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

[pemerton]

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.

As best I can tell that is what they are doing. The leaks seem to indicate that the OGL v 1.1 will not refer to OGC but rather to licensed content. Thus it is probably not a version of the OGL v 1.0/1.0a. It's a new set of licensing terms that happen to be labelled the same way.

 

[mamba]

Only if you interpret section 9 as conferring on WotC a unilateral power to revoke their licensing agreements. Which I think is an implausible construction, given that it appears in the context of a provision dealing with updates, not with revocation/termination.

ok, but that seems to be what WotC is aiming for in order to revoke the license. I am not agreeing with them there, but that does not mean it is currently safe to ignore WotC's stance

 

[mamba]

As best I can tell that is what they are doing. The leaks seem to indicate that the OGL v 1.1 will not refer to OGC but rather to licensed content. Thus it is probably not a version of the OGL v 1.0/1.0a. It's a new set of licensing terms that happen to be labelled the same way.

I would agree if WotC were not also trying to revoke 1.0 in the process

 

[pemerton]

as I said IANAL. From my understanding the following is true

1) everything already under 1.0a can stay under 1.0a, that is the perpetual part of the license
2) nothing new can be released under the license, as it is revoked / no longer authorized

There is also the possibility that existing licensees, who currently enjoy rights under the OGL v 1.0a to distribute OGC provided they do so consistently with the licence terms and requiring sub-licensees to agree to the same terms, would retain those rights even were WotC to decline to enter into new licences on the terms of the OGL v 1.0/1.0a.

 

[mamba]

There is also the possibility that existing licensees, who currently enjoy rights under the OGL v 1.0a to distribute OGC provided they do so consistently with the licence terms and requiring sub-licensees to agree to the same terms, would retain those rights even were WotC to decline to enter into new licences on the terms of the OGL v 1.0/1.0a.

I am not dismissing the possibility, I just think you will need to fight WotC over this

 

[Prime_Evil]

Only if you interpret section 9 as conferring on WotC a unilateral power to revoke their licensing agreements. Which I think is an implausible construction, given that it appears in the context of a provision dealing with updates, not with revocation/termination.

If that is true and the OGL is a contract with consideration rather than a mere promise, does it not logically follow that the only mechanism by which WoTC can revoke the license is by invoking the termination provisions in Section 13?

 

[pemerton]

ok, but that seems to be what WotC is aiming for in order to revoke the license. I am not agreeing with them there, but that does not mean it is currently safe to ignore WotC's stance

I reiterate my post not far upthread:

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.

I would agree if WotC were not also trying to revoke 1.0 in the process

See just above: if the concern is with legal entitlements, then the better view, I think, is that they can't. If the concern is with "lawfare" then any purported revocation of the OGL is just a vehicle. Publishing without a licence from WotC won't make anyone any safer from lawfare, as best I can tell.

I am not dismissing the possibility, I just think you will need to fight WotC over this

Only if they strike the first blow.

I guess if WotC make a declaration purporting to unilaterally terminate all existing licence agreements someone could go to court seeking a declaratory judgement that WotC's declaration is ineffective, but why would someone else want to strike first?

I think @S'mon's OSRIC-inspired suggestion makes more sense - wait for WotC to send its correspondence, and then respond asserting one's rights and see if WotC really want to proceed, or rather back off.

 

[pemerton]

If that is true and the OGL is a contract with consideration rather than a mere promise, does it not logically follow that the only mechanism by which WoTC can revoke the license is by invoking the termination provisions in Section 13?

No. It may follow, but it may not: it's a question of interpretation rather than logic.

Here's a re-post from another thread:

Here is the text of section 13 of the OGL v 1.0a:

Termination: This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License.​

This is the only provision in the OGL that deals expressly with the issue of termination. But it does not say that it is the sole basis for termination/revocation. The letter sent on behalf of Sad Fishe says that

Section 13 sets forth the sole condition of termination of the license . . . Outside of what is given, Wizards has no authority to terminate the license, both with respect to prior published content and future published content under the license.​

That claim rests on the premise that the specification of one mode of termination, and the failure to specify any others. confines the power of termination to that which has been specified. This is what I mean by identifying an implication based on construction/interpretation of the instrument as a whole.

The Sad Fishe claim also leans heavily on the statement about survival of sublicenses. (At least, that seems to me to be the basis for the claim about future published content.)

As I said, I don't think these claims are hopeless, but nor do I think they are certain. bmcdaniel, who clearly is more of an expert than me, says the status of sub-licensees following WotC's revocation of its standing offer is not clear. I'm not going to contradict that!

 

[mamba]

If the concern is with "lawfare" then any purported revocation of the OGL is just a vehicle. Publishing without a licence from WotC won't make anyone any safer from lawfare, as best I can tell.

No idea really. My theory was that if I have a separate RPG that just used the OGL 'for convenience' then I would be safer removing it as then WotC has nothing to sue over (which was the case I replied to). If however I am relying on OGC for my product then yes, you are probably better off keeping it.

 

[kjdavies]

I'm not lawyer but I don't think it can say irrevocable if it says it can be terminated for not following license terms

I'm pretty sure it can. 'Irrevocable' just means you can't back out, that the contracting parties are committed to the contract until it is terminated. Possible termination reasons include

• a specific period (irrevocable three-month contract; three months from now it ends, but not before then -- unless another termination reason happens);
• a specific event (contracted until certain conditions are met);
• completion (I contracted you to paint my house; when you finish painting my house you get paid and go home, the contract is complete and ended);
• breach (you didn't paint my house by the deadline, you (might) have to make restitution so I can hire another painter and the contract ends));
  • This would be the one that causes termination for not following license terms
• impossibility (I contract you to paint my house and my house burns down; might not be considered a breach if it fits under 'act of war' or 'act of god', or maybe it is, situation depends).