# The OGL 1.1 is not an Open License



## estar

Today Wizards of the Coast on DnD Beyond released an article called OGLs, SRDs, & One D&D. It talks about Wizards plans for a new version of the OGL.

The recap the OGL stands for the Open Game License. According to Creative Commons, an open license means the content is free to use how you want it. In practice, this has meant that content was shared to let people use the content in any way, including commercially, the main requirements being that there is proper attribution of the original content used, and that any modifications are released under the same license. With the author listed as the creator of the modification.

The current two versions of the OGL v1.0 (3.X) and v1.0a meet the above criteria except for specific elements.


You are allowed to designate part of the work as product identity which basically saying I am not releasing this part of my book as open content. This is often used for licensed IP like Lord of the Rings or Star Trek. It is sometimes used when the author doesn't want to share their setting but wants to use and modify a popular system.
You also explicitly agree to give up your right to cite compatibility to a trademarked product. This is something that you normally have the right to do when releasing a work when it is your content. I could have done this with Blackmarsh as I mostly used common monster names rather than anything specific out of the DnD editions.
*The Changes*
So what are the proposed changes?


> First, we’re making sure that OGL 1.1 is clear about what it covers and what it doesn’t.



What OGL 1.1 will cover are electronic files like PDF, and printed books this right off mean that OGL 1.1 is no longer an open license as it restricts how you can use the open content. As the definition of open content means you can use it in the manner you see fit.

The next change


> 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.



They list a number of requirements that amount to you having to report any sales of any products licensed under the OGL 1.1 as well as a description of what it is you are selling. And if you make over a threshold ($750,000) then you will be expected to pay royalties by 2024.

*Wrapping it up*

This will further bifurcate the third party publisher market. OGL 1.0 and OGL 1.0a content can't be used with OGL 1.1 content as a result of Section 12 of the current OGL.


> *12. Inability to Comply:* If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Open Game Content due to statute, judicial order, or governmental regulation then You may not Use any Open Game Material so affected.



Right now the world of 3PP is divided into those who use open content like Pathfinder, Cepheus, OSRIC, Old School Essentials, and those who publish in community content programs like the DM's Guild.  In fact, I predict there will be three major 3PP communities for Dungeons and Dragons, the ones that continue to use the OGL 1.0a license, those who use the OGL 1.1 license, and those who use community content programs.

I realize there is a lot of speculation and criticism out there that are made because OneDnD is the news of the days. I limited myself to what the article said. At various times in the history of open source and creative commons, unscrupulous companies and individuals tried to put out their own licenses including ones with terms very much like the above. Each and every time this has not ended well for the bad actors and their licenses. Either they reverted back to a traditional commercial license and ceased their use of the open content. Or they came into compliance.

If you value your freedom to produce and more commonly share the content you create for Dungeons and Dragons then let Wizards know that you find these proposed terms unacceptable. Let them know that the community has the tools right now to fix the issue on their own and will do so as shown by what happen with DnD 4e, the GSL, and Pathfinder.

This is your hobby and your game now. Don't let Hasbro try to take that away from you.

Fight On!

*Some Practical Effects of Open Content.*

Finally some practical effects of making Blackmarsh open content. I would not have had the time or skills to do any of these projects but now folks who read Spanish, French, Italian and Hungarian can enjoy Blackmarsh in their languages as well as fans of Heroes and Other Worlds.

And because these were solely the work of their respective author who put the work into making a version of Blackmarsh, they get to reap 100% of the financial rewards. Something I am fine with when I shared Blackmarsh as open content.

Blackmarsh in Spanish!

Périlleuses contrées: Fangenoire (Blackmarsh in French)

Italian version of Blackmarsh

Blackmarsh in Hungarian!

Blackmarsh for Heroes & Other Worlds


----------



## Sacrosanct

This type of hyperbole doesn't help the conversation, especially since it's riddled with errors.


----------



## CleverNickName

estar said:


> If you value your freedom...
> This is your hobby and your game now. Don't let Hasbro try to take that away from you.
> Fight On!



This message has a familiar ring to it.  Something about stopping Wizards of the Coast?  Something about fighting and soldiers and karate belts?  I wasn't paying very close attention.


----------



## Alzrius

estar said:


> This will further bifurcate the third party publisher market. OGL 1.0 and OGL 1.0a content can't be used with OGL 1.1 content as a result of Section 12 of the current OGL.



I'm somewhat confused by this. How does not being able to comply with the OGL with respect to Open Game Content specifically because of a statute, judicial order, or government regulation mean that you can't use Open Game Content from versions 1.0 and 1.0a with version 1.1 of the license?

To put it another way, what statute, judicial order, or government regulation prevents you from using v1.0 and v1.0a Open Game Content under the OGL v1.1?


----------



## Oofta




----------



## Umbran

No rights granted to you are ever truly unlimited.
So, there is no such thing as a truly open license.  They are all "mostly open, with some restrictions," but that takes too long to say each and every time.  The "MOwSRGL" is a mouthful.


----------



## Baron Opal II

Reading the announcement, I don't see the issue.

I find it hard to argue against that the major earners should pay some kind of royalty to WotC. That's a pretty high threshold. I can't think of anything that isn't pdfs and books that I have acquired. I think maps wouldn't be covered since it is not rules content. Outside the scope, really, as long as you're not making a copy of the Forgotten Realms.


----------



## MockingBird

Someone on here said it doesn't matter what WotC does, some will cry foul or something like that.

Edited to remove the fowl language lol


----------



## MonsterEnvy

I don’t get the point of the opening post.


----------



## Bedrockgames

Sacrosanct said:


> This type of hyperbole doesn't help the conversation, especially since it's riddled with errors.




Estar isn't much of a 'the sky is falling' kind of guy, so I am inclined to pay attention if he is concerned. Obviously with any new announcement like this, it may take time to understand fully all the implications and where concern should or should not be. I remember it taking a while before I fully understand the original OGL's full meaning

The thing that gives me pause here is the requirement to report revenue (I just have a feeling a lot of companies might not be comfortable sharing that kind of information with WOTC, but I could be wrong), and the royalties for 750k companies. I have zero knowledge of what it is like to be a 750K OGL companies, but I do know profit margins in the hobby are pretty tight in general, so I would imagine that is at least going to be a serious thing for them to consider.

I myself am still puzzling through what this means, and I am probably less invested in the OGL and WOTC discussion than many others, but I also think it is fair for people to weigh in if they think the new terms signal a problem (I do have to admit it gives me late T$R vibes, but I don't know how grounded that is in anything, and probably won't know until this plays out further).


----------



## Malmuria

Translation: if you want to build a character in onednd you might need to use dndbeyond instead of some third party app.  The "freedom" mentioned in the OP is the freedom to sell an app.  In the app store.
Or you can just use pencil and paper like some kind of monster.


----------



## Mecheon

Malmuria said:


> Translation: if you want to build a character in onednd you might need to use dndbeyond instead of some third party app. The "freedom" mentioned in the OP is the freedom to sell an app. In the app store.
> Or you can just use pencil and paper like some kind of monster.



I suspect there’ll be a black market of character builders that are totally not for 1D&D, wink wink, nudge nudge. But that’s only my suspicion


----------



## kenada

Baron Opal II said:


> I find it hard to argue against that the major earners should pay some kind of royalty to WotC. That's a pretty high threshold. I can't think of anything that isn't pdfs and books that I have acquired. I think maps wouldn't be covered since it is not rules content. Outside the scope, really, as long as you're not making a copy of the Forgotten Realms.



If the 3e OGL had these terms, there would be no Pathfinder or OSR. It the 5.1 SRD did, it would mean no _Solasta_. This license is no more “open” than the source-aware licenses that charlatans try to push as “open” replacements for true FOSS licenses.


----------



## Malmuria

kenada said:


> If the 3e OGL had these terms, there would be no Pathfinder or OSR.



how do you figure?


----------



## Art Waring

Bedrockgames said:


> I myself am still puzzling through what this means, and I am probably less invested in the OGL and WOTC discussion than many others, but I also think it is fair for people to weigh in if they think the new terms signal a problem (I do have to admit it gives me late T$R vibes, but I don't know how grounded that is in anything, and probably won't know until this plays out further).



One concern is: what exactly will they do with all of the financial information that they gather? 

One possibility is that they use the OGL-finance data to start demanding royalties in descending tiers. Tax the top 20 to start, figure out the financial landscape, and start charging rent on the top ten percent, then the top twenty and so on.


----------



## LordEntrails

so what the OP is saying is the legal term "Alpha Beta Gamma" is not the same thing as legal term "Alpha Beta"? 
Brilliant deduction there. Just because two legal terms share words does not mean that one is of the other type.

As for the rest of the rant? Full of errors and trolling it seems.


----------



## Bedrockgames

LordEntrails said:


> Full of errors and trolling it seems.




Guys he isn't a troll. People can freely disagree with assertions in the post. I think it's fair to discuss any conclusions, speculation, etc. But I'v known this poster a long time. Trolling isn't something he does


----------



## kenada

Malmuria said:


> how do you figure?



Paizo wouldn’t agree to the GSL. Why would they agree to a license that requires revenue reporting and royalties paid to WotC indefinitely? For the OSR, the point of retroclones was to create games that were unencumbered, so people could use them and create content for them. This version of the OGL would keep them encumbered, defeating the point. I suppose they could be released as non-open games (like Kevin Crawford does for his), but I think the hobby would be much worse off if things had gone that route.


----------



## see

estar said:


> The current two versions of the OGL v1.0 (3.X) and v1.0a meet the above criteria except for specific elements.



As a factual matter, let's note that the OGL 1.0a was introduced no later than 2002, before even 3.5 was released. (My 2000 print copy of the original Creature Collection has the OGL 1.0, but the 2002 original print Tome of Horrors has the OGL 1.0a).


estar said:


> OGL 1.0 and OGL 1.0a content can't be used with OGL 1.1 content as a result of Section 12 of the current OGL.



You need to go check Section 9 of the OGL 1.0 and 1.0a. If it's Open Game Content released under either of those licenses, it can be used under the terms of _any_ released version of the OGL, so if the OGL 1.1 has provisions for using of Open Game Content, you'll be able to use the existing content under the OGL 1.1. Maybe the OGL 1.1 will fail to include provisions for use of Open Game Content, but since we don't have the terms, we can't actually say.

Now, it does suggest (wandering into speculation here) that the SRD and the like for the One D&D revision _will not be_ designated Open Game Content. Because otherwise people would just take the new Open Game Content and use it under the OGL 1.0a to avoid the reporting requirements, royalties, and the like. (WotC might well argue they can't, but it's obviously legally cleaner if they just use a new name for the content rather than arguing whether the OGL 1.0a can be used on Open Game Content released under the OGL 1.1.)


----------



## Malmuria

kenada said:


> Paizo wouldn’t agree to the GSL. Why would they agree to a license that requires revenue reporting and royalties paid to WotC indefinitely? For the OSR, the point of retroclones was to create games that were unencumbered, so people could use them and create content for them. This version of the OGL would keep them encumbered, defeating the point. I suppose they could be released as non-open games (like Kevin Crawford does for his), but I think the hobby would be much worse off if things had gone that route.



But then, the revenue reporting and royalties only apply to people making over $50,000 and $750,000 respectively.  Did any retroclone fall into that category until recently?


----------



## kenada

Malmuria said:


> But then, the revenue reporting and royalties only apply to people making over $50,000 and $750,000 respectively.  Did any retroclone fall into that category until recently?



No idea. They don’t make their sales information public. Small games? I doubt. Larger ones like OSRIC? Maybe. OSE? Definitely, but that’s recent. However, my point is I think the revenue requirement would have a chilling effect on using the SRD to create a retroclone. Anyway, I admit my original post was a bit hyperbolic, but the point was to illustrate how the new license is not open like the old one is. If WotC wants to go that route, they’re well within their rights to do that (just like they did with the GSL for 4e). It’s just not _open_ anymore (just like the GSL for 4e was not).


----------



## GreyLord

Well, the thing to also look at is what NEW information will be released for use under the 1.1 and HOW it will be released.

I think many assume it will be business as usual in it being the same as the former releases. 

I don't know yet how it will be (not sure if anyone does TBH), but there could be things that limit what can be used from the new information released that can be utilized under 1.1 that would not be able to be utilized under 1.0a or 1.0 in either case. 

Some of this may be the carrot to inspire people to use 1.1 rather than older versions of the OGL.

One way to look at it is how Open License and/or Open Source works in software and other areas beyond D&D and RPGs.

IMO (can't stress this enough)...

This new one won't negate the old OGL's and what was OGL for 5e is still OGL, and 1 D&D will be backwards compatible (as per WotC's statements).  In that light, it may not have as big an impact as some are thinking on the publication market, BUT, there may be some new items that will be the carrot that will make some of those bigger publishers consider using it (and I imagine a lot of it will deal with the size of the audiences on VTTs and online and the impact 1.1 will have on that as well as people wanting a piece of that pie.  Afterall, selling 10K copies is good, but reaching and audience of 10 million and selling 100K copies is better...right?)


----------



## estar

Sacrosanct said:


> This type of hyperbole doesn't help the conversation, especially since it's riddled with errors.



Feel free to point out the specifics, I been commenting on the OGL and various related issues for nearly 15 years..


----------



## estar

Alzrius said:


> I'm somewhat confused by this. How does not being able to comply with the OGL with respect to Open Game Content specifically because of a statute, judicial order, or government regulation mean that you can't use Open Game Content from versions 1.0 and 1.0a with version 1.1 of the license?
> 
> To put it another way, what statute, judicial order, or government regulation prevents you from using v1.0 and v1.0a Open Game Content under the OGL v1.1?



It means content licensed under the OGL 1.1 can not be used with content licensed under the OGL 1.0a. So OneD&D publishers making a product using content from OGL 1.1 under the proposed changes would not have my permission per the OGL to use Blackmarsh. Nor would they have permission under the Creative Common license that I also attached to Blackmarsh as a choice . Because in both cases the terms of the OGL1.0a and Creative Commons conflict with the proposed terms in the article. 

The main sticking point is that in order to use Blackmarsh they have to share any content based on it under the same terms.


----------



## Alzrius

estar said:


> It means content licensed under the OGL 1.1 can not be used with content licensed under the OGL 1.0a.



No, that's not what Section 12 means. Moreover, Section 9 is pretty clear that you _can_ use Open Game Content released under any version of the OGL with any other version of the OGL.


----------



## estar

LordEntrails said:


> As for the rest of the rant? Full of errors and trolling it seems.



If you have any specific points I would be happy to answer them.


----------



## Reynard

First and foremost: OGL.v1.1 is not released so we don't know what final form it will take. I have no doubt that it isn't finalized, and conversations with big 3PP partners (remember those NDA emails?) Will adjust the scope and language of whatever revised OGL comes out. Remember, the entire purpose of the OGL is to alleviate pressure on WotC from having to produce not-profitable-enough material for D&D, so the opinions and business expectations of major 3rd parties like Kobold will have real weight in the process.

And on top of that the genie is out of the bottle and the only way, based on Section 9 of the OGL, for WotC to lock down content is by creating a new license. They tried that with the GSL during 4e. It was an unqualified failure and led to the rise of their most substantial competition since White Wolf in 1992. They aren't going to invite another Pathfinder to eat their lunch (especially since it would probably be Paizo again).

WotC is obviously looking for a way to protect their Beyond and VTT investment. That's what this is about. I doubt they care what Legendary or smaller companies do.


----------



## estar

Alzrius said:


> No, that's not what Section 12 means. Moreover, Section 9 is pretty clear that you _can_ use Open Game Content released under any version of the OGL with any other version of the OGL.



No you can only use content if you are able to comply with all the conditions of the license. Namely #4 which grants a right use a non-exclusive *royalty free* right to the content. In turn a person using the open content must also grant to the purchaser of their book the same right to use my open content and anything based on that open content. They not allowed to impose further restriction on my content. 

So if they try to combine my Blackmarsh which was released under the OGL 1.0a license with a license using the proposed terms of OGL 1.1. Section 12 as they would not be able to fulfill clause #4 and other clause relating to the open content they are using.


----------



## Reynard

estar said:


> No you can only use content if you are able to comply with all the conditions of the license. Namely #4 which grants a right use a non-exclusive *royalty free* right to the content. In turn a person using the open content must also grant to the purchaser of their book the same right to use my open content and anything based on that open content. They not allowed to impose further restriction on my content.
> 
> So if they try to combine my Blackmarsh which was released under the OGL 1.0a license with a license using the proposed terms of OGL 1.1. Section 12 as they would not be able to fulfill clause #4 and other clause relating to the open content they are using.



Read section 9 again. It's explicit.


----------



## Alzrius

estar said:


> No you can only use content if you are able to comply with all the conditions of the license. Namely #4 which grants a right use a non-exclusive *royalty free* right to the content. In turn a person using the open content must also grant to the purchaser of their book the same right to use my open content and anything based on that open content. They not allowed to impose further restriction on my content.
> 
> So if they try to combine my Blackmarsh which was released under the OGL 1.0a license with a license using the proposed terms of OGL 1.1. Section 12 as they would not be able to fulfill clause #4 and other clause relating to the open content they are using.



Okay, I think I understand what you're saying here, but I don't believe that it works the way you're suggesting. Section 4 states that you're granted a "perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content." What that means is that you can use the OGL (specifically, v1.0 and v1.0a) without being charged royalties for it.

Now, presumably the OGL v1.1 won't have that particular clause, since WotC has said they want to charge royalties for publishers who earn more than $750,000 per year (presumably from OGL v1.1 materials that those publishers release). But that in no way violates the terms of the OGL v1.0 and v1.0a. You're not being charged royalties for using _those_ licenses, after all; you're being charged royalties for using v1.1. Even if they use the same material (since Section 9 permits Open Game Content published under one version of the OGL to be used with any other version of the OGL), that's a separate consideration; the same content can be subject to different licenses, after all, just like how a lot of old d20 products were subject to the OGL and the d20 STL.

EDIT: I'm still unclear where Section 12 fits into what you're saying, as it's specific to being restricted from using Open Game Content due to various governmental actions, which insofar as I'm aware aren't a factor in anything that's going on with the OGL v1.1, 1D&D, or WotC.


----------



## estar

see said:


> As a factual matter, let's note that the OGL 1.0a was introduced no later than 2002, before even 3.5 was released. (My 2000 print copy of the original Creature Collection has the OGL 1.0, but the 2002 original print Tome of Horrors has the OGL 1.0a).
> 
> You need to go check Section 9 of the OGL 1.0 and 1.0a. If it's Open Game Content released under either of those licenses, it can be used under the terms of _any_ released version of the OGL, so if the OGL 1.1 has provisions for using of Open Game Content, you'll be able to use the existing content under the OGL 1.1. Maybe the OGL 1.1 will fail to include provisions for use of Open Game Content, but since we don't have the terms, we can't actually say.



I am wondering what the impact of Section 9 will be.  I think to figure that out we will have to wait for the actual text of OGL 1.1 If they still use the same term "open game content" things will get interesting for the use of OGL 1.0a material with OGL 1.1.

The most expansive view is that OGL 1.1 users will be able to use OGL 1.0a and OGL 1.0 content. But you can't go back.

The more narrow view is that Section 9 and Section 12 are in conflict if a later version of the OGL imposes additional restrictions. Which given the press release is something Wizards wishes to do.




see said:


> Now, it does suggest (wandering into speculation here) that the SRD and the like for the One D&D revision _will not be_ designated Open Game Content. Because otherwise people would just take the new Open Game Content and use it under the OGL 1.0a to avoid the reporting requirements, royalties, and the like. (WotC might well argue they can't, but it's obviously legally cleaner if they just use a new name for the content rather than arguing whether the OGL 1.0a can be used on Open Game Content released under the OGL 1.1.)



This is guessing but if OGL 1.1 doesn't have Section 9 then the only permission an author has to use the OneD&D content they release is OGL 1.1. They can't go back unless the license attached to the content lets them.


----------



## estar

Reynard said:


> Read section 9 again. It's explicit.



So is section 12, they are in conflict if a later version is more restrictive.


----------



## Alzrius

estar said:


> So is section 12, they are in conflict if a later version is more restrictive.



Section 12 is only if you're unable to comply with any of the terms of the license "due to statute, judicial order, or governmental regulation." None of which are in effect here...though even if the OGL v1.1 didn't have the OGL v1.0 and v1.0a's Section 4, it still wouldn't be a conflict, because Section 9 would still allow for Open Game Content used under one version of the license to be used in another.


----------



## Alzrius

estar said:


> This is guessing but if OGL 1.1 doesn't have Section 9 then the only permission an author has to use the OneD&D content they release is OGL 1.1. They can't go back unless the license attached to the content lets them.



Or they could just publish a product under both the OGL v1.0a and the OGL v1.1. Without knowing what the latter specifically says, there's no way to know for sure, but there's a good chance you'll be able to do that...possibly even in the same printing.


----------



## estar

Alzrius said:


> Now, presumably the OGL v1.1 won't have that particular clause, since WotC has said they want to charge royalties for publishers who earn more than $750,000 per year (presumably from OGL v1.1 materials that those publishers release). But that in no way violates the terms of the OGL v1.0 and v1.0a. You're not being charged royalties for using _those_ licenses, after all; you're being charged royalties for using v1.1. Even if they use the same material (since Section 9 permits Open Game Content published under one version of the OGL to be used with any other version of the OGL), that's a separate consideration; the same content can be subject to different licenses, after all, just like how a lot of old d20 products were subject to the OGL and the d20 STL.



The way you put this leads me to think that the way around this is to release the product under the OGL 1.0a. Declare any OneD&D SRD content as product identity. Which the OGL 1.0a states Product Identity can only be used under a separate license. Which in this case happens to be content licensed under the OGL 1.1.

You will still have to abide by any OGL 1.1 restriction just like I had to stick to the terms of my license with Judges Guild when publishing Wilderlands material. All the Wilderlands stuff was correctly product identity.


----------



## Alzrius

estar said:


> The way you put this leads me to think that the way around this is to release the product under the OGL 1.0a. Declare any OneD&D SRD content as product identity. Which the OGL 1.0a states Product Identity can only be used under a separate license.



The OGL also has a definitions section (it's Section 1) where it defines what constitutes Open Game Content (part d) and Product Identity (part e), making it clear that they're not the same thing and that you can't say that one is the other (emphasis mine):



> (d)"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor,  and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity. (e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, *and which specifically excludes the Open Game Content*



For that matter, Section 7 says that using Product Identity in Open Game Content doesn't make it stop being Product Identity (emphasis mine):



> 7. Use of Product Identity:  You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity.  You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. *The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.*




You can't even be coy about it either, since Section 8 says you need to identify the Open Game Content in your product:



> 8. Identification: If you distribute Open Game Content You must clearly indicate which portions of the work that you are distributing are Open Game Content.


----------



## GMforPowergamers

Mecheon said:


> I suspect there’ll be a black market of character builders that are totally not for 1D&D, wink wink, nudge nudge. But that’s only my suspicion



I have excel sheets that are 'not' character builders


----------



## GMforPowergamers

Malmuria said:


> But then, the revenue reporting and royalties only apply to people making over $50,000 and $750,000 respectively.  Did any retroclone fall into that category until recently?



yes, the 50,000 has been hit alot. the 750 not so much

resent https://www.kickstarter.com/projects/cubicle-7-games/vault-5e-uncharted-journeys/description about 52k
never fully delivered 2e retro clone had 2 KSs


			https://www.kickstarter.com/projects/705393141/myth-and-magic-players-guide-2e-revived-and-update/description
		



			https://www.kickstarter.com/projects/705393141/myth-and-magic-game-masters-guide-and-collectors-c/description
		

adding them togather they would have been under the 50k, about 40k only... but again it ended up not delivering (too bad it's a great system and one I still play around with sometimes)


----------



## GMforPowergamers

estar said:


> No you can only use content if you are able to comply with all the conditions of the license. Namely #4 which grants a right use a non-exclusive *royalty free* right to the content. In turn a person using the open content must also grant to the purchaser of their book the same right to use my open content and anything based on that open content. They not allowed to impose further restriction on my content.
> 
> So if they try to combine my Blackmarsh which was released under the OGL 1.0a license with a license using the proposed terms of OGL 1.1. Section 12 as they would not be able to fulfill clause #4 and other clause relating to the open content they are using.



can you dumb this down for me? Like pretend you are talking to a kid... does this mean this will somehow retroactively stop someone from useing the old OGL?


----------



## pemerton

Reynard said:


> Read section 9 again. It's explicit.



I think you may be exaggerating the effect of section 9 of the OGL v1.0/1.0a.

The OGL is a private legal agreement. It is binding only on those who are party to it, in virtue of their agreement to be bound.

So:

If a publisher (say WotC) publishes a document (say, a SRD) and then makes it available under the OGL 1.0/1.0a (ie they offer to any and all takers to enter into a licence with them on the OGL 1.0/1.0a terms), and others (ie 3rd party publishers) accept that offer on those terms, the offering publisher is bound. This means that WotC is obliged to allow distribution of its existing OGL-released SRD material under future versions of the OGL that it releases (ie "authorized versions" as per section 9).

Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a, as it apparently will not permit someone who becomes a party to it to distribute OGC royalty-free. Hence anyone bound by the terms of the OGL 1.1 (as announced to date) cannot comply with sections 2 and 4 of the OGL 1.0/1.0a. Which seems to me to be sufficient to imply that OGL 1.1 will not be a "version" for section 9 purposes.

But anyway, moving on:

Suppose that a publisher (eg WotC) publishes a document (eg a revised SRD) and makes it available under OGL 1.1, that new offer is not bound by the terms of the old offer. That offer might, for instance, be an offer to permit use of the revised SRD material under OGL 1.1 terms but not under OGL 1.0/1.0a terms. And the existence of an earlier offer under those earlier terms won't be relevant to the new offer.

What seems more relevant than section 9 is the definition, in section 1, of "Derivative Material" and "Use", together with section 4. To explain why I think this:

Section 4 of the OGL 1.0/1.0a permits parties to the licence (licensees) to "Use" the licensed OGC. "Use" is defined to mean (by way of the definition of "Distribute") "reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content". And "Derivative Material" means "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".

So if the revised SRD is a derivate work, addition to, extension of, or improvement of the existing SRD then the OGL 1.0/1.0a seems to already licence licensees to use the revised SRD. And those licensees have in turn been authorised, by the terms of the OGL 1.0/1.0a, to issue sub-licenses in respect of the OGC they are authorised to use.

At this point my ability to analyse comes to an end - and contractual construction is not my main field, so all of the above is put forward tentatively rather than dogmatically. I call on @S'mon to see if he is able to express a more expert view.


EDITed to correct "licensor" to "licensee" in the last two paras.


----------



## Reynard

GMforPowergamers said:


> can you dumb this down for me? Like pretend you are talking to a kid... does this mean this will somehow retroactively stop someone from useing the old OGL?



No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.


----------



## GMforPowergamers

pemerton said:


> I think you may be exaggerating the effect of section 9 of the OGL v1.0/1.0a.
> 
> The OGL is a private legal agreement. It is binding only on those who are party to it, in virtue of their agreement to be bound.
> 
> So:
> 
> If a publisher (say WotC) publishes a document (say, a SRD) and then makes it available under the OGL 1.0/1.0a (ie they offer to any and all takers to enter into a licence with them on the OGL 1.0/1.0a terms), and others (ie 3rd party publishers) accept that offer on those terms, the offering publisher is bound. This means that WotC is obliged to allow distribution of its existing OGL-released SRD material under future versions of the OGL that it releases (ie "authorized versions" as per section 9).
> 
> Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a, as it apparently will not permit someone who becomes a party to it to distribute OGC royalty-free. Hence anyone bound by the terms of the OGL 1.1 (as announced to date) cannot comply with sections 2 and 4 of the OGL 1.0/1.0a. Which seems to me to be sufficient to imply that OGL 1.1 will not be a "version" for section 9 purposes.
> 
> But anyway, moving on:
> 
> Suppose that a publisher (eg WotC) publishes a document (eg a revised SRD) and makes it available under OGL 1.1, that new offer is not bound by the terms of the old offer. That offer might, for instance, be an offer to permit use of the revised SRD material under OGL 1.1 terms but not under OGL 1.0/1.0a terms. And the existence of an earlier offer under those earlier terms won't be relevant to the new offer.
> 
> What seems more relevant than section 9 is the definition, in section 1, of "Derivative Material" and "Use", together with section 4. To explain why I think this:
> 
> Section 4 of the OGL 1.0/1.0a permits parties to the licence (licensors) to "Use" the licensed OGC. "Use" is defined to mean (by way of the definition of "Distribute") "reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content". And "Derivative Material" means "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".
> 
> So if the revised SRD is a derivate work, addition to, extension of, or improvement of the existing SRD then the OGL 1.0/1.0a seems to already licence licensors to use the revised SRD. And those licensors have in turn been authorised, by the terms of the OGL 1.0/1.0a, to issue sub-licenses in respect of the OGC they are authorised to use.
> 
> At this point my ability to analyse comes to an end - and contractual construction is not my main field, so all of the above is put forward tentatively rather than dogmatically. I call on @S'mon to see if he is able to express a more expert view.



I am trying (not a lawyer...don't even play one on TV) to understand both lines of thought here...

so in theory if Wotc puts the new race rules and background rules and subclass rules in the NEW srd/ogl but not the old, and someone chooses to use the old BUT release a race with no stat mods Wotc (hasbro) legal could come after them and at least challenge it in court.


----------



## MichaelSomething

I think fan content isn't an issue but those who wish to become professional third parties should raise an eyebrow. 

But I thought third parties Arn't a threat since it seems that only a minority want something non WOTC for their D&D?


----------



## GMforPowergamers

Reynard said:


> No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.



so your reading is they can not infact create a new SRD/OGL with new rules (more limited) because ANY srd will back date to the old OGL? am I reading that correct? (Tomorrow I am TOTALLY bugging my law team at work with hypotheticals as if it was work related)


----------



## Alzrius

pemerton said:


> Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a



In all honesty, that seems to be really what most of the speculation comes down to. 

Given that there's no hard-and-fast definitions for what constitutes a "version" in the text of the license itself, I suspect that it's largely going to be an issue of whether or not it actually calls itself the "Open Game  License version 1.1" or something to that effect. If it says it's the "One D&D Third-Party Usage License" or anything like that, then it won't matter how much it sounds like the OGL; it won't be a version of it (unless some provision in its text explicitly says it's to be treated that way, for whatever purposes).


----------



## pemerton

GMforPowergamers said:


> I am trying (not a lawyer...don't even play one on TV) to understand both lines of thought here...
> 
> so in theory if Wotc puts the new race rules and background rules and subclass rules in the NEW srd/ogl but not the old, and someone chooses to use the old BUT release a race with no stat mods Wotc (hasbro) legal could come after them and at least challenge it in court.



In the scenario you describe, I don't understand what WotC's claim against the publisher is supposed to be.

As best I can see, WotC has no IP claim over someone publishing a new race for use in D&D that has no stat mods, or flexible stat mods. And someone who is a licensee under the OGL v 1.0/1.0a has various obligations, but none of them that I can see is an obligation not to publish a new races that has no stat mods or flexible stat mods.


----------



## Reynard

GMforPowergamers said:


> so your reading is they can not infact create a new SRD/OGL with new rules (more limited) because ANY srd will back date to the old OGL? am I reading that correct? (Tomorrow I am TOTALLY bugging my law team at work with hypotheticals as if it was work related)



They could create a NEW open license so the new SRD was not released under any version of the OGL.

How effective that would be is up in the air since assuming 1D&D is compatible it means all a 3PP has to do 8s tweak existing (ie 5E) open content to be compatible with 1D&D content. And remember this is about copyright-- not trademarks or patents - so in any case all that is protected is expressions of rules, not the rules themselves.


----------



## GMforPowergamers

pemerton said:


> In the scenario you describe, I don't understand what WotC's claim against the publisher is supposed to be.
> 
> As best I can see, WotC has no IP claim over someone publishing a new race for use in D&D that has no stat mods, or flexible stat mods. And someone who is a licensee under the OGL v 1.0/1.0a has various obligations, but none of them that I can see is an obligation not to publish a new races that has no stat mods or flexible stat mods.



the argument I am forseeing (again not a lawyer) is that we offer a license to use X and a license to use Y now they are trying to use license for X to make Y. Just phrased better and most likely with precedent quoted


----------



## GMforPowergamers

Reynard said:


> They could create a NEW open license so the new SRD was not released under any version of the OGL.
> 
> How effective that would be is up in the air since assuming 1D&D is compatible it means all a 3PP has to do 8s tweak existing (ie 5E) open content to be compatible with 1D&D content. And remember this is about copyright-- not trademarks or patents - so in any case all that is protected is expressions of rules, not the rules themselves.



of course the BIG elephants in the room is "Do I want to spend money against Hasbro law teams to prove I am right even if I know I am?"


----------



## pemerton

Alzrius said:


> In all honesty, that seems to be really what most of the speculation comes down to.
> 
> Given that there's no hard-and-fast definitions for what constitutes a "version" in the text of the license itself, I suspect that it's largely going to be an issue of whether or not it actually calls itself the "Open Game  License version 1.1" or something to that effect. If it says it's the "One D&D Third-Party Usage License" or anything like that, then it won't matter how much it sounds like the OGL; it won't be a version of it (unless some provision in its text explicitly says it's to be treated that way, for whatever purposes).



I don't agree with your second paragraph, when you say "it's largely going to be an issue of . . .".

As I said in my post, I think the most obvious argument that it is not a version is that it does not permit licensees to sub-license the rights that the OGL v 1.0/1.0a requires them to. An instrument that generates obligations at odds with those of another instrument doesn't seem to me to count as a version of that other instrument.



Reynard said:


> No.the language of the current OGL explicitly says that any version of the OGL can be used with any content released under any version of the OGL. That's Section 9. If WotC uses the OGL -- even if they modify it -- to release an SRD for 1D&D, then the contents of that SRD are available for all versions of the OGL. It was intentionally designed that way to keep future stewards of D&D from closing the game, and its why WotC tried to get away with the GSL -- a different license -- and most 3PPs balked.



I think that you are treating the current OGL (v 1.0/1.0a) as if it were a statute. It's not. It's a private legal agreement. WotC is not bound, in respect of its future offers, by the terms of its old offers - except with respect to people who took up those old offers, and hence entered into a contractual relationship with WotC. The fact that WotC has promised Paizo that Paizo can use the 3.5 SRD under any future version of the OGL doesn't mean that, if WotC now licenses its 5.5 SRD to you under the OGL 1.1, that WotC is obliged to also let you use the 5.5 SRD under the terms of the OGL 1.0. (Unless the OGL 1.1 says so. Presumably it won't.)

How do you think WotC is coming under the obligation that you say it is under, in relation to future offerees/licensees?


----------



## Reynard

GMforPowergamers said:


> of course the BIG elephants in the room is "Do I want to spend money against Hasbro law teams to prove I am right even if I know I am?"



The real question is why people think WotC wants to spend a bunch of money they don't have to just to alienate their 3PP network and some portion of their fanbase. It doesn't make sense.

What makes sense is WotC betting big on Beyond and their VTT and using that to leverage 3PP to help get people into.that ecosystem. Hence the NDA emails.


----------



## pemerton

GMforPowergamers said:


> the argument I am forseeing (again not a lawyer) is that we offer a license to use X and a license to use Y now they are trying to use license for X to make Y. Just phrased better and most likely with precedent quoted



I don't think that's an argument.

If WotC have licensed you (via the OGL 1.0a) to write a book that includes stats for Orcs and horses as published by WotC in their SRD, they don't obtain any further control over what you include in your book unless that was a term of the licence agreement. The most important such term of the OGL 1.0a is section 7 on Product Identity - but your promise not to use anyone else's Product Identity doesn't mean you've promised not to include new races with flexible stats. I haven't seen any argument that having flexible state bonuses is WotC Product Identity.


----------



## GMforPowergamers

pemerton said:


> I think that you are treating the current OGL (v 1.0/1.0a) as if it were a statute. It's not. It's a private legal agreement. WotC is not bound, in respect of its future offers, by the terms of its old offers - except with respect to people who took up those old offers, and hence entered into a contractual relationship with WotC. The fact that WotC has promised Paizo that Paizo can use the 3.5 SRD under any future version of the OGL doesn't mean that, if WotC now licenses its 5.5 SRD to you under the OGL 1.1, that WotC is obliged to also let you use the 5.5 SRD under the terms of the OGL 1.0. (Unless the OGL 1.1 says so. Presumably it won't.)



This is the part I don't understand... and it appears there are people arguing both ways. Is teh OGL always able to use every SRD, or can they make a new OGL/SRD separate from the old one.


----------



## GMforPowergamers

Reynard said:


> The real question is why people think WotC wants to spend a bunch of money they don't have to just to alienate their 3PP network and some portion of their fanbase. It doesn't make sense.
> 
> What makes sense is WotC betting big on Beyond and their VTT and using that to leverage 3PP to help get people into.that ecosystem. Hence the NDA emails.



I don't know. I am trying to understand both arguments but both of you seem to have good points


----------



## Reynard

pemerton said:


> I don't agree with your second paragraph, when you say "it's largely going to be an issue of . . .".
> 
> As I said in my post, I think the most obvious argument that it is not a version is that it does not permit licensees to sub-license the rights that the OGL v 1.0/1.0a requires them to. An instrument that generates obligations at odds with those of another instrument doesn't seem to me to count as a version of that other instrument.
> 
> 
> I think that you are treating the current OGL (v 1.0/1.0a) as if it were a statute. It's not. It's a private legal agreement. WotC is not bound, in respect of its future offers, by the terms of its old offers - except with respect to people who took up those old offers, and hence entered into a contractual relationship with WotC. The fact that WotC has promised Paizo that Paizo can use the 3.5 SRD under any future version of the OGL doesn't mean that, if WotC now licenses its 5.5 SRD to you under the OGL 1.1, that WotC is obliged to also let you use the 5.5 SRD under the terms of the OGL 1.0. (Unless the OGL 1.1 says so. Presumably it won't.)
> 
> How do you think WotC is coming under the obligation that you say it is under, in relation to future offerees/licensees?



The OGL says that. Explicitly. WotC could absolutely create a new license,  open or otherwise,  and try and control it that way. They did that once. It failed and tanked their 3PP support and created Pathfinder.


----------



## GMforPowergamers

pemerton said:


> I don't think that's an argument.
> 
> If WotC have licensed you (via the OGL 1.0a) to write a book that includes stats for Orcs and horses as published by WotC in their SRD, they don't obtain any further control over what you include in your book unless that was a term of the licence agreement. The most important such term of the OGL 1.0a is section 7 on Product Identity - but your promise not to use anyone else's Product Identity doesn't mean you've promised not to include new races with flexible stats. I haven't seen any argument that having flexible state bonuses is WotC Product Identity.



maybe my example isn't the best... maybe new subclass set ups (different levels for abilities) can I make a 1D&D cleric subclass that works off the new line up useing the old OGL? if I stood in court and the other side showed "the class in the SRD linked to this OGL gets things at X Y and Z, but in this OTHER OGL the srd linked to it gets them at A B and C, so you can't use the old OGL/SRD for the new set up"
does THAT make it more of an argument?


----------



## GMforPowergamers

Reynard said:


> The OGL says that. Explicitly. WotC could absolutely create a new license,  open or otherwise,  and try and control it that way. They did that once. It failed and tanked their 3PP support and created Pathfinder.



So walk with me for a moment and help me make sure I am clear.
a new OGL with an new SRD comes out. this new one is for 1D&D with all the little tweaks we already know about and some new ones we don't
MY choices are to release a 5e (old OGL/SRD) content or use the new one for 1D&D?
OR
I can have my cake and eat it too by making it 1D&D content using the OGL/SRD from 5e?


----------



## Reynard

GMforPowergamers said:


> maybe my example isn't the best... maybe new subclass set ups (different levels for abilities) can I make a 1D&D cleric subclass that works off the new line up useing the old OGL? if I stood in court and the other side showed "the class in the SRD linked to this OGL gets things at X Y and Z, but in this OTHER OGL the srd linked to it gets them at A B and C, so you can't use the old OGL/SRD for the new set up"
> does THAT make it more of an argument?



You are ignoring the explicit wording in Section 9. They can only close off the 1D&D SRD if they make OGL 1.1 an explicitly different license.

More to the point they don't have any reason to. They aren't after Grim Press level money. They are trying to tie 1D&D to their platform model-- Beyond and the VTT. That they specifically called out non book, non PDF support for D&D all but proves that (with the repeated caveat that OGL 1.1 is obviously not complete and we know they are talking to at least some 3PPs).


----------



## Reynard

GMforPowergamers said:


> So walk with me for a moment and help me make sure I am clear.
> a new OGL with an new SRD comes out. this new one is for 1D&D with all the little tweaks we already know about and some new ones we don't
> MY choices are to release a 5e (old OGL/SRD) content or use the new one for 1D&D?
> OR
> I can have my cake and eat it too by making it 1D&D content using the OGL/SRD from 5e?



According to Section 9, if it is in fact an updated version of the OGL, and the 1D&D SRD is released under it, you can use the 1D&D SRD with v 1.0 of the OGL.

BUT, if OGL 1.1 is a NEW license, that's not true. I.imagine there are some shenanigans in there defining update versus new, and that's where the lawyers come in.


----------



## Alzrius

pemerton said:


> I don't agree with your second paragraph, when you say "it's largely going to be an issue of . . .".
> 
> As I said in my post, I think the most obvious argument that it is not a version is that it does not permit licensees to sub-license the rights that the OGL v 1.0/1.0a requires them to. An instrument that generates obligations at odds with those of another instrument doesn't seem to me to count as a version of that other instrument.



Well, we don't know what the OGL v1.1 will or will not permit, since it hasn't been released yet.

That said, the issue you bring up regarding "sublicensing" (which as a term only comes up in Section 13, noting that all such sublicenses shall survive termination if you fail to comply with the license), presuming I'm understanding you correctly, looks to be predicated on the idea that a 1D&D SRD is a "derivative work" of an existing SRD (presumably one of the two published for 5E). That's a possible interpretation, but I'm not necessarily sure that would be the case, at least insofar as the definition in Section 1(b) is concerned; one could say that such a 1D&D SRD is an independent creation, particularly since WotC (as owner of both SRDs) would be in a position to assert whether or not the development of one required "translation [...] potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment," or other form of recasting, transforming, or adapting of the other.

Admittedly, that might sound odd, but if what they did was make the non-licensed 1D&D rules unto themselves into an SRD, rather than modify (et al) a 5E SRD, that could make it a non-derivative product with regard to licensed material.


----------



## GMforPowergamers

Reynard said:


> You are ignoring the explicit wording in Section 9.



yeah you are losing with me on this... telling me that something I don't understand (and I have clearly said that a dozen times by now) is something I am ignoring is a great way for me to assume the other guys points are better. I am not ignoring anything. I don't understand and am trying to hear you out and ask you to clarify. 


Reynard said:


> They can only close off the 1D&D SRD if they make OGL 1.1 an explicitly different license.



so as long as it says it is OGL1.1 that is what matters?
Would OGL2.0 change that?
Would OGL B change that
Is it just a nameing thing? Does that number/name matter? 
If they called the new one 1D&D OGL instead of Dungeons and Dragons OGL matter? 


Reynard said:


> More to the point they don't have any reason to.



okay but that isn't any thing to go by. People do dumb things all the time that are not in there best interest.  I have worked with people who purposely released a product that would cost more to make then they were selling it for just so there customers would buy that AND the other products they sold instead of going to a competitor.  (think of it as a petty loss leader) 
I also have seen (although not been on the job in the company) watched as big competitors drive smaller ones out of business' for no reason at all, the added income is a rounding error...


Reynard said:


> They aren't after Grim Press level money. They are trying to tie 1D&D to their platform model-- Beyond and the VTT. That they specifically called out non book, non PDF support for D&D all but proves that (with the repeated caveat that OGL 1.1 is obviously not complete and we know they are talking to at least some 3PPs).



right, we don't have the actual text yet. However I am trying to understand what is and isn't possible.


----------



## GMforPowergamers

Alzrius said:


> That said, the issue you bring up regarding "sublicensing" (which as a term only comes up in Section 13, noting that all such sublicenses shall survive termination if you fail to comply with the license), presuming I'm understanding you correctly, looks to be predicated on the idea that a 1D&D SRD is a "derivative work" of an existing SRD (presumably one of the two published for 5E). That's a possible interpretation, but I'm not necessarily sure that would be the case, at least insofar as the definition in Section 1(b) is concerned; one could say that such a 1D&D SRD is an independent creation, particularly since WotC (as owner of both SRDs) would be in a position to assert whether or not the development of one required "translation [...] potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment," or other form of recasting, transforming, or adapting of the other.



I said it before and I will again, I have 3pp 4e books that used the 3e SRD/OGL, so I know it can at least be argued that it would work...


----------



## see

GMforPowergamers said:


> This is the part I don't understand... and it appears there are people arguing both ways. Is teh OGL always able to use every SRD.



Literally, no, the OGL is not able to use every SRD; the "4th Edition System Reference Document", for example, was only usable with the Game System License.

The interesting question becomes if the new SRD is designated "Open Game Content" under the OGL 1.1. The question then becomes, does the OGL 1.1 only apply, or can I use the OGL 1.0a for this Open Game Content? And that isn't actually particularly obvious. The OGL 1.0a is not a law; it does not automatically cover material that is simply called Open Game Content. The new "Open Game Content" was released under the OGL 1.1, not the OGL 1.0a. But if I'm already a licensee under the OGL 1.0a, and WotC releases something they call "Open Game Content", it is possible that I can use the new "Open Game Content" under the existing license. This is particularly true since WotC drafted both licenses, and ambiguities in contract law are supposed to be resolved in favor of the non-drafting party.

Thus, as I've mentioned previously, I expect that WotC will simply not designate the new SRD "Open Game Content". Avoiding that label simply cuts off all the arguments. If it's not Open Game Content, the OGL 1.0a _can't_ apply.


----------



## Reynard

GMforPowergamers said:


> so as long as it says it is OGL1.1 that is what matters?
> Would OGL2.0 change that?
> Would OGL B change that
> Is it just a nameing thing? Does that number/name matter?
> If they called the new one 1D&D OGL instead of Dungeons and Dragons OGL matter?



I am not a lawyer but I guess they would have to make it clear in a legal way that it was not a different version of the OGL. The simplest method would seem to me to not call it OGL x.x. but, lawyers being lawyers, maybe there's a different way to get it done.


----------



## Reynard

see said:


> Literally, no, the OGL is not able to use every SRD; the "4th Edition System Reference Document", for example, was only usable with the Game System License.
> 
> The interesting question becomes if the new SRD is designated "Open Game Content" under the OGL 1.1. The question then becomes, does the OGL 1.1 only apply, or can I use the OGL 1.0a for this Open Game Content? And that isn't actually particularly obvious. The OGL 1.0a is not a law; it does not automatically cover material that is simply called Open Game Content. The new "Open Game Content" was released under the OGL 1.1, not the OGL 1.0a. But if I'm already a licensee under the OGL 1.0a, and WotC releases something they call "Open Game Content", it is possible that I can use the new "Open Game Content" under the existing license. This is particularly true since WotC drafted both licenses, and ambiguities in contract law are supposed to be resolved in favor of the non-drafting party.
> 
> Thus, as I've mentioned previously, I expect that WotC will simply not designate the new SRD "Open Game Content". Avoiding that label simply cuts off all the arguments. If it's not Open Game Content, the OGL 1.0a _can't_ apply.



If they do that they need a new license that explains what that SRD is.


----------



## GMforPowergamers

see said:


> The question then becomes, does the OGL 1.1 only apply, or can I use the OGL 1.0a for this Open Game Content? And that isn't actually particularly obvious. The OGL 1.0a is not a law; it does not automatically cover material that is simply called Open Game Content. The new "Open Game Content" was released under the OGL 1.1, not the OGL 1.0a.



yeah, that is what I (and by the sounds of things others) are confused about.


see said:


> Thus, as I've mentioned previously, I expect that WotC will simply not designate the new SRD "Open Game Content". Avoiding that label simply cuts off all the arguments. If it's not Open Game Content, the OGL 1.0a _can't_ apply.



but how does there being a new elf, or new cleric interact with that?


----------



## GMforPowergamers

Reynard said:


> If they do that they need a new license that explains what that SRD is.



that makes sense.


----------



## DarkCrisis

So, what does this mean for 3rd party adventurers.  Best campaign I ran for 5E was a 3rd party off kickstarter.

How does this effect (if at all) streamed games like Critical Role and lesser streams?


----------



## estar

GMforPowergamers said:


> can you dumb this down for me? Like pretend you are talking to a kid... does this mean this will somehow retroactively stop someone from useing the old OGL?



No, the old OGL license grant is perpetual i.e. forever. The problem is going forward.  It will split the D&D 3PP hobby into two or three groups unable to share (or distribute0 any of their content whether it is for free or for sale. Except for those using OGL 1.0a, the other one or two groups (OGL 1.1, DM's Guild) will be in the walled gardens, and if they want to leave they will have to leave all their work behind. Not just the actual book itself, but anything they have an idea for that is based on the book.


----------



## Reynard

estar said:


> No, the old OGL license grant is perpetual i.e. forever. The problem is going forward.  It will split the D&D 3PP hobby into two or three groups unable to share (or distribute0 any of their content whether it is for free or for sale. Except for those using OGL 1.0a, the other one or two groups (OGL 1.1, DM's Guild) will be in the walled gardens, and if they want to leave they will have to leave all their work behind. Not just the actual book itself, but anything they have an idea for that is based on the book.



The DMsGuild has nothing to do with the OGL aside from them being specifically incompatible,  and a new version of the OGL wouldn't split anything -- that would take a new GSL type license. Say what you want about Dancey but he was dedicated to open gaming at the time and he and his team crafted a robust license to make it happen.


----------



## Baron Opal II

So, Gamer Bob writes an adventure and sells it under the OGL 1.0. Makes beer money. Sweet!

A few years later, Gamer Jane looks at some Open Game Content in Bob's adventure, thinks it is cool, and puts it into her sourcebook under OGL 1.1. She hits the lottery, so to speak, and makes over $750k. Good on ya, Jane!

Then WotC knocks on Jane's door, and Jane pays WotC a royalty on using the D&D game engine for her creative work. She then goes back to her desk hoping to catch lightning in a bottle twice.

I don't see how the sky is falling here. Jane doesn't owe Bob anything, OGL says she can use his stuff royalty free. Bob doesn't have to pay anything. Not only did he not make the $750k threshold, he published his deal under a different version of the licence a long time ago. WotC isn't paying anybody anything, people are playing in their sandbox, as it were.

I'm not seeing how the sky is falling here.


----------



## Baron Opal II

estar said:


> No, the old OGL license grant is perpetual i.e. forever. The problem is going forward.  It will split the D&D 3PP hobby into two or three groups unable to share (or distribute0 any of their content whether it is for free or for sale. Except for those using OGL 1.0a, the other one or two groups (OGL 1.1, DM's Guild) will be in the walled gardens, and if they want to leave they will have to leave all their work behind. Not just the actual book itself, but anything they have an idea for that is based on the book.



I don't see that except for DM's Guild. The DM's Guild is explicitly a walled garden, but that's by virtue of publishing through them.


----------



## pemerton

Reynard said:


> The OGL says that. Explicitly. WotC could absolutely create a new license,  open or otherwise,  and try and control it that way. They did that once. It failed and tanked their 3PP support and created Pathfinder.



The OGL is not a statute. It is only binding on WotC in respect of those who have entered into a contractual licence with WotC under its terms.

For future people, who enter into a contractual relationship with WotC under the terms of the OGL 1.1, but who have no relationship with WotC under the terms of the OGL 1.0/1.0a, the terms of the latter document have no legal consequences that I can see.


----------



## FrogReaver

estar said:


> No, the old OGL license grant is perpetual i.e. forever. The problem is going forward.  It will split the D&D 3PP hobby into two or three groups unable to share (or distribute0 any of their content whether it is for free or for sale. Except for those using OGL 1.0a, the other one or two groups (OGL 1.1, DM's Guild) will be in the walled gardens, and if they want to leave they will have to leave all their work behind. Not just the actual book itself, but anything they have an idea for that is based on the book.



So you make 2 companies and keep your OGL 1.0a work under company 1 and the OGL 1.1 work under company 2.  That seems fairly trivial to get around?


----------



## pemerton

GMforPowergamers said:


> This is the part I don't understand... and it appears there are people arguing both ways. Is teh OGL always able to use every SRD, or can they make a new OGL/SRD separate from the old one.



I am just stating general principles: contracts create legal obligations in virtue of agreement between the parties to them.

If WotC makes a contractual promise to me that I can always use future versions of the OGL in respect of licensed content, that will be binding on WotC in respect of me.

But it doesn't give _you_ any rights against WotC. If your only contract with WotC is under a future set of terms which do not include such a promise, you can't point to the promise that WotC made to _me_ in order to try and change or add to the terms of _your _agreement.

The OGL is a bit trickier than the above, because under the OGL 1.0/1.0a, everyone that contracts with WotC is given rights to create sub-licences to others, provided that they also licence their own OGC under the OGL. But if the revised one-D&D SRD contains material that no one yet has a licence from WotC to use (because it does not fall under the terms of the current agreements pursuant to the OGL 1.0/1.0a), and if WotC licences that new material under OGL 1.1 that does not include a version of section 9 of the OGL 1.0/1.0a, then I can't see how WotC is, nevertheless, supposed to be bound by a promise to let people use that new material under the terms of the old licence.


----------



## FrogReaver

Baron Opal II said:


> So, Gamer Bob writes an adventure and sells it under the OGL 1.0. Makes beer money. Sweet!
> 
> A few years later, Gamer Jane looks at some Open Game Content in Bob's adventure, thinks it is cool, and puts it into her sourcebook under OGL 1.1. She hits the lottery, so to speak, and makes over $750k. Good on ya, Jane!
> 
> Then WotC knocks on Jane's door, and Jane pays WotC a royalty on using the D&D game engine for her creative work. She then goes back to her desk hoping to catch lightning in a bottle twice.
> 
> I don't see how the sky is falling here. Jane doesn't owe Bob anything, OGL says she can use his stuff royalty free. Bob doesn't have to pay anything. Not only did he not make the $750k threshold, he published his deal under a different version of the licence a long time ago. WotC isn't paying anybody anything, people are playing in their sandbox, as it were.
> 
> I'm not seeing how the sky is falling here.



Possibly - Bob sues Jane as she didn't have a license to use OGL 1.1 for his product as the terms of OGL 1.0/1.0a are in conflict with the terms of OGL 1.1 and part of OGL 1.0/1.0a is she must include a similar license for others to use the content she derived from Bob?


----------



## see

Reynard said:


> If they do that they need a new license that explains what that SRD is.



Yes -- but WotC is perfectly free to name the new license the Open Game License 1.1.

WotC can then have the having the OGL 1.1 discuss several classes of content -- including the existing "Product Identity" and "Open Game Content" classes, and adding, just to invent a random term, "Speculative Example Content" for the new SRD. And in the OGL 1.1, WotC could provide a set of rules for using and combining both "Open Game Content" and "Speculative Example Content", where the result of the combination is "Speculative Example Content" that has to adhere to the rules for "Speculative Example Content" in the OGL 1.1. 

And then, because they _named_ the new license the Open Game License 1.1, the entire universe of Open Game Content can be imported, under Section 9 of the OGL 1.0a, to be used in products under the OGL 1.1.  After all, anyone who release anything as Open Game Content under the Open Game License 1.0a released that content under the terms that "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."

But the SRD released as "Speculative Example Content" can't be taken _back_ for use under the OGL 1.0a, because the OGL 1.0a has no clauses dealing with "Speculative Example Content".

Now, it is _possible_ that a court would dislike this and say something about it. You'd have to talk to a lawyer about that. And trying to speculate about that in advance of even seeing the terms of the OGL 1.1 strikes me as too disconnected from the facts to be fruitful.

But an outright hijacking of Open Game Content was actually a subject of discussion on the now-defunct Open Gaming Foundation mailing lists back when we all saw the first draft version of the Open Game License. Those discussions _very much_ included people pointing out the update clause could be exploited by WotC to take OGC and use it in selfish ways. Indeed, the whole OGL thing was very shortly after (and inspired by) the Netscape Public License release and discusssion (I participated in some of the NPL discussions, too, on Netscape's privately-hosted newsgroup created just for the discussion), and the NPL was explicit about Netscape being able to take outside contributions under the NPL and do whatever proprietary thing they liked with it. Everybody at that time understood the OGL with update clause was unequal; that it gave WotC a whole bunch of power to use Open Game Content as it saw fit, and that WotC might very well use that power when new executives were in charge.

In general, that wasn't seen as that big of deal. WotC was getting power over third party Open Game Content, but it was releasing the whole new edition of D&D for that power. But there was concern, under the ".01" draft of the update clause, that a new OGL could be used by WotC to seize _exclusive_ control of Open Game Content. And that's when Dancey responded with the "any authorized version" line in the ".02" draft. WotC would have the power with the update clause to release a new version of the OGL that gave it the right to use Open Game Content in new, potentially selfish ways, but everybody else would _still_ be able to use then-existing Open Game Content under the original terms, forever.


----------



## Bedrockgames

FrogReaver said:


> So you make 2 companies and keep your OGL 1.0a work under company 1 and the OGL 1.1 work under company 2.  That seems fairly trivial to get around?




I don't know that I would call starting a whole separate company trivial.


----------



## FrogReaver

Bedrockgames said:


> I don't know that I would call starting a whole separate company trivial.



Can't be too complicated seeing all the construction company owners that do it.


----------



## Bedrockgames

FrogReaver said:


> Can't be too complicated seeing all the construction company owners that do it.




I know I wouldn't want to start a second company. I can't speak for others.


----------



## pemerton

see said:


> The interesting question becomes if the new SRD is designated "Open Game Content" under the OGL 1.1. The question then becomes, does the OGL 1.1 only apply, or can I use the OGL 1.0a for this Open Game Content? And that isn't actually particularly obvious. The OGL 1.0a is not a law; it does not automatically cover material that is simply called Open Game Content. The new "Open Game Content" was released under the OGL 1.1, not the OGL 1.0a. But if I'm already a licensee under the OGL 1.0a, and WotC releases something they call "Open Game Content", it is possible that I can use the new "Open Game Content" under the existing license. This is particularly true since WotC drafted both licenses, and ambiguities in contract law are supposed to be resolved in favor of the non-drafting party.



I agree with the way you have framed this. I think we are saying basically the same thing (you use "law" where I used "statute"), and are trying to focus on who has the benefit of what private rights against WotC, which have been created by entering into licences or sub-licences with WotC.



Baron Opal II said:


> So, Gamer Bob writes an adventure and sells it under the OGL 1.0. Makes beer money. Sweet!
> 
> A few years later, Gamer Jane looks at some Open Game Content in Bob's adventure, thinks it is cool, and puts it into her sourcebook under OGL 1.1. She hits the lottery, so to speak, and makes over $750k. Good on ya, Jane!
> 
> Then WotC knocks on Jane's door, and Jane pays WotC a royalty on using the D&D game engine for her creative work. She then goes back to her desk hoping to catch lightning in a bottle twice.
> 
> I don't see how the sky is falling here. Jane doesn't owe Bob anything, OGL says she can use his stuff royalty free. Bob doesn't have to pay anything. Not only did he not make the $750k threshold, he published his deal under a different version of the licence a long time ago. WotC isn't paying anybody anything, people are playing in their sandbox, as it were.
> 
> I'm not seeing how the sky is falling here.



I agree with @FrogReaver's analysis: Jane is breach of her contractual obligations to Bob under the OGL 1.0, as she has not complied with her obligation to provide a royalty-free licence for the use of the OGC. Under the OGL 1.1, royalties are payable (on a conditional basis).

This is the basis of @estar's concerns, as I understand them.

I personally have no real stake in the issue of whether or not WotC's plans lead to multiple, separate, OGL communities. (Whereas this is an important issue for estar.) I'm just commenting on the legal analysis.


----------



## UngeheuerLich

I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded. It is also unfounded that they can somehow lower the bar later with 1.2 or so for those who use 1.1.
The made a license. You agreed to it by printing it in the book. So pathfinder is safe as is everything else.
I am not a lawyer or an IP lawyer for that matter.


----------



## pemerton

GMforPowergamers said:


> maybe my example isn't the best... maybe new subclass set ups (different levels for abilities) can I make a 1D&D cleric subclass that works off the new line up useing the old OGL? if I stood in court and the other side showed "the class in the SRD linked to this OGL gets things at X Y and Z, but in this OTHER OGL the srd linked to it gets them at A B and C, so you can't use the old OGL/SRD for the new set up"
> does THAT make it more of an argument?



If you publish a cleric subclass under the OLG 1.0/1.0a you need to be able to give the commitment required by section 5 - ie that you have the legal capacity to confer rights on others to use your material.

If the licence that you get from WotC in respect of the 5e SRD gives you those rights, then you are fine. If it doesn't, then you are not fine.

If your cleric subclass references product identity, you won't be fine. Let's assume it doesn't.

If you cleric subclass references stuff in respect of which WotC enjoys IP rights, _and_ if your licence from WotC in repect of the 5e SRD doesn't give you permission in respect of WotC's IP rights, then you won't be fine either.

What might that stuff be? I don't think getting sub-class features at this or that level could count - to me, that seems to be exactly the sort of thing that is licensed by the OGL 1.0/10a when WotC released the 5e SRD under it. (But I'm not much of an IP lawyer. So maybe I'm wrong.)

In the case of 4e, what the GSL tended to protect was trade dress - the distinctive templates for powers, presenting class features, etc, and also the names of powers and abilities. I don't think that having sub-class features at level X rather than level A is trade dress that is not licensed under the existing SRD/OGL.

I think the sort of issue you are considering would be more likely to arise in respect of a new sort of creature or magic item or whatever that is _not _derivative of the 5e SRD, or in respect of the actual copyrighted text of the revised SRD.


----------



## pemerton

UngeheuerLich said:


> I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded.



This is correct in my view. Existing licensees seem to me to be fine in respect of their existing publications.

Its new stuff that wants to draw on material that is _only_ licensed under a new OGL as part of a revised SRD that is trickier. And it seems that some publishers at least have an incentive to want to produce that sort of material, so as to stay up-to-date with the D&D market.


----------



## see

GMforPowergamers said:


> but how does there being a new elf, or new cleric interact with that?



Unfortunately, what constitutes an infringing derivative work and when you're making one, and how that interacts with a license to make derivative works for similar-but-not-identical source material, doesn't lend itself to bright-line rules that can be rattled off by forum posters (or, at least, by forum posters that you should _trust_).


----------



## FrogReaver

UngeheuerLich said:


> I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded. It is also unfounded that they can somehow lower the bar later with 1.2 or so for those who use 1.1.
> The made a license. You agreed to it by printing it in the book. So pathfinder is safe as is everything else.
> I am not a lawyer or an IP lawyer for that matter.



A few observations:

You are correct that the stuff produced under no royalty licenses will remain royalty free.
This seems to mean that content produced under the OGL 1.0/1.0a license *CANNOT* be updated to a OGL 1.1 license as doing so breaks the original license.  Also, derivative works for such products CANNOT be updated to OGL 1.1 as they would require a royalty free OGL license.
Since D&D One is 'backward compatible, most D&D One content should theoretically be reproducible under the OGL 1.0/1.0a licenses with some altered verbiage. (at least to my understanding *not a lawyer blah blah blah).
Because of the 1st and last bullet point the sky isn't falling.

Because of the 2nd, if they wall of OGL 1.0/1.0a content from D&D Beyond and maybe even DMsGuild as well (most obvious business move IMO) then that content won't be able to be reproduced under OGL 1.1 and thus will not be on D&D Beyond, etc, nor works derivative of it.

IMO This change if it occurs has a real chance to really harm 3pp as it looks like it will require them to abandon all their old content and any new derivates from it for the WOTC D&D One online ecosystem.


----------



## pemerton

FrogReaver said:


> IMO This change if it occurs has a real chance to really harm 3pp as it looks like it will require them to abandon all their old content and any new derivates from it for the WOTC D&D One online ecosystem.



If I was WotC, I would want an outcome where stuff that ultimately flows from the old SRD can be licensed, by its authors (but not necessarily their licensees), under the new OGL 1.1

I'm not 100% sure what the proper drafting is to achieve that outcome, but I think it should be feasible given that WotC owns the copyright in both the old and the revised SRD.

The spanner in the works would be 3PP stuff that (in some fashion that I will describe only abstractly) flows both from the SRD and from another 3PPs original work. Because WotC can't oblige those _other_ 3PPs to accept the OGL 1.1 terms for their stuff. So I think that stuff could well be cut loose in the way you describe, unless those other 3PPs elect to bring it into the fold.

I'll again add the caveat that the previous paragraph is my best effort to think through the issues of contractual construction - but I'm not an expert on that or on the relevant IP law.


----------



## FrogReaver

pemerton said:


> If I was WotC, I would want an outcome where stuff that ultimately flows from the old SRD can be licensed, by its authors (but not necessarily their licensees), under the new OGL 1.1
> 
> I'm not 100% sure what the proper drafting is to achieve that outcome, but I think it should be feasible given that WotC owns the copyright in both the old and the revised SRD.
> 
> The spanner in the works would be 3PP stuff that (in some fashion that I will describe only abstractly) flows both from the SRD and from another 3PPs original work. Because WotC can't oblige those _other_ 3PPs to accept the OGL 1.1 terms for their stuff. So I think that stuff could well be cut loose in the way you describe, unless those other 3PPs elect to bring it into the fold.
> 
> I'll again add the caveat that the previous paragraph is my best effort to think through the issues of contractual construction - but I'm not an expert on that or on the relevant IP law.



I'm not sure there's a clean way to end the perpetual royalty free license - especially since that license was created so others could also make derivative works of such 3rd party content.  Standing might be an issue if no one else had used the OGL license attached to the 3rd party product but if they had then things get really complicated legally.

*Not a lawyer or expert either.


----------



## Lanefan

pemerton said:


> The OGL is not a statute. It is only binding on WotC in respect of those who have entered into a contractual licence with WotC under its terms.
> 
> For future people, who enter into a contractual relationship with WotC under the terms of the OGL 1.1, but who have no relationship with WotC under the terms of the OGL 1.0/1.0a, the terms of the latter document have no legal consequences that I can see.



Which means, if I'm reading you right, if you're new to publishing and want to put something out under 1.0/1.0a you gotta do it before 1.1 is released.  Get in before the lock, as it were.

Is that what you're saying?


----------



## FrogReaver

Lanefan said:


> Which means, if I'm reading you right, if you're new to publishing and want to put something out under 1.0/1.0a you gotta do it before 1.1 is released.  Get in before the lock, as it were.
> 
> Is that what you're saying?



Since the 5.1 SRD has the OGL included stating it can be reproduced then I would think all you would need to do is obtain a copy of the 5.1 SRD from anyone with the 1.0/1.0a license attached.

