1, then v1.0a is still valid for you?
> 
> Ergo - this is an all or nothing deal.  If they present a carrot that makes you agree to v1.1, all your work, past and future, must be on v1.1?
> 
> That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.



Unless they really, really wanted to use Aardlings!


----------



## Prime_Evil

Greg Benage said:


> The propaganda is under a "COMMENTS:" subhead.



The material under the "COMMENTS" subhead makes statements seemingly unsupported by the license itself. It's purpose is not merely explanatory - they advance claims unsupported by the contract that might not survive contact with the courts.


----------



## Greg Benage

Umbran said:


> So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?



To be clear, there is none of @bmcdaniel's  "the licensee agrees" language in the document. It states:

A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

ETA: Legally, "the licensee agrees" may be implied or imputed to what it actually says -- that seems to be the crux of the issue.


----------



## Prime_Evil

Umbran said:


> So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?
> 
> And, by extension, if you don't agree to v1.1, then v1.0a is still valid for you?
> 
> Ergo - this is an all or nothing deal.  If they present a carrot that makes you agree to v1.1, all your work, past and future, must be on v1.1?
> 
> That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.



There is a significant difference between what is stated here in the text of the licence and what is stated in the comments section of the licence. It looks like the OGL v1.1 operates on an opt-in basis. If you agree to the terms of the new licence, you agree to give up the rights granted by v1.0a of the licence. But WotC go out of their way to give the impression that their "termination" of the old licence is binding on all licensees under v1.0a, regardless of whether they agree to the new licence or not. I suspect it's pure FUD designed to intimidate people into agreement with the terms of the new licence. They are likely aware they have no power to unilaterally terminate the older version of the OGL. Or am I missing something here?


----------



## Ruin Explorer

Umbran said:


> So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?
> 
> And, by extension, if you don't agree to v1.1, then v1.0a is still valid for you?
> 
> Ergo - this is an all or nothing deal.  If they present a carrot that makes you agree to v1.1, all your work, past and future, must be on v1.1?
> 
> That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.



To be clear, what's he's saying isn't actually in the actual document we've seen. His language is a little hard for me to parse, but he seems to be saying how it should be worded, maybe?


----------



## Greg Benage

I don't think there's any contradiction between the legal language and the comments. They both say OGL 1.0(a) is no longer an authorized agreement. The legal question is whether that only becomes true for someone who agrees to 1.1. But it's exceptionally clear what Wizards' position on that question is.


----------



## Princessmaker

Umbran said:


> So, the license doesn't de-authorize for everyone, but does so for anyone who agrees to v1.1?
> 
> And, by extension, if you don't agree to v1.1, then v1.0a is still valid for you?
> 
> Ergo - this is an all or nothing deal.  If they present a carrot that makes you agree to v1.1, all your work, past and future, must be on v1.1?
> 
> That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.



The one thing people fear is that they'll try to bully small 3PP and enforce it in other ways. Example: Kickstarter made a deal with them, we don't know the content of the deal, but it could be something like "new TTRPG projects MUST be under 1.1". Similar contracts could go with every major online pdf retailer, which would close the doors to everyone but a few companies just there.


----------



## Prime_Evil

Greg Benage said:


> To be clear, there is none of @bmcdaniel's  "the licensee agrees" language in the document. It states:
> 
> A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.
> 
> ETA: Legally, "the licensee agrees" may be implied or imputed to what it actually says -- that seems to be the crux of the issue.



This section seems to rely upon the statement in the section on de-authorisation of the OGL v.1.0, which does include the incantation "the licensee agrees". My guess is that they are hoping nobody notices this.


----------



## Ruin Explorer

Prime_Evil said:


> They are likely aware they have no power to unilaterally terminate the older version of the OGL.



I mean, one hopes they're aware, but some of the document is bizarrely written that it's possible they're not.


Greg Benage said:


> But it's exceptionally clear what Wizards' position on that question is.



Yeah their position utterly clear - they're saying it doesn't matter if you agree or not, you're done with OGL 1.0a.

So we're kind of back to square one, when the deauthorization first leaked. Can they do it? Lawyers are unsure.


----------



## Myrdin Potter

"J. You will not attempt to circumvent or go around this agreement in any way, such as by creating separate entities to try to evade payment of royalties."

No opening up a series of companies to keep earnings below $50K/$750K.


----------



## Umbran

Greg Benage said:


> To be clear, there is none of @bmcdaniel's  "the licensee agrees" language in the document. It states:
> 
> A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.
> 
> ETA: Legally, "the licensee agrees" may be implied or imputed to what it actually says -- that seems to be the crux of the issue.




Yes, but license terms do not hold unless both sides agree.  And that assertion is in a license term.  That term cannot hold to me if I don't ever agree to it.


----------



## Ruin Explorer

Prime_Evil said:


> "the licensee agrees"



I literally can't find that term in my copy. Did you typo that?


----------



## Greg Benage

Prime_Evil said:


> This section seems to rely upon the statement in the section on de-authorisation of the OGL v.1.0, which does include the incantation "the licensee agrees". My guess is that they are hoping nobody notices this.



Out of my depth there. The above is a subsection of Section X, which features no "the licensee agrees" language.


----------



## Prime_Evil

Princessmaker said:


> The one thing people fear is that they'll try to bully small 3PP and enforce it in other ways. Example: Kickstarter made a deal with them, we don't know the content of the deal, but it could be something like "new TTRPG projects MUST be under 1.1". Similar contracts could go with every major online pdf retailer, which would close the doors to everyone but a few companies just there.



I can see them going to Drivethrurpg and saying that if they carry any products released under the OGL v.1.0 after the specified date, they may be at risk of litigation.


----------



## Dausuul

estar said:


> Then cite the key cases from a common law country that state that there are other ways of terminating a license other than via the explicit termination clause. The nuances are important.



I'm not making any claims whatsoever about law or legal implications. What I am saying is that the actual written text of the license does _not_ "clearly say" this is the only way to terminate the agreement.

Perhaps, to a lawyer, it does clearly say that. In that case, however, I'm at a loss to explain how this thread has gone on for 48 pages.


----------



## bmcdaniel

Greg Benage said:


> To be clear, there is none of @bmcdaniel's  "the licensee agrees" language in the document. It states:




It is there; it is in the preamble which states "by using Licensed Content in this manner, You agree to the terms of this agreement." It is neither necessary nor desireable in drafting contracts for each obligation to be preceded by "the parties agree ..."



----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.


----------



## Greg Benage

Umbran said:


> Yes, but license terms do not hold unless both sides agree. And that assertion is in a license term. That term cannot hold to me if I don't ever agree to it.



I think it's two things:
1. It's clearly true if the licensee agrees to 1.1.
2. In both the license language and _explicitly_ in the propaganda, Wizards is staking out the position that it's true _whether or not_ a publisher agrees to 1.1.

The consensus (not unanimous) by the lawyers here is that this position is on weak footing.


----------



## shadowoflameth

So if I'm understanding the general legal opinion correctly (assuming US law). WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.


----------



## Greg Benage

bmcdaniel said:


> It is there; it is in the preamble which states "by using Licensed Content in this manner, You agree to the terms of this agreement." It is neither necessary nor desireable in drafting contracts for each obligation to be preceded by "the parties agree ..."



Even there, Wizards appears to claim that a publisher needn't sign 1.1 to agree to its terms. They only need to publish content based on SRD 5.

"Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."

Okay, what is "Licensed Content"?

"i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."

ETA: Would this count as "agreement by performance"?


----------



## jgbrowning

Greg Benage said:


> I think it's two things:
> 1. It's clearly true if the licensee agrees to 1.1.
> 2. In both the license language and _explicitly_ in the propaganda, Wizards is staking out the position that it's true _whether or not_ a publisher agrees to 1.1.
> 
> The consensus (not unanimous) by the lawyers here is that this position is on weak footing.




I'm seeing this in (non-commercial) 
VIII. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

and this in (commercial)
X. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

I'm assuming both of these are in the license language. Where is it used in the propaganda (sorry, I just think I'm not understanding).

joe b.


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## Princessmaker

Greg Benage said:


> Even there, Wizards appears to claim that a publisher needn't sign 1.1 to agree to its terms. They only need to publish content based on SRD 5.
> 
> "Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."
> 
> Okay, what is "Licensed Content"?
> 
> "i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."
> 
> ETA: Would this count as "agreement by performance"?



As long as they don't pull something like "if you have a dnd beyond account, you agree to it", there is still a chance.


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## Enrahim2

jgbrowning said:


> I'm seeing this in (non-commercial)
> VIII. TERMINATION. This agreement may be modified or terminated.
> A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.
> 
> and this in (commercial)
> X. TERMINATION. This agreement may be modified or terminated.
> A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.
> 
> I'm assuming both of these are in the license language. Where is it used in the propaganda (sorry, I just think I'm not understanding).
> 
> joe b.



It is not in the comments: It is in the faq on page 2


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## kjdavies

Prime_Evil said:


> There is a significant difference between what is stated here in the text of the licence and what is stated in the comments section of the licence. It looks like the OGL v1.1 operates on an opt-in basis. If you agree to the terms of the new licence, you agree to give up the rights granted by v1.0a of the licence. But WotC go out of their way to give the impression that their "termination" of the old licence is binding on all licensees under v1.0a, regardless of whether they agree to the new licence or not. I suspect it's pure FUD designed to intimidate people into agreement with the terms of the new licence. They are likely aware they have no power to unilaterally terminate the older version of the OGL. Or am I missing something here?



As I read it, v1.1 and v1.0a are clearly incompatible. No content released under v1.0a can be used under v1.1 because v1.1 makes it impossible to meet the obligations and requirements of v1.0a. This could be the origin of the "v1.0 is not authorized"; the full statement should be "not authorized for this content".

As I read it, v1.1 applies to Dungeons & Dragons content released as SRD 5.1, and no other SRD. SRD (3e), RSRD (3.5), MSRD (Modern), and all third-party SRDs using OGL v1.0a should not be affected at all. The two licenses and their licensed content are not miscible.

As I read it. And I'm not an expert.

So... assuming -- and that's a big assumption -- I'm correct, I think I'm aligned with some of the legal types here that OGL v1.1 is basically 'GSL 2.0 -- worse than GSL' but doesn't affect most of the people who are worried about it.

It all comes back down to whether or not they're claiming OGL v1.0a is no longer a valid license at all, or just not a valid license for SRD 5.1.


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## GMforPowergamers

shadowoflameth said:


> So if I'm understanding the general legal opinion correctly (assuming US law).



if you think there is even close to a legal consensus here you are not understanding something...


shadowoflameth said:


> WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.



My layman reading says that. Some lawyers say they can some lawyers say they can't... it comes down to if anyone wants to fight in court. If you don't then weather it is legal or right doesn't matter. 

Wotc MAY be able to bully this into being the law of the land, or maybe not. Time will tell.


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## Greg Benage

@jgbrowning There was another excerpt from a Q&A document that was floating around here. I'm not going to go track it down, but to paraphrase, it said "What if I don't agree to OGL 1.1?" And the answer was, "No problem, you just won't be able to earn any revenue from SRD-based content after January 13, 2023."

ETA: Ninja by @Enrahim2


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## estar

shadowoflameth said:


> So if I'm understanding the general legal opinion correctly (assuming US law). WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.



Except there are sublicenses involved. For example, I used a fair amount of content from Matt Finich's Swords & Wizardry in my Majestic Fantasy RPG. At no time I used any material directly from the d20 SRD. But Matt did.  Then there is the fact that the license has an explicit termination clause. And it mentions if the rights to the content are terminated all sub-licenses remain in force.

This could lead to an odd time-line where Matt Finch isn't allowed to publish or build on Swords & Wizardry but I am allowed to continue with the Majestic Fantasy RPG. Because my legal relationship for the Majestic Fantasy RPG is with Matt Finch not Wizards of the Coast.

The result is that the answer isn't as clear-cut as folks would like it to be.


----------



## pedr

Implying that the OneDnD changes will be made to SRD 5.1 rather than a separate SRD 5.5 release, and saying that publishing content based on SRD 5.1 means you agree to the OGL 1.1 is … clever? Underhand?

I suppose an interesting question would be whether a publication which claims to be based on 5esrd.com or some other publication of the contents of SRD 5.1 could avoid being seen as “licensed content” under the OGL 1.1, and not performance that means acceptance of 1.1.


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## Myrdin Potter

The focus here is on creators, but the main weakness I see is in the very narrow distribution methods in place today. Close off One Bookshelf and Kickstarter and it does not matter much if you are right about the nature of the contract in OGL 1.0A. This is also a direct nuclear strike to all VTT that do not have an agreement with WoTC - the most obvious being Foundry which scrapes materials from DND Beyond.

I have always assumed that DMS Guild and the WoTC materials are a super important revenue generator for Roll20 (since they own One Bookshelf now). Same for Fantasy Grounds, sales of official 5e and AD&D 2e materials has to be a very key revenue source.

A group of distributors that matter that is less than the fingers on one hand is pretty fragile if you need revenue to keep up the fight.

Sure, you can sue WoTC for illegally interfering with your business, but that will take years and years.


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## Prime_Evil

The assertion that the OGL v1.0a is no longer an authorised licence is made several times. But it is unclear whether this is dependent on the "you agree to the terms of this agreement" in the preamble. I suspect it does, but they are trying to give the impression it doesn't. 

Their claim seems to be that performance under the OGL v.1.0a also indicates acceptance of the terms of the OGL v1.1, at least for material derived from v5.1 of the SRD. I have no idea whether you can claim that exercising your rights under an existing contract indicates acceptance of the terms of a second contract which supersedes the first one.


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## GMforPowergamers

pedr said:


> Implying that the OneDnD changes Will be made to SRD 5.1 rather than a separate SRD 5.5 release, and saying that publishing content based on SRD 5.1 means you agree to the OGL 1.1 is … clever? Underhand?
> 
> I suppose an interesting question would be whether a publication which claims to be based on 5esrd.com or some other publication of the contents of SRD 5.1 could avoid being seen as “licensed content” under the OGL 1.1, and not performance that means acceptance of 1.1.



back a month or so I asked if you used the 1D&D levels for subclass on a cleric could you use the old OGL... THIS MAY just be a way for them to say no, once you use that progression in this LP you automatically fall under this agreement.


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## Greg Benage

pedr said:


> Implying that the OneDnD changes Will be made to SRD 5.1 rather than a separate SRD 5.5 release, and saying that publishing content based on SRD 5.1 means you agree to the OGL 1.1 is … clever? Underhand?



It's certainly underhanded...I'm not sure if it's clever. Why didn't they include SRD 3 or SRD 3.5 while they were at it? Paizo doesn't use SRD 5, so they don't get auto-opted into the agreement? Or Wizards thinks they can follow a chain of derivative work back from 5 to 3.5 to 3? The specification of SRD 5.1 is weird to me.


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## GMforPowergamers

Prime_Evil said:


> The assertion that the OGL v1.0a is no longer an authorised licence is made several times. But it is unclear whether this is dependent on the "you agree to the terms of this agreement" in the preamble. I suspect it does, but they are trying to give the impression it doesn't.
> 
> Their claim seems to be that performance under the OGL v.1.0a also indicates acceptance of the terms of the OGL v1.1, at least for material derived from v5.1 of the SRD. I have no idea whether you can claim that exercising your rights under an existing contract indicates acceptance of the terms of a second contract which supersedes the first one.



I still don't get why deauthorizing 1 agreement (IF THEY REALLY BELEIVE THEY CAN) would be hidden in another one instead of a stand alone announcement and form.


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## GMforPowergamers

Greg Benage said:


> It's certainly underhanded...I'm not sure if it's clever. Why didn't they include SRD 3 or SRD 3.5 while they were at it? Paizo doesn't use SRD 5, so they don't get auto-opted into the agreement? Or Wizards thinks they can follow a chain of derivative work back from 5 to 3.5 to 3? The specification of SRD 5.1 is weird to me.



or maybe it did start out with it being all of them and Paizo agreed to something to make sure the new license kept 3.5 alive?


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## Greg Benage

GMforPowergamers said:


> or maybe it did start out with it being all of them and Paizo agreed to something to make sure the new license kept 3.5 alive?



Could be. Or maybe they figure Paizo is best equipped to fight them, so they're willing to leave that horse out the barn. Dunno.


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## Enrahim2

Whoa. The statement that "t. But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial." from the FAQ might actually have the following legal backing:

Publishing SRD 5.1 based content commersially triggers "by making commercial use of Licensed Content, You agree to the terms of this agreement." from the start of OGL-1.1 commersial

This in turn means that you have agreed to section II which states:
"If, and only if, You fully comply with the terms and conditions of this agreement, You may copy, use, modify and distribute Licensed Content around the world as part of Licensed Works on a commercial basis."

So the FAQ is right in light of these two points - You cannot publish comersially SRD 5.1 content if you don't want to accept 1.1, as the act of publishing this is an agreement trigger.

The weirdly placed formulation in the termination clause about no longer authorized is irrelevant - looking at that for justification for that claim seem like a fully red herring.


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## S'mon

GMforPowergamers said:


> I still don't get why deauthorizing 1 agreement (IF THEY REALLY BELEIVE THEY CAN) would be hidden in another one instead of a stand alone announcement and form.




Well the leaked document we're seeing was intended for terrorising some major 3PPs (like Paizo) under an NDA. It wasn't intended as a general announcement.


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## kenada

Greg Benage said:


> It's certainly underhanded...I'm not sure if it's clever. Why didn't they include SRD 3 or SRD 3.5 while they were at it? Paizo doesn't use SRD 5, so they don't get auto-opted into the agreement? Or Wizards thinks they can follow a chain of derivative work back from 5 to 3.5 to 3? The specification of SRD 5.1 is weird to me.



The 3e and 3.5e SRD seem to be considered Unlicensed Content now (emphasis mine).

ii. Not Usable D&D Content (“Unlicensed Content”) – _This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1._ Unlicensed Content includes things like the most famous Dungeons & Dragons monsters, characters, magic spells, and things relating to the various settings used in Dungeons & Dragons official content over the years – what the old Open Game License referred to as “Product Identity.” Unlicensed Content is NOT covered by this agreement, and You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us. If You want to include that content in Your work, You must go through the Dungeon Masters Guild or other official channels.​


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## Greg Benage

kenada said:


> The 3e and 3.5e SRD seem to be considered Unlicensed Content now (emphasis mine).



Yeah, but the automatic opt-in is only triggered if you publish Licensed Content in SRD 5.1. Still, the way it's written, Paizo certainly published content that is present in SRD 5.1, even if they didn't use SRD 5.1 when they published it. Oy.


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## jgbrowning

Greg Benage said:


> Yeah, but the automatic opt-in is only triggered if you publish Licensed Content in SRD 5.1. Still, the way it's written, Paizo certainly published content that is present in SRD 5.1, even if they didn't use SRD 5.1 when they published it. Oy.




Maybe I'm suspicious but I'm getting a "we're making it intentionally opaque" feeling.

joe b.


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## kenada

Greg Benage said:


> Yeah, but the automatic opt-in is only triggered if you publish Licensed Content in SRD 5.1. Still, the way it's written, Paizo certainly published content that is present in SRD 5.1, even if they didn't use SRD 5.1 when they published it. Oy.



They have published a few 5e conversions (_Abomination Vaults_ and a bestiary for _Kingmaker_), but I don’t know if those use the 5.1 SRD. It certainly makes things confusing if you just want to stick with the 3e SRD and avoid the OGL 1.1 (which might be intended).


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## Greg Benage

jgbrowning said:


> Maybe I'm suspicious but I'm getting a "we're making it intentionally opaque" feeling.



It's definitely complex enough that 3PPs are going to need to lawyer up.


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## Prime_Evil

kenada said:


> The 3e and 3.5e SRD seem to be considered Unlicensed Content now (emphasis mine).
> 
> ii. Not Usable D&D Content (“Unlicensed Content”) – _This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1._ Unlicensed Content includes things like the most famous Dungeons & Dragons monsters, characters, magic spells, and things relating to the various settings used in Dungeons & Dragons official content over the years – what the old Open Game License referred to as “Product Identity.” Unlicensed Content is NOT covered by this agreement, and You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us. If You want to include that content in Your work, You must go through the Dungeon Masters Guild or other official channels.​



This seems to conflate material never released under the OGL (e.g. certain monsters and spells) and material from older versions of the SRD. It lumps them together as Unlicensed Content. But it requires you to agree not to use this material without a separate agreement. There seems to be an assertion previous OGC = product identify.


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## Prime_Evil

I also get the feeling they are being opaque to create FUD. I think this is not just a legal document but also a business document created to spread mistrust.


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## kenada

Prime_Evil said:


> This seems to conflate material never released under the OGL (e.g. certain monsters and spells) and material from older versions of the SRD. It lumps them together as Unlicensed Content. But it requires you to agree not to use this material without a separate agreement. There seems to be an assertion previous OGC = product identify.



And I’d guess that they do not consider the OGL 1.0a an acceptable agreement for that purpose.


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## Greg Benage

Prime_Evil said:


> This seems to conflate material never released under the OGL (e.g. certain monsters and spells) and material from older versions of the SRD. It lumps them together as Unlicensed Content. But it requires you to agree not to use this material without a separate agreement. There seems to be an assertion previous OGC = product identify.



I don't think it's asserting that prior OGC not in the SRD 5.1 is Product Identity, but it definitely suggests that if it's not in the 5.1 SRD, then it's Unlicensed Content, including [but not limited to] "what the old OGL referred to as 'Product Identity.'"


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## Enrahim2

Regarding cross use - There are two mechanisms I can see preventing cross use from 1.1 to 1.0a. One is that I cannot see any mechanism that indicate that anything published under 1.1 is considered "Open Game Content" under 1.0a. The other is that the most narrow possible understanding of "1.0a is no longer an authorized version" appear to be referencing section 9, effectively preventing material only published under 1.1 and not 1.0a to be published under 1.0a. However the only provision I could see that might be interpreted as preventing use of 1.0a in 1.1 is the wider understanding of "1.0a is no longer an authorized version".

In other words, it would seem like if that provision is removed, as petitioned there should be no reason at all wizard couldn't use 1.0a content in 1.1 works, while according to the reasoning above, anyone wanting to still build on 5.1 material would still be trapped into 1.1?


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## shadowoflameth

estar said:


> Except there are sublicenses involved. For example, I used a fair amount of content from Matt Finich's Swords & Wizardry in my Majestic Fantasy RPG. At no time I used any material directly from the d20 SRD. But Matt did.  Then there is the fact that the license has an explicit termination clause. And it mentions if the rights to the content are terminated all sub-licenses remain in force.
> 
> This could lead to an odd time-line where Matt Finch isn't allowed to publish or build on Swords & Wizardry but I am allowed to continue with the Majestic Fantasy RPG. Because my legal relationship for the Majestic Fantasy RPG is with Matt Finch not Wizards of the Coast.
> 
> The result is that the answer isn't as clear-cut as folks would like it to be.



So you were publishing content? When you say you used the content, if that's meaning in your own unpaid, non-commercial gain, they don't care. They just want a cut of MONEY made from the content. If the 3rd party that you mention publishes derived content and is no longer licensed, they may be on a legal hook for some money. The only effect on you, the player or DM is that there will likely be less or no new 3rd party content going forward.


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## S'mon

shadowoflameth said:


> So you were publishing content?




Estar (Rob Conley) is a well known writer & publisher.


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## Prime_Evil

shadowoflameth said:


> So you were publishing content? When you say you used the content, if that's meaning in your own unpaid, non-commercial gain, they don't care. They just want a cut of MONEY made from the content. If the 3rd party that you mention publishes derived content and is no longer licensed, they may be on a legal hook for some money. The only effect on you, the player or DM is that there will likely be less or no new 3rd party content going forward.



