The OGL 1.1 is not an Open License

[robconley]

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.

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.

 

[robconley]

Read section 9 again. It's explicit.

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

 

[Alzrius]

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]

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.

 

[robconley]

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]

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]

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]

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]

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]

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.