# Reading 1.1 legalese



## Enrahim2

There are already some threads discussing the release of claimed full text version of the OGL-1.1. Those I have seen have so far focused on discussing the validity of the document, and continued speculating around the consequences. These are fine discussions, but I wanted to make a thread for trying to make a more deep dive into the legal formulations that we now have. What I am curious about is things like if there are some non-obvious meanings or pitfalls that might not be obvious to the lay person; if there are things that might seem weird but is indeed quite common; or if there are anything that seem unusual/nonsensical (preferably beyond the already much discussed "no longer an authorized version"

I am not a lawyer, but I still have some thoughts that I hope to share soon, but want to get this thread started in case others also are burning to talk about this angle of the new developments.


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## Ruin Explorer

The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization and its legality has been one of the central discussions (TLDR: no-one is sure). I'm not saying shut your thread down but it does seem unnecessary.


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## Cadence

Ruin Explorer said:


> The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization has been one of the central discussions. I'm not saying shut your thread down but it does seem unnecessary.




The part that floored me was where they could make you pick up their legal fees for defending you if they thought you weren't doing it well enough.  Is that a thing that shows up in other licenses?


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## Enrahim2

One thing that strike me is the clear seperation between 3 kinds of content: "Licensed Content" "Unlicensed Content" and "Licensed Work". These seem to be attempted defined as "keywords" with a much more specific meaning than what you would think of from "everyday" language. For instance "Licensed Content" and "Unlicensed Content" is not complimentary in the space of all "content" but rather in a more weakly defined space of WotC content.

When I say weakly defined I want to point to the missing "all", and the "includes" formulations that if all had been implied seem redundant from a legal standpoint.

Is this kind of definitions of terms that seem highly relevant for the subject matter away from a more common understanding of the terms common?

As a side note to that - in a comment Licensed Content is associated with the old term "Open Game Content" from the "old OGL". As this is outside the legal terms of the contract, do this still have any modulating effect on the actual legal interpretation of the definition in the definitions in section I. As those terms seem to be weaker defined than the corresponding 1.0a terms.


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## Ruin Explorer

Enrahim2 said:


> These seem to be attempted defined as "keywords" with a much more specific meaning than what you would think of from "everyday" language.



Buddy. Dude.

No.

They're called Definitions.

It's a something that legal documents have done for centuries. Possibly millennia. They're such a basic concept it's actually quite hard to find a good explanation.



Enrahim2 said:


> Is this kind of definitions of terms that seem highly relevant for the subject matter away from a more common understanding of the terms common?



Absolutely yes. Have you... never read a contract?



Enrahim2 said:


> As a side note to that - in a comment Licensed Content is associated with the old term "Open Game Content" from the "old OGL". As this is outside the legal terms of the contract, do this still have any modulating effect on the actual legal interpretation of the definition in the definitions in section I. As those terms seem to be weaker defined than the corresponding 1.0a terms.



The comments have no real legal strength though they might end up being discussed in court in terms of intent or the like.


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## Enrahim2

Ruin Explorer said:


> The legalese has been discussed pretty extensively. The most important parts of it were in the previous leaks. Deauthorization and its legality has been one of the central discussions (TLDR: no-one is sure). I'm not saying shut your thread down but it does seem unnecessary.



I completely agree. The "No longer an authorized license" formulation has likely been discussed close to death (though I think my interpretation of it primarly being intended to ensure 1.1 content couldn't be used with 1.0a has been strangely ignored - and I think that interpretation is strengthened as I cannot see any other provisions in this full document that seem to protect against such a transfer, if the formulation "No longer an authorized license" should fall in court upon any of the many arguments against it not being valid from a legal standpoint)

Hence I stated my preference of looking at other things than this particular formulation in this thread, and I hope the posts after your can show that there might still be other questions and confusions around this document that someone might be interested in, beyond that single formulation


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## Enrahim2

Ruin Explorer said:


> Absolutely yes. Have you... never read a contract?



