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

[bmcdaniel]

PS For those of you who don't have access to an actual legal library but want to understand the interplay between "perpetual" and "irrevocable" licenses presented for lay persons, a colleague recommended this primer by Fenwick & West: https://assets.fenwick.com/legacy/FenwickDocuments/Technology_Licensing.pdf

 

[pemerton]

This is what I was inquiring about. WOTC is now claiming that certain things were not intended to be covered despite evidence to the contrary in the FAQ and people relied on the FAQ, If a lawyer shows that, despite WOTCs claims to the contrary, the FAQ states that people were authorized to use OGL 1.0a in additonal ways, may a judge be more inclined to use the FAQ to determine intended interpretation of terms regarding deauthorization and reasonable reliance.

There are two different issues here, I think.

One concerns the interpretation of the agreement. Unless there is ambiguity that needs appeal to further evidence to resolve, that would be done on the basis of the text itself. The FAQ is not part of the text of the agreement.

The other is whether there is a reliance-based argument that licensees can rely on. In my jurisdiction this is called estoppel - I think the same term is used in US law, and the rough idea is of a contract based on reasonable reliance rather than on a bargain. The argument here would be that rights have arisen that are outside of the terms of the OGL.

If I was arguing for WotC, I would be suggesting that a public-facing FAQ is not something that a commercial publisher would reasonably rely on in order to determine the scope and content of their legal rights. As I mentioned upthread (or in one of the other threads?), one of the leading cases in Australia dealing with this issue found that the estoppel arose out of multiple factors including public statements of policy (where these were made by government ministers - the defendant in the law suit, which was a private law claim, was the Australian government) and also particular things said during pre-litigation negotiations. That is more than just a generic, public-facing FAQ.

But I don't know how US law treats the issue of reasonableness of reliance. And maybe I'm underestimating the weight that might reasonably be given to WotC's FAQ. In this thread, @Steel_Wind in post 195 is more optimistic than my previous paragraph about the merits of a reliance-based argument, and I'm confident that Steel_Wind knows the relevant North American law better than I do.

 

[Steel_Wind]

There are two different issues here, I think.

One concerns the interpretation of the agreement. Unless there is ambiguity that needs appeal to further evidence to resolve, that would be done on the basis of the text itself. The FAQ is not part of the text of the agreement.

On a practical basis, if this goes to court - there are going to be arguments tendered about the ambiguity of the 1 and 1.0a OGL. WotC will say it means "A" and it isn't ambiguous, and the other party(ies) will say it plainly is ambiguous, it means "B" and will offer a MASSIVE weight of evidence that points to how the parties were lead to rely upon a contractual meaning by WotC itself over a course of DECADES including in print, on its website for the whole world to see and rely upon - and from the mouths of the corporate officers who directed its preparation and spoke to the litigants about what it meant. THAT will be tendered as evidence of the ambiguity.

And they will also offer evidence on how this financially benefitted WotC for many decades, too, in the context of explaining why "B" is a commercially reasonable interpretation.

And they will also offer evidence about the meaning in use of 1.0a, and how relying upon the use of others for derivative work operated in the industry in terms of the carve out for protected content. And that evidence will come from Clark Peterson, formerly of Necromancer Games (and now a judge in the State of Illinois).

And Ryan Dancey will give his evidence and others in the industry will as well. All of this is all but certain to happen, because Lisa Stevens will ask them to do it.

Oh but you only go to parol evidence if it is ambiguous, so you might not get there, right?

Wrong. DEAD wrong. That's not the way a trial works (and I am quite certain about that).

Let's not kid ourselves here. The judge (assuming it is a judge who deals with it and not a jury; America can be odd about this stuff) will hear a MASSIVE amount of evidence, principally from WotC's own mouth and its former corporate officers who will give evidence about what WotC said to others about that language and what it meant and was intended to mean -- and how they often and repeatedly persuaded people to rely upon that meaning in terms of its interpretation in use.

