The OGL 1.1 is not an Open License

[bedir than]

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]

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An offer can be withdrawn.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.

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.

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?

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]

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]

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.

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)?

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?

 

[robconley]

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.

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.

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]

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

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]

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]

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]

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.