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

[pemerton]

I feel the same, but people do it anyway.

I think they're probably in breach. But no one appears to have attempted to enforce their contractual rights by way of litigation.

I recently re-read the OGC declaration in Monte Cooke's Arcana Unearthed. I think it is very interesting to see where Monte (and/or Monte's lawyer) saw the mechanics(OGC)/product identity line to fall, and also some of the defensive wording used.

That ends up sounding a lot like the OGL except probably custom and possibly MacGyvered out of other licenses.

Well it would be different from the OGL in that one of the terms would have to be a promise to publish a work consisting solely of the OGC, and to license that in the same terms to any one else who wants to take it up.

I think the greater onerousness of the two-documents approach might be a barrier to uptake - there is both the need to create the second PDF, and the need to host it somewhere so its accessible. And of course if the work ceased to be published (eg the host fails for whatever reason) then the licensee would be in breach.

 

[mamba]

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!

that runs against the "assuming you do have an independent RPG" part, unless the idea is that it is a fraudulent claim, at which point nothing I do really matters

 

[pemerton]

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?

I think not quite - depending on who you mean by "third party".

Given that WotC has a licence agreement with Paizo (on the terms set out in the OGL v 1.0/1.0a), and that agreement requires Paizo both to (i) reproduce the text of the OGL, and (ii) requires Paizo to require sub-licensees to reproduce the text of the OGL, then it must be the case that WotC has authorised that reproduction of its copyrighted text.

Now if WotC is trying to argue that it can revoke some or all of the rights it has conferred on Paizo, it will also (in passing) be arguing that it can revoke that permission granted to Paizo. But in such circumstances losing the right to reproduce the text of the OGL would be the least of Paizo's worries! -because Paizo only needs to use such a right if it also has the more important rights (ie to use and distribute WotC's OGC) that WotC has granted on it as a party to the OGL.

But my post 479 was considering a scenario in which a RPG publisher who is not WotC, and is not in a licensing arrangement with WotC, wants to licence its own copyrighted work to other parties under a licence having the exact terms of the OGL. (In other words, it wants to create its own ecology of OGC.) That person is a stranger to WotC's licensing arrangements with Paizo and sub-licensees who enter into agreements with Paizo. So they don't have the same argument for permission to reproduce WotC's copyrighted text. In my post I tried to suggest some other bases on which they might nevertheless be able to assert such a right.

 

[pemerton]

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.

I've discussed it extensively, in this and other threads.

 

[wunkburger]

In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

That's not what your link says, at all:

"Conversely, courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration. Results, however, may vary based on applicable state contract law and federal law preemption principles."

 

[pemerton]

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

It seemed pretty clear from the posting of the announcement that v 1.1 was going to differ in its terms from v 1.0a in a way that made no sense as a section 9 update.

The reason for calling it OGL 1.1, as far as I can see, is purely rhetorical.

I don't know what you mean by "a newer version revokes the old version" - that's not a concept that is part of the terms of the OGL as a licensing agreement. (Compared to, say, my contract with my bank under which I agree to let them modify the terms and conditions pretty much as they like.)

 

[Burt Baccara]

I have not been able to find any games mechanics cases on RPGs.

Check out DaVinci Editrice S.R.L. v. ZiKo Games, LLC:

• For Lawyers: Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F. Supp. 3d 820 | Casetext Search + Citator
• For the rest of us: Texas court affirms game mechanics not protected under copyright law

 

[Matt Thomason]

But my post 479 was considering a scenario in which a RPG publisher who is not WotC, and is not in a licensing arrangement with WotC, wants to licence its own copyrighted work to other parties under a licence having the exact terms of the OGL. (In other words, it wants to create its own ecology of OGC.) That person is a stranger to WotC's licensing arrangements with Paizo and sub-licensees who enter into agreements with Paizo. So they don't have the same argument for permission to reproduce WotC's copyrighted text. In my post I tried to suggest some other bases on which they might nevertheless be able to assert such a right.

Yes, I was thinking of, for example, the use of the OGL by the Year Zero Engine, which stands alone and doesn't originate with the D&D SRD.

 

[pemerton]

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.

that runs against the "assuming you do have an independent RPG" part, unless the idea is that it is a fraudulent claim, at which point nothing I do really matters

PF1 is a separate RPG from D&D. So is C&C, and arguably so are OSRIC, Swords & Wizardry, etc. But publishing any of them without a licence from WotC would (in my view) risk losing a claim to copyright infringement. I'm not expert enough to say how big the risk is, but clearly greater than - eg -the risk of Vincent Baker losing a claim to copyright infringement by Apocalypse World, and even than the chance of Luke Crane et al losing such a claim of infringement by Torchbearer.

If what you have in mind is, say, PF2 which - as per a recent post (or announcement?) Paizo are saying they could have published without a licence from WotC, then I still think the risk of keeping the OGL in their product is extremely low, as (i) they have a permission from WotC to reproduce it (conferred on them by their licensing agreement with WotC) and (ii) the worst possible outcome is a C&D from WotC in respect of it.

 

[pemerton]

Yes, I was thinking of, for example, the use of the OGL by the Year Zero Engine, which stands alone and doesn't originate with the D&D SRD.

OK, for that scenario my analysis in that post (479) is my best attempt to unpack the possibilities.