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

[mamba]

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.

defenders of WotC who are not actually 3PPs ? Yeah, I can see some trolls coming out of the woods

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.

does not sound like they want to, which is what I wrote

 

[Xyxox]

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.

I would say that WotC/Hasbro would stand less than a 10% chance of winning if the right IP and contract attorneys were to actually argue the case before a judge in a court of law. WotC/Hasbro would never want a jury trial because their chance would likely drop to less than 1%.

The problem is, how do you fund such litigation? You would need at least as much money as Critical Role raised for the Vox Machina cartoon series.

 

[overgeeked]

defenders of WotC who are not actually 3PPs ? Yeah, I can see some trolls coming out of the woods

does not sound like they want to, which is what I wrote

The difference between "want to" and "will" is academic.

 

[mamba]

I would say we are likely six months away from the release of OLG 1.1

it was supposed to come out on 1/4 with 3PPS having to decide by 1/13 whether to accept the terms

 

[mamba]

The difference between "want to" and "will" is academic.

to the outcome yes, but that is about it

There is a lot of difference between me giving you $100 as a gift or at gunpoint

 

[S'mon]

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,

So how did Chapter House fight Games Workshop? That seems a much more complicated case than this one. I don't understand where this $500,000 Discovery cost is coming from? For a sole trader? I can certainly appreciate it being very expensive to fight one of these big corporations, but the numbers being bandied around seem excessive to me, compared to my (fairly meagre) knowledge of other cases.

 

[kjdavies]

I agree with you. They likely cannot. By using the verbiage that OGL 1.0a is unauthorized, it would specifically apply to anything released under the OGL 1.1 license based upon everything I've seen, meaning that nobody can release anything covered by OGL 1.1 under OGL 1.0a because section 9 of that license cannot be applied as that license is not authorized for "open" content released under OGL 1.1. I believe this is a CYA for moving forward so that new content must abide by the terms of OGL 1.1, similar to how under the GSL you gave up the rights to release the content under the OGL.

Furthermore, I do not believe the WotC C-level leadership has any understanding how pulling such a move with D&D 4E was devastating to desired sales and growth of that product and more than anything else, hindered the success of that product. Had it continued under the same model, you would have never had a Pathfinder and it would have been far more successful. Overall, it was not a bad product, but the licensing held it back from the heights and growth reached by 3.0/3.5, This bears out after releasing 5E under OGL 1.0a as demonstrated by the growth of that product.

One of the simplest ways to resolve this (for WotC) is to do as 4e did: create a new license for 5.5 and not release the new stuff under OGL anything.

The GSL didn't need to 'unauthorize' OGL v1.0a because it was not relevant, and they left it alone for not-4e (i.e. 3e and 3.5) open content. No problem.

WotC wants to have their cake and eat it too: to be able to say 'OGL v1.1' is an open license despite not being consistent with open licensing. If they can take out OGL v1.0a for previously-licensed material I'm sure they'd be delighted, but really it seems they want to be able to claim not-open stuff actually is open.

 

[overgeeked]

to the outcome yes, but that is about it

That's all that really matters.

There is a lot of difference between me giving you $100 as a gift or at gunpoint

Not really. Wouldn't be the first time someone's put a gun in my face. Likely won't be the last. Either way, I'm spending it on game stuff and booze.

 

[S'mon]

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

Maybe Stuart Marshall of OSRIC can give his old Solicitors' firm a call.

 

[pemerton]

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?

What you're describing don't sound to me like sub-licences.

But anyway, the use of the OGL by parties to licence IP among one another that is independent of WotC's IP claims seems to me to be unaffected by any decision WotC takes, except for the points I made in post 364 in reply to you.

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?

You wording is a bit confusing. The issue is not whether "OGL v 1.0a which granted the licence is gone". Its whether or not Paizo continues to enjoy a licence in virtue of its entering into a licensing agreement with WtoC. And this has been discussed upthread. @bmcdaniel said that the better view is that WotC can't unilaterally end its agreement with Paizo, but that if it now revokes the offer to enter into new licences, it's unclear how that would effect Paizo's ability to sub-license into the future.

One view, which I think is quite plausible as a matter of contractual construction, is that insofar as Paizo retains its rights under the agreement, one of the rights that it retains is to continue to license OGC to other parties. But given that an expert has said this matter is unclear, the view that I think is plausible can't be regarded as anything close to certain!

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?

Paizo's right to reproduce the text of the OGL is conveyed to them by the terms of their licensing agreement with WotC (which are the terms set out in the text of the OGL). So if it retains its rights under the agreement, it retains its right to reproduce the OGL text as best I can see.

Whether WotC really has the power to render it impossible for others to copy the text of the OGL I don't know - see my post 364 upthread.

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

Perhaps. I think this is a plausible view. I suspect that it is the best view. But as I've said, in this post and my earlier reply to you, I don't think it is certain.

Particularly because different categories of rights enjoyed under v 1.0a might be affected differently by decisions made by WotC - eg whether one can continue to publish existing licensed OGC involves a different right conferred by WotC under the agreement (namely, the right to reproduce their copyrighted work), compared to whether one can create new sub-licences for the use of WotC's work (which is about a power of agency or similar conferred by the OGL v 1.0/1.0a on existing licensees). A decision by WotC to retract its standing offer to licence the 5e SRD under the OGL v 1.0a could effect these two rights held by existing licensees differently.