5.1 SRD with OGL

I don't think you need to get in before 1.1 OGL comes out.


----------



## see

Lanefan said:


> Which means, if I'm reading you right, if you're new to publishing and want to put something out under 1.0/1.0a you gotta do it before 1.1 is released.  Get in before the lock, as it were.
> 
> Is that what you're saying?



No, there's no time limit. Open Game Content released under the Open Game License 1.0a can always be used under the Open Game License 1.0a.

Now, any given publisher might enter into an agreement that limits its right to do so, but that doesn't affect anyone else's ability to sit down in the year 2525 and release their own D&D 3rd edition-compatible Pocket Player's Handbook.


----------



## pemerton

FrogReaver said:


> I'm not sure there's a clean way to end the perpetual royalty free license - especially since that license was created so others could also make derivative works of such 3rd party content.  Standing might be an issue if no one else had used the OGL license attached to the 3rd party product but if they had then things get really complicated legally.



They don't need to end anyone's perpetual licence. They don't even need to retract the offer to license the 5e SRD under the OGL v 1.0a. They just need to define the scope of the OGL 1.1 licence in such a way that stuff that is both (i) 3PP-created and (ii) SRD-derived falls under the new licence. Because people can do whatever they want with their own stuff - including WotC as one of the "people" - this wouldn't breach any legal obligations as far as I can see.

What it would do is create two "ecosystems" - a 1.0/1.0a one, and a 1.1 one. Which is what @estar is concerned about. Some stuff would be trapped in the old ecosystem, because for whatever reason its authors don't release it under v 1.1 (maybe they don't want to; maybe it's too hard to untangle all the OGC so that they can do so lawfully).

The incentives for entering the new ecosystem would be (i) access to the revised SRD and (ii) perhaps access to D&D Beyond etc.


----------



## Sorcerers Apprentice

The OP is spot on! This is not an "Open" license, it exerts far too much control over how you publish the supposedly "open" content for that. What happens in 20 years when all documents are expected to be at least somewhat interactive, $750K is about 5K in today's dollars, and nobody knows who should receive any royalties after Hasbro's implosion in '37?

Some people point out that the license isn't finished yet, and I agree. If there's any interpretation of section 9 of the OGL1.0 the that would let people publish content based on the 1D&D SRD using the old OGL, we can be sure they will patch that loophole before release.

Now, OGL1.1 not being an open license doesn't mean there's not a good business case for entering into it. Many 3PPs will probably make good money with 1D&D products and not have any problem paying the modest royalties. But the OGL1.1 isn't going to help secure the future of D&D the way the OGL1.0 has.


----------



## jdrakeh

Sacrosanct said:


> This type of hyperbole doesn't help the conversation, especially since it's riddled with errors.




Yeah. By the OP's terms, many CC licenses aren't open, either. They are; the OP is just incorrect in many of his assertions. Notably: 



> As the definition of open content means you can use it in the manner you see fit.




No version of the OGL has been "open content meaning you can use it in the manner you see fit" - every version of the OGL to date has had multiple restrictions and conditions that a publisher must adhere to in order to be in compliance (not using Product Identity without express permission, for example). Relevant restriction from the OGL 1.0a: 



> 7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.




There are other restrictions, as well. It's certainly not a free for all, do whatever you like license as the OP implies.


----------



## MarioEvilDM

This has been a pleasure ready you guys\girls it's rare to see a discussion to find the truth and not a debate to sale a point of view. it is refreshing to read people with INT 15-16


----------



## S'mon

Reynard said:


> According to Section 9, if it is in fact an updated version of the OGL, and the 1D&D SRD is released under it, you can use the 1D&D SRD with v 1.0 of the OGL.




Not by my reading: 

_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 says you can use old material under a new version of the license. It does not say you can use new material under an old version of the license.


----------



## FrogReaver

pemerton said:


> They don't need to end anyone's perpetual licence. They don't even need to retract the offer to license the 5e SRD under the OGL v 1.0a. They just need to define the scope of the OGL 1.1 licence in such a way that stuff that is both (i) 3PP-created and (ii) SRD-derived falls under the new licence. Because people can do whatever they want with their own stuff - including WotC as one of the "people" - this wouldn't breach any legal obligations as far as I can see.
> 
> What it would do is create two "ecosystems" - a 1.0/1.0a one, and a 1.1 one. Which is what @estar is concerned about. Some stuff would be trapped in the old ecosystem, because for whatever reason its authors don't release it under v 1.1 (maybe they don't want to; maybe it's too hard to untangle all the OGC so that they can do so lawfully).
> 
> The incentives for entering the new ecosystem would be (i) access to the revised SRD and (ii) perhaps access to D&D Beyond etc.



What I’m saying is that SRD 5.1 currently includes the OGL 1.0 which says it can be reproduced.  They can’t put the genie back in the bottle. Anyone can get a copy of SRD 5.1 that uses the 1.0 OGL even if WOTC ceases to provide it because anyone can reproduce the 5.1 SRD with the 1.0 OGL, which then provides the new user a 1.0 OGL license to produce 5.1 SRD content.  If the 5.1 SRD wasn’t reproducible under the current 1.0 license then they could do as you suggest but it is so I don’t see how they can. At least that’s my current line of thought.


----------



## eyeheartawk

I think everyone is in agreement that _right now _there is no reason to use OGL1.1. Even if they make a new SRD and they explicitly bind that to OGL 1.1 you can just use OGL 1.0A and clone the content changing some words around. I mean, you could make a 5e rule clone using OGL 1.0A and the 3E SRD if you really wanted to.

Which, to me, means that we're all just waiting for the other shoe to drop. What's the carrot? That I think will tell us what direction this is all going more than anything else.


----------



## DarkCrisis

UngeheuerLich said:


> I am pretty sure that you can't just change a licence one sided. So any fear that they will suddenly charge people who used that old license wothout paying royalties is unfounded. It is also unfounded that they can somehow lower the bar later with 1.2 or so for those who use 1.1.
> The made a license. You agreed to it by printing it in the book. So pathfinder is safe as is everything else.
> I am not a lawyer or an IP lawyer for that matter.


----------



## FrogReaver

eyeheartawk said:


> I think everyone is in agreement that _right now _there is no reason to use OGL1.1. Even if they make a new SRD and they explicitly bind that to OGL 1.1 you can just use OGL 1.0A and clone the content changing some words around. I mean, you could make a 5e rule clone using OGL 1.0A and the 3E SRD if you really wanted to.
> 
> Which, to me, means that we're all just waiting for the other shoe to drop. What's the carrot? That I think will tell us what direction this is all going more than anything else.



I think it’s going to be more stick. Can’t sell on Wotc digital platforms without adopting 1.1 OGL.


----------



## Umbran

FrogReaver said:


> So you make 2 companies and keep your OGL 1.0a work under company 1 and the OGL 1.1 work under company 2.  That seems fairly trivial to get around?




That becomes a liability if you don't keep the finances separate, which is non-trivial.


----------



## Alzrius

S'mon said:


> Not by my reading:
> 
> _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 says you can use old material under a new version of the license. It does not say you can use new material under an old version of the license.



If you change the bolded part to read:

_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._

Doesn't that mean that you can use new material under an old version of the license (so long as the "new material" is designated as Open Game Content that is released under any version, past or future, of the OGL)?


----------



## Umbran

FrogReaver said:


> I think it’s going to be more stick. Can’t sell on Wotc digital platforms without adopting 1.1 OGL.




That seems more like a carrot than a stick - "If you use this new license, you _also_ get access to sell on our digital platform, which you couldn't do before!"


----------



## Bedrockgames

I think whatever the final legal interoperation I'd say section 9 isn't very straightforward in regards to the new license for most of the lay people who are interpreting this to make business decisions


----------



## GMforPowergamers

FrogReaver said:


> Possibly - Bob sues Jane as she didn't have a license to use OGL 1.1 for his product as the terms of OGL 1.0/1.0a are in conflict with the terms of OGL 1.1 and part of OGL 1.0/1.0a is she must include a similar license for others to use the content she derived from Bob?



wow... that is a mess.

I was just thinking how it sucks (like when a comic book writer watches his creation go on to be a billion dollar IP) for Bob, but if bob COULD sue that would be weird... the open part (yes as @Umbran said open with limits) means that you REALLY need to understand what the wording means, and why you really need a lawyer on payroll.


----------



## FrogReaver

Umbran said:


> That seems more like a carrot than a stick - "If you use this new license, you _also_ get access to sell on our digital platform, which you couldn't do before!"



For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.


----------



## GMforPowergamers

Bedrockgames said:


> I know I wouldn't want to start a second company. I can't speak for others.



one of the perfectly legal but VERY ETHICLLY DUBIOUS tricks I see people pull is open multi businesses and or organizations and then how they interact with each other gets around legal or regulatory restrictions...

The worst I ever had to deal with was a VERY big brand that actually qualified for small business' benefits by having 6 or more businesses and 1 not for profit that all kept some small amount of the job and as such employees to keep each at 49 or less even though all 6 had the same family as the owner/higher ups, then made whole sections of there workforce for several (I don't think all) act as independent contractors. 

Then again I used to do the books for a strip club that somehow didn't mange to keep small business benefits because they didn't make all there staff have to be independent contractors... like they took a hit in multi ways to make sure the employees didn't.


----------



## Fanaelialae

FrogReaver said:


> For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.



I don't think they'll remove the ability to have older content on DMs Guild (otherwise, as soon as this went into effect, DMs Guild would have to stop selling all the old content, which would not be in WotCs best interest, since they make money off those sales and would alienate their creators). Also, I was under the impression that DMs Guild content wasn't OGL to begin with, but rather some separate agreement (though I could be wrong).


----------



## Reynard

S'mon said:


> Not by my reading:
> 
> _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 says you can use old material under a new version of the license. It does not say you can use new material under an old version of the license.



The underlined is the important part here. IF OGL 1.1 is in fact a new version of OGL 1.0a, then anything released under it is released to all versions of the OGL, forward and backward.


----------



## Umbran

FrogReaver said:


> For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.




Then it is digital platforms, plural, because DMsGuild and D&D Beyond are not the same platform.


----------



## FrogReaver

Fanaelialae said:


> I don't think they'll remove the ability to have older content on DMs Guild (otherwise, as soon as this went into effect, DMs Guild would have to stop selling all the old content, which would not be in WotCs best interest, since they make money off those sales and would alienate their creators).



It could be as simple as new content must be under 1.1 OGL.  



Fanaelialae said:


> Also, I was under the impression that DMs Guild content wasn't OGL to begin with, but rather some separate agreement (though I could be wrong).



In retrospect I think you are right here.  So any discussion about the OGL for DMS Guild content is probably moot.


----------



## bedir than

FrogReaver said:


> For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.



DMsGuild doesn't use the OGL. It has stricter limitations.

OGL is DriveThruRPG, unaffiliated with WotC


----------



## estar

Alzrius said:


> If you change the bolded part to read:
> 
> _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._
> 
> Doesn't that mean that you can use new material under an old version of the license (so long as the "new material" is designated as Open Game Content that is released under any version, past or future, of the OGL)?



In Creative Commons and Open Source license that provision is there to allow people to use content released under an older license. More specifically allows them to continue to use the older license despite the existence of a newer license. For example, the linux operating system continues to use GPL version 2, while GPL version 3 is the current version 

Why is it worded the way it is and more clear? I think that is a result of how this piece of legal boilerplate developed. But you are not the first to ask this question about open license clauses like section 9.

Hope this clarifies things.


----------



## UngainlyTitan

FrogReaver said:


> I think it’s going to be more stick. Can’t sell on Wotc digital platforms without adopting 1.1 OGL.



How is that a stick? They cannot do that anyway?


----------



## Alzrius

estar said:


> In Creative Commons and Open Source license that provision is there to allow people to use content released under an older license. More specifically allows them to continue to use the older license despite the existence of a newer license. For example, the linux operating system continues to use GPL version 2, while GPL version 3 is the current version
> 
> Why is it worded the way it is and more clear? I think that is a result of how this piece of legal boilerplate developed. But you are not the first to ask this question about open license clauses like section 9.
> 
> Hope this clarifies things.



I appreciate the context, but I'm not sure that necessarily changes things with regard to the OGL specifically. As written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.


----------



## GMforPowergamers

Umbran said:


> That becomes a liability if you don't keep the finances separate, which is non-trivial.



let me tell you, this is the biggest and best example of a way someone gets into massive trouble. If you comingle assets at all without perfect record keeping it can be the biggest hassle. It can mean fines, tax penalties, but it can (and does) sometimes get worse.


----------



## estar

Alzrius said:


> I appreciate the context, but I'm not sure that necessarily changes things with regard to the OGL specifically. As written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.



That may be, but if it did wind in the courts, the judges and juries put a lot of weight on intent. And the intent is to allow older versions of the license to continue to be used. 

But a point in your favor is that when there is ambiguity the courts tend to adopt the most expansive interpretation against the licensor (Wizards in this case). So if it was tested what you say may be the case.

The way for Wizards around this is not to name their license as OGL 1.1. But do what they did with 4e and name it something different. It would no longer be another version of the OGL as referenced by Section 9. But rather its own thing.


----------



## Bedrockgames

estar said:


> That may be, but if it did wind in the courts, the judges and juries put a lot of weight on intent. And the intent is to allow older versions of the license to continue to be used.
> 
> But a point in your favor is that when there is ambiguity the courts tend to adopt the most expansive interpretation against the licensor (Wizards in this case). So if it was tested what you say may be the case.
> 
> The way for Wizards around this is not to name their license as OGL 1.1. But do what they did with 4e and name it something different. It would no longer be another version of the OGL as referenced by Section 9. But rather its own thing.




I'm not a lawyer and really don't know much about law, but something worth considering is there have been some very unusual and unexpected rulings in music IP cases in the past 5 years or so (stuff people were really surprised by) and so I would imagine until things get tested in the courts, it can be hard to predict. Maybe this is more straight forward than the music cases (my understanding is a lot of what shifted the rulings on those were some unusual arguments put forth by musicologists). Would be interested in some of the lawyers in the threads opinion on this aspect (of how far from widespread legal opinion a ruling might be able to land and potentially shake things up a lot).


----------



## eyeheartawk

Bedrockgames said:


> I'm not a lawyer and really don't know much about law, but something worth considering is there have been some very unusual and unexpected rulings in music IP cases in the past 5 years or so (stuff people were really surprised by) and so I would imagine until things get tested in the courts, it can be hard to predict. Maybe this is more straight forward than the music cases (my understanding is a lot of what shifted the rulings on those were some unusual arguments put forth by musicologists). Would be interested in some of the lawyers in the threads opinion on this aspect (of how far from widespread legal opinion a ruling might be able to land and potentially shake things up a lot).



It's probably a factor. That cuts both ways though. I think part of the reason WotC cut a deal with Solasta was that they were afraid that it was possible that a judge would rule that it was perfectly allowable under the existing OGL. When something is no longer ambiguous your soft coercive power diminishes.


----------



## GMforPowergamers

estar said:


> That may be, but if it did wind in the courts, the judges and juries put a lot of weight on intent. And the intent is to allow older versions of the license to continue to be used.
> 
> But a point in your favor is that when there is ambiguity the courts tend to adopt the most expansive interpretation against the licensor (Wizards in this case). So if it was tested what you say may be the case.
> 
> The way for Wizards around this is not to name their license as OGL 1.1. But do what they did with 4e and name it something different. It would no longer be another version of the OGL as referenced by Section 9. But rather its own thing.



the issue is even a company that makes 1 mil a year (I assume the biggest ones) doesn't want to be taken to court by WotC (hasbro) at all... let alone one that make 50k a year


----------



## Bedrockgames

eyeheartawk said:


> It's probably a factor. *That cuts both ways though. I* think part of the reason WotC cut a deal with Solasta was that they were afraid that it was possible that a judge would rule that it was perfectly allowable under the existing OGL. When something is no longer ambiguous your soft coercive power diminishes.



The bolded part is why I mentioned it as it presents a big unknown it seems until it gets tested in the courts. It seems like it might be an answer both sides could be wary of receiving


----------



## UngeheuerLich

FrogReaver said:


> For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.




Sorry. You can't use beholder in this context. It is not Open Game Content.


----------



## S'mon

Alzrius said:


> If you change the bolded part to read:
> 
> _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._
> 
> Doesn't that mean that you can use new material under an old version of the license (so long as the "new material" is designated as Open Game Content that is released under any version, past or future, of the OGL)?




Could be! 

If that's potentially the case then releasing material under OGL 1.1 would be effectively the same as releasing under OGL 1.0. I assume WoTC will eventually notice this.


----------



## eyeheartawk

UngeheuerLich said:


> Sorry. You can't use beholder in this context. It is not Open Game Content.



Actually, you can.

Publishing that one line joke on DMs Guild would allow you access to that product identity content for the punchline. 

All for the low, low price of half the money you make and not being able to tell it anywhere else.


----------



## bedir than

There's a much better joke above. I deleted my commy


----------



## kenada

Alzrius said:


> I appreciate the context, but I'm not sure that necessarily changes things with regard to the OGL specifically. As written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.



That assumes the 1.0a will be is an authorized version of the OGL for use with the 2024 rules SRD, which seems very unlikely. WotC is the copyright holder of the SRD text, so they can (re)release it under whatever terms they want. They could even release a 5.2 SRD that does nothing but bump the license version to 1.1.

My non-lawyer understanding (based on working with open-source software) is if you want to mix OGC that was released under the 1.0a OGL with that which is only 1.1 OGL, then the aggregate must be released under the 1.1 OGL (as allowed by section 9 of the 10.a OGL), but you would still have to honor the requirements of the 1.0a OGL for the incorporated content.

For example, you release a product that uses a monster from the Pathfinder bestiary, converting it to the 2024 rules. That conversion would have to be made available under the 1.0a OGL, but the other stuff would remain exclusively OGL 1.1. If it’s not possible to do the conversion without “tainting” it the OGL 1.1 SRD, then you can’t use the monster or do the conversion.


----------



## Alzrius

kenada said:


> That assumes the 1.0a will be is an authorized version of the OGL for use with the 2024 rules SRD, which seems very unlikely. WotC is the copyright holder of the SRD text, so they can (re)release it under whatever terms they want. They could even release a 5.2 SRD that does nothing but bump the license version to 1.1.



While there's currently no understanding for what "authorized" means in the context of Section 9, my guess would be that it'd be difficult to argue that the OGL v1.0 and OGL v1.0a aren't considered "authorized" versions of the license with regard to being able to "to copy, modify and distribute any Open Game Content originally distributed under any version of this License." After all, v1.0a was presumably authorized to be used with v1.0 materials, and there's no wording about revoking authorization, so why wouldn't be it authorized to be used with Open Game Content released under v1.1?


kenada said:


> My non-lawyer understanding (based on working with open-source software) is if you want to mix OGC that was released under the 1.0a OGL with that which is only 1.1 OGL, then the aggregate must be released under the 1.1 OGL (as allowed by section 9 of the 10.a OGL), but you would still have to honor the requirements of the 1.0a OGL for the incorporated content.



Well, as I outlined previously, it seems like a straight reading of Section 9 would allow things to go the other direction: that as written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.


----------



## Baron Opal II

pemerton said:


> I agree with @FrogReaver's analysis: Jane is breach of her contractual obligations to Bob under the OGL 1.0, as she has not complied with her obligation to provide a royalty-free licence for the use of the OGC. Under the OGL 1.1, royalties are payable (on a conditional basis).
> 
> This is the basis of @estar's concerns, as I understand them.



Wrong direction of responsibility. Bob, through OGL 1.0 freely surrenders royalties from any future party.  When Jane releases her supplement, she freely surrenders any royalties from any future party for the use of her open game content. What is new is that if a publisher meets a high revenue threshold they and they alone owe royalties to the owner of the ruleset.



pemerton said:


> I personally have no real stake in the issue of whether or not WotC's plans lead to multiple, separate, OGL communities. (Whereas this is an important issue for estar.) I'm just commenting on the legal analysis.



I as well.


----------



## Baron Opal II

FrogReaver said:


> Possibly - Bob sues Jane as she didn't have a license to use OGL 1.1 for his product as the terms of OGL 1.0/1.0a are in conflict with the terms of OGL 1.1 and part of OGL 1.0/1.0a is she must include a similar license for others to use the content she derived from Bob?



Bob has no standing as he voluntarily relinquished royalty rights. He suffers no damages by Jane paying a royalty to WotC due to high sales. What would he_ sue for_? He is owed nothing since he explicitly designated the part Jane used as open game content. She must designate the open game content she used as from Bob, and any open game content created by Bob or Jane used by later authors is explicitly royalty free to future authors. That section specifically protects future authors from lawsuits by past authors.

There is no conflict.


----------



## kenada

Alzrius said:


> While there's currently no understanding for what "authorized" means in the context of Section 9, my guess would be that it'd be difficult to argue that the OGL v1.0 and OGL v1.0a aren't considered "authorized" versions of the license with regard to being able to "to copy, modify and distribute any Open Game Content originally distributed under any version of this License." After all, v1.0a was presumably authorized to be used with v1.0 materials, and there's no wording about revoking authorization, so why wouldn't be it authorized to be used with Open Game Content released under v1.1?



“Permission to copy, modify and distribute the files collectively known as the System Reference Document 2024 (“SRD2024”) is granted solely through the use of the Open Gaming License, Version 1.1.”

I modified that from the opening text of the 5.1 SRD. If WotC puts a statement like it at the top of the SRD, and assuming the 1.1 OGL only allows forward compatibility, it’s clear the 1.0a OGL is not an authorized version for this SRD.



Alzrius said:


> Well, as I outlined previously, it seems like a straight reading of Section 9 would allow things to go the other direction: that as written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.



See above. This wouldn’t be the first time a new license is not compatible with an older version (e.g., GNU GPL v2 and v3 are not compatible unless the former is licensed as v2+).


----------



## UngainlyTitan

kenada said:


> “Permission to copy, modify and distribute the files collectively known as the System Reference Document 2024 (“SRD2024”) is granted solely through the use of the Open Gaming License, Version 1.1.”
> 
> If WotC puts that statement (taken and modified from the 5.1 SRD) at the top of the SRD, and assuming the 1.1 OGL only allows forward compatibility, it’s clear the 1.0a OGL is not an authorized version for this SRD.
> 
> 
> See above. This wouldn’t be the first time a new license is not compatible with an older version (e.g., GNU GPL v2 and v3 are not compatible unless the former is licensed as v2+).



@Alzrius your argument may have merit but this is the way I would bet.


----------



## FrogReaver

Baron Opal II said:


> Bob has no standing as he voluntarily relinquished royalty rights. He suffers no damages by Jane paying a royalty to WotC due to high sales. What would he_ sue for_? He is owed nothing since he explicitly designated the part Jane used as open game content. She must designate the open game content she used as from Bob, and any open game content created by Bob or Jane used by later authors is explicitly royalty free to future authors. That section specifically protects future authors from lawsuits by past authors.
> 
> There is no conflict.



Bob can sue Jane for breach of the license contract as she relinquished royalty rights on the derivative product as use of that product requires the derivative to be royalty free.   At the minimum he forces her to stop selling the content under the royalty.  I’m no expert but that Jane made money off the license breach would place those earnings or some portion of them in potential jeopardy. One doesn’t normally get to enrich themselves by using IP they had no rights to use.


----------



## Alzrius

kenada said:


> “Permission to copy, modify and distribute the files collectively known as the System Reference Document 2024 (“SRD2024”) is granted solely through the use of the Open Gaming License, Version 1.1.”
> 
> I modified that from the opening text of the 5.1 SRD. If WotC puts a statement like it at the top of the SRD, and assuming the 1.1 OGL only allows forward compatibility, it’s clear the 1.0a OGL is not an authorized version for this SRD.



Hm, that would seem to be the case if they did that. It would probably be more clear-cut if they used the term "authorized" in that context, but that does seem fairly straightforward.


----------



## Baron Opal II

FrogReaver said:


> Bob can sue Jane for breach of the license contract as she relinquished royalty rights on the derivative product as use of that product requires the derivative to be royalty free.   At the minimum he forces her to stop selling the content under the royalty. I’m no expert but that Jane made money off the license breach would place those earnings or some portion of them in potential jeopardy. One doesn’t normally get to enrich themselves by using IP they had no rights to use.



Correct in that _neither Bob nor Jane can receive royalties for their work from future authors._ If Jane ever charges royalties for her work or Bob's,_* then* she is in breach._ If Jane pays royalties to WotC, that is a different situation. Royalty rights are rights to receive compensation from others that use your work. Jane isn't getting anything that Bob is entitled to. He has no standing or cause for a suit. What _redress_ is Bob trying to get, a royalty that he waived that Jane didn't receive? _You don't relinquish rights to* pay* a royalty; that's non-sensical._

The waiving of royalties refers to the author waiving the right to _receive_ royalties for their work in return for creating and selling material that utilizes the D&D ruleset. The new license states there is a singular instance where a royalty is paid, not to the author, _which has been permanently waived_, but the owner of the ruleset that the works are derived from.

There is no breach. No author is receiving a royalty. There also isn't an issue, as far as I can see, with Jane using OGL 1.0 material in a OGL 1.1 product. A future author would need to be clear on the source of Bob's material, did it come from Bob's product under OGL 1.0 or through Jane's OGL 1.1?

(Emphasis to highlight what I think are key points, not emotional emphasis. I stand upon my soapbox rhetorically only.)


----------



## Dausuul

Alzrius said:


> While there's currently no understanding for what "authorized" means in the context of Section 9, my guess would be that it'd be difficult to argue that the OGL v1.0 and OGL v1.0a aren't considered "authorized" versions of the license with regard to being able to "to copy, modify and distribute any Open Game Content originally distributed under any version of this License." After all, v1.0a was presumably authorized to be used with v1.0 materials, and there's no wording about revoking authorization, so why wouldn't be it authorized to be used with Open Game Content released under v1.1?
> 
> Well, as I outlined previously, it seems like a straight reading of Section 9 would allow things to go the other direction: that as written, allowing people to use "any authorized version of this License" (such as the OGL v1.0a) to "copy, modify and distribute any Open Game Content" (such as the 1D&D SRD) that was "originally distributed under any version of this License" (such as the OGL v1.1) seems like a valid interpretation based on what's written in the OGL v1.0a Section 9.



So far, I have seen two actual lawyers post in these threads. Neither of them agreed with this view of Section 9.

Nor does common sense. Hasbro's lawyers have the reputation of being good at their jobs, not to say fearsome. It is _possible_ that they have drafted a license which is entirely nullified by the terms of the previous license... but I sure wouldn't bet on it.


----------



## Alzrius

Dausuul said:


> So far, I have seen two actual lawyers post in these threads. Neither of them agreed with this view of Section 9.



Well that's clearly not correct.


Dausuul said:


> Nor does common sense. Hasbro's lawyers have the reputation of being good at their jobs, not to say fearsome. It is _possible_ that they have drafted a license which is entirely nullified by the terms of the previous license... but I sure wouldn't bet on it.



If your bet is on how competent Hasbro is with regard to their own business interests, then both recent and not-so-recent history suggests that you're not gauging "common sense" very well.


----------



## S'mon

Alzrius said:


> Well that's clearly not correct.




I think any real lawyer will say "it depends" - you never really know for sure how a judge is going to rule. Certainly if I was advising WoTC on how best to do what they say what they want to do, I'd advise them not to release ONED&D under anything titled "OGL", certainly not "OGL 1.1", since by choosing to do so they risk bringing in the more generous terms of the OGL 1.0. If they want to be able to impose their new terms, it's far safer to call the licence something else.


----------



## Bill Zebub

estar said:


> This is your hobby and your game now. Don't let Hasbro try to take that away from you.
> 
> Fight On!




Oh, please.

It's a valuable IP and it belongs to Hasbro not you/us.

Don't like it?  Write and publish your own game.


----------



## Bill Zebub

CleverNickName said:


> This message has a familiar ring to it.  Something about stopping Wizards of the Coast?  Something about fighting and soldiers and karate belts?  I wasn't paying very close attention.




I was thinking:

*Mod Edit:*
Um... clearly not thinking about the site's no-politics rule.  Image removed.  ~Umbran


----------



## Lanefan

see said:


> No, there's no time limit. Open Game Content released under the Open Game License 1.0a can always be used under the Open Game License 1.0a.
> 
> Now, any given publisher might enter into an agreement that limits its right to do so, but that doesn't affect anyone else's ability to sit down in the year 2525 and release their own D&D 3rd edition-compatible Pocket Player's Handbook.



What about 0e, 1e, 2e or 5e? (4e has its own license)


----------



## Bedrockgames

Bill Zebub said:


> Oh, please.
> 
> It's a valuable IP and it belongs to Hasbro not you/us.
> 
> Don't like it?  Write and publish your own game.




I don't know if all of Estar's conclusions are accurate or not, as I am sorting through all the analysis on these threads on the new OGL, but I think it is fair given the history of the hobby and why the OGL was created, and that we now have a large community of small publishers and fans who use the OGL. There is a culture of publishing and play around it. Not everyone is going to feel that intensely about it, or that passionately, but maybe being a product of the 90s, I definitely have sympathy for the push back against something that might lead to an overly corporate use of the OGL. That said, sure, Hasbro can do what it likes within the bounds of the law, but people also have a right to respond and give their opinion, especially if they don't like the direction of the new OGL. Also we've seen that Hasbro, or WOTC at least, is responsive to peoples concerns. So it is fair, if people can push back on naming conventions in the game, and do so as a moral argument, that people can push back on the business side as part of a moral argument too.


----------



## darjr

I will say, this OGL 1.1 does seem like it will break two things.

The OGL 1.0a is a safe harbor. This one isn't. Before you just needed to follow the license and agree to it's terms. Now, if you sell things, and make a certain amount a year, you have to wait on wotc. There is some point where they can say no. Yes? Does that seem correct?

Second the OGL 1.0a was a way to project D&D so it could live on regardless of what the owner of the IP did. The new OGL 1.1 doesn't seem like that would be even possible?


----------



## doctorbadwolf

GreyLord said:


> Well, the thing to also look at is what NEW information will be released for use under the 1.1 and HOW it will be released.
> 
> -snip-
> 
> IMO (can't stress this enough)...
> 
> This new one won't negate the old OGL's and what was OGL for 5e is still OGL, and 1 D&D will be backwards compatible (as per WotC's statements).  In that light, it may not have as big an impact as some are thinking on the publication market, BUT, there may be some new items that will be the carrot that will make some of those bigger publishers consider using it (and I imagine a lot of it will deal with the size of the audiences on VTTs and online and the impact 1.1 will have on that as well as people wanting a piece of that pie.  Afterall, selling 10K copies is good, but reaching and audience of 10 million and selling 100K copies is better...right?)



This exactly. 

I think that being able to use new material that is published under the new license, and sell on whatever platform wizards ends up using with a "this guy is legit" badge, will be carrot enough for a lot of creators. 

The thing I'm curious about, and don't like the prospects of due to the state of American courts right now, is whether this will bring disagreement about how much the OGL can actually restrict in the first place to a head, and end up in court somehow.

There is a, IIRC, pretty strong arguemtn that a lot of what is in covered by the OGL is fair use anyway. If the new OGL tries to restrict such content more, some creators may push back against that, or simply ignore it with a willingness to go to court to prove that what they've created is covered by fair use.


----------



## darjr

When did the OGL 1.0a FAQ disappear from WotC's site?

Here is a copy.


			FAQ: Open Game License


----------



## Bayushi_seikuro

Art Waring said:


> One concern is: what exactly will they do with all of the financial information that they gather?
> 
> One possibility is that they use the OGL-finance data to start demanding royalties in descending tiers. Tax the top 20 to start, figure out the financial landscape, and start charging rent on the top ten percent, then the top twenty and so on.



My gut instinct as someone who has worked in a lot of auditing type areas is knowing what the third-party is selling and at what price point might give a lot more accuracy for Wizards to see what's selling.  Polls about what sourcebooks you want to see, or what direction D&D gaming is taking, only gives you numbers from people who take surveys/feedback.  Taking the hard numbers on price points products sell at (what cost/page etc), what subjects people in the zeitgeist are wanting to buy... these aren't subjective voices on forums; it's data being supported by actual numbers.  

On a side tangent, it reminds me of something I saw Kevin O'Leary talking about.  His son apparently works at Tesla and was talking about the amount of road data Tesla apparently gets each time their cars are on the road.  "At the time, O’Leary was questioning the valuation of Tesla strictly as a car company. His son, who was a Tesla intern in the summer, convinced O’Leary to look at how Tesla was becoming a technology company and had tons of collected data." -- Why Kevin O'Leary Changed His Mind On Tesla, Keeps Allocation Capped At 5%


----------



## Baron Opal II

Bill Zebub said:


> I was thinking:



I've never known Estar to be spineless.


----------



## estar

Bill Zebub said:


> Oh, please.
> 
> It's a valuable IP and it belongs to Hasbro not you/us.
> 
> Don't like it?  Write and publish your own game.



Disagree, D&D, as well as other RPGs, are part of our common cultural heritage. It been 50 years we should not have to pay rent for it. Especially to a nonperson corporation that never was involved in its creation.

With Dancey getting the D20 SRD out as open content under the OGL we didn't have to wait until at least 2070 to use some of it without someone paying rent. My position we should keep pushing that for subsequent editions as well. We got something that was good enough for 5e and we should put for the same and more for OneD&D. 

Hasbro will continue to make their money as did with 5e. 5e experienced it's greatest growth AFTER the release of the 5e SRD. 

If Wizards introduces problems then the hobby has the tools to fix it. It happened with 4th edition and it will happen with OneD&D if there are problems. But it would be nice to have to do what Pazio had to do and just get on with creating, sharing, and publishing fun and neat stuff. The way these things goes it is easier to act on the objections now rather than later when more work has been done on the license.


----------



## estar

Lanefan said:


> What about 0e, 1e, 2e or 5e? (4e has its own license)



For 0e to 2e it turns out that not using the newer mechanics in the d20 SRD results in a system that is but a hop and a skip from various classic editions. So that is covered. 

5e has it's own SRD under the OGL 1.0a. Unlike the d20SRD there is a lot missing from the 5e SRD in regards to the core rules. For example , there is only one example of a feat. So if a publisher wanted to make a Open5e alternative, they have more work to do than Paizo. 
But then again, Paizo did put a lot of work into making Pathfinder 1.0 a step beyond 3.5 'as is'. And it worked out.


----------



## mamba

kenada said:


> If the 3e OGL had these terms, there would be no Pathfinder or OSR. It the 5.1 SRD did, it would mean no _Solasta_. This license is no more “open” than the source-aware licenses that charlatans try to push as “open” replacements for true FOSS licenses.



Really? What prevents Pathfinder or the OSR here? As far as I can tell nothing at all does, at most they end up having to share a bit of revenue with WotC.

No idea if Solasta (which I just looked up and know nothing about) is even using the OGL. According to WotC they are not covered by it even today however.


----------



## estar

mamba said:


> Really? What prevents Pathfinder or the OSR here? As far as I can tell nothing at all does, at most they end up having to share a bit of revenue with WotC.
> 
> 
> mamba said:
> 
> 
> 
> No idea if Solasta (which I just looked up and know nothing about) is even using the OGL. According to WotC they are not covered by it even today however.
Click to expand...


There is not enough information to see how a Pathfinder could be prevented. But for Solasta, they said that one of the goals is that the license is only for printed and electronic books in a static format.


----------



## Bedrockgames

mamba said:


> Really? What prevents Pathfinder or the OSR here? As far as I can tell nothing at all does, at most they end up having to share a bit of revenue with WotC.
> 
> No idea if Solasta (which I just looked up and know nothing about) is even using the OGL. According to WotC they are not covered by it even today however.




I am still trying to understand all of this, but it sounds like there is more to it than just that concern. But having to share revenue data and revenue isn't a small thing. That gives WOTC a lot of information about the hobby and about competitors. If you are a company making lots of revenue with a particular line, and you have to share that data with WOTC, it could mean WOTC sees that information and decides to launch its own line along the same idea. Plus you are just giving a rival information about your company you might not want to share for a host of reasons. But people like Estar seem to be expressing concerns about the license that are more about its impact on what you can make.


----------



## UngainlyTitan

estar said:


> Disagree, D&D, as well as other RPGs, are part of our common cultural heritage. It been 50 years we should not have to pay rent for it. Especially to a nonperson corporation that never was involved in its creation.
> 
> With Dancey getting the D20 SRD out as open content under the OGL we didn't have to wait until at least 2070 to use some of it without someone paying rent. My position we should keep pushing that for subsequent editions as well. We got something that was good enough for 5e and we should put for the same and more for OneD&D.
> 
> Hasbro will continue to make their money as did with 5e. 5e experienced it's greatest growth AFTER the release of the 5e SRD.
> 
> If Wizards introduces problems then the hobby has the tools to fix it. It happened with 4th edition and it will happen with OneD&D if there are problems. But it would be nice to have to do what Pazio had to do and just get on with creating, sharing, and publishing fun and neat stuff. The way these things goes it is easier to act on the objections now rather than later when more work has been done on the license.



The first sentence is a position against the modern IP and copyright laws and probably beyond the scope of this forum


----------



## kenada

mamba said:


> Really? What prevents Pathfinder or the OSR here? As far as I can tell nothing at all does, at most they end up having to share a bit of revenue with WotC.



See my response to @Malmuria in post #18.



mamba said:


> No idea if Solasta (which I just looked up and know nothing about) is even using the OGL. According to WotC they are not covered by it even today however.



The proposed OGL 1.1 is only for print (and the digital equivalent like PDFs). It does not allow games, digital tools, or other things of that nature.


----------



## Lanefan

Bedrockgames said:


> I am still trying to understand all of this, but it sounds like there is more to it than just that concern. But having to share revenue data and revenue isn't a small thing. That gives WOTC a lot of information about the hobby and about competitors. If you are a company making lots of revenue with a particular line, and you have to share that data with WOTC, it could mean WOTC sees that information and decides to launch its own line along the same idea. Plus you are just giving a rival information about your company you might not want to share for a host of reasons. But people like Estar seem to be expressing concerns about the license that are more about its impact on what you can make.



Is there anything yet that says just how detailed that financial info has to be, that a company would have to forward to WotC?

For example, if a publisher only had to send in something annually that said (in more legal-ish terms) something like "_By accepted accounting practices the OGL-related revenue of Company X was $823,464 in year [20xx]; please find enclosed a royalty cheque for [whatever amount the royalty is on the $73,464 excess]._" then WotC wouldn't get to see which in particular of Company X's products were selling well and which weren't; only that the company had taken in that much money in that year.  I can't see how that's so bad other than it might force publishers to add a layer to their accounting to sort out OGL-related and non-OGL-related revenue.

But if WotC insists on a full breakdown on how and from what product(s) that OGL-related revenue was achieved, that's too much.  Way too much.


----------



## Bedrockgames

Lanefan said:


> Is there anything yet that says just how detailed that financial info has to be, that a company would have to forward to WotC?




It think it just said OGL-related revenue annually if you make more than 50,000 



Lanefan said:


> For example, if a publisher only had to send in something annually that said (in more legal-ish terms) something like "_By accepted accounting practices the OGL-related revenue of Company X was $823,464 in year [20xx]; please find enclosed a royalty cheque for [whatever amount the royalty is on the $73,464 excess]._" then WotC wouldn't get to see which in particular of Company X's products were selling well and which weren't; only that the company had taken in that much money in that year.  I can't see how that's so bad other than it might force publishers to add a layer to their accounting to sort out OGL-related and non-OGL-related revenue.
> 
> But if WotC insists on a full breakdown on how and from what product(s) that OGL-related revenue was achieved, that's too much.  Way too much.




I am assuming we will learn more specifics when they publish the new OGL version. But it is both royalty (if you make over 750,000 and revenue reporting (if you make more than 50k). I imagine for some companies that might be easier or harder for WOTC to deduce where the money is coming from if they only have to submit a single number with no break down of any further information. A lot of companies build their OGL business around one line for example. But we won't really know for sure until we see what the revenue reporting requirements are. 

Again I can't speak for other publishers, and I am not doing any OGL stuff under the new license, but I absolutely would not share any of my revenue information with another company (especially one controlling a license of this nature).   That might just be me. But I would be pretty concerned about it. And if I were making more than 750K, I would think twice about an arrangement where I may have to send them royalties.


----------



## MoonSong

kenada said:


> Paizo wouldn’t agree to the GSL. Why would they agree to a license that requires revenue reporting and royalties paid to WotC indefinitely? For the OSR, the point of retroclones was to create games that were unencumbered, so people could use them and create content for them. This version of the OGL would keep them encumbered, defeating the point. I suppose they could be released as non-open games (like Kevin Crawford does for his), but I think the hobby would be much worse off if things had gone that route.



Why would Paizo agree to a license that could mean having to pay royalties for PF money?


----------



## mamba

pemerton said:


> Just sticking to this bit of the analysis, I think that @estar is correct to flag the possibility that OGL 1.1 may not be a "version" of OGL 1.0/1.0a, as it apparently will not permit someone who becomes a party to it to distribute OGC royalty-free.



Where is that coming from ? Of course it allows the royalty free distribution of OGC. If you as the licensee decide not to distribute *your* work royalty free *and* make more than 750k with it, then WotC does want a cut however.

As to it not being a version of the OGL, that would maybe be worth considering if this license were not called OGL 1.1. As is, it is that can  be dismissed outright.


----------



## codo

MoonSong said:


> Why would Paizo agree to a license that could mean having to pay royalties for PF money?



It's not like the original OGL is going away.  I don't know what inducements WotC will decide to offer to use the new license, I'm guessing the use of more game content and campaign settings, as well as access to WotCs distribution channels.  Whatever they are, If a company or game designer decide they are not worth it, they can always use the original OGL.


----------



## mamba

estar said:


> It means content licensed under the OGL 1.1 can not be used with content licensed under the OGL 1.0a. So OneD&D publishers making a product using content from OGL 1.1 under the proposed changes would not have my permission per the OGL to use Blackmarsh.



Are you sure ? Section 9 sounds like they would be able to use 1.1. if they so chose.

"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."

You distributed your OGC under 1.0a, they use it with 1.1 instead...


----------



## occam

kenada said:


> Paizo wouldn’t agree to the GSL. Why would they agree to a license that requires revenue reporting and royalties paid to WotC indefinitely?



You had said:


			
				kenada said:
			
		

> If the 3e OGL had these terms, there would be no Pathfinder



But now you're assuming they would've had some other choice. If the original OGL had included royalty terms, and upon the release of 4e Paizo faced a choice of the GSL (to continue publishing official D&D content) or the royalty-encumbered OGL, they might very well have forged ahead with a 3.x-based Pathfinder anyway, royalties or no (depending on royalty terms, anticipated profit margins, etc.). Retrospectively arguing that royalty requirements would've prevented the appearance of Pathfinder (or the OSR) is speculation, and the inclusion of royalty terms in OGL 1.1 doesn't necessarily preclude its use in generating future business ventures.

Of course, OGL 1.0 still exists, and is royalty-free, providing another option.


----------



## kenada

occam said:


> You had said:
> 
> But now you're assuming they would've had some other choice. If the original OGL had included royalty terms, and upon the release of 4e Paizo faced a choice of the GSL (to continue publishing official D&D content) or the royalty-encumbered OGL, they might very well have forged ahead with a 3.x-based Pathfinder anyway, royalties or no (depending on royalty terms, anticipated profit margins, etc.). Retrospectively arguing that royalty requirements would've prevented the appearance of Pathfinder (or the OSR) is speculation, and the inclusion of royalty terms in OGL 1.1 doesn't necessarily preclude its use in generating future business ventures.
> 
> Of course, OGL 1.0 still exists, and is royalty-free, providing another option.



Yep, it is speculation. See post #21 for additional clarification. I’m still skeptical about Paizo though. They created Pathfinder (the adventure series) after they lost the Dungeon and Dragon licenses. Would they have been willing to deal with WotC again? I don’t know. It would help if we know the OGL 1.1 terms (particularly whether it’s revocable, which was a big problem with the original GSL).


----------



## SkidAce

Maybe I can get a copy of all of WotC's plans for 1D&D, and publish it as Open Gaming Content  via OGL 1.0a before they do, thereby making it Open Content for everyone forever! (*)

Muhahahahahahaha!




* in case of legalities, I am kidding, but it does seem like it would work.


----------



## kenada

MoonSong said:


> Why would Paizo agree to a license that could mean having to pay royalties for PF money?



We seem to agree? I seems unlikely that they would. There’s also the issue of whether the OGL 1.1 would even allow separate systems to be made using the 2024 rules SRD as a base. The clarifications posted in D&D Beyond read more like they want to expand the DM’s Guild model beyond that site. It’s all speculation though. Until we see what the license text actually says, it’s not possible to do much more than that.


----------



## mamba

pemerton said:


> They don't need to end anyone's perpetual licence. They don't even need to retract the offer to license the 5e SRD under the OGL v 1.0a. They just need to define the scope of the OGL 1.1 licence in such a way that stuff that is both (i) 3PP-created and (ii) SRD-derived falls under the new licence.



they cannot do that, as the SRD is already available under OGL 1.0a and that cannot be revoked or ended

They could have something that is exclusive to the new SRD be available under OGL 1.1 only, but that sounds like a relatively small amount of stuff


pemerton said:


> What it would do is create two "ecosystems" - a 1.0/1.0a one, and a 1.1 one. Which is what @estar is concerned about. Some stuff would be trapped in the old ecosystem, because for whatever reason its authors don't release it under v 1.1 (maybe they don't want to; maybe it's too hard to untangle all the OGC so that they can do so lawfully).



A user can mix and match these without any issues


----------



## Ulfgeir

SkidAce said:


> Maybe I can get a copy of all of WotC's plans for 1D&D, and publish it as Open Gaming Content  via OGL 1.0a before they do, thereby making it Open Content for everyone forever! (*)
> 
> Muhahahahahahaha!
> 
> 
> 
> 
> * in case of legalities, I am kidding, but it does seem like it would work.



Depending on how you came across said information, WotC might have very strong opinions, and lawyers would be involved. And unless you have a very big budget and very capable lawyer's that could prove that you "white-roomed" it, things might be rather bad for you.


----------



## mamba

FrogReaver said:


> I think it’s going to be more stick. Can’t sell on Wotc digital platforms without adopting 1.1 OGL.



That is not 'more stick' but 'a carrot', as you cannot sell there today at all


----------



## mamba

Umbran said:


> That becomes a liability if you don't keep the finances separate, which is non-trivial.



Not sure, all you need to do is know which product had what income and used what version of the OGL. The finances can be merged without any issues as long as your bookkeeping is clean.


----------



## mamba

FrogReaver said:


> For DMs Guild they could before. So that’s stick. For beyond I think whether that’s stick or carrot is in the eyes of the beholder.



The DMsGuild is not covered by the OGL, they have a separate deal and I do not seeing that going away either.


----------



## mamba

darjr said:


> I will say, this OGL 1.1 does seem like it will break two things.
> 
> The OGL 1.0a is a safe harbor. This one isn't. Before you just needed to follow the license and agree to it's terms. Now, if you sell things, and make a certain amount a year, you have to wait on wotc. There is some point where they can say no. Yes? Does that seem correct?



wait on them for what ? collect their fee ?


darjr said:


> Second the OGL 1.0a was a way to project D&D so it could live on regardless of what the owner of the IP did. The new OGL 1.1 doesn't seem like that would be even possible?



why not? This sounds like the risk is that WotC goes bankrupt and D&D ends up being owned by no one, then how does this impact D&D ? As far as I can tell not at all, all it does is make it impossible to pay your fee if you make more than 750k off it.

You still legally owe it, there just is no one who can legally collect it.


----------



## mamba

estar said:


> Disagree, D&D, as well as other RPGs, are part of our common cultural heritage. It been 50 years we should not have to pay rent for it. Especially to a nonperson corporation that never was involved in its creation.



Pretty sure actual laws disagree with you on this, any 'should' aside


----------



## darjr

mamba said:


> wait on them for what ? collect their fee ?
> 
> why not? This sounds like the risk is that WotC goes bankrupt and D&D ends up being owned by no one, then how does this impact D&D ? As far as I can tell not at all, all it does is make it impossible to pay your fee if you make more than 750k off it.
> 
> You still legally owe it, there just is no one who can legally collect it.



There is a new process being put in place. Do you imagine, for even a second, that it doesn’t involve a back and forth with WotC?

Yes, the OGL WAS a response to the possibility of its owner going belly up, among other things. In fact it was the possible bankruptcy of TSR that prompted Ryan Dancy to think about it. Please read a little bit of OGL history.


----------



## mamba

estar said:


> There is not enough information to see how a Pathfinder could be prevented. But for Solasta, they said that one of the goals is that the license is only for printed and electronic books in a static format.



Agreed, and WotC also said that software is already not covered by it today, the OGL 1.1 just makes this clearer. Solasta is already not using the OGL today either






						WotC granted us a license to u... |  Forums | Solasta: Crown of the Magister
					

WotC granted us a license to use the D&D SRD 5.1 Ruleset!:   Great news everyone!  We've now officially received the license to use the System Reference Document 5.1 from Wizards of the Coast, further anchoring our will to make the most faithful video game adaptation with the Tabletop Ruleset to...




					forums.solasta-game.com


----------



## GMforPowergamers

mamba said:


> Not sure, all you need to do is know which product had what income and used what version of the OGL. The finances can be merged without any issues as long as your bookkeeping is clean.



what about your overhead?

Lets say I own a lawn mowing service, a tree moving service and a painting business... and I have an office that is a single office for all three, what do I expense to what? what about my computer and printer? what about my time? That 1 truck I use for all three and the gas I use? 

If you have 2 publishing companies you need 2 full sets of books and make sure you are not comingling.


----------



## mamba

Bedrockgames said:


> I am still trying to understand all of this, but it sounds like there is more to it than just that concern. But having to share revenue data and revenue isn't a small thing.



I am not saying it is a small thing, only that it does not prevent either a new Paizo (which can still happen) nor a new Solasta (which was already not covered by it the first time around and got a explicit license from WotC already)


----------



## mamba

kenada said:


> See my response to @Malmuria in post #18.



yeah, do not really agree with that  I am not seeing your argument preventing Paizo or the OSR. That's like saying you rather make zero money by not competing than possibly have to give some fee to WotC for using their SRD as a starting point, if you end up being hugely successful.


kenada said:


> The proposed OGL 1.1 is only for print (and the digital equivalent like PDFs). It does not allow games, digital tools, or other things of that nature.



Same as OGL 1.0a according to WotC, 1.1 just is clearer about this


----------



## mamba

darjr said:


> There is a new process being put in place. Do you imagine, for even a second, that it doesn’t involve a back and forth with WotC?



I have no idea what that process will be, I assume they want to keep it simple to help with adoption of the OGL 1.1 however.

At a minimum you enter your revenue on their website (starting at 50k) and once the number you enter exceeds 750k they have a form on which you can transfer money to them, just like any webstore offers. They can even prefill the amount 


darjr said:


> Yes, the OGL WAS a response to the possibility of its owner going belly up, among other things. In fact it was the possible bankruptcy of TSR that prompted Ryan Dancy to think about it. Please read a little bit of OGL history.



I am aware, I just do not see how D&D would disappear under OGL 1.1 if WotC went bankrupt (and this ignores the fact that at least 5e would even then still be available under 1.0a)


----------



## pemerton

FrogReaver said:


> What I’m saying is that SRD 5.1 currently includes the OGL 1.0 which says it can be reproduced.  They can’t put the genie back in the bottle. Anyone can get a copy of SRD 5.1 that uses the 1.0 OGL even if WOTC ceases to provide it because anyone can reproduce the 5.1 SRD with the 1.0 OGL, which then provides the new user a 1.0 OGL license to produce 5.1 SRD content.  If the 5.1 SRD wasn’t reproducible under the current 1.0 license then they could do as you suggest but it is so I don’t see how they can. At least that’s my current line of thought.



My only point of disagreement with your first two sentences is that WotC could retract their offer to license the 5e SRD under the OGL v 1.0a. That would mean that any future person wanting to distribute OGC derived from the 5e SRD would need to do so via some other publisher who is already party to the OGL with WotC. Because that is not a very high hurdle to get over, in practical terms I think WotC has no reason to retract their offer.



mamba said:


> they cannot do that, as the SRD is already available under OGL 1.0a and that cannot be revoked or ended
> 
> They could have something that is exclusive to the new SRD be available under OGL 1.1 only, but that sounds like a relatively small amount of stuff



You have misread my post, which did not use the word "only". @FrogReaver seemed to be suggesting that the only way to bring material from the existing SRD(s) under the OGL v 1.1 would be by ending the existing, perpetual, royalty-free licenses. I was disagreeing with that. (And of course it's always possible that I misinterpreted FrogReaver in the first place.)

In other words, as I said in my post, it may be that two publisher ecosystems are created, but they would likely be overlapping in the OGC that they contain.

And I am taking it as given that there will be material that WotC licenses via the OGL v 1.1 that is not currently licensed under the OGL v 1.0/1.0a. What that volume of "stuff" would be I don't know.



Baron Opal II said:


> Wrong direction of responsibility. Bob, through OGL 1.0 freely surrenders royalties from any future party.  When Jane releases her supplement, she freely surrenders any royalties from any future party for the use of her open game content. What is new is that if a publisher meets a high revenue threshold they and they alone owe royalties to the owner of the ruleset.



Bob, through OGL v 1.0/1.0a, also obliges any future party to distribute all OGC royalty-free. But a party to the mooted OGL v 1.1 is violating that obligation. Of course that person (Jane) could surrender their royalty claims, but they can't surrender WotC's royalty claims. So it seems to me they can't pass on the rights to further parties that Bob, via the OGL v 1.0/1.0a, has obliged them to.

Who would have what remedy (gains-based damages, termination of the contract, etc) is a further question.



mamba said:


> Where is that coming from ? Of course it allows the royalty free distribution of OGC., If you as the licensee decide not to distribute *your* work royalty free *and* make more than 750k with it, then WotC does want a cut however.



I haven't seen the text of the OGL v 1.1. But I thought the press release said that publishers of OGC derived from the revised SRD will owe royalties (conditional on a certain revenue) to WotC. I assume it will be drafted so that if Jane distributes OGC that has been licensed to her under the licence, she imposes the same obligation on the sub-licensees. To me, that does not seem consistent with Jane's obligation under the OGL v 1.0/1.0a to distribute OGC royalty-free. That latter obligation is not confined to her own contributions to the OGC, at least on my reading of the OGL v 1.0/1.0a.



S'mon said:


> Could be!
> 
> If that's potentially the case then releasing material under OGL 1.1 would be effectively the same as releasing under OGL 1.0. I assume WoTC will eventually notice this.



I think we can be pretty confident that WotC's lawyers don't need to read ENworld for their advice and analysis!

I still don't see how WotC, in making a new offer of a licence to use their revised SRD under certain terms, can be bound by section 9 of an old offer.

But are you able to tell us anything sensible about the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL? That's what I'm curious about, but don't know enough to work out for myself.


----------



## mamba

GMforPowergamers said:


> what about your overhead?
> 
> Lets say I own a lawn mowing service, a tree moving service and a painting business... and I have an office that is a single office for all three, what do I expense to what? what about my computer and printer? what about my time? That 1 truck I use for all three and the gas I use?



Up to you, plenty of companies found a way to do this. If you have no good metric or it is too complicated to track, do it by revenue. Say the 1.0a material made 100k, the 1.1  material made 50k, so 2/3s of overhead get assigned to 1.0a and 1/3 to 1.1. Nothing new here...


----------



## darjr

mamba said:


> I have no idea what that process will be, I assume they want to keep it simple to help with adoption of the OGL 1.1 however.
> 
> At a minimum you enter your revenue on their website (starting at 50k) and once the number you enter exceeds 750k they have a form on which you can transfer money to them, just like any webstore offers. They can even prefill the amount
> 
> I am aware, I just do not see how D&D would disappear under OGL 1.1 of WotC went bankrupt (and this ignores the fact that at least 5e would even then still be available under 1.0a)



It looks like they want to see what you are doing, which implies a review process. I realize this is speculative on what that process will entail.

For the second, if WotC went belly up and the OGL 1.1, as described is the law of the land, doesn’t seem to allow for anyone else to publish it, granted someone could do it for gifted, I suppose.

Ignoring for the sake of argument that the OGL 1.0a would be viable.


----------



## mamba

pemerton said:


> My only point of disagreement with your first two sentences is that WotC could retract their offer to license the 5e SRD under the OGL v 1.0a.



They cannot do that, simple as that



pemerton said:


> You have misread my post, which did not use the word "only".



I know, you said they would license the entire SRD under 1.1. They definitely will do that, but the 5.1 SRD is then still available under OGL 1.0a. So at most the new changes are covered by OGL 1.1 only. That is where my 'only' came from


pemerton said:


> In other words, as I said in my post, it may be that two publisher ecosystems are created, but they would likely be overlapping in the OGC that they contain.



that is a given, assuming the next SRD does not fully fall under OGL 1.0a as well (which given how 1.0a is phrased is at least a possibility)


pemerton said:


> And I am taking it as given that there will be material that WotC licenses via the OGL v 1.1 that is not currently licensed under the OGL v 1.0/1.0a. What that volume of "stuff" would be I don't know.



No one knows, but given the similarities between 5e and 1D&D it cannot be all that much


----------



## pemerton

darjr said:


> if WotC went belly up and the OGL 1.1, as described, doesn’t seem to allow for anyone else to publish it, granted someone could do it for gifted, I suppose.



I'm not sure what the worry is here.

If the SRD were to be literally unowned, then no one would be violating anyone else's rights in publishing work derived from it.

If the SRD became owned by someone else, I don't know whether or not that would extinguish the licences that WotC had granted, as I don't know how US contract law works in that respect. If it did, then that would happen whatever the particular terms of the OGL. If it didn't, then people publishing under the OGL 1.1 would owe their royalties to the new owner of the SRD. (At least in the simple sort of scenario I've painted.)


----------



## pemerton

mamba said:


> They cannot do that, simple as that



Of course they can. An offerer can retract an offer at any time, unless they have entered into a contractual promise not to do so, or are estopped. WotC has not contracted with anyone that I've heard of to not retract their offer; nor are they estopped in respect of an offer to anyone, that I'm aware of.

The licence is not revocable once entered into. But that's different from ceasing to make the offer.


----------



## darjr

pemerton said:


> I'm not sure what the worry is here.
> 
> If the SRD were to be literally unowned, then no one would be violating anyone else's rights in publishing work derived from it.
> 
> If the SRD became owned by someone else, I don't know whether or not that would extinguish the licences that WotC had granted, as I don't know how US contract law works in that respect. If it did, then that would happen whatever the particular terms of the OGL. If it didn't, then people publishing under the OGL 1.1 would owe their royalties to the new owner of the SRD. (At least in the simple sort of scenario I've painted.)



It wouldn’t be unowned. The doomsday scenario was D&D being owned in pieces by banks.

Yes, it’s not likely, but that wasn’t my point.

My point was this OGL1.1 seems it will be very different at a core level and this being one of those differences.


----------



## darjr

I gotta add that in a vacuum this license as described seems extremely generous.

Even in the current circumstances I think it seems generous, really. 

But open license have become the norm and frankly I think that’s best.


----------



## mamba

darjr said:


> For the second, if WotC went belly up and the OGL 1.1, as described is the law of the land, doesn’t seem to allow for anyone else to publish it, granted someone could do it for gifted, I suppose.



No idea, as I wrote the first time around to me it seems like the only consequence is that whatever fee you owed WotC under it now goes uncollected as WotC no longer exists and no one acquired the rights do D&D.


----------



## kenada

mamba said:


> yeah, do not really agree with that  I am not seeing your argument preventing Paizo or the OSR. That's like saying you rather make zero money by not competing than possibly have to give some fee to WotC for using their SRD as a starting point, if you end up being hugely successful.



Again, it’s speculation. It’s possible they would have tried to do their own thing, but I remain skeptical they would have been willing to put themselves at the mercy of WotC again after what happened with Dungeon and Dragon.



mamba said:


> Same as OGL 1.0a according to WotC, 1.1 just is clearer about this



No, not the same. The 1.0a OGL is not limited to just print and PDF. WotC is using “clarification” as a euphemism to say they want to limit how people can use OGL content. It’s like when a service you use announces a new phase on their journey when the reality is they got acquired, and the service is either shutting down or will be in the future.


----------



## pemerton

darjr said:


> It wouldn’t be unowned. The doomsday scenario was D&D being owned in pieces by banks.
> 
> Yes, it’s not likely, but that wasn’t my point.
> 
> My point was this OGL1.1 seems it will be very different at a core level and this being one of those differences.



But suppose that a bank ends up owning the SRD, in a way that _doesn't_ extinguish the licence, then you'd just pay them your royalties.

I guess I'm not seeing how the royalties clause changes the capacity of the licence to "save D&D".


----------



## kenada

darjr said:


> It looks like they want to see what you are doing, which implies a review process. I realize this is speculative on what that process will entail.



If the OGL 1.1 will require revenue reporting, then it seems like a fair assumption that WotC be allowed to audit licensors for accuracy. Thankfully, their people came from Microsoft not Oracle, so they probably won’t be (as) aggressive about it.


----------



## mamba

pemerton said:


> Of course they can.



No, they absolutely cannot, under no circumstances ever

"the Contributors grant You a *perpetual,* worldwide, royalty-free, non-exclusive license"



pemerton said:


> An offerer can retract an offer at any time



no, the license does not allow for this



pemerton said:


> The licence is not revocable once entered into. But that's different from ceasing to make the offer.



They cannot stop making the offer either, they offered it once and they have no way of going back on that, unless they come up with time travel.  Once something has been released, it stays released.

This is not a license both sides need to agree to, so WotC has no way of preventing anyone in the future from using that license for the stuff they published under it.


----------



## pemerton

kenada said:


> The 1.0a OGL is not limited to just print and PDF. WotC is using “clarification” as a euphemism to say they want to limit how people can use OGL content. It’s like when a service you use announces a new phase on their journey when the reality is they got acquired, and the service is either shutting down or will be in the future.



I was just rereading the d20 trademark licence, which incorporated the d20 system guide, which in turn precludes the production of "interactive game" software. The fact that an exclusion of that sort was expressly incorporated in that licence reinforces your plain-meaning reading of the OGL. I don't see how the OGL is supposed to not license the use of OGC in software contexts. (Though I'm prepared to accept that complying with the obligations to make OGC available to other licensees might impose certain restriction on _how_ OGC is incorporated into software.)


----------



## Sorcerers Apprentice

Baron Opal II said:


> Bob has no standing as he voluntarily relinquished royalty rights. He suffers no damages by Jane paying a royalty to WotC due to high sales. What would he_ sue for_? He is owed nothing since he explicitly designated the part Jane used as open game content. She must designate the open game content she used as from Bob, and any open game content created by Bob or Jane used by later authors is explicitly royalty free to future authors. That section specifically protects future authors from lawsuits by past authors.
> 
> There is no conflict.



Bob has not relinquished any rights. He has made his content available for redistribution under specific terms; that any further redistribution is made under the same terms that Bob offered, the OGL1.0. 

Jane is not complying with Bob's terms, as she is redistributing under the more restrictive OGL1.1 license. Since Bob's OGL1.0 offer was the only thing that could give Jane permission to redistribute Bob's content, _if Jane is not complying with that license she has no right to redistribute any of Bob's content and thus her product is illegally violating Bob's copyright._


----------



## Baron Opal II

pemerton said:


> Bob, through OGL v 1.0/1.0a, also obliges any future party to distribute all OGC royalty-free. But a party to the mooted OGL v 1.1 is violating that obligation.



This is the part that I disagree with. The only royalties that are surrendered are the author's. The royalties that WotC is demanding in the new license are orthogonal to the original agreement.


----------



## kenada

pemerton said:


> I was just rereading the d20 trademark licence, which incorporated the d20 system guide, which in turn precludes the production of "interactive game" software. The fact that an exclusion of that sort was expressly incorporated in that licence reinforces your plain-meaning reading of the OGL. I don't see how the OGL is supposed to not license the use of OGC in software contexts. (Though I'm prepared to accept that complying with the obligations to make OGC available to other licensees might impose certain restriction on _how_ OGC is incorporated into software.)



History doesn’t support it either. I remember when PCGen had to relicense its datafiles under the OGL at the request of WotC. There was even a thread about it here. If the OGL were never meant for use with software, the PCGen developers would have had to remove the files completely.


----------



## pemerton

mamba said:


> No, they absolutely cannot, under no circumstances ever
> 
> "the Contributors grant You a *perpetual,* worldwide, royalty-free, non-exclusive license"



I mentioned that in the post you're replying to. That's an obligation that arises between WotC and any licensee. If you have not taken up the licence, though, then you have no legal rights against WotC, and they can retract the offer of the licence at any time.



mamba said:


> no, the license does not allow for this



You seem to be treating the OGL as a statute. It's not. It's a private law offer made by WotC to potential licensees. Like all private law offers, it can be retracted at any time.

I'll ask: are you a contract lawyer who is making an argument that WotC is in some fashion bound not to retract their offer? In that case I'm very interested to hear the argument: there may be some extra context, particularly some element of US IP licensing law, that I'm ignorant of.

But as I'm reading your posts, you just seem to be confused between _making an offer_ and _entering into a licence agreement_. The latter imposes private law obligations; the former doesn't (leaving aside subtleties like estoppel etc), unless the offer is accepted thus creating an agreement, and can be withdrawn at any time.



mamba said:


> They cannot stop making the offer either, they offered it once and they have no way of going back on that, unless they come up with time travel.  Once something has been released, it stays released.
> 
> This is not a license both sides need to agree to, so WotC has no way of preventing anyone in the future from using that license for the stuff they published under it.



None of this makes sense to me. Of course both sides need to agree to establish the contract. The OGL v 1.0/1.0a even has express sections dealing with offer and acceptance and explaining what the consideration is that flows in each direction (sections 3 and 4).

WotC don't need time travel to withdraw their offer to me to license my use of the 5e SRD. All they need to do is, here and now, withdraw the offer. Given that I have not entered into any licence agreement with WotC (I have never distributed any OGC under the terms of the OGL), I have no legal rights against WotC.

If WotC were to withdraw the offer, and then in the future I wanted to use OGC under the OGL, I would have to enter into a licence agreement with someone else who is still making the offer. Which would be anyone who has entered into the OGL with WotC or any 3PP, and is obliged to make a standing offer (unless all those who they have contracted with were to release them from that obligation).

This is why, as I said in my reply to @FrogReaver, there is no _practical_ reason for WotC to withdraw their offer in respect of the 5e SRD.


----------



## pemerton

Baron Opal II said:


> This is the part that I disagree with. *The only royalties that are surrendered are the author's. *The royalties that WotC is demanding in the new license are orthogonal to the original agreement.



I assume that the bolded bit is a description of the effect of the OGL v 1.0/1.0a.