The teems of the OGL v1.0a do not merely apply to publishers. The license is clear about what is considered a derivative work and what "distribution" of this work entails. It does not require that money changes hands:


> (b)"Derivative Material" means copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted; (c) "Distribute" means to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;


----------



## Enrahim2

But following my train of thought above: If you have the narrow interpretation of "no longer an authorized version"(NLAAV) that it only prevent use of open gaming material published in 1.1 to be used in 1.0a. Then there are no mechanisms hindering use of 1.0a in 1.1 works, but not only that. 1.1 has currently no formulation I can see that can allow any content creators of 1.1 material to build on any work from other creators of 1.1 material (beyond wizards, that will at least update the definition of "Lisenced Content" as the new oneD&D SRD is coming out). However with the narrow interpretation of NLAAV there seem to be nothing preventing from them to declare parts of their 1.1 compliant material "Open Gaming Content", and hence enable other 1.1 creators to build on that trough the 1.0a section 9 clause, despite 1.0a not gaining access to that material - but this time the prevention of using 1.0a material would only be due to the NLAAV, rather than the first mechanism described in post 1000.

As wizards already believe manage to do the main thing they seem to want - forcing content creators into 1.1 without the NLAAV language, the presence of it seem very puzzling to me, unless it is for the purpose of preventing 1.1 to 1.0a transfer based on either people voluntarily designating OGC, or hedging against some future ruling that future "Licensed Content" is to be considered "OGC" due to the spirit of the OGL. If they believe in the mechanism of use implies agreement, and they really wanted to do "evil" stuff with Paizo as has been speculated, why didn't they hedge their chances by also including the original SRD as "Licensed Content"? Indeed, that omission might rather seem like an active concession to Paizo in light of this reasoning?

The only thing that still puzzles me is why they do not just plain clear up the confusion? My guess now would be that they see the industry getting into panic - the bad press has already happened. This is their chance to use the desperation to negotiate some deep concessions from their competitors, and in return just give them what they originally intended to do, trough clarifying the NLAAV the way described. By showing that they are willing to "adjust" they get a PR win that likely at least partly offset what they already suffer. The main stream media picking up the controversy is great to raise awareness. Maybe WotC are really happy with how this has turned out, and the louder we scream, the better it is for them?


----------



## dbolack

pemerton said:


> I don't agree with this. D&D players enjoy a lot of freedom to discuss, enjoy, watch and promote D&D independently of the OGL 1.0a.
> 
> @estar's argument (if I've understood it correctly) that the OGL v 1.0a creates an ecosystem in which talented D&D designers can emerge and be recruited by WotC (whether as staff or freelancers) is more plausible to me, particularly because it focuses on the supply side (where cultivating talent is important) than the demand side. An analogy would be the recruitment of indie film talent to help make Marvel movies.




One impetus for the OGL ( which wasn't originally intended to be a big O open license ) was that there are categories of support products perceived as needed for a game's health that are not profitable at the TSR/WotC/Hasbro scale. They could/would sell satisfactorily for publishers who operate on smaller scale/requirements and would allow WotC to focus on the items that move more units. Somewhere along the way, Ryan became infatuated with Open Licenses and it went from there. 
The longwinded point to that was that the OGL provided a methodology that allowed for a more varied and healthier ecosystem of products that WotC was not entirely responsible for creating or curating and thus all boats rise.


----------



## Steel_Wind

Myrdin Potter said:


> This is also a direct nuclear strike to all VTT that do not have an agreement with WoTC - the most obvious being Foundry which scrapes materials from DND Beyond.



To be clear, Foundry VTT does not scrape DDB _for anything_.

There is a module, not made or written by Foundry VTT but by a patreon (Mr. Primate) and another, much more limited patreon  ( VTTA, which is free), that allows someone who has a DDB account to access their own material on DDB that they own and paid for (and only the DDB material they paid for) to have that imported into their game.

WotC is not harmed by this in _any_ manner. Indeed, I happen to know for a fact that WotC has been enriched by this, FAR more than the author of Foundry VTT ever has.

I do not dispute that WotC is probably aiming at Foundry  so that they can persuade people to use their own forthcoming VTT via DDB.

In so doing, they will cause more harm to their own bottom line than they will do to improve it. In just the past nine months alone, I know that WotC has received more than $400 from me for products/services purchased on DDB. The ONLY reason I paid that was for use in Foundry VTT. The marginal cost of that to WotC was approximate one or two cents. It was essentially all *pure profit to WotC*-- all of it.

If this transpires as we believe it likely will, these will not be rational business decisions.


----------



## S'mon

I think I'm right that the way this works, they claim that the 3.5 SRD is no longer OGC, and it is not offered under OGL 1.1 - only the 5e SRD is. Therefore they're not actually offering Paizo what Paizo needs to function? So Paizo HAS to either assert their rights under OGL 1.0, or go out of business/stop publishing Pathfinder.


----------



## Ruin Explorer

Enrahim2 said:


> The only thing that still puzzles me is why they do not just plain clear up the confusion?



Because they created it intentionally.


----------



## Prime_Evil

estar said:


> Except there are sublicenses involved. For example, I used a fair amount of content from Matt Finich's Swords & Wizardry in my Majestic Fantasy RPG. At no time I used any material directly from the d20 SRD. But Matt did.  Then there is the fact that the license has an explicit termination clause. And it mentions if the rights to the content are terminated all sub-licenses remain in force.
> 
> This could lead to an odd time-line where Matt Finch isn't allowed to publish or build on Swords & Wizardry but I am allowed to continue with the Majestic Fantasy RPG. Because my legal relationship for the Majestic Fantasy RPG is with Matt Finch not Wizards of the Coast.
> 
> The result is that the answer isn't as clear-cut as folks would like it to be.



This seems analogous to the situation many non-DnD publishers are in. Let's say I wish to publish a sourcebook for the Cepheus Engine. This rule system is based on the Traveller SRD released by Mongoose Publishing under the OGL v1.0a. I am not using any intellectual property of WoTC with the exception of the licence itself. The right to distribute copies of the license is explicitly granted by OGL v1.0a itself. So what is my relationship to WoTC? Mongoose relied upon representations by WoTC that the OGL v1.0a was available for use by any publisher for any game system. The creator of the Cepheus Engine (Jason Kemp) relied upon the ongoing validity of the licence in turn. And I am relying upon the rights v1.0a conveys upon me to use material copyrighted by Jason Kemp. It's a mess. Which I suspect is the point. I believe WotC may be acting in bad faith to muddy the waters as much as possible.


----------



## kenada

Steel_Wind said:


> To be clear, Foundry VTT does not scrape DDB _for anything_.
> 
> There is a module, not made or written by Foundry VTT but by a patreon (Mr. Primate) and another, much more limited patreon  ( VTTA, which is free), that allows someone who has a DDB account to access their own material on DDB that they own and paid for (and only the DDB material they paid for) to have that imported into their game.
> 
> WotC is not harmed by this in _any_ manner. Indeed, I happen to know for a fact that WotC has been enriched by this, FAR more than the author of Foundry VTT ever has.
> 
> I do not dispute that WotC is probably aiming at Foundry  so that they can persuade people to use their own forthcoming VTT via DDB.
> 
> In so doing, they will cause more harm to their own bottom line than they will do to improve it. In just the past nine months alone, I know that WotC has received more than $400 from me for products/services purchased on DDB. The ONLY reason I paid that was for use in Foundry VTT. The marginal cost of that to WotC was approximate one or two cents. It was essentially all *pure profit to WotC*-- all of it.
> 
> If this transpires as we believe it likely will, these will not be rational business decisions.



However, Foundry VTT hosts the Pathfinder 2e system module in their GitHub organization, which does include the OGL 1.0a.


----------



## OB1

S'mon said:


> I think I'm right that the way this works, they claim that the 3.5 SRD is no longer OGC, and it is not offered under OGL 1.1 - only the 5e SRD is. Therefore they're not actually offering Paizo what Paizo needs to function? So Paizo HAS to either assert their rights under OGL 1.0, or go out of business/stop publishing Pathfinder.



Or enter into a separate agreement with Hasbro regarding 3.5 SRD content.


----------



## Myrdin Potter

Steel_Wind said:


> To be clear, Foundry VTT does not scrape DDB _for anything_.
> 
> There is a module, not made or written by Foundry VTT but by a patreon (Mr. Primate) and another, much more limited patreon  ( VTTA, which is free), that allows someone who has a DDB account to access their own material on DDB that they own and paid for (and only the DDB material they paid for) to have that imported into their game.
> 
> WotC is not harmed by this in _any_ manner. Indeed, I happen to know for a fact that WotC has been enriched by this, FAR more than the author of Foundry VTT ever has.
> 
> I do not dispute that WotC is probably aiming at Foundry  so that they can persuade people to use their own forthcoming VTT via DDB.
> 
> In so doing, they will cause more harm to their own bottom line than they will do to improve it. In just the past nine months alone, I know that WotC has received more than $400 from me for products/services purchased on DDB. The ONLY reason I paid that was for use in Foundry VTT. The marginal cost of that to WotC was approximate one or two cents. It was essentially all *pure profit to WotC*-- all of it.
> 
> If this transpires as we believe it likely will, these will not be rational business decisions.



I disagree (except for the part that this is not Foundry that did it directly). Foundry massively benefits from 5e being available on their platform and the use is clearly not authorized by D&D Beyond. Owning the content on D&D Beyond is a benefit in and of iteself and WoTC does not get extra revenue like they do via their two licensed partners (roll20 and Fantasy Grounds).


----------



## kjdavies

Greg Benage said:


> It's certainly underhanded...I'm not sure if it's clever. Why didn't they include SRD 3 or SRD 3.5 while they were at it? Paizo doesn't use SRD 5, so they don't get auto-opted into the agreement? Or Wizards thinks they can follow a chain of derivative work back from 5 to 3.5 to 3? The specification of SRD 5.1 is weird to me.



It makes sense to me, assuming I read it correctly. "SRD 5.1" is a specific body of content, and this license applies to that content. They even say that v1.1 doesn't apply to other SRDs (which I take to include SRD 3e and SRD 3.5 and SRD Modern). They are loose when referring to 'OGL' and 'SRD' much of the rest of the time, which could mean they intend for it to the versions mentioned here _or_ be read as applying to all OGLs and all SRDs. It's ambiguous and scary.


----------



## Prime_Evil

dbolack said:


> One impetus for the OGL ( which wasn't originally intended to be a big O open license ) was that there are categories of support products perceived as needed for a game's health that are not profitable at the TSR/WotC/Hasbro scale. They could/would sell satisfactorily for publishers who operate on smaller scale/requirements and would allow WotC to focus on the items that move more units. Somewhere along the way, Ryan became infatuated with Open Licenses and it went from there.
> The longwinded point to that was that the OGL provided a methodology that allowed for a more varied and healthier ecosystem of products that WotC was not entirely responsible for creating or curating and thus all boats rise.



This interpretation is not supported by statements published by WoTC at the time. The OGL was intended as a public licence created by WoTC to facilitate the sharing of Open Game Content. They published several statements to that effect and former officers of the company have confirmed this interpretation


----------



## Dausuul

Enrahim2 said:


> The only thing that still puzzles me is why they do not just plain clear up the confusion? My guess now would be that they see the industry getting into panic - the bad press has already happened. This is their chance to use the desperation to negotiate some deep concessions from their competitors, and in return just give them what they originally intended to do, trough clarifying the NLAAV the way described. By showing that they are willing to "adjust" they get a PR win that likely at least partly offset what they already suffer. The main stream media picking up the controversy is great to raise awareness. Maybe WotC are really happy with how this has turned out, and the louder we scream, the better it is for them?



I find it extremely hard to believe that Wizards is playing that kind of 11-dimensional chess. And if they are, they're morons. A publicity firestorm like this one makes impressions which are not so easily erased. The 3PP community is not going to come rushing back to gratefully kiss the ring.


----------



## pemerton

reelo said:


> Yes, but 1.0 clearly STATES how it is revocable: by a breach of terms. And it clearly states that as the only way.



Where does OGL v 1.0/1.0a clearly state that section 13 is the only way it can be revoked?


----------



## kjdavies

kenada said:


> The 3e and 3.5e SRD seem to be considered Unlicensed Content now (emphasis mine).
> 
> ii. Not Usable D&D Content (“Unlicensed Content”) – _This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and is not present in the SRD v. 5.1._ Unlicensed Content includes things like the most famous Dungeons & Dragons monsters, characters, magic spells, and things relating to the various settings used in Dungeons & Dragons official content over the years – what the old Open Game License referred to as “Product Identity.” Unlicensed Content is NOT covered by this agreement, and You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us. If You want to include that content in Your work, You must go through the Dungeon Masters Guild or other official channels.​



Easy to see the SRDs released for 3e and 3.5 are 'Unlicensed Content' as far as OGL v1.1 is concerned. They are not SRD 5.1, therefore are not licensed by this license.

However, are they no longer open content? I do have a separate license with WotC (OGL v1.0a) for those ones, but not for use under OGL v1.1.

The obligations of OGL v1.0a and OGL v1.1 are not compatible, so it does make sense that I can't use open content from SRD or RSRD under OGL v1.1, and would need yet another license to do so... and I see no way to use third party open content under OGL v1.1 at all because even if they wanted, those third party publishers would need to get special permission to release that content under OGL v1.1.


----------



## kjdavies

Greg Benage said:


> Yeah, but the automatic opt-in is only triggered if you publish Licensed Content in SRD 5.1. Still, the way it's written, Paizo certainly published content that is present in SRD 5.1, even if they didn't use SRD 5.1 when they published it. Oy.



Did Paizo use content _from_ SRD 5.1, or just content that has the same text but is from SRD 5e?


----------



## kjdavies

jgbrowning said:


> Maybe I'm suspicious but I'm getting a "we're making it intentionally opaque" feeling.



You might be suspicious, but I think you're not wrong.


----------



## Steel_Wind

kenada said:


> However, Foundry VTT hosts the Pathfinder 2e system module in their GitHub organization, which does include the OGL 1.0a.



FoundryVTt is an explicit licensee in that it sells Paizo Adv Paths to customers. (technically, Paizo sells the codes which can be redeemed on Foundry's server.) The PF2 system is community authored. It is also better code than 5e's - the Dev team working on PF2 has more people working on it than Foundry does. Talented community development is hard AF to assemble, but hard to beat when it is. The PF2 devs are to be commended.

I do not see any merit at all to the argument that Foundry is playing dirty pool with DDB. "Oh but you should have to buy it twice! "

Give it a rest.  If WotC cared, they would send a Cease and Desist. They have not.


----------



## Enrahim2

Dausuul said:


> I find it extremely hard to believe that Wizards is playing that kind of 11-dimensional chess. And if they are, they're morons. A publicity firestorm like this one makes impressions which are not so easily erased. The 3PP community is not going to come rushing back to gratefully kiss the ring.



Oh, I agree. I don't think they intended this to happen. My current guess is that they had a lawyer writing the legalese without a full understanding of the context, or the social implications. But now that the naughty word really has hit the fan, and a PR disaster is unavoidable anyway, the question is more - how to make the best out of this unexpected situation after all?

If they really had been fully aware of the level of inflammatory response to this would be, I think they would have had a better damage control strategy prepared. And you would have to be beyond moronic to not understand that a direct threat to the entire 1.0a ecosystem would really blow up. I think it seem slightly less moronic for a lawyer to not realize that "authorized" might have potential wider legal and social meaning than referring to a keyword of another legal document.


----------



## mamba

S'mon said:


> I think I'm right that the way this works, they claim that the 3.5 SRD is no longer OGC, and it is not offered under OGL 1.1 - only the 5e SRD is. Therefore they're not actually offering Paizo what Paizo needs to function? So Paizo HAS to either assert their rights under OGL 1.0, or go out of business/stop publishing Pathfinder.



no idea, some read it as new products, so Paizo could keep selling what they already have an rid themselves of what still ties them to the SRD - which they said is not much asap


----------



## kenada

Steel_Wind said:


> FoundryVTt is an explicit licensee in that it sells Paizo Adv Paths to customers. (technically, Paizo sells the codes which can be redeemed on Foundry's server.) The PF2 system is community authored. It is also better code than 5e's - theDev team working on PF2 has more people working on it than Foundry does. Talented.community dev is hard AF to assemble, but hard to beat when it is. The PF2 devs are to  be commended.
> 
> I do not see any merit at all to the argument that Foundry is playing dirty pool with DDB. "Oh but you should have to buy it twice! "
> 
> Give it a rest. Are you a shareholder in  Fantasy Grounds? If WotC cared, they would send a Cease and Desist. They have not.



I wasn’t clear, but I wasn’t commenting on the scraping allegation. I was just noting that Foundry VTT is providing PF2 stuff. Otherwise, I think you’re confusing me with someone else.


----------



## mamba

pemerton said:


> Where does OGL v 1.0/1.0a clearly state that section 13 is the only way it can be revoked?



by not listing any other way


----------



## estar

pemerton said:


> Where does OGL v 1.0/1.0a clearly state that section 13 is the only way it can be revoked?



Then just like I asked about irrevocable, if a license has a termination clause like the one in the OGL, what are the key common law cases that decided that a licensor  can terminate a license arbitrarily by means other than the termination clause.


----------



## Enrahim2

kjdavies said:


> Easy to see the SRDs released for 3e and 3.5 are 'Unlicensed Content' as far as OGL v1.1 is concerned. They are not SRD 5.1, therefore are not licensed by this license.



There are actually a quite nice reading of this. Section II only require you to follow the terms of this license if publishing anything with "Licensed Content". In other words, it appear as long as you are not cross publishing with 5.1 SRD content, it is nothing in this OGL that prevents you from publishing anything containing SRD3.5 content. It just doesn't provide any rights to do so either. Which mean that if we ignore the "authorized" farce, there are nothing preventing you to use SRD3.5 material under 1.0a (and indeed nothing that prevents you from publishing 5.1SRD content under 1.0a either as long as you abide with all the 1.1 provisions, including not mixing with "Unlicensed Content" as far as I can see)
IANAL


----------



## Steel_Wind

kjdavies said:


> Did Paizo use content _from_ SRD 5.1, or just content that has the same text but is from SRD 5e?



For Abomination Vaults (5e version) and Kingmaker (5e) I am quite confident they used SRD 5.1.

WotC likely does not want its customers buying Paizo authored adv products. Their production values are higher than WotC's (at a minimum, at least as high - it is what Paizo does best). WotC would rather their casual customers know as little about Paizo products as possible, I am sure.

It is the one thing that Paizo is most upset about with this recent announcement. It seems aimed by WotC at preventing their customers from becoming familiar with Paizo products.  While it may be that on a site such as this one, that knowledge is commonly shared -- among more casual and younger customers of WotC products -- Paizo's expertise & adv production values are not known at all.


----------



## pemerton

Umbran said:


> That would be a relief for those who have published non-D&D games under the OGL.  They have no reason to pick up the new license, and so no issues.



I think your second sentence may not be write. What if that person (X) is currently in a 1.0/1.0a licence agreement with Y, and Y becomes a party to v 1.1? Y appears now to have inconsistent contractual obligations - they have promised WotC to renounce 1.0/1.0a, but have promised X to honour it.

There may be ways of reconciling these obligations - eg perhaps the renunciation pursuant to v 1.1 is relative only to WotC's Licensed Content. But I think it is not entirely straightforward.


----------



## pemerton

Greg Benage said:


> To be clear, there is none of @bmcdaniel's  "the licensee agrees" language in the document.



I read your edit. I just wanted to add: the term you quoted is a term of a licence, and the licence says "by making commercial use of 
Licensed Content, You agree to the terms of this agreement". At least on the fact of its text, the licence does not purport to bind non-parties. Which makes sense to me!


----------



## Prime_Evil

pemerton said:


> I think your second sentence may not be write. What if that person (X) is currently in a 1.0/1.0a licence agreement with Y, and Y becomes a party to v 1.1? Y appears now to have inconsistent contractual obligations - they have promised WotC to renounce 1.0/1.0a, but have promised X to honour it.
> 
> There may be ways of reconciling these obligations - eg perhaps the renunciation pursuant to v 1.1 is relative only to WotC's Licensed Content. But I think it is not entirely straightforward.



I think it would be wise to reach out to WoTC for clarification of this point. Or maybe they do see this as an opportunity to kill all competing game systems within the hobby?


----------



## Umbran

Steel_Wind said:


> Give it a rest. Are you a shareholder in  Fantasy Grounds?




*Mod Note:*
The next time you are tempted to suggest that people cannot disagree with you unless they have an ulterior motive... please don't.  Taking digs at people may feel good or appropriate to you, but they don't help the discussion in the slightest.  

The community is undergoing a time of uncertainty and anxiety.  We should not be taking that out _on each other_.


----------



## Steel_Wind

pemerton said:


> I think your second sentence may not be write. What if that person (X) is currently in a 1.0/1.0a licence agreement with Y, and Y becomes a party to v 1.1? Y appears now to have inconsistent contractual obligations - they have promised WotC to renounce 1.0/1.0a, but have promised X to honour it.
> 
> There may be ways of reconciling these obligations - eg perhaps the renunciation pursuant to v 1.1 is relative only to WotC's Licensed Content. But I think it is not entirely straightforward.



This is borrowing trouble now. Most IP discussions in the Internet devolve to this sort of hair splitting and minutiae.

Not every issue leads to litigation. Most lead to...nothing. Your preference for doctrinal  and contractual clarity is unrealistic. If nobody cares enough to sue? Nobody cares. Let it be. Don't borrow trouble.


----------



## pemerton

Prime_Evil said:


> There is a significant difference between what is stated here in the text of the licence and what is stated in the comments section of the licence. It looks like the OGL v1.1 operates on an opt-in basis. If you agree to the terms of the new licence, you agree to give up the rights granted by v1.0a of the licence. But WotC go out of their way to give the impression that their "termination" of the old licence is binding on all licensees under v1.0a, regardless of whether they agree to the new licence or not. I suspect it's pure FUD designed to intimidate people into agreement with the terms of the new licence. They are likely aware they have no power to unilaterally terminate the older version of the OGL. Or am I missing something here?



No, I don't think you're missing anything. And what you say is broadly consistent with what many posters in this thread have been saying - though way upthread, when the two options were canvassed of "deliberate misinformation" and "confusion among non-lawyers reading the document", I (with at least one other poster) thought the second was more likely; whereas it now seems that I was wrong and the first is more likely. (The first leads to the second, of course.)


----------



## David Spake

Dausuul said:


> I find it extremely hard to believe that Wizards is playing that kind of 11-dimensional chess. And if they are, they're morons. A publicity firestorm like this one makes impressions which are not so easily erased. The 3PP community is not going to come rushing back to gratefully kiss the ring.



Yea, I'm with you; the publicity firestorm was just *too* obvious to miss.

However, put yourself in the shoes of a small part-time company with a Kickstarter due to land in 2 months.  You've spend multiple $ K's preparing the product, art, editing, layout etc... and now all of the sudden 1.1 lands and you can't publish JACK unless you sign the license. Do you hold your nose, and do it, knowing you've signed away a Chunk of rights?  Or do you stand your ground and say "Hell no", waiting for the legal battles to settle? Cause you'll eat those sunk costs, and (perhaps) have family/friends/employee's to think about also. Glad I'm not in that position.


----------



## reelo

pemerton said:


> Where does OGL v 1.0/1.0a clearly state that section 13 is the only way it can be revoked?



It's a principle of common law: "expressio unius est exclusio alterius"


----------



## pemerton

Steel_Wind said:


> Not every issue leads to litigation. Most lead to...nothing. Your preference for doctrinal  and contractual clarity is unrealistic. If nobody cares enough to sue? Nobody cares. Let it be. Don't borrow trouble.



Sure. I'm not a litigator - I'm a scholar! Apart from anything else I have to set exam questions which invite students to undertake this sort of analysis.


