The OGL 1.1 is not an Open License

[Dannyalcatraz]

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]

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]

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]

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Of course gratuitous licences can be given - I can invite you into my home - but gratuitous licences can be withdrawn at will - I can ask you to leave my home at any time.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.

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.

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]

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.

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]

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!

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]

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]

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]

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)?

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]

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.)