# OGL 1.1... quote the lawyers (and link)



## Morrus

If you know of somebody who is (or at least claims to be) a lawyer who has commented on the new OGL v1.1., put it in this thread. 

If you are a lawyer, feel free to comment.









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

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...




					www.enworld.org


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## darjr

Note there is a rumor of a letter to/from WotC lawyers about this floating around.


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## Xethreau

There is the Rules Lawyer on the 6e GSL in general


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## Xethreau

There is also this rumor / hearsay thing expressed in another thread.



BMaC said:


> My good friend is an IP lawyer.  He opines that the old OGL will hold because of this, among other reasons: contra proferentem




And that's helpful because the good-faith reading of "authorized" means "a liscence version produced by a WotC approved partner."


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## Greg K

They talk to a lawer about WOTC revoking/disauthorizing OGL 1.0a and states numerous items stacked against WOTC legally doing so. However, he also cites a federal statute (?) that would allow WOTC to do so in another 12 years (i.e. 35 years after releasing the license).


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## Xethreau

Greg K said:


>



Wow that's a long video! In the interest of the community, can we get a summary?


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## Greg K

Xethreau said:


> Wow that's a long video! In the interest of the community, can we get a summary?



Unfortunately, someone else will have to do so (Long Covid issues prevent me from doing it). I think he covers most everything in the first 15 minutes.


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## Greg Benage

Xethreau said:


> Wow that's a long video! In the interest of the community, can we get a summary?



The legal case for revocability of 1.0a is weak, it would ultimately have to be decided in court, WotC can bully.


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## Haplo781




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## Xethreau

Haplo781 said:


>



This is amazing! I feel so seen right now.


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## Steampunkette

That letter gives me SO MUCH HOPE.

Also the Class Action against Wizards would probably be amazing if Wizards pressed the matter, based on the letter.


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## Cadence

Steampunkette said:


> That letter gives me SO MUCH HOPE.
> 
> Also the Class Action against Wizards would probably be amazing if Wizards pressed the matter, based on the letter.




I was just wondering in another thread if those who had purchased gaming materials because of WotC representations about 1.0a being eternal would be a class too (seemingly a much bigger one).


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## Alzrius

Cadence said:


> I was just wondering in another thread if those who had purchased gaming materials because of WotC representations about 1.0a being eternal would be a class too (seemingly a much bigger one).



Not being a lawyer, I suspect my speculation on this is pointless, but I'll go ahead anyway.

My guess is that being a consumer who's potentially disaffected that more of the content they like can't/won't be produced doesn't grant sufficient legal standing to file a civil suit against a corporation, let alone be certified as a class. Third-party content _producers_, who're actually using the OGL v1.0a, might be able to, but just people who buy OGL products? That I doubt.

Which isn't to say that I'm not disheartened by this. I am! My game of choice is Pathfinder 1E, and I want to see new content produced for it by third-parties. Less than a week ago, I picked up a copy of Legendary Games' _Legendary Companions_ (affiliate link), which is an excellent product; I'm very satisfied with my purchase. More than that, I'm happy to see quality products for the game I enjoy coming out more than three years after official support for it ended. I don't want that to stop...but I don't think that's sufficient legal basis for filing suit against WotC.


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## Cadence

Alzrius said:


> Not being a lawyer, I suspect my speculation on this is pointless, but I'll go ahead anyway.
> 
> My guess is that being a consumer who's potentially disaffected that more of the content they like can't/won't be produced doesn't grant sufficient legal standing to file a civil suit against a corporation, let alone be certified as a class. Third-party content _producers_, who're actually using the OGL v1.0a, might be able to, but just people who buy OGL products? That I doubt.




I bought many of them expressly with the expectation of being able to use them to make a heartbreaker someday that I could do whatever I wanted with under the 1.0a (searchable web-things? maybe charge for some of it some day?  certainly not have revocability hanging over my head).


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## Steampunkette




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## Greg Benage

Ahhh the lobotomizer followed me home!