----------



## Prime_Evil

Enrahim2 said:


> Oh, I agree. I don't think they intended this to happen. My current guess is that they had a lawyer writing the legalese without a full understanding of the context, or the social implications. But now that the naughty word really has hit the fan, and a PR disaster is unavoidable anyway, the question is more - how to make the best out of this unexpected situation after all?
> 
> If they really had been fully aware of the level of inflammatory response to this would be, I think they would have had a better damage control strategy prepared. And you would have to be beyond moronic to not understand that a direct threat to the entire 1.0a ecosystem would really blow up. I think it seem slightly less moronic for a lawyer to not realize that "authorized" might have potential wider legal and social meaning than referring to a keyword of another legal document.



This is probably true. The leaked document was given to various publishers in licensing negotiations with WotC. I think it was designed to scare them into submission. But it has escaped "into the wild" and is now causing PR issues for them. It is pretty much the only story I'm the entire industry right now.


----------



## Greg Benage

pemerton said:


> I read your edit. I just wanted to add: the term you quoted is a term of a licence, and the licence says "by making commercial use of
> Licensed Content, You agree to the terms of this agreement". At least on the fact of its text, the licence does not purport to bind non-parties. Which makes sense to me!




But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?


----------



## Prime_Evil

pemerton said:


> I read your edit. I just wanted to add: the term you quoted is a term of a licence, and the licence says "by making commercial use of
> Licensed Content, You agree to the terms of this agreement". At least on the fact of its text, the licence does not purport to bind non-parties. Which makes sense to me!



This is probably a correct reading, but I feel WoTC go out of their way to obfuscate this fact. Or there may be a disconnect between what the company's executives think the license does and what it actually does.


----------



## Knuffeldraak

Thanks for posting this.

Like, _god, _so many people I talk to about this just completely fail to understand that FanMade works and SRD's are Derivative Works, not Original Works, and thus where Copyright Laws work COMPLETELY differently than your bone-dry "I made this, so it's mine."


----------



## Umbran

pemerton said:


> At least on the fact of its text, the licence does not purport to bind non-parties.




Quite right.  

But then, WotC is under no onus to _point out_ that terms don't apply unless you agree.  

As part of a license, they do not have to preface every line with, "If you agree to this license..." for example.  That is _assumed_ in legal terms.  But it is not assumed in normal conversational language.   So, to a layman, a term that reads "X is true" looks like a statement of fact, when it is actually a conditional - "If you agree to this license, X is true."


----------



## S'mon

Steel_Wind said:


> Your preference for doctrinal  and contractual clarity is unrealistic.




_Academics_, eh?


----------



## Jd Smith1

Greg Benage said:


> Y'all are just opining at each other about something that could only be decided by a court.



True. That is just about the entire basis of this thread, really.

But in true gamer spirit, I think what we have here is very much the reaction when the leaders of Men, Elves, and Dwarves realized that their free ring(s) they have enjoyed have a catch to them...


----------



## Jd Smith1

mamba said:


> oh, the marriage comparison was better? good to know, would never have figured that out otherwise, but I guess if you say so I have to take your word for it, I mean you use the word ‘fact’ after all


----------



## mamba

Greg Benage said:


> But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?



anyone who has not included OGL 1.1 in their product has not agreed to it. Whether that means they are now in violation of 1.1. is another matter.


----------



## S'mon

pemerton said:


> No, I don't think you're missing anything. And what you say is broadly consistent with what many posters in this thread have been saying - though way upthread, when the two options were canvassed of "deliberate misinformation" and "confusion among non-lawyers reading the document", I (with at least one other poster) thought the second was more likely; whereas it now seems that I was wrong and the first is more likely. (The first leads to the second, of course.)




You're too good for this sinful world, Pemerton.  Yeah, I was cynical enough to believe WoTC could really be that bad.


----------



## S'mon

mamba said:


> anyone who has not included OGL 1.1 in their product has not agreed to it. Whether that means they are now in violation of 1.1. is another matter.




You cannot be in violation of a contract you are not party to.


----------



## kjdavies

Enrahim2 said:


> There are actually a quite nice reading of this. Section II only require you to follow the terms of this license if publishing anything with "Licensed Content". In other words, it appear as long as you are not cross publishing with 5.1 SRD content, it is nothing in this OGL that prevents you from publishing anything containing SRD3.5 content. It just doesn't provide any rights to do so either. Which mean that if we ignore the "authorized" farce, there are nothing preventing you to use SRD3.5 material under 1.0a (and indeed nothing that prevents you from publishing 5.1SRD content under 1.0a either as long as you abide with all the 1.1 provisions, including not mixing with "Unlicensed Content" as far as I can see)
> IANAL



IANAL either, but it seems a reasonable interpretation to me. In the name of Don't Repeat Yourself this license says what this license does and does not do (licenses SRD 5.1 and not other SRDs; SRD 5.1 is usable under this license and not v1.0a) and leaves the rest out... the rest is irrelevant to what is going on in this license.

It would be nice if the commentary also said "open content usable under OGL v1.0a is still usable under OGL v1.0a", and perhaps if they had phrased "OGL v1.0a is unauthorized" as "OGL v1.0a is not authorized for SRD 5.1" (assuming of course that is what they mean). I can understand if they wanted readers to misunderstand and assume everything else goes away and move to SRD 5.1/OGL v1.1... but reader misunderstanding is the reader's fault, not the writer's fault _innocent reptilian smile_


----------



## mamba

S'mon said:


> You cannot be in violation of a contract you are not party to.



true, but not sure how else to say 'you may no longer be covered by 1.0a and now violate WotC's copyright, because 1.1 seems to say so', maybe you have better terminology... well, apart from this long text here...


----------



## Greg Benage

S'mon said:


> You cannot be in violation of a contract you are not party to.




But can you become a party by publishing content from SRD 5.1?!?

Damn lawyers, why won’t you answer this in English!


----------



## shadowoflameth

Prime_Evil said:


> The teems of the OGL v1.0a do not merely apply to publishers. The license is clear about what is considered a derivative work and what "distribution" of this work entails. It does not require that money changes hands:



Yes, but if no money is paid, there's no cut for them to collect, and nothing to report to them.


----------



## Enrahim2

mamba said:


> anyone who has not included OGL 1.1 in their product has not agreed to it. Whether that means they are now in violation of 1.1. is another matter.



Not quite. From the Commercial OGL: "by making commercial use of Licensed Content, You agree to the terms of this agreement" If you use any Licenced Content commercially without including OGL 1.1 with it - you have both agreed to the OGL, and are in violation of it.


----------



## Enrahim2

Enrahim2 said:


> Not quite. From the Commercial OGL: "by making commercial use of Licensed Content, You agree to the terms of this agreement" If you use any Licenced Content commercially without including OGL 1.1 with it - you have both agreed to the OGL, and are in violation of it.



(The timeing here is a bit iffy though. The agreement is said to go into effect the 13th of january, but I can't see any date for when you can agree to it.. Probably when you first are made aware of the offer?)


----------



## mamba

Greg Benage said:


> But can you become a party by publishing content from SRD 5.1?!?
> 
> Damn lawyers, why won’t you answer this in English!



no, unless you include 1.1 you have not agreed to it. Using SRD content without it means you violate WotC's copyright


----------



## kjdavies

Greg Benage said:


> But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?



Today, I believe that cannot be so unless they've actually received the license. Surely it can't be accepted before it's offered, unless a TARDIS is involved.

Beyond that... surely there must be some grace period to make right. I believe the purported leaked draft said you don't have to start paying until Jan 1, 2024 and that you have time to stop publishing material based on SRD 5.1 before that.

(Thankfully I haven't done anything with SRD 5.1... procrastination and apathy for the win!)


----------



## mamba

Enrahim2 said:


> Not quite. From the Commercial OGL: "by making commercial use of Licensed Content, You agree to the terms of this agreement" If you use any Licenced Content commercially without including OGL 1.1 with it - you have both agreed to the OGL, and are in violation of it.



interesting, I do not think that holds up for practical reasons, doesn't change that I am in violation of something


----------



## Steel_Wind

pemerton said:


> Sure. I'm not a litigator - I'm a scholar! Apart from anything else I have to set exam questions which invite students to undertake this sort of analysis.



Well, that's fair - though the answer doesn't really change.

I am typing on a tablet, zoomed in, so I did not even see it was you posting, else I would not have replied in that manner.

Still, the point remains - most of these issues will never have an answer tested in court. It is worthwhile reminding lay people that these issues don't have answers and likely never will. The common law is a private litigant funded _injustice system. _Most of these edge cases have no certain  answer - and that is okay, too.  We muddle on without too many concerns just the same.

A system focused on property rights cares about money, and generally addresses those issues  ranked in priority to the money each issue is worth. Add to that a settlement / resolution rate short of trial of ~98% and it is no surprise we do not have certain answers about nearly as much as lay people think we do, or should.


----------



## Greg Benage

Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.


----------



## pemerton

estar said:


> my legal relationship for the Majestic Fantasy RPG is with Matt Finch not Wizards of the Coast.



You may also have a legal relationship with WotC, if your work contains material that would infringe WotC's copyrights except for the fact that Matt Finch sub-licensed to you under the OGL v 1.0/1.0a.

That's a feature, not a bug, of the v 1.0/10.a ecology: it creates an intricate network of legal relationships (powers and permissions) that underpin it.


----------



## Umbran

Greg Benage said:


> But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?




Well, no.  For one thing, OGL 1.1 has not officially been released yet.

For another, one of the main issues under dispute is that, unless the license you agreed to says terms may be changed, then you can't generally unilaterally change them, much less change people to a completely new license without their knowingly establishing a new agreement.

And, that's an issue.  For example, we here are all part of a discussion.  But someone who doesn't haunt message boards could come across a PDF of the SRD, with its associated license, and in good faith follow the terms and make their own thing, and be in complete compliance with v1.0a.  

So, how does WotC have the right to call them to task and financial burden for that, when they've never even heard of OGL v1.1?  There's literally tens of thousands of copies of the old license floating out there, and WotC can't edit them to update people that the license they carry is no longer useable - the license specifically says the thing is perpetual, and has no terms of termination other than breaking terms explicitly in the license.


----------



## Prime_Evil

My only concern with the interpretation the licence operates on an opt-in basis is the mention of pantomimes in the covered works. Could this be construed to include private games? In other words, is there a chance that using OGL v1.1 materials in a game could equal acceptance by performance? Maybe I'm just being paranoid here.


----------



## pemerton

Steel_Wind said:


> Well, that's fair - though the answer doesn't really change.
> 
> I am typing on a tablet, zoomed in, so I did not even see it was you posting, else I would not have replied in that manner.



No probs at all! And I agree that there is a line between reality and pointless speculation or hair-splitting, though our different perspectives may mean we draw that line in slightly different places.



Steel_Wind said:


> Still, the point remains - most of these issues will never have an answer tested in court. It is worthwhile reminding lay people that these issues don't have answers and likely never will. The common law is a private litigant funded _injustice system. _Most of these edge cases have no certain  answer - and that is okay, too.  We muddle on without too many concerns just the same.
> 
> A system focused on property rights cares about money, and generally addresses those issues  ranked in priority to the money each issue is worth. Add to that a settlement rate of ~98% and it is no surprise we do not have certain answers about nearly as much as lay people think we do, or should.



Yep to all of this!


----------



## S'mon

Greg Benage said:


> Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.




I saw a US contract lawyer give the example of "I offer these shiny beads for £1 million. By going to sleep any time before December 31st, you accept my offer."

Normally a contract offer can be accepted by performance, these are called Unilateral Contracts. But there still has to be actual acceptance, in the word's natural meaning. So in practice this kind of attempt to bind someone who's not really agreed, would get laughed out of court.


----------



## Steel_Wind

mamba said:


> interesting, I do not think that holds up for practical reasons, doesn't change that I am in violation of something



It doesn't hold up for basic contract formation reasons, either. As for negative option contract formation, that is outright unlawful in many jurisdictions.

Nice try. The arrogance is unwise though and fairly drips from the page if what you are quoting is a final draft.


----------



## kjdavies

Umbran said:


> Well, no.  For one thing, OGL 1.1 has not officially been released yet.
> 
> For another, one of the main issues under dispute is that, unless the license you agreed to says terms may be changed, then you can't generally unilaterally change them, much less change people to a completely new license without their knowingly establishing a new agreement.
> 
> And, that's an issue.  For example, we here are all part of a discussion.  But someone who doesn't haunt message boards could come across a PDF of the SRD, with its associated license, and in good faith follow the terms and make their own thing, and be in complete compliance with v1.0a.
> 
> So, how does WotC have the right to call them to task and financial burden for that, when they've never even heard of OGL v1.1?  There's literally tens of thousands of copies of the old license floating out there, and WotC can't edit them to update people that the license they carry is no longer useable - the license specifically says the thing is perpetual, and has no terms of termination other than breaking terms explicitly in the license.



Y'know, I actually had to go look. I'd assumed 'SRD 5.1' was the new-not-6e version, not the current one. I imagine it would help a lot if they created a new version of the SRD, even if it has all the same text but "5.1" filed off and "5.2" put in. As I see it, if they use 'SRD 5.1' there are/have been/will have been two different licenses on it depending when you started using it. Or, as you say, depending on when you found the copy you're working from.


----------



## shadowoflameth

So, it seems to me that (with all respect to the publishers affected). If you are not publishing and profiting from content, the only effect will be that there will be less, (maybe no) 3rd party books and suppliments available in One D&D. It doesn't mean that you won't be able to play any way and with any elements that you like. It means that no other publisher is likely to come up with something that you want if WotC doesn't. If you are publishing game content, then for better or worse, WotC will likely come after you for a (maybe large) cut.  According to the OP, in many instances, they'll have a legally valid case.


----------



## Greg Benage

S'mon said:


> I saw a US contract lawyer give the example of "I offer these shiny beads for £1 million. By going to sleep any time before December 31st, you accept my offer."
> 
> Normally a contract offer can be accepted by performance, these are called Unilateral Contracts. But there still has to be actual acceptance, in the word's natural meaning. So in practice this kind of attempt to bind someone who's not really agreed, would get laughed out of court.



Okay, I'm actually out here reading up on contracts, doctrine and practice, god help me, and from what I'm reading, the instance of acceptance by performance in 1.1 is rather different from your example, but I accept that this is likely the best answer y'all are going to give me.


----------



## Enrahim2

S'mon said:


> I saw a US contract lawyer give the example of "I offer these shiny beads for £1 million. By going to sleep any time before December 31st, you accept my offer."
> 
> Normally a contract offer can be accepted by performance, these are called Unilateral Contracts. But there still has to be actual acceptance, in the word's natural meaning. So in practice this kind of attempt to bind someone who's not really agreed, would get laughed out of court.



I guess it is not quite this simple. If for instance if you press "OK" on the license notification on software installation, I guess you cannot claim "I did it despite accepting"?


----------



## kjdavies

S'mon said:


> I saw a US contract lawyer give the example of "I offer these shiny beads for £1 million. By going to sleep any time before December 31st, you accept my offer."
> 
> Normally a contract offer can be accepted by performance, these are called Unilateral Contracts. But there still has to be actual acceptance, in the word's natural meaning. So in practice this kind of attempt to bind someone who's not really agreed, would get laughed out of court.



I understand that if taken to court, a situation like this would likely be judged against the offeror. (I forget the name of the principle, but it assumes the offerer is sincere in the offer; if the offeree accepts the offeror is stuck for it.)

The offer is nonsensical and unreasonable, and when the offeree declines a judge would likely back them.

If those beads were actually £10M in jewels (the offeror made a horrible mistake) and the offeree was willing to pay a £1M for them, the judge would likely tell the offeror, "hey, you offered, they accepted, hand over".


----------



## David Spake

Umbran said:


> So, how does WotC have the right to call them to task and financial burden for that, when they've never even heard of OGL v1.1?  There's literally tens of thousands of copies of the old license floating out there, and WotC can't edit them to update people that the license they carry is no longer useable - the license specifically says the thing is perpetual, and has no terms of termination other than breaking terms explicitly in the license.



Maybe they don't have to.  As others here have suggested, it would be much easier to go after those parties who sell/offer the offending, 'unlicensed' content. One it's much easier because it's considerably smaller target(DriveThruRPG, various VTT's, etc..).

Besides, if the various parties feels it's unfair, then all they need to do is bring a case against WoTC to prove .... .


----------



## kjdavies

shadowoflameth said:


> So, it seems to me that (with all respect to the publishers affected). If you are not publishing and profiting from content, the only effect will be that there will be less, (maybe no) 3rd party books and suppliments available in One D&D. It doesn't mean that you won't be able to play any way and with any elements that you like. It means that no other publisher is likely to come up with something that you want if WotC doesn't. If you are publishing game content, then for better or worse, WotC will likely come after you for a (maybe large) cut.  According to the OP, in many instances, they'll have a legally valid case.



Honestly, One D&D is only of interest to me -- I think to many of us -- because it led to this situation. I think the bigger concern for many, if not most, of us is what happens to other games that might or might not be based on other SRDs than SRD 5.1.

Otherwise, I think for One D&D/5e in general, you're probably right.


----------



## Myrdin Potter

Steel_Wind said:


> FoundryVTt is an explicit licensee in that it sells Paizo Adv Paths to customers. (technically, Paizo sells the codes which can be redeemed on Foundry's server.) The PF2 system is community authored. It is also better code than 5e's - theDev team working on PF2 has more people working on it than Foundry does. Talented.community dev is hard AF to assemble, but hard to beat when it is. The PF2 devs are to  be commended.
> 
> I do not see any merit at all to the argument that Foundry is playing dirty pool with DDB. "Oh but you should have to buy it twice! "
> 
> Give it a rest.  If WotC cared, they would send a Cease and Desist. They have not.



They have not needed to, they were gathering info and were planning on this nuclear strike on the OGL and VTT in general.

I already said that I am a Hasbro shareholder much earlier in this thread, but that does not change my opinion of their current contemplated actions. 

I mainly use Fantasy Grounds but I have used Foundry and think it is quite good. Prefer it to Roll20. Happy all three exist and push each other.

I have posted about the danger of investing in a VTT that does not have a license for material that many users depend on well before this current issue.

If anything, Foundry is more pure in this than Roll20 or FG as they are not risking WoTC derived revenue as directly and are less likely to have been offered a sweetheart deal.

I am perfectly capable of both liking Foundry and seeing a potential IP issue with it. Surely as a lawyer you know that a C&D not being sent yet does not mean one is not coming. There were a bunch of quite good character builder spreadsheets on DMs Guild until WoTC started making money on D&D Beyond and then suddenly they were told to stop.


----------



## S'mon

Greg Benage said:


> Okay, I'm actually out here reading up on contracts, doctrine and practice, god help me, and from what I'm reading, the instance of acceptance by performance in 1.1 is rather different from your example, but I accept that this is likely the best answer y'all are going to give me.




It comes up a lot in reward cases. For some reason most of them seem to involve reward money posted for Australian murderers, and them being dobbed in it by their cellmate & fellow suspect ("exclusively to clear myself") or else their abused wife getting revenge on hubby*.  From what I recall, your motive doesn't matter, but you must have the (reward) offer in mind at the time you snitch on your husband/cellmate (ie, accept the offer through performance), or else you can't claim.

Edit: *I just googled, sadly turns out_ Williams v Carwardine_ was in England. _ R v Clarke _with the cellmate was in Oz, though.








						Williams v Carwardine - Wikipedia
					






					en.wikipedia.org
				











						R v Clarke - Wikipedia
					






					en.wikipedia.org


----------



## Prime_Evil

kjdavies said:


> Honestly, One D&D is only of interest to me -- I think to many of us -- because it led to this situation. I think the bigger concern for many, if not most, of us is what happens to other games that might or might not be based on other SRDs than SRD 5.1.
> 
> Otherwise, I think for One D&D/5e in general, you're probably right.



This is my position too. I have little interest in OneDnD, but have an interest in a number of independent games published under the OGL. This move potentially has implications far beyond the D&D / d20 / OSR ecosystem. This might be an honest oversight on the part of WotC, but the level of obfuscation in the licence makes me suspect it is a deliberate attempt to pee in the pool so nobody else can swim.


----------



## Enrahim2

_Deleted due to irrelevance with regard to larger topic_


----------



## S'mon

Enrahim2 said:


> I guess it is not quite this simple. If for instance if you press "OK" on the license notification on software installation, I guess you cannot claim "I did it despite accepting"?




The court will typically go by "Would a reasonable person think you had accepted", rather than attempting to enquire what was really in your heart.


----------



## Greg Benage

S'mon said:


> It comes up a lot in reward cases. For some reason most of them seem to involve reward money posted for Australian murderers, and them being dobbed in it by their cellmate & fellow suspect ("exclusively to clear myself") or else their abused wife getting revenge on hubby. From what I recall, your motive in doesn't matter, but you must have the (reward) offer in mind at the time you snitch on your husband/cellmate (ie, accept the offer through performance), or else you can't claim.



Yeah, I can kind of see that from what I'm reading. 



> § 50. Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise​(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
> 
> (2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
> 
> (3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.




It's not enough that I do the thing (e.g. fall asleep); I have to do the thing in a way that operates as a "return promise" for it to count as acceptance by performance.


----------



## Ulfgeir

S'mon said:


> The court will typically go by "Would a reasonable person think you had accepted", rather than attempting to enquire what was really in your heart.



Sadly it seems in too many cases that what laymen thinks are reasonable differs quite a lot from what lawyers think are reasonable.


----------



## Enrahim2

S'mon said:


> The court will typically go by "Would a reasonable person think you had accepted", rather than attempting to enquire what was really in your heart.



In that case I think the situation might be bad here. It seem like the basic offer is considered somewhat draconic, but not completely unreasonable. If Wizards actively contact you and ask you to agree or terminate, then you can't claim lack of knowledge. Hence continuing commercial use would appear to me as a sufficiently active act that similarly to the pressing OK button, it is hard to argue that I "had to do it", or similar ways of "tricking" a trigger.


----------



## S'mon

Steel_Wind said:


> Nice try. The arrogance is unwise though and fairly drips from the page if what you are quoting is a final draft.




_But they were all of them deceived, for another license was made. In the land of Seattle, in the fires of WotC-Hasbro, the Dark Lord Cynthia forged in secret, a master license, to control all others. And into this license she poured all her cruelty, her malice and her will to dominate all life._

(Not my joke - but it keeps getting more and more apposite!)


----------



## pemerton

Prime_Evil said:


> This seems analogous to the situation many non-DnD publishers are in. Let's say I wish to publish a sourcebook for the Cepheus Engine. This rule system is based on the Traveller SRD released by Mongoose Publishing under the OGL v1.0a. I am not using any intellectual property of WoTC with the exception of the licence itself. *The right to distribute copies of the license is explicitly granted by OGL v1.0a itself.* So what is my relationship to WoTC? Mongoose relied upon representations by WoTC that the OGL v1.0a was available for use by any publisher for any game system. The creator of the Cepheus Engine (Jason Kemp) relied upon the ongoing validity of the licence in turn. And I am relying upon the rights v1.0a conveys upon me to use material copyrighted by Jason Kemp. It's a mess. Which I suspect is the point. I believe WotC may be acting in bad faith to muddy the waters as much as possible.



Re your bolded sentence - only if you are in an agreement with WotC. Mongoose cannot license WotC's copyrighted licence text to you. In that case, you are relying on some other express or implicit permission granted by WotC to use their copyrighted licence text for your purposes.

Various posts upthread (including my own 479) have conjectured where such a permission might be found.

Re your underlined sentence - you are treating the OGL as if it's a statute. It's not. If you and Mongoose and Jason Kemp have entered into licensing agreements on the terms set out in the OGL then (subject to general principles that govern the validity of contracts) you have made valid contracts among yourselves. WotC has nothing to do with this, except that you and Mongoose and Jason Kemp have all promised one another to reproduce WotC's licensed text under certain conditions, so you may have trouble upholding your contractual promises if WotC is in fact able to insist that you not do that.

