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

[kjdavies]

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.

Seeing as accepting the license and using open content licensed under that license requires that you copy that license, you actually can't lose copyright as long as the agreement is in place.

That is, the requirement to copy the text implicitly grants copyright (I don't own it but I have the right to copy it) because I am required to do so by the terms of the license.

... or so it seems to me. I think 'copyright' is not grounds for not using the license.

If the license is revoked, so is the need to copy it, which could mean I no longer have permission to do so.

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.

"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" means it's up at the discretion of the licensee, not the contributor. I can't force a licensee to use any particular version of the license, they can choose which one they want.

I suppose it could happen that an updated version could put additional onus on the contributor and thus be of interest to the licensee -- "contributor must pay licensee for each use" sort of clause, but it seems greatly unlikely the author of an OGL update would want a clause like that in it...

 

[Cadence]

This came up in Twitter in relationship to promissory estoppel, and reminded me of some folks bringing up different state laws on EN. Any thoughts on if this is vaguely a relevant thing from those of you in the field?

Edit: Any thoughts @Snarf Zagyg @S'mon
Otherwise I'll keep googling random things like in #452.

 

[kjdavies]

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.

Honestly, if it was just "5.5 is OGL v1.1 and no other licenses", and they leave OGL v1.0a (and all "not-5.5" games) alone, pretty much everyone will be pretty chill.

The potential damage if they somehow revoke OGL v1.0a is very, very scary, so people are decidedly not chill.

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.

I suspect your gut is more or less accurate (not sure about numbers, but the shape of the answer feels likely). Just because you're right doesn't mean you'll win in court.

 

[Starfox]

Say I have published a game under the 1.0a license. I now publish a second printing, omitting the 1.0a license. I have now broken the license. I can claim to do this because the 1.0a license is now invalid, having been negated by WotC.

I can now be sued by others who use the 1.0a license. Which would give WotC/Hasbro reason to come to my legal aid in order to uphold their right to cancel the 1.0a license. Because if I lost the 1.0a license would have been shown to apply in a court of law.

Oh joy...

 

[kjdavies]

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

To put it into "bean counting" terms, the creative community is doing billions of dollars of free advertising for Hasbro-WotC.

'Drow' evidently goes back to Scots dialect hundreds of years ago or to the Norse saga, depending on which etymology you believe, and in at least one of them describes fey creatures black as pitch.

The concept of a tiefling, a creature of fiendish descent, also goes back centuries... might need to find a new name ('cambion' comes to mind, comes to us from Late Latin by way of Celtic language and refers to a changeling of fey and demonic descent) but the concept predates D&D and WotC (and even TSR!) by just a little.

 

[Alzrius]

The big problems with that are 5.0–5.5 compatibility and the fact that Pathfinder exists now. Nothing like Pathfinder existed when the GSL scheme was dreamed up.

I'm pretty sure it did. The very first Pathfinder release, Burnt Offerings, came out in late August, 2007. The original release of the GSL, according to my local copy, came out in mid-June, 2008.

Now, to be fair, you did say "dreamed up" rather than "released," but Gen Con 2007 was not only the debut of Burnt Offerings, but also when WotC held a meeting asking for input about how their third-party compatibility license for 4E should work (I know because I attended that meeting), which made it pretty clear that they didn't have a firm plan in mind at that point.

 

[kjdavies]

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.

Hmm. Right, wasn't thinking totally clearly, a license is 'just' permission to do something. I was thinking agreement or contract.

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.

That's how I interpret it -- if v1.1 says "I agree to no longer use v1.0a" or "I agree this content is not eligible for v1.0a despite v1.0a saying it should be", then that would stand for those who accept v1.1 and not for others.

But IANAL, and this is only logical, sensible, and potentially actually fair. It doesn't mean that's how it'll play out

 

[mhd]

I'm pretty sure it did. The very first Pathfinder release, Burnt Offerings, came out in late August, 2007.

And was a D&D 3.5 game. Back then at least "Pathfinder" just appeared to be their name for their Golarion-based adventure paths. Was a separate system already in play then?

 

[kjdavies]

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,

Sadly, I expect that's how it would play out. I long ago learned (from observation, thankfully, not experience) that just because you're right doesn't mean you'll win in court.

If they keep it to 5e I'm not concerned. I don't play 5e and I'm not interested in publishing for it.

My much bigger concern is that SRD/RSRD/MSRD open content (i.e. from 15+ years ago) licensed under OGL v1.0a gets an 'v1.1 or else' ultimatum. If I can continue to use that content (and derived content) under v1.0a I couldn't care less what happens with 5e. My post was trying to play that situation out.

 

[kjdavies]

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.

Right, I was thinking 'agreement' when I wrote 'license'. License is 'just' permission to do/have something, it might have considerations going both ways but is not required to.