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

[kjdavies]

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!

I don't doubt my wording is confusing, I'm trying to describe a scenario I think is hypothetical and I hope is nonsensical because That's Not How It Works...

What I meant was

• If OGL v1.0a is revoked and Paizo thus loses the license to use the open content previously licensed under OGL v1.0a (which I think most of us believe cannot be the case, that while the license might no longer be offered existing licensees would be grandfathered); and
• Paizo has sublicensed the Pathfinder Reference Document (PRD) to their third-party publishers (as they have); and
• the PRD contains (now 'formerly') open content from the SRD that (in this scenario) Paizo no longer has license to use...

... does this invalidate the license they have given their third party publishers, because Paizo no longer has license to use the open content that was part of the content they licensed to us?

I see OGL v1.0a says that if a licensee loses the license due to their breach that sublicensees are still licensed for the contributor's content (i.e. in this scenario, if Paizo lost the license due to breach then they could no longer use SRD content but still have obligations to let Paizo licensees use Paizo open content), but I think that doesn't apply in this case because 1. Paizo wasn't in breach, the license was revoked, and 2. if OGL v1.0a is no longer a valid license then Paizo can't use it to license their open content to their licensees.

 

[kjdavies]

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.

Which is one of the major sources of contention, I expect.

If they just called it something else (GSL 2.0, let's say) and said "this is not compatible with OGL and is not an OGL license, and if you accept this license you cannot use OGL v1.0a for any of this", even if it looks a lot like OGL v1.0a (and like a lot of OGL v1.0a, I understand it's something like ten times the word count!) then it is clear it does not supersede OGL v1.0a and is a net new license. A big part of the complication we have right now is that it seems to be positioning itself not as a new license but as an update that overrules the previous in ways many of us think are not supportable under normal legal interpretation.

As I've said, it looks like they want their cake (be able to say it's OGL and open content) while making something that actually is not OGL and not open content.

 

[kjdavies]

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 convinced that this whole mess has come about because WotC is desperate to prevent the emergence of an OGL-protected 5.0-compatible fork of D&D à la Pathfinder that could potentially do to OneD&D what they believe Pathfinder did to 4e. And, to a lesser extent, to prevent 3PPs from using the OGL v1.0a and the 5.1 SRD to produce content compatible with OneD&D.

The only way to prevent these things is to nuke the OGL, and if that means going scorched earth on the 3PP ecosystem and wiping out Paizo and the rest of the competition as collateral damage, so much the better for them, they still get everything they want and more.

I suspect you are correct, both in what they're trying to prevent, in how they're trying to prevent it, and that they might even hope that how they try to prevent it has additional effect.

 

[Reynard]

The main difference now, is D&D is popculture and newsworthy.

"Roleplayers boycott Dungeons & Dragons" is a soapopera that will pique international attention.

Sure. There will be an article in Forbes.

Neither do the D&D fans want what Hasbro-WotC is doing.

Which fans? I have not seen any evidence yet this is going to result in mass exodus from D&D.

 

[Xyxox]

Which is one of the major sources of contention, I expect.

If they just called it something else (GSL 2.0, let's say) and said "this is not compatible with OGL and is not an OGL license, and if you accept this license you cannot use OGL v1.0a for any of this", even if it looks a lot like OGL v1.0a (and like a lot of OGL v1.0a, I understand it's something like ten times the word count!) then it is clear it does not supersede OGL v1.0a and is a net new license. A big part of the complication we have right now is that it seems to be positioning itself not as a new license but as an update that overrules the previous in ways many of us think are not supportable under normal legal interpretation.

As I've said, it looks like they want their cake (be able to say it's OGL and open content) while making something that actually is not OGL and not open content.

This is what happens when you put former Microsoft people in charge of something released under an open license. They have absolutely no understanding of how open licensing functions and consider it a virus to be wiped out from everything they were taught under Ballmer.

 

[Prime_Evil]

Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?

 

[Matt Thomason]

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

This is currently my own interpretation. If you never actually agree to the OGL 1.1 (or even read it in the first place), on what legal basis are you being bound by any text within it? Surely 1.0 continues its perpetual agreement until you make an alternative agreement via 1.1. Even if WotC do have revocation powers, they would have to actually contact you in order to revoke the 1.0 license, and can't rely on the fact they revoked it in a clause in a brand new license you never agreed to or even knew existed (honest, guv, I never heard of no 1.1 license and neither has my dog!)

 

[Matt Thomason]

Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?

The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.

 

[Reynard]

The interesting conflict there is that the license itself requires you to reproduce it (section 10), which could possibly create a legal argument that they have created a paradoxical legal position by both requiring you to and preventing you from reproducing the OGL license text.

Why would that be? If they put a character sheet in the back of a book and tell you that you are allowed to reproduce it, that doesn't mean they are giving up the copyright on it.

 

[Staffan]

Just to follow up on this - it would require everyone to release two versions, wouldn't it? The "bare bones" version which is licensed under the viral scheme, and the full version that includes PI. The licences for the bare-bones version would then need to include one-way doors into full versions ie you can include bare bones stuff in your full version, but your full version is not itself subject to a viral licence, which operates only over your "bare bones" version.

Not a lawyer, but I don't think that would work, at least not in a way that's in any way friendly to actual use.

Generation 1 could easily split things out into two documents. That's basically what Wizards has already done: the "real" version that's the PHB, DMG, and MM; and the OGC version that is the SRD.

But generation 2 can't do that easily, because if it includes open stuff it itself has to be open. Under the OGL I could include an NPC with a name, backstory, description, and a stat block. I could then declare the "fluff" as PI and the stat block as OGC. But if using separate documents I can't do that, because if I include the stat block, that's derived from the open content and thus the entire work has to be open. The only way out I see is if I make one work that's pure "fluff" and then another that's pure "crunch" and then have one work refer to the other. And that's really, really inconvenient for the end user.