Yes, what confuses me about these is that most contract definitions I have seen appear to try to make the term more precise, and narrow, while still staying within the overall domain of the normal legal wording. With exception of "Licensed Work" I feel like the opposite is the case here. For instance the term "Unlicensed content" appear to be something I would more naturally have described as "Prohibited Content". Might there be any non-obvious legal consequence of choosing to use "Unlicensed" vs "Prohibited", or are these terms void of any outside meaning once they are defined with capital letters in the start of a legal document?


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## Ruin Explorer

Enrahim2 said:


> Yes, what confuses me about these is that most contract definitions I have seen appear to try to make the term more precise, and narrow, while still staying within the overall domain of the normal legal wording. With exception of "Licensed Work" I feel like the opposite is the case here. For instance the term "Unlicensed content" appear to be something I would more naturally have described as "Prohibited Content". Might there be any non-obvious legal consequence of choosing to use "Unlicensed" vs "Prohibited", or are these terms void of any outside meaning once they are defined with capital letters in the start of a legal document?



I mean, you'd probably want an actual lawyer to advise on that, but broadly speaking definitions are about explaining how a term is used in that particular document.

In theory, I could say:

Usable D&D Content ("Deez Nuts") - then explain what I meant by it - and then refer repeatedly to Deez Nuts through the document when I was talking about that definition.

Stuff like Prohibited vs Unlicensed usually matters most when the terms are NOT defined. In fact this whole thing rests on that. Authorised was not defined in the OGL 1.0a. Hence the attempt to use it to de-authorize the 1.0a OGL in this OGL. If Authorized had been defined, we wouldn't be having this problem.


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## Snarf Zagyg

Cadence said:


> The part that floored me was where they could make you pick up their legal fees for defending you if they thought you weren't doing it well enough.  Is that a thing that shows up in other licenses?




Yes. It’s referred to as indemnification. IIRC it was part of the 4e GSL as well.

Also? AFAIK, we’ve only seen various versions of the FAQ/explainer, and not the actual license/agreement.


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## Cadence

Snarf Zagyg said:


> Yes. It’s referred to as indemnification. IIRC it was part of the 4e GSL as well.




I am on that edge of "do work I should because deadline" or "I can stay up later tonight".  I will attempt to hold off googling that until tomorrow. 



Snarf Zagyg said:


> Also? AFAIK, we’ve only seen various versions of the FAQ/explainer, and not the actual license/agreement.



It read to me like it was supposed to be the FAQ + agreement interpsersed with explainer.   ::::   Unless it was obvious, I would have no way of knowing if it looked like some important agreement parts were missing.


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## Haplo781

Enrahim2 said:


> I completely agree. The "No longer an authorized license" formulation has likely been discussed close to death (though I think my interpretation of it primarly being intended to ensure 1.1 content couldn't be used with 1.0a has been strangely ignored - and I think that interpretation is strengthened as I cannot see any other provisions in this full document that seem to protect against such a transfer, if the formulation "No longer an authorized license" should fall in court upon any of the many arguments against it not being valid from a legal standpoint)
> 
> Hence I stated my preference of looking at other things than this particular formulation in this thread, and I hope the posts after your can show that there might still be other questions and confusions around this document that someone might be interested in, beyond that single formulation



"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."

_Any_


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## Jack Daniel

Fascinating that it defines "SRD-based content" as specific to the 5.1 SRD.

It suggests that those who were speculating that the main motivation here is to prevent a PathFiveter fork and other 5.0 holdout projects are correct.

And it means that anything based on the old 3.0, 3.5, and Modern SRDs — PF1e and C&C and the OSR — are safe (for now), and unrelated games (FATE, Open d6, &al.) using OGL v1.0(a) are even safer. 

I'm not quite done holding my breath yet, but I'm a lot less worried for the grognards now than I was yesterday. (Still PO'd over what this could do to the wider industry, of course.)


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## Ruin Explorer

Jack Daniel said:


> And it means that anything based on the old 3.0, 3.5, and Modern SRDs — PF1e and C&C and the OSR — are safe (for now), and unrelated games (FATE, Open d6, &al.) using OGL v1.0(a) are even safer.