Hence, again, why you may wish to consider where any express or implicit permissions were granted.

But also pay attention to @Steel_Wind's point upthread: this may be purely academic. Is there any reason, at this stage, to think that WotC cares at all about the licensing agreements you, Mongoose and Jason Kemp have made among yourselves?


----------



## Prime_Evil

S'mon said:


> _But they were all of them deceived, for another license was made. In the land of Seattle, in the fires of WotC-Hasbro, the Dark Lord Cynthia forged in secret, a master license, to control all others. And into this license she poured all her cruelty, her malice and her will to dominate all life._
> 
> (Not my joke - but it keeps getting more and more apposite!)



I was amused by the person who commented "never let anyone named Williams anywhere near DnD".


----------



## Greg Benage

Enrahim2 said:


> In that case I think the situation might be bad here. It seem like the basic offer is considered somewhat draconic, but not completely unreasonable. If Wizards actively contact you and ask you to agree or terminate, then you can't claim lack of knowledge. Hence continuing commercial use would appear to me as a sufficiently active act that similarly to the pressing OK button, it is hard to argue that I "had to do it", or similar ways of "tricking" a trigger.



It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"


----------



## kenada

S'mon said:


> _But they were all of them deceived, for another license was made. In the land of Seattle, in the fires of WotC-Hasbro, the Dark Lord Cynthia forged in secret, a master license, to control all others. And into this license she poured all her cruelty, her malice and her will to dominate all life._
> 
> (Not my joke - but it keeps getting more and more apposite!)



Kind of gives new meaning to “One D&D”.


----------



## GMforPowergamers

S'mon said:


> I saw a US contract lawyer give the example of "I offer these shiny beads for £1 million. By going to sleep any time before December 31st, you accept my offer."



I think we should be intimate... blink for yes lick your elbows for no
Hey don't break your arm like that...


----------



## Tazawa

Just a short note.

OGL 1.0 is still an authorized version of the OGL. SRD v. 5.0 was released prior to 5.1 and theoretically could continue to be distributed under OGL 1.0.


----------



## Steel_Wind

Myrdin Potter said:


> They have not needed to, they were gathering info and were planning on this nuclear strike on the OGL and VTT in general.
> 
> I already said that I am a Hasbro shareholder much earlier in this thread, but that does not change my opinion of their current contemplated actions.
> 
> I mainly use Fantasy Grounds but I have used Foundry and think it is quite good. Prefer it to Roll20. Happy all three exist and push each other.
> 
> I have posted about the danger of investing in a VTT that does not have a license for material that many users depend on well before this current issue.
> 
> If anything, Foundry is more pure in this than Roll20 or FG as they are not risking WoTC derived revenue as directly and are less likely to have been offered a sweetheart deal.
> 
> I am perfectly capable of both liking Foundry and seeing a potential IP issue with it. Surely as a lawyer you know that a C&D not being sent yet does not mean one is not coming. There were a bunch of quite good character builder spreadsheets on DMs Guild until WoTC started making money on D&D Beyond and then suddenly they were told to stop.



It means that right now, WotC sees that it makes more -- far more -- per sale on DDB than it would as a royalty on a sale through Roll20 or FG. In other words, _it is in their financial interest to do nothing _and look the other way_. _


----------



## Enrahim2

Greg Benage said:


> It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"



On second thought, the offer is unreasonable given the current situation. As far as I can see the only thing they offer, that the offeree didn't already have the rights to was the creator badge - which might be hard to argue reasonably could be worth the amount of rights they would be giving away..


----------



## S'mon

Greg Benage said:


> It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"



These kind of Mafia tactics don't work in practice. You have to show the other side did voluntarily accept your offer, not that they 'did the thing', if 'the thing' is the kind of thing they'd normally do anyway!


----------



## Princessmaker

GMforPowergamers said:


> I think we should be intimate... blink for yes lick your elbows for no
> Hey don't break your arm like that...



Too bad, I can actually lick my elbow.


----------



## S'mon

Enrahim2 said:


> On second thought, the offer is unreasonable given the current situation. As far as I can see the only thing they offer, that the offeree didn't already have the rights to was the creator badge - which might be hard to argue reasonably could be worth the amount of rights they would be giving away..




Whether something is a bad bargain does not matter in Contract law. If you genuinely want to agree to buy my shiny beads for £1 million, you are free to do so.


----------



## pemerton

mamba said:


> by not listing any other way



(1) Failure to list X is not a clear statement that not X. Perhaps it implies not-X, but _implication_ and _clear statement_ are contrasting notions, not synonyms.

(2) You are making very simplistic assertions about legal interpretation. I don't think they're helpful. It may be that the better view is that section 13 states the only way that the OGL v 1.0/1.0a can be terminated; but that would be a conclusion reached by a process of interpretation. It is not clearly stated.

Ditto to @reelo.


----------



## bmcdaniel

Greg Benage said:


> Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.




It is difficult to give a hard doctrinal answer to this question. As a practical matter, the question does not come up frequently, so is not covered by the standard treatises or leading cases. I'd be surprised if there is not some caselaw on the subject, but precisely because it is a rare question, the caselaw will be obscure. This is what I meant when I remarked in my prior post that it is "likely that the doctrinal basis is under-theorized as a matter of law."

However (as @Steel_Wind would be sure to point out), no court is going to allow _anything_ to be acceptance by performance. For example, no court is going to enforce the agreement "You agree to give me $1 million. You accept this agreement by breathing" based on the claim that somebody accepted it by breathing. The fact that the doctrinal basis for this limitation is uncertain or under-specified does not mean that the limit does not exist. As @Steel_Wind has noted, contract law does not attempt to be comprehensive; it attempts to settle only those claims that are actually brought before the court.

(If you doubt this, I would encourage you to post the following offer and agreement on your website: "WOTC, pursuant to this agreement, you agree to permanently transfer to me all intellectual property related to D&D for $1. WOTC may accept this offer by using the word 'fantasy' in any communication.")

Furthermore, as a practical matter, the question is even less relevant than the above implies. Offer and acceptance are questions of fact that are analyzed by a court to determine if there was the mutual assent necessary to form an agreement. In court, vague and ambiguous facts are analyzed afterwards to determine whether there was mutual assent by virtue of acceptance of an offer. However, on a prospective basis, it is relatively easy for a person to create facts showing that the person does not accept the offer, even if their activities would otherwise suggest they do accept, e.g. by putting the offeror on notice that the offer is not accepted.    
----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.


----------



## Greg Benage

Enrahim2 said:


> On second thought, the offer is unreasonable given the current situation. As far as I can see the only thing they offer, that the offeree didn't already have the rights to was the creator badge - which might be hard to argue reasonably could be worth the amount of rights they would be giving away..



I think that's a separate issue. You can accept an "unreasonable" offer. The question here is whether it's reasonable that your performance of the action operated as an acceptance of the offer.

But this has gotten way outside my area of expertise, even as a proud dropout from the University of Texas School of Law. I'm going to accept that the lawyers still think it's weak and thank my lucky stars I don't have a dog in the hunt.


----------



## pemerton

estar said:


> Then just like I asked about irrevocable, if a license has a termination clause like the one in the OGL, what are the key common law cases that decided that a licensor  can terminate a license arbitrarily by means other than the termination clause.



This was discussed extensively upthread, including in some posts that replied to you. You are looking for mechanical or "off the shelf" answers that are not available.

Here is a link to one of my posts discussing this; @mamba and @reelo may also find it interesting: Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.


----------



## Enrahim2

S'mon said:


> These kind of Mafia tactics don't work in practice. You have to show the other side did voluntarily accept your offer, not that they 'did the thing', if 'the thing' is the kind of thing they'd normally do anyway!



Yes, make sense. Or maybe more to the point that very clearly distinguishes it from the clicking OK - case: This would be performing an action you are legally allowed to do, and would be highly "inconvenient" to not do.


----------



## estar

pemerton said:


> You may also have a legal relationship with WotC, if your work contains material that would infringe WotC's copyrights except for the fact that Matt Finch sub-licensed to you under the OGL v 1.0/1.0a.
> 
> That's a feature, not a bug, of the v 1.0/10.a ecology: it creates an intricate network of legal relationships (powers and permissions) that underpin it.



Except it wasn't Wizards who transferred me the rights but rather Matt. I get that it is their copyrighted material. Matt had perpetual permission to use and sublicense that content.  Wizard revokes the OGL 1.0a for their content and terminates the license. That means Section 13 comes into play. Matt loses the right at the very least to make any new content based on the formerly open content of Wizards. 

However, in accordance with Section 13 it doesn't terminate the sublicense that I gained from Matt. I received the right to use Wizard content from Matt. Which Matt can revoke if Wizard's theory is upheld. But in accordance with section 13, Matt sublicense is still alive.

Look I get what you said earlier and I thought we all agree that the issue of sublicensing is unsettled.  I can how your interpretation can hold. But there is that pesky independent sentence in Section 13 mucking it up.

Furthermore , while hairs are being split.  It occurred to me that if you look at Section 9.



> 9. Updating the License: Wizards or its designated Agents may publish updated versions of this License. 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.




It is in two parts
Part 1
Wizards or its designated Agents may publish updated versions of this License.

Part 2
 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.

They are not dependent clauses according to the rules of grammar.

So the argument can be made that at one time Matt was authorized to grant me the right to use not only his original content but Wizard's content as well. While Wizards can withdraw their own authorization they can not withdraw Matt's authorization.

In addition, the OGL says this about the term distribute. 



> (c) "Distribute" means to reproduce, *license*, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute;



So to me, the plain meaning of this means that anytime I read distribute, I can consider it to encapsulate licensing as well. Since Matt Finch was authorized by Wizard to grant a sublicense to their content in 2009. That if Wizard's theory is upheld, only Matt can deauthorize that license grant to myself. As Matt's license to me exists independently of Wizard's license to Matt.

Again I get this is all wrapped up in ambiguity and the law is not really equipped to deal with altruistic licenses like the OGL. That this interpretation like any other would have to fought out in the courts at great expense.


----------



## pemerton

Prime_Evil said:


> This is probably a correct reading, but I feel WoTC go out of their way to obfuscate this fact.



Yes. I think this point has been well-made.

But I also think this thread is more helpful if attempts to reduce the obfuscation, rather than replicate it and disseminate it further.


----------



## S'mon

bmcdaniel said:


> It is difficult to give a hard doctrinal answer to this question. As a practical matter, the question does not come up frequently




Just trying to think of somewhere it does come up - the rules on Inertia Selling (now illegal to consumers in EU & UK). If you post unsolicited goods to my house, you cannot specify that my failure to post the goods back to you constitutes my acceptance of an offer to sell me the goods.


----------



## pemerton

Prime_Evil said:


> My only concern with the interpretation the licence operates on an opt-in basis is the mention of pantomimes in the covered works. Could this be construed to include private games? In other words, is there a chance that using OGL v1.1 materials in a game could equal acceptance by performance? Maybe I'm just being paranoid here.



The commentary says that pantomimes are _excluded_ from covered works. In other words, if you perform an copyright- or trademark-infringing pantomime, you cannot defend yourself against WotC's claim of infringement by asserting that you had become a party to the OGL v 1.1.

As far as the use of materials in gameplay is concerned, if you're really worried make sure you use non-licensable content like WotC's published rulebooks.


----------



## Prime_Evil

pemerton said:


> Re your bolded sentence - only if you are in an agreement with WotC. Mongoose cannot license WotC's copyrighted licence text to you. In that case, you are relying on some other express or implicit permission granted by WotC to use their copyrighted licence text for your purposes.



Don't sections 2 and 8 of the OGL v1.0a convey a right to reproduce the text of the licence when using the licence? It would have been impossible for anyone to comply with the terms of that licence if that were not the case.


----------



## pemerton

David Spake said:


> Besides, if the various parties feels it's unfair, then all they need to do is bring a case against WoTC to prove .... .



This probably isn't right, which is why I'm replying to it.

If a 3PP who is currently a party to a licence agreement with WotC in terms of the OGL v 1.0a wants to continue to rely on their contractual rights, they don't need to bring a case against WotC to prove anything. All they have to do is keep publishing.

If WotC commences action against them for copyright infringement, then that party would plead their contract in defence. As has been discussed upthread, that may be expensive - even prohibitively so.

On the other hand, if WotC does not commence - eg because it recognises that it would lose on the merits and doesn't want to open up the door to that possibility - the publisher can just keep publishing.

To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.


----------



## Garthanos

"I have not been able to find any games mechanics cases on RPGs." --> I remember hearing about TSR making rpg patent attempt cases that failed... this should not be so hard to find.  IIRC -> The mechanics were however duplicable in many prior other games and dice used for war games simulating combat were prior art from Ancient Greece or Rome.


----------



## Prime_Evil

pemerton said:


> Yes. I think this point has been well-made.
> 
> But I also think this thread is more helpful if attempts to reduce the obfuscation, rather than replicate it and disseminate it further.



Agreed. This thread is very interesting apart from the implications for the RPG industry.


----------



## bmcdaniel

S'mon said:


> Just trying to think of somewhere it does come up - the rules on Inertia Selling (now illegal to consumers in EU & UK). If you post unsolicited goods to my house, you cannot specify that my failure to post the goods back to you constitutes my acceptance of an offer to sell me the goods.




Concur. Silence/inaction is a fact pattern that comes up frequently enough that there is both caselaw and statutory enactments that address it. Under the common law of contracts silence or failure to act usually cannot be grounds for acceptance of an offer. E.g. "Failure to respond to this communication by December 31 constitutes acceptance" will generally not work. However, there are some cases to the contrary that allow acceptance to be implied from inaction, particularly if there is a history of dealings between the parties. Furthermore there are some areas of law that indicate silence may be acceptance. For example, under the Uniform Commercial Code (i.e. the law that governs relationships between commercial merchants that deal in goods), acceptance may sometimes be inferred from silence.

In any event, it all goes to show that acceptance of an offer may be a highly fact-contingent analysis. But often it is not, e.g. a signed written agreement or an express rejection of an offer leaves little room for other facts.

----------------------------------
To repeat myself: There are exceptions to everything, including things I've said above. If you want to know all the complexity and nuance, don't look in a forum post. Moreover, even if the advice correctly applies to your situation, there may be consequences that apply to you that are not explored. The fact that I don't know what exceptions, complexity, nuance and consequences are applicable to your specific situation is one reason (among many) that this is not legal advice. So, I'll say what you hear so many lawyers say. This is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation and you have entered into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.


----------



## pemerton

Prime_Evil said:


> Don't sections 2 and 8 of the OGL v1.0a convey a right to reproduce the text of the licence when using the licence? It would have been impossible for anyone to comply with the terms of that licence if that were not the case.



You are trying to read it as a statute! (I know that's becoming my mantra. But it really is a barrier to understanding the legal situation when people do this.)

The OGL v 1.0/1.0a, as a bit of text posted by WotC and Ryan Dancey on various websites, has no legal effect. WotC is not a legislator, and cannot create general legal obligations nor confer general legal permissions.

WotC, as a private party (just like the rest of us), can enter into private law agreements that impose contractual (and other private law) obligations and confer contractual (and other private law) permissions.

So when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.

But now, if you choose to enter into an agreement with Mongoose and Jason Kemp, whose terms are those of the OGL, you do not gain any express permission from WotC to use their copyrighted text setting out those terms. Your contract with those other parties does not bind WotC. You will need to find some other basis for arguing that WotC has nevertheless permitted you to use their copyrighted text. I've made some suggestions upthread as to what that basis might be.


----------



## Steel_Wind

S'mon said:


> The court will typically go by "Would a reasonable person think you had accepted", rather than attempting to enquire what was really in your heart.



So-called software wrapper agreements are the subject matter of legislation in many jurisdictions (especially in the USA). For consumers, to purchase the software which indicates on the box (or the webpage) that it is subject to a license agreement -- you are essentially caught by a contract you never read or had the chance to read. Otherwise, if you decline, you can return the software for a full refund.

If it sounds like flim-flammery when it comes to contract formation that's largely because it is.


----------



## pemerton

Prime_Evil said:


> The assertion that the OGL v1.0a is no longer an authorised licence is made several times. But it is unclear whether this is dependent on the "you agree to the terms of this agreement" in the preamble. I suspect it does, but they are trying to give the impression it doesn't.
> 
> Their claim seems to be that performance under the OGL v.1.0a also indicates acceptance of the terms of the OGL v1.1, at least for material derived from v5.1 of the SRD. I have no idea whether you can claim that exercising your rights under an existing contract indicates acceptance of the terms of a second contract which supersedes the first one.





Greg Benage said:


> But Licensed Content is defined as content in SRD 5.1. So anyone who commercially published content in SRD 5.1 (i.e. Licensed Content), has agreed to the terms of OGL 1.1. Right?





Greg Benage said:


> It does seem to me that sending these packets directly to the publisher wasn't just a matter of convenience for them. "We told them exactly what action would trigger acceptance, they knew it, they did the thing, and now they want to claim they weren't accepting the offer?"





Greg Benage said:


> Okay, whichever one of you is a lawyer, please explain why this doesn’t qualify as acceptance by performance under U.S. contract law.



There have been good replies about this from @S'mon and @bmcdaniel.

Some additional thoughts:

Consider an existing party, X, who has an existing licence agreement with WotC on the terms set out in the OGL v 1.0a. Under that agreement, X has permissions to reproduce OGC found in the SRD.

Now WotC have promulgated a new instrument - OGL v 1.1 - which says (more or less) that by reproducing anything in the SRD you are agreeing to be bound by this new instrument.

From the point of view of X, WotC is attempting to vary the terms of their existing licence agreement. And is, in effect, purporting to say that X's continued exercise of their rights under the existing agreement constitutes an acceptance of the variation of terms.

It seems to me, therefore, that it should be sufficient for X to protect their current position that they make plain to WotC that they don't accept that variation - eg by sending a polite note stating that they intend to continue exercising their rights under the OGL v 1.0/1.0a and not do accept the offer to vary the terms of the agreement to those set out in OGL v 1.1.

WotC does not seem to me to have any power to _unilaterally_ vary the terms of its existing licence agreement with X.

(A somewhat parallel case: I recently took delivery of a household appliance I had purchased. Affixed to the appliance was a note saying that if I didn't complain within 48 hours, I accepted that the delivered appliance was in satisfactory condition. Before the 48 hours had expired I sent an email to the vendor telling them that I had read their note, that I was not going to have my professional installer doing the job within 48 hours, that I was not able myself to ascertain the condition of the appliance, and that despite their note I reserved all my rights.)


----------



## Prime_Evil

pemerton said:


> (A somewhat parallel case: I recently took delivery of a household appliance I had purchased. Affixed to the appliance was a note saying that if I didn't complain within 48 hours, I accepted that the delivered appliance was in satisfactory condition. Before the 48 hours had expired I sent an email to the vendor telling them that I had read their note, that I was not going to have my professional installer doing the job within 48 hours, that I was not able myself to ascertain the condition of the appliance, and that despite their note I reserved all my rights.)



I bet you confused the heck out of somebody in the company with that note!


----------



## pemerton

Prime_Evil said:


> I bet you confused the heck out of somebody in the company with that note!



I don't even know if a reply came back (the email actually went from my partner's account, and I haven't asked her).

For me, the purpose is simple: if, when the plumber is finally available, there does turn out to be a problem then when we get into an argument with the vendor or even end up in a consumer tribunal I will be able to adduce my email in response to their purported reliance on their note.

Obviously I very much hope it won't come to that even if there is a problem! But a few minutes to send an email seemed a reasonable step in the context of a fairly expensive appliance.


----------



## Mistwell

Bohandas said:


> I've said it before and I'll say it again: Intellectual property law should be abolished



I am sure this was dealt with by others, earlier, so never mind


----------



## Mistwell

Never mind


----------



## Bohandas

@Mistwell The publisher goes out of business in my scenario; without copyright law nobody would ever pay money for a book or movie again (outside of crowdfunding or very rarely donations to the author after the fact if they really really liked it)


----------



## Mistwell

Bohandas said:


> @Mistwell The publisher goes out of business in my scenario; without copyright law nobody would ever pay money for a book or movie again (outside of crowdfunding or very rarely donations to the author after the fact if they really really liked it)



Then nobody would create entertainment. What a horrible world you envision.


----------



## Bohandas

hobbyists would create entertainment


----------



## Clint_L

Bohandas said:


> @Mistwell The publisher goes out of business in my scenario; without copyright law nobody would ever pay money for a book or movie again (outside of crowdfunding or very rarely donations to the author after the fact if they really really liked it)



Everybody goes out of business in your scenario. Can we keep the conversation focused on the real world that exists? Maybe stop trying to hijack this thread with anarchist fantasy land?


----------



## Mistwell

Bohandas said:


> hobbyists would create entertainment



Yes, which means no more professional quality movies or television shows again. No more professional novels. No more professional comic books. No more professional games. So many forms of entertainment would simply go away. What a horrible world you envision, where the "cure" is far worse than the "disease."


----------



## Clint_L

Mistwell said:


> Yes, which means no more professional quality movies or television shows again. No more professional novels. No more professional comic books. No more professional games. So many forms of entertainment would simply go away. What a horrible world you envision, where the "cure" is far worse than the "disease."



We could start another thread about this. Call it "should games only be made by hobbyists?" Let's leave this thread to the lawyers - I feel like I am learning stuff from it.


----------



## Remathilis

Mistwell said:


> Then nobody would create entertainment. What a horrible world you envision.



A brief thought experiment.

You're a DM. You run a game for friends. I will assume you also don't run your game using only adventure paths or modules, you make your own adventure scenarios. Maybe your own campaign. You run a game people find entertaining, and you charge your players fair market value for your entertainment and they gladly pay you for it!

No? 

You do it for... Free? Why? Isn't your labor worth it? Isn't the time you invest in making your own material worth as much as any writer?!

Maybe it's because you derive income from another source so that your labor as a dungeon master isn't worth monetization. Perhaps if more people were free of the shackles of worrying about food and shelter, they could make art and entertainment for non-monetary reasons. Artists would paint, directors would make movies, writers would write and they could do it for expression, not material gain.

Maybe such a world doesn't have someone who can make Avenger's Endgame, but ask yourself if that's really all that bad? It also doesn't have someone who can destroy an entire swath of game designers in one bad 9000 page legal document. 

Anyway it's beyond the scope of this thread. I just want to point out that art and entertainment does not need a profit motive to be made, and the abolishment of such profit motive would not necessarily be the end of art.


----------



## Greg Benage

Bohandas said:


> hobbyists would create entertainment




I mean, there’s a share-alike license for creators who don’t want to get paid.


----------



## Prime_Evil

pemerton said:


> when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.



Every use of the OGL v1.0a contains a Section 15 copyright notice. And the first entry must be "Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc." Does this imply every use of the OGL is a licensing agreement with WotC? Does this mean it is part of a valid chain of sub-licenses, thereby ensuring authorisation to reproduce the OGL? 

I realise I may be misinterpreting this. It is far outside of my area of expertise...


----------



## Myrdin Potter

Steel_Wind said:


> It means that right now, WotC sees that it makes more -- far more -- per sale on DDB than it would as a royalty on a sale through Roll20 or FG. In other words, _it is in their financial interest to do nothing _and look the other way_. _



So Foundry is depending on another to decide it is not worth their while to change the "deal". Kind of like everyone using 1.0a.

They do not make a royalty, btw. They sell their books. Yes, digital, yada yada, but they sell the book for the same price on D&D Beyond via FG and Roll20. Considering what Amazon prices hardcovers which they have to make a physical copy of, they probably do quite well on the digital sales. 

For Foundry, the material is scraped from a previous sale and used.