In that case, section 4 seems the relevant provision:

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.[/indent[​
But (on the assumption I stated upthread about how the OGL 1.1 would work), if Jane uses the OGL v 1.1 to distribute OGC contributed by Bob, then Jane is obliging downstream users to pay royalties to WotC for their use of Bob's OGC. Which is not a licence "with the exact terms" of the OGL v 1.0/1.0a.


----------



## mamba

pemerton said:


> I mentioned that in the post you're replying to. That's an obligation that arises between WotC and any licensee. If you have not taken up the licence, though, then you have no legal rights against WotC, and they can retract the offer of the licence at any time.



not sure how much clearer I can make it than the last time 

They cannot retract it, that is simply impossible. The offer is out there and anyone can take them up on it at any point in time, WotC does not need to agree to it. They published it 10 years or so ago and it will be available forever. Nothing WotC does can change that.



pemerton said:


> None of this makes sense to me. Of course both sides need to agree to establish the contract. The OGL v 1.0/1.0a even has express sections dealing with offer and acceptance and explaining what the consideration is that flows in each direction (sections 3 and 4).



WotC already pre-agreed by offering this license, the only agreement still needed at this point is that of the licensee. There is no contract signed between WotC and you, you simply use their SRD and are thereby bound by the terms of the OGL.


----------



## darjr

I dint think WotC is going to touch the OGL 1.

But for arguments sake what if they tried? What would Joe 3rd party dev do?

Class action?

Even if it’s a slam dunk for 3rd parties and wins in court winning might not matter.

Could they pour enough cold water on it to essentially stop it’s use?

I’m not sure.


----------



## S'mon

pemerton said:


> I still don't see how WotC, in making a new offer of a licence to use their revised SRD under certain terms, can be bound by section 9 of an old offer.
> 
> But are you able to tell us anything sensible about the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL? That's what I'm curious about, but don't know enough to work out for myself.




If they call it OGL 1.1 they appear to be choosing to bind themselves to section 9 in OGL 1.0. They can choose not to do this by not calling their new licence 'OGL 1.1". Calling it OGL 1.1 is a choice.

 "the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL?" I'm not sure what the issue is here. The content of the 5e SRD is licenced under the OGL 1.0. A publisher should not refer to a revised SRD if using it. It's not relevant.

What a publisher can do is what they did before the 5e SRD appeared, like using the 3e SRD and some rule words from 5e such as "Advantage".  They can use the 1.0 OGL, the 5e SRD, and if necessary some new rule word that appears in 6e/ONE. I doubt that will be necessary though.


----------



## pemerton

mamba said:


> They cannot retract it, that is simply impossible. The offer is out there and anyone can take them up on it at any point in time, WotC does not need to agree to it. They published it 10 years or so ago and it will be available forever. Nothing WotC does can change that.



You haven't told me what your reason is for this claim.

In every other domain of commercial life, offers that have not crystallised into obligations can be retracted. Why do you think WotC's offer to license the 5e SRD under the OGL v 1.0a is different?



mamba said:


> There is no contract signed between WotC and you, you simply use their SRD and are thereby bound by the terms of the OGL.



You've just described the contract that you have said doesn't exist!


----------



## pemerton

S'mon said:


> If they call it OGL 1.1 they appear to be choosing to bind themselves to section 9 in OGL 1.0. They can choose not to do this by not calling their new licence 'OGL 1.1". Calling it OGL 1.1 is a choice.



Is the idea that section 9 of the OGL 1.0 would be incorporated, by reference, into the new licence?



S'mon said:


> "the ways in which a revised SRD might be derivative of the existing SRD, and hence be already licensed under the existing OGL?" I'm not sure what the issue is here. The content of the 5e SRD is licenced under the OGL 1.0. A publisher should not refer to a revised SRD if using it. It's not relevant.



What I've got in mind is that material found in a revised SRD (say, a new way of describing Elves) might be (in some fashion) derivative of material found in the 5e SRD (say, the existing way of describing Elves) and hence be something that the existing licence permits an existing licensee to use as OGC.

I think this is how Paizo is using 3.5 SRD material in books published which refer only to the 3.0 SRD in their OGL section 15. They are not relying on a licence in respect of the 3.5 SRD. They are relying on a licence in respect of the 3.0 SRD together with the fact that material in the later SRD is OGC under the terms of the licence granted in respect of the earlier SRD (because of its derivative character). At least, that's my understanding within the limits of my grasp of the legal details.


----------



## S'mon

pemerton said:


> What I've got in mind is that material found in a revised SRD (say, a new way of describing Elves) might be (in some fashion) derivative of material found in the 5e SRD (say, the existing way of describing Elves) and hence be something that the existing licence permits an existing licensee to use as OGC.




If you use the OGL & 5e SRD you can use the contents of the 5e SRD plus any non-copyright-protected material/concepts in a later SRD.  You don't gain any special rights over material derivative of material in the 5e SRD afaics, if that material is independently copyright protected. The normal rules for copyright protection apply to derivative works. If I have a licence to use copyright work A, and B is a copyright work derivative of A, the licence to A doesn't give me any right to use B.


----------



## pemerton

S'mon said:


> If you use the OGL & 5e SRD you can use the contents of the 5e SRD plus any non-copyright-protected material/concepts in a later SRD.  You don't gain any special rights over material derivative of material in the 5e SRD afaics, if that material is independently copyright protected. The normal rules for copyright protection apply to derivative works. If I have a licence to use copyright work A, and B is a copyright work derivative of A, the licence to A doesn't give me any right to use B.



That makes sense.

But does the definition of OGC in the OGL v 1.0/1.0a make a difference?

"Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means *any work covered by this License, including translations and derivative works under copyright law*, but specifically excludes Product Identity​
(My emphasis.)


----------



## Bayushi_seikuro

I just had a thought.

You know what I haven't seen mentioned on any of these threads?

How many companies are going to do the cost-benefit analysis of possibly paying a royalty but being able to say they're 'compatible with the World's Largest Roleplaying Game' (which seems to be boilerplate even for WotC covers) versus deciding to forgo it and have to create their own systems, their own mechanics.

System mechanics and licensing are nothing new.  I'm sure SSI paid a pretty penny to put out the Gold Box series of games, in addition to the other AD&D games.  I'm not sure how much it would have cost Interplay to use GURPS for Fallout 1, but they decided not to pay and reworked it into the beloved(?) SPECIAL system now.

TLDR - cost of royalty to 'buy' access to percieved-legitimacy-of-product vs cost of creating/marketing/etc a new system.  Because also, if you decide to make your own system and publish, now you're competing not just against WotC but Paizo, SJG, Chaosium, Black Hat, etc as a non-D&D game.


----------



## mamba

pemerton said:


> You haven't told me what your reason is for this claim.



Reading the license and understanding how (open) licenses work. You haven't offered anything at all either btw... all you say is 'I do not understand why a license is different from tons of individual contracts'


pemerton said:


> In every other domain of commercial life, offers that have not crystallised into obligations can be retracted. Why do you think WotC's offer to license the 5e SRD under the OGL v 1.0a is different?



It  isn't, it works just like any other open license. Once something is released under it, it stays available indefinitely.


pemerton said:


> You've just described the contract that you have said doesn't exist!



It is not a contract in the sense that no two parties came together and signed something. If that were necessary WotC could indeed decide not to sign. They signed 10 years ago however and anyone who wants to can grab a copy and sign their part at any time. WotC cannot take their signature back. I agree that technically that does not make it any less of a contract however, I just tried to explain the part where WotC does not get to decide again whether to sign.

EDIT: maybe this helps WotC - What's All This About The OGL Going Away?

"The OGL is *non-rescindable* -- it can't be cancelled or revoked. Any content released as Open Gaming Content (OGC) under that license -- which includes the D&D 3E SRD, the 5E SRD, _Pathfinder's_ SRD, _Level Up's_ SRD, and thousands and thousands of third party books -- remains OGC forever, available for use under the license. Genie, bottle, and all that."


----------



## codo

darjr said:


> I dint think WotC is going to touch the OGL 1.
> 
> But for arguments sake what if they tried? What would Joe 3rd party dev do?
> 
> Class action?
> 
> Even if it’s a slam dunk for 3rd parties and wins in court winning might not matter.
> 
> Could they pour enough cold water on it to essentially stop it’s use?
> 
> I’m not sure.



The OGL is heavily inspired by and based on open source software licenses.  Much of the core backbone for the internet infrastructure runs on open source software licensed under similar agreements.  If WotC managed to get the OGL 1 thrown out in court, it would throw the global internet and computing world into chaos.  A lot more is at stake than WotC bullying small game designers.


----------



## Lanefan

mamba said:


> Reading the license and understanding how (open) licenses work. You haven't offered anything at all either btw... all you say is 'I do not understand why a license is different from tons of individual contracts'
> 
> It  isn't, it works just like any other open license. Once something is released under it, it stays available indefinitely.
> 
> It is not a contract in the sense that no two parties came together and signed something. If that were necessary WotC could indeed decide not to sign. They signed 10 years ago however and anyone who wants to can grab a copy and sign their part at any time. WotC cannot take their signature back. I agree that technically that does not make it any less of a contract however, I just tried to explain the part where WotC does not get to decide again whether to sign.



I'm not all that up on these things, but you and @pemerton seem to be outright saying the opposite thing in one regard: whether WotC can stop the offer in previous versions of the OGL on release of the new one; by (more-legalistic) language saying something like "_Immediately on the release of this OGL, all prior versions of the OGL become null and void.  Material produced and released prior to [date of OGL 1.1 release] using a previous version of the OGL may still be distributed as before, but no new material can be released using any version of the OGL other than this one_."*

As per the old OGL, material released using it has a perpetual right to remain in release, etc. - WotC/Hasbro can't take that away as it's right there in the OGL.  It's how new material and-or new publishers post 1.1-release will be constrained that has me wondering.

Pemerton seems to be saying they can do what I posit above, you seem to be saying they cannot.  So, is this or is this not a get-in-before-the-lock situation?

* - whether this is a good idea for WotC or not doesn't matter - I'm asking _can_ they, not _should_ they.


----------



## kenada

Lanefan said:


> I'm not all that up on these things, but you and @pemerton seem to be outright saying the opposite thing in one regard: whether WotC can stop the offer in previous versions of the OGL on release of the new one; by (more-legalistic) language saying something like "_Immediately on the release of this OGL, all prior versions of the OGL become null and void.  Material produced and released prior to [date of OGL 1.1 release] using a previous version of the OGL may still be distributed as before, but no new material can be released using any version of the OGL other than this one_."*
> 
> As per the old OGL, material released using it has a perpetual right to remain in release, etc. - WotC/Hasbro can't take that away as it's right there in the OGL.  It's how new material and-or new publishers post 1.1-release will be constrained that has me wondering.
> 
> Pemerton seems to be saying they can do what I posit above, you seem to be saying they cannot.  So, is this or is this not a get-in-before-the-lock situation?
> 
> * - whether this is a good idea for WotC or not doesn't matter - I'm asking _can_ they, not _should_ they.



I think the point is WotC is under no obligation to make the OGL 1.0a SRDs available indefinitely, and acceptance of the license is contingent on using the OGC (per sections 3 and 4, as noted by @pemerton). This is already true for the 3.5e SRD. It’s not available from WotC anymore. Those who have not accepted the license by using that SRD’s content have no rights to exercise. There’s no way for them to get the content _from WotC_.

Fortunately, the OGL allows those who have accepted the license to OGC to redistribute it. That’s the only way to get the 3.5e SRD now, and I expect that will be the case for the 5.1 SRD once WotC releases the 2024 rules SRD under the OGL 1.1.

The only way WotC could actually kill the 1.0a OGL is through a poison pill in the 1.1 OGL that requires you to no longer distribute OGL 1.0a content as part of the conditions for accepting the 1.1 OGL. They’ve already tried it once with the original GSL, so it’s not impossible, but I think it’s unlikely. The poison pill was removed from the GSL due to negative feedback. It would be stupid to try again after that.


----------



## mamba

Lanefan said:


> I'm not all that up on these things, but you and @pemerton seem to be outright saying the opposite thing in one regard: whether WotC can stop the offer in previous versions of the OGL on release of the new one



yes we are, and he is wrong 


Lanefan said:


> Pemerton seems to be saying they can do what I posit above, you seem to be saying they cannot.  So, is this or is this not a get-in-before-the-lock situation?



it is not, the license cannot be revoked so you can use it today, after OGL 1.1 is out or in 50 years when we are on OGL 3.7

The only thing WotC can decide at this point is whether to make newer SRDs available under the same license or a different one. The SRD 5.1 will always be available under the terms of OGL 1.0a for anyone to use.


----------



## pemerton

mamba said:


> "The OGL is *non-rescindable* -- it can't be cancelled or revoked. Any content released as Open Gaming Content (OGC) under that license -- which includes the D&D 3E SRD, the 5E SRD, _Pathfinder's_ SRD, _Level Up's_ SRD, and thousands and thousands of third party books -- remains OGC forever, available for use under the license. Genie, bottle, and all that."



The non-rescission is as between parties. Not as between WotC and everyone in the world who is not yet a party. The offer to enter into the licence agreement is not itself a licensing agreement.



Lanefan said:


> I'm not all that up on these things, but you and @pemerton seem to be outright saying the opposite thing in one regard: whether WotC can stop the offer in previous versions of the OGL on release of the new one; by (more-legalistic) language saying something like "_Immediately on the release of this OGL, all prior versions of the OGL become null and void.  Material produced and released prior to [date of OGL 1.1 release] using a previous version of the OGL may still be distributed as before, but no new material can be released using any version of the OGL other than this one_."*
> 
> As per the old OGL, material released using it has a perpetual right to remain in release, etc. - WotC/Hasbro can't take that away as it's right there in the OGL.  It's how new material and-or new publishers post 1.1-release will be constrained that has me wondering.
> 
> Pemerton seems to be saying they can do what I posit above, you seem to be saying they cannot.  So, is this or is this not a get-in-before-the-lock situation?
> 
> * - whether this is a good idea for WotC or not doesn't matter - I'm asking _can_ they, not _should_ they.



You seem to be making the same confusion as @mamba seems to me to be making: you are not distinguishing between _an offer to enter into a licence agreement on certain terms_, including that the licence is irrevocable, and _actually entering into a licence agreement with someone on those terms_. WotC can't rescind irrevocable licences that it has entered into. But it can decline to enter into more such licences. (Of course, under the terms of the OGL v 1.0a already-existing licensees can continue to enter into sub-licences with new parties that permit those new parties to use WotC material. That is part of the point of the OGL. That is why, as I have posted a couple of times already, there would be no _practical_ reason for WotC to withdraw its offer.)


----------



## mamba

pemerton said:


> The non-rescission is as between parties. Not as between WotC and everyone in the world who is not yet a party. The offer to enter into the licence agreement is not itself a licensing agreement.



Please address the rest of the quote then: "Any content released as Open Gaming Content (OGC) under that license [...] remains OGC forever, available for use under the license"

You are simply wrong, but clearly I cannot make you see that


----------



## pemerton

mamba said:


> the license cannot be revoked.



Correct. But I have no licence from WotC to use their material, as I have not entered into any agreement with them.

To be more precise about that, I have not taken any steps under section 3 of the OGL v 1.0/1.0a - "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."

WotC is under no obligation to continue to make that offer to me. They could withdraw it at any time. To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.

That would not change the rights of any existing party to the OGL v 1.0/1.0a, including that party's right to distribute the OGC to further parties (like me). But it would mean that I couldn't enter into a licence agreement directly with WotC. In practical terms, this would be relevant for my Section 15 copyright notice.


----------



## pemerton

mamba said:


> Please address the rest of the quote then: "Any content released as Open Gaming Content (OGC) under that license [...] remains OGC forever, available for use under the license"
> 
> You are simply wrong, but clearly I cannot make you agree with that



What do you think the source of WotC's legal obligation is? There is no statute. There is no estoppel. No one has paid to keep an option open (as far as I know).

By "released as OGC under the licence", must be meant "released to a party as OGC under that party's licence with WotC". And of course, that party can sub-license to others in accordance with the terms of the OGL v 1.0/1.0a.


----------



## mamba

pemerton said:


> To be more precise about that, I have not taken any steps under section 3 of the OGL v 1.0/1.0a - "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."



but you can do so at any point in time, this is not limited in time


pemerton said:


> WotC is under no obligation to continue to make that offer to me.



yes they are, they came under that obligation when they made the SRD available under the OGL. They cannot rescind the offer.

See 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."



pemerton said:


> They could withdraw it at any time. To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.



Them making the SRD available or not is immaterial. All SRDs are still available, not all from WotC's site. If you wanted to you could still publish 3.5 content using the 3.5 SRD, there just is not much of a market for it.

I am done here, nothing will convince you, so keep pretending that you understand this.


----------



## darjr

It's to bad WotC took this route.

If they had said they would make a trimmed down SRD, much like the current one, under the OGL 1.0a for the new revision of D&D but also had this other thing that came with a much more comprehensive SRD, maybe the whole game, for licenses. Then sweetened it with access to DNDBeyond. I'm sure the reception, at least, would have been much better.

I could even see some folks taking them up on the offer.


----------



## mamba

darjr said:


> It's to bad WotC took this route.
> 
> If they had said they would make a trimmed down SRD, much like the current one, under the OGL 1.0a for the new revision of D&D but also had this other thing that came with a much more comprehensive SRD, maybe the whole game, for licenses. Then sweetened it with access to DNDBeyond. I'm sure the reception, at least, would have been much better.
> 
> I could even see some folks taking them up on the offer.



I am not even sure the 1.1 version will not simply be ignored. According to WotC's own FAQ it can be.

"*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."


----------



## estar

mamba said:


> Pretty sure actual laws disagree with you on this, any 'should' aside



I don't agree with how IP laws currently stand so I do what I can. One of them is the strong advocacy of open content and open license.


----------



## Dausuul

pemerton said:


> But suppose that a bank ends up owning the SRD, in a way that _doesn't_ extinguish the licence, then you'd just pay them your royalties.
> 
> I guess I'm not seeing how the royalties clause changes the capacity of the licence to "save D&D".



I think the issue would be, if there were a messy bankruptcy such as TSR was facing at the end -- with the company's assets pledged to an assortment of different creditors, to be parceled out piecemeal -- it might be very hard for your average RPG publisher to figure out who to pay, and getting it wrong could be very expensive. (Or, for that matter, having to prove in court that you got it right.)

That said, the chance of Wizards ending up where TSR did seems vanishingly small. Even if Hasbro were to go through some mind-boggling corporate implosion, it's highly unlikely that Wizards' IP would end up getting pulled apart like that.


----------



## Cadence

Tangentially, found this interesting about  Creative Commons licenses.









						Q: Can You Revoke a Creative Commons License? A: No. Er… Sort Of? Maybe?
					

A Creative Commons license is irrevocable; it says so right in the license. But it also says you can change your mind and distribute the work differently, or not at all. What does this mean?




					scholarlykitchen.sspnet.org


----------



## Umbran

mamba said:


> I am done here, nothing will convince you, so keep pretending that you understand this.




*Mod Note:*
This was unnecessary, and not constructive.  We ask folks to keep their discussions about the words said, not the person who says them.  What you did here made this less about the legal realities, and more about an ego clash between you, which, honestly, nobody wants to read.


----------



## Umbran

pemerton said:


> WotC is under no obligation to continue to make that offer to me.






pemerton said:


> They could withdraw it at any time.




No, they cannot, because they aren't "continuing to make an offer".  They have released an offer out into the universe.  They would have to hunt down and eradicate _every extant copy of a given SRD and its associated license_ to have the offer cease to be.

The SRD and it's license are like a bearer bond - you have it, and you have the right.  That in 40 years WotC (or whoever holds their IP in a few decades) might not want it that way is irrelevant.  They are out of luck - there is no way to recall it, because once released, you don't need their permission to reproduce it!  

And that was very intentional. Ryan Dancey, that architect of the OGL, was clear on this - it makes it so that while WotC may own the trademarks, a game so released cannot ever be closed off again by a corporation.



pemerton said:


> To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.




You might want to go read the license again.  It doesn't need their signature, assent, or acknowledgement.  Their agreement is _in the license_.  In releasing under the OGL, they gave their _perpetual_ agreement to this use.


----------



## bedir than

darjr said:


> It's to bad WotC took this route.
> 
> If they had said they would make a trimmed down SRD, much like the current one, under the OGL 1.0a for the new revision of D&D but also had this other thing that came with a much more comprehensive SRD, maybe the whole game, for licenses. Then sweetened it with access to DNDBeyond. I'm sure the reception, at least, would have been much better.
> 
> I could even see some folks taking them up on the offer.



They've taken no route yet. All they've put forth is the intended destination. We don't know if they're getting their by horse, car, teleport.

Much of the angst in this thread is due to the assumption of details that do not exist. There is on OGL 1.1. It doesn't exist. They've merely said that there will be one.


----------



## pemerton

Umbran said:


> No, they cannot, because they aren't "continuing to make an offer".  They have released an offer out into the universe.



An offer can be withdrawn. That's basic contract law, as best I know the same in the US as Australia and the UK.



Umbran said:


> They would have to hunt down and eradicate _every extant copy of a given SRD and its associated license_ to have the offer cease to be.



This doesn't seem right to me. They would just have to retract the offer. At that point, no one can enter directly into contractual relationships with WotC in respect of the SRD. Those relationships would have to be mediated via other parties who already enjoy rights in respect of the SRD under the OGL, having entered into that licence agreement with WotC while WotC's offer was still on foot.



Umbran said:


> The SRD and it's license are like a bearer bond - you have it, and you have the right.



I don't think this is correct. A bearer bond is a negotiable instrument governed by the relevant legislation. What legislation or common law principle are you saying precludes WotC from withdrawing an offer, once made but not taken up?



Umbran said:


> You might want to go read the license again.  It doesn't need their signature, assent, or acknowledgement.  T



You might want to go and re-read _Carlill v Carbolic Smoke Ball Co._ I've got a reasonable working knowledge of the common law of offer and acceptance. I've even pointed to section of the OGL that gives effect to that law, namely section 3 (operating in tandem with section 4).


----------



## pemerton

mamba said:


> but you can do so at any point in time, this is not limited in time



This is where I believe you are wrong. WotC can withdraw its offer. That is a basic principle of the common law of contract.

You - and also @Umbran - appear to be assuming that a gratuitous promise can create binding legal rights and obligations, even in the absence of an estoppel. As a general proposition of law that is false in the UK and Australia, and I'm pretty sure it's also false in the US. 

To be clear: I am not talking about the rights of parties to the OGL, which clearly arise by operation of contract law as set out in sections 3 and 4 of the OGL v 1.0/1.0a. I am asking why you think that I (for instance), who am not a party to the OGL, have a right against WotC that it not rescind its offer to enter into the OGL with me. This is why I'm asking you to point to the relevant legal principle you think explains your claims. Just reiterating that WotC made a promise, or a gratuitous offer, doesn't answer my question.


----------



## Lanefan

pemerton said:


> Correct. But I have no licence from WotC to use their material, as I have not entered into any agreement with them.
> 
> To be more precise about that, I have not taken any steps under section 3 of the OGL v 1.0/1.0a - "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."
> 
> WotC is under no obligation to continue to make that offer to me. They could withdraw it at any time. To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.



Which means, in short, get in before the lock if that's the route they choose to take.

This is my concern: that they will not accept any *new* licence agreements under the existing system after they release the new system.


pemerton said:


> That would not change the rights of any existing party to the OGL v 1.0/1.0a, including that party's right to distribute the OGC to further parties (like me).



That's a workaround, I guess, though are you then limited to using only the distributing party's material (as you're using their licence, not yours)?


			
				mamba said:
			
		

> but you can do so at any point in time, this is not limited in time



Currently, yes; but what's stopping WotC from imposing a time limit after which new licencees must use OGL 1.1?

Here's my hypothetical: I've never published anything and have no existing licence (or any other kind of) relationship with WotC/Hasbro.  If, say, I decide to publish something in 2023 or 2024 using OGL 1.0a (and not using any 5.1e material) does WotC have an avenue - or could they create one - to say no, you can't do that, you have to use OGL 1.1 because all previous versions have been superceded thus 1.0a no longer exists for you as a new publisher?


----------



## estar

pemerton said:


> An offer can be withdrawn. That's basic contract law, as best I know the same in the US as Australia and the UK.



A copyright license is not a contract. It is a form of permission granting your certain right that you did not have prior to the license. A license can be part of a contract like the one I made with Judges Guild. In exchange for royalties and periodic reports of sales I was given a license to use some of the Judges Guild IP for a limited time.

In contrast the license I grant for folks to freely share and modify Blackmarsh is me saying I give you permission to do so as long as you abide the conditions of the license. And the length of the permission I give is for the duration of the copyright for Blackmarsh.




pemerton said:


> I don't think this is correct. A bearer bond is a negotiable instrument governed by the relevant legislation. What legislation or common law principle are you saying precludes WotC from withdrawing an offer, once made but not taken up?




That they explicitly state that the license is perpetual.


pemerton said:


> You might want to go and re-read _Carlill v Carbolic Smoke Ball Co._ I've got a reasonable working knowledge of the common law of offer and acceptance. I've even pointed to section of the OGL that gives effect to that law, namely section 3 (operating in tandem with section 4).



Not sure why you think Carlill is in point if anything it strengthen the license as it says that the grant of permission is perpetual. Perpetual means forever.


----------



## darjr

Twitter thread with some interesting speculation that surmises clause 9 doesn’t mean what WotC thinks it means or what we might think it means. Or that just making things ambiguous may be the point.


----------



## mamba

Lanefan said:


> Currently, yes; but what's stopping WotC from imposing a time limit after which new licencees must use OGL 1.1?



The OGL 1.0 itself.

They can stop to release new material under this license, but everything released under it, will remain released and available under it forever


Lanefan said:


> Here's my hypothetical: I've never published anything and have no existing licence (or any other kind of) relationship with WotC/Hasbro.  If, say, I decide to publish something in 2023 or 2024 using OGL 1.0a (and not using any 5.1e material) does WotC have an avenue - or could they create one - to say no, you can't do that, you have to use OGL 1.1 because all previous versions have been superceded thus 1.0a no longer exists for you as a new publisher?



no, they cannot. End of story, nothing else to say.


----------



## S'mon

mamba said:


> yes we are, and he is wrong




He's technically correct, it's just he's writing as a lawyer so it looks nonsensical to a layman.


----------



## S'mon

pemerton said:


> That makes sense.
> 
> But does the definition of OGC in the OGL v 1.0/1.0a make a difference?
> 
> "Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means *any work covered by this License, including translations and derivative works under copyright law*, but specifically excludes Product Identity​
> (My emphasis.)




I don't think that makes a difference.


----------



## S'mon

kenada said:


> I think the point is WotC is under no obligation to make the OGL 1.0a SRDs available indefinitely, and acceptance of the license is contingent on using the OGC (per sections 3 and 4, as noted by @pemerton). This is already true for the 3.5e SRD. It’s not available from WotC anymore. Those who have not accepted the license by using that SRD’s content have no rights to exercise. There’s no way for them to get the content _from WotC_.
> 
> Fortunately, the OGL allows those who have accepted the license to OGC to redistribute it. That’s the only way to get the 3.5e SRD now, and I expect that will be the case for the 5.1 SRD once WotC releases the 2024 rules SRD under the OGL 1.1.




Yes that is correct. WoTC itself no longer 'offers' the 3.5 SRD, but the material is still available.


----------



## Dannyalcatraz

mamba said:


> I am done here, nothing will convince you, so keep pretending that you understand this.



Mod Note:

Please, don’t end posts with parting shots at other ENWorlders.  That’s disruptive and makes things persoral.  That makes work for the moderation staff.  🫤


----------



## Nikosandros

S'mon said:


> He's technically correct, it's just he's writing as a lawyer so it looks nonsensical to a layman.



Well, it made sense to me and I'm not a lawyer. As far as I'm aware. Should I be worried?


----------



## UngainlyTitan

Nikosandros said:


> Well, it made sense to me and I'm not a lawyer. As far as I'm aware. Should I be worried?



It makes sense to me also.


----------



## pemerton

estar said:


> A copyright license is not a contract.



The OGL reads like a contract to me. It has provisions dealing with offer, acceptance and consideration, which are basic concepts in the common law of contract.

A licence to occupy premises is a species of contract. So is a licence to use someone else's copyrighted material.

Given that you apparently don't trust me, perhaps you'll trust wikipedia:

A license is granted by a party (licensor) to another party (licensee) as an element of an agreement between those parties. In the case of a license issued by a government, the license is obtained by applying for it. In the case of a private party, it is by a specific agreement, usually in writing (such as a lease or other contract).​
Of course gratuitous licences can be given - I can invite you into my home - but gratuitous licences can be withdrawn at will - I can ask you to leave my home at any time.

The OGL is not a gratuitous licence. It is a contract, as it makes clear on its face.



estar said:


> That they explicitly state that the license is perpetual.



Everyone knows this. But _making an offer to enter into a licence_ is not the same as _entering into a licence_. I could, today, declare that I licence the Pemerton SRD under the OGL 1.0 to any and all takers. And then, tomorrow, I could withdraw that offer. Everyone who took up my offer in the intervening period would have rights under the licence. But once I withdrew the offer, no new licences could be created directly with me. Of course, under the terms of the OGL 1.0 sub-licences could be created with my licensors.



estar said:


> Not sure why you think Carlill is in point



Because it's still a leading case about offer and acceptance in the context of offers made to all the world. When @Umbran and others say there is no contract with WotC because (eg) there is no exchange of documents between the parties, they demonstrate their lack of familiarity with _Carlill_ and similar cases.


----------



## pemerton

Lanefan said:


> Which means, in short, get in before the lock if that's the route they choose to take.
> 
> This is my concern: that they will not accept any *new* licence agreements under the existing system after they release the new system.
> 
> That's a workaround, I guess, though are you then limited to using only the distributing party's material (as you're using their licence, not yours)?



Under the OGL, everyone who has entered into the licence with WotC has permission, which cannot be revoked, to distribute WotC's SRD as OGC. So you don't need to "get in before the lock". But it seems to me that it would affect who you have to cite in your section 15 copyright declaration.



Lanefan said:


> what's stopping WotC from imposing a time limit after which new licencees must use OGL 1.1?



In my view, nothing. As per my paragraph just above, I don't think this affects stuff in the 5e SRD.

But if there is new material in the revised SRD, it may not be usable pursuant to the terms of the OGL v 1.0/1.0a. I say "may" because there are complexities. @S'mon has said that perhaps section 9 of the OGL v 1.0/1.0a might govern a licence to use the revised SRD - and although I can't myself see what the legal mechanism is whereby that would happen, I trust S'mon's instincts on this because he's an expert in the field.

The other possibility that I've raised - but someone years ago suggested it to me in the context of Paizo's use of the 3.0 SRD as a basis for use of 3.5 material - is that the relationship between the 5e SRD and the revised SRD might be such that the revised SRD is still within the scope of the permission granted in respect of the 5e SRD under the OGL v 1.0a.

EDIT: I just saw S'mon's post #229. Which pours cold water on the preceding paragraph. That leaves me puzzled as to how/why Paizo was citing only the 3.0 SRD in its copyright declarations for works it was publishing which included 3.5 SRD material (eg the polar ray spell). I doubt that Paizo was simply careless.


----------



## pemerton

S'mon said:


> He's technically correct, it's just he's writing as a lawyer so it looks nonsensical to a layman.



That's a cruel barb!



Nikosandros said:


> Well, it made sense to me and I'm not a lawyer. As far as I'm aware. Should I be worried?



I don't think so!


----------



## S'mon

pemerton said:


> EDIT: I just saw S'mon's post #229. Which pours cold water on the preceding paragraph. That leaves me puzzled as to how/why Paizo was citing only the 3.0 SRD in its copyright declarations for works it was publishing which included 3.5 SRD material (eg the polar ray spell). I doubt that Paizo was simply careless.




I think it's highly likely they were simply careless. I also think WoTC very likely didn't consider the full implications of the wording of the OGL 1.0 before their recent announcement re the OGL 1.1. I suspect we've spent far more time on it in these threads than they did when they made the announcement.


----------



## S'mon

pemerton said:


> But if there is new material in the revised SRD, it may not be usable pursuant to the terms of the OGL v 1.0/1.0a. I say "may" because there are complexities. @S'mon has said that perhaps section 9 of the OGL v 1.0/1.0a might govern a licence to use the revised SRD - and although I can't myself see what the legal mechanism is whereby that would happen, I trust S'mon's instincts on this because he's an expert in the field.




I just think it's a potential argument. The OGL 1.0 appears to say you can use material released under any version of the OGL with any other version of the OGL. If WoTC choose to release a new 1.1 version of the OGL with new material (eg a 6e SRD), it's therefore arguable you can use that material with the 1.0 OGL. If they don't want that, they can choose not to call their new licence OGL 1.1. If they choose to call it OGL 1.1 they appear (arguably) to be choosing to bind themselves to the terms of the OGL 1.0.


----------



## pemerton

S'mon said:


> I think it's highly likely they were simply careless.



OK, that's surprising but interesting.

Also, I know you've got better things to do then speculate about the OGL, but while you're here helping us speculate - what do you think is the purpose/effect of the language in the OGL that I bolded upthread (about the OGC including adaptations, expansions, derivative material etc)?



S'mon said:


> I also think WoTC very likely didn't consider the full implications of the wording of the OGL 1.0 before their recent announcement re the OGL 1.1. I suspect we've spent far more time on it in these threads than they did when they made the announcement.



You don't think they would have run it by lawyers before PR/communications made the announcement?

Having just typed the previous sentence - I had to make a significant decision earlier this week, and did so, and only retroactively fitted it into the organisation's policy framework this morning (in response to a query from a party affected by my decision). But I was acting in something of a crisis! WotC weren't making their announcement in a context of crisis, and so I'd expect them to have worked it through a bit more thoroughly.


----------



## pemerton

S'mon said:


> If they choose to call it OGL 1.1 they appear (arguably) to be choosing to bind themselves to the terms of the OGL 1.0.



I would characterise this as a type of incorporation by reference, but more at the implied than the express end of things. I should add that the terminology I'm using here is my own, and is based more on public law theorising than private law theorising. (Some people think that the underlying principles of interpretation are the same in both contexts. But I don't think I agree with them. Though I'm not 100% sure.)


----------



## S'mon

pemerton said:


> That's a cruel barb!




It's often hard for lawyers to communicate effectively with laypersons. Everything you have said is legally correct, of course, but most of the people reading what you say don't understand it. They think you're saying that by withdrawing its offer, WOTC can "take away D&D" (the material in the 3e/3.5/5e SRD), when you are explaining the technicalities of offer & acceptance and have repeatedly said that it makes no practical difference.


----------



## pemerton

S'mon said:


> It's often hard for lawyers to communicate effectively with laypersons. Everything you have said is legally correct, of course, but most of the people reading what you say don't understand it. They think you're saying that by withdrawing its offer, WOTC can "take away D&D" (the material in the 3e/3.5/5e SRD), when you are explaining the technicalities of offer & acceptance and have repeatedly said that it makes no practical difference.



There are two things I find interesting about this discussion, beyond the details of the OGL speculation. They're related.

One is that this shows the limits of "private orderings" - if one of the powerful actors in the private order decides to change the terms on which they participate in it, that can have quite significant ramifications for everyone else. Such as, in this case, the potential of two "ecosystems" emerging (of course details would depend on what is in the revised SRD, what is in OGL v 1.1, and the section 9 argument). I assume that may ENworlders are Silicon Valley-style libertarians, and it's interesting seeing them confront these limits. I feel like they should read Durkheim's critique of Spencer's contract-based libertarianism.

The other is that many people seem to have what I would characterise as "proprietary" rather than "contractual" intuitions: they think that WotC, by making the offer to licence the SRD under the OGL, has created a new type of property right in all the rest of the world - as in, all the world has forever more a right to use the OGC found in the SRD under the terms of the OGL. This is the intuition that I am pushing against in my attempt to work through the contractual technicalities.

Of course, there is a party who can, fairly trivially, create (or impose) property-type rights: the state, via its exercise of public law powers. But that goes contrary to libertarian intuitions!


----------



## S'mon

pemerton said:


> Also, I know you've got better things to do then speculate about the OGL, but while you're here helping us speculate - what do you think is the purpose/effect of the language in the OGL that I bolded upthread (about the OGC including adaptations, expansions, derivative material etc)?




My word search on the OGL only locates these two uses of 'Derivative Material', in section 1:

_(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_

_(g)    "*Use*",    "Used"    or    "Using"    means    to    use,    Distribute,    copy,    edit,    
format,    modify,    translate    and    otherwise    create   *Derivative    Material*    of    Open    Game    Content_

Then those relate to

_4.    Grant    and    Consideration:    In    consideration    for    agreeing    to    use    this    License,    the    Contributors    grant    You    a    perpetual,    worldwide,    royalty-free,    nonexclusive    license    with    the    exact    terms    of    this    License     to    *Use*,    the    Open    Game    Content.    _

My fist impression was they were just trying to stop people closing off material from the SRD (etc) simply by changing the wording a bit.  It's drafted like a creative commons licence and the architecture seems to be that of software coding, where you want to keep the whole ecosystem open. 
But looking at it again, they seem to be just saying you are allowed to use the OGC to create derivative material. I don't see where it says that derivative material must itself be OGC? 

(I'll go back over what you said)


----------



## pemerton

S'mon said:


> But looking at it again, they seem to be just saying you are allowed to use the OGC to create derivative material. I don't see where it says that derivative material must itself be OGC?



Definition of OGC in section 1 (the phrase used is "derivative works", not "derivative material":

”Open Game Content” means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means any work covered by this License, including translations and derivative works under copyright law, but specifically excludes Product Identity.​
So my reading is that the OGC that a licensor licenses when they enter into the OGL includes "derivative works". (Not additions and extensions, though - that was me running together this part of the licence with the Derivative Material definition, which was an error on my part resulting from poor memory.)

But my problem is that I don't know much about what a "derivative work" is because my copyright law is weak. So, for instance, I don't know whether it's a concept that applies to the relationship between (eg) the 3.0 SRD and the 3.5 SRD; or that might apply to the relationship between the 5e SRD and a revised one-D&D SRD.


----------



## S'mon

pemerton said:


> That makes sense.
> 
> But does the definition of OGC in the OGL v 1.0/1.0a make a difference?
> 
> "Open Game Content" means the game mechanic and includes the methods, procedures, processes and routines to the extent such content does not embody the Product Identity and is an enhancement over the prior art and any additional content clearly identified as Open Game Content by the Contributor, and means *any work covered by this License, including translations and derivative works under copyright law*, but specifically excludes Product Identity​
> (My emphasis.)




(_d)"*Open    Game    Content"    means    the    game    mechanic     and    includes    the    methods,    procedures,    processes     and    routines    to    the    extent    such    content    does    not     embody    the    Product    Identity    and    is    an    enhancement     over    the    prior    art*    and    any    additional    content    clearly     identified    as    Open    Game    Content    by    the    Contributor,     and    means    any    work    covered    by    this    License,     including    translations    and    derivative    works    under     copyright    law,    but    specifically    excludes    Product     Identity_

The bit I have bolded at first sight seems nonsensical to me. I *think* it might be trying to say that you can't claim ownership over any new game mechanics in your material if you use the OGL. ie, any new game mechanics in your material that uses the OGL, automatically become OGC. 

"_*enhancement     over    the    prior    art"* _seems a weird phrase to be using here, where we are talking copyright works not patents. Game mechanics are not protectable in copyright. Maybe this is trying to stop them being protected by contract?

I think the latter bit *any work covered by this License, including translations and derivative works under copyright law *is also unclear, but again I think it is probably trying to say that material closely derived from OGC is itself OGC. I think it is trying to cover translations and other adaptations of OGC. So eg you could not reformat OGC and thereby make it not-OGC. I don't think it is trying to say that any material that incorporates OGC becomes entirely OGC itself.


----------



## pemerton

S'mon said:


> (_d)"*Open    Game    Content"    means    the    game    mechanic     and    includes    the    methods,    procedures,    processes     and    routines    to    the    extent    such    content    does    not     embody    the    Product    Identity    and    is    an    enhancement     over    the    prior    art*    and    any    additional    content    clearly     identified    as    Open    Game    Content    by    the    Contributor,     and    means    any    work    covered    by    this    License,     including    translations    and    derivative    works    under     copyright    law,    but    specifically    excludes    Product     Identity_
> 
> The bit I have bolded at first sight seems nonsensical to me. I *think* it might be trying to say that you can't claim ownership over any new game mechanics in your material if you use the OGL. ie, any new game mechanics in your material that uses the OGL, automatically become OGC.
> 
> "_*enhancement     over    the    prior    art"* _seems a weird phrase to be using here, where we are talking copyright works not patents. Game mechanics are not protectable in copyright. Maybe this is trying to stop them being protected by contract?



I've always been curious about the patent law stuff ("enhancement over the prior art"). The sense I had tried to make of this is that (i) if game mechanics are _not_ an enhancement over the prior art, then they're public domain (but I'm guessing a bit here as my patent law is no better than my copyright law) and hence don't need to be and cannot be licensed, and (ii) if they are an enhancement over the prior art then you are licensing them as OGC and hence - vis-a-vis the licensee - foregoing any patent-based claim against them.



S'mon said:


> I think the latter bit *any work covered by this License, including translations and derivative works under copyright law *is also unclear, but again I think it is probably trying to say that material closely derived from OGC is itself OGC. I think it is trying to cover translations and other adaptations of OGC. So eg you could not reformat OGC and thereby make it not-OGC. I don't think it is trying to say that any material that incorporates OGC becomes entirely OGC itself.



It would be amusing if WotC found itself needing to argue that it's transformation of an earlier iteration of the SRD into a later iteration is not so minor as to fall within the scope of your suggested interpretation of this clause.


----------



## S'mon

pemerton said:


> But my problem is that I don't know much about what a "derivative work" is because my copyright law is weak. So, for instance, I don't know whether it's a concept that applies to the relationship between (eg) the 3.0 SRD and the 3.5 SRD; or that might apply to the relationship between the 5e SRD and a revised one-D&D SRD.




'Derivative Work' is not a term that appears in the UK copyright law (the CDPA 1988) either, so I'm looking at it from the 'outside'. It definitely covers adaptations and translations. It can also cover what in the UK would be non-literal copyright infringement. An unauthorised sequel to _Rocky _was held (in California, afaicr) to be a copyright infringing derivative work of _Rocky_.

Wikipedia discussion Derivative work - Wikipedia

_United States Copyright Act in 17 U.S.C. § 101:_


> _A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work"._




The important thing about a derivative work is that normally the author of the derivative work has copyright in the derivative work, but if unauthorised it will also infringe the copyright in the original work. (That's the UK situation. In the US they seem to treat derivative works as belonging to the original copyright owner, which I find odd)


----------



## pemerton

S'mon said:


> The important thing about a derivative work is that normally the author of the derivative work has copyright in the derivative work, but if unauthorised it will also infringe the copyright in the original work.



So one effect of the "derivative work" clause is to protect licensees from liability for copyright infringement when they publish work that does not include the literal OGC, but does include stuff that is derivative of the literal OGC (and hence is also OGC in virtue of the derivative work clause).

If WotC releases a revised SRD which contains X from the old SRD plus new Y; and then someone publishing under the OGL v 1.0a publishes a work that includes some of Y; that publisher might want to argue that Y is derivative of the old SRD and hence that they are not infringing, because licensed under the OGL v 1.0a.

(I'm trying to frame this at least somewhat analogously to your "Rocky" example.)

So WotC would want to be arguing that the revised SRD with X + Y is not derivative (or, at least, it's Y component is not derivative) of the old SRD that included X. Which seems a little odd, at least at first blush.


----------



## S'mon

pemerton said:


> It would be amusing if WotC found itself needing to argue that it's transformation of an earlier iteration of the SRD into a later iteration is not so minor as to fall within the scope of your suggested interpretation of this clause.




If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD.  So not a derivative work of the 5e SRD.


----------



## pemerton

S'mon said:


> If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD.  So not a derivative work of the 5e SRD.



I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?

(EDIT: This question pretty much supersedes my post 248 just upthread.)


----------



## S'mon

pemerton said:


> If WotC releases a revised SRD which contains X from the old SRD plus new Y; and then someone publishing under the OGL v 1.0a publishes a work that includes some of Y; that publisher might want to argue that Y is derivative of the old SRD and hence that they are not infringing, because licensed under the OGL v 1.0a.




I don't think that would work so I would advise the publisher not to include Y, to the extent Y is copyright protected material. Usually OGL publishers don't include big chunks of SRD anyway, they just want to be able to reference stuff like monster names & magic items.


----------



## pemerton

S'mon said:


> Usually OGL publishers don't include big chunks of SRD anyway, they just want to be able to reference stuff like monster names & magic items.



Which are generally not copyright protected? (I'm assuming here they're divorced from a broader plot/story context.)


----------



## S'mon

pemerton said:


> I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?
> 
> (EDIT: This question pretty much supersedes my post 248 just upthread.)




I like to think of copyright as a river flowing downhill. You aren't deriving from your OGC SRD just because the words are the same. You can go upstream from the OGC SRD to the original non-OGC source and take your material from there.


----------



## S'mon

pemerton said:


> Which are generally not copyright protected? (I'm assuming here they're divorced from a broader plot/story context.)




True they are generally not copyright protected, but to be safe people use the OGL anyway.


----------



## S'mon

pemerton said:


> I hadn't thought of that. Does derivation depend on intent, or stipulation, or history, or material resemblance?




Copying, including derivation, is a question of fact. You copy from a specific source. A third party OGL publisher using WoTC OGC has to copy from WotC's SRD - if they copy direct from (eg) the 5e PHB they are infringing copyright.  It doesn't matter if the words are the same.

Copying requires both (a) substantial material resemblance and (b) actual copying from that actual source.

This was discussed in depth in _Francis Day and Hunter vs Sydney Bron_





						Francis Day and Hunter  vs Sydney Bron
					






					www.lostinmusic.org


----------



## pemerton

@S'mon, I think you've cleared up most of the issues. Thank you!

WotC could release a revised SRD, which they copy/derive from their one-D&D books, and which therefore is not within the scope of existing licences granted under the OGL 1.0a in respect of the current 5e SRD.

And a putative new licence could then create a new "ecosystem" for OGC, based on this new SRD and with upward-flowing royalty obligations.

I think mixing and matching would then become complicated because of the challenge of satisfying the obligations in the OGL 1.0a while dealing with the new class of material. (I know you haven't said yes or no this particular point.)

There is the possible argument around section 9 of the OGL v 1.0a. I find the idea of incorporation of that by a type of implicit reference somewhat unlikely, but I don't think I can defend my intuition in this respect.


----------



## S'mon

pemerton said:


> @S'mon, I think you've cleared up most of the issues. Thank you!
> 
> WotC could release a revised SRD, which they copy/derive from their one-D&D books, and which therefore is not within the scope of existing licences granted under the OGL 1.0a in respect of the current 5e SRD.
> 
> And a putative new licence could then create a new "ecosystem" for OGC, based on this new SRD and with upward-flowing royalty obligations.
> 
> I think mixing and matching would then become complicated because of the challenge of satisfying the obligations in the OGL 1.0a while dealing with the new class of material. (I know you haven't said yes or no this particular point.)
> 
> There is the possible argument around section 9 of the OGL v 1.0a. I find the idea of incorporation of that by a type of implicit reference somewhat unlikely, but I don't think I can defend my intuition in this respect.




Yes.

As I've said, WoTC can safely create a new ecosystem divorced from the OGL 1.0 by not referring to their new licence as "OGL 1.x". I think they would be unwise to press on with calling the new licence OGL 1.1 while making the terms significantly less attractive than the OGL 1.0. 

If I were advising 3PPs, I'd recommend being wary of the new OGL and look carefully at what it offers that sticking with the old OGL and old SRDs does not. 

If I were advising WoTC I'd advise them to create a new non-OGL licence that gives some nice incentives in return for the reporting & royalty requirements. Access to D&D Beyond and the new VTT would be obvious incentives. Otherwise no one will sign up, and you'll get a 4e GSL situation again.


----------



## pemerton

S'mon said:


> If I were advising WoTC I'd advise them to create a new non-OGL licence that gives some nice incentives in return for the reporting & royalty requirements. Access to D&D Beyond and the new VTT would be obvious incentives. Otherwise no one will sign up, and you'll get a 4e GSL situation again.



The "carrot" in that case was supposed to be access to the trade dress templates etc. It's interesting to speculate about why it flopped - I mean there's obviously the whole PF thing, but nevertheless 4e had plenty of players for a number of years and yet there seems to have been almost no 3PP take-up.

One seemingly obvious reason: for many 4e players their engagement with those templates was via WotC's online tools, which 3PPs couldn't get into.

Another possible reason: WotC was producing so much 4e content that there was no "vacuum" for 3PPS to fill.

Obviously those two reasons can work together, each compounding the effect of the other.

So access to online tools seems like a pretty crucial thing. A licence that forbids 3PPs from creating their own online tools - as has been mooted - seems like it is aimed at reinforcing the centrality of WotC's tools. That may not be ideal from the 3PP perspective, but it's not an obviously bad things for the play community to have a single provider around which to coordinate. (And yes, there's another reflection on the perils of private orderings!)


----------



## GMforPowergamers

mamba said:


> yeah, do not really agree with that  I am not seeing your argument preventing Paizo or the OSR. That's like saying you rather make zero money by not competing than possibly have to give some fee to WotC for using their SRD as a starting point, if you end up being hugely successful.
> 
> Same as OGL 1.0a according to WotC, 1.1 just is clearer about this



if this was the way things worked back in 2000 then it might have saved 4e... since WotC would not have paizo as a competitor but as a partner paying them.


----------



## FrogReaver

pemerton said:


> Correct. But I have no licence from WotC to use their material, as I have not entered into any agreement with them.
> 
> To be more precise about that, I have not taken any steps under section 3 of the OGL v 1.0/1.0a - "3. Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License."
> 
> WotC is under no obligation to continue to make that offer to me. They could withdraw it at any time. To qualify a bit what @kenada posted, they could continue to make the SRD available on their website (so that interested people could read it, make fair use of it, etc) but could declare henceforth that they will not enter into any further licence agreements in respect of it.
> 
> That would not change the rights of any existing party to the OGL v 1.0/1.0a, including that party's right to distribute the OGC to further parties (like me). But it would mean that I couldn't enter into a licence agreement directly with WotC. In practical terms, this would be relevant for my Section 15 copyright notice.



Let’s say Wotc does as you say (I don’t think they can) and Dan distributes the 5.1 SRD under OGC 1.0 to you. What license do you, Pemerton, have to keep and use the copyrighted material?


----------



## kenada

S'mon said:


> "_*enhancement over the prior art"* _seems a weird phrase to be using here, where we are talking copyright works not patents. Game mechanics are not protectable in copyright. Maybe this is trying to stop them being protected by contract?



According to the FAQ, the intent is to prevent from trying to claim public domain content as OGC.


----------



## pemerton

kenada said:


> According to the FAQ, the intent is to prevent from trying to claim public domain content as OGC.



I think this is what I got to upthread:



pemerton said:


> I've always been curious about the patent law stuff ("enhancement over the prior art"). The sense I had tried to make of this is that (i) if game mechanics are _not_ an enhancement over the prior art, then they're public domain (but I'm guessing a bit here as my patent law is no better than my copyright law) and hence don't need to be and cannot be licensed, and (ii) if they are an enhancement over the prior art then you are licensing them as OGC and hence - vis-a-vis the licensee - foregoing any patent-based claim against them.


----------



## kenada

pemerton said:


> The "carrot" in that case was supposed to be access to the trade dress templates etc. It's interesting to speculate about why it flopped - I mean there's obviously the whole PF thing, but nevertheless 4e had plenty of players for a number of years and yet there seems to have been almost no 3PP take-up.



The original GSL required you to stop publishing content under the OGL. That part was removed eventually, but the damage was done.


----------



## FrogReaver

S'mon said:


> Yes that is correct. WoTC itself no longer 'offers' the 3.5 SRD, but the material is still available.



Let’s be specific. Available to everyone.  It is not just available to those who downloaded the material before Wotc stopped offering it.


----------



## pemerton

FrogReaver said:


> Let’s say Wotc does as you say (I don’t think they can) and Dan distributes the 5.1 SRD under OGC 1.0 to you. What license do you, Pemerton, have to keep and use the copyrighted material?



Who's Dan?

If someone sells or gifts me a book that contains material that was licensed to the publisher under the OGL, I get the same rights to use the material as anyone else does who purchases any book: in the US that would be fair use, I think, which I would assume must be informed by the context. (Eg if some of the text is meant to be used to play a game, then I am not infringing copyright by reproducing that text in the course of playing the game.)


----------



## pemerton

kenada said:


> The original GSL required you to stop publishing content under the OGL. That part was removed eventually, but the damage was done.



Was it a rule about _what could be published_ per se, or about mixing and matching? My memory is the latter, but my memory's not perfect.


----------



## UngainlyTitan

FrogReaver said:


> Let’s say Wotc does as you say (I don’t think they can) and Dan distributes the 5.1 SRD under OGC 1.0 to you. What license do you, Pemerton, have to keep and use the copyrighted material?



Well it is OGL 1.0 but from my understanding of @pemerton's argument. If @permerton decides to distribute some derived work based on Dan's distribution of the SRD then his licence derives from Dan not from WoTC. He as no contractual connection to WoTC. Not sure if he as one with Dan.


----------



## kenada

pemerton said:


> Was it a rule about _what could be published_ per se, or about mixing and matching? My memory is the latter, but my memory's not perfect.



I’ve not been able to find a copy of the original text, but the commentary online I have found suggests the original GSL required you to designate a product line as GSL, and once you did, you could not publish any OGL content in that line. According to the Wikipedia article, Evil Hat set up a separate company just to publish products under the GSL. Unfortunately, that company (One Bad Egg) no longer exists, and its URL points to porn spam now.


----------



## FrogReaver

pemerton said:


> Who's Dan?
> 
> If someone sells or gifts me a book that contains material that was licensed to the publisher under the OGL, I get the same rights to use the material as anyone else does who purchases any book: in the US that would be fair use, I think, which I would assume must be informed by the context. (Eg if some of the text is meant to be used to play a game, then I am not infringing copyright by reproducing that text in the course of playing the game.)



theres already arguments that fair use entails much of the OGC anyways, though that’s never really been tried to my knowledge. So I think bringing fair use in here muddies the waters for no particularly good reason.


----------



## Reynard

mamba said:


> Same as OGL 1.0a according to WotC, 1.1 just is clearer about this



From the OGL v1.0a FAQ:

*42. I want to distribute computer software using the OGL. Is that possible?*

Yes, it's certainly possible. The most significant thing that will impact your effort is that you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content.

One way is to design your application so that all the Open Game Content resides in files that are human-readable (that is, in a format that can be opened and understood by a reasonable person). Another is to have all the data used by the program viewable somehow while the program runs.

Distributing the source code not an acceptable method of compliance. First off, most programming languages are not easy to understand if the user hasnÍt studied the language. Second, the source code is a separate entity from the executable file. The user must have access to the actual Open Content used.


----------



## FrogReaver

UngainlyTitan said:


> Well it is OGL 1.0 but from my understanding of @pemerton's argument. If @permerton decides to distribute some derived work based on Dan's distribution of the SRD then his licence derives from Dan not from WoTC. He as no contractual connection to WoTC. Not sure if he as one with Dan.



@pemerton is saying that he would have no license in this situation.  But I think you are right to focus on distribution and production of the SRD 5.1 because fair use doesn’t include either of those.

My contention is
1). Open licenses are meant to ensure the product can continue to be produced, worked on, and distributed even if the owner wishes to “close up the product”. In software terms this would cause a fork where the owner closes his line and the open source community continues to be able to work from the non-closed version.

Wotc’s OGL was structured similar to these software licenses and for the same purpose.

2a). The OGL 1.0 requires the license to be reproduced when distributing OGC.

2b).  The license itself provides the offer from Wotc to use OGC content under the OGL 1.0.

Thus, Wotc has made an offer they don’t have the means to rescind. *That is provided WOTC doesn’t track down and destroy all 5.1 SRD’s under the OGL 1.0.

In our case @penerton would have the ability to produce and distribute the 5.1 SRD provided he met all terms in the OGL 1.0 license that was attached to it, because he would then be a valid licensee of that content.


----------



## estar

pemerton said:


> The OGL reads like a contract to me. It has provisions dealing with offer, acceptance and consideration, which are basic concepts in the common law of contract.
> 
> A licence to occupy premises is a species of contract. So is a licence to use someone else's copyrighted material.
> 
> Given that you apparently don't trust me, perhaps you'll trust wikipedia:
> 
> A license is granted by a party (licensor) to another party (licensee) as an element of an agreement between those parties. In the case of a license issued by a government, the license is obtained by applying for it. In the case of a private party, it is by a specific agreement, usually in writing (such as a lease or other contract).​
> Of course gratuitous licences can be given - I can invite you into my home - but gratuitous licences can be withdrawn at will - I can ask you to leave my home at any time.
> 
> The OGL is not a gratuitous licence. It is a contract, as it makes clear on its face.
> 
> Everyone knows this. But _making an offer to enter into a licence_ is not the same as _entering into a licence_. I could, today, declare that I licence the Pemerton SRD under the OGL 1.0 to any and all takers. And then, tomorrow, I could withdraw that offer. Everyone who took up my offer in the intervening period would have rights under the licence. But once I withdrew the offer, no new licences could be created directly with me. Of course, under the terms of the OGL 1.0 sub-licences could be created with my licensors.



The OGL is attached to the text. What you and other don't get what happens after the initial release.

As the Wikipedia article you cite notes there are different kinds of licenses. The elements of a license for IP include the terms, and other limitations of the license. And as stated in Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler, a license is an authorization for use sparing the licensee from copyright infringement claims. It is not a contract.

So what happens is that I put out Blackmarsh, Wizards puts out the D20 SRD. Attached to the text of both (and the map in my case) is a license AUTHORIZING you and other folks to share and modify the content as long as certain conditions are met. The term is perpetual.

Ten years from now, when a person gets a copy of Blackmarsh all person sees is the text and the license with a perpetual term. And because the person was authorized by me (and Wizards in the case of the D20 SRD) to share the material and because the person followed the requirements, then the person who just received Blackmarsh or the D20 SRD has no reason to think that they were also authorized to freely share and modify the content as well.

Moreso because of cases like Carlill v Carbolic Smoke Ball Co, courts in United States are far more likely to rule in favor of the licensee rather than the licensor.

This is why I advised people who ask me about sharing stuff of open content to make sure that is what you really want to do. As the permission/authorization, you give is for the rest of the work's copyright term. Afterwhich it becomes public domain and doesn't matter anymore.



pemerton said:


> Because it's still a leading case about offer and acceptance in the context of offers made to all the world. When @Umbran and others say there is no contract with WotC because (eg) there is no exchange of documents between the parties, they demonstrate their lack of familiarity with _Carlill_ and similar cases.



In a nutshell, while I developed a good understanding of the issues involved during the 90s by following, creating, and using open source software. My commentary for the past 13 years has been informed by the advice of the IP attorney I retained starting when I secured the license to use the Wilderlands IP from Judges Guild. As part of the review, the OGL came up, so we reviewed that as well. While he didn't quite get why I didn't want to secure maximum protection for my IP, he understood the implication of the OGL. As a result, we talked about the difference between IP licenses and contracts.

To wrap it this up. If you download Blackmarsh from any source even ones that I was not involved with. You will find inside two licenses that you can use for the text and the map. Those licenses are an authorization from me to use the material under certain conditions. I am not offering you anything, I am giving permission (or authorization) to for you to freely share and modify the material.

In forty years I will be dead and my heirs will have control of my copyright. Yet that authorization will remain valid because I deliberately chose assign a perpetual term to this authorization. Ninety-five years after my death it won't matter because that when it become public domain.

And folks need to realize that this was brought up in the early 2000's and this whole "the OGL is a contract" was debunked. We are now over twenty years in with thousands using the OGL successfully in their products. Not just Wizards' open content but open content from hundreds of other publishers as well.


----------



## estar

FrogReaver said:


> Wotc’s OGL was structured similar to these software licenses and for the same purpose.



And to note some of those licenses whose clauses were adapted by the OGL were tested in courts and upheld.


----------



## mamba

S'mon said:


> He's technically correct, it's just he's writing as a lawyer so it looks nonsensical to a layman.



No, he is absolute wrong, he just writes like a lawyer and might trick you into thinking that means he knows what he is talking about.
His main problem is that he treats an open license like a contract negotiation when it is not. Any argument and conclusion he makes falls apart because of that.

The WotC license and the material released under it will remain available indefinitely. WotC cannot withdraw it again.


----------



## FrogReaver

mamba said:


> No, he is absolute wrong, he just writes like a lawyer and might trick in thinking that means he knows what he is talking about.
> 
> The WotC license and the material released under it will remain available indefinitely. WotC cannot withdraw it again.



Well if they could round up every copy in existence and destroy them they could. Not realistic but it’s possible!  Lol.


----------



## Alzrius

@S'mon I'm curious to get your take on the clause posted at the beginning of the 5.1 SRD which says the following:



> Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.1 (“SRD5”) is granted solely through the use of the Open Gaming License, Version 1.0a.




Given that I don't think WotC was worried about someone distributing the 5.1 SRD via the OGL v1.0, as opposed to v1.0a, what do you think is the intended purpose of this notice? Moreover, if the 1D&D SRD uses the same disclaimer, but in reference to the OGL v1.1 (and, obviously, referring to itself rather than the 5.1 SRD), would that disallow the OGL v1.0a's Section 9 from being a basis to use said 1D&D SRD in a v1.0a publication?


----------



## mamba

S'mon said:


> If I were WoTC I'd argue that the ONE D&D SRD was derived from the ONE D&D non-OGC rule books, not from the 5e SRD.  So not a derivative work of the 5e SRD.



yeah, have fun arguing that. I doubt this stands a chance, but as always there is a slight chance you find a moron judge who gets it all wrong


----------



## mamba

FrogReaver said:


> Well if they could round up every copy in existence and destroy them they could. Not realistic but it’s possible!  Lol.



Yeah, same with my proposal of them inventing time travel and retroactively never releasing anything under it that way. I’d rather stick to what is highly plausible


----------



## mamba

pemerton said:


> Which are generally not copyright protected? (I'm assuming here they're divorced from a broader plot/story context.)



monster names? yes, usually they are not. Some are trademarked however, so you cannot use eg a beholder and it is not in the SRD


----------



## mamba

S'mon said:


> I like to think of copyright as a river flowing downhill. You aren't deriving from your OGC SRD just because the words are the same.



try that with something like song lyrics and see how far you get…


----------



## Art Waring

mamba said:


> I am not even sure the 1.1 version will not simply be ignored. According to WotC's own FAQ it can be.
> 
> "*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 posted that same quote from the wotc OGL FAQ, but people still seem to think the OGL is somehow going away. The disinformation is staggering. 

Thanks to all the youtubers passing on misinformation as fact for clicks for the current state of things.


----------



## mamba

GMforPowergamers said:


> if this was the way things worked back in 2000 then it might have saved 4e... since WotC would not have paizo as a competitor but as a partner paying them.



agreed, but it would not have prevented Paizo from being created and successful, which was the point I was refuting


----------



## mamba

UngainlyTitan said:


> Well it is OGL 1.0 but from my understanding of @pemerton's argument. If @permerton decides to distribute some derived work based on Dan's distribution of the SRD then his licence derives from Dan not from WoTC. He as no contractual connection to WoTC. Not sure if he as one with Dan.



the license under which Dan has to offer it and the license under which pemerton accepts it and has to abide by is still WotC’s OGL 1.0 however, so yes, he still has a contractual connection with WotC


----------



## mamba

Reynard said:


> From the OGL v1.0a FAQ:
> 
> *42. I want to distribute computer software using the OGL. Is that possible?*
> 
> Yes, it's certainly possible.



agreed, found that yesterday too (after my reply). I based my original answer on what WotC said in the OP


----------



## estar

mamba said:


> agreed, found that yesterday too (after my reply). I based my original answer on what WotC said in the OP



If you really want to be safe in distributing software based on the OGL content, then use a open source license and make the source code available. Then there is no question that you are giving the software users the same permission to share and modify the open content as you had.

Like all IP issues there is no black and white just varying risk making the whole thing nuanced.

I admit I am a strong advocate of going the open source and open content route in most cases.


----------



## Umbran

pemerton said:


> When @Umbran and others say there is no contract with WotC because (eg) there is no exchange of documents between the parties, they demonstrate their lack of familiarity with _Carlill_ and similar cases.




Let us be clear : I MADE NO SUCH ASSERTION.  I do not understand where you got the idea that I did.

In fact, I asserted that WotC _cannot withdraw their offer_ of a contract (admittedly, I used flowery language, my apologies).  The _Carlill_ case you are citing works against you, because it is an example of an offer that could not be withdrawn!



pemerton said:


> This doesn't seem right to me. They would just have to retract the offer.




There is no _mechanism_ for doing that.  Indeed, the _Carlill_ case you site is one in which the company _could not_ retract an offer they'd made - so clearly you know this is possible.



pemerton said:


> You might want to go and re-read _Carlill v Carbolic Smoke Ball Co._ I've got a reasonable working knowledge of the common law of offer and acceptance. I've even pointed to section of the OGL that gives effect to that law, namely section 3 (operating in tandem with section 4).




Please educate me. What in Carlill is evidence that WotC can withdraw its offer?  Because, as it stands, the case isn an example of the opposite.



pemerton said:


> An offer can be withdrawn. That's basic contract law, as best I know the same in the US as Australia and the UK.




That's _generally_ true.  But one can construct exceptions, and the stated intent in this instance was to do precisely that.

_"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners._" - Ryan Dancey, Nov 23, 2010.  



pemerton said:


> This doesn't seem right to me. They would just have to retract the offer.




There is no mechanism for doing so, because the offer and acceptance terms are contained _within the license itself_, which explicitly cannot be modified.  Thus, once extended, the offer cannot be withdrawn.  As above, this was intentional.



pemerton said:


> What legislation or common law principle are you saying precludes WotC from withdrawing an offer, once made but not taken up?




Again, the license contains its own offer and acceptance terms, and explicitly contains language that it may not be modified.  In addition, there is no _physical_ way for WotC to modify it - they cannot reach into other people's documents and alter them to remove the offer from the license.

Make no mistake, releasing things under the OGL is risky precisely because the licensor can't stop it once they've done so. The OGL is in many ways just a step or so off from just making the thing public domain.



pemerton said:


> You might want to go and re-read _Carlill v Carbolic Smoke Ball Co._ I've got a reasonable working knowledge of the common law of offer and acceptance. I've even pointed to section of the OGL that gives effect to that law, namely section 3 (operating in tandem with section 4).




Again - In _Carlill_, it was found that the offer was binding and enforceable, and the company could not withdraw.  So, I fail to see how that argues _against_ my point.  Carlill establishes that unilateral, open ended offers _are a thing_.


----------



## mamba

estar said:


> If you really want to be safe in distributing software based on the OGL content, then use a open source license and make the source code available. Then there is no question that you are giving the software users the same permission to share and modify the open content as you had.