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## S'mon

I teach commercial IP & Contract in England. I am not a practicing lawyer, I do not have a legal practice qualification. I contributed to this thread Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

Apart from the OP there's (I believe) Snarf Zagyg Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Mistwell Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
There's Steelwind Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Pemerton Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel  Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

_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._

Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O


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## Umbran

I am not a lawyer.  However, it would seem to me that analysis of the situation should include, specifically and explicitly, the legal precedents surrounding other open licenses, like the GPL often used in open software.  

I am informed that while the most recent GPL currently includes the word "irrevocable", early forms did not, but it held up as irrevocable in legal challenges anyway - later versions included the word for clarity.

Basically, check software open source cases, seeing as Dancey was using open software as a model when making the OGL.


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## S'mon

Umbran said:


> I am informed that while the most recent GPL currently includes the word "irrevocable", early forms did not, but it held up as irrevocable in legal challenges anyway - later versions included the word for clarity.
> 
> Basically, check software open source cases, seeing as Dancey was using open software as a model when making the OGL.




Do you know the name of a case where the GSL withstood challenge? I'm looking at Wikipedia Open source license litigation - Wikipedia but can't see it.


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## Umbran

S'mon said:


> Do you know the name of a case where the GSL withstood challenge? I'm looking at Wikipedia Open source license litigation - Wikipedia but can't see it.




I do not know case names, but back in 2003, SCO Group was challenging the legality of the GPL, in a suit against IBM.  SCO had signed on to the license, then tried to sue IBM for copyright infringement. over it.






						SCO Scuttles Sense, Claiming GPL Invalidity - GNU Project - Free Software Foundation
					






					www.gnu.org


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## Alzrius

S'mon said:


> Do you know the name of a case where the GSL withstood challenge? I'm looking at Wikipedia Open source license litigation - Wikipedia but can't see it.



I thought someone else on here mentioned that it was this one, but I'm not sure:









						Jacobsen v. Katzer - Wikipedia
					






					en.wikipedia.org


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## S'mon

Umbran said:


> I do not know case names, but back in 2003, SCO Group was challenging the legality of the GPL, in a suit against IBM.  SCO had signed on to the license, then tried to sue IBM for copyright infringement. over it.
> 
> 
> 
> 
> 
> 
> SCO Scuttles Sense, Claiming GPL Invalidity - GNU Project - Free Software Foundation
> 
> 
> 
> 
> 
> 
> 
> www.gnu.org



That piece was very funny!


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## S'mon

Alzrius said:


> I thought someone else on here mentioned that it was this one, but I'm not sure:
> 
> 
> 
> 
> 
> 
> 
> 
> 
> Jacobsen v. Katzer - Wikipedia
> 
> 
> 
> 
> 
> 
> 
> en.wikipedia.org




I've been told in the thread it wasn't about that, though. But I'll check, thanks.


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## S'mon

I just found this below on LexisNexis UK - quoted for the purposes of Criticism. Most important parts bolded. From _BMS Computer Solutions v AB Agri _it looks to me that the revocability of a Perpetual licence depends heavily on the circumstances, as I thought. 


_______________________________________
‘Perpetual’ licences​Never ending or of indefinite duration?​
The word ‘perpetual’ in a software licence can have different shades of meaning depending on the circumstances. It could mean:


•
never ending, ie incapable of being bought to an end, or
•
operating without a specific limit of time (ie of indefinite duration) but still ultimately terminable
In the case of _BMS Computer Solutions v AB Agri_, the licence was initially for a ten-year term (subject to various provisions for early termination for breach, etc). The licence (and an associated software support agreement) were subsequently amended by a variation agreement to become a *‘perpetual licence’.* The case concerned the meaning of the word ‘perpetual’ in this context. The court held that *the licence was ‘of indefinite duration, but subject to any contractual provisions governing termination of the licence’. The reasons for this decision depended on the circumstances*, in particular:


•
the variation agreement was not intended to wholly displace the earlier licence agreement, which meant the original termination provisions survived the variation. The licence had simply been varied from being one of limited (ten-year) duration to being of indefinite duration. The use of the word ‘perpetual’ did not implicitly terminate earlier termination provisions, and
•
there was clearly a continued commercial need for the termination provisions in the licence agreement to continue, otherwise there was no way of bringing potentially onerous obligations in that agreement (eg reporting obligations) to an end
This interpretation of ‘perpetual’* relied heavily on the facts of this case *and so a *different interpretation could be reached in different circumstances*. Generally, it is good practice to avoid drafting intellectual property licences of ‘perpetual’ or indefinite duration as this leads to uncertainty and disputes. The better approach is for the parties to agree a specific duration and a clear basis to establish when the licence will expire or can be terminated. If the intention is that a licence will be never ending and not capable of termination then this should be expressly stated.


Where a perpetual licence includes an obligation to support and maintain the software in perpetuity, there is no implied right for the supplier to terminate. It is essential that the right to terminate is specified in the agreement.


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## Xethreau

S'mon said:


> Where a perpetual licence includes an obligation to support and maintain the software in perpetuity, there is no implied right for the supplier to terminate. It is essential that the right to terminate is specified in the agreement.



And the OGL does specify a right to terminate. But as is said in the letter on behalf of Sad Fishe Games, The license can only be terminated in cases of IP infractions!


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## Henadic Theologian

S'mon said:


> I teach commercial IP & Contract in England. I am not a practicing lawyer, I do not have a legal practice qualification. I contributed to this thread Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> Apart from the OP there's (I believe) Snarf Zagyg Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Mistwell Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> There's Steelwind Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Pemerton Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel  Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> _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._
> 
> Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O




 Okay this seems like the winning arguement.


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## Xethreau

Another lawyer opines.


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## Umbran

I found a discussion of why the GPLv2, which does not contain the word "irrevocable" still turned out to be so - it is along the same lines as what S'mon has posted.



			7 Defending Freedom on Many Fronts


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## Greg Benage

Xethreau said:


> Another lawyer opines.



The article was informative, but I nearly spit out my Diet Coke at this part:



> Your Works are the core of your business — it would generally be a bad idea to give someone else near-unlimited access to your business.




Wizards: No naughty word, buddy.


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## Morrus

One important take-home from this is that lawyers don't always agree with each other! I guess if they did, we wouldn't need courts.


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## SAVeira

Morrus said:


> One important take-home from this is that lawyers don't always agree with each other! I guess if they did, we wouldn't need courts.



Exactly what my grand-uncle, a very successful criminal lawyer once explained to me when I was in high school and was concerning going to law school.


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## GMforPowergamers

not exactly a lawyer per say but before all this:


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## Xethreau

GMforPowergamers said:


> not exactly a lawyer per say but before all this:
> View attachment 271481



Evil Hat used to use OGL for Fate, But they've now moved to CC3 BY, for similar reasons as I understand.


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## Morrus

GMforPowergamers said:


> not exactly a lawyer per say but before all this:
> View attachment 271481



That’s a different use case to most of us. They’re licensing out their own system; most OGC creators are using it to license in WotC’s system.


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## GMforPowergamers

Morrus said:


> That’s a different use case to most of us. They’re licensing out their own system; most OGC creators are using it to license in WotC’s system.



right but they chose not to use the wording/construct of the WotC one because they didn't trust it... they saw SOMETHING in it.


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## Snarf Zagyg

Xethreau said:


> Another lawyer opines.




That's .... actually a pretty sound and careful analysis.


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## S'mon

S'mon said:


> I teach commercial IP & Contract in England. I am not a practicing lawyer, I do not have a legal practice qualification. I contributed to this thread Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> Apart from the OP there's (I believe) Snarf Zagyg Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Mistwell Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> There's Steelwind Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion. and Pemerton Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> However Pemerton & I think that the best and most comprehensive legal analysis from a US Contract Law perspective came from bmcdaniel  Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
> 
> _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._
> 
> Edit: Oh, by 'this thread' you meant the thread I've been picking from? :-O



bmcdaniel has another excellent post Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

IMO this quality of analysis is usually billed for, so consider ourselves fortunate.


