The OGL 1.1 is not an Open License

[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]

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]

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]

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]

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]

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]

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]

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]

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]

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.