BTW - FG used to have the same 3rd party type tool for 4e. Probably still exists. This is not a virtue contest.

When I started using VTT only FG had the license which reduced my time to prepare to the least out of the other options. Foundry was not even there. Out of all the newer VTT, I like Foundry the most.


----------



## David Spake

pemerton said:


> This probably isn't right, which is why I'm replying to it.
> 
> If a 3PP who is currently a party to a licence agreement with WotC in terms of the OGL v 1.0a wants to continue to rely on their contractual rights, they don't need to bring a case against WotC to prove anything. All they have to do is keep publishing.
> 
> If WotC commences action against them for copyright infringement, then that party would plead their contract in defence. As has been discussed upthread, that may be expensive - even prohibitively so.
> 
> On the other hand, if WotC does not commence - eg because it recognises that it would lose on the merits and doesn't want to open up the door to that possibility - the publisher can just keep publishing.
> 
> To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.



Thank you for the clarification, and it's a shame that I stated my point so badly that you needed to correct it. Honestly, the closest I come to legal issues is when daughter and wife watch "All Rise".

I was attempting (poorly it seems) to posit that WoTC could take the course of action hinted at by post #214, now that the we may have some understanding of WoTC's audacious scope.

For clarifications sake, lets suppose I had some adventure that was published under the OGL 1.0a, and I sold that product through a storefront (fictionally) called RFS. The aim of my post was to suggest that WoTC could simply take the matter of the 'unlicensed material' to the owners of the 'RFS' storefront, and tell them to remove it (based on WoTC's interpretation of the OGL 1.1 language). Now one could assume that the RFS would have/seek legal advice. However wouldn't that put RFS's legal representatives in the position of having to ascertain a bunch of legal issues regarding OGL 1.0a material? I just can't see some site that sells PDFs having the where-with-all, much less the funding to do something like that. However I could *very well* see them saying that it's an unsettled legal matter between WoTC and myself, and until it's settled, they can't do anything about it. Thus WoTC is able to assert the claim, but not directly to me, but in such a way that I'd be forced to have to contact them.

Now, Steel_Wind suggested (in post #213) this kind of behavior might invoke class-action lawsuits, so maybe I just misinterpreted the threat of that kind of action.  Or it could be that WoTC is saying damn the torpedoes, lets settle this once and for all; Class Action lawsuits be damned.

Lastly, we can't discount the possibility that it could simply be in the RFS commercial interest to agree to a WoTC's offer that was in their best interest, but stipulated that sale of 1.0a material would not be allowed. But I assume that's a different matter than the one I outlined above.


----------



## estar

Here is a link to the text of the license everybody talking about. It is badly formatted because the originals apparently can be traced back to individual NDAs. So this is basically a cut and paste job.



			http://ogl.battlezoo.com/


----------



## pemerton

Prime_Evil said:


> Every use of the OGL v1.0a contains a Section 15 copyright notice. And the first entry must be "Open Game License v 1.0a Copyright 2000, Wizards of the Coast, Inc." Does this imply every use of the OGL is a licensing agreement with WotC?



My view is no. I really am sorry to harp, and I hope I'm not coming across as rude, but your use of "must" is another example of treating the licence as a statute.

The actual force of that "must" is that it is a requirement imposed by a contract. And in your case, the contract is between you, Mongoose and Jason Kemp. Each of the three of you has agreed that, under the appropriate conditions, you can copy one another's work provided that you include a statement of the terms of your agreement, including a notice that WotC owns the copyright in that text.

This does not mean that you have entered a licence agreement with WotC.

You and I could enter into a contract where you promise to send me an exact duplicate (say, a photocopy) of your copy of Mongoose Traveller. And I promise to send you an exact duplicate of my copy of Prince Valiant. Each of the documents we've promised to send one another would include a copyright notice. But that wouldn't make use licensees of the publishers of those rulebooks. It would just make us copyright infringers!

Hence why I offered some possible pathways to argue that, in your case, you are not infringing WotC's copyright because you enjoy some sort of permission from them.


----------



## Mistwell

Remathilis said:


> A brief thought experiment.
> 
> You're a DM. You run a game for friends. I will assume you also don't run your game using only adventure paths or modules, you make your own adventure scenarios. Maybe your own campaign. You run a game people find entertaining, and you charge your players fair market value for your entertainment and they gladly pay you for it!
> 
> No?
> 
> You do it for... Free? Why? Isn't your labor worth it? Isn't the time you invest in making your own material worth as much as any writer?!
> 
> Maybe it's because you derive income from another source so that your labor as a dungeon master isn't worth monetization. Perhaps if more people were free of the shackles of worrying about food and shelter, they could make art and entertainment for non-monetary reasons. Artists would paint, directors would make movies, writers would write and they could do it for expression, not material gain.
> 
> Maybe such a world doesn't have someone who can make Avenger's Endgame, but ask yourself if that's really all that bad? It also doesn't have someone who can destroy an entire swath of game designers in one bad 9000 page legal document.
> 
> Anyway it's beyond the scope of this thread. I just want to point out that art and entertainment does not need a profit motive to be made, and the abolishment of such profit motive would not necessarily be the end of art.



Even inexpensive movies and television shows are horribly expensive. Books can take take years and even decades to write full time. D&D is so popular BECAUSE it can be done using pen and paper, or free online services. 

Even in the Soviet Union, artists and entertainers directly were paid for their work, and nobody could just steal their works. 

Yes, such a world would be terrible.


----------



## pemerton

David Spake said:


> Thank you for the clarification, and it's a shame that I stated my point so badly that you needed to correct it. Honestly, the closest I come to legal issues is when daughter and wife watch "All Rise".
> 
> I was attempting (poorly it seems) to posit that WoTC could take the course of action hinted at by post #214, now that the we may have some understanding of WoTC's audacious scope.
> 
> For clarifications sake, lets suppose I had some adventure that was published under the OGL 1.0a, and I sold that product through a storefront (fictionally) called RFS. The aim of my post was to suggest that WoTC could simply take the matter of the 'unlicensed material' to the owners of the 'RFS' storefront, and tell them to remove it (based on WoTC's interpretation of the OGL 1.1 language). Now one could assume that the RFS would have/seek legal advice. However wouldn't that put RFS's legal representatives in the position of having to ascertain a bunch of legal issues regarding OGL 1.0a material? I just can't see some site that sells PDFs having the where-with-all, much less the funding to do something like that. However I could *very well* see them saying that it's an unsettled legal matter between WoTC and myself, and until it's settled, they can't do anything about it. Thus WoTC is able to assert the claim, but not directly to me, but in such a way that I'd be forced to have to contact them.
> 
> Now, Steel_Wind suggested (in post #213) this kind of behavior might invoke class-action lawsuits, so maybe I just misinterpreted the threat of that kind of action.  Or it could be that WoTC is saying damn the torpedoes, lets settle this once and for all; Class Action lawsuits be damned.
> 
> Lastly, we can't discount the possibility that it could simply be in the RFS commercial interest to agree to a WoTC's offer that was in their best interest, but stipulated that sale of 1.0a material would not be allowed. But I assume that's a different matter than the one I outlined above.



I agree that if 3PPs are dependent on third party facilitators who are themselves liable to receiving threats of litigation from WotC, that complicates things.


----------



## Mistwell

estar said:


> Here is a link to the text of the license everybody talking about. It is badly formatted because the originals apparently can be traced back to individual NDAs. So this is basically a cut and paste job.
> 
> 
> 
> http://ogl.battlezoo.com/



It's really, truly NOT the text of the license. That is the summary text in non-legal language which WOTC sent people to "help them" understand what the actual license says (which is a terrible idea by the way - from a legal perspective). It came with links to the actual text, which have been removed because those links could be traced. This is, most assuredly, not the text of the actual license.


----------



## pemerton

estar said:


> Except it wasn't Wizards who transferred me the rights but rather Matt. I get that it is their copyrighted material. Matt had perpetual permission to use and sublicense that content.  Wizard revokes the OGL 1.0a for their content and terminates the license. That means Section 13 comes into play. Matt loses the right at the very least to make any new content based on the formerly open content of Wizards.
> 
> However, in accordance with Section 13 it doesn't terminate the sublicense that I gained from Matt. I received the right to use Wizard content from Matt. Which Matt can revoke if Wizard's theory is upheld. But in accordance with section 13, Matt sublicense is still alive.



This makes no sense to me. If WotC has the power to unilaterally end their licence to Matt, they have the same right against you.

To put it another way: I can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable. Whatever basis - in this hypothetical - that WotC are relying on vis-a-vis Matt would apply equally to you (as per the OP, it would be some sort of claim to rescind the agreements on which WotC had licensed its IP to OGL parties).



estar said:


> Look I get what you said earlier and I thought we all agree that the issue of sublicensing is unsettled.  I can how your interpretation can hold. But there is that pesky independent sentence in Section 13 mucking it up.



For the reasons I've just given I don't agree. To put it yet another way: any argument that established that section 13 is so robust that it protects your rights in the scenario you describe, would (as best I can intuit) also be an argument that WotC has no power to unilaterally terminate its agreement with Matt.



estar said:


> It occurred to me that if you look at Section 9.
> 
> It is in two parts
> Part 1
> Wizards or its designated Agents may publish updated versions of this License.
> 
> Part 2
> 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.
> 
> They are not dependent clauses according to the rules of grammar.
> 
> So the argument can be made that at one time Matt was authorized to grant me the right to use not only his original content but Wizard's content as well. While Wizards can withdraw their own authorization they can not withdraw Matt's authorization.



"Authorized version of this License", as that phrase appears in what you have labelled Part 2, means "version of this Licence published by WotC or one of its designated agents". Matt is not a designated agent of WotC and is not doing any authorising within the scope of section 9.



estar said:


> the plain meaning of this means that anytime I read distribute, I can consider it to encapsulate licensing as well. Since Matt Finch was authorized by Wizard to grant a sublicense to their content in 2009. That if Wizard's theory is upheld, only Matt can deauthorize that license grant to myself. As Matt's license to me exists independently of Wizard's license to Matt.
> 
> Again I get this is all wrapped up in ambiguity and the law is not really equipped to deal with altruistic licenses like the OGL.



In my view there is no real ambiguity in the sections of the OGL you are pointing to. Nor in my view is the OGL an altruistic licence - it's a copyright licensing agreement which is amenable to interpretation and operation like any other contract.

When Matt entered into his licensing agreement with WotC on the terms set out in the OGL, they conferred on him a power to sub-license their OGC. Section 9 does not create this power, and says nothing about it other than that, in exercising his power, Matt can choose from any of the variant licences that WotC has promulgated for that purpose. The power is conferred on Matt by section 4, read in light of the definitions found in section 1.


----------



## Steel_Wind

Mistwell said:


> It's really, truly NOT the text of the license. That is the summary text in non-legal language which WOTC sent people to "help them" understand what the actual license says (which is a terrible idea by the way - from a legal perspective). It came with links to the actual text, which have been removed because those links could be traced. This is, most assuredly, not the text of the actual license.



Correct. A few things flow from this:

The so-called OGL 1.1 likely varied in accordance with to whom it was presented. It was specifically tailored for the audience it was delivered to. As it went out under NDA, the recipients weren't supposed to be able to figure out which version they got -- while WotC could figure out who leaked what.

If that is sounding like NOT an "open" license but a "closed" license, that is not some accident of your perception. The so-called "OGL" 1.1, isn't "Open" at all.

It also suggests that WotC is well aware that this is going to cause a $hit-storm, to be blunt, and so they left themselves room to stick-handle and back-track.

After reading this, I was struck by what somebody might do in 2024 when WotC begins publishing OneD&D and stops publishing 5e (if they do; they might not stop right away).

My first instinct? Pull a Paizo with Pathfinder 1 all over again. Treat the so-called OGL 1.1 as the GSL. Publish a 5e based on the 5.1 SRD, make it all explicitly under the OGL 1.0a, and watch every third party and VTT rush to support your product of the One True Game in your FLGS and Kickstarter, while 6e dies in a fire 3-4 years later as Hasbro insists all is well and that 6e outsold 5e. _nods_

To do this, you'd need some money. Which means Paizo, really. Would Lisa Stevens dare to do it again?

_Maybe_? I guess we will find out.


----------



## Umbran

pemerton said:


> I think your second sentence may not be write. What if that person (X) is currently in a 1.0/1.0a licence agreement with Y, and Y becomes a party to v 1.1? Y appears now to have inconsistent contractual obligations - they have promised WotC to renounce 1.0/1.0a, but have promised X to honour it.




If your license obligations are inconsistent, that means you have violated one or the other, and lose the rights provided by the one you've violated.

So, say I have a D&D 5e ogl supplement I've created, and a Mutants and Masterminds supplement.  If I decide to make a OneD&D supplement under v1.1...  if Green Ronin doesn't also go v1.1, maybe I lose the right to sell/publish that M&M supplement.


----------



## Blue

mhd said:


> Business side? Well…
> "Until the legal differences between our partner WotC and 3PP Inc. are settled, we at One Book Shelf decided to stop selling 3PP products. Of course you can still download them from your library if previously purchased and I hope this isn't misconstrued as censorship…"



If this was done on a leak that isn't yet official, or based on official information that isn't yet active (Jan 23rd), then this is absolutely actring in bad faith to every 3PP hosted there.

If this is done on request of WotC/Hasbro, then it's also a bully move showing intent to use push 3PP.


----------



## Cadence

Mistwell said:


> It's really, truly NOT the text of the license. That is the summary text in non-legal language which WOTC sent people to "help them" understand what the actual license says (which is a terrible idea by the way - from a legal perspective). It came with links to the actual text, which have been removed because those links could be traced. This is, most assuredly, not the text of the actual license.




If one cut out the intro and removed the comments... what makes the rest not look like an actual license?

Otherwise I wasn't sure how to read "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with." and the rest of that paragraph.

Thanks for any professional insight!


----------



## overgeeked

Blue said:


> If this was done on a leak that isn't yet official, or based on official information that isn't yet active (Jan 23rd), then this is absolutely actring in bad faith to every 3PP hosted there.
> 
> If this is done on request of WotC/Hasbro, then it's also a bully move showing intent to use push 3PP.



It’s not a thing that happened. It’s a hypothetical.


----------



## Myrdin Potter

Steel_Wind said:


> Correct. A few things flow from this:
> 
> The so-called OGL 1.1 likely varied in accordance with to whom it was presented. It was specifically tailored for the audience it was delivered to. As it went out under NDA, the recipients weren't supposed to be able to figure out which version they got -- while WotC could figure out who leaked what.
> 
> If that is sounding like NOT an "open" license but a "closed" license, that is not some accident of your perception. The so-called "OGL" 1.1, isn't "Open" at all.
> 
> It also suggests that WotC is well aware that this is going to cause a $hit-storm, to be blunt, and so they left themselves room to stick-handle and back-track.
> 
> After reading this, I was struck by what somebody might do in 2024 when WotC begins publishing OneD&D and stops publishing 5e (if they do; they might not stop right away).
> 
> My first instinct? Pull a Paizo with Pathfinder 1 all over again. Treat the so-called OGL 1.1 as the GSL. Publish a 5e based on the 5.1 SRD, make it all explicitly under the OGL 1.0a, and watch every third party and VTT rush to support your product of the One True Game in your FLGS and Kickstarter, while 6e dies in a fire 3-4 years later as Hasbro insists all is well and that 6e outsold 5e. _nods_
> 
> To do this, you'd need some money. Which means Paizo, really. Would Lisa Stevens dare to do it again?
> 
> _Maybe_? I guess we will find out.



Enworld has already put out a pretty solid “5e” very recently.


----------



## Myrdin Potter

Thanlis said:


> The CC licenses are explicitly irrevocable as of at least version 4 (see section 2.a.1 of the CC-BY license, for example). So is the GPL 3.
> 
> I don’t have an informed opinion on the legal debate but I have always wished Dancey and/or the lawyers involved were better at this. It’s also just good to have a funded non-profit defending and updating the licenses or you wind up with problems like this.



At the time the OGL was made, it seemed solid enough and WoTC made it clear that the intent was what people were imagining it was.


----------



## Catolias

Steel_Wind said:


> Correct. A few things flow from this:
> 
> The so-called OGL 1.1 likely varied in accordance with to whom it was presented. It was specifically tailored for the audience it was delivered to. As it went out under NDA, the recipients weren't supposed to be able to figure out which version they got -- while WotC could figure out who leaked what.



Sounds like sensible (and normal) business practice. WoTC would then be able to know who is going to be difficult or easier (not easy ) to deal with.


Steel_Wind said:


> After reading this, I was struck by what somebody might do in 2024 when WotC begins publishing OneD&D and stops publishing 5e (if they do; they might not stop right away).
> 
> My first instinct? Pull a Paizo with Pathfinder 1 all over again. Treat the so-called OGL 1.1 as the GSL. Publish a 5e based on the 5.1 SRD, make it all explicitly under the OGL 1.0a, and watch every third party and VTT rush to support your product of the One True Game in your FLGS and Kickstarter, while 6e dies in a fire 3-4 years later as Hasbro insists all is well and that 6e outsold 5e. _nods_
> 
> To do this, you'd need some money. Which means Paizo, really. Would Lisa Stevens dare to do it again?
> 
> _Maybe_? I guess we will find out.



WoTC public statements that there will be no editions going forward—there’s just the OneD&D to rule them (and bind them in the dark)—makes sense in this context: it’s intended to avoid a repeat of what happened to 3.x when 4e arrived.

Initially I wondered why paizo spent time coverting one of its APs into a 5e adventure. I thought it was a lack of confidence in pf2e but maybe it was testing the ground to get an early launch in staking a claim to “support 5e”. Again, though, speculation, speculation, speculation!

I wonder whether paizo or other companies might seek to create separate businesses for each OGL version in order to limit any claims WoTC might make. This might be premature without knowing the exact details of the OGL.


----------



## Steel_Wind

Myrdin Potter said:


> Enworld has already put out a pretty solid “5e” very recently.



A5e? Yes, of course. Difference is, it takes a large print run and distribution deals to get it on FLGS shelves and otherwise in the marketplace - supported by Adv Paths and all the bells, whistles and accessories. It's quite an undertaking to do that. It's something you work up to. It's really HARD to start there.

I'm not knocking the content - I'm just saying that the deep pockets necessary to make a go of it as a commercial replacement requires more $, staff, and contacts.


----------



## Steel_Wind

Catolias said:


> Initially I wondered why paizo spent time coverting one of its APs into a 5e adventure. I thought it was a lack of confidence in pf2e but maybe it was testing the ground to get an early launch in staking a claim to “support 5e”. Again, though, speculation, speculation, speculation!



Paizo did it twice: with _Abomination Vaults 5e_ as well as with _Kingmaker 5e._

The main reason they did it is because there are a lot of new gamers in the hobby who have no experience with Paizo, its products, or the production values of its products. They wanted to show those potential new customers that there is another company that puts out high quality adventure products, _maybe even better_ adventure products than WotC creates.

It's not a shocker. _Kingmaker_ was their best selling AP from the PF1 era, and _Abomination Vaults_ is the best selling AP from the new PF2 era. AV is also a shorter adv product and less expensive than _Kingmaker_, too.


----------



## mamba

Ok, random thought, please shoot holes into it, that is the point…

In order to limit the damage the Oppressive, Gross License 1.1 can do, could a publisher e.g. create a campaign or setting and release one system neutral book and one that contains all the statblocks and whatever else fall under this abomination of a license, and then either release that for free or at least reduce both the content and financial exposure to it?

Doesn’t work for full RPGs or monster manuals, but campaigns / adventures might work. With extracting all the system specific content into one book you could also e.g. create a PF2 version in parallel, ‘just’ convert that part into a PF2 specific book.


----------



## kjdavies

pemerton said:


> To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.



Though it would be nice to have it in writing from a judge that this is indeed a right.


----------



## Steel_Wind

kjdavies said:


> Though it would be nice to have it in writing from a judge that this is indeed a right.



Sure. The real world doesn't work that way though. You pony up and roll the dice. 

Legal uncertainty can be (and usually is) overblown. Still, it's just one of the many uncertainties that goes into the hopper when embarking on any new business venture. To be clear: legal uncertainty is never the most important one, either. There are many more practical commercial concerns that a new business faces which are far more important to its success of failure than a court case in the _overwhelming_ number of cases.


----------



## kjdavies

pemerton said:


> You are trying to read it as a statute! (I know that's becoming my mantra. But it really is a barrier to understanding the legal situation when people do this.)
> 
> The OGL v 1.0/1.0a, as a bit of text posted by WotC and Ryan Dancey on various websites, has no legal effect. WotC is not a legislator, and cannot create general legal obligations nor confer general legal permissions.
> 
> WotC, as a private party (just like the rest of us), can enter into private law agreements that impose contractual (and other private law) obligations and confer contractual (and other private law) permissions.
> 
> So when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.
> 
> But now, if you choose to enter into an agreement with Mongoose and Jason Kemp, whose terms are those of the OGL, you do not gain any express permission from WotC to use their copyrighted text setting out those terms. Your contract with those other parties does not bind WotC. You will need to find some other basis for arguing that WotC has nevertheless permitted you to use their copyrighted text. I've made some suggestions upthread as to what that basis might be.



Would not the obligation to sublicense, combined with the obligation for the sublicensee to copy the text, not grant the sublicensee the write to copy the license text?

That is,

WotC licenses to X, requiring X to copy this the OGL text and sublicense the open content (licensed and contributed);
This extends to sublicensee Y, who has the same obligations;
X and Y can only meet their obligations under the license (including copying the text) if they are allowed to copy the license text.
... or I've got that part right, and it appears I missed a step.

I did find Open Game License v1.0a, whose first line after the page title is



> THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST!




but I can understand if this is not definitive. Understandably I don't see anything useful at the WotC site.


----------



## Mistwell

Cadence said:


> If one cut out the intro and removed the comments... what makes the rest not look like an actual license?
> 
> Otherwise I wasn't sure how to read "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with." and the rest of that paragraph.
> 
> Thanks for any professional insight!



Most of the text isn't there. For example: 

"A. Content Covered i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."

None of that, other than the heading, is likely what the actual license says. The real text is going to be a list of included things, with words like, "Including, but not limited to" and references to a specific attachment of the SRD, and references back to defined words. 

Another example:

"B. Works Covered This license only applies to materials You create for use in or as roleplaying games and as game supplements and only as printed media and static electronic files such as epubs or pdfs. It does not allow the distribution of any other form of media. And does not apply to creation of anything else."

This is not at all what the license is likely to say. There is going to be a big long list of stuff you could create, and different mediums and forms, and there will be a reference to time frames, and a list of forms of media you cannot use with a "including, but not limited to" , and a list preceding "anything else" of everything the lawyers could think of to exclude here, which likely ends with general type language. 

Almost none of this document is real licensing language. This is the sort of document an attorney writes to explain the legalese of a license to a non-attorney client.

And it's HORRIBLY DANGEROUS for them to be doing this. If they explain anything wrong, if they leave anything meaningful out, if they spin something a certain way which could misdirect the other party from seeing a risk to themselves, if any of that happens it can really come back to bite WOTC in a lawsuit later. And it very likely waives claims of theirs to "see a lawyer" because they just represented to the other party that this is a fair and accurate explanation and all someone would need to understand this document. 

It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.