The judge will hear all of this before the court makes up its mind on the ambiguity issue. Supposedly, the judge who has magical powers to compartmentalize evidence, will not rely upon that evidence until he or she holds it is ambiguous.

In my experience, that is utter nonsense they teach you in law school. That's not how a trial or a motion actually works. The judge will hear that evidence and it will lead to an emotional reaction which will engender a plain feeling of injustice.... or it won't. If it's a suitably significant emotional reaction of injustice? It will be held to be ambiguous. If it isn't, then it won't be.

We can argue all day -- indeed, every day for a decade, and we will never come up with an adequate intellectual definition of justice, be it political or legal that we can unanimously agree upon. But injustice? That's an emotional reaction to a given set of facts. That is what injustice is. And nine times out of ten, it is injustice which motivates a judge. They don't teach you that in law school -- but they teach that in the courtroom: every hour of every day of every week of every year. That's how human beings work in the real world.

Having heard that evidence, despite their magical powers to compartmentalize, the court will not actually compartmentalize it (and so ignore it) when the judge hears that this evidence is literally so longstanding it went on for decades. To change the playing field now, especially after it has been reasonably and demonstrably relied upon not by a few, but by an entire industry, is unlikely AF to happen, imo.

And so it will be held to be ambiguous, that evidence (which the judge has already admitted and supposedly compartmentalized) will be relied upon and it's then it's all over but the crying.

There is no way I would tell WotC, were it my client, that a contrary result would be likely if the matter went to a hearing on the merits. Possible? Sure, but not likely. And I would write them a letter well before any hearing explaining to them my view of the likely outcome - to cover my own ass. And so will any other careful litigator. Maybe WotC listens... and maybe they don't. Either way, I'm covered.

Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance. That evidence isn't MAYBE getting in -- it is all but certain to go in. And without a very good reason to decide it to the contrary? That will likely be that.

 

[Tazawa]

If I was arguing for WotC, I would be suggesting that a public-facing FAQ is not something that a commercial publisher would reasonably rely on in order to determine the scope and content of their legal rights.

But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.

Considering the intended audience, statements in an FAQ are very likely relevant.

 

[FormerLurker]

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

As I've commented elsewhere, if this is true, I wonder what it means for Fate and other non-D&D games that used the Open Game License but not the D&D SRD.
WotC would be revoking a license used by other companies that doesn't involve them.

 

[bmcdaniel]

Oh but you only go to parol evidence if it is ambiguous, so you might not get there, right?

Wrong. DEAD wrong. That's not the way a trial works (and I am quite certain about that).

Let's not kid ourselves here. The judge (assuming it is a judge who deals with it and not a jury; America can be odd about this stuff) will hear a MASSIVE amount of evidence, principally from WotC's own mouth and its former corporate officers who will give evidence about what WotC said to others about that language and what it meant and was intended to mean -- and how they often and repeatedly persuaded people to rely upon that meaning in terms of its interpretation in use.

The judge will hear all of this before the court makes up its mind on the ambiguity issue. Supposedly, the judge who has magical powers to compartmentalize evidence, will not rely upon that evidence until he or she holds it is ambiguous.

In my experience, that is utter nonsense they teach you in law school. That's not how a trial or a motion actually works. The judge will hear that evidence and it will lead to an emotional reaction which will engender a plain feeling of injustice.... or it won't. If it's a suitably significant emotional reaction of injustice? It will be held to be ambiguous. If it isn't, then it won't be.
...

Let's not forget, this is not some "technicality". This is decades of reasonable commercial reliance. That evidence isn't MAYBE getting in -- it is all but certain to go in. And without a very good reason to decide it to the contrary? That will likely be that.

Quoted to endorse.

If revocability of the OGL 1.0a ever goes to trial, that WOTC statement posted on their website stating that it isn't revocable is going to be front and center.