I don’t think you can release the software as eg GPL and thereby cover your OGL obligations.

The OGL affects your software design because it is not enough to have the material in the source code and that code available to everyone (via the GPL).

“Distributing the source code not an acceptable method of compliance.”


----------



## FrogReaver

I think that some of the issue is that other countries have varying degrees and lines where such licenses may be revocable. I think I was reading France is one such country that allows the owner to revoke anytime. I imagine most of the rest of Europe is somewhere between France and the u.s. On that issue. That may be why those from the u.s seem to understand it differently.


----------



## darjr

If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.


----------



## GMforPowergamers

mamba said:


> agreed, but it would not have prevented Paizo from being created and successful, which was the point I was refuting



right I was agreeing


----------



## GMforPowergamers

darjr said:


> If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.



TBH if Hasbro or WotC wanted to stop 3rd party publishers that is the tactic they SHOULD take. Make it so confusing and hard and scary that only the largest of companies with lawyer's on staff would dare...   I am nto saying they will but I will say that it would make a tactical sense. You can't legally stop the OGL, but you can make it harder to use.


----------



## S'mon

Alzrius said:


> @S'mon I'm curious to get your take on the clause posted at the beginning of the 5.1 SRD which says the following:
> 
> 
> 
> Given that I don't think WotC was worried about someone distributing the 5.1 SRD via the OGL v1.0, as opposed to v1.0a, what do you think is the intended purpose of this notice? Moreover, if the 1D&D SRD uses the same disclaimer, but in reference to the OGL v1.1 (and, obviously, referring to itself rather than the 5.1 SRD), would that disallow the OGL v1.0a's Section 9 from being a basis to use said 1D&D SRD in a v1.0a publication?




I think the clause is just there to make it clear they're not giving the SRD to the public domain, and you need to stick with the licence to use it.

On the second point, I don't know, there seems a fair argument either way. If I were the judge I'd probably rule that by choosing to label the new licence OGL 1.1, and releasing the new SRD under that, the terms of OGL 1.0 apply to the new SRD material too, by the wording of section 9. Since they chose to make it another iteration of the OGL, the terms of OGL 1.0 continue to apply. A decision could go either way afaics, but that's the intent of the OGL 1.0.


----------



## Art Waring

Umbran said:


> _"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners._" - Ryan Dancey, Nov 23, 2010.



Thank you for posting this, great quote from Ryan Dancey.


----------



## estar

mamba said:


> I don’t think you can release the software as eg GPL and thereby cover your OGL obligations.



You are correct. It would still take some thought and design work to make sure anything dependent on the open content uses the OGL license. My point is that it would less risk to have everything as open content than have a closed source software referencing data files released under the OGL. For one thing, Wizards or another IP right holder that released open content can see what is and isn't dependent on the open content.


----------



## S'mon

Umbran said:


> Let us be clear : I MADE NO SUCH ASSERTION.  I do not understand where you got the idea that I did.
> 
> In fact, I asserted that WotC _cannot withdraw their offer_ of a contract (admittedly, I used flowery language, my apologies).  The _Carlill_ case you are citing works against you, because it is an example of an offer that could not be withdrawn!
> 
> 
> 
> There is no _mechanism_ for doing that.  Indeed, the _Carlill_ case you site is one in which the company _could not_ retract an offer they'd made - so clearly you know this is possible.
> 
> 
> 
> Please educate me. What in Carlill is evidence that WotC can withdraw its offer?  Because, as it stands, the case isn an example of the opposite.
> 
> 
> 
> That's _generally_ true.  But one can construct exceptions, and the stated intent in this instance was to do precisely that.
> 
> _"I also had the goal that the release of the SRD would ensure that D&D in a format that I felt was true to its legacy could never be removed from the market by capricious decisions by its owners._" - Ryan Dancey, Nov 23, 2010.
> 
> 
> 
> There is no mechanism for doing so, because the offer and acceptance terms are contained _within the license itself_, which explicitly cannot be modified.  Thus, once extended, the offer cannot be withdrawn.  As above, this was intentional.
> 
> 
> 
> Again, the license contains its own offer and acceptance terms, and explicitly contains language that it may not be modified.  In addition, there is no _physical_ way for WotC to modify it - they cannot reach into other people's documents and alter them to remove the offer from the license.
> 
> Make no mistake, releasing things under the OGL is risky precisely because the licensor can't stop it once they've done so. The OGL is in many ways just a step or so off from just making the thing public domain.
> 
> 
> 
> Again - In _Carlill_, it was found that the offer was binding and enforceable, and the company could not withdraw.  So, I fail to see how that argues _against_ my point.  Carlill establishes that unilateral, open ended offers _are a thing_.




Carlill didn't address whether a unilateral offer could be withdrawn prior to completion of performance by the accepting party. Later jurisprudence indicates a unilateral offer cannot be withdrawn once performance has started, prior to completion.

It doesn't matter anyway. You can no longer license use of the 3.5 SRD direct from WoTC, but you can license it from eg The Hypertext d20 SRD (v3.5 d20 System Reference Document) :: d20srd.org 
It does not matter that you cannot contract with WoTC to license the 3.5 SRD; they effectively released it into the wild. Pemerton is right about offer/acceptance and offers being revocable, but so are most of the people arguing with him about the license being irrevocable; they're just arguing past each other. I mostly blame Pemerton as he is a lawyer and should know better.


----------



## estar

darjr said:


> If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.



To cut Wizards a very very small amount of slack, there has always been a sizable minority of the hobby that are anti-OGL for various reasons. And a much larger group who just want to get on with the gaming and wished that things were more straightforward.

And my point of view is that it would be easy to make it more straightforward, just make anything system-related open content. And if the author feels like it throws in the setting as well if it is their own original work*.



Anything I produce that 100% my own work like Blackmarsh, the Majestic Fantasy Realms, the Majestic Fantasy RPG is 100% open content. I plan to the same thing with Scourge of the Demon 2nd edition (I am replacing the Wilderlands based setting inside with one based on the Majestic Fantasy Realms) making it 100% open content, maps and all.

*And yes I know how unrealistic this is but doesn't stop me from trying to advocate for that goal. I also strongly feel it should be up to the author whether to participate in making open content or not. If they don't, I respect that choice despite my position on open content.


----------



## S'mon

mamba said:


> No, he is absolute wrong, he just writes like a lawyer and might trick you into thinking that means he knows what he is talking about.
> His main problem is that he treats an open license like a contract negotiation when it is not. Any argument and conclusion he makes falls apart because of that.
> 
> The WotC license and *the material released under it will remain available indefinitely. WotC cannot withdraw it again.*




Pemerton would agree with your last point, which is of course the point that matters.

Pemerton is an Australian lawyer and he does know what he's talking about, it's just that the technical point he's been making about offer/acceptance in contract is basically irrelevant to the important point - your bolded text - and even misleading to some people.


----------



## mamba

S'mon said:


> Pemerton would agree with your last point, which is of course the point that matters.



Yeah, that probably is his stance, it’s just that this also applies to the license itself, not just the material under it for those that agreed to it while it was available. He is wrong about that part


----------



## Dausuul

mamba said:


> I don’t think you can release the software as eg GPL and thereby cover your OGL obligations.
> 
> The OGL affects your software design because it is not enough to have the material in the source code and that code available to everyone (via the GPL).
> 
> “Distributing the source code not an acceptable method of compliance.”



As I read it, the reason this fails as a method of compliance is that the source code may not -- and in most cases would not -- contain the actual Open Gaming Content, i.e., the text of the rules. If I create my own encounter builder because I'm unimpressed with DDB's version, the source code of my app wouldn't typically contain the statblock of a red dragon. That would be stored in a database. The source code assumes the existence of such a database, and merely tells the computer how to take its contents and assemble them into encounters of suitable difficulty to achieve your target percentage of dead PCs.

However, if I were to incorporate the statblocks into the code in a human-readable format, and put them in their own directory along with a file containing the text of the OGL and saying "Everything in this directory is OGC," I would then meet the requirement that "you have to give all the recipients the right to extract and use any Open Game Content you've included in your application, and you have to clearly identify what part of the software is Open Game Content."

_Edited to add: I think I would also have to be quite careful about using some other open source license, like the MIT license, with my code. The OGL does not allow for modifications, so if I put all of my source code under the MIT license, I would be violating the conditions of the OGL. I'd have to say something like, "The contents of the /ogc directory are released under the OGL, everything else is under MIT."_


----------



## Alzrius

S'mon said:


> I think the clause is just there to make it clear they're not giving the SRD to the public domain, and you need to stick with the licence to use it.



For what it's worth, I privately spoke about that with an IP attorney I know through work, and he came to a very similar conclusion.


----------



## FrogReaver

I think it’s worth noting that Wotc can remove the 5.1 SRD from their sites. They can repost it under a different license (though they may need to name it something other than 5.1 SRD due to the clause in 5.1 SRD saying that license is granted solely through OGL 1.0), they can even ask everyone to stop using the old license. 

What they cannot do is force anyone to stop using, distributing or producing the 5.1 SRD under the OGL 1.0 so long as they obtained that document with the OGL 1.0 in it. Even those that obtain from another licensee after WOTC remove it from their sites and servers.


----------



## Alzrius

kenada said:


> The original GSL required you to stop publishing content under the OGL. That part was removed eventually, but the damage was done.



Notably, the GSL also required registration before you could use it, much like the OGL v1.1 is apparently going to require. I seem to recall that once WotC moved on from 4E, they stopped accepting new registrations for the GSL, so no one else who wants to make compatible products for 4E under it can anymore.

That might be a thing for anyone leery of the OGL v1.1 now; based on the language used, at some point WotC might now allow for people to make third-party materials for it, albeit probably after they (WotC) have moved on to yet another new edition of D&D.


----------



## FrogReaver

S'mon said:


> Pemerton would agree with your last point, which is of course the point that matters.
> 
> Pemerton is an Australian lawyer and he does know what he's talking about, it's just that the technical point he's been making about offer/acceptance in contract is basically irrelevant to the important point - your bolded text - and even misleading to some people.



I hope you are right but I came away with the impression that he would not agree with that.


----------



## darjr

Here is the poison pill version of the GSL.

Note there was a big thread here about the gsl



			Wayback Machine


----------



## Dausuul

mamba said:


> if he is agreeing with that, he does a really poor job of communicating it, and at that point I am not even sure what he is arguing about



He's delving into the details of _why_ the 3E and 5E SRDs are effectively available forever. In essence -- if I understand him correctly -- it is because Wizards cannot withdraw permission from existing licensees, _and_ those licensees can themselves license the SRDs to others.

So as long as there is somebody, somewhere, who is still publishing the 3E SRD under the terms of OGL 1.0, who can trace the "ancestry" of their license back to Wizards in the 3E era, anyone can get it from that person and be in compliance. The Internet being what it is, it's safe to say this will be the case for the foreseeable future.

But, _in principle_, if Wizards could somehow track down every licensee and convince them to voluntarily take down their copies of the 3E SRD, it could effectively "take back" the 3E SRD from the OGL. Even if you had a copy of the SRD text lying around, if you had never published that text as described in the OGL, you would not be a licensee, and there would be no one left to be your licensor.


----------



## Reynard

I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?


----------



## FrogReaver

Reynard said:


> I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?



It’s not clear cut, but most here find the arguments and principles in favor of that much more legally strong than the ones against.

*most of us are not lawyers either.


----------



## Dausuul

FrogReaver said:


> It’s not clear cut, but most here find the arguments and principles in favor of that much more legally strong than the ones against.
> 
> *most of us are not lawyers either.



@S'mon, however, is a lawyer and apparently the resident expert, so I'd go with his assessment... which seems to boil down to "Probably, depending on the judge, and how far Wizards goes to distinguish the new license from the old, so they would be well advised not to call it 'OGL 1.1.'"

Mind you, if I were a 3PP debating whether to try using the 1D&D SRD under OGL 1.0, I would not find this answer very reassuring. You want a little more certainty when your business is at stake. That in itself might be enough to keep anyone from making the attempt.


----------



## mamba

Dausuul said:


> He's delving into the details of _why_ the 3E and 5E SRDs are effectively available forever.



to me it very much sounds like he is arguing against this point. Since the license can be revoked (according to him, not in reality), the SRD could very much disappear. What would still be around is all the material based on it / the OGL 1.0, but it would be impossible to create any new material based on it.


Dausuul said:


> But, _in principle_, if Wizards could somehow track down every licensee and convince them to voluntarily take down their copies of the 3E SRD, it could effectively "take back" the 3E SRD from the OGL. Even if you had a copy of the SRD text lying around, if you had never published that text as described in the OGL, you would not be a licensee, and there would be no one left to be your licensor.



As long as a copy of the 3e SRD with that license exists somewhere (i.e. I do not need to get it from anyone who is already a licensee or WotC themselves), I can accept the license and publish new material using the 3e SRD.

If no copy exists anywhere this becomes moot, simply because of a lack of access, not because this somehow means WotC managed to retract the license


----------



## mamba

Reynard said:


> I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?



a plain reading of section 9 (and the quoted intent in an earlier post) agrees with this, who knows what courts may ultimately decide, but if WotC succeeds in arguing that this prevents 1DnD SRD to fall under 1.0 OGL that is despite the section and intent, not because of it

If they wanted to ensure it WotC should just call it something else rather than OGL 1.1, saves everyone a lot of trouble


----------



## kenada

Alzrius said:


> Notably, the GSL also required registration before you could use it, much like the OGL v1.1 is apparently going to require. I seem to recall that once WotC moved on from 4E, they stopped accepting new registrations for the GSL, so no one else who wants to make compatible products for 4E under it can anymore.
> 
> That might be a thing for anyone leery of the OGL v1.1 now; based on the language used, at some point WotC might now allow for people to make third-party materials for it, albeit probably after they (WotC) have moved on to yet another new edition of D&D.



Yeah, definitely. I hesitated to bring up the possibility of a poison pill because it’s inflammatory, but I’ve since seen it mentioned on Twitter by a few people (e.g., Jason Bulmahn and Justin Alexander), so I guess it’s already being talked about.


----------



## UngainlyTitan

FrogReaver said:


> Reynard said:
> 
> 
> 
> I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?
> 
> 
> 
> 
> 
> It’s not clear cut, but most here find the arguments and principles in favor of that much more legally strong than the ones against.
> 
> *most of us are not lawyers either.
Click to expand...


That is the way the betting is going here, but would depend on what  a judge made of it.


----------



## FrogReaver

Dausuul said:


> @S'mon, however, is a lawyer and apparently the resident expert, so I'd go with his assessment... which seems to boil down to "Probably, depending on the judge, and how far Wizards goes to distinguish the new license from the old, so they would be well advised not to call it 'OGL 1.1.'"
> 
> Mind you, if I were a 3PP debating whether to try using the 1D&D SRD under OGL 1.0, I would not find this answer very reassuring. You want a little more certainty when your business is at stake. That in itself might be enough to keep anyone from making the attempt.



Exactly!!  We should trust @S’mon because he mostly agrees with me. Absolutely no bias there on my part 

And I agree with the rest.


----------



## kenada

darjr said:


> Here is the poison pill version of the GSL.
> 
> Note there was a big thread here about the gsl
> 
> 
> 
> Wayback Machine



Section 4 of that GSL is almost identical to what WotC is saying they want to “clarify” in the OGL 1.1. Are they really going to try to pass off something like the GSL as a new version of the OGL?


----------



## FrogReaver

UngainlyTitan said:


> That is the way the betting is going here, but would depend on what  a judge made of it.



If this was d&d we would just bribe or threaten the judge


----------



## UngainlyTitan

FrogReaver said:


> If this was d&d we would just bribe or threaten the judge



Mind control followed by modify memory. Unless judges sit in a circle of antimagic or sum such.


----------



## FrogReaver

UngainlyTitan said:


> Mind control followed by modify memory. Unless judges sit in a circle of antimagic or sum such.



My life clerics god must have offered him a perpetual irrevocable license… he sure kills a lot of people in the name of life.


----------



## Dausuul

mamba said:


> to me it very much sounds like he is arguing against this point. Since the license can be revoked (according to him, not in reality).



This is the crux of the argument: He is drawing a distinction between _revoking_ the license (which all agree cannot be done) and _withdrawing the offer_ of the license.

In other words: Wizards has made me, and the rest of the world, an offer by releasing the SRD under the OGL. By making a copy of the SRD, or some part thereof, and publishing it with the OGL notice, I accept that offer and become a licensee, and Wizards can never revoke my license. But _until I do that_, I am not a licensee, and Wizards can withdraw its offer to me at any time.

At least, that is the claim. I am not myself a lawyer, so I can't assess the validity of it.


----------



## kenada

FrogReaver said:


> If this was d&d we would just bribe or threaten the judge



We could also have the bard seduce WotC into just using the OGL 1.0a. If they don’t like that, they shouldn’t have given bards expertise.


----------



## Reynard

FrogReaver said:


> My life clerics god must have offered him a perpetual irrevocable license… he sure kills a lot of people in the name of life.



Mistranslation: the original god of LIVES, specifically taking them.


----------



## S'mon

Dausuul said:


> @S'mon, however, is a lawyer and apparently the resident expert, so I'd go with his assessment...




I'd hesitate to call myself an expert. I'm an academic lawyer, I teach copyright law and commercial contract law in England, at undergraduate and postgraduate level, domestic and international commercial students. I did my PhD on copyright. I have some familiarity with US law and practice but I think I have a much stronger feel for how a UK case would likely go - and even then I can be surprised, or at least disagree with the decision. There may be US lawyers here with a stronger feel for how the OGL terms would be interpreted in court.


----------



## S'mon

Dausuul said:


> This is the crux of the argument: He is drawing a distinction between _revoking_ the license (which all agree cannot be done) and _withdrawing the offer_ of the license.
> 
> In other words: Wizards has made me, and the rest of the world, an offer by releasing the SRD under the OGL. By making a copy of the SRD, or some part thereof, and publishing it with the OGL notice, I accept that offer and become a licensee, and Wizards can never revoke my license. But _until I do that_, I am not a licensee, and Wizards can withdraw its offer to me at any time.
> 
> At least, that is the claim. I am not myself a lawyer, so I can't assess the validity of it.



Yes, that's what P says, and it looks right to me.


----------



## mamba

Dausuul said:


> This is the crux of the argument: He is drawing a distinction between _revoking_ the license (which all agree cannot be done) and _withdrawing the offer_ of the license.



well, maybe I was not clear then (the rest of my answer should have made it clear however). They can do neither, there, done


----------



## mamba

S'mon said:


> Yes, that's what P says, and it looks right to me.



he starts with a false assumption / premise, and if you draw logical conclusions based on false facts, you still end up in the wrong place, even though it looks good to you and all steps taken are logical


----------



## Dausuul

pemerton said:


> Everyone knows this. But _making an offer to enter into a licence_ is not the same as _entering into a licence_. I could, today, declare that I licence the Pemerton SRD under the OGL 1.0 to any and all takers. And then, tomorrow, I could withdraw that offer. Everyone who took up my offer in the intervening period would have rights under the licence. But once I withdrew the offer, no new licences could be created directly with me. Of course, under the terms of the OGL 1.0 sub-licences could be created with my licensors.



So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw _their_ offers? And if not, who has standing to sue them over it?

In other words: Let's say I take you up during the window when you are licensing the Pemerton SRD, use some of it in Dausuul's Tome of Internet Arguments, and start selling copies. If I'm reading you right, I have now entered into a contract with you. Part of that contract is that I have to make the same offer: I have to identify your Open Game Content in the DToIA and allow anyone else to do what I did.

If I tried to withdraw that offer, I assume I would then be in breach of my contract with you, and you could sue me, right?

Of course, if you were trying to claw back the Pemerton SRD from the OGL, you wouldn't want to do that. But until and unless a statute of limitations comes into play, I face the risk that you could change your mind. We'd have to mutually agree to modify our contract. Can we even do that given the terms of the OGL?

And if someone else takes me up on _my_ offer, they too must extend the same offer to others. If they then withdraw the offer, can I sue them for it? Or do you remain the only person who can sue anybody over the Pemerton SRD at any point in the chain?


----------



## estar

Dausuul said:


> _Edited to add: I think I would also have to be quite careful about using some other open source license, like the MIT license, with my code. The OGL does not allow for modifications, so if I put all of my source code under the MIT license, I would be violating the conditions of the OGL. I'd have to say something like, "The contents of the /ogc directory are released under the OGL, everything else is under MIT."_



My advice would be to cover the entire source code under the OGL, declare the non-OGL proportion as Product Identity. The contents of the /ogc direction are declared open content under the OGL. Then allow users to use the product identity under the MIT license. Which the OGL permits via.



> 7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, *except as expressly licensed in another independent Agreement with the owner of each element of that Product Identity*. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that  Product Identity.



In the case of your proposed project, that independent agreement happens to be the MIT license.


----------



## S'mon

Dausuul said:


> So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw _their_ offers?




You can withdraw an offer only before it has been accepted. Once someone accepts your offer (here, to license use of your material) you can't withdraw your offer to that person.


----------



## estar

S'mon said:


> You can withdraw an offer only before it has been accepted. Once someone accepts your offer (here, to license use of your material) you can't withdraw your offer to that person.



So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here if any?


----------



## Reynard

estar said:


> So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here?



All WotC withdrawing their offer means is no one NEW gets to enter into the license. it doesn't undo the previous ones.


----------



## estar

Reynard said:


> All WotC withdrawing their offer means is no one NEW gets to enter into the license. it doesn't undo the previous ones.



Sorry incomplete hypothetical, Joe shares the modification of the MF RPG AFTER Wizards withdraws the offer. And also Joe basically doesn't do much on-line. He just happened to buy my book at North Texas Con. The same with Steve.

Keep in mind if we accept @pemerton conclusion. The OGL explicitly grants me the right to distribute the content I have modified in section 10. Th



> 10. Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute.



So how is Joe or Steve supposed to know that Wizard's withdrew their offer? That is the question I am posing here. There is a logical problem with @pemerton argument. OK Wizards offered the d20 SRD under the OGL, OK they withdraw it, OK I get to keep using. But then I can only use the rights I was granted if I distribute the copy of the OGL with work. Which say that person who get my work can also share it and modify provided that one of the things they do is bundle a OGL with the work.

See the problem with the logical implications of @pemerton 's arguments?

As a historical note, the original author of open source licenses like the GPL deliberately designed it this way. That if you contribute content it is truly perpetual.


----------



## Umbran

pemerton said:


> Who's Dan?
> 
> If someone sells or gifts me a book that contains material that was licensed to the publisher under the OGL, I get the same rights to use the material as anyone else does who purchases any book: in the US that would be fair use, I think, which I would assume must be informed by the context.




You get more than that.   
"10. Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute."

And, that copy of the license includes the same offer and acceptance previously noted, so the license is _self perpetuating_.  Every use of the license includes an offer to use the license.

Just in case you haven't reviewed the license itself recently, you can find a copy of it here: Open Game License v1.0a


----------



## Bayushi_seikuro

darjr said:


> It's to bad WotC took this route.
> 
> If they had said they would make a trimmed down SRD, much like the current one, under the OGL 1.0a for the new revision of D&D but also had this other thing that came with a much more comprehensive SRD, maybe the whole game, for licenses. Then sweetened it with access to DNDBeyond. I'm sure the reception, at least, would have been much better.
> 
> I could even see some folks taking them up on the offer.



My experience with the gaming community, as well as experiences with humans in general, tell me that it's likely wishful thinking that the reception would be any better.  

And I'll tell you why: where does most of the open discussion and feelings in either direction seem to be coming from?  Where's the heat, as it were?  I'd say generally by people who will not publish anything under any system of anyone's creation.  Yes, some content creators have weighed in either way, some have chosen to keep quiet until its all finalized.

All one has to do is look back at various changes suggested or implemented with D&D as of late to see how reception goes, probably back to... Tasha's? YMMV


----------



## Umbran

Reynard said:


> All WotC withdrawing their offer means is no one NEW gets to enter into the license. it doesn't undo the previous ones.




Have I missed where someone has clarified how they can withdraw the offer, given that the license contains the offer and explicitly can't be altered?

"2. ...No terms may be added to or subtracted from this License except as described by the License itself."

So, section 3, which contains the offer and acceptance terms, can't be removed?


----------



## S'mon

estar said:


> So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here if any?




No legal implication for you, you still have your licence derived from Matt's licence. Matt's licence remains valid for him too.


----------



## Morrus

estar said:


> A copyright license is not a contract.



A licensing agreement is a type of contract.


----------



## Greg Benage

S'mon said:


> On the second point, I don't know, there seems a fair argument either way. If I were the judge I'd probably rule that by choosing to label the new licence OGL 1.1, and releasing the new SRD under that, the terms of OGL 1.0 apply to the new SRD material too, by the wording of section 9.



The terms of OGL 1.0 would apply (we think) to "the new SRD material," as long as that material is designated as "Open Game Content" as defined in OGL 1.0. Right? Nothing stops Wizards from releasing an SRD with a bunch of material that is _not_ designated as Open Game Content.


----------



## Reynard

Umbran said:


> Have I missed where someone has clarified how they can withdraw the offer, given that the license contains the offer and explicitly can't be altered?
> 
> "2. ...No terms may be added to or subtracted from this License except as described by the License itself."
> 
> So, section 3, which contains the offer and acceptance terms, can't be removed?



I was just answering the hypothetical without arguing that point, since while it seems unlikely to me it's possible, I don't know enough to be able to say.


----------



## Alzrius

Greg Benage said:


> The terms of OGL 1.0 would apply (we think) to "the new SRD material," as long as that material is designated as "Open Game Content" as defined in OGL 1.0. Right? Nothing stops Wizards from releasing an SRD with a bunch of material that is _not_ designated as Open Game Content.



Sure, but why would they do that? I mean, if there's material that they _don't_ want people referencing (with regard to what can be reproduced under the Open Game License), why bother putting it in the SRD at all? An SRD isn't a document you pay for anyway, so if people can't reproduce it under the OGL anyway, just put the non-Open material in a pay-for book like any other retail product.


----------



## Lanefan

mamba said:


> The OGL 1.0 itself.
> 
> They can stop to release new material under this license, but everything released under it, will remain released and available under it forever



Yes, and it's that _new_ material I'm talking about.  I know they can't stop what's already out there.


mamba said:


> no, they cannot. End of story, nothing else to say.



This directly contradicts what you say just above.  They either can stop new material coming out under 1.0 or 1.0a or they can't; you just said both are true, and both cannot be true at the same time.


----------



## Lanefan

pemerton said:


> Under the OGL, everyone who has entered into the licence with WotC has permission, which cannot be revoked, to distribute WotC's SRD as OGC. So you don't need to "get in before the lock".



You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?

This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.


----------



## FrogReaver

Lanefan said:


> You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?
> 
> This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.



if they had a realistic way to revoke OGL 1.0 material from that license they could do that. There is no realistic way of revoking OGL 1.0 material from that license as anyone who has already downloaded the material can reproduce and distribute it and if they do so they must provide for its use under the OGL 1.0 license or they have broken their license with WOTC. 

You seem to be under the assumption that they can remove SRD 5.1 from their websites and issue a statement on there that they are no longer licensing content under OGL 1.0. They can say that but The issue is that legally that would be a lie.  Even if they did all that All you need to do is download the 5.1 SRD with the 1.0 OGL from anyone and you can distribute that under the 1.0 OGL so long as you continue to include the OGL 1.0 in your content and follow the other license requirements.


----------



## mamba

Lanefan said:


> Yes, and it's that _new_ material I'm talking about.  I know they can't stop what's already out there.



of course they can stop using the license for their new material, I doubt anyone ever argued against that


Lanefan said:


> This directly contradicts what you say just above.  They either can stop new material coming out under 1.0 or 1.0a or they can't; you just said both are true, and both cannot be true at the same time.



Not sure what contradiction you see here. They cannot supercede OGL 1.0 with an OGL 1.1, that does not mean they cannot stop using the OGL altogether. And to be clear, *they cannot stop new material being released under OGL 1.0a*, the only material they have control over is their own material that is not under it already


----------



## mamba

Lanefan said:


> You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?
> 
> This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.



Not sure how often this needs repeating, apparently no amount will do... the OGL 1.0 cannot be revoked, rescinded, terminated or in any way rendered inapplicable / obsolete / unusable or whatever other word you want to use for you not being able to use it for material that was at one time released under it


----------



## Lanefan

mamba said:


> Not sure how often this needs repeating, apparently no amount will do... the OGL 1.0 cannot be revoked, rescinded, terminated or in any way rendered inapplicable / obsolete / unusable or whatever other word you want to use for you not being able to use it for material that was at one time released under it



And I too will repeat myself: _I'm not talking about material already released_!

I'm talking about material not yet released or even produced, by authors/publishers who have yet to enter those fields.


----------



## mamba

Lanefan said:


> And I too will repeat myself: _I'm not talking about material already released_!



Neither am I


Lanefan said:


> I'm talking about material not yet released or even produced, by authors/publishers who have yet to enter those fields.



yes, that too can use the OGL 1.0a


----------



## darjr

Bayushi_seikuro said:


> My experience with the gaming community, as well as experiences with humans in general, tell me that it's likely wishful thinking that the reception would be any better.
> 
> And I'll tell you why: where does most of the open discussion and feelings in either direction seem to be coming from?  Where's the heat, as it were?  I'd say generally by people who will not publish anything under any system of anyone's creation.  Yes, some content creators have weighed in either way, some have chosen to keep quiet until its all finalized.
> 
> All one has to do is look back at various changes suggested or implemented with D&D as of late to see how reception goes, probably back to... Tasha's? YMMV



This is utterly untrue


----------



## mamba

darjr said:


> If wotcs goal was to spread fear, uncertainty, and doubt then I think this thread goes some way showing they’ve done so.



Yeah, that release did not help alleviating any fears, not that I expected it to. It's like WotC has not met the internet yet 

To be fair, I am not sure what WotC could have said to alleviate the fears though. Even saying something like 'we have no intention of changing the OGL' would get picked apart as 'they have no intention now, just wait a year'. 

I guess the only thing would be 'we will be releasing a new SRD under the same OGL 1.0a' but even that would probably make little difference


----------



## darjr

mamba said:


> Yeah, that release did not help alleviating any fears, not that I expected it to. It's like WotC has not met the internet yet
> 
> To be fair, I am not sure what WotC could have said to alleviate the fears though. Even saying something like 'we have no intention of changing the OGL' would get picked apart as 'they have no intention now, just wait a year'.
> 
> I guess the only thing would be 'we will be releasing a new SRD under the same OGL 1.0a' but even that would probably make little difference



While I do think people would pick apart whatever WotC said, there are people then there are people, and they are not always the same nor the same in number.

If they had said there would be an OGL 1.0a SRD for One D&D then folks like Alex Kammer, organizer and owner of Gameholecon, an actual WotC partner and OGL publisher, would be on board instead of making speculative podcasts about WotC possible OGL breaking scenarios.

There are others too. Many behind the scenes. Big and small.
This would be a completely different story.


----------



## darjr

Oh and that NFT bro, an OGL publisher and OGL NFT maker, would be just fine too.


----------



## mamba

darjr said:


> While I do think people would pick apart whatever WotC said, there are people then there are people, and they are not always the same nor the same in number.



I agree, my point was more that even a statement like this would not stop the speculation (it would reduce how much of it there is however)


----------



## mamba

darjr said:


> Oh and that NFT bro, an OGL publisher and OGL NFT maker, would be just fine too.



lol, I am absolutely fine with him not being fine.


----------



## darjr

mamba said:


> lol, I am absolutely fine with him not being fine.



Oh me too.


----------



## Dausuul

Lanefan said:


> You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?
> 
> This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.



Without wading back into the debate over what Wizards could theoretically do if they could bend all existing licensees to their will... they can't, which means there is no need to "get in before the lock." You don't have to get your license direct from Wizards; you can sublicense from anyone with an existing license.

So, for example, you can go to d20srd.org, which has [_edited: _the 3.5E and 5E SRDs] available under the OGL. Pick your edition, grab the SRD, and go on your merry way. You become a licensee of d20srd.org, which is in turn a licensee of WotC, and you're set forever, no matter what Wizards or d20srd.org may do in future.


----------



## Uni-the-Unicorn!

Lanefan said:


> And I too will repeat myself: _I'm not talking about material already released_!
> 
> I'm talking about material not yet released or even produced, by authors/publishers who have yet to enter those fields.



Since the OGL 1.0 and 1.0a cannot be revoked, they can be used on future products. Just like Paizo used the OGL 1.0 to make pathfinder when WotC moved to the GSL for 4e. Just like 3PP used the OGL 1.0 to make 5e content before there was a 5e SRD. We can still use the OGL 1.0a to make 5e content now and forever.


----------



## Sacrosanct

Uni-the-Unicorn! said:


> Since the OGL 1.0 and 1.0a cannot be revoked, they can be used on future products. Just like Paizo used the OGL 1.0 to make pathfinder when WotC moved to the GSL for 4e. Just like 3PP used the OGL 1.0 to make 5e content before there was a 5e SRD. We can still use the OGL 1.0a to make 5e content now and forever.



Indeed.  In fact, I started working on 5e stuff with Depths of Felk Mor before 5e actually came out.  Just look at the dates on the files lol






The (simplified) bottom line is this: Keep using 1.0 to keep doing whatever you've been doing, or use the new license if you want to use specific things from 1DnD that aren't included in the 1.0 OGL license.


----------



## Greg Benage

Alzrius said:


> Sure, but why would they do that? I mean, if there's material that they _don't_ want people referencing (with regard to what can be reproduced under the Open Game License), why bother putting it in the SRD at all?



So that they can designate certain material as a new content category that can be used under the terms of the 1.1 OGL but can't be used under the terms of previous OGLs.


----------



## Sacrosanct

I think it's a matter of convenience.  With the OGL, there's nothing stopping you from creating something effectively the same as a 1 DnD figher, cleric, or whatever.  You just need to use your own terms.  But with an SRD, it's convenient to cut and paste stuff you need or want.


----------



## FrogReaver

Dausuul said:


> Without wading back into the debate over what Wizards could theoretically do if they could bend all existing licensees to their will... they can't, which means there is no need to "get in before the lock." You don't have to get your license direct from Wizards;* you can sublicense from anyone with an existing license.*
> 
> So, for example, you can go to d20srd.org, which has all three of Wizards's SRDs (3E, 3.5E, and 5E) available under the OGL. Pick your edition, grab the SRD, and go on your merry way. You become a licensee of d20srd.org, which is in turn a licensee of WotC, and you're set forever, no matter what Wizards or d20srd.org may do in future.



In regards to who is licensing the work -

The OGL 1.0 in section 4 says the "the *contributors* grant you a pretextual license...".  In section 1 Contributors are defined as "*copyright and/or trademark owners who have contributed Open Game Content*."  In section 15 WOTC is indicated as the copyright holder of the SRD 5.1.

However, is section 13 it says that *sublicenses* shall survive the termination of this license.

To me it sounds like the license would be with WOTC and not non-affiliated party that chose to distribute the 5.1 SRD under the OGL 1.0.  But I could be wrong as it's not clear what is meant by sublicenses to me.

Anyone have thoughts on this?


----------



## pemerton

UngainlyTitan said:


> Well it is OGL 1.0 but from my understanding of @pemerton's argument. If @permerton decides to distribute some derived work based on Dan's distribution of the SRD then his licence derives from Dan not from WoTC. He as no contractual connection to WoTC. Not sure if he as one with Dan.



Yes with Dan. And perhaps indirectly with WotC - they have licensed Dan, and authorised Dan to sub-license to me. In a previous conversation about this with @S'mon (years ago now) he said that it's possible (in the sense of _open to legal argument_) that my arrangement with Dan also brings me into a contractual relationship with WotC. To me, this seems to depend on technical arguments about privity and agency where my expertise runs out, and so I defer to S'mon's understanding and intuitions.

The practical significance, as I understand things, is that in the Dan scenario I can't just name WotC  and their SRD in my section 15 declaration. I'd need to name Dan and Dan's work also.


----------



## Dausuul

Sacrosanct said:


> I think it's a matter of convenience.  With the OGL, there's nothing stopping you from creating something effectively the same as a 1 DnD figher, cleric, or whatever.  You just need to use your own terms.  But with an SRD, it's convenient to cut and paste stuff you need or want.



It also means you don't have to worry about making a mistake and crossing the line into copyright violation when creating your "no serial numbers" versions of 1D&D content.


----------



## Alzrius

Dausuul said:


> So, for example, you can go to d20srd.org, which has all three of Wizards's SRDs (3E, 3.5E, and 5E) available under the OGL.



Forgive my nitpicking, but I don't believe that d20srd.org has the 3.0 SRD on their website (or the d20 Modern SRD, for that matter).


----------



## Dausuul

Alzrius said:


> Forgive my nitpicking, but I don't believe that d20srd.org has the 3.0 SRD on their website (or the d20 Modern SRD, for that matter).



Ah -- my mistake, you are correct. I saw three links with "SRD" in big letters and assumed they were all from Wizards, when in fact they are 3.5E, 5E, and Pathfinder.

So, you'd have to go somewhere else for the original 3E SRD or for d20 Modern.


----------



## pemerton

FrogReaver said:


> theres already arguments that fair use entails much of the OGC anyways, though that’s never really been tried to my knowledge. So I think bringing fair use in here muddies the waters for no particularly good reason.



I'm distinguishing between the use of a book to play a RPG, which in my view mostly will not involve entering into the OGL with a publisher but also mostly won't involve copyright infringements, and using the content in a book for one's own publishing endeavour, which generates licensing contracts as per my post just upthread in reply to @UngainlyTitan.


----------



## pemerton

FrogReaver said:


> I think that some of the issue is that other countries have varying degrees and lines where such licenses may be revocable.



To be clear: I have not at any point suggested that any licensc in terms of the OGL is revocable. I have said that the offer to enter into the licence is revocable.


----------



## FrogReaver

pemerton said:


> To be clear: I have not at any point suggested that any licensc in terms of the OGL is revocable. I have said that the offer to enter into the licence is revocable.



Okay.  How does WOTC rescind the offer to enter into the license?


----------



## pemerton

S'mon said:


> I mostly blame Pemerton as he is a lawyer and should know better.



I'm an academic lawyer and so care about accuracy in analysis, not giving legal advice.

The relevant practical point, though, is what needs to be included in a section 15 notice.


----------



## dbolack

FrogReaver said:


> Okay.  How does WOTC rescind the offer to enter into the license?



Functionally? They likely can achieve it by declaring it so. The number of entities that can afford to prove otherwise is probably countable on one hand and they may choose another path.


----------



## FrogReaver

dbolack said:


> Functionally? They likely can achieve it by declaring it so. The number of entities that can afford to prove otherwise is probably countable on one hand and they may choose another path.



Not functionally.  Legally.


----------



## pemerton

FrogReaver said:


> Okay.  How does WOTC rescind the offer to enter into the license?



Whether an offer is still in play or not is a pretty contextual matter. In the abstract, all that has to happen is that you cease to make it. But what does that consist in, in the practical circumstances of a given transaction?

Like, you're at the supermarket telling the checkout person that you want to buy the packet of flour in your hand, and then you notice its 1 kg and you need 1.5 kg - at what point between handing it to the person, and changing your mind, can you retract your offer to transact with the supermarket? At what point have they accepted your offer and so it can't be withdrawn? A lot of the time it's hard to draw a bright line.

Part of the logic of something like a public auction is to make the bright line as clear as possible.

In WotC's case, with respect to their offer to the all the world to license the SRD, they could withdraw the offer from their website. They could make a public statement to the effect that the offer is withdrawn. (See also @S'mon's post 295 upthread.)


----------



## pemerton

FrogReaver said:


> I hope you are right but I came away with the impression that he would not agree with that.





pemerton said:


> The licence is not revocable once entered into. But that's different from ceasing to make the offer.



@S'mon has understood my posts correctly. I'm pretty sure I've understood his posts. And as I posted around about p 14 of the thread, I think he's cleared up most of the issues. I also think @Dausuul's post about software compliance on p 15 is a very helpful one.


----------



## pemerton

mamba said:


> Since the license can be revoked (according to him, not in reality) of access, not because this somehow means WotC managed to retract the license





pemerton said:


> The licence is not revocable once entered into. But that's different from ceasing to make the offer.



You've not read my posts very carefully.


----------



## pemerton

Dausuul said:


> So, if you don't mind entertaining a series of increasingly deranged hypotheticals, here's a question that just occurred to me: Can licensees and sub-licensees withdraw _their_ offers? And if not, who has standing to sue them over it?
> 
> In other words: Let's say I take you up during the window when you are licensing the Pemerton SRD, use some of it in Dausuul's Tome of Internet Arguments, and start selling copies. If I'm reading you right, I have now entered into a contract with you. Part of that contract is that I have to make the same offer: I have to identify your Open Game Content in the DToIA and allow anyone else to do what I did.
> 
> If I tried to withdraw that offer, I assume I would then be in breach of my contract with you, and you could sue me, right?



I think I agree with you up to this point. (And I'm now reading on.)



Dausuul said:


> Of course, if you were trying to claw back the Pemerton SRD from the OGL, you wouldn't want to do that. But until and unless a statute of limitations comes into play, I face the risk that you could change your mind. We'd have to mutually agree to modify our contract. Can we even do that given the terms of the OGL?



I think all the parties to the licence agreement could agree to change it. In your scenario that's you and me. At which point, I think your standing offer to third parties would lapse.

But suppose we haven't actually entered into our mutual variation yet, and someone takes up your standing offer. My feeling is that, at that earlier point, you _can't_ argue that you have withdrawn your offer in breach of your contractual obligation to me. This is because I don't think you can rely, in a legal argument, on your intention to depart from your own legal obligations.

If US contract law were actually more libertarian than my intuitions are, though, I wouldn't be completely surprised.



Dausuul said:


> And if someone else takes me up on _my_ offer, they too must extend the same offer to others. If they then withdraw the offer, can I sue them for it? Or do you remain the only person who can sue anybody over the Pemerton SRD at any point in the chain?



You could sue them, as they have entered into a contract with you. Perhaps I can also sue them - see my post not too far upthread mentioning agency and privity, where (citing @S'mon) I suggest that when someone enters into the contract directly with you they might, thereby, also enter into a contract with me (mediated by you in some technical fashion).

And at that point, the number of parties who need to come on board in order to vary all the interlocking contracts gets bigger. (And messier!)


----------



## pemerton

estar said:


> So Matt Finch used the permission that Wizards gave on the d20 SRD to make Swords and Wizardry. I turn use the Matt's permission on Swords & Wizardry to make the Majestic Fantasy RPG. Joe who in turn modifies the MF RPG and gives that to Steve. Then as @pemerton theorizes Wizards withdraw the offer of the d20 SRD. Since Wizards wasn't involved between Me and Matt, or Me and Joe what is the implication here if any?





estar said:


> Sorry incomplete hypothetical, Joe shares the modification of the MF RPG AFTER Wizards withdraws the offer. And also Joe basically doesn't do much on-line. He just happened to buy my book at North Texas Con. The same with Steve.
> 
> Keep in mind if we accept @pemerton conclusion. The OGL explicitly grants me the right to distribute the content I have modified in section 10. Th
> 
> 
> So how is Joe or Steve supposed to know that Wizard's withdrew their offer? That is the question I am posing here. There is a logical problem with @pemerton argument. OK Wizards offered the d20 SRD under the OGL, OK they withdraw it, OK I get to keep using. But then I can only use the rights I was granted if I distribute the copy of the OGL with work. Which say that person who get my work can also share it and modify provided that one of the things they do is bundle a OGL with the work.
> 
> See the problem with the logical implications of @pemerton 's arguments?
> 
> As a historical note, the original author of open source licenses like the GPL deliberately designed it this way. That if you contribute content it is truly perpetual.



I think these questions have been answered in further posts. (See eg my reply to @Dausuul just upthread.)

WotC withdrawing their offer doesn't affect the existing licence agreement with Matt Finch, nor your rights obtained against WotC and against Matt Finch in virtue of you entering into the OGL when you author Majestic Fantasy.

If all Joe and Steve are doing is buying copies of your game and using it to play a RPG, I don't think they are parties to the OGL at all, with anyone. But if Joe makes and distributes modifications, and so is a publisher as well as a player, then Joe has entered into a licence agreement which gives rights against you, against Matt Finch and against WotC.


----------



## FrogReaver

pemerton said:


> Whether an offer is still in play or not is a pretty contextual matter. In the abstract, all that has to happen is that you cease to make it. But what does that consist in, in the practical circumstances of a given transaction?



It is my belief that they have no way to cease making the offer as everytime a licensee places a copy of the 5.1 SRD on the internet WOTC's offer in the 1.0 OGL gets remade.  Since WOTC mandated their licensees via OGL 1.0 to attach OGL 1.0 to all OGC and OGL 1.0 includes the license offer with WOTC and acceptance criteria then effectively WOTC has mandated that their OGL 1.0 offer continually and perpetually be made.  It's hard to see how WOTC can say they are ending OGL 1.0 for everything going forward when they don't have the power to end their current OGL licences that force that offer to be made repeatedly.  Legally in the U.S. they 'should' lose in court if their only argument was that they can end their offer to a license at anytime, because while they normally could, due to the specifics here they actually set themselves up to be unable to for this particular license.

In the U.S. the right to rescind an offer isn't absolute.  It doesn't trump all the other particulars.



pemerton said:


> Like, you're at the supermarket telling the checkout person that you want to buy the packet of flour in your hand, and then you notice its 1 kg and you need 1.5 kg - at what point between handing it to the person, and changing your mind, can you retract your offer to transact with the supermarket? At what point have they accepted your offer and so it can't be withdrawn? A lot of the time it's hard to draw a bright line.
> 
> Part of the logic of something like a public auction is to make the bright line as clear as possible.



Different situations different facts.  The fact is WOTC mandates it's OGL 1.0 licensees to reproduce the OGL 1.0 for all OGC.  Part of the OGL 1.0 includes the license offer and acceptance criteria.



pemerton said:


> In WotC's case, with respect to their offer to the all the world to license the SRD, they could withdraw the offer from their website. They could make a public statement to the effect that the offer is withdrawn. (See also @S'mon's post 295 upthread.)



See above.


----------



## pemerton

Lanefan said:


> You say "...everyone who has [already] entered into the licence..." - what about those who have not yet entered into the licence, who as yet have no relations of any kind with WotC other than having purchased some of their products?
> 
> This is what I mean when I say get in before the lock - if by the time 1.1 comes out you're not already using 1.0 or 1.0a and they decide to revoke 1.0a (which would, I presume, drag 1.0 down with it) you would seem to be stuck with 1.1.



All you would need to do is find someone else who _did_ get in before the lock - eg a hypertext SRD publisher - and enter into the OGL with them. As I've posted a few times, I think the main practical significance of this is it changes what you have to put in your section 15 declaration.

EDIT: Ninja'd by @Dausuul post 353.


----------



## FrogReaver

pemerton said:


> All you would need to do is find someone else who _did_ get in before the lock - eg a hypertext SRD publisher - and enter into the OGL with them. As I've posted a few times, I think the main practical significance of this is it changes what you have to put in your section 15 declaration.



One addendum - Only the Copyright holders go in section 15.  So if you essentially just distributed the SRD 5.1 content then WOTC would still need to be placed in section 15.  If you also contributed OGC and appended it to the end then you would also need to list yourself in section 15, along with WOTC.


----------



## pemerton

FrogReaver said:


> In regards to who is licensing the work -
> 
> The OGL 1.0 in section 4 says the "the *contributors* grant you a pretextual license...".  In section 1 Contributors are defined as "*copyright and/or trademark owners who have contributed Open Game Content*."  In section 15 WOTC is indicated as the copyright holder of the SRD 5.1.
> 
> However, is section 13 it says that *sublicenses* shall survive the termination of this license.
> 
> To me it sounds like the license would be with WOTC and not non-affiliated party that chose to distribute the 5.1 SRD under the OGL 1.0.  But I could be wrong as it's not clear what is meant by sublicenses to me.
> 
> Anyone have thoughts on this?



I think the termination thing is a red herring. That's referring to termination for breach, and the basic idea is that if (say) I breach in my Pemerton SRD, and hence lose the licence, that doesn't affect @Dausuul's rights to use OGC in his Tome of Internet Arguments that cites the Pemerton SRD in its section 15. The idea is to insulate people downstream from breaks in the chain.

With that aside:

What you've identified is the difference between _how the contract is formed_ and _what the contract licenses_. Suppose that you publish a PF-compatible book, relying on the OGL to create a contractual relationship between you an Paizo. Well, you have probably now also entered into a contract with WotC, albeit indirectly (see a few posts not too far upthread). And you have _definitely_ obtained rights as licensee against WotC as licensor - because in WotC's agreement with Paizo they conferred on Paizo (via the OGL) the capacity to further license the OGL to new parties, like you.

So you have a licence from both WotC and from Paizo. I believe you'd be obliged to cite both in your section 15 declaration, in order to comply with your own contractual obligations.


----------



## mamba

pemerton said:


> You've not read my posts very carefully.



I was sloppy with my terminology, I understand that according to you they can stop offering the license but not revoke the license of anyone who entered into an agreement by then.

I am disputing that they can stop offering it at all, or rather that them no longer offering it on their site has any impact whatsoever on anyone wanting to enter into the agreement after that point because the license and material are freely available elsewhere.

As long as that material (SRD under OGL 1.0a) is available anywhere, a third party can still enter into that agreement.


----------



## pemerton

FrogReaver said:


> One addendum - Only the Copyright holders go in section 15.  So if you essentially just distributed the SRD 5.1 content then WOTC would still need to be placed in section 15.  If you also contributed OGC and appended it to the end then you would also need to list yourself in section 15, along with WOTC.



Yes. Section 6 of the OGL says:

You must update the COPYRIGHT NOTICE portion of this License to include the exact text of the COPYRIGHT NOTICE of any Open Game Content You are copying, modifying or distributing, and You must add the title, the copyright date, and the copyright holder’s name to the COPYRIGHT NOTICE of any original Open Game Content you Distribute.​
If you are taking OGC from Dan, or from the hypertext SRD, or whatever, I think they will typically have added themselves to the notice. See eg: Legal Information :: 5e.d20srd.org.

And so I think you'd have to name them, in your section 15, even if everything you're taking from them is stuff that - under different circumstances - you could take straight from the SRD iteslf.


----------



## pemerton

FrogReaver said:


> It is my belief that they have no way to cease making the offer as everytime a licensee places a copy of the 5.1 SRD on the internet WOTC's offer in the 1.0 OGL gets remade.  Since WOTC mandated their licensees via OGL 1.0 to attach OGL 1.0 to all OGC and OGL 1.0 includes the license offer with WOTC and acceptance criteria then effectively WOTC has mandated that their OGL 1.0 offer continually and perpetually be made.  It's hard to see how WOTC can say they are ending OGL 1.0 for everything going forward when they don't have the power to end their current OGL licences that force that offer to be made repeatedly.  Legally in the U.S. they 'should' lose in court if their only argument was that they can end their offer to a license at anytime, because while they normally could, due to the specifics here they actually set themselves up to be unable to for this particular license.
> 
> In the U.S. the right to rescind an offer isn't absolute.  It doesn't trump all the other particulars.



If I've read you correctly, you're arguing that everyone who is licensed by WotC under the OGL v 1.0/1.0a has also, and irrevocably, been made an agent of WotC able to make offers on WotC's behalf in respect of the SRD.

That's an interesting argument. It replies to my question, way upthread, as to what is the legal argument that the offer can't be rescinded.

I don't think I agree with it, as I think the OGL permits the non-WotC party to sub-license the SRD but I don't think it otherwise makes the non-WotC party an agent. (The only reference to agents is to agents of WotC in clause 9. Of course that's not definitive in resolving the question of construction.) But I could be wrong.


----------



## pemerton

Reynard said:


> I'm still uncertain on the 1D&D SRD point: if they release it under the OGL 1.1, and OGL 1.1 is in fact a new version of the same OGL license, then is the 1D&D SRD also available for use via OLG 1.0 and 1.0a by virtue of Section 9?



I think everyone is uncertain!

My take is this: by calling the new licence an OGL v 1.1, WotC may incorporate by reference section 9 of the OGL v 1.0/1.0a. Which would then have the consequence that you point to.

But my own view is that it shouldn't be that hard to draft a new licence agreement, _even one called OGL v 1.1_, that expressly excludes any incorporation by reference of the old section 9. That said, I do agree with @S'mon that the drafting gets even easier if the new agreement is not called OGL v 1.1. But WotC may have PR-type reasons to want to keep using the OGL label.

Anyway, I don't see how there can be any abstract yes or no answer: because it's a question of construction, it has to depend on the actual terms of the new licence.


----------



## UngainlyTitan

pemerton said:


> I think everyone is uncertain!
> 
> My take is this: by calling the new licence an OGL v 1.1, WotC may incorporate by reference section 9 of the OGL v 1.0/1.0a. Which would then have the consequence that you point to.
> 
> But my own view is that it shouldn't be that hard to draft a new licence agreement, _even one called OGL v 1.1_, that expressly excludes any incorporation by reference of the old section 9. That said, I do agree with @S'mon that the drafting gets even easier if the new agreement is not called OGL v 1.1. But WotC may have PR-type reasons to want to keep using the OGL label.
> 
> Anyway, I don't see how there can be any abstract yes or no answer: because it's a question of construction, it has to depend on the actual terms of the new licence.



This is kind of my instinct. As you say we will have to see.


----------



## kenada

I’ve seen d20srd.org mentioned a few times. It’s worth noting the content of that site is not purely the SRD. It contains other material WotC released that has been mixed in with it. If you want the actual SRD that was released by WotC, it’s still available from the Open Gaming Foundation or the Wayback Machine. If you do use d20srd anyway, don’t forget to include it in your section 15 declaration.


----------



## FrogReaver

pemerton said:


> If I've read you correctly, you're arguing that everyone who is licensed by WotC under the OGL v 1.0/1.0a has also, and irrevocably, been made an agent of WotC able to make offers on WotC's behalf in respect of the SRD.



Kind of.  I don't know if I would call them 'agents'.  That's a particular legal term that carries with it certain legalities that I have no idea whether apply to the licensee in this situation or not.

I would say more specifically that WOTC requires the licensee to convey WOTC's offer that is extended within the OGL 1.0.  As long as WOTC is requiring the licensee to convey their offer via inclusion of the OGL 1.0 then I don't see any U.S. court agreeing that WOTC actually stopped making the offer no matter what they say or do elsewhere.  *And since WOTC cannot change the OGL 1.0 to stop the inclusion of that offer of license then I don't see legal ground for WOTC to legitimately claim they have ceased making the offer.



pemerton said:


> That's an interesting argument. It replies to my question, way upthread, as to what is the legal argument that the offer can't be rescinded.



That's fair.  I'm not lawyer but I think many here had the gut feeling that the following combination of terms led to that
1.  Making the offer within the license
2.  Requiring licencees to include the license, offer included
3.  Not allowing any terms on the license to be changed
4.  Only allowing termination for failure to comply with terms of license
5.  Making the benefit of using the license perpetual

Also, the vague understanding that open source software functions on similar principles.



pemerton said:


> I don't think I agree with it, as I think the OGL permits the non-WotC party to sub-license the SRD but I don't think it otherwise makes the non-WotC party an agent. (The only reference to agents is to agents of WotC in clause 9. Of course that's not definitive in resolving the question of construction.) But I could be wrong.




I find the alternate idea of sub-licensing as an explanation you raise intersting but I know nothing about the law around sub-licenses.  Reading the text of the OGL 1.0 it appears to be the copyright holders doing the license granting but since there would be a third party involved in distributing that offer, does that mean they licesned from the third party, that the third party was an agent, or something else?  I don't have any idea on those legal answers.


----------



## FrogReaver

pemerton said:


> What you've identified is the difference between _how the contract is formed_ and _what the contract licenses_. Suppose that you publish a PF-compatible book, relying on the OGL to create a contractual relationship between you an Paizo. Well, you have probably now also entered into a contract with WotC, albeit indirectly (see a few posts not too far upthread). And you have _definitely_ obtained rights as licensee against WotC as licensor - because in WotC's agreement with Paizo they conferred on Paizo (via the OGL) the capacity to further license the OGL to new parties, like you.



My only issue there is that The OGL 1.0 license itself tells us who grants it.  That's the contributors, aka the copyright holders.  In your example that would likely be WOTC and Paizo.  But in an example with just SRD 5.1 content the only copyright holder would be WOTC.  In either event the person would be a licenssee of ALL 'the contributors' and not just whoever last added content or distributed the documents.

I don't see where the OGL gives anyone the right to 'sub-license' the content.


----------



## pemerton

FrogReaver said:


> My only issue there is that The OGL 1.0 license itself tells us who grants it.  That's the contributors, aka the copyright holders.  In your example that would likely be WOTC and Paizo.  But in an example with just SRD 5.1 content the only copyright holder would be WOTC.  In either event the person would be a licenssee of ALL 'the contributors' and not just whoever last added content or distributed the documents.
> 
> I don't see where the OGL gives anyone the right to 'sub-license' the content.



Unless I'm confused, your first paragraph is an analysis of how the sub-licensing works.

EDIT to reply to related post:


FrogReaver said:


> Kind of.  I don't know if I would call them 'agents'.  That's a particular legal term that carries with it certain legalities that I have no idea whether apply to the licensee in this situation or not.
> 
> I would say more specifically that WOTC requires the licensee to convey WOTC's offer that is extended within the OGL 1.0.  As long as WOTC is requiring the licensee to convey their offer via inclusion of the OGL 1.0 then I don't see any U.S. court agreeing that WOTC actually stopped making the offer no matter what they say or do elsewhere.  *And since WOTC cannot change the OGL 1.0 to stop the inclusion of that offer of license then I don't see legal ground for WOTC to legitimately claim they have ceased making the offer.
> 
> 
> That's fair.  I'm not lawyer but I think many here had the gut feeling that the following combination of terms led to that
> 1.  Making the offer within the license
> 2.  Requiring licencees to include the license, offer included
> 3.  Not allowing any terms on the license to be changed
> 4.  Only allowing termination for failure to comply with terms of license
> 5.  Making the benefit of using the license perpetual
> 
> Also, the vague understanding that open source software functions on similar principles.
> 
> 
> 
> I find the alternate idea of sub-licensing as an explanation you raise intersting but I know nothing about the law around sub-licenses.  Reading the text of the OGL 1.0 it appears to be the copyright holders doing the license granting but since there would be a third party involved in distributing that offer, does that mean they licesned from the third party, that the third party was an agent, or something else?  I don't have any idea on those legal answers.



The licence is good against the copyright holder - that's its point. But it is mediated via the links in the OGL chain - eg Paizo, or the hypertext SRD.

My ability to unpack it is limited, because I'm not an expert in the relevant contract law. But WotC have, in the licence they grant in respect of their SRD, authorised others to enter into an identical licence with further parties which confers upon those further parties rights against WotC. Is this agency? A grant of authority to sub-license that is short of agency (which was my assumption, influenced by section 13's recognition of sub-licences)? Someone more expert than me would need to unpack it.

Suppose that X enters into the OGL with WotC, and then reproduces bits of the SRD that deal with clerics but changes the details of how Turn Undead works. Then Y publishes something that reproduces that Turn Undead system and extends it to demons and devils. Suppose further that Y has breached their obligations (eg there's an error in their Section 15 vis-a-vis X; or in Y's identification of X's OGC in Y's publication). Can X sue Y without also making WotC a party to the case? Can WotC sue Y directly? If they make X a party?

If Y are in a contractual relationship with WotC, in which they have promised to treat all OGC in a certain way, then it seems that WotC can sue Y directly. (It is a further question what their remedy might be.) But is that the proper analysis? I'm not sure.


----------



## FrogReaver

pemerton said:


> Unless I'm confused, your first paragraph is an analysis of how the sub-licensing works.



If that's what is meant by sub-licensing then all is well.  I had something a bit different in mind for that term.  As I've said before I know nothing about sub-licensing.


----------



## pemerton

FrogReaver said:


> If that's what is meant by sub-licensing then all is well.  I had something a bit different in mind for that term.  As I've said before I know nothing about sub-licensing.



I edited my post to reply to your other post. I don't have strong views on the agency/sub-licensing thing, but try to tease apart some of the issues I see it giving rise to.


----------



## Lanefan

Just a passing note to thank @pemerton for the education he's provided in this thread.  Bravo!


----------



## Malmuria

often the side with more power and money can make the law say what they want it to say.  Until a conflict arises that needs to be adjudicated in court we won’t know exactly what the OGL update allows or doesn’t allow wotc to do.






						Legally Odd: OGL Section 9
					

Recently, Wizards of the Coast announced that they would be releasing version 1.1 of their famous Open Gaming License, the OGL . What does t...




					blog.trilemma.com


----------



## mamba

pemerton said:


> My take is this: by calling the new licence an OGL v 1.1, WotC may incorporate by reference section 9 of the OGL v 1.0/1.0a. Which would then have the consequence that you point to.



isn’t that already the case simply by calling it OGL 1.1 even if that version excluded section 9?

The section is still in 1.0a and in 1.0a it states that if something is released under 1.1 you can use that under 1.0a as well.

“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.”


----------



## Voadam

Malmuria said:


> often the side with more power and money can make the law say what they want it to say.  Until a conflict arises that needs to be adjudicated in court we won’t know exactly what the OGL update allows or doesn’t allow wotc to do.
> 
> 
> 
> 
> 
> 
> Legally Odd: OGL Section 9
> 
> 
> Recently, Wizards of the Coast announced that they would be releasing version 1.1 of their famous Open Gaming License, the OGL . What does t...
> 
> 
> 
> 
> blog.trilemma.com



I think to go with what that blog terms the retroactive interpretation, you have to interpret the older 1.0 and 1.0a OGLs as not authorized versions of the license. I think there is a strong argument that the existing OGLs are authorized versions of the OGL. I think the straightforward argument is that WotC authorized them. These are not unauthorized licenses that someone without authority to do so put out there.

Section 9 explicitly says you can use any authorized version of the license to distribute OGC originally distributed under any version of the license. 

This is a license term of the OGL granting rights to the licensees.

So if WotC makes a 1.1 and distributes OGC under it, a 1.0 or 1.0a OGL licensee can use any authorized version of the OGL to distribute that OGC. To force anyone to use only the latest revision of the OGL that latest revision would have to be the only authorized version of the license.

"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."


----------



## Art Waring

Malmuria said:


> often the side with more power and money can make the law say what they want it to say.  Until a conflict arises that needs to be adjudicated in court we won’t know exactly what the OGL update allows or doesn’t allow wotc to do.
> 
> 
> 
> 
> 
> 
> Legally Odd: OGL Section 9
> 
> 
> Recently, Wizards of the Coast announced that they would be releasing version 1.1 of their famous Open Gaming License, the OGL . What does t...
> 
> 
> 
> 
> blog.trilemma.com



The blog post is misinterpreting the OGL, IMO, because it is interpreting the 1.1 OGL as an "update" to the OGL rather than a replacement like the 4e GSL. 

I think people are getting hung on the "OGL" and "open" words in the title of the 1.1 OGL, but it is anything but open, and its function is completely separate from a true open license. Its wording is much closer to the closed off GSL. 

When people are framing the new 1.1 OGL as an update, that simply isn't true. Its a replacement, and one that requires people to buy into the idea that its just an update, rather than the end of open content for dnd.


----------



## FrogReaver

mamba said:


> isn’t that already the case simply by calling it OGL 1.1 even if that version excluded section 9?
> 
> The section is still in 1.0a and in 1.0a it states that if something is released under 1.1 you can use that under 1.0a as well.
> 
> “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.”



IMO. If section 9 was removed from OGL 1.1 then one would not have permission to release the new SRD under the old OGLs. It doesn’t matter what the old licenses say as you aren’t licensed for that content under them.


----------



## FrogReaver

Art Waring said:


> The blog post is misinterpreting the OGL, IMO, because it is interpreting the 1.1 OGL as an "update" to the OGL rather than a replacement like the 4e GSL.
> 
> I think people are getting hung on the "OGL" and "open" words in the title of the 1.1 OGL, but it is anything but open, and its function is completely separate from a true open license. Its wording is much closer to the closed off GSL.
> 
> When people are framing the new 1.1 OGL as an update, that simply isn't true. It’s a replacement, and one that requires people to buy into the idea that it’s just an update, rather than the end of open content for dnd.



Legally im not sure any of that matters.  Legally what constitutes a version vs a new product?  I don’t think it’s cut and dried and to my limited knowledge it’s never been tried. I would think at a minimum there needs to be substantial similarities - it would seem there are. Then does it matter if WOTC wishes to treat something as new product or as a new version?  I think under most circumstances they would have the power to decide its designation - though I’m sure some exceptions can be carved out as well. Possibly if there designation was deemed misleading enough and the designation had real downstream impact for customers or licensees.


----------



## mamba

Art Waring said:


> The blog post is misinterpreting the OGL, IMO, because it is interpreting the 1.1 OGL as an "update" to the OGL rather than a replacement like the 4e GSL.



it is a newer version of the OGL, so exactly what section 9 is talking about.

If it were meant to be a separate license like the GSL, then they should call it something other than OGL + higher version number


----------



## Art Waring

FrogReaver said:


> Legally im not sure any of that matters.  Legally what constitutes a version vs a new product?  I don’t think it’s cut and dried and to my limited knowledge it’s never been tried. I would think at a minimum there needs to be substantial similarities - it would seem there are. Then does it matter if WOTC wishes to treat something as new product or as a new version?  I think under most circumstances they would have the power to decide its designation - though I’m sure some exceptions can be carved out as well.



There is a distinct difference between versions of a license and new products. I don't really get what you are saying here.


----------



## mamba

FrogReaver said:


> IMO. If section 9 was removed from OGL 1.1 then one would not have permission to release the new SRD under the old OGLs. It doesn’t matter what the old licenses say as you aren’t licensed for that content under them.



EDIT: you are right missed the little word ‘previous’ in the FAQ


----------



## Art Waring

mamba said:


> it is a newer version of the OGL, so exactly what section 9 is talking about.
> 
> If it were meant to be a separate license like the GSL, then they should call it something other than OGL + higher version number



Except you are taking it at face value, but just think about this for a second...

Given the past history of the 4e GSL, and the failure of 4th edition, do you really think they would outright state that this is a new restrictive GSL license? They are using the framing of the old OGL, combined with the GSL wording, to create a new restrictive license, it doesn't matter that the word "open" is in the title because it is the opposite of an open license.


----------



## FrogReaver

Art Waring said:


> Except you are taking it at face value, but just think about this for a second...
> 
> Given the past history of the 4e GSL, and the failure of 4th edition, do you really think they would outright state that this is a new restrictive GSL license? They are using the framing of the old OGL, combined with the GSL wording, to create a new restrictive license, it doesn't matter that the word "open" is in the title because it is the opposite of an open license.



If section 9 is included and they call it a new version then one would be safe to release OGC 1.1 content under OGL 1.0 as far as I can tell. 

