The OGL 1.1 is not an Open License

[Morrus]

some will cry fowl or something like that.

accuse others of crying fowl,

I'm sorry, I can't help it.

 

[kenada]

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]

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.

 

[robconley]

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.

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]

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.

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.

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]

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]

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]

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]

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:

1. Accept the license terms and let us know what you’re offering for sale
2. Report OGL-related revenue annually (if you make more than $50,000 in a year)
3. 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?