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

[FrogReaver]

Maybe, maybe not. I would think that in many cases the trust around big commercial licences is modest, and that the players rely on a modus vivendi structured around tightly-drafted legal instruments rather than on sentiment.

The OGL licensing of the SRD seems to me to be in a bit of a category of its own.

I feel like up until now everyone felt the OGL was a tightly drafted legal instrument.

 

[FrogReaver]

Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."). Doesn't it no longer being an authorized version affect everyone?

I think-

1. You could agree in 1.1 to not use 1.0. Or agree that for you it would be treated as no longe authorized.
2. However, if it's not worded that way then presumably it would be a statement about the OGL 1.0 as a whole. Which is where the largest fear comes from.

 

[Prime_Evil]

Your take is not wrong imo (IANAL), but seems to be more focused on the copyright part. I was entirely focused on section 9 ("You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License."). Doesn't it no longer being an authorized version affect everyone?

And what is the effect on the reliance of third parties upon this wording to enter into independent agreements with licensees covering IP not under WoTC control? Must they cease using the OGL version 1.0a? Or do these sublicenses survive termination of the parent license?

 

[pemerton]

OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right?

I agree that consideration flows in both directions.

But a licence does not need consideration in both directions. I can invite a friend into my home, thus granting them a licence to be on my property, without them having to pay me. Of course a gratuitous licence is almost always going to be revocable at will - eg I can insist that my friend leave at any time.

The OGL is, in my view, not a gratuitous licence however.

How does Section 9 measure up then, that says "if we update the license, you can continue to use whichever one you want"?

It seems to mean that (for example) if v1.1 says "v1.0a is no longer valid", but I do not accept v1.1 (and according to the license I have accepted, I don't have to) then v1.1 does not apply to me.

Section 9 authorises a licensee under the OGL v 1.0a to pick and choose among versions of the licence when exercising the rights the OGL grants them in respect of OGC.

It doesn't (in my view) give WotC any unilateral power to rescind/revoke a licence that it has granted.

That is why I think that the likeliest scenario is that v 1.1 contains a provision similar to that found in one of the GSL iterations - whereby parties to 1.1 agree to give up their rights under v 1.0a.

If you don't become a party to v 1.1 you will not have given up those rights. And as I said, I'm of the view that WotC lacks the legal power to unilaterally withdraw them. But I'm not an expert on US contract and licensing law, so my view is necessarily tentative and subject to revision (i) in the face of more expert opinion, and (ii) in the face of more information about what WotC is claiming.

 

[kjdavies]

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.

I see two potential challenges here.

First, PF1 was built on the SRD from WotC. If that is no longer licensed (because OGL v1.0a that granted them license is gone), do they still have the right to license the formerly-licensed open content?

Second, if OGL v1.0a is revoked (WotC has the copyright on the license itself and can revoke our right to copy it, rendering it impossible for us to comply with its terms that we include it in derived works), does Paizo even have a license they can use to license their open content, if they still can do so because they no longer are licensed themselves?

 

[Prime_Evil]

If you don't become a party to v 1.1 you will not have given up those rights. And as I said, I'm of the view that WotC lacks the legal power to unilaterally withdraw them. But I'm not an expert on US contract and licensing law, so my view is necessarily tentative and subject to revision (i) in the face of more expert opinion, and (ii) in the face of more information about what WotC is claiming.

So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?

 

[overgeeked]

no one wants to use 1.1

That's very likely false. There are some who would. A few defenders of 1.1 are already popping up here, on reddit, on twitter, etc. There are some 3PP who are so locked into the D&D ecosystem that they won't really have a choice but to move on to 1.1 no matter how bad the terms are. Because it's either that or go out of business. Or try to fight WotC's lawyers and lose.

 

[pemerton]

The popculture talks about Drow and Tiefling. These depend on the OGL 1.0a.

How does it depend on the OGL 1.0a?

I have participated in countless threads talking about those things, and read more of them, on these very boards. And that did not depend on the OGL v 1.0a.

 

[pemerton]

So effectively, if you do not opt-in to the OGL v1.1, you can continue to exercise the rights granted under 1.0a?

I think that's the better view, but as I said it is tentative. The posts on this thread by @bmcdaniel are in my view the best ones on this point. @Steel_Wind also has good posts, focusing more on the litigation aspect than the abstract contractual analysis.

For a brief summary, have a look at my post 345 upthread.

 

[Xyxox]

If I'm not mistaken, trademark law would allow us to indicate compatibility, etc., something explicitly restricted in the OGL. That is, I can't say "compatible with D&D 3e" unless I have a separate license with WotC saying so. This is a consideration, yes?

Ditto, by using open content I have to allow others to use my open content.

OGL v1.0a is generous, to be sure, but does have considerations both ways. If it didn't, it couldn't be a contract or license, right? They get something, we get something. This is, if I'm not mistaken, a big part of the reason for token payments such as a $1 retainer to a lawyer, to establish client-lawyer privilege... a contract doesn't need to be objectively even, just acceptable consideration on both sides.

How does Section 9 measure up then, that says "if we update the license, you can continue to use whichever one you want"?

It seems to mean that (for example) if v1.1 says "v1.0a is no longer valid", but I do not accept v1.1 (and according to the license I have accepted, I don't have to) then v1.1 does not apply to me.

If they took it to a different meta level and revoked 1.0a 'publicly' then it seems clear I'm out of luck, but if it's done via a license I don't accept, does it still apply?

Hmm. Even then I wonder, if they stopped using v1.0a themselves even for stuff they licensed that way 20 years ago, but the license is still valid for those works and lets us sublicense, what does it mean for those cases?

(as you might have guessed, I'm not worried about 5e, I'm worried about stuff I've been working with for longer than 5e has been a thing...)

What I am about to argue assumes that WotC/Hasbro has decided to declare Nuclear Lawfare. You are probably legally right. You would also be served a Cease and Desist letter when you publish your OGL 1.0a content, if anybody will let you publish it, that is (DriveThruRPG will likely not, KickStarter will probably not. Am not sure how you get it published but let's assume you do). Let's assume your content is WILDLY successful! Let's assume you decide to tell WotC/Hasbro to shove their C&D and move forward. Now you are served with a lawsuit and you have to come up with at least $500,00 to pay for the first year of discovery and that will likely draw out to a second year. Meanwhile, WotC/Hasbro has judge shopped and file a motion to stop you from publishing the content until a decision is made. Now you are without income to fight this in court and we're into year 3 where the motions start. motions daily. You are buried under so many legal documents that it now costs a cool $1 million every two months to fight this lawsuit, and there appears to be no end in sight for these motions.

WotC/Hasbro doesn't care what the likely outcome would be in a court because they have the funding and legal department to make certain it never sees the inside of a court,