However if they call it a new license instead of a new version it’s not as clear if legally that designation would hold up.


----------



## FrogReaver

Art Waring said:


> There is a distinct difference between versions of a license and new products. I don't really get what you are saying here.



Nor do I have any clue what you are confused about here.


----------



## Art Waring

FrogReaver said:


> If section 9 is included and they call it a new version then one would be safe to release OGC 1.1 content under OGL 1.0 as far as I can tell.
> 
> However if they call it a new license instead of a new version it’s not as clear if legally that designation would hold up.



I'm not talking about what you can do with OGC, that has already been covered.

Again, you are taking it at face value, they are currently using the name "1.1 OGL" to avoid comparisons to the failure that is the 4e GSL. 

If you look at the wording of the 1.1 OGL, it is very similar to the 4e GSL, almost too similar. To avoid an upset. they are using the OGL title and framing to release an altered version of the license. 

The most likely reason for this is to disguise the fact that the new license is restrictive when the previous one was completely open.


----------



## FrogReaver

Art Waring said:


> I'm not talking about what you can do with OGC, that has already been covered.
> 
> Again, you are taking it at face value, they are currently using the name "1.1 OGL" to avoid comparisons to the failure that is the 4e GSL.
> 
> If you look at the wording of the 1.1 OGL, it is very similar to the 4e GSL, almost too similar. To avoid an upset. they are using the OGL title and framing to release an altered version of the license.
> 
> The most likely reason for this is to disguise the fact that the new license is restrictive when the previous one was completely open.



It doesn’t matter. If OGL 1.1 is a version and includes section 9 then you can use OGL 1.0 for OGC material released under OGL 1.1.

If there goal was to make a 4e style GSL and they do this then they have failed.


----------



## Reynard

Art Waring said:


> If you look at the wording of the 1.1 OGL



We don't have the wording of OGL 1.1. We have a press release. We won't have the text to that document for years, maybe well after the 1D&D launch. Whether it is a new version of the OGL or a new license probably won't be decided by WotC's lawyers for a long time yet.

So anyone explaining exactly what and how it is, is overreaching at least.


----------



## Alzrius

Reynard said:


> We won't have the text to that document for years, maybe well after the 1D&D launch.



Didn't the press release say they'd be releasing the OGL v1.1 in early 2023?


----------



## Art Waring

Reynard said:


> We don't have the wording of OGL 1.1. We have a press release. We won't have the text to that document for years, maybe well after the 1D&D launch. Whether it is a new version of the OGL or a new license probably won't be decided by WotC's lawyers for a long time yet.
> 
> So anyone explaining exactly what and how it is, is overreaching at least.



But we do have information from the press release that is very similar to the 4e GSL. That has already been pointed out previously in the thread. 

Yes we don't know the final wording yet, until the release in 2023, but their initial information is pointing towards a more restrictive license.


----------



## Morrus

Reynard said:


> We don't have the wording of OGL 1.1. We have a press release. We won't have the text to that document for years, maybe well after the 1D&D launch.



Early 2023. We'll have it very soon.


----------



## Reynard

Morrus said:


> Early 2023. We'll have it very soon.



I missed that. Thanks.

My question, then, is why. The SRD won't be out until 1D&D drops at the earliest, right? Are they going to start releasing playtest material under OGL 1.1? That doesn't make sense if it is actually playtest material, since it is expected and intended to change.

What's the motivation for releasing the new OGL a full year or more in advance of the material it covers? Just to give 3PP a chance to comment?


----------



## mamba

Art Waring said:


> Except you are taking it at face value, but just think about this for a second...
> 
> Given the past history of the 4e GSL, and the failure of 4th edition, do you really think they would outright state that this is a new restrictive GSL license? They are using the framing of the old OGL, combined with the GSL wording, to create a new restrictive license, it doesn't matter that the word "open" is in the title because it is the opposite of an open license.



Yeah, that doesn’t work for me, because if you call something OGL + higher version number then it *is* a newer version of the OGL and not something else, so have fun trying to argue your case in court and not being laughed out of it


----------



## Alzrius

Reynard said:


> What's the motivation for releasing the new OGL a full year or more in advance of the material it covers? Just to give 3PP a chance to comment?



It's entirely possible. The GSL was revised less than a year after its release because of negative feedback; maybe WotC is intent on testing the waters by releasing a more restrictive version of the OGL v1.1 early, to see how much push-back they'll get.


----------



## Art Waring

mamba said:


> Yeah, that doesn’t work for me, because if you call something OGL + higher version number then it *is* a newer version of the OGL and not something else, so have fun trying to argue your case in court and not being laughed out of it



I'm not arguing a case in court, and the OGL has never been tested in the court of law, either. I was asking a question, not proposing a legal argument. Other corporations have done similar things before with other "open" licenses that are not so open, but are presented as being open. Can I ask that question?


----------



## mamba

Art Waring said:


> Can I ask that question?



you can ask any question you want to, I gave the answer that made the most sense to me


----------



## Art Waring

mamba said:


> you can ask any question you want to, I gave the answer that made the most sense to me



Well I try my best to be civil on the forums, and have some kind of mutual respect seeing as were all here for the same thing. I guess its too much to ask that you do the same?


----------



## kenada

Art Waring said:


> The blog post is misinterpreting the OGL, IMO, because it is interpreting the 1.1 OGL as an "update" to the OGL rather than a replacement like the 4e GSL.
> 
> I think people are getting hung on the "OGL" and "open" words in the title of the 1.1 OGL, but it is anything but open, and its function is completely separate from a true open license. Its wording is much closer to the closed off GSL.
> 
> When people are framing the new 1.1 OGL as an update, that simply isn't true. Its a replacement, and one that requires people to buy into the idea that its just an update, rather than the end of open content for dnd.



WotC discusses updating the OGL and what changes they are making in the post on D&D Beyond that explains the changes. It seems like more than a reasonable assumption that it’s an update when those are the words WotC used to describe what is being done.


----------



## Art Waring

kenada said:


> WotC discusses updating the OGL and what changes they are making in the post on D&D Beyond that explains the changes. It seems like more than a reasonable assumption that it’s an update when those are the words WotC used to describe what is being done.



Fair enough. However, to the best of my memory, back in this thread someone did a comparison with the legal language of the 4e GSL and compared it to the new 1.1 OGL and found several similarities. Update or not, there are at least similarities in the initial press release to language used in the 4e GSL.

Of course we won't know the full details of the new 1.1 OGL until 2023, and this could be a beta test of the license to test initial responses from the community. All I am saying is that there are some apparent similarities.


----------



## codo

Reynard said:


> I missed that. Thanks.
> 
> My question, then, is why. The SRD won't be out until 1D&D drops at the earliest, right? Are they going to start releasing playtest material under OGL 1.1? That doesn't make sense if it is actually playtest material, since it is expected and intended to change.
> 
> What's the motivation for releasing the new OGL a full year or more in advance of the material it covers? Just to give 3PP a chance to comment?



Lots of people are confused and upset about the changes.  Releasing the new OGL will at least let people understand the issue, instead of getting worked up about internet speculation.  I don't think It will please everyone, and lots of people will still be upset, but at least they will be upset about real changes and not baseless internet fear mongering.  

Its also really important for game designers who might be unsure if they want to develop for 1D&D or not, and if they do, under which license.   You don't want to keep developers in limbo for a year and then dump a last minute surprise on them when the game comes out.

Bottom line, why not?  People are going to be upset no matter what WotC does, they might as well rip the Band-Aid off now, rather than let people speculate and get worked up over internet rumors for a year.


----------



## mamba

Art Waring said:


> Well I try my best to be civil on the forums, and have some kind of mutual respect seeing as were all here for the same thing. I guess its too much to ask that you do the same?



no, but I see nothing wrong with my answer. I said that your explanation doesn’t work for me and I doubt it would hold up in court (in fact it pretty much would be a non-starter).

If disagreeing with you is disrespectful to you, then I am afraid I might continue to be disrespectful.


----------



## Reynard

codo said:


> Its also really important for game designers who might be unsure if they want to develop for 1D&D or not, and if they do, under which license.



They can't really do that with 1D&D&D being in flux and incomplete with playtesting happening. Unless the new OGL comes out and they end the playtest simultaneously?


----------



## Art Waring

mamba said:


> so have fun trying to argue your case in court and not being laughed out of it



That could be interpreted as disrespectful. You are free to disagree with anyones opinion as you want, but how about not being so dismissive?


----------



## mamba

Art Waring said:


> That could be interpreted as disrespectful. You are free to disagree with anyones opinion as you want, but how about not being so dismissive?



that may be disrespectful of your opinion (or just a disagreement with it and not far from what would actually happen in this case), it is not disrespectful of you.

Would you have been ok with me writing ‘would not stand a chance in court’ instead of ‘would be laughed out of court’ ? To me they basically mean the same, so feel free to substitute the former for the latter


----------



## kenada

Art Waring said:


> Fair enough. However, to the best of my memory, back in this thread someone did a comparison with the legal language of the 4e GSL and compared it to the new 1.1 OGL and found several similarities. Update or not, there are at least similarities in the initial press release to language used in the 4e GSL.
> 
> Of course we won't know the full details of the new 1.1 OGL until 2023, and this could be a beta test of the license to test initial responses from the community. All I am saying is that there are some apparent similarities.



Was that my post #314? I agree there are similarities. I also think it’s a pretty bad idea — not just because it could backfire on WotC but because they tried the GSL already with little success. WotC’s new leadership comes from the tech industry, so I assume they are trying to pivot D&D into a walled garden like those for apps and video games. I doubt that will work out for them like they think it will.


----------



## Voadam

Art Waring said:


> Fair enough. However, to the best of my memory, back in this thread someone did a comparison with the legal language of the 4e GSL and compared it to the new 1.1 OGL and found several similarities. Update or not, there are at least similarities in the initial press release to language used in the 4e GSL.



I did in one of the other threads. There are a number of similarities between some of the announced new provisions and some terms in the GSL.

But so far WotC's only statements on 1.1 OGL are that it will be a version of the OGL.

From the Beyond statement:

"*1. Will One D&D include an SRD/be covered by an OGL?*
Yes."

*"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 that it keeps doing what it was intended to do"

"we’re updating the OGL"

"Bottom line: The OGL is not going away."


Art Waring said:


> Of course we won't know the full details of the new 1.1 OGL until 2023, and this could be a beta test of the license to test initial responses from the community. All I am saying is that there are some apparent similarities.



Correct, none of this is set in stone until a new license actually comes out. The new changes include a number of provisions with similarities to some terms in the GSL. This appears however to be WotC explicitly declaring this will be a new version of the OGL and not an entirely different license like the GSL.

This declaration of intent could have some relevance if 1.1 comes out with terms like the 1.0 OGL and the proposed new provisions and WotC later tries to argue that the 1.1 OGL is not a version of the OGL.

Wizards of the Coast could change directions from what they announced and release a different license, but so far what they announced seems to be an explicit revised new version of the OGL as contemplated under Section 9 of the existing 1.0 OGL.


----------



## Art Waring

mamba said:


> that may be disrespectful of your opinion (or just a disagreement with it and not far from what would actually happen in this case), it is not disrespectful of you.
> 
> Would you have been ok with me writing ‘would not stand a chance in court’ instead of ‘would be laughed out of court’ ? To me they basically mean the same, so feel free to substitute the former for the latter



While they do "basically" mean the same thing, context matters. I obviously would have gone with "not stand a chance" than the former, but that's me.

Its ok though, I won't waste your time arguing semantics. 

I guess my questions can wait until the official 1.1 release.


----------



## codo

Reynard said:


> They can't really do that with 1D&D&D being in flux and incomplete with playtesting happening. Unless the new OGL comes out and they end the playtest simultaneously?



Correct me I am wrong but they said they are new OGL license _not_ the new SRD.  They are just going to release the contract or license not the actual game rules.  

Even if they don't know what the actual rules will be, releasing the terms of the OGL will let developers decide if they are terms they choose to work under or not.  WotC certainly doesn't want developers to spend a year working on content for the new system, and then springing more restrictive terms on them at the last minute.  Giving people as much advanced warning about upcoming changes is always a good thing.


----------



## Reynard

codo said:


> Correct me I am wrong but they said they are new OGL license _not_ the new SRD.  They are just going to release the contract or license not the actual game rules.
> 
> Even if they don't know what the actual rules will be, releasing the terms of the OGL will let developers decide if they are terms they choose to work under or not.  WotC certainly doesn't want developers to spend a year working on content for the new system, and then springing more restrictive terms on them at the last minute.  Giving people as much advanced warning about upcoming changes is always a good thing.



Right, but my point is how do developers spend a year working on new content if they don't know what the rules are or what's in the SRD?


----------



## Art Waring

kenada said:


> Was that my post #314? I agree there are similarities. I also think it’s a pretty bad idea — not just because it could backfire on WotC but because they tried the GSL already with little success. WotC’s new leadership comes from the tech industry, so I assume they are trying to pivot D&D into a walled garden like those for apps and video games. I doubt that will work out for them like they think it will.



Thank you that is what I was referring to. That is why I was asking because similarities to the GSL should at least be a concern moving forward going into the official release.



Voadam said:


> I did in one of the other threads. There are a number of similarities between some of the announced new provisions and some terms in the GSL.
> 
> But so far WotC's only statements on 1.1 OGL are that it will be a version of the OGL.
> 
> From the Beyond statement:
> 
> "*1. Will One D&D include an SRD/be covered by an OGL?*
> Yes."
> 
> *"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 that it keeps doing what it was intended to do"
> 
> "we’re updating the OGL"
> 
> "Bottom line: The OGL is not going away."



Right above the "OGL is not going away" part in wotc's statement are three bullet points:

1. Accept the terms and let us know what you're offering for sale.
2. Report OGL-related revenue annually (if you make more than 50k a year).
3. Include a Creator Product Badge for your work.

#1 looks benign, until we actually know if they will be putting an approval process in place to restrict publishers based on their content, or not, come 2023. That is significantly different than 1.0a, which doesn't require you to directly inform a corporation of what you intent to publish in the future.

#2 should at least concern 3pp publishers, being forced to declare income to a corporation makes a lot of people uncomfortable for a number of reasons.

#3 is really where we are seeing similarities with the GSL and the old D20 STL trademark, which they control and they can rescind at a later time. You could make content that they later restrict because it includes the compatibility badge. They previously pulled the D20 trademark and the 4e GSL and they are now closed for good.

Just pointing out that there are similarities, and 3pp publishers might be concerned.


----------



## FrogReaver

Art Waring said:


> Thank you that is what I was referring to. That is why I was asking because similarities to the GSL should at least be a concern moving forward going into the official release.
> 
> 
> Right above the "OGL is not going away" part in wotc's statement are three bullet points:
> 
> 1. Accept the terms and let us know what you're offering for sale.
> 2. Report OGL-related revenue annually (if you make more than 50k a year).
> 3. Include a Creator Product Badge for your work.
> 
> #1 looks benign, until we actually know if they will be putting an approval process in place to restrict publishers based on their content, or not, come 2023. That is significantly different than 1.0a, which doesn't require you to directly inform a corporation of what you intent to publish in the future.
> 
> #2 should at least concern 3pp publishers, being forced to declare income to a corporation makes a lot of people uncomfortable for a number of reasons.
> 
> #3 is really where we are seeing similarities with the GSL and the old D20 STL trademark, which they control and they can rescind at a later time. You could make content that they later restrict because it includes the compatibility badge. They previously pulled the D20 trademark and the 4e GSL and they are now closed for good.
> 
> Just pointing out that there are similarities, and 3pp publishers might be concerned.



As long as there is a section 9 and OGL 1.1 is a version the OGL You can use OGL 1.0 for any of the content released under OGL 1.1. 

We don’t know for sure if there will be a section 9. We don’t know if Wotc will try to declare OGL 1.1 a brand new license instead of a new version. 

So yes, there should be potential concerns. But until we can read the OGL 1.1 we won’t really know. All we can do is say if X happens then it’s bad. If Y happens it doesn’t matter.


----------



## codo

Reynard said:


> Right, but my point is how do developers spend a year working on new content if they don't know what the rules are or what's in the SRD?



We have the playtest.  Even if we don't know exactly what the final rules will be, we have some indication.  Game developers and going to develop games.  I can guarantee there are lots of developers who are working on products to release as soon as 1D&D comes out.  

Even if no one was actually working on products for 1D&D, it is better to let people know the terms of the license ahead of times.  You don't want developers wasting a year of their life waiting for a new version, that they are going to decide they don't want to use in the end.

If nothing else, giving people plenty of advanced warning will give the online bruhaha time to settle down before the actual game comes out.  You don't want to release controversial news at the same time as a new produce.


----------



## FrogReaver

One reason for WOTC to keep the license a version of the OGL is to allow current 1.0 OGL licensees to move their new content to the 1.1 OGL license.  If Wotc did not have it listed as a version of the OGL there would be alot of content not able to be made under OGL 1.1. Potentially incentivizing third party’s to stay under the OGL 1.0 even more than they already are.


----------



## Voadam

Art Waring said:


> Thank you that is what I was referring to. That is why I was asking because similarities to the GSL should at least be a concern moving forward going into the official release.
> 
> 
> Right above the "OGL is not going away" part in wotc's statement are three bullet points:
> 
> 1. Accept the terms and let us know what you're offering for sale.
> 2. Report OGL-related revenue annually (if you make more than 50k a year).
> 3. Include a Creator Product Badge for your work.
> 
> #1 looks benign, until we actually know if they will be putting an approval process in place to restrict publishers based on their content, or not, come 2023. That is significantly different than 1.0a, which doesn't require you to directly inform a corporation of what you intent to publish in the future.
> 
> #2 should at least concern 3pp publishers, being forced to declare income to a corporation makes a lot of people uncomfortable for a number of reasons.
> 
> #3 is really where we are seeing similarities with the GSL and the old D20 STL trademark, which they control and they can rescind at a later time. You could make content that they later restrict because it includes the compatibility badge. They previously pulled the D20 trademark and the 4e GSL and they are now closed for good.
> 
> Just pointing out that there are similarities, and 3pp publishers might be concerned.



I agree there are some similiarities. Here is my analysis from the other thread about GSL terms and the announced 1.1 OGL provisions.


Voadam said:


> 4e GSL terms
> 
> 
> 
> Spoiler: 4e GSL revised terms
> 
> 
> 
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 1 of 7
> Last Updated: February 27, 2009
> Dungeons & Dragons 4th Edition
> Game System License
> This Game System License Agreement (the “License”) is offered by Wizards of the Coast LLC, a Delaware
> limited liability company (“Wizards”). The License applies to the use in third party publications of certain
> proprietary elements of Wizards’ Dungeons & Dragons 4th Edition roleplaying game products (“4E”),
> specifically, the 4E Player’s Handbook, Dungeon Master’s Guide, Monster Manual, Player’s Handbook 2.
> Monster Manual 2, and Adventurer’s Vault (collectively, “Core Rulebooks”). Please read this License
> carefully. By returning the Statement of Acceptance as presented in the file “SOA.pdf” that is available for
> download at Wizards of the Coast (“Statement of Acceptance”), the person or entity named on the
> Statement of Acceptance (“Licensee”) expressly agrees to be bound by the terms of this License.
> 1. Effective Date. The License commences fourteen (14) days after the date Wizards receives
> Licensee’s completed Statement of Acceptance, provided the submitter of the Statement of Acceptance has
> not received a written notice from Wizards within such fourteen (14) day period declining to offer a License.
> Licensee represents and warrants that all information provided to Wizards on the Statement of Acceptance
> is accurate. Licensee will notify Wizards of any changes to the information provided on the Statement of
> Acceptance (including without limitation, name or address change) by submitting a corrected Statement of
> Acceptance within fourteen (14) days following the effective date of such change. Any failure by Licensee to
> so notify Wizards of corrections or updates to the information provided on the Statement of Acceptance will
> cause this License to terminate upon notice from Wizards. Notwithstanding the foregoing, except as
> otherwise provided in this License no Licensed Product (as defined below) will have a first on-sale date prior
> to October 1, 2008.
> 2. Updates or Revisions to License. Wizards may update or revise the License at any time in its
> sole discretion by posting the updated License on its website page located at Wizards of the Coast.
> Wizards will indicate on the License the date it was last updated. Licensee is responsible for checking the
> License regularly for changes, and waives any right to receive specific notice of changes. Licensee’s
> continued use of any Licensed Materials (as defined below) after the “Last Updated” date above, including
> without limitation any publication or distribution of Licensed Products (as defined below), confirms
> Licensee’s acceptance of any changes to the License and Licensee shall be bound by such revised terms. If
> Licensee does not accept such changes, the License will terminate pursuant to Section 10.1.
> 3. Licensed Products. The license granted in Section 4 is for use solely in connection with
> Licensee’s publication, distribution, and sale of roleplaying games and roleplaying game supplements that
> contain the Licensed Materials and are published in a hardcover or soft-cover printed book format or in a
> single-download electronic book format (such as .pdf), and accessory products to the foregoing roleplaying
> games and roleplaying game supplements that are not otherwise listed as excluded in Section 5.5
> (“Licensed Products”).
> 4. License Grant. Subject to Licensee’s compliance with all of the terms and conditions of the
> License, Wizards grants Licensee a non-exclusive, non-transferable, non-sublicenseable royalty-free,
> worldwide license to utilize the following materials (“Licensed Materials”) in Licensed Products, solely in
> the manner described herein and subject to the additional requirements, limitations and restrictions set forth
> herein and in Section 5:
> 4.1 4E References. Licensee may reprint the proprietary 4E reference terms, tables, and
> templates (each, a “4E Reference”) described in the 4E System Reference Document as presented in the
> file “SRD.pdf” that is available for download at Wizards of the Coast (“SRD”), incorporated herein by
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 2 of 7
> reference. Licensee acknowledges that Wizards has previously defined each 4E Reference. Licensee will
> not define, redefine, or alter the definition of any 4E Reference in a Licensed Product. Without limiting the
> foregoing, Licensee may create original material that adds to the applicability of a 4E Reference, so long as
> this original material complies with the preceding sentence. Licensee will comply with all usage guidelines
> set forth in the SRD. Wizards may update or revise the SRD at any time in its sole discretion by posting the
> updated SRD on its website page located at Wizards of the Coast. Wizards will indicate on the cover
> page of the SRD the date it was last updated. Licensee is responsible for checking the SRD regularly for
> changes, and waives any right to receive specific notice of changes.
> 4.2 Logo. Licensee must print Wizards’ proprietary “compatibility” service mark as
> presented in either of the files labeled “GSLLogo.pdf” and “GSLLogoBW.pdf” that are available for download
> at Wizards of the Coast (“Compatibility Logo”) on the lower left quadrant of the back cover of each
> Licensed Product and on the lower one-third (1/3) of the page in which the legal text described in Section
> 5.2 is located, or if a Licensed Product is made available only in an electronic format, the last page, and
> sized identically to the Compatibility Logo as shown in the files listed above. Licensee may additionally
> utilize the Compatibility Logo in advertisements and marketing materials (including without limitation,
> website listings and catalogs) for Licensed Products, provided, that such Compatibility Logo solely appears
> in the lower left quadrant of any such advertisement or marketing material; and is sized identically to the
> Compatibility Logo as shown in the files listed above.
> 4.3 Imagery. Except as expressly provided in Section 5.7, Licensee may utilize imagery and
> artwork contained in 4E solely to independently create and publish 2-D pictorial derivative works
> (“Derivative Imagery”) in a Licensed Product.
> 5. Requirements; Limitations
> 5.1 Use of Trademarks. Use of any trademarks included in the Licensed Materials is subject
> to Wizards’ trademark usage guidelines, as may be provided from time to time, and is limited to use solely to
> refer to 4E and the Core Rulebooks. Licensee will not use such trademarks in any other manner, and will
> not use any trademarks of Wizards other than pursuant to this License or another agreement between
> Wizards and Licensee.
> 5.2 Licensed Products Legal Text. Within the first three (3) non-cover pages of all Licensed
> Products, and, where practical, together with any other legal text supplied by Licensee, Licensee will include
> the following statements in at least ten-point font:
> DUNGEONS & DRAGONS, the DUNGEONS & DRAGONS Compatibility Logo, D&D,
> PLAYER’S HANDBOOK, PLAYER’S HANDBOOK 2, DUNGEON MASTER’S GUIDE,
> MONSTER MANUAL, MONSTER MANUAL 2, and ADVENTURER’S VAULT are
> trademarks of Wizards of the Coast in the USA and other countries and are used with
> permission. Certain materials, including 4E References in this publication, D&D core rules
> mechanics, and all D&D characters and their distinctive likenesses, are property of
> Wizards of the Coast, and are used with permission under the Dungeons & Dragons 4th
> Edition Game System License. All 4E References are listed in the 4E System Reference
> Document, available at www.wizards.com/d20.
> DUNGEONS & DRAGONS 4th Edition PLAYER’S HANDBOOK, written by Rob Heinsoo,
> Andy Collins, and James Wyatt; DUNGEON MASTER’S GUIDE, written by James Wyatt;
> and MONSTER MANUAL, written by Mike Mearls, Stephen Schubert and James Wyatt;
> PLAYER’S HANDBOOK 2, written by Jeremy Crawford, Mike Mearls, and James Wyatt;
> MONSTER MANUAL 2, written by Rob Heinsoo, and Chris Sims; Adventurer’s Vault,
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 3 of 7
> written by Logan Bonner, Eytan Bernstein, and Chris Sims. © 2008, 2009 Wizards of the
> Coast. All rights reserved.
> 5.3 Advertising Legal Text. Licensee will include the following legal text in at least 8-point
> font in all advertisements and other marketing materials in which the Compatibility Logo appears pursuant to
> Section 4.2:
> DUNGEONS & DRAGONS Compatibility Logo ™ & © Wizards of the Coast in the USA
> and other countries. Used with permission.
> 5.4 First On-Sale Date. Licensee will ensure that no Licensed Product is first on sale to
> consumers prior to October 1, 2008. Wizards may terminate this License immediately upon notice to
> Licensee in the event that any sale of a Licensed Product is made, by any individual or entity, to a consumer
> prior to October 1, 2008. Without limiting the foregoing, Licensee may produce, publish, and distribute (a)
> marketing and promotional materials for Licensed Products, and (b) non-commercial Licensed Products (i.e.
> free), in accordance with the terms of this License prior to October 1, 2008.
> 5.5 Licensed Products. This License applies solely to Licensed Products as defined in
> Section 3 and to the specified uses set forth in Section 4. For the avoidance of doubt, and by way of
> example only, no Licensed Product will (a) include web sites, interactive products, miniatures, or character
> creators; (b) describe a process for creating a character or applying the effects of experience to a character;
> (c) use the terms “Core Rules” or “Core Rulebook” or variations thereof on its cover or title, in self-reference
> or in advertising or marketing thereof; (d) refer to any artwork, imagery or other depiction contained in a
> Core Rulebook; (e) reprint any material contained in a Core Rulebook except as explicitly provided in
> Section 4; or (f) be incorporated into another product that is itself not a Licensed Product (such as, by way
> of example only, a magazine or book compilation).
> 5.6 Reprinting. Licensee will not publish or reprint (a) the contents of the SRD in their
> entirety; or (b) definitions of any 4E References, whether or not similar to those listed in any product
> published by Wizards.
> 5.7 Imagery. For the avoidance of doubt and in addition to the provisions of Section 9 related
> to ownership and use of Wizards Intellectual Property (as defined therein), Licensee expressly
> acknowledges Wizards’ ownership of all imagery and artwork contained in 4E, and Licensee expressly
> agrees it will not reprint any such imagery or artwork without Wizards’ written permission. In addition, and
> without limiting the foregoing, Licensee will not reprint, publish, use, nor create Derivative Imagery of, any of
> the following proprietary characters (whether from 4E or any other products published by Wizards or TSR,
> Inc.): Balhannoth, Beholder, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind
> Flayer, Illithid, Slaad, Umber Hulk’ and Yuan-Ti.
> 6. Quality and Content Standards. The nature and quality of all Licensed Products will conform to
> the quality standards set by Wizards, as may be provided from time to time. At a minimum, the Licensed
> Products will conform to community standards of decency and appropriateness as determined by Wizards in
> its discretion. Without limiting the foregoing, no Licensed Products will depict in any text, graphical or other
> manner:
> (a) excessively graphic violence or gore;
> (b) sexual situations, sexual abuse, pornography, gratuitous nudity of human or humanoid
> forms, genitalia, or sexual activity; or
> (c) existing real-world minorities, nationalities, social castes, religious groups or practices,
> political preferences, genders, lifestyle preferences, or people with disabilities, as a group inferior to any
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 4 of 7
> other group or in a way that promotes disrespect for those groups or practices, or that endorses those
> groups or practices over another.
> Without limiting the foregoing, Licensed Products will not contain any content that is unlawful, defamatory,
> harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable or that would infringe
> upon or violate the rights of any third party or constitute, encourage, or provide instructions for a criminal
> offense.
> 7. Compliance with Laws; Noninfringement. Licensee is solely responsible for ensuring that
> Licensed Products (a) comply with all applicable laws, regulations, orders and other requirements of any
> governmental authority in any territory in which Licensed Products are published, marketed, distributed,
> and/or sold; and (b) do not infringe upon or violate the rights of any third party.
> 8. Right of Review. Upon Wizards’ request, Licensee will supply samples of Licensed Products to
> Wizards sufficient for Wizards to ensure that such Licensed Products conform to the requirements of this
> License, including without limitation, Section 6 and Section 7.
> 9. Proprietary Rights.
> 9.1 Ownership. Licensee recognizes Wizards’ rights and interests in and to all Wizards
> Intellectual Property and that all rights therein, including good will pertaining thereto, belong exclusively to
> Wizards. Licensee acknowledges and agrees that its use of Licensed Materials inures to the benefit of
> Wizards. No right, title, or interest in the Licensed Materials or any Wizards Intellectual Property is
> transferred by this License. Licensee understands and agrees that it is not authorized to, and will not utilize,
> any Wizards Intellectual Property (other than Licensed Materials), including without limitation any
> trademarks owned by Wizards, except and unless Licensee has entered into a separate licensing
> agreement with Wizards authorizing such use. Licensee will not attack the title of Wizards in and to any
> Wizards Intellectual Property, nor will Licensee attack the validity of this License. “Wizards Intellectual
> Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any
> other intellectual property or proprietary right owned by Wizards, in each case whether arising under the
> laws of the United States or any other jurisdiction, including all rights of registration and renewal and causes
> of action for infringement or misappropriation related to any of the foregoing. For the avoidance of doubt,
> Wizards Intellectual Property includes all content contained within the Core Rulebooks and all Licensed
> Materials, including without limitation the SRD.
> 9.2 Third Party IP. To the extent any Licensed Product contains third party content or any
> content that is otherwise subject to the intellectual property rights of any third party, including without
> limitation any patents, copyrights, trademarks, rights of privacy or publicity (“Third Party IP”), then, as
> between Licensee and Wizards, Licensee is the licensee of all Third Party IP contained in such Licensed
> Product. Licensee will obtain all required licenses and permissions for its use of Third Party IP in the
> Licensed Products.
> 9.3 Protection of Wizards’ Rights. Licensee will assist Wizards to the extent necessary or
> as requested by Wizards to protect any of Wizards’ rights in and to Wizards Intellectual Property. Wizards
> will reimburse Licensee for any reasonable out-of-pocket costs incurred as a result of providing such
> assistance, provided that Wizards has approved such costs in advance. Licensee will not institute any suit
> or take any action on account of any such infringements or imitations, or otherwise institute any suit or take
> any action relating to Wizards Intellectual Property. Licensee will take no action that will harm, misuse or
> bring into disrepute the activities, properties or products of Wizards or Wizards Intellectual Property.
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 5 of 7
> 9.4 Remedies. Licensee recognizes and acknowledges that its breach of any of the covenants,
> agreements or undertakings hereunder with respect to use of the Licensed Materials, including without
> limitation trademark use requirements or quality standards, will cause Wizards irreparable damage which
> cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement
> of Wizards’ rights in Wizards Intellectual Property, thereby entitling Wizards to equitable remedies, costs
> and reasonable attorneys’ fees.
> 10. Termination and Effect.
> 10.1 Termination. Wizards may terminate this License and the rights granted hereunder
> automatically upon written notice to Licensee or upon posting on its website a termination of the GSL as
> applied to all licensees. Licensee may terminate its license hereunder for any reason (other than its own
> breach of the terms of this License) by either (a) ceasing all use of Licensed Materials, or (b) delivering to
> Wizards an executed “Termination Notice” as presented in the file “Termination.pdf” that is available for
> download at Wizards of the Coast (“Termination Notice”).
> 10.2 Survival. Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 (together with all other
> provisions that reasonably may be interpreted as surviving termination of this License) will survive the
> termination of this License.
> 10.3 Effect of Termination. Upon termination for any reason other than a termination
> resulting from Licensee’s delivery of a valid Termination Notice, Licensee will immediately cease all use of
> the Licensed Materials and will destroy all inventory and marketing materials in Licensee’s possession
> bearing the Compatibility Logo. Licensee will remove the Compatibility Logo from all advertising, web sites,
> and other materials. Licensee will solely bear all costs related to carrying out this provision (in addition to
> any other provision) of the License. Wizards may, in its sole discretion and upon written agreement
> between Wizards and Licensee, extend this License for those Licensed Products that otherwise comply with
> the terms of this License. Upon termination resulting from Licensee’s delivery of a valid Termination Notice,
> Licensee will have six (6) months from the date listed on the Termination Notice (“Termination Date”) to
> use (as authorized hereunder) all Licensed Products, and advertisements for Licensed Products, in
> Licensee’s possession as of the Termination Date. Licensee may not produce new Licensed Products
> (including without limitation, reprints of existing Licensed Products), nor other authorized materials with the
> Compatibility Logo after the Termination Date.
> 10.4 Injunctive Relief. Licensee acknowledges and agrees that noncompliance with the terms
> of this License may cause irreparable injury to Wizards for which Wizards will not have an adequate remedy
> at law, and that Wizards will therefore be entitled to apply to a court for extraordinary relief, including
> temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific
> performance, without necessity of posting bond or security. The existence of these rights will not preclude
> Wizards from pursuing any other rights and remedies at law or in equity that Wizards may have, including
> recovery of damages, and each and every remedy will be cumulative and in addition to every other remedy
> provided hereunder or available at law or in equity. Licensee will be responsible for all legal costs, including
> Wizards’ attorneys’ fees, associated with any action required by Wizards to enforce the terms of this
> License.
> 11. Representations. Licensee represents and warrants that:
> (a) Licensee is the sole author and owner of the Licensed Products; and, to the
> extent a Licensed Product contains any material contributed by a third party or any other Third Party IP,
> Licensee has obtained all necessary rights, licenses and/or permissions to use such Third Party IP in such
> Licensed Product;
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 6 of 7
> (b) Licensee has full power and authority to enter into and perform its obligations under
> this License;
> (c) this License does not conflict with any other contract or prior material commitment
> made by Licensee;
> (d) no Licensed Product infringes upon or violates any statutory or common law
> copyright or other intellectual property, contract, property or other right of a third party;
> (e) no Licensed Product invades the right of privacy of any person, nor contains any
> matter libelous or otherwise in contravention of the rights of any third party; and
> (f) Licensee will comply with all applicable laws, regulations, orders and other
> requirements of any governmental authority in its performance under this License.
> 12 Limitation of Liability. THIS LICENSE AND THE RIGHTS PROVIDED HEREUNDER ARE
> PROVIDED ON AN “AS IS” BASIS, AND WIZARDS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
> REPRESENTATIONS OR WARRANTIES, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES
> OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
> WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WIZARDS SPECIFICALLY DISCLAIMS
> ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES
> THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT
> RECIPIENT MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. WIZARDS WILL
> NOT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES
> (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF THIS AGREEMENT.
> 13. Indemnification. Licensee will defend and indemnify Wizards and its affiliates, and their
> respective employees, directors and representatives, against any claim or action brought by a third party, to
> the extent relating to any demands arising directly or indirectly out of or relating to (a) the Licensed
> Products, including without limitation, any material contained therein that is alleged to be scandalous,
> libelous, unlawful, or infringing or violating any copyright, right of privacy, proprietary right, or any other right
> whatsoever; (b) the breach or alleged breach of any of Licensee’s representations or warranties; or (c)
> Licensee’s actions or inactions related to this License. Licensee will pay any award against Wizards or its
> affiliates (or their respective employees, directors or representatives) and will reimburse Wizards for any
> other damages and liabilities incurred by Wizards and any costs and attorneys’ fees reasonably incurred by
> Wizards and/or its affiliates (or their respective employees, directors or representatives) resulting from any
> such claim or action.
> 14. Relationship of Parties. This License will not be construed as creating an agency, partnership,
> joint venture or any other form of legal association between or among Licensee and Wizards, and Licensee
> will not represent to the contrary, whether expressly, by implication, appearance or otherwise.
> 15. No Assignment. Licensee may not assign this License, in whole or in part.
> 16. No Waiver; Construction. Failure by Wizards to enforce any provision of this License will not be
> deemed a waiver of future enforcement of that or any other provision. Any law or regulation which provides
> that the language of a contract shall be construed against the drafter will not apply to this License.
> 17. Independent Development. Nothing in this License will impair Wizards’ right to acquire, license,
> develop, have others develop for it, market and/or distribute materials or products that contain concepts,
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 7 of 7
> storylines, characters, images or other content substantially similar to, or otherwise competing with,
> Licensed Products.
> 18. Choice of Law; Jurisdiction. This License will be governed by the laws of the State of
> Washington, USA, without reference to its choice of law rules. Licensee irrevocably consent to the
> exclusive jurisdiction and venue of the federal and state courts located at King County, Washington with
> respect to any claim or suit brought by Licensee arising out of or related to this License, and Licensee
> agrees not to commence or prosecute any such claim or suit other than in the aforementioned courts.
> LICENSEE EXPRESSLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY DISPUTE, CLAIM OR CAUSE
> OF ACTION RELATED TO OR ARISING OUT OF THIS LICENSE.
> 19. Severability. If any part of this License is declared invalid or unenforceable by a court of competent
> jurisdiction, it shall not affect the validity of the remainder of this License.
> 20. Entire Agreement; Integration. This Agreement sets forth the entire current agreement of the
> parties with respect to its subject matter and supersedes any previous or contemporaneous oral or written
> agreements regarding such subject matter, and can only be amended or modified by Wizards.
> 
> 
> 
> GSL had no royalties or revenue reporting connected to it.
> 
> Section 1 requires registration with Wizards similar to OGL 1.1
> 
> Section 2 WotC could revise the GSL at any time, the OGL allows new revision versions but the old ones are still valid.
> 
> Section 3 and 5.5 prohibited non PDF/book type things similar to proposed OGL 1.1
> 
> Section 4.1 only allowed references to 4e core stuff, not copying it the way the OGL normally does. (only new 4e expansion stuff like new monsters or powers or feats could be statted out)
> 
> Section 4.2 required using a compatibility mark and specific notices similar to OGL 1.1 required creator badge.
> 
> Section 5.6 can't reprint the SRD the way you can in the OGL.
> 
> Section 6 Includes a Wizards quality and content standards clause unlike the normal OGL.
> 
> Section 8 requires submission of samples upon WotC request for review. 1.1 OGL says it will require notification about what is being sold.
> 
> Section 9.3 requires aiding WotC in protecting its IP. Similar sections require indemnification and agreeing ahead of time that breaches of Wizards IP cause irreparable damage for injunctive relief purposes and so on.
> 
> Section 10 WotC can terminate the GSL at any time with licensee responsibilities like indemnification for breaches continuing, the OGL is irrevocable outside of breaches.


----------



## Art Waring

Voadam said:


> 4e GSL terms
> 
> 
> 
> Spoiler: 4e GSL revised terms
> 
> 
> 
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 1 of 7
> Last Updated: February 27, 2009
> Dungeons & Dragons 4th Edition
> Game System License
> This Game System License Agreement (the “License”) is offered by Wizards of the Coast LLC, a Delaware
> limited liability company (“Wizards”). The License applies to the use in third party publications of certain
> proprietary elements of Wizards’ Dungeons & Dragons 4th Edition roleplaying game products (“4E”),
> specifically, the 4E Player’s Handbook, Dungeon Master’s Guide, Monster Manual, Player’s Handbook 2.
> Monster Manual 2, and Adventurer’s Vault (collectively, “Core Rulebooks”). Please read this License
> carefully. By returning the Statement of Acceptance as presented in the file “SOA.pdf” that is available for
> download at Wizards of the Coast (“Statement of Acceptance”), the person or entity named on the
> Statement of Acceptance (“Licensee”) expressly agrees to be bound by the terms of this License.
> 1. Effective Date. The License commences fourteen (14) days after the date Wizards receives
> Licensee’s completed Statement of Acceptance, provided the submitter of the Statement of Acceptance has
> not received a written notice from Wizards within such fourteen (14) day period declining to offer a License.
> Licensee represents and warrants that all information provided to Wizards on the Statement of Acceptance
> is accurate. Licensee will notify Wizards of any changes to the information provided on the Statement of
> Acceptance (including without limitation, name or address change) by submitting a corrected Statement of
> Acceptance within fourteen (14) days following the effective date of such change. Any failure by Licensee to
> so notify Wizards of corrections or updates to the information provided on the Statement of Acceptance will
> cause this License to terminate upon notice from Wizards. Notwithstanding the foregoing, except as
> otherwise provided in this License no Licensed Product (as defined below) will have a first on-sale date prior
> to October 1, 2008.
> 2. Updates or Revisions to License. Wizards may update or revise the License at any time in its
> sole discretion by posting the updated License on its website page located at Wizards of the Coast.
> Wizards will indicate on the License the date it was last updated. Licensee is responsible for checking the
> License regularly for changes, and waives any right to receive specific notice of changes. Licensee’s
> continued use of any Licensed Materials (as defined below) after the “Last Updated” date above, including
> without limitation any publication or distribution of Licensed Products (as defined below), confirms
> Licensee’s acceptance of any changes to the License and Licensee shall be bound by such revised terms. If
> Licensee does not accept such changes, the License will terminate pursuant to Section 10.1.
> 3. Licensed Products. The license granted in Section 4 is for use solely in connection with
> Licensee’s publication, distribution, and sale of roleplaying games and roleplaying game supplements that
> contain the Licensed Materials and are published in a hardcover or soft-cover printed book format or in a
> single-download electronic book format (such as .pdf), and accessory products to the foregoing roleplaying
> games and roleplaying game supplements that are not otherwise listed as excluded in Section 5.5
> (“Licensed Products”).
> 4. License Grant. Subject to Licensee’s compliance with all of the terms and conditions of the
> License, Wizards grants Licensee a non-exclusive, non-transferable, non-sublicenseable royalty-free,
> worldwide license to utilize the following materials (“Licensed Materials”) in Licensed Products, solely in
> the manner described herein and subject to the additional requirements, limitations and restrictions set forth
> herein and in Section 5:
> 4.1 4E References. Licensee may reprint the proprietary 4E reference terms, tables, and
> templates (each, a “4E Reference”) described in the 4E System Reference Document as presented in the
> file “SRD.pdf” that is available for download at Wizards of the Coast (“SRD”), incorporated herein by
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 2 of 7
> reference. Licensee acknowledges that Wizards has previously defined each 4E Reference. Licensee will
> not define, redefine, or alter the definition of any 4E Reference in a Licensed Product. Without limiting the
> foregoing, Licensee may create original material that adds to the applicability of a 4E Reference, so long as
> this original material complies with the preceding sentence. Licensee will comply with all usage guidelines
> set forth in the SRD. Wizards may update or revise the SRD at any time in its sole discretion by posting the
> updated SRD on its website page located at Wizards of the Coast. Wizards will indicate on the cover
> page of the SRD the date it was last updated. Licensee is responsible for checking the SRD regularly for
> changes, and waives any right to receive specific notice of changes.
> 4.2 Logo. Licensee must print Wizards’ proprietary “compatibility” service mark as
> presented in either of the files labeled “GSLLogo.pdf” and “GSLLogoBW.pdf” that are available for download
> at Wizards of the Coast (“Compatibility Logo”) on the lower left quadrant of the back cover of each
> Licensed Product and on the lower one-third (1/3) of the page in which the legal text described in Section
> 5.2 is located, or if a Licensed Product is made available only in an electronic format, the last page, and
> sized identically to the Compatibility Logo as shown in the files listed above. Licensee may additionally
> utilize the Compatibility Logo in advertisements and marketing materials (including without limitation,
> website listings and catalogs) for Licensed Products, provided, that such Compatibility Logo solely appears
> in the lower left quadrant of any such advertisement or marketing material; and is sized identically to the
> Compatibility Logo as shown in the files listed above.
> 4.3 Imagery. Except as expressly provided in Section 5.7, Licensee may utilize imagery and
> artwork contained in 4E solely to independently create and publish 2-D pictorial derivative works
> (“Derivative Imagery”) in a Licensed Product.
> 5. Requirements; Limitations
> 5.1 Use of Trademarks. Use of any trademarks included in the Licensed Materials is subject
> to Wizards’ trademark usage guidelines, as may be provided from time to time, and is limited to use solely to
> refer to 4E and the Core Rulebooks. Licensee will not use such trademarks in any other manner, and will
> not use any trademarks of Wizards other than pursuant to this License or another agreement between
> Wizards and Licensee.
> 5.2 Licensed Products Legal Text. Within the first three (3) non-cover pages of all Licensed
> Products, and, where practical, together with any other legal text supplied by Licensee, Licensee will include
> the following statements in at least ten-point font:
> DUNGEONS & DRAGONS, the DUNGEONS & DRAGONS Compatibility Logo, D&D,
> PLAYER’S HANDBOOK, PLAYER’S HANDBOOK 2, DUNGEON MASTER’S GUIDE,
> MONSTER MANUAL, MONSTER MANUAL 2, and ADVENTURER’S VAULT are
> trademarks of Wizards of the Coast in the USA and other countries and are used with
> permission. Certain materials, including 4E References in this publication, D&D core rules
> mechanics, and all D&D characters and their distinctive likenesses, are property of
> Wizards of the Coast, and are used with permission under the Dungeons & Dragons 4th
> Edition Game System License. All 4E References are listed in the 4E System Reference
> Document, available at www.wizards.com/d20.
> DUNGEONS & DRAGONS 4th Edition PLAYER’S HANDBOOK, written by Rob Heinsoo,
> Andy Collins, and James Wyatt; DUNGEON MASTER’S GUIDE, written by James Wyatt;
> and MONSTER MANUAL, written by Mike Mearls, Stephen Schubert and James Wyatt;
> PLAYER’S HANDBOOK 2, written by Jeremy Crawford, Mike Mearls, and James Wyatt;
> MONSTER MANUAL 2, written by Rob Heinsoo, and Chris Sims; Adventurer’s Vault,
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 3 of 7
> written by Logan Bonner, Eytan Bernstein, and Chris Sims. © 2008, 2009 Wizards of the
> Coast. All rights reserved.
> 5.3 Advertising Legal Text. Licensee will include the following legal text in at least 8-point
> font in all advertisements and other marketing materials in which the Compatibility Logo appears pursuant to
> Section 4.2:
> DUNGEONS & DRAGONS Compatibility Logo ™ & © Wizards of the Coast in the USA
> and other countries. Used with permission.
> 5.4 First On-Sale Date. Licensee will ensure that no Licensed Product is first on sale to
> consumers prior to October 1, 2008. Wizards may terminate this License immediately upon notice to
> Licensee in the event that any sale of a Licensed Product is made, by any individual or entity, to a consumer
> prior to October 1, 2008. Without limiting the foregoing, Licensee may produce, publish, and distribute (a)
> marketing and promotional materials for Licensed Products, and (b) non-commercial Licensed Products (i.e.
> free), in accordance with the terms of this License prior to October 1, 2008.
> 5.5 Licensed Products. This License applies solely to Licensed Products as defined in
> Section 3 and to the specified uses set forth in Section 4. For the avoidance of doubt, and by way of
> example only, no Licensed Product will (a) include web sites, interactive products, miniatures, or character
> creators; (b) describe a process for creating a character or applying the effects of experience to a character;
> (c) use the terms “Core Rules” or “Core Rulebook” or variations thereof on its cover or title, in self-reference
> or in advertising or marketing thereof; (d) refer to any artwork, imagery or other depiction contained in a
> Core Rulebook; (e) reprint any material contained in a Core Rulebook except as explicitly provided in
> Section 4; or (f) be incorporated into another product that is itself not a Licensed Product (such as, by way
> of example only, a magazine or book compilation).
> 5.6 Reprinting. Licensee will not publish or reprint (a) the contents of the SRD in their
> entirety; or (b) definitions of any 4E References, whether or not similar to those listed in any product
> published by Wizards.
> 5.7 Imagery. For the avoidance of doubt and in addition to the provisions of Section 9 related
> to ownership and use of Wizards Intellectual Property (as defined therein), Licensee expressly
> acknowledges Wizards’ ownership of all imagery and artwork contained in 4E, and Licensee expressly
> agrees it will not reprint any such imagery or artwork without Wizards’ written permission. In addition, and
> without limiting the foregoing, Licensee will not reprint, publish, use, nor create Derivative Imagery of, any of
> the following proprietary characters (whether from 4E or any other products published by Wizards or TSR,
> Inc.): Balhannoth, Beholder, Carrion Crawler, Displacer Beast, Gauth, Githyanki, Githzerai, Kuo-Toa, Mind
> Flayer, Illithid, Slaad, Umber Hulk’ and Yuan-Ti.
> 6. Quality and Content Standards. The nature and quality of all Licensed Products will conform to
> the quality standards set by Wizards, as may be provided from time to time. At a minimum, the Licensed
> Products will conform to community standards of decency and appropriateness as determined by Wizards in
> its discretion. Without limiting the foregoing, no Licensed Products will depict in any text, graphical or other
> manner:
> (a) excessively graphic violence or gore;
> (b) sexual situations, sexual abuse, pornography, gratuitous nudity of human or humanoid
> forms, genitalia, or sexual activity; or
> (c) existing real-world minorities, nationalities, social castes, religious groups or practices,
> political preferences, genders, lifestyle preferences, or people with disabilities, as a group inferior to any
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 4 of 7
> other group or in a way that promotes disrespect for those groups or practices, or that endorses those
> groups or practices over another.
> Without limiting the foregoing, Licensed Products will not contain any content that is unlawful, defamatory,
> harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable or that would infringe
> upon or violate the rights of any third party or constitute, encourage, or provide instructions for a criminal
> offense.
> 7. Compliance with Laws; Noninfringement. Licensee is solely responsible for ensuring that
> Licensed Products (a) comply with all applicable laws, regulations, orders and other requirements of any
> governmental authority in any territory in which Licensed Products are published, marketed, distributed,
> and/or sold; and (b) do not infringe upon or violate the rights of any third party.
> 8. Right of Review. Upon Wizards’ request, Licensee will supply samples of Licensed Products to
> Wizards sufficient for Wizards to ensure that such Licensed Products conform to the requirements of this
> License, including without limitation, Section 6 and Section 7.
> 9. Proprietary Rights.
> 9.1 Ownership. Licensee recognizes Wizards’ rights and interests in and to all Wizards
> Intellectual Property and that all rights therein, including good will pertaining thereto, belong exclusively to
> Wizards. Licensee acknowledges and agrees that its use of Licensed Materials inures to the benefit of
> Wizards. No right, title, or interest in the Licensed Materials or any Wizards Intellectual Property is
> transferred by this License. Licensee understands and agrees that it is not authorized to, and will not utilize,
> any Wizards Intellectual Property (other than Licensed Materials), including without limitation any
> trademarks owned by Wizards, except and unless Licensee has entered into a separate licensing
> agreement with Wizards authorizing such use. Licensee will not attack the title of Wizards in and to any
> Wizards Intellectual Property, nor will Licensee attack the validity of this License. “Wizards Intellectual
> Property” means any patent, copyright, trademark, trade dress, trade name or trade secret right and any
> other intellectual property or proprietary right owned by Wizards, in each case whether arising under the
> laws of the United States or any other jurisdiction, including all rights of registration and renewal and causes
> of action for infringement or misappropriation related to any of the foregoing. For the avoidance of doubt,
> Wizards Intellectual Property includes all content contained within the Core Rulebooks and all Licensed
> Materials, including without limitation the SRD.
> 9.2 Third Party IP. To the extent any Licensed Product contains third party content or any
> content that is otherwise subject to the intellectual property rights of any third party, including without
> limitation any patents, copyrights, trademarks, rights of privacy or publicity (“Third Party IP”), then, as
> between Licensee and Wizards, Licensee is the licensee of all Third Party IP contained in such Licensed
> Product. Licensee will obtain all required licenses and permissions for its use of Third Party IP in the
> Licensed Products.
> 9.3 Protection of Wizards’ Rights. Licensee will assist Wizards to the extent necessary or
> as requested by Wizards to protect any of Wizards’ rights in and to Wizards Intellectual Property. Wizards
> will reimburse Licensee for any reasonable out-of-pocket costs incurred as a result of providing such
> assistance, provided that Wizards has approved such costs in advance. Licensee will not institute any suit
> or take any action on account of any such infringements or imitations, or otherwise institute any suit or take
> any action relating to Wizards Intellectual Property. Licensee will take no action that will harm, misuse or
> bring into disrepute the activities, properties or products of Wizards or Wizards Intellectual Property.
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 5 of 7
> 9.4 Remedies. Licensee recognizes and acknowledges that its breach of any of the covenants,
> agreements or undertakings hereunder with respect to use of the Licensed Materials, including without
> limitation trademark use requirements or quality standards, will cause Wizards irreparable damage which
> cannot be readily remedied in damages in an action at law, and may additionally constitute an infringement
> of Wizards’ rights in Wizards Intellectual Property, thereby entitling Wizards to equitable remedies, costs
> and reasonable attorneys’ fees.
> 10. Termination and Effect.
> 10.1 Termination. Wizards may terminate this License and the rights granted hereunder
> automatically upon written notice to Licensee or upon posting on its website a termination of the GSL as
> applied to all licensees. Licensee may terminate its license hereunder for any reason (other than its own
> breach of the terms of this License) by either (a) ceasing all use of Licensed Materials, or (b) delivering to
> Wizards an executed “Termination Notice” as presented in the file “Termination.pdf” that is available for
> download at Wizards of the Coast (“Termination Notice”).
> 10.2 Survival. Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 (together with all other
> provisions that reasonably may be interpreted as surviving termination of this License) will survive the
> termination of this License.
> 10.3 Effect of Termination. Upon termination for any reason other than a termination
> resulting from Licensee’s delivery of a valid Termination Notice, Licensee will immediately cease all use of
> the Licensed Materials and will destroy all inventory and marketing materials in Licensee’s possession
> bearing the Compatibility Logo. Licensee will remove the Compatibility Logo from all advertising, web sites,
> and other materials. Licensee will solely bear all costs related to carrying out this provision (in addition to
> any other provision) of the License. Wizards may, in its sole discretion and upon written agreement
> between Wizards and Licensee, extend this License for those Licensed Products that otherwise comply with
> the terms of this License. Upon termination resulting from Licensee’s delivery of a valid Termination Notice,
> Licensee will have six (6) months from the date listed on the Termination Notice (“Termination Date”) to
> use (as authorized hereunder) all Licensed Products, and advertisements for Licensed Products, in
> Licensee’s possession as of the Termination Date. Licensee may not produce new Licensed Products
> (including without limitation, reprints of existing Licensed Products), nor other authorized materials with the
> Compatibility Logo after the Termination Date.
> 10.4 Injunctive Relief. Licensee acknowledges and agrees that noncompliance with the terms
> of this License may cause irreparable injury to Wizards for which Wizards will not have an adequate remedy
> at law, and that Wizards will therefore be entitled to apply to a court for extraordinary relief, including
> temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific
> performance, without necessity of posting bond or security. The existence of these rights will not preclude
> Wizards from pursuing any other rights and remedies at law or in equity that Wizards may have, including
> recovery of damages, and each and every remedy will be cumulative and in addition to every other remedy
> provided hereunder or available at law or in equity. Licensee will be responsible for all legal costs, including
> Wizards’ attorneys’ fees, associated with any action required by Wizards to enforce the terms of this
> License.
> 11. Representations. Licensee represents and warrants that:
> (a) Licensee is the sole author and owner of the Licensed Products; and, to the
> extent a Licensed Product contains any material contributed by a third party or any other Third Party IP,
> Licensee has obtained all necessary rights, licenses and/or permissions to use such Third Party IP in such
> Licensed Product;
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 6 of 7
> (b) Licensee has full power and authority to enter into and perform its obligations under
> this License;
> (c) this License does not conflict with any other contract or prior material commitment
> made by Licensee;
> (d) no Licensed Product infringes upon or violates any statutory or common law
> copyright or other intellectual property, contract, property or other right of a third party;
> (e) no Licensed Product invades the right of privacy of any person, nor contains any
> matter libelous or otherwise in contravention of the rights of any third party; and
> (f) Licensee will comply with all applicable laws, regulations, orders and other
> requirements of any governmental authority in its performance under this License.
> 12 Limitation of Liability. THIS LICENSE AND THE RIGHTS PROVIDED HEREUNDER ARE
> PROVIDED ON AN “AS IS” BASIS, AND WIZARDS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
> REPRESENTATIONS OR WARRANTIES, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES
> OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
> WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WIZARDS SPECIFICALLY DISCLAIMS
> ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES
> THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT
> RECIPIENT MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. WIZARDS WILL
> NOT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES
> (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF THIS AGREEMENT.
> 13. Indemnification. Licensee will defend and indemnify Wizards and its affiliates, and their
> respective employees, directors and representatives, against any claim or action brought by a third party, to
> the extent relating to any demands arising directly or indirectly out of or relating to (a) the Licensed
> Products, including without limitation, any material contained therein that is alleged to be scandalous,
> libelous, unlawful, or infringing or violating any copyright, right of privacy, proprietary right, or any other right
> whatsoever; (b) the breach or alleged breach of any of Licensee’s representations or warranties; or (c)
> Licensee’s actions or inactions related to this License. Licensee will pay any award against Wizards or its
> affiliates (or their respective employees, directors or representatives) and will reimburse Wizards for any
> other damages and liabilities incurred by Wizards and any costs and attorneys’ fees reasonably incurred by
> Wizards and/or its affiliates (or their respective employees, directors or representatives) resulting from any
> such claim or action.
> 14. Relationship of Parties. This License will not be construed as creating an agency, partnership,
> joint venture or any other form of legal association between or among Licensee and Wizards, and Licensee
> will not represent to the contrary, whether expressly, by implication, appearance or otherwise.
> 15. No Assignment. Licensee may not assign this License, in whole or in part.
> 16. No Waiver; Construction. Failure by Wizards to enforce any provision of this License will not be
> deemed a waiver of future enforcement of that or any other provision. Any law or regulation which provides
> that the language of a contract shall be construed against the drafter will not apply to this License.
> 17. Independent Development. Nothing in this License will impair Wizards’ right to acquire, license,
> develop, have others develop for it, market and/or distribute materials or products that contain concepts,
> D&D 4E Game System License ©2008, 2009 Wizards of the Coast page 7 of 7
> storylines, characters, images or other content substantially similar to, or otherwise competing with,
> Licensed Products.
> 18. Choice of Law; Jurisdiction. This License will be governed by the laws of the State of
> Washington, USA, without reference to its choice of law rules. Licensee irrevocably consent to the
> exclusive jurisdiction and venue of the federal and state courts located at King County, Washington with
> respect to any claim or suit brought by Licensee arising out of or related to this License, and Licensee
> agrees not to commence or prosecute any such claim or suit other than in the aforementioned courts.
> LICENSEE EXPRESSLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY DISPUTE, CLAIM OR CAUSE
> OF ACTION RELATED TO OR ARISING OUT OF THIS LICENSE.
> 19. Severability. If any part of this License is declared invalid or unenforceable by a court of competent
> jurisdiction, it shall not affect the validity of the remainder of this License.
> 20. Entire Agreement; Integration. This Agreement sets forth the entire current agreement of the
> parties with respect to its subject matter and supersedes any previous or contemporaneous oral or written
> agreements regarding such subject matter, and can only be amended or modified by Wizards.
> 
> 
> 
> GSL had no royalties or revenue reporting connected to it.
> 
> Section 1 requires registration with Wizards similar to OGL 1.1
> 
> Section 2 WotC could revise the GSL at any time, the OGL allows new revision versions but the old ones are still valid.
> 
> Section 3 and 5.5 prohibited non PDF/book type things similar to proposed OGL 1.1
> 
> Section 4.1 only allowed references to 4e core stuff, not copying it the way the OGL normally does. (only new 4e expansion stuff like new monsters or powers or feats could be statted out)
> 
> Section 4.2 required using a compatibility mark and specific notices similar to OGL 1.1 required creator badge.
> 
> Section 5.6 can't reprint the SRD the way you can in the OGL.
> 
> Section 6 Includes a Wizards quality and content standards clause unlike the normal OGL.
> 
> Section 8 requires submission of samples upon WotC request for review. 1.1 OGL says it will require notification about what is being sold.
> 
> Section 9.3 requires aiding WotC in protecting its IP. Similar sections require indemnification and agreeing ahead of time that breaches of Wizards IP cause irreparable damage for injunctive relief purposes and so on.
> 
> Section 10 WotC can terminate the GSL at any time with licensee responsibilities like indemnification for breaches continuing, the OGL is irrevocable outside of breaches.



Thank you, this will come in handy for the inevitable analysis of the new 1.1 upon release.


----------



## bedir than

Reynard said:


> They can't really do that with 1D&D&D being in flux and incomplete with playtesting happening. Unless the new OGL comes out and they end the playtest simultaneously?



Or they consider the likely changes so small that the SRD updates are tiny. D20 Test sticks, and the rest changes.


----------



## pemerton

Lanefan said:


> Just a passing note to thank @pemerton for the education he's provided in this thread.  Bravo!



Thanks!


----------



## pemerton

Voadam said:


> The new changes include a number of provisions with similarities to some terms in the GSL. This appears however to be WotC explicitly declaring this will be a new version of the OGL and not an entirely different license like the GSL.
> 
> This declaration of intent could have some relevance if 1.1 comes out with terms like the 1.0 OGL and the proposed new provisions and WotC later tries to argue that the 1.1 OGL is not a version of the OGL.



I don't think so. I think the question of what is licensed under any new licence - whether it is labelled OGL v 1.1 or something else - will be determined by the construction of the new licence terms, not by things that were said in press releases prior to its release.

I don't think any reasonable licensee would rely on remarks in a press release as establishing what their rights are under an IP licence.



mamba said:


> isn’t that already the case simply by calling it OGL 1.1 even if that version excluded section 9?
> 
> The section is still in 1.0a and in 1.0a it states that if something is released under 1.1 you can use that under 1.0a as well.
> 
> “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.”





mamba said:


> if you call something OGL + higher version number then it *is* a newer version of the OGL and not something else, so have fun trying to argue your case in court and not being laughed out of it



Section 9 of the OGL v 1.0.1.0a means that existing licensees under those licences have a contractual right, against WotC (and other parties), to "use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."

What makes a future licence _authorized_ or _a version of the OGL 1.0/1.0a_ isn't obvious to me. There is also the need to interpret _Open Game Content_ as that phrase appears in section 9. I think sorting all this out would have to involve, at least, some consideration of the terms of the future licence.

For instance, if the new licence were to have a provision saying that "Open Game Content, within the meaning of this licence, does not fall within the meaning of the phrase Open Gaming Content in OGL v 1.0 or v 1.0a", that would seem like it might take OGC licensed under the new licence outside the scope of operation of section 9, even for those who have the benefit of section 9 in their relationship with WotC.


----------



## estar

What folks need to consider is how the OGL Section 9 came about. It is basic Wizard's implementation of this clauses from the GPL Version 2.


> *9.* The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
> 
> Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.


----------



## Dausuul

estar said:


> What folks need to consider is how the OGL Section 9 came about. It is basic Wizard's implementation of this clauses from the GPL Version 2:





estar said:


> _If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation._



But Section 9 of the OGL doesn't present those options -- it locks everyone into the second choice. Otherwise there would be no question here; WotC could simply say "1.1 and later."

It's a different scenario, because the OGL is in part a device for past WotC to secure the game against mistakes by future WotC. So it's deliberately written to create headaches if WotC tries to do... well, exactly what it _is_ doing: Rewrite the OGL to make it less open and grab more profit for itself.


----------



## Voadam

pemerton said:


> I don't think so. I think the question of what is licensed under any new licence - whether it is labelled OGL v 1.1 or something else - will be determined by the construction of the new licence terms, not by things that were said in press releases prior to its release.
> 
> I don't think any reasonable licensee would rely on remarks in a press release as establishing what their rights are under an IP licence.



I think you are looking at it from the wrong angle. You are looking at 1.1 as a separate thing on its own and under 1.1 terms and what is licensed out directly under the 1.1 OGL. 

I am talking about someone with 1.0 Section 9 rights looking to use 1.1 OGC under 1.0 terms under the 1.0 OGL and not under the separate revised 1.1 OGL at all.

1.0 OGL is a license WotC made that gives licensees a Section 9 right to use certain other material under certain conditions (authorized versions of the OGL, OGC, etc).

The question is then not whether 1.1 gives rights under its own terms, it is a question of whether under the 1.0 rights that WotC licensed out the 1.0 licensee can use OGC from 1.1.

If a court finds Section 9 of 1.0 ambiguous as applied to the question of 1.1 OGC I think they could find evidence of WotC's announced declarations of intent as relevant for considering whether 1.1 is a version of the OGL under Section 9 of the 1.0 OGL.

I am not arguing it would be determinative. For instance if the announced 1.1 turns out to change direction from what was announced and be clearly a non OGL thing at all the announcement of intent that we have now would not be that persuasive as evidence that the new license that got issued was actually a revised version of the OGL subject to Section 9 of the 1.0 OGL.

I would expect a court to look at the exact terms of the licenses first to see whether 1.1 is a revision of the OGL under the 1.0 OGL Section 9, but a court will also look at other indicators of intent if a provision is considered ambiguous and WotC's public declarations on the subject (both here and in the past) could be relevant.


----------



## DEFCON 1

Couldn't it just be as simple as those people who want to release 5E gaming material in normal print form can continue to do so using 1.0... but if (for example) WotC decides to upgrade D&D Beyond such that it would be able to start allowing 3rd Parties to sell their books _through_ DDB (and have their material incorporated into DDB's character builder, encounter builder etc.)... then to do so the 3rd Party would need to release their product under the more restrictive 1.1?  In other words, if someone wants to use WotC's platforms (whatever they end up being) for their potential sales... then they have to agree to more restrictive licensing terms.

That seems to me to make the most sense as to why a new 1.1 could get made and why some companies / people might agree to releasing under 1.1 rather than 1.0.  But for those people who don't care about using DDB (or whatever other programming or marketing reach WotC might put into place)... they can still use 1.0 without issue and release and market their books the old fashion way.