----------



## Cadence

Mistwell said:


> Most of the text isn't there. For example:
> 
> "A. Content Covered i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."
> 
> None of that, other than the heading, is likely what the actual license says. The real text is going to be a list of included things, with words like, "Including, but not limited to" and references to a specific attachment of the SRD, and references back to defined words.
> 
> Another example:
> 
> "B. Works Covered This license only applies to materials You create for use in or as roleplaying games and as game supplements and only as printed media and static electronic files such as epubs or pdfs. It does not allow the distribution of any other form of media. And does not apply to creation of anything else."
> 
> This is not at all what the license is likely to say. There is going to be a big long list of stuff you could create, and different mediums and forms, and there will be a reference to time frames, and a list of forms of media you cannot use with a "including, but not limited to" , and a list preceding "anything else" of everything the lawyers could think of to exclude here, which likely ends with general type language.
> 
> Almost none of this document is real licensing language. This is the sort of document an attorney writes to explain the legalese of a license to a non-attorney client.
> 
> And it's HORRIBLY DANGEROUS for them to be doing this. If they explain anything wrong, if they leave anything meaningful out, if they spin something a certain way which could misdirect the other party from seeing a risk to themselves, if any of that happens it can really come back to bite WOTC in a lawsuit later. And it very likely waives claims of theirs to "see a lawyer" because they just represented to the other party that this is a fair and accurate explanation and all someone would need to understand this document.
> 
> It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.




Thank you for the insight!


----------



## pemerton

kjdavies said:


> Would not the obligation to sublicense, combined with the obligation for the sublicensee to copy the text, not grant the sublicensee the write to copy the license text?
> 
> That is,
> 
> WotC licenses to X, requiring X to copy this the OGL text and sublicense the open content (licensed and contributed);
> This extends to sublicensee Y, who has the same obligations;
> X and Y can only meet their obligations under the license (including copying the text) if they are allowed to copy the license text.
> ... or I've got that part right, and it appears I missed a step.



What you describe here is how a licensee of WotC, under the OGL v 1.0a, gets permission to reproduce the text of the licence. But that won't help someone in @Prime_Evil's situation, where there is no licence from WotC.



kjdavies said:


> I did find Open Game License v1.0a, whose first line after the page title is
> 
> 
> 
> but I can understand if this is not definitive. Understandably I don't see anything useful at the WotC site.



Someone posted this upthread too. WotC can retract that permission at any time, as it has been given gratuitously.


----------



## Enrahim2

Mistwell said:


> Most of the text isn't there. For example:



None of that kind of text is in their existing undisputed legal documents either, like the OGL 1.0a, or their fan content policy. The kind of writing you are looking for make sense if the party really want the contract to be indesputable. However in this case there appear to be strong suspicions that the lisence is actively written to be disputable in a way that it to a layman appear to have a much wider reach than what it would appear to someone familiar with case law.

The removed links were most likely to the sections in the document. The leak is now confirmed from so many sources that at least one of them would have mentioned that, by the way the links mentioned lead to some text not included, unless you postulate a widespread conspiracy.

Moreover, if this is actually the case, this would be an example of gross misrepresentation as it would either require the receiver to press the links or assess and recognize the purported legalese as obviously non legalise to understand that the provided text was indeed not the real legal language. I stand as exibit 1 that the text is convincing enough to a layman that even with its fakeness argued by a (presumed) legal expert, I still believe it to be the actual intended legal text.


----------



## Langy

Mistwell said:


> It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.




I'll just point out that the people who distributed the OGL 1.1 to the community have indicated that this is the legal text plus commentary and that the linked-to "just the legal text" document is not materially different. You might be correct, but if so all the reporting from Gizmodo on down is all very inaccurate.


----------



## Mistwell

Enrahim2 said:


> None of that kind of text is in their existing undisputed legal documents either, like the OGL 1.0a, or their fan content policy. The kind of writing you are looking for make sense if the party really want the contract to be indesputable. However in this case there appear to be strong suspicions that the lisence is actively written to be disputable in a way that it to a layman appear to have a much wider reach than what it would appear to someone familiar with case law.
> 
> The removed links were most likely to the sections in the document. The leak is now confirmed from so many sources that at least one of them would have mentioned that, by the way the links mentioned lead to some text not included, unless you postulate a widespread conspiracy.
> 
> Moreover, if this is actually the case, this would be an example of gross misrepresentation as it would either require the receiver to press the links or assess and recognize the purported legalese as obviously non legalise to understand that the provided text was indeed not the real legal language. I stand as exibit 1 that the text is convincing enough to a layman that even with its fakeness argued by a (presumed) legal expert, I still believe it to be the actual intended legal text.



This is from the agreement near the top:

"The actual license is available through the hyperlinks below, and if you’re comfortable with legalese (or somehow actually enjoy reading legalese) feel free to jump ahead to those links."

"The preceding material is not part of the OGL 1.1. To access the subdivision of OGL 1.1 that applies to your use of SRD content, click below: OGL 1.1: Non-Commercial OGL 1.1: Commercial OGL 1.1: Non-Commercial"

Then then get more text with clearly marked COMMENTS section. The part they explain is the "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with."

What do you mean sources would have mentioned it - leakers mention all the time the agreement, but this is the only source that actually provided a PDF copy of it, and we don't have THEIR comment on it at all. Nobody I know of has said "Yes this PDF is the entire license". Not once that I've seen. Have you seen that? There is no conspiracy - I don't even think anyone has been handed this particular document exactly and asked if this is a commentary that came with the license or the license text itself. I do know of one source that said it's the commentary which came with links to the actual licenses however. 

Of course the receiver needs to press the links. There isn't even a set of signature lines at the end! You literally cannot agree to this agreement, so far, from the text we have in that PDF. 

I am not saying this is fake - this is not fake at all. I am saying this isn't the full license text but is instead a layman's document included with the licenses in some fashion.


----------



## S'mon

I really do think that this leaked document was presented as "this is the OGL 1.1" to the 3PPs.

I understand why the US contract lawyers here think "This can't possibly be intended to be the real contract!". I'm sure their law firms would do a much better job. But I'm pretty certain that the 3PPs under NDA were given this and told it was the offer. I really don't think there is some other, "True OGL 1.1" that was presented to them but has not been leaked.

Edit: Now this purported OGL 1.1 may never have been intended to see the light of day, and never expected that anyone would actually agree to it. It may only exist to help persuade the 3PPs under NDAs to agree to other, better, licensing agreements. I'm not sure of the legality of this, it's certainly not good faith dealing IMO. But WoTC's plan might be to say "Oh, we WERE genuinely going to use this, but following feedback we've changed our mind. You 3PPs are still bound to your bespoke agreements, though!"


----------



## Mistwell

Langy said:


> I'll just point out that the people who distributed the OGL 1.1 to the community have indicated that this is the legal text plus commentary and that the linked-to "just the legal text" document is not materially different. You might be correct, but if so all the reporting from Gizmodo on down is all very inaccurate.



I don't believe the reporting is commenting on this particular commentary document. I think the reporting is on the full license text. My wanting to see the full legalese version wouldn't change what lay reporters would say about it. Why would it? Even if they're experts reading the the legalese version, they would be writing about it to a lay person. 

Of course I could be wrong. But I am willing to bet the "just the legal text" has more than this.


----------



## Mistwell

S'mon said:


> I really do think that this leaked document was presented as "this is the OGL 1.1" to the 3PPs.
> 
> I understand why the US contract lawyers here think "This can't possibly be intended to be the real contract!". I'm sure their law firms would do a much better job. But I'm pretty certain that the 3PPs under NDA were given this and told it was the offer. I really don't think there is some other, "True OGL 1.1" that was presented to them but has not been leaked.



Then why does this very document say there is a legalize version in a link, using words of "the actual license," and why is there no way to agree to this license in that text?


----------



## S'mon

Mistwell said:


> Then why does this very document say there is a legalize version in a link, using words of "the actual license," and why is there no way to agree to this license in that text?




Because it's just a scraping of the raw text, from probably three separate linked docs - the intro, the OGL non-commercial, the OGL commercial.


----------



## Langy

Mistwell said:


> This is from the agreement near the top:
> 
> "The actual license is available through the hyperlinks below, and if you’re comfortable with legalese (or somehow actually enjoy reading legalese) feel free to jump ahead to those links."
> 
> "The preceding material is not part of the OGL 1.1. To access the subdivision of OGL 1.1 that applies to your use of SRD content, click below: OGL 1.1: Non-Commercial OGL 1.1: Commercial OGL 1.1: Non-Commercial"
> 
> Then then get more text with clearly marked COMMENTS section. The part they explain is the "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with."
> 
> What do you mean sources would have mentioned it - leakers mention all the time the agreement, but this is the only source that actually provided a PDF copy of it, and we don't have THEIR comment on it at all. Nobody I know of has said "Yes this PDF is the entire license". Not once that I've seen. Have you seen that? There is no conspiracy - I don't even think anyone has been handed this particular document exactly and asked if this is a commentary that came with the license or the license text itself. I do know of one source that said it's the commentary which came with links to the actual licenses however.
> 
> Of course the receiver needs to press the links. There isn't even a set of signature lines at the end! You literally cannot agree to this agreement, so far, from the text we have in that PDF.
> 
> I am not saying this is fake - this is not fake at all. I am saying this isn't the full license text but is instead a layman's document included with the licenses in some fashion.




The document has had hyperlinks removed and the contents of those hyperlinks copied into the posted document.

This is almost certainly the full license text and you're simply mistaken.


----------



## Mistwell

S'mon said:


> Because it's just a scraping of the raw text, from probably three separate linked docs - the intro, the OGL non-commercial, the OGL commercial.



Could be. Sure looks like there is verbiage missing and some sections being summarized to me. But you're right, it could be just that. 

If so...damn this is a poorly written document. No major law firm would have written an important license agreement like this that I know of.


----------



## Mistwell

Langy said:


> The document has had hyperlinks removed and the contents of those hyperlinks copied into the posted document.
> 
> This is almost certainly the full license text and you're simply mistaken.



Could be. I guess we will see.


----------



## S'mon

Mistwell said:


> Could be. Sure looks like there is verbiage missing and some sections being summarized to me. But you're right, it could be just that.
> 
> If so...damn this is a poorly written document. No major law firm would have written an important license agreement like this that I know of.




I do think it's odd. However while I don't know how WoTC work, but afaics the tone does look rather like stuff that they do actually present as legal documents, fake mateyness and all.


----------



## S'mon

http://ogl.battlezoo.com/
		


Page 1 & 2 appears to be a copy-paste of the Introduction. What were links at the bottom  of page 2 are now just text
"OGL 1.1: Non-Commercial OGL 1.1: Commercial"

Then at the very bottom of page 2 is repeated "OGL 1.1 Non-Commercial" - this appears to be the title of the material appearing on the next page. It's easy to miss. Then page 3+ appears to be a copy-paste of the text of "OGL Non-Commercial".

Remember that the OGL is purportedly intended to be read and understood by non-lawyers, the general fandom/player base creating D&D materials. The language needs to be non-technical.


----------



## S'mon

Steel_Wind said:


> So-called software wrapper agreements are the subject matter of legislation in many jurisdictions (especially in the USA). For consumers, to purchase the software which indicates on the box (or the webpage) that it is subject to a license agreement -- you are essentially caught by a contract you never read or had the chance to read. Otherwise, if you decline, you can return the software for a full refund.
> 
> If it sounds like flim-flammery when it comes to contract formation that's largely because it is.




From what I remember, in England if you download software it's a service and you are bound by the license agreement you clicked on pre-download, whereas if you buy software over the counter it's sale of goods and you are not bound by text you could not read prior to the point of sale. So you are bound by the web page terms for a download. For a counter sale you are bound by what's ON the box, but probably not bound by what's IN the box. 

In practice it does not matter much for consumer contracts as these are now heavily regulated.


----------



## mhd

Blue said:


> If this was done on a leak that isn't yet official, or based on official information that isn't yet active (Jan 23rd), then this is absolutely actring in bad faith to every 3PP hosted there.





overgeeked said:


> It’s not a thing that happened. It’s a hypothetical.



Yes, my "quote" was a purely hypothetical scenario, sorry if I didn't make that obvious enough.


----------



## jgbrowning

pemerton said:


> This makes no sense to me. If WotC has the power to unilaterally end their licence to Matt, they have the same right against you.
> 
> To put it another way: I can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable. Whatever basis - in this hypothetical - that WotC are relying on vis-a-vis Matt would apply equally to you (as per the OP, it would be some sort of claim to rescind the agreements on which WotC had licensed its IP to OGL parties).




Question: if you "can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable" doesn't that mean that _every_ license is a license and that there are no sub-licenses?

And yet sub-licenses are explicitly discussed in the OGL. Were all licenses between just "You and Wotc", what exactly is the sub-license that falls under "sublicenses shall survive the termination of this License" in the OGL?

Thoughts?

joe b.


----------



## Jerik

Okay, I just finished reading this thread (phew!), and there's... a lot here to digest.  But there's a bit in one post a ways back that nobody seems to have responded to, and while it's not terribly important to the matter at hand, I did want to respond in case anyone found it interesting:


AbdulAlhazred said:


> The THEORY was that WotC was also relying, but I know of no instance where they have ever distributed anything they didn't author themselves under OGL terms. They benefited from the good will and much enlarged D&D community that the license created, maybe, but in effect they seem to, at least now think, the license is simply a form of control they can exercise over the community.



WotC _did_, in fact, distribute things they didn't author themselves under OGL terms!  Not much, but a few things.

In the back of the third-edition _Monster Manual II_ were two monsters "adopted" from Necromancer Games' _The Creature Collection_.  One page of the MM2 was taken up by the OGL, specifically and only because of those two monsters.  The book was explicit about that:


> We've printed these two descriptions at the end of the book, in a special layout, to make it clear that only these two monsters are considered Open Game Content.  The rest of the material in this book is still closed content, and can't be used in other products.



Later in the same sidebar that included those sentences, the following text appeared:


> Over the long term we hope to use more and more material created by the independent pool of d20 System designers and publishers, just as they are using the Open Content material created by Wizards of the Coast.  Instead of reinventing the wheel, we're all able to partake of the shared design resources that operate under the Open Gaming License.



And they did it again the next year in _Unearthed Arcana_!  _Unearthed Arcana_ was released under the Open Game License—though of course it did reserve some items as product identity (the usual: proper names, artwork, trade dress, certain monsters)—, and the Copyright Notice in its Open Game License referenced _Swords of Our Fathers_ by The Game Mechanics and _Mutants & Masterminds_ by Green Ronin Publishing.

As far as I recall, though, that was the last time WotC included any third-party OGL material in its books—it's possible there are a few more instances I'm forgetting, but it certainly wasn't something they kept doing for long.  I don't see any reason to doubt that they meant at the time what they wrote in the _Monster Manual II_, though, about hoping to use more and more OGL material.  The _MM2 _and _Unearthed Arcana_ were both very early in the 3E product cycle, only a few years after the introduction of the OGL, and my guess—and this is of course only speculation—is that the WotC staff really _did_ at first fully intend to make more use of the OGL, and have more of a give-and-take with third-party publishers, but that even back then Hasbro decided it didn't like the idea and put a stop to it.


----------



## jgbrowning

Jerik said:


> And they did it again the next year in _Unearthed Arcana_!  _Unearthed Arcana_ was released under the Open Game License—though of course it did reserve some items as product identity (the usual: proper names, artwork, trade dress, certain monsters)—, and the Copyright Notice in its Open Game License referenced _Swords of Our Fathers_ by The Game Mechanics and _Mutants & Masterminds_ by Green Ronin Publishing.




Edited as my memory served wrong.

joe b.


----------



## S'mon

Alexander Macris has posted an article on Substack raising several interesting legal points about the wording of the 1.1 licence:









						The Perfidious Treachery of WOTC
					

Does OGL 1.1 Mean the End of Open Gaming?




					arbiterofworlds.substack.com
				




Notably:

_Read the first sentence: "you cannot earn income from any SRD-based D&D content you *create* on or after January 13, 2023.” Now read the last sentence: “If you want to *publish* SRD-based content on or after January 13, 2023, your only option is to agree.”

Creating content and publishing content are *not the same thing*. The way this statement is phrased, WOTC has left it very unclear whether game studios can continue to publish works made under OGL 1.0. The first sentence suggests “yes, you can,” but the last sentence says “no, you can’t.” Until WOTC clarifies its intent, we can’t know for sure. Given how egregious the rest of the terms are, though, I’m not inclined to give them the benefit of the doubt. WOTC could be taking the position that no one is able to publish even existing OGL 1.0 material after the 13th._


----------



## Jerik

jgbrowning said:


> And if I'm remembering properly, didn't WotC botch their use of Open Game Content by not including a copy of the OGL in that book and putting all their sources in the section 15? Which, effectively, means they used copyrighted material illegally: just because something is OGC doesn't mean you can use it without also using the OGL.



Nope.  The full OGL, with the sources in Section 15, is right there on page 222.  I'm looking at it right now.  And Page 2 includes the requisite specification of Product Identity.

The only thing I'm seeing that _might _be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission.  Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.

(It's also entirely possible there's a _different_ book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)


----------



## Enrahim2

jgbrowning said:


> And if I'm remembering properly, didn't WotC botch their use of Open Game Content by not including a copy of the OGL in that book and putting all their sources in the section 15? Which, effectively, means they used copyrighted material illegally: just because something is OGC doesn't mean you can use it without also using the OGL.
> 
> joe b.



(IANAL) Well, with the new ogl, they seem to make that simpler for themselves, if we assume 1.0a survives. As far as I can see the commercial version do not as far as I can see require a copy of the license to be included (that provision is in the non commercial section V C) so given 1.0a section 9, wizards should be able to publish any OGC under the terms of 1.1 commercial, without any copy of the OGL or other atribution.. (and after having made that static publication, be free to do whatever they want with it according to XII B as long as it is modified enough to be considered "Your creation")


----------



## jgbrowning

Jerik said:


> Nope.  The full OGL, with the sources in Section 15, is right there on page 222.  I'm looking at it right now.  And Page 2 includes the requisite specification of Product Identity.
> 
> The only thing I'm seeing that _might _be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission.  Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.
> 
> (It's also entirely possible there's a _different_ book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)




Thanks for correcting me! I've edited my initial post since my memory served me wrong.

joe b.


----------



## Xyxox

Jerik said:


> Nope.  The full OGL, with the sources in Section 15, is right there on page 222.  I'm looking at it right now.  And Page 2 includes the requisite specification of Product Identity.
> 
> The only thing I'm seeing that _might _be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission.  Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.
> 
> (It's also entirely possible there's a _different_ book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)



It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.


----------



## jgbrowning

Xyxox said:


> It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.




That may have happened, but I do not know. I have no idea why I thought what I thought, but it looks like what I thought was wrong.

joe b.


----------



## Jerik

Xyxox said:


> It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.



I thought of that, but I checked and the copy I'm looking at is the first printing.  I guess it's not entirely impossible that a few books were printed without the OGL and they caught their mistake early enough they still considered the rest of the run part of the first printing, but that seems unlikely.


----------



## Steel_Wind

Langy said:


> The document has had hyperlinks removed and the contents of those hyperlinks copied into the posted document.
> 
> This is almost certainly the full license text and you're simply mistaken.



No, that's wrong. If you watch the Battlezoo video on Youtube, they explained why the text at the hyperlinks was left out. The document was presented to each of the original recipients under a NDA.

What had happened was that because the text at the hyperlink could not be compared as between the several versions of the document (this went out to several recipients) and the computer accessing the links could be traced, they reasonably feared that due to both IP traces as well as subtle changes in the text of what was behind each of the links would give away who had leaked the document. The recipients all worried about a reprisal and that WotC would exact revenge for breaching the NDA. So NONE of the text behind the hyperlinks was included in the document linked above that Mistwell was commenting on.

@Mistwell  is absolutely right, this is not the actual 1.1, it is the "layman's language" which accompanied it. From a commercial analysis perspective, this is helpful, but it isn't the legalese of the Not Open GL 1.1 license.


----------



## Enrahim2

Steel_Wind said:


> No, that's wrong. If you watch the Battlezoo video on Youtube, they explained why the text at the hyperlinks was left out. The document was presented to each of the original recipients under a NDA.



But from memory he also explained that he had been in contact with several sources able to confirm that this was indeed the genuine document. And those sources should have been able to access the links and should have been easily able to confirm if there at least was critically important differences between the document we have seen, and what they had access to. If the links indeed were going to a much more strongly legally formulated version, confirming this leaked document sound in that case to at least be lying by omission..


----------



## kenada

Enrahim2 said:


> Moreover, if this is actually the case, this would be an example of gross misrepresentation as it would either require the receiver to press the links or assess and recognize the purported legalese as obviously non legalise to understand that the provided text was indeed not the real legal language. I stand as exibit 1 that the text is convincing enough to a layman that even with its fakeness argued by a (presumed) legal expert, I still believe it to be the actual intended legal text.



The formatting was stripped out of the document as a measure to avoid identifying the source. There have been some screenshots shared of a formatted document, which shows the legalese identified to distinguish it from the commentary.


----------



## Steel_Wind

Enrahim2 said:


> But from memory he also explained that he had been in contact with several sources able to confirm that this was indeed the genuine document. And those sources should have been able to access the links and should have been easily able to confirm if there at least was critically important differences between the document we have seen, and what they had access to. If the links indeed were going to a much more strongly legally formulated version, confirming this leaked document sound in that case to at least be lying by omission..



The problem is, even for lawyers, to compare the words, punctuation and spacing in a document of legal text takes a ridiculous amount of time and is beyond tedious. When we do so with offering circulars and other "liability documents" for public companies, we use a method called "slugging lines" which ignores the middle of the sentence in each paragraph. My point: even lawyers don't take the proper time to do this carefully.

If they had included the text at the hyperlinks -- because that text was likely subtly altered from link to link, the leaker would have been identified if the linked text was copied+pasted.

Are you following me here?


----------



## Nylanfs

kjdavies said:


> Y'know, I actually had to go look. I'd assumed 'SRD 5.1' was the new-not-6e version, not the current one. I imagine it would help a lot if they created a new version of the SRD, even if it has all the same text but "5.1" filed off and "5.2" put in. As I see it, if they use 'SRD 5.1' there are/have been/will have been two different licenses on it depending when you started using it. Or, as you say, depending on when you found the copy you're working from.



I'm still catching up, so I'm about 8ish hours behind but wanted to ask this now so I didn't forget it by the time I did get caught up (damn ADD brain). 

They will HAVE to release an update to the SRD v5.1, ie v5.2 or v5.5 etc because the same content can NOT be licensed under two contradicting licenses right? And if this is the case then creators will be able continue to use v5.1 of the SRD for OGL v1.0a based materials?


----------



## Cadence

Nylanfs said:


> I'm still catching up, so I'm about 8ish hours behind but wanted to ask this now so I didn't forget it by the time I did get caught up (damn ADD brain).
> 
> They will HAVE to release an update to the SRD v5.1, ie v5.2 or v5.5 etc because the same content can NOT be licensed under two contradicting licenses right? And if this is the case then creators will be able continue to use v5.1 of the SRD for OGL v1.0a based materials?



The WotC claim is that they can revoke the 1.0a.  The draft 1.1 explicitly allows them to change 1.1 with 30 days notice.

I believe FATE was released under both 1.0a and CC.

I imagine there are other arguments that let WotC release there own stuff under whatever they want to.


----------



## kenada

Nylanfs said:


> They will HAVE to release an update to the SRD v5.1, ie v5.2 or v5.5 etc because the same content can NOT be licensed under two contradicting licenses right? And if this is the case then creators will be able continue to use v5.1 of the SRD for OGL v1.0a based materials?



The copyright owner can distribute material under whatever licenses it wants. It’s not uncommon in software to distribute it under an open license and offer a proprietary license for those who do not want to deal with the open license (particularly if the open license is perceived as particularly risky or viral like the GNU AGPL v3).


----------



## Enrahim2

Cadence said:


> The WotC claim is that they can revoke the 1.0a.



If wizards had claimed to "revoke" 1.0a they would have used that word. What they have claimed is that it is "no longer authorized". The attempt at equating these two concepts are so legaly shaky, that I struggle to see this quote as anything but a strawman.