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## mhd

GMforPowergamers said:


> not exactly a lawyer per say but before all this:
> View attachment 271481



The new Chaosium license? That's definitely not the only reason they did this, though.


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## pemerton

Xethreau said:


> And the OGL does specify a right to terminate. But as is said in the letter on behalf of Sad Fishe Games, The license can only be terminated in cases of IP infractions!



Note that section 13 doesn't expressly specify that it is the sole basis for termination. So the argument that it _is_ the sole basis depends on establishing an implication.

This is an illustration of this point:


bmcdaniel said:


> the scope and revocability of a license to use copyrighted materials is subject to ordinary principles of contractual interpretation.



Naturally the letter advances the interpretive argument most favourable to the client. I don't think it's a hopeless argument, but it can't be treated as knock-down either.


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## pemerton

I should add: I'm an academic lawyer in Australia. I don't have a practising certificate and am certainly not giving legal advice!

I do teach and publish in private law and legal interpretation (among other fields), although contract and IP law - especially the US versions thereof - are not my principal areas of expertise.


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## Nikosandros

pemerton said:


> This is an illustration of this point:
> Naturally the letter advances the interpretive argument most favourable to the client. I don't think it's a hopeless argument, but it can't be treated as knock-down either.



Could you clarify this point?


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## pemerton

Nikosandros said:


> Could you clarify this point?



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!


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## Nikosandros

Thanks. Turns out that I'm dumb because I had misinterpreted which letter you were talking about, but thanks in any case for the extra clarifications.


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## Alzrius

One point which has been raised here is the possibility that those who've published material under the OGL v1.0a to date might be able to continue doing so after WotC tries to revoke the license on January 13th of this year. As a point of clarification, is that the case for _individuals_ who've published Open Game Content (i.e. can point to a Section 15 copyright listing that names them specifically as an author), or is that only the case for publishers (most of which are business entities)?


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## pemerton

Alzrius said:


> One point which has been raised here is the possibility that those who've published material under the OGL v1.0a to date might be able to continue doing so after WotC tries to revoke the license on January 13th of this year. As a point of clarification, is that the case for _individuals_ who've published Open Game Content (i.e. can point to a Section 15 copyright listing that names them specifically as an author), or is that only the case for publishers (most of which are business entities)?



I don't know on what basis you are distinguishing "individuals" from "publishers". By "individuals" do you mean natural persons? But nothing stops an individual from being a publisher.

Rights under the OGL v 1.0a are enjoyed by the party to the licence - as per section 1, '"You" or "Your" means the licensee in terms of this agreement.' As per section 3, you become a party to the licence by using the OGC - where "Using" it itself a defined term. If you Used the OGC but didn't conform to the requirements of the OGL (which section 4 requires that you do) then you are in breach and hence subject to section 13 termination.

I wouldn't be surprised if there are some, perhaps many, parties to the agreement who haven't conformed and hence are in breach. And I would expect wonky section 15 declarations to be one area where that non-conformity manifests itself.


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## Orius

Morrus said:


> One important take-home from this is that lawyers don't always agree with each other! I guess if they did, we wouldn't need courts.




If lawyers agreed on anything, it'd probably make it harder to charge by the hour!


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## Malchor Flubbit

Not quotes from lawyers, but relevant:

U.S. Copyright Office's factsheet fl-108 on Games.

DaVinci Editrice S.R.L. v. ZiKo Games, LLC: case law from a tabletop card game with some similarities to an RPG, showing once again that a system (collection of mechanics) can't be copyrighted, and that common terms for abilities (another mechanic) and interactions of characters (classes here) and abilities are part of the system and not expressions.


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## pemerton

Malchor Flubbit said:


> DaVinci Editrice S.R.L. v. ZiKo Games, LLC: case law from a tabletop card game with some similarities to an RPG, showing once again that a system (collection of mechanics) can't be copyrighted, and *that common terms for abilities (another mechanic) and interactions of characters (classes here) and abilities are part of the system and not expressions*.