----------



## Mercurius

MockingBird said:


> Someone on here said it doesn't matter what WotC does, some will cry fowl or something like that.



And the opposite is true, as well: it doesn't matter what WotC does, the majority will defend them and accuse others of crying fowl, being doomsayers, unreasonable, wrong, etc etc.

People are allowed to have different takes. Whether or not the OP is correct in their assessment, I'm unsure and is mostly beside the point. They're highlighting elements of this that strike them discordantly with the spirit of an "open" gaming license. Hopefully they're exaggerating, but let's at least give them the space to express their opinion, without the knee-jerk tribal response, as the multitudes come out to defend their favorite corporation.


----------



## Reynard

DEFCON 1 said:


> Couldn't it just be as simple as those people who want to release 5E gaming material in normal print form can continue to do so using 1.0... but if (for example) WotC decides to upgrade D&D Beyond such that it would be able to start allowing 3rd Parties to sell their books _through_ DDB (and have their material incorporated into DDB's character builder, encounter builder etc.)... then to do so the 3rd Party would need to release their product under the more restrictive 1.1?  In other words, if someone wants to use WotC's platforms (whatever they end up being) for their potential sales... then they have to agree to more restrictive licensing terms.
> 
> That seems to me to make the most sense as to why a new 1.1 could get made and why some companies / people might agree to releasing under 1.1 rather than 1.0.  But for those people who don't care about using DDB (or whatever other programming or marketing reach WotC might put into place)... they can still use 1.0 without issue and release and market their books the old fashion way.



The question isn't about 5E materials,  it is about 1D&D.

Even though, it seems like they would need a whole new license-- not just an update to OGL -- to do that with any effectiveness. If they are trying to lock 1D&D material out of OGL 1.0(a) they can't release the SRD under an updated OGL.

That's as I understand it, anyway.


----------



## Morrus

MockingBird said:


> some will cry fowl or something like that.






Mercurius said:


> accuse others of crying fowl,



I'm sorry, I can't help it.


----------



## kenada

Morrus said:


> I'm sorry, I can't help it.
> 
> View attachment 270609



I wasn’t sure at first, but if you look at the eye closely, there’s something in the corner. This is indeed a crying fowl.


----------



## Mercurius

Morrus said:


> I'm sorry, I can't help it.
> 
> View attachment 270609



LOL...well, at least the double mistake led to a humorous moment.

Next time I'll make sure to cry _foul._


----------



## estar

Dausuul said:


> But Section 9 of the OGL doesn't present those options -- it locks everyone into the second choice. Otherwise there would be no question here; WotC could simply say "1.1 and later."



I think the GPL is far more clear and straight forward than what Wizards did. However intent holds great weight with the courts. To me it is clear it looks like Wizard was trying to do the same thing as clause 9 of the GPL v2. However a wizard's lawyer thought they could do a better job of wording and didn't. 


Dausuul said:


> It's a different scenario, because the OGL is in part a device for past WotC to secure the game against mistakes by future WotC. So it's deliberately written to create headaches if WotC tries to do... well, exactly what it _is_ doing: Rewrite the OGL to make it less open and grab more profit for itself.



Yes, we were lucky that we had a brief window of wisdom at WotC and that Ryan Dancey took the initiative to do this.


----------



## pemerton

Voadam said:


> I think you are looking at it from the wrong angle. You are looking at 1.1 as a separate thing on its own and under 1.1 terms and what is licensed out directly under the 1.1 OGL.
> 
> I am talking about someone with 1.0 Section 9 rights looking to use 1.1 OGC under 1.0 terms under the 1.0 OGL and not under the separate revised 1.1 OGL at all.



Sure. But the whole concept of _1.1 OGC_ depends on the terms of OGL v 1.1. It's not a self-standing bundle of content.



Voadam said:


> 1.0 OGL is a license WotC made that gives licensees a Section 9 right to use certain other material under certain conditions (authorized versions of the OGL, OGC, etc).
> 
> The question is then not whether 1.1 gives rights under its own terms, it is a question of whether under the 1.0 rights that WotC licensed out the 1.0 licensee can use OGC from 1.1.



See both my remark just above, and my post upthread. You seem to be assuming that the notion of _OGC from 1.1_ has some sort of self-standing meaning. But I don't see how it can. It depends significantly, perhaps entirely, on the wording of OGL v 1.1 which is the licence under which WotC offers to license that content to other parties, including those who are existing licensees under the OGL v 1.0/10a.



Voadam said:


> If a court finds Section 9 of 1.0 ambiguous as applied to the question of 1.1 OGC I think they could find evidence of WotC's announced declarations of intent as relevant for considering whether 1.1 is a version of the OGL under Section 9 of the 1.0 OGL.
> 
> I am not arguing it would be determinative. For instance if the announced 1.1 turns out to change direction from what was announced and be clearly a non OGL thing at all the announcement of intent that we have now would not be that persuasive as evidence that the new license that got issued was actually a revised version of the OGL subject to Section 9 of the 1.0 OGL.
> 
> I would expect a court to look at the exact terms of the licenses first to see whether 1.1 is a revision of the OGL under the 1.0 OGL Section 9, but a court will also look at other indicators of intent if a provision is considered ambiguous and WotC's public declarations on the subject (both here and in the past) could be relevant.



I think the issue of construction will turn on the terms of the two licences. My contract law knowledge is mostly Australian and the UK, and I'll readily accept that the US might have a more relaxed rule about the admission of parol evidence. (I've just quickly skimmed the wikipedia entry on it: Parol evidence rule - Wikipedia)

But even in a more liberal jurisdiction, I don't see how the words of a press release could be led as evidence of meaning and intention in contractual negotiation. And nor do I see how they could give rise to an estoppel.


----------



## pemerton

Reynard said:


> seems like they would need a whole new license-- not just an update to OGL -- to do that with any effectiveness. If they are trying to lock 1D&D material out of OGL 1.0(a) they can't release the SRD under an updated OGL.



In the case of statute law, we have rules - the rules of legislative procedure and statutory interpretation - for working out whether or not a new bit of law is a revision/update (amendment or repeal) to an old bit of law. This includes doctrines like that of implied repeal.

But the OGL is not a statute. It's a private law agreement. So the concept of _just an update to OGL_ / _updated OGL_ isn't one that can just be used as if it is self-evident what it means, and self-evident what would count as such. Whether a new private law instrument constitutes an update to, or revision of, a prior one will depend on the construction of both the old and the new instruments.

Another way to look at it is this: under the OGL 1.0/1.0a, WotC has not made a binding promise to anyone about the manner in which it will offer licenses for its future work. (Eg no one tried to argue that offering the 4e SRD under the GSL was a breach of contract with OGL parties.) So it can offer to license the revised SRD under whatever terms it wants. Suppose, in those terms, it uses the phrase "Open Game Content". Will that phrase, in itself, enliven the rights that existing OGL parties have as per section 9 of the OGL v 1.0/1.0a? I don't see how that question can possibly be answered without knowing what the rest of the OGL v 1.1 says.

@Voadam, I'm tagging you because this also adds to my reply to your just upthread.


----------



## see

Voadam said:


> I think you are looking at it from the wrong angle. You are looking at 1.1 as a separate thing on its own and under 1.1 terms and what is licensed out directly under the 1.1 OGL.
> 
> I am talking about someone with 1.0 Section 9 rights looking to use 1.1 OGC under 1.0 terms under the 1.0 OGL and not under the separate revised 1.1 OGL at all.



My point to you, here, would be to ask you why do you currently think _anything_ in the One D&D SRD would be designated "Open Game Content"?

The post on D&D Beyond does not, at any point, mention "Open Game Content". It mentions the OGL, and says there'll be an SRD. We know SRDs can be released without containing Open Game Content, because the "4th Edition System Reference Document" did _exactly_ that.

The reasonably obvious move I see is for WotC to call the new license the OGL 1.1, but to not designate any part of the new SRD as Open Game Content.

This creates a situation where, at least on the surface,_ all_ existing Open Game Content released under the OGL 1.0a can, per Section 9 of that license, be used in products licensed under the new OGL 1.1 (because the OGL 1.1 is a WotC-authorized version of the Open Game License), but none of the new SRD or material derived from the new SRD can be used under the OGL 1.0a (because nothing in the new SRD is Open Game Content, it's some "New Classification of Content" only usable under the OGL 1.1).

Now, this of course would create a legal complication; can someone who released Open Game Content under the OGL 1.0a stop reuse of their content under an OGL 1.1 if the terms are substantively different than the OGL 1.0a? To which the response is, if Section 9 of the OGL 1.0a doesn't allow a new authorized license to have substantively different terms, wouldn't that effectively be declaring the whole of Section 9 as a nullity? And I personally have _no idea_ what the courts conclude from there.


----------



## mamba

see said:


> This creates a situation where, at least on the surface,_ all_ existing Open Game Content released under the OGL 1.0a can, per Section 9 of that license, be used in products licensed under the new OGL 1.1 (because the OGL 1.1 is a WotC-authorized version of the Open Game License), but none of the new SRD or material derived from the new SRD can be used under the OGL 1.0a (because nothing in the new SRD is Open Game Content, it's some "New Classification of Content" only usable under the OGL 1.1).



interesting idea. I guess it boils down to two things

1) how important is that difference to your product? If it isn’t (and I am not sure there are many cases where it would be) then there is no reason to switch to 1.1

2) is anything preventing ‘us’ from forward-cloning 1DD under 1.0a, similar to how all the retroclones came out of it? And again I do not see anything that prevents that, as rules cannot be protected (just the wording) and changes like race to species cannot be protected either. No idea if anyone will try and what WotC would do if they did. My guess is that it would stand, but it might cost more to find out than anyone is willing to risk.

I am not seeing much interest in people picking up 1.1, admittedly my sample size is not large


----------



## Voadam

see said:


> My point to you, here, would be to ask you why do you currently think _anything_ in the One D&D SRD would be designated "Open Game Content"?
> 
> The post on D&D Beyond does not, at any point, mention "Open Game Content". It mentions the OGL, and says there'll be an SRD. We know SRDs can be released without containing Open Game Content, because the "4th Edition System Reference Document" did _exactly_ that.
> 
> The reasonably obvious move I see is for WotC to call the new license the OGL 1.1, but to not designate any part of the new SRD as Open Game Content.
> 
> This creates a situation where, at least on the surface,_ all_ existing Open Game Content released under the OGL 1.0a can, per Section 9 of that license, be used in products licensed under the new OGL 1.1 (because the OGL 1.1 is a WotC-authorized version of the Open Game License), but none of the new SRD or material derived from the new SRD can be used under the OGL 1.0a (because nothing in the new SRD is Open Game Content, it's some "New Classification of Content" only usable under the OGL 1.1).
> 
> Now, this of course would create a legal complication; can someone who released Open Game Content under the OGL 1.0a stop reuse of their content under an OGL 1.1 if the terms are substantively different than the OGL 1.0a? To which the response is, if Section 9 of the OGL 1.0a doesn't allow a new authorized license to have substantively different terms, wouldn't that effectively be declaring the whole of Section 9 as a nullity? And I personally have _no idea_ what the courts conclude from there.



That is possible. They could do a convoluted bait and switch to be technically consistent with their statement of an OGL version with an "SRD" and release no OGC under it.

Their statement does not seem to indicate that they plan to change the SRD from OGC though as part of whats changing with 1.1.

"So, here are the facts:

1. Will One D&D include an SRD/be covered by an OGL?

Yes. First, we’re designing One D&D with fifth edition backwards compatibility, so all existing creator content that is compatible with fifth edition will also be compatible with One D&D. Second, we will update the SRD for One D&D as we complete its development—development that is informed by the results of playtests that we’re conducting with hundreds of thousands of D&D players now.

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 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.

So, what’s changing?

*First,* we’re making sure that OGL 1.1 is clear about what it covers and what it doesn’t. OGL 1.1 makes clear it only covers material created for use in or as TTRPGs, and those materials are only ever permitted as printed media or static electronic files (like epubs and PDFs). Other types of content, like videos and video games, are only possible through the Wizards of the Coast Fan Content Policy or a custom agreement with us. To clarify: Outside of printed media and static electronic files, the OGL doesn’t cover it.


Will this affect the D&D content and services players use today? It shouldn’t. The top VTT platforms already have custom agreements with Wizards to do what they do. D&D merchandise, like minis and novels, were never intended to be part of the OGL and OGL 1.1 won’t change that. Creators wishing to leverage D&D for those forms of expression will need, as they always have needed, custom agreements between us.  


*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.  


What does this mean for you as a creator? If you’re making share-alike content, very little is going to change from what you’re already used to.  

If you’re making commercial content, relatively little is going to change for most creators. For most of you who are selling custom content, here are the new things you’ll need to do:  

Accept the license terms and let us know what you’re offering for sale 
Report OGL-related revenue annually (if you make more than $50,000 in a year) 
Include a Creator Product badge on your work"
They could be planning on releasing the 1.1 SRD as non-OGC and this is a sleight of hand PR release, or they could change their mind before it is actually released and make it non-OGL at all, but from here the OGC nature of the SRD is not part of what they say is changing.

Practically then you would have people using the 1.1 "SRD" directly being bound by 1.1 but those wanting to do 1.0 OGL terms would only be back to going with using the 5e SRD base released in the current 1.0 to write stuff compatible with OneDnD without citing the 1.1 "SRD", which would be similar to Goodman Games early 4e stuff that used the OGL to put out 4e stuff before there was an acceptable GSL that they used (although 5e to OneDnD is expected to be a lot closer and therefore easier than 3.5 to 4e).


----------



## GMforPowergamers

Those of you with Law backgrounds can you answer me this, because I am getting conflicting answers.

If there is an OGL v1 with SRD that has a class in it, does that mean you can use ANY version later published of that class?

Looking at the cleric right now. The subclass levels have changed (along with a few tweeks here and there). Can you use the SRD with the 2014 cleric but publish it useing the 2024 cleric even if the 2024 cleric is NOT relased as open under that OGL but under a diffrent more restrictive one?

Amended add on to that qustion
How much of a change would the cleric (or any class) have to go through for a lawyer to argue "They are using the wrong license for this and as such are not subject to the protections of the old OGL?" 
I know 4e was a MUCH bigger change and people got away with it... but if WotC/Hasbro wanted to throw there weight around and hit someone with a C&D and if they didn't a full lawsuit (even if only 1 to scare others) how hard is it to argue in court?


----------



## pemerton

see said:


> The reasonably obvious move I see is for WotC to call the new license the OGL 1.1, but to not designate any part of the new SRD as Open Game Content.
> 
> This creates a situation where, at least on the surface,_ all_ existing Open Game Content released under the OGL 1.0a can, per Section 9 of that license, be used in products licensed under the new OGL 1.1 (because the OGL 1.1 is a WotC-authorized version of the Open Game License), but none of the new SRD or material derived from the new SRD can be used under the OGL 1.0a (because nothing in the new SRD is Open Game Content, it's some "New Classification of Content" only usable under the OGL 1.1).



This is an interesting variation on the idea that I'd had:



pemerton said:


> Whether a new private law instrument constitutes an update to, or revision of, a prior one will depend on the construction of both the old and the new instruments.
> 
> Another way to look at it is this: under the OGL 1.0/1.0a, WotC has not made a binding promise to anyone about the manner in which it will offer licenses for its future work. (Eg no one tried to argue that offering the 4e SRD under the GSL was a breach of contract with OGL parties.) So it can offer to license the revised SRD under whatever terms it wants. Suppose, in those terms, it uses the phrase "Open Game Content". Will that phrase, in itself, enliven the rights that existing OGL parties have as per section 9 of the OGL v 1.0/1.0a? I don't see how that question can possibly be answered without knowing what the rest of the OGL v 1.1 says.


----------



## Morrus

GMforPowergamers said:


> Those of you with Law backgrounds can you answer me this, because I am getting conflicting answers.
> 
> If there is an OGL v1 with SRD that has a class in it, does that mean you can use ANY version later published of that class?



Define “use”? It’s a word people throw round a lot, and can mean anything from “reprint word for word”, “rephrase”, “reference”, or “make something compatible with”. And other things.


----------



## GMforPowergamers

Morrus said:


> Define “use”? It’s a word people throw round a lot, and can mean anything from “reprint word for word”, “rephrase”, “reference”, or “make something compatible with”. And other things.



Okay I mean make a new subclass for...

Like in my example for cleric lets say I am a big company and I want to put out the "mystic domain" but hav it use the layout for levels from 1D&D can I use the SRD from the 5e 2014 book


----------



## Morrus

GMforPowergamers said:


> Okay I mean make a new subclass for...
> 
> Like in my example for cleric lets say I am a big company and I want to put out the "mystic domain" but hav it use the layout for levels from 1D&D can I use the SRD from the 5e 2014 book



If your subclass consisting of your original text says “level 1” or “level 3” or “level 99” the OGL has nothing to say about that. 

Layout? That’s graphic design. Nothing to do why the OGL. 3PPs generally use their own trade dress.


----------



## pemerton

GMforPowergamers said:


> Those of you with Law backgrounds can you answer me this, because I am getting conflicting answers.
> 
> If there is an OGL v1 with SRD that has a class in it, does that mean you can use ANY version later published of that class?
> 
> <snip>
> 
> Amended add on to that qustion
> How much of a change would the cleric (or any class) have to go through for a lawyer to argue "They are using the wrong license for this and as such are not subject to the protections of the old OGL?"



The OGL doesn't license _classes_, or other D&D concepts.

It licenses _copyrighted works_.

So if you want to publish a book that talks about clerics, the relevant questions are (i) does my book contain material in respect of which someone else (eg WotC) owns the copyright, _or_ that would in some other way infringe copyright that they enjoy? If it does, has that person licensed me to publish the material in spite of their copyright?



GMforPowergamers said:


> Looking at the cleric right now. The subclass levels have changed (along with a few tweeks here and there). Can you use the SRD with the 2014 cleric but publish it useing the 2024 cleric even if the 2024 cleric is NOT relased as open under that OGL but under a diffrent more restrictive one?
> 
> <snip>
> 
> I know 4e was a MUCH bigger change and people got away with it... but if WotC/Hasbro wanted to throw there weight around and hit someone with a C&D and if they didn't a full lawsuit (even if only 1 to scare others) how hard is it to argue in court?



If you were to reproduce the text found in a new WotC publication (say, an Unearthed Arcana document, or a new PHB, or a revised SRD) then the answer to the first question is probably _yes_ - as in, WotC probably enjoys copyright in the text you are trying to reproduce.

And as per @S'mon's posts upthread (see from around post 241 to post 245), that text is probably not licensed under the existing OGL v 1.0a as that applies to the current (non-revised) SRD.

If you were to were produce new text, written by you, that conveys the same information as WotC's new text, then you would enjoy copyright in your new text. Would it nevertheless infringe WotC's copyright? That would depend on the details, some of which S'mon fleshes out in those posts - eg is your text derivative of some WotC text in respect of which you do not enjoy a licence?

My very rough intuition is that if you are publishing a _new_ cleric sub-class, invented by you, that happens to gain sub-class features as the same level as a cleric would as described in WotC's Unearthed Arcana, new PHB or revised SRD, then you are probably not infringing WotC's copyright. Whereas if you are trying to reproduce a cleric sub-class that WotC has published, using your own words, the argument that you are infringing their copyright becomes stronger.

Some people will reiterate that game mechanics can't be copyrighted. This is true. But WotC's text that talks about (eg) how a life cleric gest such-and-such an ability at such-and-such a level is, at least arguably, not just a game mechanic. It is also a text that tells us about the (imaginary) priests of the gods of life. WotC enjoys copyright in that text, and it is the relationship of your text to that text (and to other similar text that appears in WotC's Unearthed Arcana, new PHB or revised SRD) that is of most relevance to whether or not you are infringing WotC's copyright.

I want to reiterate that my intuition is very rough, and you could not confidently act on it without getting legal advice which was able to refer to the actual details of _your proposed publication_ and _the WotC publication_ that you are inspired by.


----------



## kenada

mamba said:


> 2) is anything preventing ‘us’ from forward-cloning 1DD under 1.0a, similar to how all the retroclones came out of it? And again I do not see anything that prevents that, as rules cannot be protected (just the wording) and changes like race to species cannot be protected either. No idea if anyone will try and what WotC would do if they did. My guess is that it would stand, but it might cost more to find out than anyone is willing to risk.



WotC could decide that protecting their plans for the 2024 version of D&D is important enough (compared to doing so regarding legacy material) to issue C&Ds and take people to court.


----------



## mamba

kenada said:


> WotC could decide that protecting their plans for the 2024 version of D&D is important enough (compared to doing so regarding legacy material) to issue C&Ds and take people to court.



Which is my guess too, see my last sentence. Clearly quite the departure from the previous stance / OGL 1.0a


----------



## see

Voadam said:


> That is possible. They could do a convoluted bait and switch to be technically consistent with their statement of an OGL version with an "SRD" and release no OGC under it.



Well, the way _I'd_ do it, hypothetically, wouldn't be _particularly_ bait-and-switch-like; the "New Classification Content" would for all practical purposes be "Open Game Content for the OGL 1.1, but with a different label to stop people from arguing they can backport it to OGL 1.0a under that license's Section 9".

At which point, sure, there are people who can choose to try to do forward-compatible material under the OGL 1.0a. But everything they release is "Open Game Content" that publishers can use under the OGL 1.1 (since I provided for reusing Open Game Content under the OGL 1.1, and Section 9 of the OGL 1.0a says they can), while the stuff the OGL 1.1 publishers release as "New Classification Content" can't be dragged back into the 1.0a ecosystem. If in this hypothetical universe I had set up the carrots for using the new license and new SRD right, publishers pretty much go along and move into the OGL 1.1 universe rather than stick with the OGL 1.0a.

And, of course, to help make sure I'm doing things right, and the carrots are all attractive enough, I'd publicly release a draft of the OGL 1.1 in early 2023, a year or more in advance of the new edition, specifically so that I can get reactions and feedback in advance, and work out any rough spots necessary to gain the publishers' acceptance of the new approach.

Some people will still, of course, object; after all, my new OGL 1.1 is going to be more limited in what sorts of products can be made and has a royalty scheme. They would quite accurately say "The OGL 1.1 is not an Open License", at least per the original Open Gaming Foundation philosophy ("That game rules and material that use those rules, should be free to copy, modify and distribute.") But, a handful of disgruntled fans aren't what I'm worried about; I'm after publisher buy-in to a model that is more advantageous for WotC than the previous model.


----------



## Greg Benage

see said:


> At which point, sure, there are people who can choose to try to do forward-compatible material under the OGL 1.0a. But everything they release is "Open Game Content" that publishers can use under the OGL 1.1 (since I provided for reusing Open Game Content under the OGL 1.1, and Section 9 of the OGL 1.0a says they can), while the stuff the OGL 1.1 publishers release as "New Classification Content" can't be dragged back into the 1.0a ecosystem. If in this hypothetical universe I had set up the carrots for using the new license and new SRD right, publishers pretty much go along and move into the OGL 1.1 universe rather than stick with the OGL 1.0a.



This is where I put my money, but "New Classification Content" should be called "One System Rules" for maximum trolling value. Also, I'm not sure about the definition of "carrot" in this scenario.


----------



## Reynard

Voadam said:


> *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.



I keep thinking about this and how this is the biggest departure from the previous implementation of the OGL. WotC trying to decide who gets to make money off open content, as support for their games, seems really predatory in comparison to the original intent of the OGL.


----------



## Hussar

Reynard said:


> I keep thinking about this and how this is the biggest departure from the previous implementation of the OGL. WotC trying to decide who gets to make money off open content, as support for their games, seems really predatory in comparison to the original intent of the OGL.



Yes, because they are being predatory for distinguishing between some random guy who is banging out stat blocks on Reddit and a company, making tens or maybe hundreds of thousands of dollars per year based on something WotC owns.

Note, the ONLY thing they've said that someone who is making a living off of the OGC has to do is report their sales.  That's it.  Oh, and include some sort of compatibility badge or something like that so people understand that this is a D&D product, even if it's not official.  No one, other than a tiny, tiny fraction of creators has to pay anything.  

This is a definition of predatory that I was previously unaware of.


----------



## pemerton

Hussar said:


> This is a definition of predatory that I was previously unaware of.



I've got no particular stake in this OGL/SRD issue: if I was to play D&D, it would be either AD&D or 4e and I have all the material I need on my bookshelf.

For producers of OGL-licensed material, I can see that a change in the terms on which they access their market is undesirable. But in commercial and legal terms they don't have an _entitlement_ against WotC that it continue to license future works on the same terms as previous ones.


----------



## Hussar

pemerton said:


> I've got no particular stake in this OGL/SRD issue: if I was to play D&D, it would be either AD&D or 4e and I have all the material I need on my bookshelf.
> 
> For producers of OGL-licensed material, I can see that a change in the terms on which they access their market is undesirable. But in commercial and legal terms they don't have an _entitlement_ against WotC that it continue to license future works on the same terms as previous ones.



"I don't like it" =\= predatory either though.

No one, when they were making the OGL, could have predicted the following 20 years.  They wrote the OGL based on the previous 20 years.  Which, fair enough.  But, at the time of the OGL, we're talking a tiny, tiny, niche product with a miniscule industry.  

Now, they're talking about WotC hitting that billion dollar mark.  IOW, it's mainstream.  Which means that the exigencies of the market are very, very different.  Like I said, a company could produce an OGL program that generates content - a module creation engine.  This isn't some far away in the future thing.  This is plausible in the very near future.  Suddenly, that company basically yoinks D&D away from WotC with the killer app.

That's the kind of thing they are trying to protect against, IMO.


----------



## see

Greg Benage said:


> Also, I'm not sure about the definition of "carrot" in this scenario.



I mean, there might not be any carrots in reality. But sticking to the hypothetical scenario where _I'm_ running this for WotC (as a hypothetical employee under the limits that are pretty much listed under the stuff that was posted to D&D Beyond), I'd be sure to toss in a few.

After all, ultimately, WotC is operating under the constraint that 3PPs, now and forevermore, can use the universe of Open Game Content that already exists under the OGL 1.0a. 3PPs (including new start-ups) will have to _prefer_ working under the OGL 1.1 to get them to take it up, which means there's a natural limit to how bad the deal can be. If WotC wants people to report revenue and potentially pay royalties, they are going to have to offer _something_ to make that worthwhile.


----------



## GMforPowergamers

Hussar said:


> "I don't like it" =\= predatory either though.
> 
> No one, when they were making the OGL, could have predicted the following 20 years.  They wrote the OGL based on the previous 20 years.  Which, fair enough.  But, at the time of the OGL, we're talking a tiny, tiny, niche product with a miniscule industry.
> 
> Now, they're talking about WotC hitting that billion dollar mark.  IOW, it's mainstream.  Which means that the exigencies of the market are very, very different.  Like I said, a company could produce an OGL program that generates content - a module creation engine.  This isn't some far away in the future thing.  This is plausible in the very near future.  Suddenly, that company basically yoinks D&D away from WotC with the killer app.
> 
> That's the kind of thing they are trying to protect against, IMO.



I'm not entirely sure predatory is the right word either... I don't know if the OGL was good or bad overall, but it has been the way things have worked for 22 years. changing it now going forward doesn't look great. Now maybe that is something that has to be done going forward no matter the look, but it looks bad.


----------



## Reynard

Hussar said:


> Yes, because they are being predatory for distinguishing between some random guy who is banging out stat blocks on Reddit and a company, making tens or maybe hundreds of thousands of dollars per year based on something WotC owns.
> 
> Note, the ONLY thing they've said that someone who is making a living off of the OGC has to do is report their sales.  That's it.  Oh, and include some sort of compatibility badge or something like that so people understand that this is a D&D product, even if it's not official.  No one, other than a tiny, tiny fraction of creators has to pay anything.
> 
> This is a definition of predatory that I was previously unaware of.



The OGL was designed so anyone could produce whatever they wanted in an open environment with no input from or responsibility to WotC (or, importantly, whoever buys it).

Changing that now because some people at WotC see money on the table or some 3PPs doing too well or whatever is predatory. Also petulant.

The OGL wasn't intended to be WotC magnanimously letting people play in the D&D sandbox so long as they didn't get too big for their britches. It was designed to protect D&D for corporate BS. And it exactly served its purpose the last time WotC tried to circumvent it, giving rise to Paizo and Pathfinder.

Hopefully it does so again if WotC pushes forward with this not-GSL and 1D&D is received in a manner it deserves because of it.


----------



## GMforPowergamers

Reynard said:


> The OGL was designed so anyone could produce whatever they wanted in an open environment with no input from or responsibility to WotC (or, importantly, whoever buys it).
> 
> Changing that now because some people at WotC see money on the table or some 3PPs doing too well or whatever is predatory. Also petulant.
> 
> The OGL wasn't intended to be WotC magnanimously letting people play in the D&D sandbox so long as they didn't get too big for their britches. It was designed to protect D&D for corporate BS. And it exactly served its purpose the last time WotC tried to circumvent it, giving rise to Paizo and Pathfinder.
> 
> Hopefully it does so again if WotC pushes forward with this not-GSL and 1D&D is received in a manner it deserves because of it.



question (and an honest one not arguing for or against).  Given that we know they are doing this, would it be better for us the consumer for it to work for WotC and still get good main line consistent community, or for it to blow up on WotC and us get a fractured PF/4e situation again?

I see pros and cons on both sides


----------



## Art Waring

Hussar said:


> Oh, and include some sort of compatibility badge or something like that so people understand that this is a D&D product, even if it's not official. No one, other than a tiny, tiny fraction of creators has to pay anything.



I have pointed this out twice already...

The creators badge is a direct callback to the d20 STL, which was trademarked by wotc, and then later revoked. _That means that whatever you publish under the 1.1 ogl has an expiration date_, while anything published under the 1.0a ogl can remain in the marketplace _indefinitely_.

Maybe its not about the money, maybe I want what I create to last beyond my lifetime and not to be bound to another companies trademark.


----------



## Bedrockgames

Hussar said:


> No one, when they were making the OGL, could have predicted the following 20 years.  They wrote the OGL based on the previous 20 years.  Which, fair enough.  But, at the time of the OGL, we're talking a tiny, tiny, niche product with a miniscule industry.




But I think it is fair for those who participate in a niche hobby and industry to comment if they think the original spirit of the OGL is in jeopardy here. Obviously anything we say is speculation as all we have are bulleted descriptions of their intentions with the OGL, and some comments made by Hasbro regarding monetization of D&D. There is plenty of room for misinterpretation here. But it is a hobby with dedicated fans and small publishers who put out books using the OGL. It is certainly their right to do what they want, but people don't have to like it. And it is also the right of fans to comment, and for publishers to object if they think having to report their income to WOTC or potentially give royalties to them is something they find unappealing. I also think a reaction is pretty understandable given the original spirit of the OGL (and how it came on the heels of concern over D&D being lost forever because the IP holder doesn't publish it, as well as on the heels of concern about the corporate behavior of TSR at the time: which had angered a lot of gamers). That may not be what is going on here. I don't have a crystal ball. But I do share a lot of peoples' sense that big changes will be underway and they may be changes a lot of people won't like. 

I'm with Pemerton here in that I don't have a lot of investment in what direction this goes (I usually run/playt 2E or basic, and I have all the books I need to do that). I also generally play a lot of other games besides D&D (so I am not always running things with the d20 system). But in terms of the culture of the hobby, which I think is important, and I think is shaped by whoever controls D&D, I think it is important for people to express concerns they have.


----------



## Reynard

GMforPowergamers said:


> question (and an honest one not arguing for or against).  Given that we know they are doing this, would it be better for us the consumer for it to work for WotC and still get good main line consistent community, or for it to blow up on WotC and us get a fractured PF/4e situation again?
> 
> I see pros and cons on both sides



Without any evidence, I assert that the worst thing that could have happened to D&D has happened: it has found enough success to attract the attention of the corporate suits. It is possible that their involvement won't ruin it, but I doubt it.

As to your question: I have no idea what would be "best" but if WotC puts out a not-GSL, that will be where I draw the line. I won't buy the new edition/revision and won't support companies that sign up. And if a Paizo appears to "keep 5E alive" I will support them. I don't even especially like 5E, but I really, really like the OGL and what it has done for the gaming community and industry, and my own freelance work, for the past 20 odd years and trying to kill it is, for me, a slap in the face to D&D fans.


----------



## Greg Benage

see said:


> After all, ultimately, WotC is operating under the constraint that 3PPs, now and forevermore, can use the universe of Open Game Content that already exists under the OGL 1.0a. 3PPs (including new start-ups) will have to _prefer_ working under the OGL 1.1 to get them to take it up, which means there's a natural limit to how bad the deal can be. If WotC wants people to report revenue and potentially pay royalties, they are going to have to offer _something_ to make that worthwhile.



I think Wizards has to be sure they bring their customers with them. This can't be a repeat of the move from 3.5/OGL to 4/GSL. This is subjective, but I haven't seen anything yet in the playtest that's likely to significantly fracture the fanbase and create an appealingly viable market for legacy content. Indeed, I think they have a conscious aversion to that kind of change. And the model promises this kind of incremental change _forever_. It's a "boil the frog" strategy that's much less likely to create another Paizo.

_If _they bring their customers with them, then safe-harbor access to the future D&D market is a pretty tasty carrot. Whether it's tasty enough probably depends on the royalty details and the product strategies of the individual publishers. From Wizards' perspective, though, _as long as my customers come with me_, I really don't think I care terribly much about whether _most_ large 3PPs do.

That said, if I'm running this for Wizards, I probably care about _some_ of them. If I do, I'm going to offer some more carrots. But I'll offer them individually, in dialog with those publishers. I'll discuss what kind of royalty structure makes sense. I won't be looking to write carrots into the licensing agreement. I believe @Morrus has mentioned that Wizards is already reaching out--whether or not carrots are in hand, I have no idea.


----------



## Yora

So, has anyone seen the license yet?


----------



## GMforPowergamers

Yora said:


> So, has anyone seen the license yet?



no we think in the next few weeks'


----------



## dave2008

Reynard said:


> ... but I really, really like the OGL and what it has done for the gaming community and industry, and my own freelance work, for the past 20 odd years and trying to kill it is, for me, a slap in the face to D&D fans.



I don't think they are trying to kill it. They want 3PP to thrive so they can make money from it. Achieving both is a very hard needle to thread. However, I completely understand it and don't blame WotC for trying. It was what any reasonable business should do IMO. Do I want these revised terms - no, but I will likely be able to live with them. I just hope they are willing to listen to the community before they release the final draft.


----------



## GMforPowergamers

dave2008 said:


> I don't think they are trying to kill it. They want 3PP to thrive so they can make money from it. Achieving both is a very hard needle to thread. However, I completely understand it and don't blame WotC for trying. It was what any reasonable business should do IMO. Do I want these revised terms - no, but I will likely be able to live with them. I just hope they are willing to listen to the community before they release the final draft.



also think about how spoiled we are with the OGL... if TSR put out the GSL in 97 (much more restrictive then this) and had a fee if someone made 250,000 or more... we would have called it amazing and the best thing ever.


----------



## Reynard

dave2008 said:


> I don't think they are trying to kill it. They want 3PP to thrive so they can make money from it. Achieving both is a very hard needle to thread. However, I completely understand it and don't blame WotC for trying. It was what any reasonable business should do IMO. Do I want these revised terms - no, but I will likely be able to live with them. I just hope they are willing to listen to the community before they release the final draft.



Here's the thing: WotC isn't going to produce a Dungeons of Drakkenheim (just as an example). Try to go the GSL-like route reduces the probability anyone else will. The existence of such products is a net good for D&D. This has been proven out over decades. What does WotC actually stand to gain? A few thousand dollars a year? A few hundred thousand? Is that worth the hit to community trust?


----------



## dave2008

Reynard said:


> Here's the thing: WotC isn't going to produce a Dungeons of Drakkenheim (just as an example). Try to go the GSL-like route reduces the probability anyone else will. The existence of such products is a net good for D&D. This has been proven out over decades. What does WotC actually stand to gain? A few thousand dollars a year? A few hundred thousand? Is that worth the hit to community trust?



We don't know yet.  The devil is in the details and we don't have those yet.


----------



## Reynard

GMforPowergamers said:


> also think about how spoiled we are with the OGL... if TSR put out the GSL in 97 (much more restrictive then this) and had a fee if someone made 250,000 or more... we would have called it amazing and the best thing ever.



Sure, if you are only thinking like a consumer. You can't just pretend the OGL didn't happen and say "this ain't so bad."


----------



## Reynard

dave2008 said:


> We don't know yet.  The devil is in the details and we don't have those yet.



Yes, it's technically possible they will reverse course. But they came out with pretty specific information for that to be in the cards.


----------



## mamba

Greg Benage said:


> That said, if I'm running this for Wizards, I probably care about _some_ of them. If I do, I'm going to offer some more carrots. But I'll offer them individually, in dialog with those publishers.



individual carrots do not work very well in the context of a universal license like the OGL. At that point you are basically abandoning the concept, or at least willing to sweeten the deal beyond that for the ‘big players’

My take was more that they get some input into what the final terms actually are, so they switch over, rather than getting custom licenses


----------



## dave2008

Reynard said:


> Yes, it's technically possible they will reverse course. But they came out with pretty specific information for that to be in the cards.



Or they could stay the course, generally, and make things very easy for everyone.


----------



## mamba

Yora said:


> So, has anyone seen the license yet?



no one who can discuss it here


----------



## mamba

GMforPowergamers said:


> also think about how spoiled we are with the OGL... if TSR put out the GSL in 97 (much more restrictive then this) and had a fee if someone made 250,000 or more... we would have called it amazing and the best thing ever.



back then it would have been the best thing up to that point, not so much these days


----------



## GMforPowergamers

Reynard said:


> Sure, if you are only thinking like a consumer.



I (and most of us on here) are just consumers...

As I think back to what I would not have had (relics and rituals, some 3rd party Prestige classes and the scarred lands setting, the laminated serrated weapon qualities) and what that would have meant (no pathfinder split) and guess what that would mean for 5e (an updated fixed 4e instead of going back to 3e style to try to compromise to get PF players back) then as a consumer I personally feel that is a bit of a wash... and right now I would prefer to be doing either 4e, or have 5e be an update to 4e.

HOWEVER then I think about Mutants and Masterminds... and that I love it working with D&D logic.  that MIGHT tip the scale back to wanting the OGL... 

However THEN I think that the creators that spent the last 20ish years making D&D adjacent products might have made there own systems, and as such right now we would have more verity... and that feels like it MIGHT tip the scale back to better without it.

So as a Consumer, I don't know if my gaming is better or worse for it.


----------



## GMforPowergamers

mamba said:


> back then it would have been the best thing up to that point, not so much these days



right that was my point this isn't bad, it's just not as good as things that came before...

it's like last night if I had (and I wish I had) gone to the steak house that costs me $100 everytime I go for a jucy perfect huge stake with a cool salad and vegies and a potato so big I can't understand where they get them...
then tonight I go to the local pizza place I like... is the pizza anywhere near as good as that steak... no not by a mile. Do I like the pizza yes. Is the pizza evaluated on it's own good, yes it is.

(edit: I am not upset I had left overs last night and am planing on making home made pasta tonight...)


----------



## Reynard

dave2008 said:


> Or they could stay the course, generally, and make things very easy for everyone.



Registering products is an encumbrance. Reporting earnings is an encumbrance. Paying royalties is an encumbrance. How is staying the course they have laid out "very easy for everyone" compared to the status quo?


----------



## darjr

I’ve heard WotC and then Hasbro has been killing D&D for 22 years now.


----------



## Greg Benage

Reynard said:


> Here's the thing: WotC isn't going to produce a Dungeons of Drakkenheim (just as an example). Try to go the GSL-like route reduces the probability anyone else will.



I share that concern, but let's probe it a bit. That particular Kickstarter campaign brought in about $1.25 million with 13,000+ backers. Kickstarter takes 5% (someone correct me if that's wrong). @Morrus suggests we could double that to estimate total sales, and let's assume those additional sales are all print products through traditional distribution channels at a 60% discount, just to make this scenario as unfavorable for the publisher as we can.

So total (net) sales are 1.25*.95 + 1.25*.4 = $1,687,500, and we'll just assume that's all in one year. That's $937,500 above the royalty threshold. Let's further assume that the royalty isn't even graduated--it's a flat 10% of net sales above the threshold, so that's a debit of $93,750 on the campaign. If you're the publisher, would you still do the campaign?

If we assume Ghostfire wants a 60% gross margin (that's what FFG wanted back in the dark times pre-Kickstarter), that means their budget to produce the book and add-ons for the campaign is about $675,000. Can you find room in that budget for a $93,750 royalty? I know production standards and associated costs are much higher than they were when I was in the game, but it seems like you definitely _can_? You'd rather keep the money, obviously, but it doesn't seem like that transforms a viable campaign into a non-viable one.

I don't think Wizards is going to go with a flat 10% royalty on net sales above $750,000. But even if they did, I think there'd be reason to expect that campaigns such as _Dungeons of Drakkenheim_ would still happen.

ETA: corrected a math error.


----------



## mamba

GMforPowergamers said:


> right that was my point this isn't bad, it's just not as good as things that came before...



imo it is pretty bad. We were here / close to here with the GST and that definitely did not work out, this is not much better

We will know more soon, but for now that is my take on it.


----------



## GMforPowergamers

mamba said:


> imo it is pretty bad. We were here / close to here with the GST and that definitely did not work out, this is not much better
> 
> We will know more soon, but for now that is my take on it.



I don't think the 4e GSL was that bad on it's own either.


----------



## Reynard

darjr said:


> I’ve heard WotC and then Hasbro has been killing D&D for 22 years now.



Who's talking about killing D&D?


----------



## Reynard

Greg Benage said:


> I share that concern, but let's probe it a bit. That particular Kickstarter campaign brought in about $1.25 million with 13,000+ backers. Kickstarter takes 5% (someone correct me if that's wrong). @Morrus suggests we could double that to estimate total sales, and let's assume those additional sales are all print products through traditional distribution channels at a 60% discount, just to make this scenario as unfavorable for the publisher as we can.
> 
> So total (net) sales are 1.25*.95 + 1.25*.4 = $1,687,500, and we'll just assume that's all in one year. That's $937,500 above the royalty threshold. Let's further assume that the royalty isn't even graduated--it's a flat 10% of net sales above the threshold, so that's a debit of $93,750 on the campaign. If you're the publisher, would you still do the campaign?
> 
> If we assume Ghostfire wants a 60% gross margin (that's what FFG wanted back in the dark times pre-Kickstarter), that means their budget to produce the book and add-ons for the campaign is about $675,000. Can you find room in that budget for a $93,750 royalty? I know production standards and associated costs are much higher than they were when I was in the game, but it seems like you definitely _can_? You'd rather keep the money, obviously, but it doesn't seem like that transforms a viable campaign into a non-viable one.
> 
> I don't think Wizards is going to go with a flat 10% royalty on net sales above $750,000. But even if they did, I think there'd be reason to expect that campaigns such as _Dungeons of Drakkenheim_ would still happen.
> 
> ETA: corrected a math error.



Sure, if the only concern were "if we make it BIG we have to pay a royalty" that might not be too High a hudle. But what if the registration and earning reports are a pain? What if the license is rescindible or can be altered without notice? I'm not saying you won't ever get projects like this. I'm saying they will be less common. That $97K you mention is a pittance to WotC. And even if there were 20 of them a year, $2M is still nothing.

If this is the path they take, it's clear the new leadership does not understand the value the 3PP ecosystem has provided D&D for decades.


----------



## MockingBird

Reynard said:


> Who's talking about killing D&D?



In one of other threads on this subject someone was saying WotC is sucking the air out of the industry and would be better if they went bye bye. Not an exact quote but along those lines.


----------



## dave2008

Reynard said:


> Registering products is an encumbrance. Reporting earnings is an encumbrance. Paying royalties is an encumbrance. How is staying the course they have laid out "very easy for everyone" compared to the status quo?



First, I wasn't comparing it to the status quo. I was just trying to suggest there might be a way for them to work the details of the OGL, SRD, etc. such that it is easy for 3PP to adopt OGL 1.1.  I don't know what that is, but there might be a way. It might need some revisions to previous statements, but not a complete reversal as you mentioned. To be clear, I was not and I am not suggestion that is where we are now.


----------



## Reynard

dave2008 said:


> First, I wasn't comparing it to the status quo. I was just trying to suggest there might be a way for them to work the details of the OGL, SRD, etc. such that it is easy for 3PP to adopt OGL 1.1.  I don't know what that is, but there might be a way. It might need some revisions to previous statements, but not a complete reversal as you mentioned. To be clear, I was not and I am not suggestion that is where we are now.



Again, I don't quite grok what their motivation is for changing it all. it has done wonders for 5E -- as has a very permissive fan content policy -- and trying to fix things that aren't broke always suggests someone is trying to put their "stamp" on things, however unnecessary or even harmful it might be.

And look, I am not trying to convince anyone of anything. I am just saying if OGL 1.1 comes out looking like they previewed I won't be supporting the new version of D&D or WotC, and tried to explain why.


----------



## mamba

GMforPowergamers said:


> I don't think the 4e GSL was that bad on it's own either.



I am not saying it will kill D&D or anything, but if you look at what happened to 3PP with the GST, the license never got widely adopted and 3PPs disappeared from the D&D / 4e ecosystem, that is the pretty bad I meant


----------



## Reynard

MockingBird said:


> In one of other threads on this subject someone was saying WotC is sucking the air out of the industry and would be better if they went bye bye. Not an exact quote but along those lines.



There's been like 3 quarters in 25 years that WotC hasn't dominated everything in the market. A healthy D&D that brings new players into the hobby is a net good thing. But, frankly, I think corporations that measure success in "billions" taking notice of D&D has the potential to be ultimately bad for the game and hobby as we know it.


----------



## GMforPowergamers

mamba said:


> I am not saying it will kill D&D or anything, but if you look at what happened to 3PP with the GST, the license never got widely adopted and 3PPs disappeared from the D&D / 4e ecosystem, that is the pretty bad I meant



and as I said I'm not sure if that IS a bad thing. having none or less 3pp will change things I am unsure if it will for better or worse.


----------



## bedir than

Art Waring said:


> _That means that whatever you publish under the 1.1 ogl has an expiration date_,



That's not how expiration dates work. 
They actually have dates.

An expiration date isn't "something similar happened once and has the possibility of happening again"

And before the claim that this is being pedantic, realize that the entirety of the positioning against the OGL 1.1 is on pedantic readings of non-legal texts before the actual texts exist.


----------



## Greg Benage

Reynard said:


> it has done wonders for 5E -- as has a very permissive fan content policy -- and trying to fix things that aren't broke always suggests someone is trying to put their "stamp" on things, however unnecessary or even harmful it might be.



Hmm. I want it all to be free and for there to be lots of third-party support, and even I'm not sure I believe this. I think CR has done wonders for D&D, but it would have done so if they'd never published anything. _Stranger Things_ did wonders for it, but the Duffer brothers aren't third-party publishers.

Have third-party publishers "done wonders" for 5e? Which products? I've purchased very little despite playing 5e weekly since 2014. The only thing I can think of is CR. Once that exploded, Wizards would have very much wanted material for it to be published, I think. I haven't purchased anything for it, either, but I can recognize its wonders despite that. Other than CR, though, I can't think of any 3PP that Wizards couldn't easily live without. What am I missing?


----------



## Reynard

GMforPowergamers said:


> and as I said I'm not sure if that IS a bad thing. having none or less 3pp will change things I am unsure if it will for better or worse.



So long as WotC refuses to produce support items that some portion of its audience wants, some form of 3PP is a necessity.


----------



## Art Waring

bedir than said:


> That's not how expiration dates work.
> They actually have dates.
> 
> An expiration date isn't "something similar happened once and has the possibility of happening again"
> 
> And before the claim that this is being pedantic, realize that the entirety of the positioning against the OGL 1.1 is on pedantic readings of non-legal texts before the actual texts exist.



Thanks for taking a comment out of context and posting the literal explanation of how expiration dates work. I guess I have to now reword my explanation to avoid the term expiration to get my point across?

Yes, its not _literally_ an expiration date. However, every trademark provided by wotc in the past, either under the d20 STL or the GSL, has been revoked. You can no longer publish using the 4e GSL or the d20 STL, they are closed, they were once open, their trademark has ended, as in expired (there I said it), finished, concluded, finito... 

They have publicly stated that using the 1.1 OGL requires the use of a creators badge, its on record. Creator badges are going to be provided by wotc as a trademarked image to use to put on your products. Later on, they will inevitably pull the license, then the creators badge is revoked, then you can't publish your game anymore.


----------



## Greg Benage

Reynard said:


> So long as WotC refuses to produce support items that some portion of its audience wants, some form of 3PP is a necessity.



You don't need an OGL for DMs Guild, and it seems to have been pretty successful.


----------



## Reynard

Greg Benage said:


> You don't need an OGL for DMs Guild, and it seems to have been pretty successful.



And all you have to do is give WotC the copyright to your work.


----------



## GMforPowergamers

Reynard said:


> So long as WotC refuses to produce support items that some portion of its audience wants, some form of 3PP is a necessity.



I mean that just isn't true. You can WANT 3pps to make money, but fan work homebrew and things like this very board will fill that hole.


----------



## Voadam

mamba said:


> I am not saying it will kill D&D or anything, but if you look at what happened to 3PP with the GST, the license never got widely adopted and 3PPs disappeared from the D&D / 4e ecosystem, that is the pretty bad I meant



There is a difference here. When 4e came out with no OGL 4e SRD only a very few put out 4e stuff under the OGL (Goodman Games early stuff). Paizo was continuing with 3.5 stuff and a number of people were buying and continuing to play. WotC later came out with the GSL it took a while for those few who ended up doing 4e to go with it and there were few of them, most stuck with 3.5 and then Pathfinder.

For 1.1 there is the 5e OGL SRD and OGL stuff that has been going on for years. People who want to do stuff safely under the 1.0 OGL for 5e can continue to do that. If OneD&D is fairly compatible with 5e then it is fairly easy to just continue to crank out stuff based on the 5e SRD. I expect to be able to run 5e modules in One D&D. I expect to be able to use 5e monsters in One D&D. I expect most aspects of 5e settings to play without problems in OneD&D.

I don't expect those publishing 5e stuff under the OGL to feel not safe in continuing to do so for stuff to be used with the new OneD&D variation.

This seems a different situation than when 4e made a very different game from 3e. If 4e had been pathfinder with no OGL instead of the very different mechanics of 4e, I think a lot of publishers would probably have found a way to make compatible OGL stuff for it under the OGL.


----------



## bedir than

Art Waring said:


> They have publicly stated that using the 1.1 OGL requires the use of a creators badge, its on record. Creator badges are going to be provided by wotc as a trademarked image to use to put on your products. Later on, they will inevitably pull the license, then the creators badge is revoked, then you can't publish your game anymore.



Except that is only true for some, not even the majority of creators.


----------



## Greg Benage

Reynard said:


> And all you have to do is give WotC the copyright to your work.



That isn't true, but you do grant Wizards and other DMsGuild authors a license to your IP. I'm not a 3PP, but a lot of them seem to be satisfied with the arrangement judging by the avalanche of product available there.


----------



## Malmuria

Greg Benage said:


> Have third-party publishers "done wonders" for 5e? Which products? I've purchased very little despite playing 5e weekly since 2014. The only thing I can think of is CR. Once that exploded, Wizards would have very much wanted material for it to be published, I think. I haven't purchased anything for it, either, but I can recognize its wonders despite that. Other than CR, though, I can't think of any 3PP that Wizards couldn't easily live without. What am I missing?



If wotc wants to be a $1B brand I can't see why they would even pay that much attention to even $1M 3pp.  It's more about protecting whatever they consider their IP (including, apparently, the phrase "the world's greatest roleplaying game") and using their leverage to funnel people into their digital space.


----------



## Reynard

Greg Benage said:


> That isn't true, but you do grant Wizards and other DMsGuild authors a license to your IP. I'm not a 3PP, but a lot of them seem to be satisfied with the arrangement judging by the avalanche of product available there.



You cannot republish your DMsGuild material anywhere else and anyone can copy and modify it. That's untenable for a lot of creators.


----------



## darjr

bedir than said:


> Except that is only true for some, not even the majority of creators.



Looks like the badge is for everyone selling OGL 1.1 stuff.


----------



## Art Waring

bedir than said:


> Except that is only true for some, not even the majority of creators.



How does that have any relevance to what I said? I'm genuinely confused.


----------



## Reynard

GMforPowergamers said:


> I mean that just isn't true. You can WANT 3pps to make money, but fan work homebrew and things like this very board will fill that hole.



That's a naive view of the 3PP ecosystem. One of they keys to its success has been that it provides professional products for which there is significant demand -- adventures, class crunch, monster books, settings etc -- that WotC does not think are profitable enough to bother with. The key here is "professional" -- you know, with editors and layout artists and such.


----------



## Greg Benage

Reynard said:


> You cannot republish your DMsGuild material anywhere else and anyone can copy and modify it.



That doesn't appear to be true. From the site, "Wizards does not own any of the unique IP that you create in your publications." It strikes me that you could use the unique IP you've published on DMsGuild in a different publication. Does the agreement say somewhere that you can't?


Reynard said:


> That's untenable for a lot of creators.



Perhaps, and yet DMsGuild seems to be motoring along without them.


----------



## mamba

GMforPowergamers said:


> and as I said I'm not sure if that IS a bad thing. having none or less 3pp will change things I am unsure if it will for better or worse.



misunderstood you then (or rather you said so in a different post).

I can tell you that the widespread 3P support is definitely one of the reasons I went with 5e, also if there were none I would not have spent one $ more on WotC products, I simply would own less 5e products


----------



## Reynard

Greg Benage said:


> That doesn't appear to be true. From the site, "Wizards does not own any of the unique IP that you create in your publications." It strikes me that you could use the unique IP you've published on DMsGuild in a different publication. Does the agreement say somewhere that you can't?
> 
> Perhaps, and yet DMsGuild seems to be motoring along without them.



You can't publish the work as a whole anywhere else. https://support.dmsguild.com/hc/en-us/articles/217520927-Ownership-and-License-OGL-Questions


----------



## GMforPowergamers

Reynard said:


> That's a naive view of the 3PP ecosystem.



not really, it's more that there are pros and cons both for and against 3PP


Reynard said:


> One of they keys to its success has been that it provides professional products for which there is significant demand



and if there wasn't a professional product there you don't think that homebrew and shared non professional content would be there...


----------



## GMforPowergamers

mamba said:


> misunderstood you then (or rather you said so in a different post).



I persnally have gone back and forth on weather 3pp was or is a good thing... and I could list out pros and cons.


mamba said:


> I can tell you that the widespread 3P support is definitely one of the reasons I went with 5e, also if there were none I would mot have spent one $ more on WotC products, I simply would own less 5e products



I am sure you are far from alone. My question is, is it enough to make a dent?


----------



## Reynard

GMforPowergamers said:


> not really, it's more that there are pros and cons both for and against 3PP



What exactly would be a negative of 3PP support for 1D&D?


GMforPowergamers said:


> and if there wasn't a professional product there you don't think that homebrew and shared non professional content would be there...



Are you suggesting that some random shared Gdoc originating from reddit would have the same quality, penetration and acceptance as, say, a Kobold Press book?

I know netbooks are/were a thing, and you do occasionally find really high quality fan work (Star Wars 5E as an example) but I am completely unconvinced returning to the usenet days of unofficial support would be a good think for D&D.


----------



## Greg Benage

Reynard said:


> You can't publish the work as a whole anywhere else.



Well, of course not. That doesn't mean you can't republish the unique IP in it somewhere else, though.


----------



## Reynard

Greg Benage said:


> Well, of course not. That doesn't mean you can't republish the unique IP in it somewhere else, though.



What do you mean "of course"? If I publish a book on DTRPG I can sell it any number of other places. DMsGuild serves a single purpose: access to non-open D&D content.

Also, what "unique IP" do you think you will be repurposing elsewhere? You can't use DMsGuild to publish your own setting, and anything you create for a D&D setting is embedded with their IP.


----------



## pemerton

Reynard said:


> And all you have to do is give WotC the copyright to your work.



Do you have a copy of the current licence? The version I found on reddit requires granting an exclusive licence, for the term of the copyright, to OneBookShelf. In return, they sub-license use of WotC/Hasbro IP.


----------



## Greg Benage

Reynard said:


> What do you mean "of course"?



I mean that stuff on DMsGuild is a mix of unique IP, Wizards IP, and other creators' IP, so of course you can't republish it in whole. Why would you think you _should _be able to republish it in whole?


Reynard said:


> Also, what "unique IP" do you think you will be repurposing elsewhere? You can't use DMsGuild to publish your own setting, and anything you create for a D&D setting is embedded with their IP.



This seems incorrect. You can't publish a "campaign setting" (this isn't well defined, as far as I can tell). But you can publish locations. Your unique IP is defined as "the copyrightable elements included in your Work, such as original characters, scenes, locations, and events." I recently purchased the Haunt. It has a unique setting/location (Montarthas Manor, in a small city that ultimately fell to repeated orc attacks and was abandoned). The copyright owner might have the idea of pulling out "the original characters, scenes, locations, and events," making a campaign setting out of it, and publishing it somewhere that allows one to publish campaign settings. I don't see anything in the license agreement that would prohibit this--quite the opposite.

Recall that this started with you claiming that Wizards would own the copyright to your IP if you published on DMsGuild and consider how far we've strayed!


----------



## GMforPowergamers

Reynard said:


> What exactly would be a negative of 3PP support for 1D&D?



pathfinder.
objectionable (both moral and rules wise) content, and such an amount that you can't vet it so you just have to turn it off anyhow.


Reynard said:


> Are you suggesting that some random shared Gdoc originating from reddit would have the same quality, penetration and acceptance as, say, a Kobold Press book?



no i am suggesting that you don't have 1 kobold press... you have 300 fan sites and homebrews


Reynard said:


> I know netbooks are/were a thing, and you do occasionally find really high quality fan work (Star Wars 5E as an example) but I am completely unconvinced returning to the usenet days of unofficial support would be a good think for D&D.



what I think would happen is people would not expect quality they will get a few ideas and work on there own...

in 1996 I did fine when Role-Aides and fan content was all I had


----------



## mamba

Voadam said:


> There is a difference here. When 4e came out with no OGL 4e SRD only a very few put out 4e stuff under the OGL (Goodman Games early stuff). Paizo was continuing with 3.5 stuff and a number of people were buying and continuing to play. WotC later came out with the GSL it took a while for those few who ended up doing 4e to go with it and there were few of them, most stuck with 3.5 and then Pathfinder.



yes there is, but there are also similarities. In both cases WotC is trying to replace the popular OGL 1.0 with a less popular / unpopular and more restrictive license.


Voadam said:


> For 1.1 there is the 5e OGL SRD and OGL stuff that has been going on for years. People who want to do stuff safely under the 1.0 OGL for 5e can continue to do that. If OneD&D is fairly compatible with 5e then it is fairly easy to just continue to crank out stuff based on the 5e SRD. I expect to be able to run 5e modules in One D&D. I expect to be able to use 5e monsters in One D&D. I expect most aspects of 5e settings to play without problems in OneD&D.



I agree, but that still means the 3PPs stick to the OGL 1.0 instead of switching to the license WotC would prefer. If anything, that is easier this time around.


----------



## Voadam

mamba said:


> I agree, but that still means the 3PPs stick to the OGL 1.0 instead of switching to the license WotC would prefer. If anything, that is easier this time around.



Yes but the big difference is they can still do stuff for the current edition en masse instead of most going off to Pathfinder.


----------



## Morrus

GMforPowergamers said:


> I persnally have gone back and forth on weather 3pp was or is a good thing... and I could list out pros and cons.



Go on then. You’ve spoken repeatedly before about how you don’t use third party material, sometimes bordering on offensively. Let’s hear this list of cons against our existence.


----------



## Dreamscape

Reynard said:


> What exactly would be a negative of 3PP support for 1D&D?





GMforPowergamers said:


> pathfinder.



I am not a great fan of Pathfinder (having played it for a couple of years), but I cannot by any stretch of the imagination see how it can be interpreted as a negative...


----------



## Arilyn

3pp keeps my interest up. I would have completely drifted away from 5e if it wasn't for 3pp. Kobold Press, Handiwork Games, MCDM, and of course, EN Publishing, to name just a few. 

Right now we are playing a lot of Level Up and on the other end of the scale, Old School Essentials. We've been finding that 3pp is where there is more originality because the designers aren't beholden to the WoTC style. Lots of voices bring variety and interest. Why would anyone want to just stick with WoTC?


----------



## Alzrius

GMforPowergamers said:


> I persnally have gone back and forth on weather 3pp was or is a good thing... and I could list out pros and cons.



Presuming that any cons exist, they are far, FAR outweighed by the pros.

But don't take my word for it. Take the word of this PhD dissertation, which specifically examines the Open Game License.


----------



## Incenjucar

There is no special sauce that WotC designers have that is unique to them. You're usually going to have more vetting for a big company product to make sure it doesn't cause problems, and more resources overall, and maybe some more detailed math and research to lean on, but these books are still written by people, sometimes even past or future WotC folks. Maybe do a little more research before dropping three digits on a 3P work to make sure it's at the right level for your investment, but you can find your new favorite idea by stepping out of the 1P line once in awhile.


----------



## mamba

Dreamscape said:


> I am not a great fan of Pathfinder (having played it for a couple of years), but I cannot by any stretch of the imagination see how it can be interpreted as a negative...



I think he means it from the perspective of WotC, not in general


----------



## Art Waring

Alzrius said:


> Presuming that any cons exist, they are far, FAR outweighed by the pros.
> 
> But don't take my word for it. Take the word of this PhD dissertation, which specifically examines the Open Game License.



I'm just on page 214 of the PDF and Carys J. Craig has some interesting thoughts on the OGL and open licenses in general.



> If You Love Something, Set it Free? Open Content Copyright Licensing and Creative Cultural Expression - Page 214
> 
> Due to the fallout from these events [changing the terms of the d20 STL], which *demonstrated to publishers that the newly-amended d20 Trademark License tethered them uncomfortably to content-related decisions made by WOTC*, use of the “d20” trade-mark under the terms of the d20 Trademark License dropped precipitously after 2003, with many publishers switching to use of the d20 system rules solely by relying on the SRD / OGL, and ceasing to brand their products as compatible with the d20 system.108 Nonetheless, D&D remained a successful product line even five years after the release of 3.0: in 2005, it was estimated that the D&D line of products was grossing between $25-30 million annually.


----------



## Greg Benage

> Due to the fallout from these events [changing the terms of the d20 STL], which demonstrated to publishers that the newly-amended d20 Trademark License tethered them uncomfortably to content-related decisions made by WOTC, use of the “d20” trade-mark under the terms of the d20 Trademark License dropped precipitously after 2003




My recollection was more that, after the bubble popped, no distributor or retailer on this planet wanted to see anything with a "d20" on it.


----------



## darjr

I think it was some of A and some of B.


----------



## Greg Benage

darjr said:


> I think it was some of A and some of B.



Maybe. I was running the RPG business for Fantasy Flight Games during that period, and I don't remember any publisher suggesting in 2003 that they would stop using the d20 STL (or ever, for that matter) because of the "community decency" language that was introduced after _Book of Erotic Fantasy_. And we all talked quite a bit. I went back and checked just in case I was tripping--every publisher I looked at continued to use it for D&D support lines. FFG would eventually strip it off the _Midnight: Second Edition _cover in 2005.

That said, it appears the citation is to Shannon Appelcline's book, which I have not read, but I'd expect it to be accurate. _Someone_ must have told him this.


----------



## Art Waring

Greg Benage said:


> My recollection was more that, after the bubble popped, no distributor or retailer on this planet wanted to see anything with a "d20" on it.



That was after 2003, closer to 2005-06 during the "rise of the retroclones" era.


----------



## Greg Benage

Art Waring said:


> That was after 2003, closer to 2005-06 during the "rise of the retroclones" era.



See above.


----------



## Art Waring

Greg Benage said:


> See above.



aha, ninja'd


----------



## Hussar

GMforPowergamers said:


> I'm not entirely sure predatory is the right word either... I don't know if the OGL was good or bad overall, but it has been the way things have worked for 22 years. changing it now going forward doesn't look great. Now maybe that is something that has to be done going forward no matter the look, but it looks bad.



But, again, we need to pay attention to how much is actually changing.

For those who publish on DM's Guild - Nothing changed.
For those who publish for free on things like Reddit or DM's Binder - Nothing changed.
For those who publish OGC but make less than 700k - Nothing changed other than needing that Content Creator badge (see below)
For the 20 or so big folks - they have changes.

Now, the Content Creator badge.  People are pointing to the D20 STL.  However, that's a bit apples and oranges.  The D20 STL was a separate license from the OGL and carried it's own stipulations.  Which meant that they could end the D20 STL, but, the OGL was still safe.  Even if they trademark Content Creator as a badge, you could simply keep publishing your material under the OGL 1.0 and remove the badge.  Which means that the badge is likely far more of a marketing tool than anything else.  

Again, since we haven't actually SEEN the new OGL, all this speculation is just that.



			
				@Reynard said:
			
		

> The OGL was designed so anyone could produce whatever they wanted in an open environment with no input from or responsibility to WotC (or, importantly, whoever buys it).




Well, that's not entirely true.  You couldn't produce whatever you wanted - you can't have beholders in your OGL adventure after all.  The OGL isn't quite "an open environment with no input from or responsibility to WotC"


----------



## darjr

If you sell OGL 1.1 stuff you need to tell WotC what it is. 

And I can’t believe they wouldn’t reserve the right to tell you no. They will likely want to control what that badge appears upon.


----------



## Art Waring

Hussar said:


> Now, the Content Creator badge. People are pointing to the D20 STL. However, that's a bit apples and oranges. The D20 STL was a separate license from the OGL and carried it's own stipulations. Which meant that they could end the D20 STL, but, the OGL was still safe. Even if they trademark Content Creator as a badge, you could simply keep publishing your material under the OGL 1.0 and remove the badge. Which means that the badge is likely far more of a marketing tool than anything else.



You are actually avoiding my comment with this line of reasoning. I was using the D20 STL as a clear example of a limited trademark, with the concept of limited being that once revoked it can't be used anymore as part of any license. 

If using the new 1.1 OGL _requires_ a trademarked badge, _then the entire license is revocable along with any associated trademarks_. That is the exact opposite of an open license.


----------



## mamba

Hussar said:


> For those who publish OGC but make less than 700k - Nothing changed other than needing that Content Creator badge (see below)




Not true, they need to register with WotC and if they make > 50k also report their revenue.

From the WotC announcement, emphasis mine:

"If you’re making commercial content, *relatively little is going to change for most creators*. For most of you who are selling custom content, here are the new things you’ll need to do:


Accept the license terms and *let us know what you’re offering for sale*
*Report OGL-related revenue* annually (if you make more than $50,000 in a year)
Include a Creator Product badge on your work"


----------



## Greg Benage

Do we actually know anything about the “Creator Product” badge? If we do, please tell me. Because I don’t.


