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

Matt Thomason

Adventurer
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.
I'm answering the question that asked about if they were to use their copyright of the OGL 1.0 to prevent anyone printing (and therefore using) it in the future.
As their license agreement with $publisher already requires $publisher to reprint the OGL 1.0, any attempt by them to prevent the OGL 1.0 being reproduced through copyright litigation would be in conflict with the terms of the license $publisher already has. I'm guessing there is some established legal process to sort out exactly what happens if they create a paradoxical situation such as this, which hopefully would include good faith arguments (I may be expecting too much of the law here!) and therefore point out that they just can't do that.
 

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Prime_Evil

Adventurer
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.
Section 2 of the OGL v1.0a requires licensees to attach a copy of the OGL to derivative works distributed under the license. It also binds sublicensees to the same condition. Does this amount to permission to use the text of the licence without infringing on WoTC copyrights?
 

kjdavies

Adventurer
Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?
I think not, in that if you are using the license and the license requires you to copy the license text, that implicitly/inherently gives you right to copy it.
 

Matt Thomason

Adventurer
Section 2 of the OGL v1.0a requires licensees to attach a copy of the OGL to derivative works distributed under the license. It also binds sublicensees to the same condition. Does this amount to permission to use the text of the licence without infringing on WoTC copyrights?
I would hope (again, I may be expecting too much here) that the law would recognize that the binding terms of the license upon the third party publisher would mean attempt to prevent that reproduction through copyright litigation is in contradiction to the existing good faith agreement under said OGL.
 

Xyxox

Hero
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!)
Have you got millions upon millions of dollars to defend that position in a lawsuit file by WotC/Hasbro?
 


pemerton

Legend
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.
I think your bigger worry would be being sued by WotC for copyright infringement!
 

pemerton

Legend
I don’t follow. How is having a separate document with the reusable content different from having the reusable content mixed in with non-reusable content? It seems like it should be easier to know what you are allowed to use and under what terms.
Did you see my response to the post you're quoting:

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.
 

pemerton

Legend
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.
I think you may have lost track of the scenario under discussion? When you talk about "accepting the licence" I assume you mean entering into a licence agreement with WotC; but I was talking about a scenario in which someone with no licensing relationship to WotC nevertheless uses the OGL to license their own work.

Consider four parties: W(otC), X, Y and Z.

W publishes a piece of text, titled the OGL v 1.0a, and asserts its copyright in that text.

X publishes a document and decides to license it to Y. X wants the license to be an open license with a viral character, and so decides to use the terms set out in the text published by W. At this point, X is copying text in which W enjoys the copyright. X is also requiring Y to (i) reproduce that text in its licensed works, and (ii) require that further downstream licensees, like (say) Z, to do the same.

Where do X, Y and Z get any permission to reproduce W's copyrighted text? My view is that it must be an implicit permission that results from W having promulgated the text and encouraged others party to use it to create licenses in exactly the way that X has done and that Y may do in the future.

But what if W now makes it clear that they are revoking any such permission? Then X and Y would have to rely on some sort of estoppel or waiver argument, which is not out of the question but (I think) is more complex.

There is also the possibility that X, Y and Z don't need permission because they are making fair use of W's text; but I don't know if US copyright law considers this sort of use as fair use.

Note that the problem I've just outlined does not arise for parties to the OGL with WotC, because in that case WotC is clearly conferring permission to reproduce the copyrighted text because that's is exactly what they require via the terms of their licence (especially sections 2 and 4). I believe that Evil Hat mention WotC's SRD in their own section 15 notice when they offer Fate under the OGL v 1.0a (though I'm not sure - I'm going on what others have posted) and if they do so, it seems to me that this may be why they do so.

If the license is revoked, so is the need to copy it, which could mean I no longer have permission to do so.
Again, you seem to be talking about WotC purporting to revoke the existing licensing agreements to which it is party, whereas my post to which you replied was an attempt to analyse the situation of publishers who are not party to any licensing agreement with WotC but who want to license their own work via an open licence that has the terms of the OGL v 1.0/1.0a.

"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.
The way to "force" someone to use one or other version of the licence is to introduce such a requirement into your licensing agreement. This is what I assume that WotC will do with its OGL v 1.1, and what it did do with one iteration of the GSL - thus obliging parties to the new licence to renounce their rights under the old one.

But again this does not bear upon the scenario I was discussing in my post. I was pointing out that in the sort of situation I've spelled out above, even though X, Y and Z have no contractual relationship with W, they have agreed as between themselves (via the terms of their licences, which are the terms of the OGL) to permit W to vary the terms on which they may license to one another (if W were to exercise its power under section 9 of the licence between X, Y and Z).

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.
It's not clear that WotC is doing anything other than the first thing you describe. See the first post upthread by @bmcdaniel.

I think you are running together different legal interpretations of the notion of "revoking" the OGL v 1.0a - namely, (i) ceasing to offer licences on those terms, (ii) purporting to remove from existing licensees the power to create new sub-licences of WotC's existing OGC, and (iii) purporting to unilaterally revoke all existing agreements under the OGL v 1.0a.

The first thing WotC can obviously do, and that's been obvious for 20 years. I believe I was the first person to post about the possibility on ENworld, 10+years ago.

The third thing is something that I, and various other legally trained posters (but not all of them) think can't be done. See eg that first post by bmcdaniel, or my other posts, or @S'mon's post.

The second thing is the least certain - @S'mon and I doubt that WotC can do that, because it is contractually precluded from doing so. bmcdaniel described it as not being clear.
 

pemerton

Legend
Does it matter that Section 9 of the OGL provides a mechanism for updating the licence but does not specify a mechanism for de-authorizing previous versions of the OGL? Is there a meaningful distinction between updating the terms and revocation of the license itself?
Yes, there is a very big difference between those two things. Section 9 is a provision whereby parties to the OGL agree that WotC can promulgate new candidate terms under which certain uses of OGC is licensed, enabling parties to then use those alternative terms as part of their licensing offers without being in breach of their section 2 and section 4 obligations.

As per my post just upthread the notion of "revocation of the licence" is ambiguous, and I don't know in which sense you are using it. But section 9 is not a provision (at least on any natural reading that I can see) that permits WotC to unilaterally terminate/revoke/rescind anyone else's rights.
 

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