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

[pemerton]

Even if the terms of the OGL v1.0 cannot easily be rescinded by WoTC, could the company use their copyright over the text of the license itself to prevent future use of it by licensees?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've made multiple posts addressing this question - most recently post 479 upthread.

 

[Matt Thomason]

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

I absolutely agree this is the biggest problem - the actual legal position is purely academic if nobody can actually afford to fight it in court. I'd imagine a class action suit by a large number of 3PPs might work, possibly backed by crowdfunding, but I don't know how likely that would be.

That said, we still don't know WotC's real intent here. As others have mentioned, this may simply be a communications error in that they intend only users of the OGL 1.1 to have their 1.0 rights revoked by it (which would fit with the majority of legal interpretations over what they can and cannot do) , and that everything else is speculation by people running scared. Although I can't blame anyone for running scared, seeing as many of us have our very livelihoods at stake over this.

The real question is still what do they intend, which we can't answer until they make an official statement. I would assume simply by prior actions (the GSL) and that they didn't revoke 1.0 on the multiple occasions that it would have made sense to do so, that it's just that by accepting the 1.1 OGL you agree to waive your 1.0 rights, and that they don't actually have any intention of suing people into oblivion to stop them using 1.0.

I would also think it best that anyone with OGL ties makes plans for me being wrong on this

 

[pemerton]

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!)

I suspect that if there is a power of revocation then some sort of reasonable notice will probably be sufficient. But you're right that the proper framework for analysing this is a private law one, making sense of what binding agreements exist between which parties. The OGL (any version) is not a statute.

 

[pemerton]

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.

I don't agree with this. See my post 479.

 

[pemerton]

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?

Yes, if you are a party to the OGL with WotC.

But, as per my post 479 and earlier posts, it's not as clear what the situation is for parties who have no licensing agreement with WotC yet are using the OGL to state the terms of their licensing agreements with other parties.

 

[robconley]

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?

Also, I see little to no discussion of Section 13 the termination clause where it is explicitly stated the condition under which the license may be terminated. Along with a standalone provision that explicitly states that if the license is terminated the sublicenses are continued.

 

[mamba]

I don't think anyone thinks the OGL v 1.1 is going to be an update in the sense intended by section 9 of the OGL v 1.0a, do they? That seemed to be ruled out as soon as the press release was issued last month.

To me that was pretty much the only point to call it OGL 1.1 instead of literally anything else. This way a newer version revokes the old version, otherwise some unrelated license says something meaningless

 

[pemerton]

Legally, what I think Section 9 is inferring is that yes, you can release under OGL 1.0 or even an OGL 1.x as it will be authorized, but you CANNOT operate under the ABCGenericLicense1.0 as it has never been authorized in this line of Open Gaming Licenses and I bet if you go back to Ryan Dancey, he would agree with that.

What prohibits you using a different licence is not section 9 but sections 2 and 4.

Section 9 does not impose any restriction that I can see. It seems to me to confer a permission - namely, (i) on licensees who (as licensors) go on to license OGC to further parties, to depart from the requirement set out in sections 2 and 4 provided that the variations they make appear in "authorised updates" issued by WotC.

The practical effect of this permission should be to create a "race to the top" where "the top" is defined by the interests of parties both as licensors and licensees. Everyone will use the version of the licence that they take to optimise their interests in these two respects.

 

[pemerton]

WotC could tell you to remove it because it has been revoked whereas otherwise (and assuming you do have an independent RPG) they do nothing, but agreed, you can always comply then with no harm

If WotC is going to sue you for infringing their copyright in their various published D&D books, a C&D that refers to your use of the text of the OGL v 1.0a is the least of your problems!

 

[Matt Thomason]

I don't agree with this. See my post 479.

I think I follow your thinking there - they can't stop $publisher if $publisher is using the OGL directly from WotC (say, from the SRD) because it's WotCs license requiring you to reproduce WotC's copyrighted license text, but can potentially do if $publisher is using the OGL via a third party because thats not WotC's license (because it's the third party's distributed copy of the OGL) putting that requirement on you. Yes?