----------



## Hussar

Reynard said:


> You cannot republish your DMsGuild material anywhere else and anyone can copy and modify it. That's untenable for a lot of creators.



That second part about copying and modifying is true of all OGC as well.  Yet, that seems to be perfectly tenable for a lot of creators


----------



## mamba

Greg Benage said:


> Do we actually know anything about the “Creator Product” badge? If we do, please tell me. Because I don’t.



Only that you need to use it, according to the announcement


----------



## Hussar

Art Waring said:


> You are actually avoiding my comment with this line of reasoning. I was using the D20 STL as a clear example of a limited trademark, with the concept of limited being that once revoked it can't be used anymore as part of any license.
> 
> If using the new 1.1 OGL _requires_ a trademarked badge, _then the entire license is revocable along with any associated trademarks_. That is the exact opposite of an open license.



Because the D20 STL was a specific license to use THAT SPECIFIC trademark though.  

The OGL is not a license to use the Content Creator Badge.  There's nothing that's been said that you can only use that badge if you use the OGL - although that's probably true that you will have to use it if you do use the OGL.  But, at the moment, it's no different than requiring you to include the OGL with any OGC that you produce.  OGL 1.1, as far as we know right now, is not a license to specifically use that trademark.  I agree that the Content Creator Badge is probably going to be trademarked, but, as far as we know, anyone who follows the rules for OGL 1.1 is granted the right to use that badge.  

IOW, right now, any notion that they will be able to revoke the Content Creator Badge the same way that they revoked the d20 STL is pure speculation.  They'd have to revoke the entire OGL to do so, unless OGL 1.1 contains some specific provisions - a la the d20 STL - that would allow them to revoke your permission to use the Content Creator Badge.

So, no, as it stands right now, there's nothing to suggest that the Content Creator Badge is any sort of time bomb that WotC could use to pull the license.  The fact that this is being called the Open Gaming License strongly suggests that it will not be something they can simply revoke - any more than WotC has ever been able to revoke anything that someone has produced using the OGL in the past.  

Your examples are all of licenses that are very specifically NOT the Open Gaming License.


----------



## Hussar

mamba said:


> Not true, they need to register with WotC and if they make > 50k also report their revenue.
> 
> From the WotC announcement, emphasis mine:
> 
> "If you’re making commercial content, *relatively little is going to change for most creators*. For most of you who are selling custom content, here are the new things you’ll need to do:
> 
> 
> Accept the license terms and *let us know what you’re offering for sale*
> *Report OGL-related revenue* annually (if you make more than $50,000 in a year)
> Include a Creator Product badge on your work"



Yes, because requiring an email when you put something up for publication (let them know what you're offering for sale) and a once a year report of how much you made from selling OGL material (a number you will have to know to file your taxes) is a huge deal?

I mean, we're talking 30 seconds of work here.


----------



## Greg Benage

mamba said:


> Only that you need to use it, according to the announcement




It’s a weird term, right? WTH is a “creator product”? Judging by the weird name, it sounds like a “Not Actually D&D” mark of shame you gotta wear if you want to publish the next Pathfinder.

If that’s what it is, it’s my early front runner for most obnoxious thing in the new license. Like, make me pay up, whatever, but don’t make me wear your goofy Junior Varsity badge.


----------



## Art Waring

Hussar said:


> any notion that they will be able to revoke the Content Creator Badge the same way that they revoked the d20 STL is pure speculation. They'd have to revoke the entire OGL to do so, unless OGL 1.1 contains some specific provisions - a la the d20 STL - that would allow them to revoke your permission to use the Content Creator Badge.



I agree that until we see the final draft it is speculative, but history has already repeated itself twice already (wotc revoking the d20 STL & the 4e GSL license), do we need a third time to see what happens next?


----------



## Hussar

Art Waring said:


> I agree that until we see the final draft it is speculative, but history has already repeated itself twice already (wotc revoking the d20 STL & the 4e GSL license), do we need a third time to see what happens next?



Context matters.

The STL was revoked in the very early days of d20 because of a very specific event (the book of Erotic Fantasy) and the result was that people realized pretty quickly that the STL wasn't actually needed.  It also was a specific license to use THAT trademark and not the OGL.

The GLS was revoked at the end of 4e, after WotC had stopped publishing anything for 4e and was generally regarded as a total failure from the outset.  

And, again, NOT the OGL. 

So, no, your examples are not "history repeating itself".  They are examples of completely different licenses to the to OGL being revoked in situations which are completely different than the current one.


----------



## Art Waring

Hussar said:


> So, no, your examples are not "history repeating itself"



In the context that the new 1.1 OGL is not likely to be truly "open," and will likely contain new limitations not included in the 1.0a, it is indeed history repeating itself like with the 4e GSL, but under a new "1.1 OGL" name. 

Different name, same intention. History repeats itself.


----------



## mamba

Hussar said:


> Yes, because requiring an email when you put something up for publication (let them know what you're offering for sale) and a once a year report of how much you made from selling OGL material (a number you will have to know to file your taxes) is a huge deal?



because it is more than nothing, which you claimed was needed


----------



## mamba

Greg Benage said:


> It’s a weird term, right? WTH is a “creator product”? Judging by the weird name, it sounds like a “Not Actually D&D” mark of shame you gotta wear if you want to publish the next Pathfinder.



I am actually surprised it is required, I thought it was optional, i.e. if you create something for One D&D you probably want to include it as a way to point that out to prospective buyers, but if you create your own RPG under the OGL then that would be hugely weird / misleading


----------



## mamba

Hussar said:


> They are examples of completely different licenses to the to OGL being revoked in situations which are completely different than the current one.



We do not really know what the OGL 1.1 looks like, do not let the first three letters fool you. From all we know it can very well end up closer to the GSL than the OGL 1.0


----------



## Hussar

It could end up closer to the GSL. That is true.  Unlikely, but true.  And, if it does, I'll be right there with you complaining about it.

But, since we have no idea what it will actually look like, and the fact that it IS an OGL and not a new license, the precedent is that it will be open, it won't be a new GSL and most of the doom and gloom predictions here are just fabricated out of nothing.


----------



## mamba

Hussar said:


> It could end up closer to the GSL. That is true.  Unlikely, but true.  And, if it does, I'll be right there with you complaining about it.



see you in two weeks or so then  Also, based on the announcement's terms the license is not actually an open license.


----------



## darjr

They will not want their badge on hateful or bigoted content.

I think they’d be nuts not to reserve the right to yank it from publishers.

If not then NuTSRs pet Nazi could use it.


----------



## Art Waring

Hussar said:


> It could end up closer to the GSL. That is true.  Unlikely, but true.  And, if it does, I'll be right there with you complaining about it.
> 
> But, since we have no idea what it will actually look like, and the fact that it IS an OGL and not a new license, the precedent is that it will be open, it won't be a new GSL and most of the doom and gloom predictions here are just fabricated out of nothing.



As much as I would agree that that is the best case scenario, their official statement has a lot to be concerned about for 3pp publishers. Yes it isn't released yet, but so far they have stated several things that I do find concerning. 

Requiring a badge, & requiring income reporting and royalties: they don't sound like an open license (which don't require using trademarked badges, and certainly don't require income reports, or royalties of any amount). Even without speculating, it doesn't sound good at all. I think its fair to say that some folks are waiting for the release with some apprehension.


----------



## Reynard

Hussar said:


> Well, that's not entirely true.  You couldn't produce whatever you wanted - you can't have beholders in your OGL adventure after all.  The OGL isn't quite "an open environment with no input from or responsibility to WotC"



No. You were allowed to produce whatever you wanted based on the terms of the OGL and the contents of the SRD. it's disingenuous to bring up "beholders" as an example of how the control WotC is looking for now is the same as they were then. It's transparently not the same.


----------



## Hussar

darjr said:


> They will not want their badge in hateful or bigoted content.
> 
> I think they’d be nuts not to reserve the right to yank it from publishers.
> 
> If not NuTSRs pet Nazi could use it.



I have to admit, I can totally see this being a thing.  WotC reserving the right to terminate based on hate speech or the like.  Not sure if that's a major issue or not.  That does need some VERY careful treading.


----------



## darjr

Hussar said:


> I have to admit, I can totally see this being a thing.  WotC reserving the right to terminate based on hate speech or the like.  Not sure if that's a major issue or not.  That does need some VERY careful treading.



It is. Also WotCs list of what causes them to yank the license will be their list. Not anyone else’s.


----------



## Reynard

darjr said:


> They will not want their badge on hateful or bigoted content.
> 
> I think they’d be nuts not to reserve the right to yank it from publishers.
> 
> If not NuTSRs pet Nazi could use it.



And so, right or wrong, it isn't an open license. An open license means WotC doesn't have any say beyond the initial stipulations.

You have to remember, the OGL was not designed to protect WotC's good name or even shelter D&D. it was designed to protect D&D from being destroyed by corporate greed. It's goal was to make sure that should poor management or actual malfeasance lead to the death of D&D as a brand, the GAME itself would live on.

It doesn't appear that is what WotC is concerned with regarding the OGL and 1D&D. they appear to be more concerned with getting a piece of the pie when certain kickstarters do really well, and be able to force control over other commercial compatible content. And that's "fine" from a legal and corporate practices standpoint, but it flies in the face of the OGL's actual intent.

The core idea of the OGL was pretty simple: D&D is a culture and a movement and a worldview, far more than it is a product, and the OGL was there to make sure than no one could kill it by making bad business decisions because there would always be someone able to take the essense of D&D (the SRD) and rebuild it. What WotC appears to be trying here -- the same thing they tried with the GSL -- is to circumvent that and say, no, D&D is a product and nothing more. And I hope they fail. I hope they get 100 Pathfinders eating into their sales. I hope Critical Role and MCDM and LevelUp and dozens of Kickstarters eat their lunch and send them packing for it.

You want to know what a "free" D&D looks like: it looks like the OSR. I am not an OSR devotee. i own maybe 3 OSR games. But they way that community has made D&D of a certain era their own, and shared ideas and created a community is EXACTLY what modern D&D needs.


----------



## darjr

One thing. The OSR is vanishingly small.


----------



## darjr

A perspective changing thing just occurred to me.

Imagine you're a licensing person used to looking at things like most of the consumer world. Like Marvel or Halo or Star Wars.

You have an IRON GRIP on the IP. An RPG publisher jumps through a lot of hoops to make an RPG on those licenses. Some of those loops don't make sense to us hobbyists.

I imagine the OGL 1.0 looks like insanity to them.


----------



## Reynard

darjr said:


> One thing. The OSR is vanishingly small.



Okay. But it doesn't change the fact that the OSR has allowed a particular version of D&D to thrive after being long abandoned by the owner of that version of the game, and therefore fulfills the actual promise of the OGL. Pathfinder is more recent and did exactly the same thing. Chances are, if WotC reaches too far another community with preserve 5E regardless of what WotC wishes D&D to be.


----------



## Reynard

darjr said:


> A perspective changing thing just occurred to me.
> 
> Imagine your a licensing person used to looking at things like most of the consumer world. Like Marvel or Halo or Star Wars.
> 
> You have an IRON GRIP on the IP. An RPG publisher jumps through a lot of hoops to make an RPG on those licenses. Some of those loops don't make sense to us hobbyists.



I'm not sure what you mean, or what point you are trying to make. As has been stated many times, D&D is not a story. it isn't even a setting. it is a framework. It does not conform the IP licensing the same way Star Wars or Halo does. You can protect The Forgotten Realms the way you can protect the MCU, but not "D&D".


----------



## GMforPowergamers

Morrus said:


> Go on then. You’ve spoken repeatedly before about how you don’t use third party material, sometimes bordering on offensively. Let’s hear this list of cons against our existence.



I never mean to offend.  I respect you, and your site and your work. I am not listing cons against you existence, I am meaning that there is a give and take with the 3pp. 
Your right, as of today, and for the last 8ish years we have not used 3pp player facing content (yet we do use 3pp monster manuals and adventures although the adventures are only for inspiration not direct use) But it is a reaction to a LOT of 3pp use in 3e. 

In 3e/3.5 we as a group used as much 3pp as WotC stuff... in 4e I bought Arie Marmel's book day 1 (based on only knowing of him on this site) however today we don't. 

I will stop posting my opinion of pros and cons if you really feel I am insulting you OR if you think doing so in any way shape or form makes you think that me thinking that you as a company/site/personally should not exist.


----------



## GMforPowergamers

Dreamscape said:


> I am not a great fan of Pathfinder (having played it for a couple of years), but I cannot by any stretch of the imagination see how it can be interpreted as a negative...



I am not going to defend my stance if it is insulting people. I am sorry


----------



## bedir than

darjr said:


> A perspective changing thing just occurred to me.
> 
> Imagine you're a licensing person used to looking at things like most of the consumer world. Like Marvel or Halo or Star Wars.
> 
> You have an IRON GRIP on the IP. An RPG publisher jumps through a lot of hoops to make an RPG on those licenses. Some of those loops don't make sense to us hobbyists.
> 
> I imagine the OGL 1.0 looks like insanity to them.



Yep, even OGL 1.1 will be extraordinarily easy to produce content when compared to the tens of thousands of other licenses out there.

If all they do is allow a badge, requiring it at a certain volume and have a tiny royalty for big money making companies that's actually really open.

Talk to people writing for closed licenses about their struggles. OGL 1.1 is not a closed license, no matter how much people arguing on the internet insist it is.


----------



## mamba

bedir than said:


> Talk to people writing for closed licenses about their struggles. OGL 1.1 is not a closed license, no matter how much people arguing on the internet insist it is.



several definitions of an open license require that there is no fee associated with the use...


----------



## bedir than

mamba said:


> several definitions of an open license require that there is no fee associated with the use...



but not all. And 99% won't have a fee at all.

OGL 1.1 is much closer to an open license than the standard closed agreements


----------



## mamba

bedir than said:


> but not all. And 99% won't have a fee at all.



no, not all, but to me saying ‘it is open no matter what some people on the internet say’ is then disingenuous


bedir than said:


> OGL 1.1 is much closer to an open license than the standard closed agreements



yes, but that does not mean it is actually open


----------



## Hussar

mamba said:


> several definitions of an open license require that there is no fee associated with the use...



Several definitions of an open license also don't allow you to wall off content the way the OGL does.  The OGL has never been a completely open license in the sense that people mean open licenses.

And, again, remember, that the OGL only applies to those who are not producing on DM's guild.  Someone mentioned people like @M.T. Black in this thread or another.  Thing is, AFAIK, @M.T. Black has only produced on DM's Guild.  He's never produced any OGL that I'm aware of and he's certainly a lot better known for his DM's Guild material.  

So, it is important to keep perspective here.  Yes, this will impact people like En World publishing or Kobold.  Absolutely.  And, if I was them, I would absolutely understand the concern.  But, people have been producing a LOT of D&D content outside of the OGL for quite a while now.  Thousands and thousands of titles on DM's Guild.  I mean, heck, all that Dragonlance stuff that they just whacked up on DM's Guild just shifted from OGL to non-OGL in a flash.  

So, it's not like people won't have avenues available to them if they don't like the new OGL.


----------



## Maxperson

FrogReaver said:


> This seems to mean that content produced under the OGL 1.0/1.0a license *CANNOT* be updated to a OGL 1.1 license as doing so breaks the original license.  Also, derivative works for such products CANNOT be updated to OGL 1.1 as they would require a royalty free OGL license.



I don't think this is correct.  The agreement under 1.0/1.0a is essentially a contract.  If both sides agree to a new contract, they are free to do so.  WotC puts out a new contract offer with OGL 1.1 and if the person accepts, I don't see why they wouldn't be able to make an updated version under their new agreement.


----------



## bedir than

mamba said:


> no, not all, but to me saying ‘it is open no matter what some people on the internet say’ is then disingenuous
> 
> yes, but that does not mean it is actually open



There are stipulations in OGL 1.0 that mean it is not truly open.
If we want to act in a binary, the original D&D OGL isn't open.


----------



## pemerton

Reynard said:


> D&D is a culture and a movement and a worldview, far more than it is a product



I think this is a contentious claim. As far as I can tell, D&D is predominantly a series of products that people purchase from WotC.

There are endless threads on this site alone about the Amazon sales rankings of D&D and PF books. If D&D was not predominantly a product, those threads would make no sense.

As far as D&D being a "movement", the only "movement" I've experienced in relation to D&D was waves of unrelenting hostility the last time I was predominantly a D&D gamer, ie the period around 2009-16.



Reynard said:


> D&D is not a story. it isn't even a setting. it is a framework. It does not conform the IP licensing the same way Star Wars or Halo does. You can protect The Forgotten Realms the way you can protect the MCU, but not "D&D".



I'm not sure what the "framework" is for D&D. You mean rolling a d20 for some bits of action resolution and results determination (mostly attacks and saves), and rolling various other dice for damage? My favourite implementation of those methods - 4e D&D - is regarded with something between negativity and scorn by most people who (to me) seem to think of themselves as guardians of the essence of D&D.

In any event, to me - particularly in the ways I've engaged with it over the past 6 or so years - D&D is predominantly a collection of settings and setting elements, and a certain idea about how adventure occurs in those settings and setting elements. I've used those setting elements - mostly the geography and history of the world of Greyhawk, but other ones too - in multiple games using multiple rule sets. (Torchbearer, Burning Wheel, Cortex+ Heroic and AD&D being the main ones in that time period.)



Reynard said:


> the OGL was not designed to protect WotC's good name or even shelter D&D. it was designed to protect D&D from being destroyed by corporate greed. It's goal was to make sure that should poor management or actual malfeasance lead to the death of D&D as a brand, the GAME itself would live on.
> 
> <snip>
> 
> The core idea of the OGL was pretty simple: , and the OGL was there to make sure than no one could kill it by making bad business decisions because there would always be someone able to take the essense of D&D (the SRD) and rebuild it.
> 
> <snip>
> 
> You want to know what a "free" D&D looks like: it looks like the OSR. I am not an OSR devotee. i own maybe 3 OSR games. But they way that community has made D&D of a certain era their own, and shared ideas and created a community is EXACTLY what modern D&D needs.



Putting to one side that the OSR is not based around the SRD as the essence of D&D, but rather around a series of earlier rulesets published in the 70s and early 80s, if the point of the OGL is what you say it is then that point has been realised, and whatever WotC does in the future won't change or undo it.


----------



## FrogReaver

Maxperson said:


> I don't think this is correct.  The agreement under 1.0/1.0a is essentially a contract.  If both sides agree to a new contract, they are free to do so.  WotC puts out a new contract offer with OGL 1.1 and if the person accepts, I don't see why they wouldn't be able to make an updated version under their new agreement.




The SRD 5.1 starts out with -

Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.1 ("SRD5") *is granted solely through the use of the Open Gaming License, Version 1.0a.*

Section 2 of the OGL 1.0a even mandates that a notice indicating the Open Game Content may only be Used under and in terms of this License."

Thus, I believe that not even WOTC could legally release SRD 5.1 out under a different license - as SRD 5.1 would then no longer be solely granted through the OGL 1.0a as it states and while normally they could rescind an offer at any time, couple it with WOTC mandating it licensees reproduce their OGL 1.0a offer on every copy and distribution being done and I think there's a strong case here that they created an offer they couldn't rescind IMO.   However, since they are the copyright holder they could create an SRD 5.2 with exactly the same content as SRD 5.1 and a brand new license - of course if WOTC insists that OGL 1.1 is a new version of the OGL then section 9 of OGL 1.0a kicks in and SRD 5.1 can be offered via OGL 1.1 but that wasn't the scenario the post you quoted was contemplating.

TLDR: I agree there are workaround to get the same 'content' released under OGL 1.0a and any other license.


----------



## mamba

Hussar said:


> Several definitions of an open license also don't allow you to wall off content the way the OGL does.  The OGL has never been a completely open license in the sense that people mean open licenses.



not sure about that, but even if, that then is an argument in my favor / it not being open, no matter what some people on the internet say 


Hussar said:


> And, again, remember, that the OGL only applies to those who are not producing on DM's guild.  Someone mentioned people like @M.T. Black in this thread or another.  Thing is, AFAIK, @M.T. Black has only produced on DM's Guild.



that is not true, he is not just on DMsGuild, not sure whether he uses the OGL however - not that it should matter in the context I used him in, which was about figuring out how much money he is making in a year. I don’t see the OGL being used making any difference in how easy it would be, it obviously would make a difference in how much he would have to report



Hussar said:


> people have been producing a LOT of D&D content outside of the OGL for quite a while now.  Thousands and thousands of titles on DM's Guild.  I mean, heck, all that Dragonlance stuff that they just whacked up on DM's Guild just shifted from OGL to non-OGL in a flash.



sure, they moved to a more restrictive license that will pay higher fees, WotC is certainly not unhappy about that


----------



## mamba

bedir than said:


> There are stipulations in OGL 1.0 that mean it is not truly open.
> If we want to act in a binary, the original D&D OGL isn't open.



which ones do you consider that to be ?


----------



## FrogReaver

mamba said:


> which ones do you consider that to be ?



Probably the large list of product identity in the SRD 5.1 that you aren't allowed to Use (Disribute, Copy, Edit, Format, Modify, Translate and otherwise Create Derivative Material of.

Those actions are only allowed for the Open Game Content that the Copyright holder (WOTC in this case) gets to specify what is product identity and what is Open Game Content.


----------



## mamba

FrogReaver said:


> The SRD 5.1 starts out with -
> 
> Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.1 ("SRD5") *is granted solely through the use of the Open Gaming License, Version 1.0a.*



what they will release under 1.1 is not SRD5.1 but a new SRD


----------



## FrogReaver

mamba said:


> what they will release under 1.1 is not SRD5.1 but a new SRD



yes, but this has nothing to do with what I replied to Max about.


----------



## mamba

FrogReaver said:


> Probably the large list of product identity in the SRD 5.1 that you aren't allowed to Use (Disribute, Copy, Edit, Format, Modify, Translate and otherwise Create Derivative Material of.
> 
> Those actions are only allowed for the Open Game Content that the Copyright holder (WOTC in this case) gets to specify what is product identity and what is Open Game Content.



that does not mean the license is not open, only that they did not license this part under it

Any 3PP can do the exact same thing too. You specify what part of your product is covered by the open license and what part is not


----------



## darjr

Is the SRD revocable?


----------



## FrogReaver

darjr said:


> Is the SRD revocable?



EDIT: sorry - the below applies to the license agreement.

yes.  Section 13 describes how it can be revoked.  It's not revocable on WOTC's wim as far as I can tell.


----------



## FrogReaver

mamba said:


> that does not mean the license is not open, only that they did not license this part under it
> 
> Any 3PP can do the exact same thing too. You specify what part of your product is covered by the open license and what part is not



Generally speaking, a software product would not be called 'open' if part of it couldn't be edited, distributed or used to derive other software with.


----------



## FrogReaver

@darjr - I think you may be talking more about the 'license offer' rather than those already licensed and in general offers can be rescinded at any time.  I believe products licensed under the OGL cannot be, because WOTC mandated that the licensees under the OGL would keep including their offer with every distribution of OGC.  - though i don't know if this legal theory has ever been tried.


----------



## mamba

darjr said:


> Is the SRD revocable?



no, since the license it is under is not revokable


----------



## mamba

FrogReaver said:


> Generally speaking, a software product would not be called 'open' if part of it couldn't be edited, distributed or used to derive other software with.



yes, but parts of a software product can be open while other parts can be closed, provided the open license allows for it.

Then the part that is not open is not under an open license, just like not everything D&D is under an open license. This has no bearing on whether the license is open, only on what is covered by it.

This is about the license terms, not about what WotC chose to include / exclude from it.

You are basically arguing that not all of WotC’s D&D products are open, I agree, but I never argued that. I am saying the OGC (Open Game Content) that WotC made available in the SRD is under an open license (the OGL 1.0a)


----------



## FrogReaver

mamba said:


> You are basically arguing that not all of WotC’s D&D products are open, I agree, but I never argued that.



_Cutting to the chase._

That's not what I am saying at all.  I'm saying that the SRD 5.1 is not a completely open product.  It's mostly there, but not completely.  As an example, it mentions mind flayer's but you cannot even mention them in your product.



mamba said:


> I am saying the OGC (Open Game Content) that WotC made available in the SRD is under an open license (the OGL 1.0a)



So reframing your statement here - you want to know if the 'Open Game Content' is open.  IMO it's not, because you must agree in the license to not use any Product Identity, you also must agree to not advertise using the name of any contributor without written permission.

This means you can't even make factual advertising statements like, 'Frogreaver's Adventures based on WOTC's 5e D&D.'

The things in the license you must agree like this are fairly small potatoes, but they are terms that something completely open wouldn't have.  If I had to rate it I would say SRD 5.1 is 95% open.


----------



## mamba

FrogReaver said:


> _Cutting to the chase._
> 
> That's not what I am saying at all.  I'm saying that the SRD 5.1 is not a completely open product.  It's mostly there, but not completely.  As an example, it mentions mind flayer's but you cannot even mention them in your product.



yes, because they are not licensed under the OGL. As I said in my first reply already, this does not mean the OGL is not open, it only means they are not covered by it


FrogReaver said:


> So reframing your statement here - you want to know if the 'Open Game Content' is open.  IMO it's not, because you must agree in the license to not use any Product Identity, you also must agree to not advertise using the name of any contributor without written permission.



well, you are wrong and clearly do not properly distinguish between SRD, OGC and OGL.

The rest is just more you not distinguishing SRD, OGC and OGL. Yes, not 100% of the SRD is also OGC, that is how you arrive at your ‘the SRD is 95% open’ which again tells us nothing at all about whether the OGL is an open license, or rather it tells us that it is but only covers 95% of the SRD… that part being the OGC

Could there be fewer restrictions and the OGL remains open, sure, but none of the restrictions it contains make it not an open license.

As to you not being able to use the name of someone without permission, that makes a lot of sense. Why should you be able to eg advertise your adventure as ‘with contributions by Gary Gygax’ only because you base it on the OGL and he contributed to the content of the OGC but did not write a single word of your content.


----------



## pemerton

FrogReaver said:


> The SRD 5.1 starts out with -
> 
> Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.1 ("SRD5") *is granted solely through the use of the Open Gaming License, Version 1.0a.*
> 
> Section 2 of the OGL 1.0a even mandates that a notice indicating the Open Game Content may only be Used under and in terms of this License."
> 
> Thus, I believe that not even WOTC could legally release SRD 5.1 out under a different license - as SRD 5.1 would then no longer be solely granted through the OGL 1.0a as it states and while normally they could rescind an offer at any time, couple it with WOTC mandating it licensees reproduce their OGL 1.0a offer on every copy and distribution being done and I think there's a strong case here that they created an offer they couldn't rescind IMO.   However, since they are the copyright holder they could create an SRD 5.2 with exactly the same content as SRD 5.1 and a brand new license - of course if WOTC insists that OGL 1.1 is a new version of the OGL then section 9 of OGL 1.0a kicks in and SRD 5.1 can be offered via OGL 1.1 but that wasn't the scenario the post you quoted was contemplating.
> 
> TLDR: I agree there are workaround to get the same 'content' released under OGL 1.0a and any other license.



I don’t think this is correct. WotC have not promised that their existing SRD will be licensed only under the OGL v 1.0a.

The statement you have pointed to is a reservation by WotC of its rights.

Clause 2 of the OGL states that the OGL itself is the Entirety of the licence.


----------



## FrogReaver

pemerton said:


> I don’t think this is correct. WotC have not promised that their existing SRD will be licensed only under the OGL v 1.0a.



I mean it says paraphrased 'Use of SRD 5.1 is Granted solely through the OGL 1.0a.'  I'm no lawyer but doesn't that mean SRD 5.1 content will only be licensed under OGL 1.0a?



pemerton said:


> The statement you have pointed to is a reservation by WotC of its rights.



Maybe you can elaborate here?



pemerton said:


> Clause 2 of the OGL states that the OGL itself is the Entirety of the licence.



Clause 2 also states:  "...Open Game Content may only be Used under and in terms of this License.  You must affix such a notice..."


----------



## FrogReaver

mamba said:


> Could there be fewer restrictions and the OGL remains open, sure, but none of the restrictions it contains make it not an open license.



Maybe you don't understand what Open means?


----------



## pemerton

FrogReaver said:


> I mean it says paraphrased 'Use of SRD 5.1 is Granted solely through the OGL 1.0a.'  I'm no lawyer but doesn't that mean SRD 5.1 content will only be licensed under OGL 1.0a?
> 
> 
> Maybe you can elaborate here?
> 
> 
> Clause 2 also states:  "...Open Game Content may only be Used under and in terms of this License.  You must affix such a notice..."



I'm looking at this version - https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf -  which likewise begins

Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.0 (“SRD5”) is granted solely through the use of the Open Gaming License, Version 1.0a.​
That statement, as best I can tell, is WotC's statement of offer to license the SRD under the terms of the OGL. They are reserving their rights in the sense of stating that they grant the right to use their content solely pursuant to the OGL v 1.0a.

This statement is not itself a component of, or a term of, the OGL. It doesn't confer rights on anyone. The rights that WotC is reserving are not rights that need to be granted - they are its rights in its IP.


----------



## Hussar

mamba said:


> that does not mean the license is not open, only that they did not license this part under it
> 
> Any 3PP can do the exact same thing too. You specify what part of your product is covered by the open license and what part is not




That is not true. 

You absolutely cannot declare open content to be closed, for example. I can’t copy your ogc and then declare it closed. 

We saw tons of broken open content in the early years of the ogl where people would basically try to wall off their entire works by making it virtually impossible to separate the ogc from ip.


----------



## mamba

FrogReaver said:


> Maybe you don't understand what Open means?



maybe I do, it does not mean public domain. Any open license comes with restrictions by its very nature. None of the ones the OGL 1.0 has make it not an open license.

So let’s cut to the chase again, show me the clause in the OGL that makes it not an open license and what condition of an open license definition it violates.


----------



## mamba

Hussar said:


> That is not true.
> 
> You absolutely cannot declare open content to be closed, for example. I can’t copy your ogc and then declare it closed.



agreed, when I wrote their product I meant their original content in their product


----------



## Hussar

mamba said:


> maybe I do, it does not mean public domain. Any open license comes with restrictions by its very nature. None of the ones the OGL 1.0 has make it not an open license.
> 
> So let’s cut to the chase again, show me the clause in the OGL that makes it not an open license and what condition of an open license definition it violates.




Can you show the same about the new OGL?


----------



## FrogReaver

mamba said:


> maybe I do, it does not mean public domain. Any open license comes with restrictions by its very nature. None of the ones the OGL 1.0 has make it not an open license.



You are correct.  I was wrong.  I read up more on open source software.  There can be some requirements in place and something can still be open.  Generally in open source software this would be differentiated by calling one more permissive and the other less permissive.  That said openness is generally connotated with quite a bit of permissiveness - and thus at some point being to restrictive would cause people to stop calling something open.  I no longer believe the few restrictions in OGL 1.0/1.0a make it so unpermissive that it ceases to be open.



mamba said:


> So let’s cut to the chase again, show me the clause in the OGL that makes it not an open license and what condition of an open license definition it violates.



Do you agree that at some point having too many/too strict of requirements can mean something is not open?


----------



## FrogReaver

Hussar said:


> Can you show the same about the new OGL?



The royalty for OGL 1.1 would make it not open.  Open is about being able to use, distribute and modify freely.


----------



## Art Waring

bedir than said:


> If all they do is allow a badge, requiring it at a certain volume and have a tiny royalty for big money making companies that's actually really open.
> 
> Talk to people writing for closed licenses about their struggles. OGL 1.1 is not a closed license, no matter how much people arguing on the internet insist it is.



Except you haven't seen the final draft of the 1.1 ogl, so how do you know that its "actually really open?"

A trademarked badge, reporting income, and royalties ARE NOT PART OF ANY OPEN LICENSE. *One of the primary definitions of an open license is that its royalty free*.

Calling it a "tiny royalty" when you don't even know what they will be charging is also disingenuous. The fact that they are changing the terms of the license should be enough of an indication that it isn't the same license as the 1.0 OGL.

I guess I'll repeat it because you keep repeating yourself:

Just because it says "1.1 OGL" does not mean that it is actually an open license.


----------



## FrogReaver

pemerton said:


> I'm looking at this version - https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf -  which likewise begins



That's the same URL i use.



pemerton said:


> Permission to copy, modify and distribute the files collectively known as the System Reference Document 5.0 (“SRD5”) is granted solely through the use of the Open Gaming License, Version 1.0a.​
> That statement, as best I can tell, is WotC's statement of offer to license the SRD under the terms of the OGL. They are reserving their rights in the sense of stating that they grant the right to use their content solely pursuant to the OGL v 1.0a.



Since they grant the right to use OGC solely through the OGL 1.0a then wouldn't licensing OGC via a completely new license (not just an updated version) mean they are no longer granting rights to use the OGC *solely* through the OGL 1.0a?



pemerton said:


> This statement is not itself a component of, or a term of, the OGL. It doesn't confer rights on anyone. The rights that WotC is reserving are not rights that need to be granted - they are its rights in its IP.



Section 2 of the OGL mandates a statement similar to that one be added to all OGC.  Doesn't that make it a term of the OGL?


----------



## mamba

Hussar said:


> Can you show the same about the new OGL?



no because it is not released yet, as you know, but as I mentioned earlier in another reply to you the fee would violate those requirements.

So you should already have known that too, or you do not care for my answers anyway. In either case there is not really much point in me replying / you asking.

I get it that you have taken on the role of the WotC shill or employee for whatever reason, but maybe be less annoying about it and do not ask me things I already told you in other posts, like your question is some kind of gotcha


----------



## Reynard

FrogReaver said:


> Since they grant the right to use OGC solely through the OGL 1.0a then wouldn't licensing OGC via a completely new license (not just an updated version) mean they are no longer granting rights to use the OGC *solely* through the OGL 1.0a?



I think you are over thinking it. this statement is attached to the SRD as a means to indicate that the SRD itself is NOT a document being released into the public domain. The SRD is only licensed by way of the OGL 1.0a -- not creative commons or anything else. In order to use it, you must use the OGL 1.0a. That's all. From there, the actual stipulations of OGL 1.0a take hold.


----------



## mamba

FrogReaver said:


> You are correct.  I was wrong.



thanks, rare that anyone admits they were wrong these days, so I appreciate that



FrogReaver said:


> Do you agree that at some point having too many/too strict of requirements can mean something is not open?



of course, otherwise the word becomes meaningless

To me one such case is requiring a fee (hello OGL 1.1)


----------



## Alzrius

Reynard said:


> I think you are over thinking it. this statement is attached to the SRD as a means to indicate that the SRD itself is NOT a document being released into the public domain. The SRD is only licensed by way of the OGL 1.0a -- not creative commons or anything else. In order to use it, you must use the OGL 1.0a. That's all. From there, the actual stipulations of OGL 1.0a take hold.



For what it's worth, I spoke to an IP lawyer who I know through work, and he affirmed that in his judgment, that notice was just a boilerplate statement making it clear that the 5.1 SRD wasn't any sort of public domain work, rather than specifying that it was only meant to be used with a particular iteration of the OGL.


----------



## Reynard

Alzrius said:


> For what it's worth, I spoke to an IP lawyer who I know through work, and he affirmed that in his judgment, that notice was just a boilerplate statement making it clear that the 5.1 SRD wasn't any sort of public domain work, rather than specifying that it was only meant to be used with a particular iteration of the OGL.



Did he happen to weigh in on whether "OGL 1.1" would actually be an new version of OGL 1.0a, or if it would have to be a new license given the changes?


----------



## Alzrius

Reynard said:


> Did he happen to weigh in on whether "OGL 1.1" would actually be an new version of OGL 1.0a, or if it would have to be a new license given the changes?



No, though to be fair that didn't really come up, outside of an allusion to needing to see the specific terms of the  OGL v1.1 once it was released.


----------



## Art Waring

I'll post this here so that folks can see what the Open Gaming Foundation defines as an open license:



> The Open Gaming Foundation believes that a license must provide for two important features in order to be an Open Game license.
> 
> 
> 1. The license must allow game rules and materials that use game rules to be freely copied, modified and distributed.
> 2.  The license must ensure that material distributed using the license cannot have those permissions restricted in the future.
> 
> 
> The first requirement precludes an Open Gaming License from placing any limitation on the licensed content beyond those necessary to enforce the terms of the license itself.  *This prohibition includes a restriction against commercial distribution, a requirement for review or approval, the payment of a fee of any kind to a 3rd party, or any other term that would seek to limit the free use of the licensed material*.
> 
> 
> The second requirement means that the license must have a mechanism to ensure that the rights it grants cannot be taken away, either by the original contributor of the material, of the copyright holder of the license text itself, by an action taken on behalf of a 3rd party, or any other process.


----------



## FrogReaver

Alzrius said:


> For what it's worth, I spoke to an IP lawyer who I know through work, and he affirmed that in his judgment, that notice was just a boilerplate statement making it clear that the 5.1 SRD wasn't any sort of public domain work, rather than specifying that it was only meant to be used with a particular iteration of the OGL.



Did he happen to comment on why section 2 of the OGL requires that kind of notice be attached to all OGC?

I guess presumably it could be for a similar reason?


----------



## Alzrius

FrogReaver said:


> Did he happen to comment on why section 2 of the OGL requires that kind of notice be attached to all OGC?
> 
> I guess presumably it could be for a similar reason?



I probably _should_ have asked him that, but I didn't think to.


----------



## bedir than

mamba said:


> which ones do you consider that to be ?



I consider it much closer to open than closed. But I also refuse to think that this is a binary situation.


Art Waring said:


> Except you haven't seen the final draft of the 1.1 ogl, so how do you know that its "actually really open?"
> 
> A trademarked badge, reporting income, and royalties ARE NOT PART OF ANY OPEN LICENSE. *One of the primary definitions of an open license is that its royalty free*.



I haven't claimed that it actually is open. I've stated that it is closer to the ideal of an open license than it is to the 'ideal' of a closed license.


----------



## Art Waring

bedir than said:


> I haven't claimed that it actually is open. I've stated that it is closer to the ideal of an open license than it is to the 'ideal' of a closed license.



You are of course free to amend your original statement, but I quoted your original words, which were that its "actually really open." see your quote below.



bedir than said:


> If all they do is allow a badge, requiring it at a certain volume and have a tiny royalty for big money making companies that's actually really open.



You are of course again free to speculate as to the "ideal" of the license, however you are still ignoring the clear fact that requiring the reporting of income and the payment of royalties are the exact opposite of an open license according to the OGF.

I will quote it again so that you can read it because it is relevant to the conversation.



> The Open Gaming Foundation believes that a license must provide for two important features in order to be an Open Game license.
> 
> 
> 1. The license must allow game rules and materials that use game rules to be freely copied, modified and distributed.
> 2.  The license must ensure that material distributed using the license cannot have those permissions restricted in the future.
> 
> 
> The first requirement precludes an Open Gaming License from placing any limitation on the licensed content beyond those necessary to enforce the terms of the license itself.  *This prohibition includes a restriction against commercial distribution, a requirement for review or approval, the payment of a fee of any kind to a 3rd party, or any other term that would seek to limit the free use of the licensed material*.
> 
> 
> The second requirement means that the license must have a mechanism to ensure that the rights it grants cannot be taken away, either by the original contributor of the material, of the copyright holder of the license text itself, by an action taken on behalf of a 3rd party, or any other process.


----------



## bedir than

Art Waring said:


> You are of course free to amend your original statement, but I quoted your original words, which were that its "actually really open." see your quote below.
> 
> 
> You are of course again free to speculate as to the "ideal" of the license, however you are still ignoring the clear fact that requiring the reporting of income and the payment of royalties are the exact opposite of an open license according to the OGF.
> 
> I will quote it again so that you can read it because it is relevant to the conversation.



By the letter of the OGF statement you quoted the current OGL is not an open license.

So I guess you win. there are zero open licenses for D&D


----------



## Art Waring

bedir than said:


> By the letter of the OGF statement you quoted the current OGL is not an open license.
> 
> So I guess you win. there are zero open licenses for D&D



Um, no, they list the 1.0a OGL as one of several open licenses which they list on their website, its right there on the OGF list.


----------



## bedir than

Art Waring said:


> Um, no, they list the 1.0a OGL as one of several open licenses which they list on their website, its right there on the OGF list.



In your binary worldview either point one matters or it doesn't



> 1. The license must allow game rules and materials that use game rules to be freely copied, modified and distributed.




Not every material using game rules is permitted to be freely copied, modified and distributed. There is an entire section that defines what is Open Gaming Content and what is not.

It seems rather silly to get into this level of pedantry about any OGL. But, those screaming about how the OGL 1.1 is absolute afront to the fans of the game are doing this.

What makes sense is to wait to see the actual OGL 1.1, discuss the ramifications to publishers at different scales as well as to the ramifications for people who enjoy the game.

It certainly won't be as dire as the OP here has claimed, calling for a revolution against Wizards of the Coast. It certainly won't be a massive money maker for Wizards either, no matter what they think. There's pennies at stake, considering less than two dozen companies qualify for the most limited version of 1.1


----------



## Art Waring

bedir than said:


> In your binary worldview either point one matters or it doesn't
> 
> 
> 
> Not every material using game rules is permitted to be freely copied, modified and distributed. There is an entire section that defines what is Open Gaming Content and what is not.
> 
> It seems rather silly to get into this level of pedantry about any OGL. But, those screaming about how the OGL 1.1 is absolute afront to the fans of the game are doing this.
> 
> What makes sense is to wait to see the actual OGL 1.1, discuss the ramifications to publishers at different scales as well as to the ramifications for people who enjoy the game.
> 
> It certainly won't be as dire as the OP here has claimed, calling for a revolution against Wizards of the Coast. It certainly won't be a massive money maker for Wizards either, no matter what they think. There's pennies at stake, considering less than two dozen companies qualify for the most limited version of 1.1



Its cool man, but I am seeing a lot of hyperbole here, I think its fair to say that you don't agree, but no need to try and win an argument, because I don't care about any of that.

I care about being clear about what constitutes an open license and what doesn't, that has nothing to do with what you claim is my "binary world view" so take it easy man. Its not polite to make assumptions like that, lets try and keep things civil. 

(I tend to see most of life in shades of grey BTW, but legal contracts are another matter entirely).

What I am talking about has to do with the legal wording of the license, which has very little room for grey area, either a license works as an open lcense or it doesn't. That doesn't mean I look at the entire world like its monochromatic, black or white, or all striped in plaid.

Glad to have conversed with you...


----------



## mamba

bedir than said:


> I consider it much closer to open than closed. But I also refuse to think that this is a binary situation.



it isn't binary, nobody said that it is. But at the time you definitely were focusing on which side of the divide it falls on


bedir than said:


> If we want to act in a binary, the original D&D OGL isn't open.


----------



## mamba

bedir than said:


> By the letter of the OGF statement you quoted the current OGL is not an open license.



Please elaborate


----------



## mamba

bedir than said:


> Not every material using game rules is permitted to be freely copied, modified and distributed. There is an entire section that defines what is Open Gaming Content and what is not.



so you are confusing what part is the license with what part is the content covered under the license.

The license is open, not all D&D is covered under the license so not all of D&D is open.



bedir than said:


> It certainly won't be as dire as the OP here has claimed, calling for a revolution against Wizards of the Coast. It certainly won't be a massive money maker for Wizards either, no matter what they think. There's pennies at stake, considering less than two dozen companies qualify for the most limited version of 1.1



the problem with the new license is not the amount WotC may be able to make from it. I agree from WotC's perspective there are pennies at stake, which makes this all the more foolish, because there is more than pennies at risk imo. The risk / reward is simply not in favor of doing this.

As to how dire it is, the best comparison we have is still 4e / the GSL, check how well that went for 3PP support. I think it will be different this time, simply because it is much easier to ignore the OGL 1.1 than it was to do with the GSL. The threat they pose is essentially the same however (to be verified once we have the final terms).


----------



## pemerton

FrogReaver said:


> Since they grant the right to use OGC solely through the OGL 1.0a then wouldn't licensing OGC via a completely new license (not just an updated version) mean they are no longer granting rights to use the OGC *solely* through the OGL 1.0a?



Yes. Like I set up a shop in the front of my house, and say that I will only sell for cash. Then, later on, I decide to sell also for cheques made out to "cash".

It's their statement of offer, not a term of the contract. The contract is constituted by the OGL, which does not forbid someone offering a different licence in respect of their work. (Of course that alternative licence couldn't purport to be _exclusive_, if the work has also licensed under the OGL (and hence) on an irrevocable basis.)



FrogReaver said:


> Section 2 of the OGL mandates a statement similar to that one be added to all OGC.  Doesn't that make it a term of the OGL?



Section 2 requires a notice "indicating that the Open Game Content may only be Used under and in terms of this License".

The SRD does not contain a notice literally in that form. It contains the statement of permission to use solely under the OGL; then three paragraphs down there is a long list of items that "are designated Product Identity, as defined in Section 1(e) of the Open Game License Version 1.0a, and are subject to the conditions set forth in Section 7 of the OGL, and are not Open Content". Then there is a statement that "All of the rest of the SRD5 is Open Game Content as described in Section 1(d) of the License."

Of course, WotC do not need a literal section 2 statement, because all of their material is OGC only in virtue of their voluntarily declaring it as such, by making the offer to the world to license it under the OGL.

Whereas when someone else publishes a work that includes OGC authored by WotC or some other party, they are granted a licence to use that OGC only in virtue of the operation of section 4 of the OGL. The section 2 statement made by that publisher ensures that they expressly state the terms on which they are licensed to use the OGC and to sub-license its use.

If that publisher has authored their own material in respect of which no one else has a copyright claim (ie it is not derivative of another's work), then my view is that nothing would stop them from simultaneously licensing that material pursuant to another agreement, should they wish to do so.

An example:

Suppose I write up a set of RPG rules for determining when encounters happen in a fantasy city. And suppose, for the sake of argument, that no one else has any sort of copyright claim in the rules that I write up (ie they are not derivative of Gygax's Appendix C City/Town encounter matrix, nor anyone else's random encounter tables, nor Vincent Baker's Oracles in In A Wicked Age, nor the Events tables in Torchbearer, etc).

I could publish my rules without need a licence from anyone. Having done so, I could also licence you to include the rules in your publication.

Assuming that my licence granted to you did not include a binding promise that it be exclusive, I could also publish my rules, _including stat blocks from WotC's SRD_, pursuant to the OGL, and if I wanted to I could declare my rules OGC. (I don't think I would be obliged to do that, although I will admit I find the definition of Open Gaming Content in the OGL a bit hard to parse.)

At that point you would still have your licence, but others who take up my offer under the OGL would also have licences. And they would be authorised to sub-license, although (as per section 2) only pursuant to the OGL.

In the scenario I've just set out, I don't see that I am breaking my obligations to any licensee.


----------



## pemerton

Reynard said:


> I think you are over thinking it. this statement is attached to the SRD as a means to indicate that the SRD itself is NOT a document being released into the public domain. The SRD is only licensed by way of the OGL 1.0a -- not creative commons or anything else. In order to use it, you must use the OGL 1.0a. That's all. From there, the actual stipulations of OGL 1.0a take hold.





Alzrius said:


> For what it's worth, I spoke to an IP lawyer who I know through work, and he affirmed that in his judgment, that notice was just a boilerplate statement making it clear that the 5.1 SRD wasn't any sort of public domain work, rather than specifying that it was only meant to be used with a particular iteration of the OGL.



Yes. I posted this already upthread.


----------



## pemerton

Reynard said:


> Did he happen to weigh in on whether "OGL 1.1" would actually be an new version of OGL 1.0a, or if it would have to be a new license given the changes?



As I've already posted, no one can know this without seeing the text of the proposed licence.


----------



## Alzrius

pemerton said:


> Yes. I posted this already upthread.



So did I.


----------



## bedir than

mamba said:


> Please elaborate



The quote from the OGF says all of the game must be available via the license. In the original OGL that is untrue.

Also, I wouldn't necessarily consider a website that hasn't updated in a decade the authority on what is or isn't an OGL considering they stopped updating as more and more companies have released variants.


----------



## Hussar

mamba said:


> I get it that you have taken on the role of the WotC shill or employee for whatever reason, but maybe be less annoying about it and do not ask me things I already told you in other posts, like your question is some kind of gotcha




It appears that we are talking past one another so I will bow out. 

As far as being a “shill” I just remember quite clearly watching people endlessly beat the drum about 4e based on nothing but speculation that still gets repeated to this day. 

I will always oppose baseless speculation that is endlessly negative. It’s the poison that makes fandom such a toxic cesspool.


----------



## mamba

Hussar said:


> It appears that we are talking past one another so I will bow out.



no need to disappear, but your one line gotcha question was something I had answered maybe 5 hours before in another reply to you. Also, you know very well that the license has not been released so I could not point you to a section (that is the gotcha part).


Hussar said:


> As far as being a “shill” I just remember quite clearly watching people endlessly beat the drum about 4e based on nothing but speculation that still gets repeated to this day.
> 
> I will always oppose baseless speculation that is endlessly negative. It’s the poison that makes fandom such a toxic cesspool.



I get the sentiment, believe it or not but there are instances where I am doing the same thing about this  Mostly about what it means to OGL 1.0 however, OGL 1.1 can go screw itself. From where I stand you are also endlessly beating back with equally unfounded speculation however, just in the opposite direction


----------



## mamba

bedir than said:


> The quote from the OGF says all of the game must be available via the license. In the original OGL that is untrue.



It doesn't say 'all'. Here is the quote again

"1. The license must allow game rules and materials that use game rules to be freely copied, modified and distributed.
2. The license must ensure that material distributed using the license cannot have those permissions restricted in the future."

both of these are fulfilled by the current OGL, i.e. true for all material licensed under it.



bedir than said:


> Also, I wouldn't necessarily consider a website that hasn't updated in a decade the authority on what is or isn't an OGL considering they stopped updating as more and more companies have released variants.



they aren't but this is not the only definition that essentially agrees that the OGL is an open license (and that a fee makes it not-open)


----------



## Xyxox

I see the OGL 1.1 as basically an Amazon license. If they like your idea, you're done. They will take it and Amazon Collecti... er... One D&D it. They already do that with anything you save to D&D Beyond as fan content, this license just let's them do it more easily with third party commercial IP.


----------



## Maxperson

FrogReaver said:


> Since they grant the right to use OGC solely through the OGL 1.0a then wouldn't licensing OGC via a completely new license (not just an updated version) mean they are no longer granting rights to use the OGC *solely* through the OGL 1.0a?



We already know that they've granted special licenses to companies, so clearly they believe that they can grant use outside of the OGL.  I'm going to bet that they have multiple good lawyers, so they are most likely correct in their belief.


----------



## mamba

Maxperson said:


> I'm going to bet that they have multiple good lawyers, so they are most likely correct in their belief.



no idea, but I am willing to bet that proving them wrong will be cost prohibitive


----------



## Incenjucar

Xyxox said:


> I see the OGL 1.1 as basically an Amazon license. If they like your idea, you're done. They will take it and Amazon Collecti... er... One D&D it. They already do that with anything you save to D&D Beyond as fan content, this license just let's them do it more easily with third party commercial IP.



WotC doesn't have enough output for this to be a significant risk.


----------



## Maxperson

mamba said:


> no idea, but I am willing to bet that proving them wrong will be cost prohibitive



True enough!


----------



## UngeheuerLich

mamba said:


> no need to disappear, but your one line gotcha question was something I had answered maybe 5 hours before in another reply to you. Also, you know very well that the license has not been released so I could not point you to a section (that is the gotcha part).
> 
> I get the sentiment, believe it or not but there are instances where I am doing the same thing about this  Mostly about what it means to OGL 1.0 however, OGL 1.1 can go screw itself. From where I stand you are also endlessly beating back with equally unfounded speculation however, just in the opposite direction




His one is positive until proven otherwise, yours is negative.
He speaks about toxicity. 4e got totally unwaranted negativity from people who probably have not even read the books.

So no. You are not doing the same.


----------



## Morrus

Xyxox said:


> I see the OGL 1.1 as basically an Amazon license. If they like your idea, you're done. They will take it and Amazon Collecti... er... One D&D it. They already do that with anything you save to D&D Beyond as fan content, this license just let's them do it more easily with third party commercial IP.



The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.


----------



## Alzrius

Morrus said:


> The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.



In point of fact, they used two monsters from Sword & Sorcery Studios' _Creature Collection_ in the 3E _Monster Manual II_.


----------



## FrogReaver

Maxperson said:


> We already know that they've granted special licenses to companies, so clearly they believe that they can grant use outside of the OGL.  I'm going to bet that they have multiple good lawyers, so they are most likely correct in their belief.



You aren’t understanding what I’m saying.

They own the copyright to all the material. They can place it together in different products however they want. So yes, you will see orcs under many licenses. I’m saying you will not see the SRD 5.1 itself under different licenses and to my knowledge it never has been issued under another license.

*Note reading some of the comments from people more tied in the legal profession I could be wrong about this part as well, but I’m not suggesting that orcs can only be released under 1 license. 

Make more sense?


----------



## FrogReaver

UngeheuerLich said:


> His one is positive until proven otherwise, yours is negative.
> He speaks about toxicity. 4e got totally unwaranted negativity from people who probably have not even read the books.
> 
> So no. You are not doing the same.



IMO most people don’t need to read a book to know it’s not what they are looking for. Reviews and a few example paragraphs usually do the trick.


----------



## mamba

UngeheuerLich said:


> His one is positive until proven otherwise, yours is negative.
> He speaks about toxicity. 4e got totally unwaranted negativity from people who probably have not even read the books.
> 
> So no. You are not doing the same.



Tell me where I was negative about OneD&D, I don’t think I said anything about it at all…

We both are speculating, he just takes the most positive spin possible while from my perspective I am realistic about what the announcement means about the terms of 1.1

If he stuck to ‘none of this is final, wait for the facts’, I’d respect that, but no, we both are speculating


----------



## GMforPowergamers

mamba said:


> no idea, but I am willing to bet that proving them wrong will be cost prohibitive



that is how big companies... (I want to say bully but that word will cause issues) compel smaller ones to do what they want


----------



## UngeheuerLich

FrogReaver said:


> IMO most people don’t need to read a book to know it’s not what they are looking for. Reviews and a few example paragraphs usually do the trick.




So you judge a book by the cover (mainly).

People wrote reviews without having played 4e. Internet reviews are often not reviews but often it is just rant.


----------



## Cadence

If you can't stop relitigating 4e in threads not about 4e, please go away before the thread gets shut down for the rest of us. It isn't hard, just stop responding.


----------



## mamba

UngeheuerLich said:


> People wrote reviews without having played 4e. Internet reviews are often not reviews but often it is just rant.



No one is writing a review of One D&D here


----------



## FrogReaver

UngeheuerLich said:


> So you judge a book by the cover (mainly).



I never said or implied that...



UngeheuerLich said:


> People wrote reviews without having played 4e.



Sorry but what does playing have to do with reading?  - your initial claim was they never read it



UngeheuerLich said:


> Internet reviews are often not reviews but often it is just rant.



Maybe one mans rant is another man's review.  I think it tends to depend on how much you agree with the reviewer/ranter.


----------



## UngeheuerLich

FrogReaver said:


> I never said or implied that... (1)
> 
> 
> Sorry but what does playing have to do with reading?  - your initial claim was they never read it (2)
> 
> Maybe one mans rant is another man's review.  I think it tends to depend on how much you agree with the reviewer/ranter. (3)




1. That was what you suggested. Reading the cover text and a few paragraphs. If I understood you wrong. Sorry. 

2. I gave them the benefit of the doubt. From the reviews I read back then, people might not have read the core books.

3. Yes. But it is something to keep in mind. In the case of 4e, there were a lot of baseless claims...


----------



## UngeheuerLich

mamba said:


> No one is writing a review of One D&D here




But you are making up things. (As does Hussar*). Can we just wait a few days and see what is actually in the OGL 1.1.?

We have enough baseless idiocy on youtube.

*but I like his ideas way nore than yours, because of positivity. Yours sounds too much like "omg, wotc hates us all". If I got you wrong, people who want to inform themselves about what is ups with no background knwledge could get you wrong too and now wotc might have a cutomer/3rdPary creator less, based on nothing. So I think Hussar giving contra was a good thing.


----------



## Maxperson

FrogReaver said:


> You aren’t understanding what I’m saying.
> 
> They own the copyright to all the material. They can place it together in different products however they want. So yes, you will see orcs under many licenses. I’m saying you will not see the SRD 5.1 itself under different licenses and to my knowledge it never has been issued under another license.
> 
> *Note reading some of the comments from people more tied in the legal profession I could be wrong about this part as well, but I’m not suggesting that orcs can only be released under 1 license.
> 
> Make more sense?



Yes and no.  Yes in the sense that I understand what you are saying now.  No in the sense that I don't see why it matters.

WotC is changing the races, classes, monsters, etc. with the release of 5.5.  They will need to put out a new SRD when that happens.  If you want to use 5.1, you use OGL 1.0a.  If you want to use SRD 5.2(made up name), then you would use OGL 1.1.  The two SRDs could have 80%(made up number) of the same information used in them, with SRD 5.2 containing the 5.5 changes as the 20% difference between the two.

Now lets say you want to create a product that contains both SRD 5.1 and SRD 5.2 material.  You should be able to do that from what I'm seeing.  If you wanted to use 5e orcs because you like that particular stat block, you could use SRD 5.1 and OGL 1.0a.  If you prefer the 5.5e trolls stat block, you'd use SRD 5.2 and OGL 1.1 to do it.  As long as you comply with all the requirements for each OGL, that should be doable.


----------



## FrogReaver

Maxperson said:


> Yes and no.  Yes in the sense that I understand what you are saying now.  No in the sense that I don't see why it matters.



IMO, for practical purposes it doesn't matter.  


Maxperson said:


> WotC is changing the races, classes, monsters, etc. with the release of 5.5.  They will need to put out a new SRD when that happens.  If you want to use 5.1, you use OGL 1.0a.  If you want to use SRD 5.2(made up name), then you would use OGL 1.1.  The two SRDs could have 80%(made up number) of the same information used in them, with SRD 5.2 containing the 5.5 changes as the 20% difference between the two.
> 
> Now lets say you want to create a product that contains both SRD 5.1 and SRD 5.2 material.  You should be able to do that from what I'm seeing.  If you wanted to use 5e orcs because you like that particular stat block, you could use SRD 5.1 and OGL 1.0a.  If you prefer the 5.5e trolls stat block, you'd use SRD 5.2 and OGL 1.1 to do it.  As long as you comply with all the requirements for each OGL, that should be doable.



Agreed.


----------



## FrogReaver

UngeheuerLich said:


> 1. That was what you suggested. Reading the cover text and a few paragraphs. If I understood you wrong. Sorry.



I consider the leaving out my addition of reviews to that list of stuff i suggested to be the missing piece of the explanation.



UngeheuerLich said:


> 2. I gave them the benefit of the doubt. From the reviews I read back then, people might not have read the core books.



Which is why i suggest to both look at the review and some of what the book itself says.  If both seem to be in alignment then great.  If not then you probably want to find another reviewer.

That still doesn't mean you need to read anywhere near the whole book to make an accurate assessment about it.



UngeheuerLich said:


> 3. Yes. But it is something to keep in mind. In the case of 4e, there were a lot of baseless claims...



Yes and no.  Most claims are opinions and the only baseless opinions are the ones I disagree with


----------



## mamba

UngeheuerLich said:


> But you are making up things. (As does Hussar*). Can we just wait a few days and see what is actually in the OGL 1.1.?



why? I already know that there are things in it that I am *entirely* against, because they announced them. I do not need to wait for the details to find out whether I will.
It’s like being told ‘yeah, but you do not know the exact shade of green your car will be in’ when I wanted a red one

As someone said, if you have objections, the time to speak out is before they release it, and I agree



UngeheuerLich said:


> We have enough baseless idiocy on youtube.



if you consider my comments baseless idiocy, I do not really know what to tell you. If you don’t, then what does this have to do with anything?



UngeheuerLich said:


> *but I like his ideas way nore than yours, because of positivity. Yours sounds too much like "omg, wotc hates us all".



really? All I am saying is that I do not like what they announced, what I do not like about it, wonder about how 3PPs will react to it, and pointing out that so far there is zero incentive for them to go with 1.1 over 1.0
Oh, and to point out that the risk reward ratio for this is not at all in favor of doing this from how I see it.

This is across all three or however many threads about this. At no point did I say anything about WotC



UngeheuerLich said:


> If I got you wrong, people who want to inform themselves about what is ups with no background knwledge could get you wrong too and now wotc might have a cutomer/3rdPary creator less, based on nothing. So I think Hussar giving contra was a good thing.



I have zero problem with him doing so, I got annoyed when he posted a one liner to which he already knew my answer and also knew that what he was asking me to provide was impossible


----------



## UngeheuerLich

FrogReaver said:


> I consider the leaving out my addition of reviews to that list of stuff i suggested to be the missing piece of the explanation.




I left the review out, because as far as I can see, writing a review based on a review is... bad practice...

I did not say, you do it, but this was what I was referring to.

Edit: regarding you:
I said: basing one's opinion entirely on the cover and a few paragraphs and some _random_ reviews can work, it can also mean you miss something you would have liked.


----------



## FrogReaver

UngeheuerLich said:


> I left the review out, because as far as I can see, writing a review based on a review is... bad practice...



WHO is defending writing a review based solely on a review?



UngeheuerLich said:


> I did not say, you do it, but this was what I was referring to.



The rest of my post you didn't quote actually talked about just that.  See below.



FrogReaver said:


> Which is why i suggest to both look at the review and some of what the book itself says.  If both seem to be in alignment, then great.  If not then you probably want to find another reviewer.



Like what are you even arguing with me about?


----------



## UngeheuerLich

FrogReaver said:


> Like what are we even arguing about?




Probably nothing.

I just rejected, that it is a good idea to judge something by the cover and random reviews.


----------



## FrogReaver

UngeheuerLich said:


> Probably nothing.
> 
> I just rejected, that it is a good idea to judge something by the cover and random reviews.



And I reject the notion that one must buy a product (and/or read it in full) before one is allowed to have an opinion about it.


----------



## UngeheuerLich

FrogReaver said:


> And I reject the notion that one must buy a product (and/or read it in full) before one is allowed to have an opinion about it.




One can have an opinion. As long as it is not stated as fact.


----------



## pemerton

FrogReaver said:


> They own the copyright to all the material. They can place it together in different products however they want. So yes, you will see orcs under many licenses. I’m saying you will not see the SRD 5.1 itself under different licenses and to my knowledge it never has been issued under another license.



Likewise to the best of my knowledge.

But why would it be? As I understand it, he whole point of the SRD, compiled as it is, made available to the public, and then bifurcated into OCG and Product Identity, is to permit licensing of the OGC under the OGL v 1.0a.


----------



## Morrus

pemerton said:


> Likewise to the best of my knowledge.
> 
> But why would it be? As I understand it, he whole point of the SRD, compiled as it is, made available to the public, and then bifurcated into OCG and Product Identity, is to permit licensing of the OGC under the OGL v 1.0a.



Pretty much.


----------



## glass

Alzrius said:


> No, that's not what Section 12 means. Moreover, Section 9 is pretty clear that you _can_ use Open Game Content released under any version of the OGL with any other version of the OGL.



The OP is possibly wrong about _why_ OGL 1.0A and OGL 1.1 are potentially incompatible, but they are not wrong about the incompatibility (section 2 says you may not add extra restrictions and releasing it under OGL 1.1 would be adding extra restrictions). IANAL, TINLA.



Baron Opal II said:


> I'm not seeing how the sky is falling here.



Can we have a moratorium on this phrase please? This is an elfgame forum; anything on a "sky falling" level would obviously be off topic and probably against the rules. There is plenty of room for this to be a bad thing for consumers, for 3PP, and I suspect for WotC too without reaching that mythical standard.



jdrakeh said:


> No version of the OGL has been "open content meaning you can use it in the manner you see fit" - every version of the OGL to date has had multiple restrictions and conditions that a publisher must adhere to in order to be in compliance (not using Product Identity without express permission, for example)



Since PI is explicitly not Open Content, that is not a restriction on doing what you please with Open Content. There _are_ restrictions of course, by definition because it is a licence rather than just releasing stuff as PD, but that is not one of them.



mamba said:


> At a minimum you enter your revenue on their website (starting at 50k) and once the number you enter exceeds 750k they have a form on which you can transfer money to them, just like any webstore offers. They can even prefill the amount



That is not the minimum they could require (which is "nothing", as per the current OGL). It is also not the minimum they have announced, given the requirement "let [WotC] know what you’re offering for sale".



darjr said:


> I’ve heard WotC and then Hasbro has been killing D&D for 22 years now.



I do not think WotC's recent and proposed actions will kill D&D, but I do think they will put quite a dent in it.



Greg Benage said:


> You don't need an OGL for DMs Guild, and it seems to have been pretty successful.



Which is another point against this change. WotC already have one closed licence which has been pretty successful. Why do they need to turn the OGL into another?



Dreamscape said:


> I am not a great fan of Pathfinder (having played it for a couple of years), but I cannot by any stretch of the imagination see how it can be interpreted as a negative...



I can easily see how it counts as a negative _for WotC_. OTOH, I cannot see how it counts as "support for OneD&D", which was the matter in question.



Hussar said:


> For those who publish OGC but make less than 700k - Nothing changed other than needing that Content Creator badge (see below)



Not true. If the OGL 1.1 is implemented as announced, everyone using it for commercial products will have to keep track of their OGL-related sales for compliance reasons, even if they do not actually hit the threshold (which is 50k not 700). Plus the vague but potentially terrifying requiremnents to pre-register and tell them "what you’re offering for sale" which are not revenue-dependant.



Hussar said:


> Yes, because requiring an email when you put something up for publication (let them know what you're offering for sale) and a once a year report of how much you made from selling OGL material (a number you will have to know to file your taxes) is a huge deal?



Even if that were true, making a version of the OGL that is not open is a pretty huge deal. And we can be reasonably confident that that is not true (for example, filing your taxes does not require you to account for whether income is OGL-related in an jurisdiction I am aware of).



mamba said:


> several definitions of an open license require that there is no fee associated with the use...



Including any and all definitions that are descriptively useful.



bedir than said:


> The quote from the OGF says all of the game must be available via the license. In the original OGL that is untrue.



It says nothing of the sort. It says the "licensed content"; there is not requirement stated or even implied for the licensed content to be the whole game.



FrogReaver said:


> And I reject the notion that one must buy a product (and/or read it in full) before one is allowed to have an opinion about it.



Agreed. Ever notice how accusations of "you haven't read it therefore you are wrong about it" are almost never accompanied about any specifics about what you are wrong about?


----------



## FrogReaver

UngeheuerLich said:


> One can have an opinion. As long as it is not stated as fact.




I mean We can get into the realm of scientific facts or historical facts where there are cold hard facts, but most everything else is just an opinion that most likely is being stated as fact.

i don’t particularly mind if someone says something disputable without adding IMO.  I don’t need them to acknowledge it’s their opinion in order to dispute their belief.  If they do add IMO then I am much less likely to dispute whatever it was (and others seem to be as well), which tends to make more pleasant online conversation when IMO is acknowledged, but otherwise it’s lack isn’t a concern or issue.


