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

[Starfox]

Instead, the big bucks go to the people who understand the black letter law and can successfully argue why it doesn't apply to their client in this case.

A lot of people have a very high opinion of common law. But this... I am pretty happy to live in a country with our own weird mix of germanic and roman law.

 

[overgeeked]

The thing is (and I don't have a definitive source) but all the other D&D SRD reliant games combined amount to pennies on the dollar compared to D&D. Asking all these other creators to pay Royalties isn't doing really anything for WOTC's bottom line.

No, but it is going to drive them out of business. That appears to be the whole point.

 

[Prime_Evil]

Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?

 

[pemerton]

Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?

If you agree to license your copyrighted work to me under the terms of the OGL, we have an agreement. WotC is not a party to our agreement.

But WotC have two roles in our agreement that I can see. First, they own the copyright in the text of the OGL itself. So if we reproduce that text in our agreement, and require others to do so when they enter into licences with us, we may be infringing WotC's copyright. I don't know if there is a fair use argument here, as I'm not a US copyright lawyer. There may also be an argument from reliance or estoppel or waiver or implied permission, based on (eg) the statements on the OGF website that you refer to.

The other role that WotC has is that, under section 9 of the OGL, we would have agreed with each other to allow our licensed material to be re-licensed under other versions of the OGL authorised by WotC.

 

[mamba]

Do independent licenses issued by third parties survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?

They are in the same boat as everyone else using 1.0a when it comes to being able to continue using it

They can however simply remove the OGL and switch to a very similar license (that might need to be created for that purpose, or pick a CC one). How easy it is to make that work when there is a web of parties involved is another matter.

 

[UngainlyTitan]

Here's an interesting legal question. Some RPG publishers outside of the DnD ecosystem have used the Open Game Licence. They released their own game systems as Open Game Content under the terms of the Open Game License. WoTC has no claim on the intellectual property embodied in these game systems. These publishers relied upon public statements from WoTC about the OGL. These implied that it was both perpetual and irrevocable. WoTC has not corrected this "misunderstanding" for 20+ years. WoTC sponsored the Open Gaming Foundation for several years. This body made public representations the OGL was a universal licence. Indeed, the foundation was created by WoTC to advocate this position. Do independent licenses issued by third parties survive the de-authorisation of the OGL version 1.0a? Can WoTC revoke the use of the OGL v1.0a by parties to share intellectual property unrelated to their IP? Are these sublicenses granted by WoTC? Or do these count as independent licenses between the owner of the game system and the licensee?

No body knows unless the licence is defended in court. There is a case to be made that it can but if everybody runs for cover now then the licence become unreliable and dangerous to use unless you are willing to defend it in court.
The same really applies to any alternative "Open Licence"

 

[kjdavies]

Basically, an open license is a unilateral contract (much like a "lost-dog-$500-if-found sign), offered to anyone willing to pick it up. If someone brings me my lost dog, I have to pay them. But if I take down the sign and post a notice retracting my offer, I no longer have to pay anyone who brings me my dog.

The situation as I understand it today is closer to

• I lost my dog.
• I made an offer of $500 if my dog is found [and presumably returned to me]
• You found my dog and returned it.
• I gave you $500
• [some time later] I decide I don't want my dog anymore, and demand you give me my money back.

If I'd taken down the sign before you returned the dog, depending on the timing it might be rude to not give you the money (like, I took the sign down yesterday and you showed up today) but it should be legitimate. At which point you could decide instead to keep my dog, since I won't give you money for a dog in your possession (also rude, but could be legitimate).

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 how I would think it would work... but does not appear to be how WotC is trying to make it work.

I wonder how it works for other material previously licensed under v1.0a. That is, pretend 5e is moved entirely under v1.1 and v1.0a is not valid for 5e at all... what does it mean for open content licensed 20 years ago (3e in 2000, 3.5 in 2003, etc.)? Does this mean that third party publishers for Pathfinder (derived from 3e according to their Section 15 information) could no longer publish content for that game? Paizo was a licensee of WotC for that version, but I'm a licensee of Paizo as a third-party publisher of Pathfinder. Where's the breakdown?

(and yes, I realize this is getting into specifics and that you're not comfortable speaking in specifics, but I am having difficulty framing this as a generic question... but it does apply to other publishers and games as well, such as Green Ronin -- True20 and Mutants & Masterminds games, which are even farther from the original SRDs.)

 

[Myrdin Potter]

As a “suit” and specifically a public company finance professional, I can easily see where Hasbro is coming from. The tangible benefit to them is hard to measure. Royalty payments are sweet, sweet profits that boosts their investor relations (I am a Hasbro shareholder even). They pay a ton of fees to sell Star Wars toys and have a long tradition of protecting and using their trademarked properties. Senior leadership is from Microsoft which is all about locking others out and exploring their IP to the fullest.

One definite benefit they received is IP peace. If they kept a hardline, they could have easily faced a challenge to the game mechanics that are core to D&D. Instead, they bought peace and walled off their core rules.

I also chuckle at the lawyer conversations here. I ran a legal department and spent 10’s of millions of external legal fees annually and still had issues getting definitive answers to questions and often had to make the call myself in the end.

Litigation is quite different than contract writing.

I think that all of a smaller pie is more revenue for Hasbro and many players only buy the official books and 3PP has little influence.

Hasbro just needs to target a super small sub-segment and influence them to be hostile to selling non-OGL 1.1 materials. A couple of high profile 5e 3PP can be cut a sweetheart deal and fracture the unity of a defense.

My gut feel is that they will lose if this can get in front of a judge. I also think that fans can be counted on for $1M of funding but if this costs $3M or more then Hasbro can wear them down.

 

[kjdavies]

I find it very hard to believe that WotC would attempt to revoke earlier versions of the OGL. That wouldn't just be burning bridges, it would be nuking their relationship with the community and third party creators. It would come with a guarantee of bad press and extreme likelihood of litigation. Not to mention how it would leave a huge opening for someone else to come along with a true open licence and challenge D&Ds market position.

I suppose it's a small possibility that they would try, but I find it very hard to believe they would go that far. I guess stranger things have happened.

And yet, that appears to be what they're trying to do. And I believe your expectation of the consequences is accurate.

If they manage to revoke OGL v1.0a and invalidate anything currently licensed under that, they won't have a friend left on the planet, I can't imagine anyone would trust them or their licenses again.

 

[pemerton]

They are in the same boat as everyone else using 1.0a when it comes to being able to continue using it

In my view this is not correct. See my post not far upthread.