----------



## Cadence

Enrahim2 said:


> If wizards had claimed to "revoke" 1.0a they would have used that word. What they have claimed is that it is "no longer authorized". The attempt at equating these two concepts are so legaly shaky, that I struggle to see this quote as anything but a strawman.



 I was using revoke colloquially and not legally.  IANAL, but it sure feels like they are attempting to get away with effectively revoking 1.0a  without saying that word, and doubting that anyone will dare fight them on it.


----------



## reelo

Cadence said:


> I was using revoke colloquially and not legally. IANAL, but it sure feels like they are attempting to get away with effectively revoking 1.0a without saying that word, and doubting that anyone will dare fight them on it.



....by the way, the leaked document only mentions OGL 1.0(a) as being unauthorized. No mention of OGL 1.0 (not "a")

A possible loophole for OSR creators?


----------



## AdmundfortGeographer

reelo said:


> ....by the way, the leaked document only mentions OGL 1.0(a) as being unauthorized. No mention of OGL 1.0 (not "a")
> 
> A possible loophole for OSR creators?



Until OGL 1.1 is updated (Spanish Inquisition meme)


----------



## Enrahim2

reelo said:


> A possible loophole for OSR creators?



I present to you commercial term IX J : "You will not try to circumvent or go around this agreement in any way, (...)"


----------



## Enrahim2

Cadence said:


> I was using revoke colloquially and not legally.  IANAL, but it sure feels like they are attempting to get away with effectively revoking 1.0a  without saying that word, and doubting that anyone will dare fight them on it.



Yes, I can really understand it feels that way. But how much of that feeling do you think is caused by what wizards actually has said, vs what others have claimed or speculated about wizards and what they claim wizards are saying?


----------



## reelo

Enrahim2 said:


> I present to you commercial term IX J : "You will not try to circumvent or go around this agreement in any way, (...)"



But 1.0 and 1.0(a) are TWO DISTINCT versions of the license.


----------



## Greg Benage

S'mon said:


> Alexander Macris has posted an article on Substack raising several interesting legal points about the wording of the 1.1 licence:
> 
> 
> 
> 
> 
> 
> 
> 
> 
> The Perfidious Treachery of WOTC
> 
> 
> Does OGL 1.1 Mean the End of Open Gaming?
> 
> 
> 
> 
> arbiterofworlds.substack.com
> 
> 
> 
> 
> Notably:
> 
> _Read the first sentence: "you cannot earn income from any SRD-based D&D content you *create* on or after January 13, 2023.” Now read the last sentence: “If you want to *publish* SRD-based content on or after January 13, 2023, your only option is to agree.”_



Arrgh! He's also mixing license language and propaganda together. This bit is from the Q&A, not the license. He writes of the above:



> This clause is intended to be reassuring, but it’s anything but. Read the first sentence: "you cannot earn income from any SRD-based D&D content you *create* on or after January 13, 2023.” Now read the last sentence: “If you want to *publish* SRD-based content on or after January 13, 2023, your only option is to agree.”




It's not a bloody "clause!" It's propaganda from the Q&A!


----------



## Staffan

Enrahim2 said:


> I present to you commercial term IX J : "You will not try to circumvent or go around this agreement in any way, (...)"



Any lawyer who want to weigh in on the legality of that term? I feel like if "No shenanigans" was valid in contracts, every contract would have it and since they don't it's not.


----------



## Greg Benage

Staffan said:


> Any lawyer who want to weigh in on the legality of that term? I feel like if "No shenanigans" was valid in contracts, every contract would have it and since they don't it's not.



IANAL but they can terminate at any time for any reason or no reason at all. If they think it's shenanigans, it's shenanigans.


----------



## Jack Daniel

reelo said:


> ....by the way, the leaked document only mentions OGL 1.0(a) as being unauthorized. No mention of OGL 1.0 (not "a")
> 
> A possible loophole for OSR creators?





reelo said:


> But 1.0 and 1.0(a) are TWO DISTINCT versions of the license.




No. 1.0 an 1.0a are two distinct versions of the license. The parenthetical form — 1.0(a) — implies that the "a" can be there or not, so it's talking about both at the same time.


----------



## jgbrowning

Jack Daniel said:


> No. 1.0 an 1.0a are two distinct versions of the license. The parenthetical form — 1.0(a) — implies that the "a" can be there or not, so it's talking about both at the same time.




I don't know if that's the case. Every usage of 1.0(a) in the document is in the singular, not the plural.

joe b.


----------



## jgbrowning

jgbrowning said:


> I don't know if that's the case. Every usage of 1.0(a) in the document is in the singular, not the plural.
> 
> joe b.




And while we're talking about potential grammar minutiae, consider also that the words "System Reference Document" and the abbreviation "SRD" are always used in the singular as well. There have been several SRDs, and the one that 1.1 is referencing is always stated to be the most-recent one (I believe 5.1 is the most recent, right?).

And in _addition_ to that, something called the "System Reverence Document (draft version)" that has a copyright of 1999, 2000 that was also released with Open Game Content and referenced by a 3rd party publisher and appeared in Section 15's released under the OGL 1.0 license. That is again _technically_ not the same as a "System Reference Document" as used in the 1.1 language.

There is much lack of specificity.

joe b.


----------



## Jack Daniel

jgbrowning said:


> And while we're talking about potential grammar minutiae, consider also that the words "System Reference Document" and the abbreviation "SRD" are always used in the singular as well. There have been several SRDs, and the one that 1.1 is referencing is always stated to be the most-recent one (I believe 5.1 is the most recent, right?).
> 
> And in _addition_ to that, something called the "System Reverence Document (draft version)" that has a copyright of 1999, 2000 has also had all it's Open Game Content released by a 3rd party publisher and appeared in Section 15's released under the OGL 1.0 license. That is again _technically_ not the same as a "System Reference Document" as used in the 1.1 language.
> 
> There is much lack of specificity.
> 
> joe b.




_That_ seems to be covered under the definitions of Licensed and Unlicensed Content. They're _trying_ to kill off the concept of Open Game Content and instead say that the 5.1 SRD is Licensed Content, and anything else that has been released as official D&D anything by WotC _or a predecessor or successor_ (so that includes TSR) is now Unlicensed Content. The old SRDs would fall under the Unlicensed umbrella if this theory were to pan out.

Of course it all still hinges on the circular logic of their being able to unilaterally deauthorize 1.0(a) under its own section 9 by updating 1.0(a) via section 9 which they claim to have just deauthorized…


----------



## kjdavies

Jerik said:


> Nope.  The full OGL, with the sources in Section 15, is right there on page 222.  I'm looking at it right now.  And Page 2 includes the requisite specification of Product Identity.
> 
> The only thing I'm seeing that _might _be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission.  Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.
> 
> (It's also entirely possible there's a _different_ book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)



The OGL on page 222 of my copy of _Monster Manual 2_ has only the OGL itself in the Section 15. It doesn't include _Monster Manual 2_ or _Creature Collection_ (but when I look at _Creature Collection_ their Section 15 has only the OGL -- there's a note on the title page with the copyright notice to put in Section 15 if content is used, but they did not put it in their own Section 15).


----------



## kjdavies

Enrahim2 said:


> I present to you commercial term IX J : "You will not try to circumvent or go around this agreement in any way, (...)"



Applies only if you accept the agreement. If you don't accept the agreement, you don't accept that you will try to avoid the agreement. You've already dodged it entirely.


----------



## Snarf Zagyg

Staffan said:


> Any lawyer who want to weigh in on the legality of that term? I feel like if "No shenanigans" was valid in contracts, every contract would have it and since they don't it's not.




_shrug_ It's just a written version of the implied covenant of good faith and fair dealing. There is always the background of "no shenanigans" in contract law- it's just hard to enforce. 

Pretty meaningless as a written term, usually, unless there is something more specific than that.


----------



## kjdavies

jgbrowning said:


> And while we're talking about potential grammar minutiae, consider also that the words "System Reference Document" and the abbreviation "SRD" are always used in the singular as well. There have been several SRDs, and the one that 1.1 is referencing is always stated to be the most-recent one (I believe 5.1 is the most recent, right?).
> 
> And in _addition_ to that, something called the "System Reverence Document (draft version)" that has a copyright of 1999, 2000 that was also released with Open Game Content and referenced by a 3rd party publisher and appeared in Section 15's released under the OGL 1.0 license. That is again _technically_ not the same as a "System Reference Document" as used in the 1.1 language.
> 
> There is much lack of specificity.
> 
> joe b.



Indeed, I'm reading this as

OGL v1.1 applies to SRD 5.1
OGL v1.0a no longer applies to SRD 5.1 (it does today, so they need to unauthorize v1.0a so it no longer applies)
OGL v1.1 does not apply to other SRDs, they must be licensed separately
OGL v1.0a is a separate license that applies to the other SRDs (hasn't been revoked).
The sloppiness of the language (not being clear about SRD = SRD 5.1 being a big one, and specifying the scope of 'unauthorization') leaves ambiguities that have led to this whole mess.


----------



## Amrûnril

S'mon said:


> _Read the first sentence: "you cannot earn income from any SRD-based D&D content you *create* on or after January 13, 2023.” Now read the last sentence: “If you want to *publish* SRD-based content on or after January 13, 2023, your only option is to agree.”
> 
> Creating content and publishing content are *not the same thing*. The way this statement is phrased, WOTC has left it very unclear whether game studios can continue to publish works made under OGL 1.0. The first sentence suggests “yes, you can,” but the last sentence says “no, you can’t.” Until WOTC clarifies its intent, we can’t know for sure. Given how egregious the rest of the terms are, though, I’m not inclined to give them the benefit of the doubt. WOTC could be taking the position that no one is able to publish even existing OGL 1.0 material after the 13th._




It seems to me like there's another level of ambiguity. *"On or after January 13" *could be read as modifying *"D&D content you create"*, but it could alternatively be read as modifying *"You cannot earn income".* I'm not sure the distinction actually matters much, given WotC's underlying assertion that they can unilaterally change the terms of the OGL whenever they feel like it, but in another context, this seems like the sort of statement that would really need to be phrased unambiguously.


----------



## kjdavies

Jack Daniel said:


> _That_ seems to be covered under the definitions of Licensed and Unlicensed Content. They're _trying_ to kill off the concept of Open Game Content and instead say that the 5.1 SRD is Licensed Content, and anything else that has been released as official D&D anything by WotC _or a predecessor or successor_ (so that includes TSR) is now Unlicensed Content. The old SRDs would fall under the Unlicensed umbrella if this theory were to pan out.
> 
> Of course it all still hinges on the circular logic of their being able to unilaterally deauthorize 1.0(a) under its own section 9 by updating 1.0(a) via section 9 which they claim to have just deauthorized…



Thing is, I read 'Licensed Content' and 'Unlicensed Content' as being in terms of v1.1. They don't say "other SRDs are no longer open content under OGL v1.0a" because that's outside this license... and they benefit from this unclarity.


----------



## Steel_Wind

jgbrowning said:


> And while we're talking about potential grammar minutiae, consider also that the words "System Reference Document" and the abbreviation "SRD" are always used in the singular as well. There have been several SRDs, and the one that 1.1 is referencing is always stated to be the most-recent one (I believe 5.1 is the most recent, right?).
> 
> And in _addition_ to that, something called the "System Reverence Document (draft version)" that has a copyright of 1999, 2000 that was also released with Open Game Content and referenced by a 3rd party publisher and appeared in Section 15's released under the OGL 1.0 license. That is again _technically_ not the same as a "System Reference Document" as used in the 1.1 language.
> 
> There is much lack of specificity.
> 
> joe b.



Every culture has its language, traditions, terms of art, and conventions.

In the law, and especially in contracts, the general rule is that the singular means plural, he means he/she/they/it and person means individual, partnership, corporation, trust, or other entity. Typically, this is mentioned in a clause in some part of the legalese of the contract, but as we don't have the legal text, I can't yet point you specifically to it -- but I know enough to know it is _overwhelmingly likely_ to be there.

*tl;dr:* you are jumping at shadows here.


----------



## UngainlyTitan

I must say that the document as presented is not the legal OGL 1.1 but some kind of precis/commentary however;
Would I be correct in surmising that:
Stuff derived via the OGL 1.0(a) and derived from OGC (SRD) other than SRD 5.1 are not covered by this licence unless one accepts this licence in which case one engages not to use OGL 1.0(a) in any context.
So by my estimation Pathfinder 1 & 2 are fine, they are OGC via OGL 1.0 and SRD 3.5
Stuff like Esper Genesis or Evil Hat's Everyday Heroes are more problematic but defensible as long as the creators do not accept OGL 1.1 and they may have to explicitly renounce using 1.1
Any thing using 5.1 going forward with no legacy precedent will be harder to defend under the OGL 1.0(a)


----------



## overgeeked

Nvm.


----------



## Nylanfs

S'mon said:


> http://ogl.battlezoo.com/
> 
> 
> Remember that the OGL is purportedly intended to be read and understood by non-lawyers, the general fandom/player base creating D&D materials. The language needs to be non-technical.



The OGL _*was *_supposed to be read and understood by laypeople. This appears to be another departure from what has been.


----------



## rcade

If there are things in the System Reference Document that Hasbro doesn't want to share any more (hypothetical example: the Derro), instead of attacking the OGL 1.0, could Hasbro achieve that purpose by releasing a new SRD that includes them in the Product Identity clause? This would make future publishers using the OGL reluctant to use those new additions to PI. Commercial publishers will take the safest course and not use the Derro, even if they think it ought to continue to be reusable.

Additionally, because new editions of D&D are where almost all players end up, Hasbro has the power to hold on to the PI of everything new in each edition, as well as every revision to anything. If they keep more out of the next SRD they won't be competing with open gaming content on any of those parts of their game. The more years that pass, the less competitors will be able to compete with them because players want new stuff under current rules.


----------



## Enrahim2

Amrûnril said:


> It seems to me like there's another level of ambiguity. *"On or after January 13" *could be read as modifying *"D&D content you create"*, but it could alternatively be read as modifying *"You cannot earn income".* I'm not sure the distinction actually matters much, given WotC's underlying assertion that they can unilaterally change the terms of the OGL whenever they feel like it, but in another context, this seems like the sort of statement that would really need to be phrased unambiguously.



(IANAL) That ambiguity is in the faq trying to explain the legalese. In order to disambiguate you would have to look at the legal text.

The 13th of january obviously refers to the date the agreement takes effect. A main line interpretation is that this faq claim is supposed to be a convoluted effect of "no longer authorized. I however find the folloing interpretation much more straight forward: The commercial agreement claim to be accepted if you use Licensed Content commercially, and once the agreement is in effect at January 13th, section II prohibits using Licensed Content without complying to 1.1.

Hence the faq give a straight forward easier to read (though maybe a bit clumsy) description of this particular legal claim. That it seemed like the general mood among the lawyers that this claim is not enforcable doesn't invalidate the faq description of the legal document.


----------



## jgbrowning

Steel_Wind said:


> Every culture has its language, traditions, terms of art, and conventions.
> 
> In the law, and especially in contracts, the general rule is that the singular means plural, he means he/she/they/it and person means individual, partnership, corporation, trust, or other entity. Typically, this is mentioned in a clause in some part of the legalese of the contract, but as we don't have the legal text, I can't yet point you specifically to it -- but I know enough to know it is _overwhelmingly likely_ to be there.
> 
> *tl;dr:* you are jumping at shadows here.




It wouldn't be the first time.  But, in this case regarding the use of singular it's not referring to a person or an entity, but to a particular collection of documents that contained only OGC: the SRD. But as is obvious, I'm not a lawyer, so I'll bow to your knowledge of community convention.

joe b.


----------



## Steel_Wind

UngainlyTitan said:


> I must say that the document as presented is not the legal OGL 1.1 but some kind of precis/commentary however;
> Would I be correct in surmising that:
> Stuff derived via the OGL 1.0(a) and derived from OGC (SRD) other than SRD 5.1 are not covered by this licence unless one accepts this licence in which case one engages not to use OGL 1.0(a) in any context.
> So by my estimation Pathfinder 1 & 2 are fine, they are OGC via OGL 1.0 and SRD 3.5
> Stuff like Esper Genesis or Evil Hat's Everyday Heroes are more problematic but defensible as long as the creators do not accept OGL 1.1 and they may have to explicitly renounce using 1.1
> Any thing using 5.1 going forward with no legacy precedent will be harder to defend under the OGL 1.0(a)



That may be WotC's position -- the problem is that it is not a legally accurate position.  The SRD 5.1 was released under the OGL 1.0a -- not _maybe_ -- *FOR SURE* it was.

They can't easily get rid of that 5.1 SRD legacy anymore than they can get rid of the SRD 3.5 legacy. The difference is, they don't care anymore about 3.5 -- but they DO NOT want Paizo to be able do the same thing to them with 5e that they did to them with 3.5. That's a real concern, I'm sure.

*Problem:* I'm not sure how WotC can actually avoid that result. What is evident to me most of all is that WotC wants to lock down the VTT space so that it is not covered by any OGL and they have complete control over it. They want their own VTT to be exclusive with OneD&D. They don't want a digital competitor in that space.

This explains the purchase of DDB for $140+ million (that was a LOT of money - *unprecedented money *in RPG land). They didn't pay that to just sell PDFs that weren't PDFs. They paid that because they are going to use it to leverage their own VTT in an attempt to recoup monthly subscription money from DMs and players alike.

And they can't do that effectively without making it exclusive. And as VTTs are allowed under OGL 1.0a, they need to shed that legal capability _somehow_. 

When you look at the text of what Battlezoo released, link above, there are certain blatant lies in that document which try to re-write history, pretending certain things were not intended to be covered by the OGL 1.0a -- interactive digital products and VTTs chief among them. That is a lie of course, we know those products were intended to be permitted; WotC's own FAQ said so until 2021. 

So why say something in a document that isn't true if you don't have to? _*Because they feel they have to*_. Those lies + the money spent on DDB tells you what this is _really_ all about. 

It's about locking down the VTT space for 6e. They want to be able to earn _World of Warcraft _subscription money from DMs and players alike, monthly. That's the "under-monetization" that WotC is aiming to fix with $140+ million purchase. Earning WoW money is the dream of every computer and video game exec in the history of ever; that's the Golden Trophy. And they can't do that as easily if people have another, non-subscription VTT venue on which to play 6e.

The rest of this is just a shopping list of publishing druthers and OGL 1.0a _after-the-fact remorse_. They lived with all of that for 23 years. None of that was determinative. The VTT stuff, underscored by the pandemic and the ability to monetize it? _That's different_. The purchase of DDB for a *HOLY CRAP* large sum of money? That's _different_ - that's new.


----------



## S'mon

Nylanfs said:


> The OGL _*was *_supposed to be read and understood by laypeople. This appears to be another departure from what has been.




With the fake mateyness masking sneering menace, OGL 1.1 kinda reads like it killed nice Mr OGL 1.0 and his wife Mrs OGL-FAQ, and is now wearing Mr OGL 1.0's remains as a skin suit, Hannibal Lector style.


----------



## Nikosandros

S'mon said:


> With the fake mateyness masking sneering menace, OGL 1.1 kinda reads like it killed nice Mr OGL 1.0 and his wife Mrs OGL-FAQ, and is now wearing Mr OGL 1.0's remains as a skin suit, Hannibal Lector style.



That's disturbingly accurate.


----------



## UngainlyTitan

Ok I need some clarification here, if you would be so kind.



Steel_Wind said:


> That may be WotC's position -- the problem is that it is not a legally accurate position.  The SRD 5.1 was released under the OGL 1.0a -- not _maybe_ -- *FOR SURE* it was.
> 
> They can't easily get rid of that 5.1 SRD legacy anymore than they can get rid of the SRD 3.5 legacy. The difference is, they don't care anymore about 3.5 -- but they DO NOT want Paizo to be able do the same thing to them with 5e that they did to them with 3.5. That's a real concern, I'm sure.
> 
> *Problem:* I'm not sure how WotC can actually avoid that result. What is evident to me most of all is that WotC wants to lock down the VTT space so that it is not covered by any OGL and they have complete control over it. They want their own VTT to be exclusive with OneD&D. They don't want a digital competitor in that space.



Are you saying that because that SRD 5.1 was published initially under the 1.0(a) OGL it can still be used but would require a court battle with WoTC?


Steel_Wind said:


> This explains the purchase of DDB for $140+ million (that was a LOT of money - *unprecedented money *in RPG land). They didn't pay that to just sell PDFs that weren't PDFs. They paid that because they are going to use it to leverage their own VTT in an attempt to recoup monthly subscription money from DMs and players alike.
> 
> And they can't do that effectively without making it exclusive. And as VTTs are allowed under OGL 1.0a, they need to shed that legal capability _somehow_.
> 
> When you look at the text of what Battlezoo released, link above, there are certain blatant lies in that document which try to re-write history, pretending certain things were not intended to be covered by the OGL 1.0a -- interactive digital products and VTTs chief among them. That is a lie of course, we know those products were intended to be permitted; WotC's own FAQ said so until 2021.



You are really talking about the rules automation with in the VTT not the rest of the application?


----------



## S'mon

Enrahim2 said:


> (IANAL) That ambiguity is in the faq trying to explain the legalese. In order to disambiguate you would have to look at the legal text.
> 
> The 13th of january obviously refers to the date the agreement takes effect. A main line interpretation is that this faq claim is supposed to be a convoluted effect of "no longer authorized. I however find the folloing interpretation much more straight forward: The commercial agreement claim to be accepted if you use Licensed Content commercially, and once the agreement is in effect at January 13th, section II prohibits using Licensed Content without complying to 1.1.
> 
> Hence the faq give a straight forward easier to read (though maybe a bit clumsy) description of this particular legal claim. That it seemed like the general mood among the lawyers that this claim is not enforcable doesn't invalidate the faq description of the legal document.




That is ...very interesting. I (& Macris, and others) have been mixing up explanatory text with licence clause text, I think. Maybe all those years of reading EU Directives have finally got to me - in those, in Civil Law courts like the ECJ, the explanation of intent stuff often over rides the plain meaning of the actual articles. 

If the explanations have no legal weight, then *WoTC are apparently NOT claiming to terminate OGL 1.0 for those who don't accept OGL 1.1*?(!)


----------



## S'mon

UngainlyTitan said:


> Ok I need some clarification here, if you would be so kind.
> 
> Are you saying that because that SRD 5.1 was published initially under the 1.0(a) OGL it can still be used but would require a court battle with WoTC?




Legally it can still be used since AFAICS they have no power to revoke the release.

What is uncertain is whether WoTC are really claiming to be able to revoke the release, as the explanatory text seems to be saying, or only ban OGL 1.0 use for signatories of OGL 1.1, which seems to be the strict legal reading of the actual terms.

If they are claiming to revoke the release, then they might conceivably sue someone who relied on OGL 1.0 for use of the 5e SRD. That claim would require a court battle to defend.

(Just been marking for hours, brain fuzzy, but hopefully I'll go over the leaked OGL terms again soon & get it clearer)


----------



## Steel_Wind

Never mind Paizo jumping into create 5.5e -- it looks like Kobold is planning to do it with *Project Black Flag*.

That didn't take long, did it? It's 2008 all over again.









						Raising Our Flag - Kobold Press
					

Kobold Press is committed to open gaming. We are moving forward with clear-eyed work on a new Core Fantasy tabletop ruleset: available, open, and subscription-free for those who love it—Code Name: Project Black Flag.




					koboldpress.com


----------



## GMforPowergamers

Steel_Wind said:


> Never mind Paizo jumping into create 5.5e -- it looks like Kobold is planning to do it with *Project Black Flag*.
> 
> That didn't take long, did it? It's 2008 all over again.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> Raising Our Flag - Kobold Press
> 
> 
> Kobold Press is committed to open gaming. We are moving forward with clear-eyed work on a new Core Fantasy tabletop ruleset: available, open, and subscription-free for those who love it—Code Name: Project Black Flag.
> 
> 
> 
> 
> koboldpress.com



is it 5.5 or is it a new system not beholden to the d20 system the ogl or D&D at all?


