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

[Prime_Evil]

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

The copy of the OGL available via the Open Gaming Foundation includes the following preamble: "THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST". See Open Game License v1.0a

This seems to indicate an intention for third-parties to distribute the license.

A search of the website on Archive.org reveals the following FAQ for the version of the OGL published on 9/15/00:

A Brief Q&A;:

Q: What does "Approved" mean?
A: It means that the license has been approved by the WotC legal team. WotC has agreed to support these terms for the upcoming release of Open Game Content.

Q: Who can use this license?
A: Anyone can use this license. Permission to distribute the license is now granted.

Q: Do I have to use this license with material from WotC or based on something WotC publishes?
A: Not at all. You can use this license to provide a strong copyleft to any material, including an entirely new project.

Q: How do I indicate what is "Open Game Content"?
A: The exact method is up to you. You are required to "clearly" do so. Assume a "reasonable person" standard - if a reasonable person would be able to determine what is Open Game Content, your method will be acceptable.

Q: Do you have any suggestions as to how to do that?
A: Two simple methods recognized by the Open Gaming community (but by no means the only possible methods) are to place Open Game Content in boxed text and indicate in the publication that the boxed text content is Open Game Content; or place Open Game Content in a unique font, color or style not elsewhere used in the publication and indicate that any material in that unique font, color or style is Open Game Content.

Q: What is "Product Identity"?
A: Product identity means things that might be mixed in with Open Game Content that you do not wish to apply the terms of the License to.

Q: That's not very Open then, is it?
A: The License specifically limits the Product Identity to non-Game Rule content. The Open Gaming License is primarily designed to provide a strong copyleft and an Open (meaning "freedom to copy, modify and distribute") License for Game Rules and materials that use Game Rules. Content that is not Game Rules or material that uses Game Rules that is aggregated with such content need not be subject to the terms of this License.

Q: How do I identify "Product Identity"?
A: The method that Wizards of the Coast will probably be using will be to include a list of things it considers "Product Identity" in a given publication as an enumerated list under a heading of that name.

Q: What will happen to me if I use someone else's Product Identity without permission?
A: You will be in breach of the Open Gaming License. If the owner of that Product Identity notifies you of the breach, and you fail to cure that breach as described in the License, your rights to use the Open Gaming License will terminate, and you could be sued for copyright violations and breach of contract.

Q: Just by the person who owns the Product Identity?
A: No. Once your rights have terminated, if you continue to Use Open Gaming Content without those rights, you could be sued by each and every person who has contributed to the work you are Using.

Q: Do I really have to include a copy of the entire license when I Use Open Gaming Content?
A: Technically, the answer is yes. Any time you Use Open Game Content, you should also include a copy of the license. Practically, in the case of email messages or other very short material where you do not do so, you will be in breach of the License but you are unlikely to be so notified, and even if you were, you are unlikely to be repeatedly distributing the same email message, so you can cure your breach by agreeing not to continue to distribute the offending message without the full text of the License.

One copy of the License is sufficient for each publication; you do not need to publish a copy of the License for every item of Open Game Content in a given publication. You can also use one copy of the License for content on a web site, but if any part of that web site is designed to be downloaded and used separately by a user, you need to provide for an inclusion of the License with that download.

You cannot merely refer to a web location or an offer to provide the License on request - you must actually include the full text of the License.

I'm sure there will be other questions that need to be answered. Please let me {EMAIL ADDRESS REDACTED} know what they are, and I will try to create an effective response, ASAP.

(Open Game License v0.1 Simplified)

This would seem to seem to contain a clear statement of intent. Note that Ryan Dancey was vice president in charge of Dungeons & Dragons at Wizards of the Coast when he posted this FAQ, so he may have been in a position to articulate corporate policy at that time. However, the OGF is a separate legal entity to WoTC.

Something I didn't realize is that early versions of the OGL were marked Copyright 2000, Open Gaming Foundation. I'm not sure when the copyright was reassigned to WoTC.

The FAQ published on the WotC website on January 26, 2004 contains a number of statements aligned to this document:

Q: Why does Wizards of the Coast hold the copyright to the license?

A: Wizards of the Coast wrote the License and wants to control the right to make changes to the License in the future.

Q: Does Wizards of the Coast's copyright to the License mean that anything I publish using the License is owned by Wizards of the Coast?