No, it does not.

Because it also says that's all "Unlicenced content".

"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."

Also, it deauthorizes the OGL 1.0a, and whilst that might not hold up in court, and might even be read as an opt-in, the "comments" text is very clear WotC regard it as a general deauthorization. Which means no-one would be allowed to publish any content based on the OGL, or earlier SRDs.


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## Greg Benage

Jack Daniel said:


> Fascinating that it defines "SRD-based content" as specific to the 5.1 SRD.
> 
> It suggests that those who were speculating that the main motivation here is to prevent a PathFiveter fork and other 5.0 holdout projects are correct.
> 
> And it means that anything based on the old 3.0, 3.5, and Modern SRDs — PF1e and C&C and the OSR — are safe (for now), and unrelated games (FATE, Open d6, &al.) using OGL v1.0(a) are even safer.




That’s what I thought at first, but the language appears to define any content not in the SRD 5.1 as Unlicensed Content. And any content that is present in 5.1 (e.g. a bunch of PF1) is Licensed Content.


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## mhd

Ruin Explorer said:


> Because it also says that's all "Unlicenced content".



They're referring directly to "Product Identity", so are they talking just about < 5.1 _PI_ here or _OGC_, too?


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## GMforPowergamers

there is something someone found that talked about getting around it by starting another company... I wonder if they realize how impossible to track that is.

HeY I start A corp, and hire my brother and best friend as president and vice president.
my brother starts B corp and hires me and my best friend as president and vice president
my best friend starts C corp and hire me and my brother as president and vice president
My wife starts Corp D and hires some writers and artists.

Corp A B and C all contract with COrp D...

I wish I was making this next part up but i saw what I can ONLY call a ponzi scheme (not proven in court) of not for profits stacked that way once.


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## Ruin Explorer

mhd said:


> They're referring directly to "Product Identity", so are they talking just about < 5.1 _PI_ here or _OGC_, too?



You'd have to ask them. It's not a well-drafted passage imhnlo. But there's absolutely no concept of OGC in the 1.1 OGL.


GMforPowergamers said:


> there is something someone found that talked about getting around it by starting another company... I wonder if they realize how impossible to track that is.
> 
> HeY I start A corp, and hire my brother and best friend as president and vice president.
> my brother starts B corp and hires me and my best friend as president and vice president
> my best friend starts C corp and hire me and my brother as president and vice president
> My wife starts Corp D and hires some writers and artists.
> 
> Corp A B and C all contract with COrp D...
> 
> I wish I was making this next part up but i saw what I can ONLY call a ponzi scheme (not proven in court) of not for profits stacked that way once.



Now you're just describing how Hollywood works lol.

However see this:

"J. You will not attempt to circumvent or go around this agreement in any way."


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## GMforPowergamers

Ruin Explorer said:


> Now you're just describing how Hollywood works lol.
> 
> However see this:
> 
> "J. You will not attempt to circumvent or go around this agreement in any way."



I can planly say I don't work with Hollywood or in any circles with Hollywood... but yeah, pretty much. 

Back when I started my back to school stuff for book keeping and accounting I had a teacher that said "Every company better pay you well. Because I don't know many people who run numbers for any length of time that could not retire to write a tell all 'All the Ways Dumb People Think They Can Hide Money' "


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## Enrahim2

Snarf Zagyg said:


> Also? AFAIK, we’ve only seen various versions of the FAQ/explainer, and not the actual license/agreement.



There have been links in other threads on this forum. Should probably have included it in the original post: http://ogl.battlezoo.com/


Haplo781 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. 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."



This passage is from the FAQ, soit is not directly legaly binding it self. However on the "Hello, I am a lawyer..." thread they after a lull of quite general talking started circling around some new formulations. One that was picked up as potentially significant is the entry formulation of the commercial version: "by making commercial use of Licensed Content, You agree to the terms of this agreement." This formulation seem to be an obvious legal backing of the FAQ claim.



Ruin Explorer said:


> Also, it deauthorizes the OGL 1.0a, and whilst that might not hold up in court, and might even be read as an opt-in, the "comments" text is very clear WotC regard it as a general deauthorization. Which means no-one would be allowed to publish any content based on the OGL, or earlier SRDs.