----------



## overgeeked

S'mon said:


> If the explanations have no legal weight, then *WoTC are apparently NOT claiming to terminate OGL 1.0 for those who don't accept OGL 1.1*?(!)



No. The bit about OGL 1.0a no longer being authorized is in the actual text, not the commentary. It appears twice. Once in the non-commercial section and again in the commercial section.


----------



## reelo

overgeeked said:


> No. The bit about OGL 1.0a no longer being authorized is in the actual text, not the commentary. It appears twice. Once in the non-commercial section and again in the commercial section.



Yes but is it "no longer authorized" implied TO BE USED WITH THE SRD 5.1, meaning it could still be used with SRD 3.5?


----------



## Enrahim2

overgeeked said:


> No. The bit about OGL 1.0a no longer being authorized is in the actual text, not the commentary. It appears twice. Once in the non-commercial section and again in the commercial section.



However I maintain that a reference to section 9 of 1.0a, simply stating that you cannot cross publish from 1.1 to 1.0a. I have yet to see a single argument that this isn't a valid interpretation beyond something like "the entire formulation is totally nonsensical", in which case also the no longer possible to use 1.0a interpretation (beyond for Licenced Content) go out of the window.


----------



## innerdude

Steel_Wind said:


> That may be WotC's position -- the problem is that it is not a legally accurate position.  The SRD 5.1 was released under the OGL 1.0a -- not _maybe_ -- *FOR SURE* it was.
> 
> They can't easily get rid of that 5.1 SRD legacy anymore than they can get rid of the SRD 3.5 legacy. The difference is, they don't care anymore about 3.5 -- but they DO NOT want Paizo to be able do the same thing to them with 5e that they did to them with 3.5. That's a real concern, I'm sure.
> 
> *Problem:* I'm not sure how WotC can actually avoid that result. What is evident to me most of all is that WotC wants to lock down the VTT space so that it is not covered by any OGL and they have complete control over it. They want their own VTT to be exclusive with OneD&D. They don't want a digital competitor in that space.
> 
> This explains the purchase of DDB for $140+ million (that was a LOT of money - *unprecedented money *in RPG land). They didn't pay that to just sell PDFs that weren't PDFs. They paid that because they are going to use it to leverage their own VTT in an attempt to recoup monthly subscription money from DMs and players alike.
> 
> And they can't do that effectively without making it exclusive. And as VTTs are allowed under OGL 1.0a, they need to shed that legal capability _somehow_.
> 
> When you look at the text of what Battlezoo released, link above, there are certain blatant lies in that document which try to re-write history, pretending certain things were not intended to be covered by the OGL 1.0a -- interactive digital products and VTTs chief among them. That is a lie of course, we know those products were intended to be permitted; WotC's own FAQ said so until 2021.
> 
> So why say something in a document that isn't true if you don't have to? _*Because they feel they have to*_. Those lies + the money spent on DDB tells you what this is _really_ all about.
> 
> It's about locking down the VTT space for 6e. They want to be able to earn _World of Warcraft _subscription money from DMs and players alike, monthly. That's the "under-monetization" that WotC is aiming to fix with $140+ million purchase. Earning WoW money is the dream of every computer and video game exec in the history of ever; that's the Golden Trophy. And they can't do that as easily if people have another, non-subscription VTT venue on which to play 6e.
> 
> The rest of this is just a shopping list of publishing druthers and OGL 1.0a _after-the-fact remorse_. They lived with all of that for 23 years. None of that was determinative. The VTT stuff, underscored by the pandemic and the ability to monetize it? _That's different_. The purchase of DDB for a *HOLY CRAP* large sum of money? That's _different_ - that's new.




QFT. This. All of this. 

This is the ONLY reason WotC is even attempting this shenanigan. Are they really concerned about somebody Paizo-ing 5e? Well, _yeah_, but the royalties and such? There's not enough 3pp that even make enough money to even care about it, and the collected royalties are a miniscule line item on the revenue report. 

The want D&D Beyond to become the _de facto _portal for everything happening in the D&D universe. They want D&D Beyond to become the Steam of roleplaying. When you sit down to roleplay, you just naturally log in to DDB _every time_, because it's the smoothest path to that experience.

And any other VTT is going to have to enter a discrete, monetarily punitive licensing agreement to even get into the arena. 

Who quoted earlier, when given the choice to earn more profit or consolidate power, businesses invariably choose to consolidate power?  

This is that. They only want authorized D&D 5.5e content to appear on their chosen, self-owned VTT platform. That's the power of consolidation.


----------



## S'mon

Enrahim2 said:


> (IANAL) That ambiguity is in the faq trying to explain the legalese. In order to disambiguate you would have to look at the legal text.
> 
> The 13th of january obviously refers to the date the agreement takes effect. A main line interpretation is that this faq claim is supposed to be a convoluted effect of "no longer authorized. I however find the folloing interpretation much more straight forward: The commercial agreement claim to be accepted if you use Licensed Content commercially, and once the agreement is in effect at January 13th, section II prohibits using Licensed Content without complying to 1.1.
> 
> Hence the faq give a straight forward easier to read (though maybe a bit clumsy) description of this particular legal claim. That it seemed like the general mood among the lawyers that this claim is not enforcable doesn't invalidate the faq description of the legal document.




OK so I had a look. Macris was trying to parse the text of the FAQ as if it were contract terms, when it's supposed to be explanatory,

The most relevant actual term:

_1.ii. Not Usable D&D Content (“Unlicensed Content”) – This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and *is not present in the SRD v. 5.1*. Unlicensed Content includes things like the most famous Dungeons & Dragons monsters, characters, magic spells, and things relating to the various settings used in Dungeons & Dragons official content over the years – *what the old Open Game License referred to as “Product Identity.”* Unlicensed Content is NOT covered by this agreement, and *You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us*. If You want to include that content in Your work, You must go through the Dungeon Masters Guild or other official channels._

OK so I feel increasingly that my initial instinct was right.  The new FAQ seems to make pre-5.1 SRD material Unlicensed, and WoTC is focused on getting people to agree they won't use it.

Conversely, they SAY here - in an actual term - that they are talking about Product Identity. PI was pretty restricted in the OGL 1.0, and obviously did NOT cover the contents of the 3e/3.5e/5e SRDs! It does say Unlicensed Content 'includes' PI, with the implication that it goes beyond PI, though. So they seem to be setting up a bait and switch for the unwary, who may think they're only agreeing not to use PI, when really they're agreeing to not use anything outside the 5.1 SRD - including the older SRDs released under the OGL 1.0.

My head hurts now.


----------



## jgbrowning

Hrm...


----------



## Enrahim2

S'mon said:


> _ *You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us*. _



But remember that OGL 1.0a is a separate agreement with "Us".


----------



## S'mon

Snarf Zagyg said:


> _shrug_ It's just a written version of the implied covenant of good faith and fair dealing. There is always the background of "no shenanigans" in contract law- it's just hard to enforce.




We don't have that implied covenant of good faith in English law, for most contracts. One reason everyone loves to come to London in their choice of jurisdiction clause.


----------



## Steel_Wind

GMforPowergamers said:


> is it 5.5 or is it a new system not beholden to the d20 system the ogl or D&D at all?



You taking bets? Your sheep's entrails reading different from mine? We've been down this road before. It's easy to see, because it looks like another fork in the RPG edition road.  

_"As we look ahead, it becomes even more important for our actions to represent our values. While we wait to see what the future holds, we are moving forward with clear-eyed work on a new Core Fantasy tabletop ruleset: *available, open, and subscription-free for those who love it*—Code Name: *Project Black Flag*. "_


----------



## Steel_Wind

S'mon said:


> We don't have that implied covenant of good faith in English law, for most contracts. One reason everyone loves to come to London in their choice of jurisdiction clause.



Yeah, the Supreme Court of Canada is starting to roll their eyes at the English courts now. It used to be that when you cited a decision of the Court of Appeal or H.L. in front of a Canadian court, they would ask counsel why that presumptively would not be followed. It was a very serious question, too.

_They don't ask that anymore._ After the HL retreated from _Anns v. Merton_ and Canada doubled down on it, we have been increasingly treating the English courts as the old Mum with dementia. After 20 years of "WTF is up with the English?" we don't even ask *that* anymore, either.


----------



## kenada

rcade said:


> If there are things in the System Reference Document that Hasbro doesn't want to share any more (hypothetical example: the Derro), instead of attacking the OGL 1.0, could Hasbro achieve that purpose by releasing a new SRD that includes them in the Product Identity clause? This would make future publishers using the OGL reluctant to use those new additions to PI. Commercial publishers will take the safest course and not use the Derro, even if they think it ought to continue to be reusable.



Not under the OGL 1.0a. Open Game Content can’t be declared Product Identity.


----------



## masdog

I joined just to comment in this thread and ask a few questions after I found this while Googling about the OGL 1.1 stuff.  And I've read through all 61(!) pages over the last couple of days (at least it was 61 pages when I started writing this).

First, thanks to @Steel_Wind @bmcdaniel @pemerton @S'mon  and others.  I know its more "What Ifs" than legal advice (because that requires a retainer, representation agreement, etc) but it has been very informative and I learned more about the intricacies of IP law than I ever wanted to know.

Second, isn't attaching the proposed OGL 1.1 to SRD5.1 effectively creating a derivative product?  They would now have two versions - the one that was released under OGL 1.0(a) that has effectively been sublicensed to others, and a new one under the proposed new license?

Edit: Fixing a typo where I had the wrong license version for the SRD.  Need more caffeine.


----------



## overgeeked

Enrahim2 said:


> However I maintain that a reference to section 9 of 1.0a, simply stating that you cannot cross publish from 1.1 to 1.0a. I have yet to see a single argument that this isn't a valid interpretation beyond something like "the entire formulation is totally nonsensical", in which case also the no longer possible to use 1.0a interpretation (beyond for Licenced Content) go out of the window.



All all this speculation and opining is still completely irrelevant. The only thing that actually matters is someone with deep-enough pockets to take WotC to court and win. Short of that, it's all pointless.


----------



## GMforPowergamers

Steel_Wind said:


> You taking bets? Your sheep's entrails reading different from mine? We've been down this road before. It's easy to see, because it looks like another fork in the RPG edition road.



no that was why I ASKED...


Steel_Wind said:


> _"As we look ahead, it becomes even more important for our actions to represent our values. While we wait to see what the future holds, we are moving forward with clear-eyed work on a new Core Fantasy tabletop ruleset: *available, open, and subscription-free for those who love it*—Code Name: *Project Black Flag*. "_



that is all i have so far too


----------



## GMforPowergamers

overgeeked said:


> All all this speculation and opining is still completely irrelevant. The only thing that actually matters is someone with deep-enough pockets to take WotC to court and win. Short of that, it's all pointless.



With Kobold doing what they are (see above) we are left waiting on the other big names but no one has said they will challenge this yet.


----------



## Micah Sweet

overgeeked said:


> All all this speculation and opining is still completely irrelevant. The only thing that actually matters is someone with deep-enough pockets to take WotC to court and win. Short of that, it's all pointless.



Unless they back off.


----------



## Steel_Wind

overgeeked said:


> All all this speculation and opining is still completely irrelevant. The only thing that actually matters is someone with deep-enough pockets to take WotC to court and win. Short of that, it's all pointless.



No, I'm sorry -- you have it backwards.

Paizo or Kobold don't have to take WotC to court. They just rely on the 1.0a OGL and do what they want to do. It's WotC who has to run off to court and try to get an injunction. And by now, if you read through 60+ pages here, you should have realized that WotC likely doesn't meet the 3 part test to obtain an injunction.

Which means WotC is the one who is likely screwed -- and it's the defendants who delay the case for years.


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## Steel_Wind

GMforPowergamers said:


> With Kobold doing what they are (see above) we are left waiting on the other big names but no one has said they will challenge this yet.



FWIW, Erik Mona was apparently breathing FIRE when he rallied the Paizo troops yesterday at an all staff meeting. They were cheering him on via Facebook, too.

Something's up. We'll wait and see.


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## mamba

Nylanfs said:


> The OGL _*was *_supposed to be read and understood by laypeople. This appears to be another departure from what has been.



I understand the OGL 1.1 just fine, it reads ‘stay the heck away from this’


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## mamba

GMforPowergamers said:


> is it 5.5 or is it a new system not beholden to the d20 system the ogl or D&D at all?



will have to be the latter, but I expect them to steer close to 5e


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## S'mon

Steel_Wind said:


> Yeah, the Supreme Court of Canada is starting to roll their eyes at the English courts now. It used to be that when you cited a decision of the Court of Appeal or H.L. in front of a Canadian court, they would ask counsel why that presumptively would not be followed. It was a very serious question, too.
> 
> _They don't ask that anymore._ After the HL retreated from _Anns v. Merton_ and Canada doubled down on it, we have been increasingly treating the English courts as the old Mum with dementia. After 20 years of "WTF is up with the English?" we don't even ask *that* anymore, either.




Brilliant. Yeah my more left-wing academic colleagues have come up with a thing called "Neo-Classical Contract Law" which is basically the opposite of what it says, it's very much _Anns v Merton (which was Tort, right? No biggie)   _Meanwhile I have to explain to my students that if anything our actual judges/courts are doubling down on a strict Classical approach and all that neo-Classical guff is for the birds (and the Canadians, apparently).

-Simon after 1 cider.


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## Cadence

Enrahim2 said:


> Yes, I can really understand it feels that way. But how much of that feeling do you think is caused by what wizards actually has said, vs what others have claimed or speculated about wizards and what they claim wizards are saying?




I'm taking the document that's out being something WotC said to at least some people.

And so it kind of feels like it's what WotC said they wanted?

"previously available OGL 1.0(a), which is no longer an authorized license agreement."

"What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project. But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial"

It feels very implausible to me that the document didn't originate with WotC.  And even if they want to take it back, it feels like it proclaims the thinking of some folks pretty high up.


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## S'mon

Steel_Wind said:


> FWIW, Erik Mona was apparently breathing FIRE when he rallied the Paizo troops yesterday at an all staff meeting. They were cheering him on via Facebook, too.
> 
> Something's up.




I can imagine Erik Mona's speech now:

_"There may come a time when the courage of Paizo fails! An age of woe and shattered OGLs, when the age of 3PPs comes crashing down! But it is not this day!  By all you hold dear on this good earth, I bid you stand, Persons of the Third Party Publishing Community!"_


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## Steel_Wind

S'mon said:


> OK so I had a look. Macris was trying to parse the text of the FAQ as if it were contract terms, when it's supposed to be explanatory,
> 
> The most relevant actual term:
> 
> _1.ii. Not Usable D&D Content (“Unlicensed Content”) – This is Dungeons & Dragons content that has been or later will be produced as “official” – that is, released by Wizards of the Coast or any of its predecessors or successors – and *is not present in the SRD v. 5.1*. Unlicensed Content includes things like the most famous Dungeons & Dragons monsters, characters, magic spells, and things relating to the various settings used in Dungeons & Dragons official content over the years – *what the old Open Game License referred to as “Product Identity.”* Unlicensed Content is NOT covered by this agreement, and *You agree not to use Unlicensed Content unless Your use is specifically authorized by a separate agreement with Us*. If You want to include that content in Your work, You must go through the Dungeon Masters Guild or other official channels._
> 
> OK so I feel increasingly that my initial instinct was right.  The new FAQ seems to make pre-5.1 SRD material Unlicensed, and WoTC is focused on getting people to agree they won't use it.
> 
> Conversely, they SAY here - in an actual term - that they are talking about Product Identity. PI was pretty restricted in the OGL 1.0, and obviously did NOT cover the contents of the 3e/3.5e/5e SRDs! It does say Unlicensed Content 'includes' PI, with the implication that it goes beyond PI, though. So they seem to be setting up a bait and switch for the unwary, who may think they're only agreeing not to use PI, when really they're agreeing to not use anything outside the 5.1 SRD - including the older SRDs released under the OGL 1.0.
> 
> My head hurts now.



I think you are tilting at windmills now. This sort of careful analysis on non-legal language is, ultimately, a waste of effort and _glia_.

The actual language of Not Open GL 1.1  will come soon enough. Save your efforts for that dive, I think.


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## Enrahim2

S'mon said:


> Conversely, they SAY here - in an actual term - that they are talking about Product Identity. PI was pretty restricted in the OGL 1.0, and obviously did NOT cover the contents of the 3e/3.5e/5e SRDs! It does say Unlicensed Content 'includes' PI, with the implication that it goes beyond PI, though. So they seem to be setting up a bait and switch for the unwary, who may think they're only agreeing not to use PI, when really they're agreeing to not use anything outside the 5.1 SRD - including the older SRDs released under the OGL 1.0



Oh, this is great! The definition of "Unlicensed Content" actually are very vague. There are only 2 conditions described. One is that is non 5.1 srd published by wizards, but critically it doesn't say _all_. That there is not an implied all can also be gathered as that would have made the next part redundant. They then specify that this "include" certain monsters etc, then with a clarifying dash refering to previous ogls PI term. Again they do not say it include "all", when they describe monsters, spells etc, which might be interpreted that there are monsters etc that falls outside "unlicensed content". However the clarifying dash could be interpreted that this modulates which of those "included" categories are actually included, and hence it prohibits all previous PI. 

In short the only thing clearly "Unlicensed Content" is PI that appear in works by wizard, and do not appear in the 5.1 SRD.

*This way of restricting "Unlisenced content" make perfect sense if wizard want to keep exploiting 1.0a!* There are nothing requiring any OGC to be considered "Unlicensed Content", and hence lisencees are not restricted from using 1.0a content according to section 9. If wizards wanted to try lock down 1.0a content it would have been much simpler to just state "Any wizards content not considered "Licensed Content"?

I think the formulation as such clearly seem to define OGC as outside "Unlicensed Content" by virtue of the obvious contrasting of the given example. This might leave some grey areas like tsr era works currently published by wizards, but as there are no OGL currently allowing distribution of such at all, this particular lisence do not need to take a stance in that question.

Indeed this is a strong indicator that old OGC is intended to be exactly the relevant exception to "Unlicensed Content", *Which seem like a very weird distinction to want to uphold with so many words if wizard has intended to "nullify"/"terminate" or "revoke" 1.0a*


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## Riley

mamba said:


> will have to be the latter, but I expect them to steer close to 5e




Kobold Press published 4e adventures without either the GSL or the OGL.

I expect they will do something similar going forward.


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## Enrahim2

Cadence said:


> I'm taking the document that's out being something WotC said to at least some people.
> 
> And so it kind of feels like it's what WotC said they wanted?
> 
> "previously available OGL 1.0(a), which is no longer an authorized license agreement."
> 
> "What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project. But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial"
> 
> It feels very implausible to me that the document didn't originate with WotC.  And even if they want to take it back, it feels like it proclaims the thinking of some folks pretty high up.



Yes, but as have been argued, there are more reasonable interpretations off those two quotes once you put your legalese glaces on ond start reading the context. These quotes were initially leaked and published without the needed context to have any good chance of recognising these alternative in context far more reasonable interpretations.

So someone somewhere leaked very spesific exerps, particularly easy to misunderstand if viewed trough a lense of mistrust and out of context, and let that ferment for a few days.. I am not surprised at all that these misunderstandings have now set emotional roots. And yes, this is caused by words originally written by wizards. But it was someone else that took these words and put it into the context that now make you feel like you do.


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## Enrahim2

(And I keep forgetting to mention IANAL)...


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## S'mon

Steel_Wind said:


> I think you are tilting at windmills now. This sort of careful analysis on non-legal language is, ultimately, a waste of effort and _glia_.
> 
> The actual language of Not Open GL 1.1  will come soon enough. Save your efforts for that dive, I think.




Well I think we disagree in that I think we're looking at something presented to major 3PPs as an actual draft of OGL 1.1, or even the intended final version.


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## DavyGreenwind

reelo said:


> See a comment (a lot) higher up:



Here, the difference between a necessary condition and a sufficient condition is important. The OGL describes a sufficient condition to terminate the agreement, but not a necessary condition. A sufficient condition is a condition which will always cause a certain result. A necessary condition is a condition which is needed to cause a result, but does not guarantee it. If breach were necessary for termination, it would read something like "This agreement is terminated _only _upon a breach of these terms."

Here's a D&D example, because I am just like this. Let's say I want to attune to a Staff of Power, and I am a Sorcerer. Being a Sorcerer is a _sufficient condition_ to attune_, _because Sorcerers may attune to the staff, but being a Sorcerer is not a _necessary condition_, because Wizards can also attune to it. But it is a _necessary condition_ of attunement that the attuner is a Sorcerer, Wizard, or Warlock, because if they are not one of those, attunement cannot happen (I know the Thief and Artificer have some shenanigans, this is just an example).


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## GMforPowergamers

Steel_Wind said:


> FWIW, Erik Mona was apparently breathing FIRE when he rallied the Paizo troops yesterday at an all staff meeting. They were cheering him on via Facebook, too.
> 
> Something's up. We'll wait and see.



the important part is exactly that... we wait and see


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## Cadence

Enrahim2 said:


> Yes, but as have been argued, there are more reasonable interpretations off those two quotes once you put your legalese glaces on ond start reading the context. These quotes were initially leaked and published without the needed context to have any good chance of recognising these alternative in context far more reasonable interpretations.
> 
> So someone somewhere leaked very spesific exerps, particularly easy to misunderstand if viewed trough a lense of mistrust and out of context, and let that ferment for a few days.. I am not surprised at all that these misunderstandings have now set emotional roots. And yes, this is caused by words originally written by wizards. But it was someone else that took these words and put it into the context that now make you feel like you do.




Those are both from the 15 page document.  Which parts of the document gives a nicer interpretation to "What if I don’t like these terms and don’t agree to..." quote?  Or are you saying you think it was highly edited by non-WotC folks?

In any case, we'll all find out at some point I presume.

My "favorite" is still IX.B. "If a claim is raised against You in connection with a Licensed Work, and You aren’t defending such a claim to Our satisfaction, We have the right, but not the obligation, to take over the defense of that claim against You. If We do so, You will reimburse Us for Our costs and expenses related to that defense."


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## DavyGreenwind

A good post:


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## David Spake

grr. apologies.


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## falconloft

I'm a little surprised that a lawyer would post the original statement without considering Jacobsen v. Katzer (2008). (I say considering; it's certainly not _mentioned.)_

Jacobsen v. Katzer says that even a license that is silent on revocation but terms itself perpetual may only be revoked if there was "no consideration". On consideration, JvK says "Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge." In other words, with Jacobsen v. Katzer as a precedent, since D&D gained market share because of the OGL, it can't now be revoked or have authorization removed.

Precedents don't have to be followed, of course, and this is not an exactly analogous case, but it would certainly be part of any legal argument made _if _this went to court.


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## Steel_Wind

S'mon said:


> Brilliant. Yeah my more left-wing academic colleagues have come up with a thing called "Neo-Classical Contract Law" which is basically the opposite of what it says, it's very much _Anns v Merton (which was Tort, right? No biggie)  _Meanwhile I have to explain to my students that if anything our actual judges/courts are doubling down on a strict Classical approach and all that neo-Classical guff is for the birds (and the Canadians, apparently).
> 
> -Simon after 1 cider.



_Anns v Merton _was our tort divide, _Bhasin v Hrynew _is our contract divide, and our real property law has been distinct for a long while. Our Criminal law is dominated by the Canadian _Charter of Rights and Freedoms; _yours is dominated by a constitution that does not exist and a restraint on Parliament's power which amounts to a guess at how far they can go before a dozen Molotov cocktails are thrown towards 10 Downing_. _Our securities law dances with NY and the US SEC, yours dances to the beat of a London DJ - and Saudi money.

There's just not that much we have in common re: our common law anymore!


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