A: No. The copyright on the License pertains to the terms of the License itself, not to materials distributed using the License.

Q: How can I distribute the License if Wizards of the Coast owns the copyright to the License?

A: Wizards of the Coast has granted a free and unrestricted right to distribute exact copies of the License.​

That seems unambiguous. The existence of this FAQ might strengthen arguments based upon reliance.

Ryan Dancey has just updated the OGF website, presumably to clarify the position:

​

Update January 4th 2023​

It's been nearly 20 years since this site was last updated. During that time there's been a tremendous amount of Open Game Content published; the objectives of the Foundation were exceeded in every way. Open Game Content is now a standard and accepted method of publishing games. Thanks to all who have participated in this great project since its inception. This site is not actively maintained (maybe someday!). For now, we've updated the site to use SSL so that if you're visiting using a browser that requires a secure connection you'll be able to use one. We've also trimmed a lot of links to projects and services that are not immediately relevant to the current time. We're aware that Hasbro/Wizards of the Coast is considering issuing a new Open Gaming License and we're tracking that process. If and when they do release an authorized update to the OGL, if it remains in compliance with the philosophy of Open Gaming we'll include links to it here on this site. The Open Gaming Foundation is a private organization, dedicated to supporting the ideals of the Open Gaming philosophy: That game rules and material that use those rules, should be free to copy, modify and distribute.​

 

[AbdulAlhazred]

The fact that Paizo have said nothing significant makes me wonder whether (i) they have had discussions with WotC and are waiting for the next step, or (ii) they are consulting with their own legal team. To me, (i) seems slightly more likely given that we know their are 3PPs under NDAs.

OF COURSE THEY ARE!!!! The fact that they are saying nothing means their lawyers told them to 'shut up', which is exactly what lawyers, rightly, ALWAYS tell their clients to do, like 99.99999% of the time. Being fairly prudent people, they are doing it. I mean, it costs them nothing to wait and see. Frankly, suppose they decided they would just keep using OGL 1.0a under advice, they will NEVER say anything, period. They will just do it. If WotC is really going to sue people for that, then there you go, its still not going to be talked about, and if they aren't, then what does Paizo have to discuss? Some rumors about their competition? I don't think they have a big history of talking about WotC ANYWAY.

 

[FrogReaver]

I think this sentence in the article - "One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement." - is a bit misleading from the point of view of addressing technical questions.

There won't be an update to the OGL v 1.0. OGL v 1.0 can't be updated in the literal sense - what section 9 permits is the use of alternative versions that are promulgated by WotC. This contrasts with (for instance) my contract with my bank, which the bank does have the authority to update while it remains the very same contract.

And the OGL v 1.0 will not state, of itself, that it is no longer an authorised licence agreement.

Rather, there will be a term in v 1.1 which says something to the effect that parties to the OGL v 1.1 agree not to use the v 1.0/1.0a licence; and if v 1.1 has an analogue of section 9, which to me seems likely given it will probably be a (quasi-)open copyright licence, that provision may expressly state that v 1.0/1.0a is not an authorised version for the purposes of that provision.

But no terms of v 1.1 can be binding on anyone who is not a party to it.

Does anything prevent them from providing their notice that they are deauthorizing the OGL 1.0a within the body of the OGL 1.1?

You seem to be thinking they are going to use the 1.1 license in order to get agreement that 1.0a is effectively deauthorized for the OGL 1.1 licensees. From everything I am seeing they are just going to post that notice in their new license. Unless there's some legal reason not to do that, then that's what it sounds like they are doing to me.

 

[Prime_Evil]

I think this sentence in the article - "One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement." - is a bit misleading from the point of view of addressing technical questions.

There won't be an update to the OGL v 1.0. OGL v 1.0 can't be updated in the literal sense - what section 9 permits is the use of alternative versions that are promulgated by WotC. This contrasts with (for instance) my contract with my bank, which the bank does have the authority to update while it remains the very same contract.

And the OGL v 1.0 will not state, of itself, that it is no longer an authorised licence agreement.

Rather, there will be a term in v 1.1 which says something to the effect that parties to the OGL v 1.1 agree not to use the v 1.0/1.0a licence; and if v 1.1 has an analogue of section 9, which to me seems likely given it will probably be a (quasi-)open copyright licence, that provision may expressly state that v 1.0/1.0a is not an authorised version for the purposes of that provision.

