Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[S'mon]

Sure. We have at least three lawyers, including a PhD who apparently teaches law to baby lawyers on here...and they're all disagreeing about what this means and what will happen.

I have a PhD and I teach law in England to baby lawyers (and to international Masters students who are often qualified lawyers in their home jurisdictions). I mostly do Intellectual Property, including copyright, and I teach Contract, but we mostly focus on sales & service supply contracts, rather than licencing (I recently was instructed to teach 1st year students 'Introduction to Business Law', but I'm still learning on the job). And I'm not an expert on US law, but it does have a lot of similarities with English law.

 

[Dausuul]

Here's a question: Would a company relying on the OGL 1.0 (such as Paizo) be able to file suit proactively to clarify its status? My sense is that this is generally not how the law works -- you can't go to the court and ask them to settle a hypothetical question, there has to be some allegation that a law was broken, a contract was breached, et cetera. But when it comes to civil law, I've seen some cases that appear (to my layman's eyes) to violate this principle.

 

[DavyGreenwind]

Update: if this gizmodo article is to be believed, it looks like they are going to try and revoke the old license. I also want to clarify, that I'm pro-open source stuff. I just think the foundations are shakier than people think.

I hope WotC does not revoke it! And if they do, well, we'll just have to see what happens in court.

Article: Dungeons & Dragons’ New License Tightens Its Grip on Competition

 

[GMforPowergamers]

Here's a question: Would a company relying on the OGL 1.0 (such as Paizo) be able to file suit proactively to clarify its status? My sense is that this is generally not how the law works -- you can't go to the court and ask them to settle a hypothetical question, there has to be some allegation that a law was broken, a contract was breached, et cetera. But when it comes to civil law, I've seen some cases that appear (to my layman's eyes) to violate this principle.

what they need is for one of the 3pp that was using the OGL for there own product to do so and say "We are using this and they can't retract it" (I would think as a business' guy but not a lawyer.)

 

[mhd]

Business side? Well…
"Until the legal differences between our partner WotC and 3PP Inc. are settled, we at One Book Shelf decided to stop selling 3PP products. Of course you can still download them from your library if previously purchased and I hope this isn't misconstrued as censorship…"

 

[Thanlis]

Many Open contact Licenses like the GPL and Creative Commons do not use the term irrevocable and the precedent is clearly in favor of the interpretation that once content is open is remain open under the same conditions.

The CC licenses are explicitly irrevocable as of at least version 4 (see section 2.a.1 of the CC-BY license, for example). So is the GPL 3.

I don’t have an informed opinion on the legal debate but I have always wished Dancey and/or the lawyers involved were better at this. It’s also just good to have a funded non-profit defending and updating the licenses or you wind up with problems like this.

 

[Mistwell]

I am responding to the people who say they are certain that WotC cannot revoke the license. My bottom line is that they likely can.

We disagree

 

[Dausuul]

what they need is for one of the 3pp that was using the OGL for there own product to do so and say "We are using this and they can't retract it" (I would think as a business' guy but not a lawyer.)

The thing is, Wizards does not have to file a lawsuit against that person immediately -- or indeed ever. They could turn a blind eye to minor infringements, while retaining the ability to bring suit against anybody at any time. That sword of Damocles hanging over their collective head would chill the entire 3PP market, effectively negating the safe harbor that the OGL was meant to provide, until and unless the matter was tried in court.

So what I'm wondering is whether there is any way for a 3PP to force that court trial, rather than having to live with the sword of Damocles and never know when Wizards might decide to bring it down.

 

[GMforPowergamers]

The thing is, Wizards does not have to file a lawsuit against that person immediately -- or indeed ever. They could turn a blind eye to minor infringements, while retaining the ability to bring suit against anybody at any time. That sword of Damocles hanging over their collective head would chill the entire 3PP market, effectively negating the safe harbor that the OGL was meant to provide... until and unless the matter was tried in court.

So what I'm wondering is whether there is any way for a 3PP to force that court trial, rather than having to live with the sword of Damocles and never know when Wizards might decide to bring it down.

100% this. 0 lawsuits and maybe 1 or 2 C&D could kill the entire 3pp movement.

 

[Staffan]

The open license will always be valid for any products published while the open license was open. WotC can never take away Pathfinder, or Tome of Beasts, or anything like that, even if the license is revoked. But if the license is revoked, those companies could not publish any new material as of the date it was revoked.

This is the bit that confuses me (as a non-lawyer).

The core part of the OGL is this:
4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.

"Use" is defined in the OGL as "to use, Distribute, copy, edit, format, modify, translate and otherwise create Derivative Material of Open Game Content."

"Distribute" is further defined to mean "to reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute"

So, when Paizo released Pathfinder, they used the OGL, and were thus granted a perpetual license to license Open Game Content. So given the license's viral nature, I should be able to rely on e.g. Paizo's offer of the license instead of Wizards'. And there are a few places that have copies of the SRD published without any changes.

And this license is printed in quite a few books, as required by the license itself. That printed license promises me that I can use the Open Game Content in that book under the terms of the license. Again as a non-lawyer, this does not seem like a thing Wizards should be able to revoke.