I just read the case, following your link in the other thread. The part of your post I've bolded was confined to the context of that case: they were stock characters and stock abilities. The case didn't overturn or question the soundness of the Streetfighter case that held otherwise in respect of certain imaginative special abilities.


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## Malchor Flubbit

pemerton said:


> I just read the case, following your link in the other thread. The part of your post I've bolded was confined to the context of that case: they were stock characters and stock abilities. The case didn't overturn or question the soundness of the Streetfighter case that held otherwise in respect of certain imaginative special abilities.



Thanks for the clarification.


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## Malchor Flubbit

Also not quotes from lawyers, but may be helpful.


OPEN GAME LICENSE (Simplified), Version .02 this is a draft, show to distinguish what an unauthorized draft versus an authorized version means.
OPEN GAME LICENSE Version 1.0 includes an FAQ, might be the same as the one later found on the Wizards.com site.
OPEN GAME LICENSE Version 1.0a same FAQ as above.

BTW, what is the difference between 1.0 and 1.0a besides the version are small changes in section 7 changing two instances of "Trademark" to "Trademark or Registered Trademark."


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## Malchor Flubbit

To give some perspective on the leaked OGL 1.1 here is a March 19, 2000 interview with Ryan Dancey.


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## Thanlis

Xethreau said:


> Evil Hat used to use OGL for Fate, But they've now moved to CC3 BY, for similar reasons as I understand.



Minor note: they added CC BY in 2013, but as of right now their SRDs are still dual-licensed.


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## ninjayeti

I am a lawyer.  I have no professional expertise on this topic, have not done any specific research, and am not providing legal advice.  This is based on my understanding of general U.S. contract law and other lawyers I have seen/read discussing this issue.

As an overriding principle, where a contract's terms are clear, a court will not look beyond the four corners of the document.  However, if terms are missing or ambiguous, a court will try to determine the objective intent of the parties as to that term - i.e. what the parties would would have said if the issue had been spelled out in the contract. 

Here the OGL 1.0 is silent as to whether or not it is revocable.  (Alternatively it is ambiguous as to whether "perpetual" revers to revocation or merely duration; I think the overall analysis is the same either way).  Thus a court would look at the intent of the parties on the issue. 

Without delving deeply into the facts, I think it is clear that the licensee and licensors believed that OGL 1.0 was irrevocable.  The FAQ and statements by Ryan Dancy discussed in other threads are clear on this.  Other considerations a court could look to on this are the course of performance (WotC did not revoke the OGL over twenty years, despite revising the terms for 4E, and even when Pathfinder eclipsed D&D in the market; this suggests that it was understood to be irrevocable) and the reasonable commercial expectations of the parties (no reasonable company would build their entire business around licensed content if they understood that their license could be revoked by their main competitor at a moment's notice). 

Yes, there are cases holding that "perpetual" licenses can be revoked at will.  This seems to be the basis for other lawyers who have expressed the opinion that OGL 1.0 is revocable.   However, without having reviewed those cases, I would assume that those courts did so based on an analysis of the specific facts at issue there.  Put differently, based on my understanding of the principles of U.S. contract law, I would be VERY surprised if any case has held that were a contract is silent as to revocability, it is per se revocable, even where the parties had a contrary intent. 

In sum, I believe OGL is irrevocable; while the actual license is silent, the parties' intent that it be irrevocable is clear.  That said, WotC will be able to cite a number of cases holding (on different facts) perpetual license agreements are revocable, so they should be able to present at least a colorable case if they want to challenge this.  I wouldn't underestimate the ability of savvy lawyers, in a high-stakes case such as this from putting up a good fight.  

As a practical matter, I think any litigation between WotC and the major players (e.g., Paizo) will settle.  In my experience most companies are risk-adverse; where stakes are very high for both sides, and neither has a clear slam-dunk case, they are going to settle for a compromise they can live with rather than rolling the dice.  This means the revocability of OGL 1.0 may remain an unresolved issue that deters publishers from using it for a long time, even if the argument for it is weak.