But no terms of v 1.1 can be binding on anyone who is not a party to it.

I suspect you are right here. If v1.1 of the OGL is like the GSL, acceptance of the license would prohibit you from using OGC licenced under v.1.0a - even if it for a game system unrelated to any WoTC intellectual property. The viral nature of this will be toxic for any publishers who work with multiple systems. Could publishers get around this by creating separate corporate entities to deal with material released under v1.1 of the OGL, firewalling them from other areas of their business?

 

[pemerton]

The copy of the OGL available via the Open Gaming Foundation includes the following preamble: "THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST". See Open Game License v1.0a

This seems to indicate an intention for third-parties to distribute the license.

Agreed. My post 479 suggested an implicit permission - in fact at one point in time it was express.

WotC could retract that permission at any time, as it is purely gratuitous. My post analysed possible arguments that an entitlement to reproduce the text of the licence might survive such a retraction.

 

[pemerton]

Could publishers get around this by creating separate corporate entities to deal with material released under v1.1 of the OGL, firewalling them from other areas of their business?

As I posted upthread:

That would depend on how the requirement is worded. Eg does it refer to "You", "You and any related entities", etc?

 

[sigfried]

I don't intend to prove his argument wrong because I think there is about a 95% chance it would absolutely win in any court of law in the United States and I agree with it 100%. That's why I ask about the funding because that is what it will take to get it before any court in the United States. Get the money and it's a slam dunk. If the EFF can be brought on board it stands a damn good chance. They have beaten bigger corporations than Hasbro many times before.

I think it depends....
If WOTC is suing you, it doesn't cost you all that much to take it to court. They are the ones that pay the fees to file the lawsuit and submit most of the motions etc... The defendant has to pay for their legal representation and costs like transportation and so forth. If you have cheap representation or choose to represent yourself, it doesn't cost all that much to get the case into court on your side.

Most folks that get sued don't want to go to court, and some of the things you might want to do to stop it from happening can indeed cost money, filing various motions and the like if you are happy to carry forward to the trial, not so much. (Obviously, there is a time commitment required and that may well have a big financial opportunity cost.)

WOTC has to spend a lot more to sue you than you have to spend to defend yourself, but they also have a much better chance of kicking your ass if you don't have some stellar legal counsel. That said, I'm pretty sure if you were the test case for the whole industry, you could probably find some folks willing to chip in for your defense, enough to get decent counsel for the trial and to make sure you follow the correct steps in the process.

I don't think you will find many companies that want to do this, and I don't think WOTC will want to go after some small fry who can afford to say, "naughty word it, my new job is to win this court case and I've got almost nothing to lose here even if they win."

 

[pemerton]

Does anything prevent them from providing their notice that they are deauthorizing the OGL 1.0a within the body of the OGL 1.1?

Notice to whom? And what do you mean here by "deauthorising"?

To put it another way, what legal power are you envisaging WotC exercising?

You seem to be thinking they are going to use the 1.1 license in order to get agreement that 1.0a is effectively deauthorized for the OGL 1.1 licensees.

This is what I think will be a term of v 1.1, yes, because it's completely straightforward. And I think it is reinforced by the fact that the v 1.1 seems not to use the term OGC but rather Licensed Content.

From everything I am seeing they are just going to post that notice in their new license. Unless there's some legal reason not to do that, then that's what it sounds like they are doing to me.

I don't understand what legal power you are conjecturing WotC will exercise. Are you talking about them trying to revoke all their existing licence agreements?

 

[Prime_Evil]

I suspect that WoTC may have difficulties "extinguishing" the OGL v1/0a but may simply lean on Drivethrurpg / Kickstarter to enforce the usage of v1.1 only. That will kill the legacy licensing arrangements, regardless of the legal position.

I think the new licence will be offered on an opt-in basis, but it will become impossible to publish anything under the old version even if you don't opt in.

 

[pemerton]

I suspect that WoTC may have difficulties "extinguishing" the OGL v1/0a but may simply lean on Drivethrurpg / Kickstarter to enforce the usage of v1.1 only. That will kill the legacy licensing arrangements, regardless of the legal position.

That sort of thing seems a possibility, yes. Although depending on the details it might actually get closer to raising competition law concerns. (But a big caveat: my knowledge of competition law is weaker than my knowledge of contract law!)