Doctrinally, the court's decision might be based on resolution of an ambiguous contract term, promissory estoppel, detrimental reliance, etc. But dollars-to-donuts, its a fatal piece of evidence.

 

[Mistwell]

The practice of law is not an academic discussion. Corporate/commercial litigation (which is what I do) is not a theoretical exercise. There is no point in trying to write a factum before the fact.

I won't even get into a discussion about the minefield and inapplicability of any principles of real property, easements, licensees and adverse possession on this issue - which is the legal context in which a license to enter onto land is considered. The entire principle under discussion of a license to enter property is, therefore, dramatically different. Indeed, it is so different, your reference to it confirms to me that you must be a junior lawyer with no experience in this area at all. It should be a cue to just stop.

I know that this is of great interest to you and others here. Your interest is natural and laudable. Your definitive expression of opinion on the interpretation of these agreements and in predicting the outcome would, however, greatly benefit from the perspective that a few more decades of practice would bring: nothing is certain in litigation.

There is no prize to win by pronouncing definitive conclusions of law before there is any need to do so -- and especially before all the facts and circumstances are known.

tl;dr: slow down

He wouldn't listen to me when I gave this advice. I hope he listens to you. But I think you're correct - we're dealing with someone who can't have been practicing very long.

 

[GMforPowergamers]

As I've commented elsewhere, if this is true, I wonder what it means for Fate and other non-D&D games that used the Open Game License but not the D&D SRD.
WotC would be revoking a license used by other companies that doesn't involve them.

I would think those companies would have to put out there own OGL then. this one ALWAYS was wotc and it felt odd those other games used it. BUT they can reprint almost word for word... BUT label it irrevocable and say it is "REALLY an OGL"

IF I were one of them I might even make it an ad for the system "A True OGL System"

 

[Steel_Wind]

But the OGL 1.0a was not intended to only be used by commercial publishers. It was intended to be used by anyone, including casual fans with no legal training. WOTC’s current fan content policy recommends the use of the OGL for game content.

Considering the intended audience, statements in an FAQ are very likely relevant.

While it is likely that such a trial would be held in the USA and apply American state law, the FAQ would also be admitted under any pleading of unconscionability in Canada under the principle set out by the SCC in Uber Technologies v. Heller.

In that case, Uber relied upon a commercial arbitration clause with its drivers, presented to them in a "click here to agree" standard form document to compel the resolution of all disputes before an arbitrator in the Netherlands. Practically speaking, this meant that a driver could never afford to litigate any dispute with Uber.

"Too bad, so sad", said Uber's lawyers. That was the agreement and the International Commercial Arbitration Act applied. There was no discretion in the court to hold otherwise. So no, you can't sue us in a class proceeding commenced in the Ontario Superior Court. Please uphold the dismissal, said Uber.

"Like hell", said the Supreme Court of Canada, which significantly expanded and re-wrote the law of unconscionable bargains in setting the arbitration clause aside.

The take-away? Injustice motivates the court.

 

[robconley]

For folks who are interested here is an analysis of GPL version 2 which unlike version 3 doesn't contain the term irrevocable. Since the one of the sources for the OGL was the current GPLv2 it may be relevant.

7 Defending Freedom on Many Fronts

I recommend looking at section 7.4.1 which among other things talks about the sublicensing clauses that the OGL has as well.

More specifically, the downstream license grant says “the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions.” (GPLv2§6). So in this step, the contributor has granted a license to the downstream, on the condition that the downstream complies with the license terms.

That license granted to downstream is irrevocable, again provided that the downstream user complies with the license terms: “[P]arties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance” (GPLv2§4).

Thus, anyone downstream of the contributor (which is anyone using the contributor’s code), has an irrevocable license from the contributor. A contributor may claim to revoke their grant, and subsequently sue for copyright infringement, but a court would likely find the revocation was ineffective and the downstream user had a valid license defense to a claim of infringement.