Which comments are you reading? I didn't see any comments at all regarding earlier SRDs, and the only reference i could see to the "old OGL" was a clarification that there is some association between "Licensed Content" and "Open Gaming Content". What did I miss?


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## Snarf Zagyg

Enrahim2 said:


> There have been links in other threads on this forum. Should probably have included it in the original post: http://ogl.battlezoo.com/




I saw that and read it- it’s what I was talking about. It’s not the actual license/agreement. I still haven’t seen a copy of the actual (assuredly lengthy) license/agreement.


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## TerraDave

Snarf Zagyg said:


> I saw that and read it- it’s what I was talking about. It’s not the actual license/agreement. I still haven’t seen a copy of the actual (assuredly lengthy) license/agreement.



Right, where is the "legalese"?

But maybe that is it, in the outlined parts. The references to SRD 5.1, the warranties and indemnities discussion, the cute but offensive tiering, that is the actual license. 

Maybe this is not part of some grand brilliant scheme, or any kind of serious contract or licensing work, but just something thrown together at the insistence of a senior WotC executive when they learned about the OGL.


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## Langy

Snarf Zagyg said:


> I saw that and read it- it’s what I was talking about. It’s not the actual license/agreement. I still haven’t seen a copy of the actual (assuredly lengthy) license/agreement.



The part at the beginning is a FAQ; everything else is the actual license/agreement. It is interspersed with "explainer" sections listed "COMMENTS:"; this is because the original hypertext document included them as separate information that expanded when clicked and is not part of the actual license.  In stripping the given document to a form that can be shared without revealing the source of the document, they made it _slightly_ more difficult to tell what is the legalese parts and what isn't.


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## Snarf Zagyg

Langy said:


> The part at the beginning is a FAQ; everything else is the actual license/agreement. It is interspersed with "explainer" sections listed "COMMENTS:"; this is because the original hypertext document included them as separate information that expanded when clicked and is not part of the actual license.  In stripping the given document to a form that can be shared without revealing the source of the document, they made it _slightly_ more difficult to tell what is the legalese parts and what isn't.




I feel like I’m taking crazy pills?

The link I was given (and what I keep seeing) isn’t the license. I have seen some screenshots of what appear to be the license, but I have yet to see an actual copy of the full license. 

If I’ve missed it, please provide a link. Thanks!


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## Langy

It's right here: http://ogl.battlezoo.com/

The license starts on the very bottom of Page 2. All formatting has been stripped out, and as I mentioned it has commentary embedded (and clearly marked) so it's a _little_ harder to read than the original would be.


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## Kinematics

Snarf Zagyg said:


> I feel like I’m taking crazy pills?
> 
> The link I was given (and what I keep seeing) isn’t the license. I have seen some screenshots of what appear to be the license, but I have yet to see an actual copy of the full license.



The first two pages are intro text. The header for the non-commercial portion of the license is the last line of the 2nd page.  The start of the commercial portion of the license is in the middle of the 8th page.


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## Snarf Zagyg

Langy said:


> It's right here: http://ogl.battlezoo.com/
> 
> The license starts on the very bottom of Page 2. All formatting has been stripped out, and as I mentioned it has commentary embedded (and clearly marked) so it's a _little_ harder to read than the original would be.




So the reference to the second page helped; I had been viewing it on my phone, which refused to display it correctly (it was only displaying the first page). I moved to my computer and I can see it now correctly. Thank you!


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## Snarf Zagyg

Ugh. So after reviewing the (purported) actual agreement, the whole thing seems even weirder. 

In the _actual legal sections_, there is a strange mix of language which is correct and expected (such as the language regarding forum and waiver of class action etc.) .... along with language I can't imagine seeing in an actual agreement (the indemnification clause is just ... it's weird. Not in intent, but in the way it is written.)

Maybe this is an artifact of the formatting and the way some commentary gets mixed in with the terms, but I keep thinking that this just profoundly weird.


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