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## kenada

pemerton said:


> I just read the case, following your link in the other thread. The part of your post I've bolded was confined to the context of that case: they were stock characters and stock abilities. The case didn't overturn or question the soundness of the Streetfighter case that held otherwise in respect of certain imaginative special abilities.



Which one is the Street Fighter case? _Capcom U.S.A. Inc. v. Data East Corp._?

The Wikipedia article on that case has links to two others that found some game elements can be copyrighted: _Tetris v. Xio_ and _Spry Fox, LLC v. Lolapps, Inc_. @S'mon has mentioned that the OGL is still a safer option because of the safe harbor, which I assume is because it’s not settled just where the idea stops and expression begins for tabletop RPGs.


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## Clint_L

Edit: wrong thread


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## pemerton

@ninjayeti

What you say is (broadly) in line with the ideas that @Steel_Wind, @S'mon and I (with varying degrees of expertise and certainty) have been kicking around in the PSA thread.

Your point about the construction of the contract occurring _in context_ rather than in a "per se" or mechanical fashion I think is especially important to stress for readers who are less familiar with how the process of legal interpretation works.


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## S'mon

ninjayeti said:


> Yes, there are cases holding that "perpetual" licenses can be revoked at will.  This seems to be the basis for other lawyers who have expressed the opinion that OGL 1.0 is revocable.   However, without having reviewed those cases, I would assume that *those courts did so based on an analysis of the specific facts at issue there. *




Yes, indeed that's what I found when I looked.


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## pemerton

kenada said:


> Which one is the Street Fighter case? _Capcom U.S.A. Inc. v. Data East Corp._?



Yep. I haven't read it, but it is set out and analysed, at least in part, in the Davinci case.



kenada said:


> @S'mon[/USER] has mentioned that the OGL is still a safer option because of the safe harbor, which I assume is because it’s not settled just where the idea stops and expression begins for tabletop RPGs.



The other reason is because, as a matter of fact, heaps of stuff published under the OGL reproduces others' copyrighted text, or text and expression closely related to or derived from others' copyrighted text. Which is not a coincidence - that's exactly the state of affairs the OGL is meant to encourage!

But it means that keeping the work much the same but stripping away the OGL creates the risk of exposure to liability for copyright infringement.


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## Malchor Flubbit

Some more, not lawyer quotes, but WotC material:

Software FAQ, Version 1.0 -- January 26, 2004, from wizards.com

Other Licenses: Frequently Asked Questions, Version 2.0 -- January 26, 2004

Open Game License: Frequently Asked Questions, Version 2.0 -- January 26, 2004 (note: this page was live until at least a Nov. 27, 2021 capture by archive.org https://web.archive.org/web/20211127200600/http://www.wizards.com/default.asp?x=d20/oglfaq/20040123f)

System Reference Document: Frequently Asked Questions
Key bit here:


> *Q: There's a lot of material in the SRD that seems too simple to copyright or comes from the public domain. Why does Wizards of the Coast call the whole thing Open Game Content (OGL)?*
> 
> A: One of the objectives of the OGL/d20 project is to create a "safe harbor" that clearly identifies material that can be used, derived from, modified, and distributed without fear of litigation. To that end, the SRD contains material that is public domain, copyright, and somewhere in between. But using the OGL, it all carries with it the same, uniform set of rights, thus creating the safe harbor.​




d20 System Trademark FAQ: this one has some interesting bits on "character generator,""any program that reports the success or failure of an action," "creating an online RPG, MUD, MUSH, MOO," as well as, "character creation," and assinging experience points and "experience point chart."

The d20 System Concept: Frequently Asked Questions, Version 1.0

Revised (v.3.5), System Reference Document


Open Gaming License (12k RTF) 
d20 System License 6.0 (12k RTF)
d20 System Guide 5.0 (788k RTF) 
Electronic SKU Download (ESD) Conversion Agreement(12k RTF)


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