IMO


----------



## FrogReaver

glass said:


> Agreed. Ever notice how accusations of "you haven't read it therefore you are wrong about it" are almost never accompanied about any specifics about what you are wrong about?



Yep and it’s why It always comes off as gatekeeping to me. 

If I have an incorrect opinion about something you change my mind by listening to my points and offering evidence to the contrary.  If the points are convincing enough then eventually my mind will change, it’s usually not an instantaneous process though. However, Telling me my opinion isn’t valid because I haven’t met your requirements to have one just kicks me out of the conversation and hardens my incorrect opinion because I’m less likely to listen to people and those sharing similar opinions to me that treat me badly.


----------



## UngeheuerLich

FrogReaver said:


> I mean We can get into the realm of scientific facts or historical facts where there are cold hard facts, but most everything else is just an opinion that most likely is being stated as fact.
> 
> i don’t particularly mind if someone says something disputable without adding IMO.  I don’t need them to acknowledge it’s their opinion in order to dispute their belief.  If they do add IMO then I am much less likely to dispute whatever it was (and others seem to be as well), which tends to make more pleasant online conversation when IMO is acknowledged, but otherwise it’s lack isn’t a concern or issue.
> 
> 
> IMO




That is ok for me. But so do I state my opinion. And thus I point out what I see as baseless speculation. Or what I see as rant.


----------



## FrogReaver

UngeheuerLich said:


> That is ok for me. But so do I state my opinion. And thus I point out what I see as baseless speculation. Or what I see as rant.



I'd expect people to push back alot on claims that their opinion is baseless.  There's a vast gulf between speculation and baseless speculation.

Example of baseless speculation: I think WOTC is going to quadruple the price of their books tomorrow! 

Example of speculation that isn't baseless:  WOTC stated they want to monetize D&D more, these are some ways in which they may do that and based on my perception of WOTC's statement in the context of my experiences with other companies saying similar, etc, I think they will choose method X to increase monetization.  - speculation sure, but baseless - nah.


----------



## Hussar

glass said:


> Even if that were true, making a version of the OGL that is not open is a pretty huge deal. And we can be reasonably confident that that is not true (for example, filing your taxes does not require you to account for whether income is OGL-related in an jurisdiction I am aware of).



Of course it is.  Your income from an OGL product that you sold to someone is going to be listed separately from your income from your day job.  You don't just list one single income line on your taxes.  Different sources of income are broken out for tax purposes - after all, did you pay pension (if you're Canadian for example) on your OGL sales?  GST?  State or provincial sales taxes?   

What state lets you lump all your income together in one big ball without explaining where each part comes from?


----------



## FrogReaver

Hussar said:


> Of course it is.  Your income from an OGL product that you sold to someone is going to be listed separately from your income from your day job.  You don't just list one single income line on your taxes.  Different sources of income are broken out for tax purposes - after all, did you pay pension (if you're Canadian for example) on your OGL sales?  GST?  State or provincial sales taxes?
> 
> What state lets you lump all your income together in one big ball without explaining where each part comes from?



If you sale OGL and non-OGL products none of your taxes on any level (federal, state, local) are going to break that out.  The tax man don't care if you sold an OGL based product or not, they just care how much you made from selling products.

You are correct that such income will be differentiated from the income you earn on your job - but that's as far as that breakdown is going to go.


----------



## UngeheuerLich

FrogReaver said:


> I'd expect people to push back alot on claims that their opinion is baseless.  There's a vast gulf between speculation and baseless speculation.




Yes. But right now, we see a lot of baseless specualtion. As soon as we see what is actually written in the OGL 1.1, we have some base to talk about.

When we finally see how the reporting system works, we have some more base. And when they finally tell us how their stance about using the oler OGL is, we might stop speculating.

The creator badge could just be a sign that what you do is semi official. You might even use: compatible with OneDnD. This will help customers decide if something is actually worth something.
That does not mean in any way, that most 3rd party things are worth their money. But with the openness of the old OGL, there are grifters...

One thing going for the GSL for 4e (which someone posted) was that it disallowed things like book of erotic fantasy that appeared to be halfway official...

So there are a multitude of ways, how the new OGL might benefit the customers of 3rd party tools, and I hate the narrative many youtube videos try to propagate...

... that wotc is an evil corporation that just creates junk and sells it to clueless people who just don't know better...

... which is not only offending towards wotc, but every customer that decides to stick with D&D, because they like the system and have not found something that is really better.

(Not even LevelUp is strictly better. It is more detailed. If I had the time to immerse myself more into the system, I would probably use it... but right now... no chance...)


----------



## FrogReaver

UngeheuerLich said:


> Yes. But right now, we see a lot of baseless specualtion. As soon as we see what is actually written in the OGL 1.1, we have some base to talk about.



We already have a base to talk about.  WOTC announced OGL 1.1 is adding royalties and reporting.  They also announced they wanted to increase monetization of D&D.  

We also have the knowledge of what we've seen other companies that make such statements most often end up doing.  It's rarely consumer friendly.  Now we don't know exactly what WOTC will do, but that doesn't make speculation about it baseless.



UngeheuerLich said:


> When we finally see how the reporting system works, we have some more base. And when they finally tell us how their stance about using the oler OGL is, we might stop speculating.



Most of us view WOTC trying to put their hands into 3rd party businesses via income and product reporting requirements as not good.  All the details are going to do is show is whether it's just bad or really bad.



UngeheuerLich said:


> The creator badge could just be a sign that what you do is semi official. You might even use: compatible with OneDnD. This will help customers decide if something is actually worth something.
> That does not mean in any way, that most 3rd party things are worth their money. But with the openness of the old OGL, there are grifters...
> 
> One thing going for the GSL for 4e (which someone posted) was that it disallowed things like book of erotic fantasy that appeared to be halfway official...
> 
> So there are a multitude of ways, how the new OGL might benefit the customers of 3rd party tools, and I hate the narrative many youtube videos try to propagate...



Just saying - the things you list here have much less basis than almost anything else speculated on in this thread.  Are you actually against speculation or just speculation you don't like?



UngeheuerLich said:


> ... that wotc is an evil corporation that just creates junk and sells it to clueless people who just don't know better...
> 
> ... which is not only offending towards wotc, but every customer that decides to stick with D&D, because they like the system and have not found something that is really better.



WOTC also sells Magic the Gathering.  If you are not aware of what they did there then read up on it.  It's bad, 'evil' as you say.  Pure corporate greed that actively harmed the game.

Keep in mind, most of the people being critical about the OGL 1.1 changes and the more monetization announcement actually like 5e D&D.


----------



## Hussar

FrogReaver said:


> If you sale OGL and non-OGL products none of your taxes on any level (federal, state, local) are going to break that out. The tax man don't care if you sold an OGL based product or not, they just care how much you made from selling products.
> 
> You are correct that such income will be differentiated from the income you earn on your job - but that's as far as that breakdown is going to go.




But you are still going to know how much of each of your titles you sold. 

And you are going to have to know that to report your income.


----------



## Alzrius

glass said:


> The OP is possibly wrong about _why_ OGL 1.0A and OGL 1.1 are potentially incompatible, but they are not wrong about the incompatibility (section 2 says you may not add extra restrictions and releasing it under OGL 1.1 would be adding extra restrictions). IANAL, TINLA.



I'm not a lawyer either, but I disagree with you here. Section 2 says that you can't add any extra terms, which means that if you publish something under the OGL v1.0a, you can't add, for example, a Section 16 which reads "You agree to only publish products in Comic Sans font." You have to use the existing terms as they are, and can't alter them.

But as the last part of Section 2 says, that's only for "this License." The OGL v1.1, when it comes out, will be its own license, a new iteration of the OGL put out by WotC, and they can make it have whatever terms they want.


----------



## UngeheuerLich

FrogReaver said:


> Just saying - the things you list here have much less basis than almost anything else speculated on in this thread.  Are you actually against speculation or just speculation you don't like? (1)
> 
> 
> WOTC also sells Magic the Gathering.  If you are not aware of what they did there then read up on it.  It's bad, 'evil' as you say.  Pure corporate greed that actively harmed the game. (2)
> 
> Keep in mind, most of the people being critical about the OGL 1.1 changes and the more monetization announcement actually like 5e D&D. (3)




1) I hate the spreaded negativity. So I did speculate as you do. You can speculate. I can speculate. From my point of view both positions are equaly valid until we know more.

2) I tried to read it up. I could not find anything evil. Maybe I missed something, but if you refer to putting out the 1k set you can't use to play, no that is about as evil as selling a sheet of linen with some paint on it for 1k...

3) Not from what I gathered. Some people have hate against WotC or corporations in general. Some people have reasons for leaving no good word on 5e. The video attached to the opening post was just ramble how much he hates 5e. Sad...

So, speculate as much as you like. But right now, IMO we have not seen enough to draw our pitchforks and torches.

We could actually benefit from more monetization. It means they produce things we want, for prices we can afford.


----------



## mamba

UngeheuerLich said:


> Yes. But right now, we see a lot of baseless specualtion. As soon as we see what is actually written in the OGL 1.1, we have some base to talk about.



the announcement gave us a basis already



UngeheuerLich said:


> That does not mean in any way, that most 3rd party things are worth their money. But with the openness of the old OGL, there are grifters…



define grifter, right now all that comes to mind is ‘products I think are not worth their price’



UngeheuerLich said:


> One thing going for the GSL for 4e (which someone posted) was that it disallowed things like book of erotic fantasy that appeared to be halfway official...



I do not see that as a positive, just as one more negative. I would not buy it, much like there is a lot of other stuff I am not interested in, but I have no problem with it existing and someone else getting use out of it


----------



## GMforPowergamers

FrogReaver said:


> i don’t particularly mind if someone says something disputable without adding IMO.  I don’t need them to acknowledge it’s their opinion in order to dispute their belief.  If they do add IMO then I am much less likely to dispute whatever it was (and others seem to be as well), which tends to make more pleasant online conversation when IMO is acknowledged, but otherwise it’s lack isn’t a concern or issue.



this has come up a lot. I have had people tell me I need facts to back up things I think, and when I present the ideas that lead me to believe these things they say it isn't evidence under some standard.

Now plenty of people try to state facts. Plenty of people just state what they think and feel. The issue becomes that somehow here on enworld (and it appears only here not on onex path form not on tic tok or FB) become a 'gotcha' to say "you can't prove that as if it were a scientific reviewed paper"


----------



## FrogReaver

GMforPowergamers said:


> this has come up a lot. I have had people tell me I need facts to back up things I think, and when I present the ideas that lead me to believe these things they say it isn't evidence under some standard.
> 
> Now plenty of people try to state facts. Plenty of people just state what they think and feel. The issue becomes that somehow here on enworld (and it appears only here not on onex path form not on tic tok or FB) become a 'gotcha' to say "you can't prove that as if it were a scientific reviewed paper"



I think it’s a forum medium thing. Happened a lot on religious discussion forums I used to post on too.


----------



## glass

Hussar said:


> But you are still going to know how much of each of your titles you sold.



Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1. Which is based on a subset of income which, despite your protestation to the contrary, is not a subset that you need to care about for any other purpose (including OGL 1.0A). Could well be on a separate reporting period too.



Alzrius said:


> I'm not a lawyer either, but I disagree with you here. Section 2 says that you can't add any extra terms, which means that if you publish something under the OGL v1.0a, you can't add, for example, a Section 16 which reads "You agree to only publish products in Comic Sans font." You have to use the existing terms as they are, and can't alter them.
> 
> But as the last part of Section 2 says, that's only for "this License." The OGL v1.1, when it comes out, will be its own license, a new iteration of the OGL put out by WotC, and they can make it have whatever terms they want.



It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.


----------



## Baron Opal II

glass said:


> It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.



Okay, but the what is the difference between 1.0 and 1.0a? Is that is violation of Section 2? Or is the key part the addition in 1.0a that prevents further alterations or additions?


----------



## FrogReaver

Hussar said:


> But you are still going to know how much of each of your titles you sold.



in the age of digital sales I think even if you didn’t know you would have easy access to this info.  So if your point is that determining the amount of OGL 1.1 income to tell WOTC will not be a time consuming or difficult task then I agree.


----------



## glass

Baron Opal II said:


> Okay, but the what is the difference between 1.0 and 1.0a? Is that is violation of Section 2? Or is the key part the addition in 1.0a that prevents further alterations or additions?



There is a comparison in one of the threads: AIUI, they tweaked the wording on a couple of things, but there is no practicable difference.


----------



## Sorcerers Apprentice

glass said:


> Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1. Which is based on a subset of income which, despite your protestation to the contrary, is not a subset that you need to care about for any other purpose (including OGL 1.0A). Could well be on a separate reporting period too.
> 
> 
> It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.



Section 2 of the OGL forbids adding anything to the license _except as described by the license itself._ And section 9. explicitly permits WotC to publish updated versions of the OGL.


----------



## FrogReaver

glass said:


> It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.



I don’t think that’s true legally. OGL 1.0a only prevents changes to itself.

I think there is an open legal question over whether such differences in an OGL 1.1 license would legally be considered a version of OGL 1.0a but even that wouldn’t mean they can’t create whatever license terms in OGL 1.1 they want, if true it would just mean content under OGL 1.0a couldn’t move to also being licensable under an OGL 1.1 license without the author/copyright holders permission.


----------



## FrogReaver

glass said:


> Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1. Which is based on a subset of income which, despite your protestation to the contrary, is not a subset that you need to care about for any other purpose (including OGL 1.0A). Could well be on a separate reporting period too.



It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track.  There’s no clear reason why Wotc would want the reporting period to be different in any way.


----------



## Alzrius

glass said:


> It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.



No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.

For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.


----------



## Alzrius

Greg Benage said:


> That said, it appears the citation is to Shannon Appelcline's book, which I have not read, but I'd expect it to be accurate. _Someone_ must have told him this.



Presuming I'm reading the citation right, it refers to this passage from Appelcline's _Designers & Dragons: The '90s_ (pg. 172):



> Wizards got to enjoy great new sales of the sort that RPG companies typically see when they revamp their core books. However, the effect on the d20 market was disastrous. Third-party publishers had very little warning of the update, and so some books were out-of-date as soon as they were published. Worse, Wizards didn’t offer any particular update for the d20 trademark, and third-parties were left to their own methods to tell readers that their books were intended for 3.5, not 3.0.
> 
> Lots of 3.0 books sat on shelves. Meanwhile, consumers became more careful in making their 3.5 purchases, as they were simultaneously being forced to repurchase many of their core books from Wizards. This caused a cascade effect, and probably contributed to the downfall of consolidation companies like Wizard’s Attic, Fast Forward Entertainment, and Osseum — who in turn took more gaming companies with them when they went down. It also poisoned the d20 trademark: retailers began to see it as a liability, therefore it _became _a liability for publishers.
> 
> The result couldn’t have been worse for Wizards. Though many d20 publishers died and many others like AEG and Fantasy Flight left the field, most of the ones who remained abandoned the d20 trademark entirely, publishing instead under the OGL. This meant that Wizards no longer had any control over them. It also helped publishers to realize that they could publish d20 games that did not depend upon Wizards of the Coast’s core books without losing their audience. Mongoose’s _Babylon 5_ is an example of a game that went from a d20 first edition (2003) to an OGL second edition (2006).
> 
> Even worse, some publishers began to create direct competitors to _D&D_ using the OGL. One of the most notable is Troll Lord’s _Castles & Crusades_ (2004), which pointed the way for the whole retroclone movement. More recently, Paizo Publishing’s OGL-based _Pathfinder _(2008, 2009) pretty much took over the 3.5 market after Wizards moved on — as we’ll discuss shortly.


----------



## Greg Benage

Alzrius said:


> Presuming I'm reading the citation right, it refers to this passage from Appelcline's _Designers & Dragons: The '90s_ (pg. 172):




Thank you! This matches my recollections for the most part (although FFG didn’t actually “leave the field” until ~2006). In any case, it was 3.5 what done it—nothing with the OGL or d20STL.

So…poor reading comprehension or disingenuous citation? You make the call!


----------



## glass

FrogReaver said:


> It could be but presumably the easiest route would be by calendar year of the sales, which I’m certain the digital platforms track. There’s no clear reason why Wotc would want the reporting period to be different in any way.



Which, if true, proves my point. Calendar year != tax year.



Alzrius said:


> No, they're not equally forbidden; the latter isn't forbidden at all. Section 2 says you can't alter the OGL v1.0a by adding new terms to it; it doesn't prevent you from creating a new license altogether.



Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).



Alzrius said:


> For instance, Section 2 was in the OGL v1.0; nothing about it stopped WotC from then creating and releasing the OGL v1.0a, which has (very slightly) different terms from the previous license. And yet that wasn't a Section 2 violation.



It neither added nor removed any restrictions AFAICS.


----------



## Alzrius

glass said:


> Nothing prevents you creating a new licence. But you cannot use that new licence to release (other people's) OGC, because that would be adding restrictions (or removing them, which you cannot do either).



Again, that's not correct. You can release any Open Game Content released under any version of the Open Game License under any other version of the Open Game License, as per Section 9. The Section 2 prohibition on new restrictions prevents you from changing whichever version of the License you're publishing your Open Game Content under. So your OGL v1.0a has to read exactly the same as everyone else's OGL v1.0a (save for the Section 15 declarations). But if WotC wants to release a new iteration of the OGL, with different terms, they can, and presuming it doesn't go out of its way to prevent using Open Game Content published under it with earlier versions of the license, they can otherwise change it however they want, and it won't be a Section 2 violation.


glass said:


> It neither added nor removed any restrictions AFAICS.



That's not correct, as I've noted elsewhere. The OGL v1.0 Section 7 says the following (emphasis mine):


> 7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any *Trademark *in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such *Trademark*. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.




While the OGL v1.0a Section 7 says the following (again, emphasis mine):


> 7. Use of Product Identity:  You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any *Trademark or Registered Trademark* in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such *Trademark* *or Registered Trademark*. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.




That's an additional restriction, since trademarks and registered trademarks are different (and even have different symbols, the former being a delineated by a superscript TM while the latter is an R in a circle). Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that. Which means that yes, the OGL v1.0 didn't restrict you from indicating compatibility with _registered_ trademarks, while the OGL v1.0a does. And yet there's clearly no Section 2 violation going on.


----------



## see

glass said:


> It doesn't matter _how _you add extra restrictions to 1.0A content; a new section appended to the existing OGL or a whole new document (such as OGL 1.1). Either way is equally forbidden by s.2.



The biggest problem with your interpretation here is that the standard legal rule that contracts should not be interpreted in a way that renders any of the provisions superfluous or meaningless. The sentence immediately prior to the one you're hanging your interpretation on says "No terms may be added to or subtracted from this License _except as described by the License itself_", which means terms _can_ be added, if done the way the license describes. And then the way the license then describes to add or subtract terms is Section 9, the provision for updating the license.

You are trying to argue that no terms to the use of the content can be added at all based on a sentence immediately following one that explicitly says terms can be added to the license, and additionally that Section 9, if not an utter nullity, is in all substantive terms a nullity.

I mean, maybe a court will agree with you. I don't know for sure, I'm not a lawyer.

But to me, the obvious reading of "other terms and conditions" in the context of Section 2, that accords with the rest of Section 2 and with the existence of Section 9, is terms and conditions that are "other" in the sense they are _outside the license itself_. A random publisher cannot, say, add a notice to a product that says "The Open Game Content in this work can be used in accordance with the Open Game License 1.0a if and only if you first send us a billion dollars." and expect adherence. But someone taking OGC and using it in accordance with the OGL 1.1, well, that's using the content in accordance with the terms detailed in the OGL 1.0a, over in Section 9.

(Now, it's entirely possible that a court will rule that various possible WotC-favoring terms of a new authorized version of the OGL are invalid because they are unconscionable in a unilaterally-promulgated revision of a contract of adhesion. But that's an _entirely_ different thing than trying to use one sentence of Section 2 to negate the OGL's own provisions for modifying the OGL.)


----------



## Hussar

glass said:


> Yes of course, but you collate that information in a way required for taxation. And again, separately, in the way that is required for OGL 1.1.



Why would you do it separately?  You have to know your sales of each product for tax purposes.  You know which titles use the OGL and which don't.  You also know which fiscal year those sales occurred in.  I'm really not seeing the issue here.

Additionally, you're talking about someone who is publishing both under the OGL and not.  Is this a really common thing?  I would have thought that most OGL users are using the OGL for their products.


----------



## Voadam

Hussar said:


> Additionally, you're talking about someone who is publishing both under the OGL and not. Is this a really common thing? I would have thought that most OGL users are using the OGL for their products.



Onyx Path comes immediately to mind. They publish both 5e OGL and Non-OGL.


----------



## Jadeite

Morrus said:


> The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.



They've done so twice or thrice during 3rd Edition. Monster Manual II contained two creatures from Creature Collection (with changed names, but that was due to White Wolf's designation of product identity). Unearthed Arcana and the d20 Special Dragon Annual contained 3rd party OGC content (though I'm not quite sure if this was done specifically for that issue as no other products are mentioned in its license). But even Unearthed Arcana was nearly 20 years ago.


----------



## Alzrius

Jadeite said:


> Unearthed Arcana and the d20 Special Dragon Annual contained 3rd party OGC content (though I'm not quite sure if this was done specifically for that issue as no other products are mentioned in its license). But even Unearthed Arcana was nearly 20 years ago.



Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?


----------



## glass

Alzrius said:


> Again, that's not correct.



I think it is correct, obviously. And flat out telling me I am wrong does not get more persuasive with repetition.



Alzrius said:


> That's an additional restriction, since trademarks and registered trademarks are different (and even have different symbols, the former being a delineated by a superscript TM while the latter is an R in a circle).



The article does not say what you say it says. The symbols are different, but the article you link does not say that registered trademarks are not trademarks. One is clearly a subset of the other.



Alzrius said:


> Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that.



I do not think anyone would argue that registered trademarks are not in fact trademarks under normal circumstances. So it seems like they changed it simply for clarification.

Clearly WotC did not think it was a meaningful change, or they would not have rendered it meaningless by allowing you to continue to use 1.0 for material released under 1.0A.



Hussar said:


> Why would you do it separately? You have to know your sales of each product for tax purposes. You know which titles use the OGL and which don't. You also know which fiscal year those sales occurred in. I'm really not seeing the issue here.



Because each has its required information in its required format, and they will be different.


----------



## Alzrius

glass said:


> The article does not say what you say it says. The symbols are different, but the article you link does not say that registered trademarks are not trademarks. One is clearly a subset of the other.



I didn't say they that registered trademarks weren't trademarks, either; I said that they were different, which the article I linked to affirms.


glass said:


> I do not think anyone would argue that registered trademarks are not in fact trademarks under normal circumstances. So it seems like they changed it simply for clarification.



Again, I'm no lawyer, but I don't think it's beyond all imagination that someone could argue (in court, I mean) that a reference to trademarks could be taken as _not_ referring to registered trademarks (notice that the actual Section 7 refers to "Trademarks" with a capital T, suggesting specificity). Even if you say that it's just for adding clarification, that could still be argued as potentially adding a new restriction...which is fine, since WotC can create new iterations of the OGL and add new restrictions to them (hence why they changed the actual license name from v1.0 to v1.0a) without it being a Section 2 violation.


glass said:


> Clearly WotC did not think it was a meaningful change, or they would not have rendered it meaningless by allowing you to continue to use 1.0 for material released under 1.0A.



I can't follow your reasoning here; Section 9 explicitly allows for Open Game Content released under one version of the license to be used under another version of the license. Questions of "meaningfulness" are moot.


----------



## mamba

Alzrius said:


> Again, I'm no lawyer, but I don't think it's beyond all imagination that someone could argue (in court, I mean) that a reference to trademarks could be taken as _not_ referring to registered trademarks (notice that the actual Section 7 refers to "Trademarks" with a capital T, suggesting specificity).



you can argue anything in court, the question is how far you get… I do not expect this one to stand a chance



Alzrius said:


> I can't follow your reasoning here; Section 9 explicitly allows for Open Game Content released under one version of the license to be used under another version of the license. Questions of "meaningfulness" are moot.



which is why the theory here is that WotC will not designate any of the changes / additions in the new SRD as OGC.


----------



## Alzrius

mamba said:


> you can argue anything in court, the question is how far you get… I do not expect this one to stand a chance



Clearly someone at WotC felt otherwise; hence the change from the OGL v1.0 to the OGL v1.0a, clarifying that Section 7 als applied to registered trademarks.


mamba said:


> which is why the theory here is that WotC will not designate any of the changes / additions in the new SRD as OGC.



Sure, and that's possible. But any additional restrictions they add to the OGL v1.1 (such as the aforementioned reporting requirements, royalty requirement, etc.) won't be a violation of the Section 2 of the OGL v1.0 or v1.0a.


----------



## mamba

Alzrius said:


> Clearly someone at WotC felt otherwise; hence the change from the OGL v1.0 to the OGL v1.0a, clarifying that Section 7 als applied to registered trademarks.



no idea, they could just have made that change for clarity, without any legal implications



Alzrius said:


> Sure, and that's possible. But any additional restrictions they add to the OGL v1.1 (such as the aforementioned reporting requirements, royalty requirement, etc.) won't be a violation of the Section 2 of the OGL v1.0 or v1.0a.



agreed, WotC has the right to change the license, section 9 says so


----------



## Voadam

Alzrius said:


> Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?



From Unearthed Arcana:

15. COPYRIGHT NOTICE

Open Game License v 1.0 Copyright 2000, Wizards of the Coast, Inc.

System Reference Document Copyright 2000-2003, Wizards of the Coast, Inc.; Authors Jonathan Tweet, Monte Cook, Skip Williams, Rich Baker, Andy Collins, David Noonan, Rich Redman, Bruce R. Cordell, based on original material by E. Gary Gygax and Dave Arneson.

Modern System Reference Document Copyright 2002, Wizards of the Coast, Inc.; Authors Bill Slavicsek, Jeff Grubb, Rich Redman, Charles Ryan, based on material by Jonathan Tweet, Monte Cook, Skip Williams, Richard Baker, Peter Adkison, Bruce R. Cordell, John Tynes, Andy Collins, and JD Wiker.

*Swords of Our Fathers Copyright 2003, The Game Mechanics.*

*Mutants & Masterminds Copyright 2002, Green Ronin Publishing.*

Unearthed Arcana Copyright 2004, Wizards of the Coast, Inc.; Andy Collins, Jesse Decker, David Noonan, Rich Redman.


----------



## Jadeite

Alzrius said:


> Did those actually reprint any existing Open Game Content, or did they simply introduce Open Game Content of their own?



Monster Manual 2 definitely reprinted the Sandmasker as Scorpionfolk, though slightly adjusted since the first Creature Collection had some issues with its stats (as it was developed without access to the final rules).
Unearthed Arcana lists Mutans and Masterminds and Swords of our Fathers in its Section 15, but I'm currently unable if any material has been reprinted since I only own the 3.5 update of SooF.


----------



## Bedrockgames

Hussar said:


> But you are still going to know how much of each of your titles you sold.
> 
> And you are going to have to know that to report your income.




But you may not be tracking the difference of your OGL versus non-OGL titles unless you have a reason to do so. Personally I would not sign up for anything where I am providing that kind of information to a company, especially a publisher that is technically going to be a rival. Others may make a different choice there. granted I was never going to do a one D&D book in the first place, so unless this somehow retroactively impacts old OGL products, it isn’t an issue for me.


----------



## Umbran

Alzrius said:


> Now, someone could conceivably argue that a blanket reference to "trademarks" is meant to be all trademarks, registered or not, but clearly someone at WotC didn't think so, since they made an entirely new version of the OGL to avoid that. Which means that yes, the OGL v1.0 didn't restrict you from indicating compatibility with _registered_ trademarks, while the OGL v1.0a does. And yet there's clearly no Section 2 violation going on.




I don't think adding clarification should be read as a change in actual coverage.  

"You know what?  By just saying 'trademark' here, we leave ourselves open to some yahoo trying to argue that doesn't cover _registered_ trademarks.  While we would probably win that argument in court, we don't want to have to go to court over this, so let's please just close that possibility off."


----------



## Alzrius

Umbran said:


> I don't think adding clarification should be read as a change in actual coverage.



Whether or not it should be is probably less important, at least to attorneys, than whether it not it _could_ be. Either way, it was enough of a change unto itself to justify a new iteration of the OGL.


mamba said:


> no idea, they could just have made that change for clarity, without any legal implications



I'm pretty sure that clarity is to avoid any legal implications.


Jadeite said:


> Unearthed Arcana lists Mutans and Masterminds and Swords of our Fathers in its Section 15, but I'm currently unable if any material has been reprinted since I only own the 3.5 update of SooF.



Well now I'm curious what actual content they used from those books. Anyone know?


----------



## mamba

Alzrius said:


> I'm pretty sure that clarity is to avoid any legal implications.



I'm with Umbran on this, it avoids any legal dispute over this (similar to us arguing here over whether it makes a difference), but ultimately both mean the same and if there ever had been a legal dispute it would have found that too


----------



## Voadam

Alzrius said:


> Well now I'm curious what actual content they used from those books. Anyone know?




I think Swords of Our Fathers is the Legendary Weapons rules in which some special magic items unlock more powers if you take special dedicated prestige classes devoted to using those items.

I am not familiar with Green Ronin's Mutants and Masterminds 1e specific stuff, but later editions have damage saves and I believe action points of one form or another (it has been a number of years since I played M&M 3e though). I don't see damage saves in the UA rules but there is an action point set of rules. The UA Generic Classes look a lot like Green Ronin's True20 classes.

I know I saw a lot of early era d20 stuff (Spycraft, a couple AEG games like Farscape and Stargate SG1 I believe) with vitality and wounds which is in 3.5 UA and WotC d20 Star Wars but I don't know the exact provenance of that stuff.


----------



## Alzrius

mamba said:


> I'm with Umbran on this, it avoids any legal dispute over this (similar to us arguing here over whether it makes a difference), but ultimately both mean the same and if there ever had been a legal dispute it would have found that too



It's questionable if a court ruling would ever have found that the OGL v1.0 not mentioning registered trademarks in their Section 7, as opposed to just trademarks, meant that registered trademarks weren't covered. What's arguable is that the update _doesn't_ necessarily constitute _any _additional restrictions on the license; even that's only relevant because the idea was put forward that _no_ version of the OGL can have additional restrictions (beyond those of the original version of the license) without it being a Section 2 violation...which is clearly not the case, since WotC's announcement of what the OGL v1.1 will contain already makes mention of several types of additional restrictions.


----------



## Hussar

Bedrockgames said:


> But you may not be tracking the difference of your OGL versus non-OGL titles unless you have a reason to do so. Personally I would not sign up for anything where I am providing that kind of information to a company, especially a publisher that is technically going to be a rival. Others may make a different choice there. granted I was never going to do a one D&D book in the first place, so unless this somehow retroactively impacts old OGL products, it isn’t an issue for me.




How would you not be tracking the sales of each of your titles? I mean that quite literally. It would be impossible not to know the sales of different titles.


----------



## Bedrockgames

Hussar said:


> How would you not be tracking the sales of each of your titles? I mean that quite literally. It would be impossible not to know the sales of different titles.




That isn’t what meant. You track individual titles but you are not necessarily grouping your sales by OGL, non OGL, etc. The point is that if you aren’t, you do have to take the extra step of organizing your sales by those categories, then the step of sending a report to WOTC. But my concern would be less about the book keeping, as that is fairly easy, and more about giving WOTC my sales info.


----------



## Hussar

Bedrockgames said:


> That isn’t what meant. You track individual titles but you are not necessarily grouping your sales by OGL, non OGL, etc. The point is that if you aren’t, you do have to take the extra step of organizing your sales by those categories, then the step of sending a report to WOTC. But my concern would be less about the book keeping, as that is fairly easy, and more about giving WOTC my sales info.



But, so far, all we know is that the only information they want is, "Did you have sales over 50k?"  It's not like they are asking for individual breakdowns of each title.


----------



## mamba

Hussar said:


> But, so far, all we know is that the only information they want is, "Did you have sales over 50k?"  It's not like they are asking for individual breakdowns of each title.



what difference does that make to what Bedrockgames said


----------



## Bedrockgames

Hussar said:


> But, so far, all we know is that the only information they want is, "Did you have sales over 50k?"  It's not like they are asking for individual breakdowns of each title.



It says report OGL related revenue if you make over 50k. That might mean they want specific titles or it may mean they just want a total amount. It does still mean you need to tally your OGL revenue as a separate step if you meet the threshold, and even if they just want a total, that is information many publishers may not want to share with WOTC (again I am not affected nor do I intend to put out One D&D material, but if I did, and if I met the threshold, the reporting requirement would give me pause). Others might react differently. I am not saying there is a right or wrong response to the news. I think it is very understandable though if some publishers are concerned or cautious


----------



## Hussar

I'm sorry, but, I'm having a really difficult time understanding why total sales would matter.  Particularly if it's simply a binary Y/N.  Did you make over 50K Y/N.  Did you make less than 700k Y/N.  As far as we know, that's the only thing they are asking.  Anything else is just speculation.

To be honest, I have no idea why they are asking this really.  I can't see how the information would be useful.  About the only way I could think of it being used is they would make that line sort of the trigger line where they might take a second look at the OGL material to make sure that it's kosher.  Anyone with sales of less than 50k wouldn't be big enough to bother checking, but, if you have sales over 50k, they might want to give it a second pass.

Other than that, I don't see the point of it to be honest.  And, fair enough, I can see that it's ruffling feathers.  I do actually rather hope that they drop this line, or, at least, explain why they are doing it.  And, frankly, it had better be a pretty good explanation or the midden is going to hit the windmill.


----------



## mamba

Hussar said:


> I'm sorry, but, I'm having a really difficult time understanding why total sales would matter.  Particularly if it's simply a binary Y/N.  Did you make over 50K Y/N.  Did you make less than 700k Y/N.  As far as we know, that's the only thing they are asking.  Anything else is just speculation.



we know no such thing, all we know is that there are two thresholds. We have no idea what they will actually be asking, they said nothing about that. They certainly did *not* say that this is all they are asking


Hussar said:


> To be honest, I have no idea why they are asking this really.  I can't see how the information would be useful.  About the only way I could think of it being used is they would make that line sort of the trigger line where they might take a second look at the OGL material to make sure that it's kosher.  Anyone with sales of less than 50k wouldn't be big enough to bother checking, but, if you have sales over 50k, they might want to give it a second pass.



The license currently has no way of retracting it, so are you suggesting that WotC will add a clause that let's them decide that your product does not meet whatever standards and it can force you to stop publishing ?

That certainly goes beyond anything they announced, pointing this out since you seem to be so keen on sticking to what they said


----------



## Voadam

Hussar said:


> I'm sorry, but, I'm having a really difficult time understanding why total sales would matter. Particularly if it's simply a binary Y/N. Did you make over 50K Y/N. Did you make less than 700k Y/N. As far as we know, that's the only thing they are asking. Anything else is just speculation.



What they have said they will require is:

"Report OGL-related revenue annually (if you make more than $50,000 in a year)"

I don't take that as "report yes no whether you make more than $50K", but "if you make more than 50K then report to WotC your annual OGL-related revenue."


----------



## Bedrockgames

Hussar said:


> I'm sorry, but, I'm having a really difficult time understanding why total sales would matter.  Particularly if it's simply a binary Y/N.  Did you make over 50K Y/N.  Did you make less than 700k Y/N.  As far as we know, that's the only thing they are asking.  Anything else is just speculation.




Because you are giving them information about your sales. I am still not clear on whether that 50K threshold is for all of your revenue from RPGs or just your revenue from OGL. But both cases give WOTC information companies might want to keep to themselves. The best case scenario you are giving WOTC market research information they can use. The worst case scenario you are giving them information about your sales that they can use to compete against you with similar products (and there are other reasons a company might not want another publisher knowing their sales total for OGL related revenue). The other issue is it creates a relationship with WOTC that companies might not want to have. You are now in a position of reporting to them, and being required to do so under the terms of the license (again provided you meet the threshold). And even the companies that don't report are effectively letting WOTC know they aren't making over 50K (which again can be important). Granted this only impacts people participating in the current OGL for One D&D. But the point I think a lot of folks are making isn't that companies should absolutely not do this, but that many will probably have to seriously consider whether they should do it or not. Like I said before, every publisher is going to react differently. Some might have exactly the reaction you are, which is they won't see it as a big deal and happily go along with it. Others may be more concerned. It is a business so people are going to be cagey even if there are no hidden intentions with the reporting.


----------



## Bedrockgames

Hussar said:


> Particularly if it's simply a binary Y/N.  Did you make over 50K Y/N.  Did you make less than 700k Y/N.




Just to reiterate what Voadam said, my reading of it is this isn't a simple did you make over 50K did you make over 750 K, but also includes the requirement that if you did, you need to report your OGL revenue to them (and in the case of 750 K pay some amount of royalties to them).


----------



## Incenjucar

One concern I have as someone unlikely to ever need to report anything is how securely this information will be stored. Hasbro is the kind of company that gets targeted for hacking by people looking for lost media and sneak previews of products and whatnot, so there's a real chance of this data getting leaked.


----------



## Hussar

mamba said:


> we know no such thing, all we know is that there are two thresholds. We have no idea what they will actually be asking, they said nothing about that. They certainly did *not* say that this is all they are asking
> 
> The license currently has no way of retracting it, so are you suggesting that WotC will add a clause that let's them decide that your product does not meet whatever standards and it can force you to stop publishing ?
> 
> That certainly goes beyond anything they announced, pointing this out since you seem to be so keen on sticking to what they said



But, they could take a look at your product to see if you are actually following the OGL.  If you aren't, then they could step up and tell you to stop - or to change your product so that it is compliant with the OGL.  

Again, all we know is that they will require you to report income of over 50k.  That's all we know.   Now, you've interpreted that, just like you interpreted what I just said, in the absolute most negative way possible and have insisted that this is the only possible interpretation all the way along.  Which is why I have tried very hard to disengage with you because you will simply twist anything said into the most negative way possible.


----------



## mamba

Hussar said:


> But, they could take a look at your product to see if you are actually following the OGL.  If you aren't, then they could step up and tell you to stop - or to change your product so that it is compliant with the OGL.



yep, they could make sure you do not use content that is excluded from the license agreement. They do not need to change the license for that though



Hussar said:


> Again, all we know is that they will require you to report income of over 50k.  That's all we know.



which, again, is different from saying they are only asking a simple Y/N question, like you keep on claiming



Hussar said:


> Now, you've interpreted that, just like you interpreted what I just said, in the absolute most negative way possible and have insisted that this is the only possible interpretation all the way along.



show me where I insisted this is the only possible interpretation, in any of my posts


----------



## Hussar

mamba said:


> yep, they could make sure you do not use content that is excluded from the license agreement. They do not need to change the license for that though



True.  But, knowing that a OGC producer is banging out 50k worth of OGC might warrant a second look, whereas someone who isn't just isn't worth the time or effort.  As I said, I was just spit balling.  I'm really not sure why they are asking this to be honest, and frankly, it seems like a waste of time.   But, in the absence of any other explanation, I'm trying to think how this information might actually be used.

As far as competition goes, well, I'm not really sure that's an issue to be honest.  AFAIK, no OGL product comes even close to the levels that WotC is selling.  That WotC would need this information to go after an area for competition seems a bit of a stretch.  Why bother?  It's not like WOtC has really changed its publishing schedule in the past.  Various big time Kickstarters certainly haven't rocked the boat - WotC continues doing the same thing it's done for the past ten years - a module or two a year and a splat book every couple of years.


----------



## Maxperson

Alzrius said:


> even that's only relevant because the idea was put forward that _no_ version of the OGL can have additional restrictions (beyond those of the original version of the license) without it being a Section 2 violation...which is clearly not the case, since WotC's announcement of what the OGL v1.1 will contain already makes mention of several types of additional restrictions.



This is wrong.  Section 2 only prevents changes to that particular license.  So if you release a document under OGL 1.0a, the terms of 1.0a cannot be changed according to section 2.  A new OGL, say 1.1 can have new restrictions as it is an entirely new OGL, so does not violate section 2 of 1.0a.

You could then release stuff under 1.0a OR 1.1, your choice.


----------



## Alzrius

Maxperson said:


> This is wrong.  Section 2 only prevents changes to that particular license.  So if you release a document under OGL 1.0a, the terms of 1.0a cannot be changed according to section 2.  A new OGL, say 1.1 can have new restrictions as it is an entirely new OGL, so does not violate section 2 of 1.0a.
> 
> You could then release stuff under 1.0a OR 1.1, your choice.



That's what I've been saying.


----------



## Maxperson

Alzrius said:


> That's what I've been saying.



The part I quoted had you saying that no version of the OGL can have additional restrictions, so that made it seem like you were saying that no version of the OGL can have additional restrictions.  That's why I objected and said that future versions can in fact have additional restrictions.


----------



## pemerton

Maxperson said:


> This is wrong.  Section 2 only prevents changes to that particular license.  So if you release a document under OGL 1.0a, the terms of 1.0a cannot be changed according to section 2.



This is another example of reasoning about the OGL as if it were a statute. It's not. It's a written setting-out of the terms of a private law offer.

The effect of section 2, in combination with sections 3 and 4, is to oblige licensees to licence their own OGC on the same terms as they received their licence from others, that is, under an OGL with no terms altered except as the OGL itself provides (ie via section 9).

(I am largely reiterating what @see said in post 687 upthread. Although I don't agree that "it's entirely possible that a court will rule that various possible WotC-favoring terms of a new authorized version of the OGL are invalid because they are unconscionable in a unilaterally-promulgated revision of a contract of adhesion." To me, that seems extremely unlikely rather than entirely possible.)



Maxperson said:


> A new OGL, say 1.1 can have new restrictions as it is an entirely new OGL, so does not violate section 2 of 1.0a.
> 
> You could then release stuff under 1.0a OR 1.1, your choice.



WotC can offer to license a revised SRD under whatever terms it likes. The mere fact that it labels those terms "Open Gaming Licene v 1.1" will in my view not settle the question of how it interacts with sections 2 and 9 of OGL v 1.0/1.0a, in so far as these establish rights and liabilities for existing licensees.

It is certainly quite possible that OGL v 1.1 will preclude _new_ licensees who do not have rights under v 1.0/1.0a from using the revised SRD under those old licences.


----------



## Alzrius

Maxperson said:


> The part I quoted had you saying that no version of the OGL can have additional restrictions, so that made it seem like you were saying that no version of the OGL can have additional restrictions.  That's why I objected and said that future versions can in fact have additional restrictions.



No, it had me saying that "the idea was put forward" that that was the case (and not saying by who in an effort to be polite). If you go back over the last few pages of the thread, you can see who was putting that idea forward, and that I've been pointing out why that's clearly not so.


----------



## mamba

Hussar said:


> True.  But, knowing that a OGC producer is banging out 50k worth of OGC might warrant a second look, whereas someone who isn't just isn't worth the time or effort.  As I said, I was just spit balling.  I'm really not sure why they are asking this to be honest, and frankly, it seems like a waste of time.   But, in the absence of any other explanation, I'm trying to think how this information might actually be used.



market research I assume


----------



## estar

I made another blog post on Section 9 of the OGL

Section 9 of the Open Game License​
 There is been a lot of discussion over whether Wizards can revoke the OGL by de-authorizing it. This came about because of Section 9 of the open game license.



> 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.



I highlighted in bold the operative section. The theory goes if Wizards de-authorized the license then everybody who ever used OGL 1.0 or OGL 1.0a will be forced to go to OGL 1.1 even folks who made their stuff open content that had nothing to do with any of Wizard's offerings like the d20 SRD, or the d20 Modern SRD, for example, Cepheus, Mongoose Legends and so on.
I am not a lawyer but like any layman, especially one involved in making creative content, I learned enough so I can ask my attorney intelligent questions to make sure what I want to do has all the i's dotted and t's crossed.
What I learned is that while the letter of the contract is important, the courts give great weight to *intent*. Where the parties intending to do to when the license or contract was made. If you google contract law and intent you will find several excellent summaries of what intent means in common law countries like the US.
As for the OGL, this means that the old d20 FAQ becomes highly relevant.
The D20 FAQ captured on April 29th, 2001
While not a legal document it does show the intent of Wizards circa 2001 when they released the OGL.




> *Q:* What is meant by the term "Open Gaming"?
> 
> *A: *An Open Game is a game that can be freely copied, modified, and distributed, and a system for ensuring that material, once distributed as an Open Game will remain *permanently *Open.




This is further supported by the fact that when Wizards released the highly restrictive Game System License several years later, they did not try to revoke the OGL although they did sunset the d20 Trademark License.
Next, is the fact what is meant by an authorized license? Many contend it means that the OGL can be revoked. Or some like myself, argue that it means that the version had to have been authorized by Wizards at some point. The fact that Wizards does not wish to continue offering it for its own stuff is irrelevant to its use for current and future material.
I believe my point of view is further supported by how ambiguity is handled in the US Courts. A reasonable person in 2001 and in 2022 would reasonably assume they can use the OGL and any associated open content as long as they met the terms of the license.
This is further supported by the references in the d20 FAQ to what the term "Free" means in the context of the OGL.
Particularly this



> This use of the term "free" is a recognition of the philosophy of the roots of the Open Source software movement. The Free Software Foundation and the GNU Project, founded by Richard Stallman were the first formal efforts to codify the philosophy of Open Source software. It is the preference of the Free Software Foundation and Mr. Stallman to use the term "Free Software" rather than "Open Source", to keep the focus on the idea that the important part of the philosophy is the freedom to copy, modify and distribute computer software, rather than the more utilitarian objective of simply giving users access to the source code.



And the above is supported by the fact that the d20 page referred to the Open Gaming Foundation which is still in existence and has been recently updated.
Section 9 is, in my opinion, is a badly rewritten version of Section 9 of the GNU Public License  Ver 2 (the then current version) which reads.



> 9. The Free Software Foundation may publish revised and/or new versions
> of the General Public License from time to time.  Such new versions will
> be similar in spirit to the present version, but may differ in detail to
> address new problems or concerns.
> 
> Each version is given a distinguishing version number.  If the Program
> specifies a version number of this License which applies to it and "any
> later version", you have the option of following the terms and conditions
> either of that version or of any later version published by the Free
> Software Foundation.  If the Program does not specify a version number of
> this License, you may choose any version ever published by the Free Software
> Foundation.



Finally as for Wizards making all open content magically use OGL 1.1 by focusing on authorized licenses. I submit folks are forgetting about



> *You may use *any authorized version of this License to copy, modify and distribute any Open Game Content



That is a choice, if the worst case scenario comes to pass, you can decline to use OGL 1.1 and omit the open content that is not original to your work and then release it other another license or under traditional copyright.
I can't say how things will go but I hope this helps as a more hopeful view of the possibilities than some of the other commentary that is out there.

*Update*


This was pointed out to me that was in the OGL FAQ as well.



> *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.



This gives weight to my assertion that Section 9 of OGL 1.0a is intended to operate like Section 9 of the GPL rather than a "scrap it" clause.


----------



## Xyxox

Morrus said:


> The current OGL already lets them do that. That's how it works -- the license goes both ways. You get to use WotCs OGC, they (and everybody else) get to use yours. To my knowledge they've never actually done that, though.



But, you have the right to trademark and release certain content that is not OGL, too. If you create a new monster with a new name, you ahve a right to NO release it under the OGL. Under OGL 1.1, you no longer have that right.


----------



## GMforPowergamers

Xyxox said:


> But, you have the right to trademark and release certain content that is not OGL, too. If you create a new monster with a new name, you ahve a right to NO release it under the OGL. Under OGL 1.1, you no longer have that right.



so in theory WotC could (and I am not claiming they WOULD) take a look at the top selling 50k+ but less then 750k monsters throw them in a book and sell it themselves?


----------



## mamba

GMforPowergamers said:


> so in theory WotC could (and I am not claiming they WOULD) take a look at the top selling 50k+ but less then 750k monsters throw them in a book and sell it themselves?



and then terminate the OGL but keep the monsters, yes. Not sure why you stop at 750k, they can do it beyond that point too, unless the 3PP has a separate license


----------



## pemerton

GMforPowergamers said:


> so in theory WotC could (and I am not claiming they WOULD) take a look at the top selling 50k+ but less then 750k monsters throw them in a book and sell it themselves?



WotC can already do this. It's exactly the same principle as allows the hypertext SRD, Mongoose's old pocket PHB, etc.



mamba said:


> and then terminate the OGL but keep the monsters, yes.



I don't think this is correct. If WotC were to terminate the licence (which I'm not persuaded they can do unilaterally) they would have no permission to use the other party's copyrighted work.


----------



## mamba

pemerton said:


> I don't think this is correct. If WotC were to terminate the licence (which I'm not persuaded they can do unilaterally) they would have no permission to use the other party's copyrighted work.



everyone signing / accepting is granting them a perpetual license. Of course by the time this thing actually gets published that might have changed, but in the leaked version that is a thing


----------



## pemerton

mamba said:


> everyone signing / accepting is granting them a perpetual license. Of course by the time this thing actually gets published that might have changed, but in the leaked version that is a thing



That licence is consideration granted as consideration for entering a contract, on the terms set out by the contract. If the contract comes to an end, so does the licence that it gives rise to. As best I can see, at least.


----------



## Haiku Elvis

Xyxox said:


> But, you have the right to trademark and release certain content that is not OGL, too. If you create a new monster with a new name, you ahve a right to NO release it under the OGL. Under OGL 1.1, you no longer have that right.



I'm not so sure. Another part states you have to divide everything in the product down into what is and isn't covered under the new license and include that information within the product, so I believe you may be able break it down into "your side, my side"


----------



## glass

Alzrius said:


> I can't follow your reasoning here; Section 9 explicitly allows for Open Game Content released under one version of the license to be used under another version of the license. Questions of "meaningfulness" are moot.



Probably moot now, given the recent leak which (if accurate) is even worse than either of us were envisaging. But for the record my logic was thus: _If _under 1.0 you could mention registered trademarks and 1.0A changed that (rather than merely clarifying it for readability purposes), then it would not actually change anything. Because anyone who wanted to refer to registered trademarks could simply use the older version. Therefore, closing a loophole could not have been WotC's motivation to spend time and money updating the licence. Therefore, I can only assume that clarity was.


----------



## Xyxox

Indestructoboy has a full copy and went over it on stream:


----------



## Alzrius

Xyxox said:


> Indestructoboy has a full copy and went over it on stream:



Well, based on what we can see at 3:01:52, we can confirm the part about them no longer referring to Open Game Content as "Open Game Content." It's now "Licensed Content."



> But it is not enough to simply include a statement that Your Licensed Work includes Licensed Content (what used to be called "Open Game Content"). If the only way a reader can distinguish what You created from what We did is to check Your Licensed Work against the SRD, You are not in compliance with this provision.


----------



## Xyxox

Alzrius said:


> Well, based on what we can see at 3:01:52, we can confirm the part about them no longer referring to Open Game Content as "Open Game Content." It's now "Licensed Content."



Based on everything I've seen to date, I'll not be purchasing  single item from any creator using one of those stinking creator badges.


----------



## mamba

Xyxox said:


> Based on everything I've seen to date, I'll not be purchasing  single item from any creator using one of those stinking creator badges.



How about not buying anything from WotC instead / in addition. The 3pp is the victim here


----------



## Xyxox

mamba said:


> How about not buying anything from WotC instead / in addition. The 3pp is the victim here




I haven't bought anything from WotC since this mess started. I had been spending about $100/month since I went back to D&D in  August.


----------



## kenada

mamba said:


> How about not buying anything from WotC instead / in addition. The 3pp is the victim here



If the creator signs onto the OGL 1.1, they are promoting WotC’s agenda. Should they be rewarded for that?


----------



## pemerton

kenada said:


> If the creator signs onto the OGL 1.1, they are promoting WotC’s agenda. Should they be rewarded for that?



I think if someone believes that the best commercial decision for them is to enter into a v 1.1 licence with WotC, that's ultimately their prerogative. For better or worse the RPG market is just that - a commercial market. I don't think that potential RPG publishers are obliged to suppress their own commercial interests in order to also undermine those of WotC.


----------



## humble minion

kenada said:


> If the creator signs onto the OGL 1.1, they are promoting WotC’s agenda. Should they be rewarded for that?



That's a decision that everyone's going to have to make individually, both creators and customers.  There's no good answer here.  A 3pp creator who can't afford to fight WotC in court to try to keep 1.0a active has few attractive options.  D&D, like it or not, it where the money is, and the bigger 3pps have businesses, livelihoods, mortgages, employees depending on that money.  It'd be easy for me, sitting on my comfy chair paid for by a good job in an industry where my skills are widely in demand, to point fingers and demand 3pps stand on principle and fight/defy WotCs appalling protection racket.  But it ain't me who'll be going hungry or bankrupt or having to lay off employees if it all blows up in their face.  And conversely, if they DO cave in to economic imperatives and sign, they risk becoming pariahs.  OGL 1.1 ain't popular, to put it mildly, and the people who are most aware of and angry about the whole OGL business are the sort of customers who frequent places like this, and who are most likely to buy 3pp products in the first place - and nobody likes a sellout.  It's a very ugly choice for a creator to have to make.

I still believe that a LOT will hinge on the stance that Critical Role ends up taking.  They have an audience reach in the literal millions and financial resources that dwarf anyone else in the industry other than WotC themselves.  They are also successful in their own right, and have careers (both from the Vox Machina Amazon show and from their voice acting careers) that WotC cannot threaten even should things somehow go haywire with the streaming show (and in any case, if CR want to move away from D&D every gaming company in the world will be salivating at the prospect of their system filling the gap).  If there's anyone in the D&D-adjacent ecosystem who can afford to stand up to WotC, then it's them.  Should they sign on to 1.1 (or to some sweetheart private deal that WotC tailors especially for them) then I'll be deeply disappointed and cynical about them.  But for someone like Kobold Press for instance, who don't really have a lot of non-D&D options to fall back on, and who bring in orders of magnitude less money, I'll be more understanding if economic imperatives force them into compliance.  I still won't like it, but it'd be hard to judge them as harshly.


----------



## mamba

kenada said:


> If the creator signs onto the OGL 1.1, they are promoting WotC’s agenda. Should they be rewarded for that?



that is the ‘in addition’ part. My point was punish WotC (too)


----------



## kenada

pemerton said:


> I think if someone believes that the best commercial decision for them is to enter into a v 1.1 licence with WotC, that's ultimately their prerogative. For better or worse the RPG market is just that - a commercial market. I don't think that potential RPG publishers are obliged to suppress their own commercial interests in order to also undermine those of WotC.



I agree, but I’d add that it’s also the prerogative of potential customers to base their purchasing decisions on whatever criteria they want and communicate that to publishers as a way of influencing their decision-making.

However, practically speaking, I would not blame publishers for assuming that gamers are largely unprincipled and ignore their signaling. That’s usually worked out pretty well for them in the past (e.g., _Call of Duty_ dedicated servers, etc).


----------



## Xyxox

mamba said:


> that is the ‘in addition’ part. My point was punish WotC (too)



I will never again purchase any WotC or Hasbro product, regardless of the outcome. I will also purchase nothing from any 3pp that has a WotC Creator badge on even a single product.


----------



## pemerton

kenada said:


> I agree, but I’d add that it’s also the prerogative of potential customers to base their purchasing decisions on whatever criteria they want and communicate that to publishers as a way of influencing their decision-making.



Subject to your observation about consumers being unprincipled, this of course feeds back into publishers' judgements about what is in their commercial interests.


----------



## kenada

humble minion said:


> That's a decision that everyone's going to have to make individually, both creators and customers.  There's no good answer here.  A 3pp creator who can't afford to fight WotC in court to try to keep 1.0a active has few attractive options.  D&D, like it or not, it where the money is, and the bigger 3pps have businesses, livelihoods, mortgages, employees depending on that money.  It'd be easy for me, sitting on my comfy chair paid for by a good job in an industry where my skills are widely in demand, to point fingers and demand 3pps stand on principle and fight/defy WotCs appalling protection racket.  But it ain't me who'll be going hungry or bankrupt or having to lay off employees if it all blows up in their face.  And conversely, if they DO cave in to economic imperatives and sign, they risk becoming pariahs.  OGL 1.1 ain't popular, to put it mildly, and the people who are most aware of and angry about the whole OGL business are the sort of customers who frequent places like this, and who are most likely to buy 3pp products in the first place - and nobody likes a sellout.  It's a very ugly choice for a creator to have to make.



Customers are not obligated to support a business out of charity or regardless of the way it conducts itself, nor are they responsible for a business’s closure when they fail to or choose not to patronize it. The relationship described above is one of pliant consumers taking whatever businesses give no matter what, which represents not a healthy relationship.



humble minion said:


> I still believe that a LOT will hinge on the stance that Critical Role ends up taking.  They have an audience reach in the literal millions and financial resources that dwarf anyone else in the industry other than WotC themselves.  They are also successful in their own right, and have careers (both from the Vox Machina Amazon show and from their voice acting careers) that WotC cannot threaten even should things somehow go haywire with the streaming show (and in any case, if CR want to move away from D&D every gaming company in the world will be salivating at the prospect of their system filling the gap).  If there's anyone in the D&D-adjacent ecosystem can afford to stand up to WotC, then it's them.  Should they sign on to 1.1 (or to some sweetheart private deal that WotC tailors especially for them) then I'll be deeply disappointed and cynical about them.  But for someone like Kobold Press for instance, who don't really have a lot of non-D&D options to fall back on, and who bring in orders of magnitude less money, I'll be more understanding if economic imperatives force them into compliance.  I still won't like it, but it'd be hard to judge them as harshly.



I’ve said it before, but I don’t care all that much about 5e or 6e, so my failing to purchase anything going forward is not much of a threat. However, I will not support OSR publishers who sign onto the OGL 1.1 nor will I support Paizo. It may make business sense for them, or it may be the only option, and I don’t care. My withholding my purchases is the only power I have to influence the market. By communicating in advance I am willing to buy regardless, I render myself powerless. I’ll be damned if I’m going to do that.


----------



## delericho

humble minion said:


> That's a decision that everyone's going to have to make individually, both creators and customers.  There's no good answer here.  A 3pp creator who can't afford to fight WotC in court to try to keep 1.0a active has few attractive options.



Yeah, I can't fault any 3pp who chooses to accept a deal from WotC. The choices they have largely suck at this point.

However, if WotC do go down this path then they kill any interest I have in buying any future D&D products, or even in playing any version of D&D going forward. That means that anyone who _does_ sign on with OGL1.1 is almost certainly not going to be producing anything I'm likely to buy anyway. The net effect, sadly, is likely to be the same.


----------



## CapnZapp

estar said:


> This will further bifurcate the third party publisher market.



If by "bifurcate" you mean creating two camps, then you're correct.

Even if one camp will be an overflowing refugee camp full of bewildered and sometimes dying publishers, and the other a completely empty ghost camp, you would be the best kind of correct: technically correct.


----------



## CapnZapp

delericho said:


> Yeah, I can't fault any 3pp who chooses to accept a deal from WotC.



Could someone link me to a complete list of GSL licensors/licensees? 

I can only remember Goodman and Mongoose, and only to, as Wikipedia puts it "to not much benefit for themselves"

My point is, nobody will want to accept this deal from WotC. The OGL 1.1. as leaked will be completely nuking the 3PP D&D market other than the Dungeon Master's Guild, which I guess is exactly what Hasbro intended.


----------



## CapnZapp

kenada said:


> However, I will not support OSR publishers who sign onto the OGL 1.1 nor will I support Paizo. It may make business sense for them, or it may be the only option, and I don’t care. My withholding my purchases is the only power I have to influence the market. By communicating in advance I am willing to buy regardless, I render myself powerless. I’ll be damned if I’m going to do that.



I honestly don't think you need to worry too much. No publisher will sign the OGL 1.1. except maybe a few of the most desperate ones, but those will be out of the market soon enough, so... problem solved?


----------



## eyeheartawk

CapnZapp said:


> Could someone link me to a complete list of GSL licensors/licensees?
> 
> I can only remember Goodman and Mongoose, and only to, as Wikipedia puts it "to not much benefit for themselves"
> 
> My point is, nobody will want to accept this deal from WotC. The OGL 1.1. as leaked will be completely nuking the 3PP D&D market other than the Dungeon Master's Guild, which I guess is exactly what Hasbro intended.



I chatted with dudes who work/worked for Goodman games back in the GSL days and the consensus basically was that the license was bad but after WOTC pulled the poison pill provision they shrugged and gave it a try. 

What made them discontinue their 4E publishing was the sales of the supplements, really.


----------



## CapnZapp

eyeheartawk said:


> What made them discontinue their 4E publishing was the sales of the supplements, really.



And what do you think will sink any OGL 1.1 licensors, pray tell? 

The more interesting realization is that leaving D&D is what spurred the incredible burst of fun and creativity that is the DCC line of adventures. 

(Goodman Games line of 3e scenarios were mediocre, their line of 4e scenarios were atrocious, but their line of DCC scenarios range from good to awesomely brilliant)

What Hasbro really is doing is setting up a new batch of competitors that they will have great trouble overcoming, especially since this time nobody will trust them even if they realize they need to go back to an open license. So it's not just doom and gloom (unless you're depending on the industry for your livelihood these coming years, I guess)


----------



## Voadam

CapnZapp said:


> Could someone link me to a complete list of GSL licensors/licensees?



Good luck with that.

Drivethru currently lists 489 PDFs tagged as 4e GSL but that includes a bunch of false positives.

Kobold, EN Publishing, Expeditious Retreat Press, Dias Ex Machina, Sasquatch Studios, Adamant are others who also used the GSL after the poison pill was removed.


----------



## eyeheartawk

CapnZapp said:


> And what do you think will sink any OGL 1.1 licensors, pray tell?
> 
> The more interesting realization is that leaving D&D is what spurred the incredible burst of fun and creativity that is the DCC line of adventures.
> 
> (Goodman Games line of 3e scenarios were mediocre, their line of 4e scenarios were atrocious, but their line of DCC scenarios range from good to awesomely brilliant)
> 
> What Hasbro really is doing is setting up a new batch of competitors that they will have great trouble overcoming, especially since this time nobody will trust them even if they realize they need to go back to an open license. So it's not just doom and gloom (unless you're depending on the industry for your livelihood these coming years, I guess)



Yeah, agreed. 

Outside of the city guide to Punjar nothing was really notable about the 4e era stuff of theirs. The 3e stuff that I have from them (both in its original form and some adventures converted to DCC) don't really shine in the same way.


----------



## Voadam

CapnZapp said:


> The more interesting realization is that leaving D&D is what spurred the incredible burst of fun and creativity that is the DCC line of adventures.
> 
> (Goodman Games line of 3e scenarios were mediocre, their line of 4e scenarios were atrocious, but their line of DCC scenarios range from good to awesomely brilliant)



While I really like a lot of their DCC modules I don't attribute the quality to leaving the D&D game system. I think Goodman encourages weird cool sword and sorcery stuff narratively/culturally/marketing as their thing more so now in the DCC era and this attracts writing for that style.

Patrons and spells with lots of success levels are OK, but I think the DCC module ideas work fairly well regardless of system the way the early 3e Goodman modules could be 3e or for a few of them Castles & Crusades more OSR style.


----------



## Morrus

I’m probably missing it. Is there anything about your content (what used to be OGC) being open? That’s kind of the point of an open license. That others can use it, not just WotC.


----------



## Umbran

CapnZapp said:


> Even if one camp will be an overflowing refugee camp full of bewildered and sometimes dying publishers,...




*Mod Note:*
We are starting to see a wave of hyperbolic analogies on these issues.

This license issue is really nothing like the refugee experience, and we'd take it kindly if you kept some perspective on this, rather than reaching for ever more drastic human tragedies to compare to.  Thanks.


----------



## humble minion

Morrus said:


> I’m probably missing it. Is there anything about your content (what used to be OGC) being open? That’s kind of the point of an open license. That others can use it, not just WotC.



I _thought_ I read something on rpg.net saying that 1.1 only opened your content to WotC, not to other 3pp publishers. 

But to be honest at this point I’m not even sure if it’s true any more or whether it was some sort of fever dream. This litany of horrors just gets more ridiculously over-the-top disastrous at every turn, to the point that it’s wearying and we’re all getting a bit hysterical, to be honest.


----------



## Art Waring

Morrus said:


> I’m probably missing it. Is there anything about your content (what used to be OGC) being open? That’s kind of the point of an open license. That others can use it, not just WotC.



The new license prevents sub-licensing, so no 3pp's can use anyone else's OGC under the new license. That's to the best of my understanding anyway.


----------



## Greg Benage

Morrus said:


> I’m probably missing it. Is there anything about your content (what used to be OGC) being open? That’s kind of the point of an open license. That others can use it, not just WotC.



In the (leaked, not released) Non-Commercial license, there's the share-alike provision. In the Commercial license, your content is not open. Only Wizards can use it (more accurately, only Wizards can decide who uses it).



> II. LICENSE. 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.
> A. We may offer others the ability to use Licensed Content or Unlicensed Content under any conditions We choose.
> B. You may not transfer Your rights and duties under this agreement under any circumstance or for any reason. This
> license is not sub-licensable.


----------



## Morrus

Art Waring said:


> The new license prevents sub-licensing, so no 3pp's can use anyone else's OGC under the new license. That's to the best of my understanding anyway.



Huh. I don't understand why they're calling it an update to the OGL then.

OK, I do understand why.


----------



## Nylanfs

Greg Benage said:


> In the (leaked, not released) Non-Commercial license, there's the share-alike provision. In the Commercial license, your content is not open. Only Wizards can use it (more accurately, only Wizards can decide who uses it).



This is incorrect, Creator C can't use your "Licensed Content" without a *separate* contract with Creator B. Creator A of course being WotC, that both B & C are using WotC's Licensed Content. according to how I read it.


----------



## Greg Benage

Nylanfs said:


> This is incorrect, Creator C can't use your "Licensed Content" without a *separate* contract with Creator B. Creator A of course being WotC, that both B & C are using WotC's Licensed Content. according to how I read it.



I'm honestly pretty much over it, but here's what the (leaked) license says. There's no "separate contract" with other creators that I can see.

V. SHARE-ALIKE. We are letting You use Licensed Content for free because You are using it on a non-commercial basis. If you want to better protect your ownership, You may register under the OGL: Commercial. You agree that others can do the same with Your work.
This means:
A. Each time You distribute or otherwise make Your work available, You offer the recipient a license to the work on the same terms and conditions granted You under this license.
B. You may not impose upon others any terms that alter, restrict or otherwise change the terms of this license or the recipient’s exercise of the rights granted under this license.
C. You must distribute a copy of the license alongside Your work. For clarity, the license should probably appear either at the front or the back of Your book – but it must be in the book.
D. The version of the license You enclose with Your work must be this license. You must keep intact all notices that refer to it and You must keep its disclaimer of warranties.


----------

