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

[pemerton]

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

I still think it's pretty tightly drafted. But I can't imagine the licensing agreements that support (eg) Star Wars action figures or Marvel Lego fit on a single sheet of paper!

 

[Prime_Evil]

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.

We probably won't know for certain until we see the final draft of the new licence. There have been hints it was supposed to drop a few days ago, but that community feedback is leading WoTC to reconsider their position.

 

[Prime_Evil]

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,

Remember that WoTC have a major blockbuster film riding on the brand. This changes the equation substantially.

 

[pemerton]

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.

I don't 100% know what your (2) means. I think you're saying that WotC would declare, to all its current licensees under the OGL v 1.0/1.0a, that it now revokes the licence it has granted to them.

On its own, such a declaration doesn't seem to do very much. If someone kept publishing, WotC would then have to sue them for copyright infringement.

If 3PP's start publishing close-to-D&D RPGs without the OGL, WotC can also try and sue them for copyright infringement.

So to the extent that WotC is planning a litigation-oriented strategy, changes to the OGL just seem like a vehicle rather than the main game.

 

[Xyxox]

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

It was. That is meaningless in today's overworked court system. It no longer matters which position is correct and which is not under the law if one side has much more funding than the other side. It's all about using legal instruments to force additional litigation cost on the opponent that they simply cannot afford, not what is legally correct and what is not. A Corporation worth billions facing a combined value of litigants that may be worth a few million can make sure there is not a single argument as to fact heard in any court ever, and every one of those litigants go bankrupt or simply walk away from it all.

 

[overgeeked]

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,

Exactly. It doesn't matter how right you are or how just your cause. Your access to justice in the USA is only determined by the depth of your bank account. And if not yours, then someone else's on your behalf. Either deep pockets show up to save the tiny RPG industry or the OGL is already de facto gone.

 

[Xyxox]

Remember that WoTC have a major blockbuster film riding on the brand. This changes the equation substantially.

I would say we are likely six months away from the release of OLG 1.1 and the leak was a purposeful instrument to sew fear, uncertainty, and doubt before the document is ever released in full if, in fact, WotC/Hasbro has decided to engage in Nuclear Lawfare. The movie will be released.

Honor Amongst Thieves is to be released March 31, 2023, long before the ACTUAL OGL 1.1 will see the light of day, if they are declaring Nuclear Lawfare.

 

[S'mon]

Looking for some case to give your position any support, I found one on revocation of Perpetual software licence - BMS Computer Solutions v AB Agri - comment at BMS v AB Agri

I got around to downloading it off Westlaw - from the Held section:

"Perpetual" had different shades of meaning, including "incapable of being brought to an end" and "of indefinite duration, but subject to any contractual provisions governing termination". The latter interpretation of "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L terminated the support agreement, it also terminated the licence.

I would say this pretty strongly supports the position that Perpetual in the OGL 1.0 would be interpreted as meaning "capable of being brought to an end only through the contractual provisions governing termination" - which are specified in the licence.

 

[overgeeked]

I got around to downloading it off Westlaw - from the Held section:

"Perpetual" had different shades of meaning, including "incapable of being brought to an end" and "of indefinite duration, but subject to any contractual provisions governing termination". The latter interpretation of "perpetual" in the variation agreement was correct. There was therefore no incompatibility between the variation agreement and the requirement to keep the support agreement in place, so that requirement continued to have effect. Therefore, when L terminated the support agreement, it also terminated the licence.

I would say this pretty strongly supports the position that Perpetual in the OGL 1.0 would be interpreted as meaning "capable of being brought to an end only through the contractual provisions governing termination" - which are specified in the licence.

Here's to hoping. Now who's going to step up and fight WotC in court to get a judge to say that?

 

[S'mon]

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?

A licence can be a 'bare promise' that is not a contract. But as you say the OGL is a contract supported by consideration, not a bare promise.