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

Enrahim2

Adventurer
The reason for calling it OGL 1.1, as far as I can see, is purely rhetorical.
What is wrong with my reasoning:
  • The main suspicion seem to be that wizards want to prevent new things to be published under 1.0a
  • There are as far as I can see nothing we know indicating they will not try to formulate it so that 1.0a is still valid for the content already published under 1.0a.
  • In this case section 9 of those still valid 1.0a licenses stipulate that you can build on 1.0a content if and only if the new content is an version of OGL.
Everything about this screams to me that what they are trying to do is to lock down all existing 1.0a content so that wizards of the coast get (effectively) exclusive lisence to publish it in any non-static electronic format. In other words they are setting up a royalty free monopoly based 10/20 years worth of content made by 3PP. Calling it OGL is esential for this scheme to work. (IANAL)
 

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FrogReaver

As long as i get to be the frog
Notice to whom?
Everyone.

And what do you mean here by "deauthorising"?
Section 9 says to the licensee: "you may used any authorized version of this License to copy, modify and distribute any open Game content originally distributed under any version of this License".

Since authorization is ambiguous, WOTC would be making the argument that they have sole prerogative in determining what versions of the OGL are currently authorized and which are not. Contrast with the hypothetical - 'you can use any version of this License that has ever been authorized at the time of your Use to copy, modify and distribute any open Game content originally distributed under any version of this License'.

*Note I don't think this is a great argument but it's certainly one they can make.

To put it another way, what legal power are you envisaging WotC exercising?
Only one that they can argue is implied within the license agreement.

This is what I think will be a term of v 1.1, yes, because it's completely straightforward.
It doesn't seem to me to match what we have seen from the leaks. Also, you could be right, but it feels more like you are saying this is how a reasonable company would likely do things and i'm not sure WOTC is being a reasonable company at the moment.

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.
I'm not understanding the significance of this observation

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?
If they deauthorize OGL 1.0a for all then it would effectively revoke all their existing license agreements utilizing OGL 1.0a as well.
 

pemerton

Legend
Everything about this screams to me that what they are trying to do is to lock down all existing 1.0a content so that wizards of the coast get (effectively) exclusive lisence to publish it in any non-static electronic format.
What legal technique are you suggesting they are using to do this?

For instance, how do you think they are proposing to retain rights to other's OGC under the OGL v 1.0/1.0a while at the same time terminating those parties' rights under that licence?

I reiterate this post from upthread, which in my view is the most expert posted on this thread:

I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR (y) that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option (y) is what is happening, but it is possible that option (x) is occuring.
 

Prime_Evil

Adventurer
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!)
Even if it is anti-competitive behaviour, I do not think any publisher has the deep pockets necessary to fight that case through the court system.

I do believe this whole debate is a public relations disaster for WoTC though. It has effectively destroyed the goodwill they accumulated through the 5e era through responsible management of the D&D brand. Most of the gamers I know (which may not be a representative sample) have revised their expectations of OneDnD downwards. But that's not a legal argument.
 

pemerton

Legend
Even if it is anti-competitive behaviour, I do not think any publisher has the deep pockets necessary to fight that case through the court system.
I assume that, in the US, public authorities play a significant role in tackling anti-competitive behaviour.

I do believe this whole debate is a public relations disaster for WoTC though. It has effectively destroyed the goodwill they accumulated through the 5e era through responsible management of the D&D brand.
As per my posts upthread, I'm not so convinced of this. I suspect that for many many people who purchase D&D material because they enjoy playing D&D, this is largely a non-issue.
 


Prime_Evil

Adventurer
As per my posts upthread, I'm not so convinced of this. I suspect that for many many people who purchase D&D material because they enjoy playing D&D, this is largely a non-issue.

I'm basing this assumption on the collapse of sales after 4e came out. The market contracted for several years because WoTC lost the confidence of a portion of their fanbase. The terms of the GSL were unacceptable to most publishers. This hurt their bottom line, leading to the premature termination of 4e.

Maybe the composition of the market has changed to an extent this is no longer a concern. But I don't have any evidence to support this one way or the other.

(NOTE: This is not a comment on the virtues or failings of 4e, but merely upon the market reaction to it).
 

pemerton

Legend
Section 9 says to the licensee: "you may used any authorized version of this License to copy, modify and distribute any open Game content originally distributed under any version of this License".

Since authorization is ambiguous, WOTC would be making the argument that they have sole prerogative in determining what versions of the OGL are currently authorized and which are not. Contrast with the hypothetical - 'you can use any version of this License that has ever been authorized at the time of your Use to copy, modify and distribute any open Game content originally distributed under any version of this License'.

*Note I don't think this is a great argument but it's certainly one they can make.

<snip>

If they deauthorize OGL 1.0a for all then it would effectively revoke all their existing license agreements utilizing OGL 1.0a as well.
I don't think it's an argument they can make at all.

To see why I say that, think through who would they be making it to, and in what context. I mean, suppose that WotC make some public statement purporting to give notice to all OGL v 1.0/1.0a licensees that from hereon in WotC is revoking their rights under that licence by exercise of a power under section 9. (Which is what you are suggesting they might do. There is no difference between what you are calling "deauthorisation" and unilateral revocation of existing licences.)

Then suppose that publishers keep publishing, exercising their rights under the OGL v 1.0/1.0a. And suppose that WotC sues them for copyright infringement, arguing that the infringement is the result of the licence having been retracted by exercise of a power conferred on WotC by section 9. In my view that is a ludicrous scenario, and WotC will not do it.

I think it's clear that section 9 confers a power on WotC - to issue variant licence terms - and confers a permission on licensees - to use those variant terms in their licensing. And that's it.

I'm yet to see an argument that WotC has a power to revoke the contracts unilaterally, but if it purports to do so I'm pretty sure that it won't be by a spurious appeal to a notional power under section 9.

I mean, if WotC argue that the term is ambiguous, then they open themselves up to all the extrinsic evidence as to what the parties understood it to mean. But if they don't, there is no basis at all for their claim to enjoy a power of the sort you're conjecturing they might argue they enjoy.

Only one that they can argue is implied within the license agreement.
There is no argument I've heard, or can envisage, that section 9 - which refers to WotC publishing updated versions of the licence (ie licences with variant terms) - also by implication confers a power on WotC to revoke existing licences unilaterally.

It doesn't seem to me to match what we have seen from the leaks.
I don't know what you are thinking of: the leaks I have seen all point to a term of the new licence being an acceptance that no OGC or Licensed Content will be distributed by the party pursuant to the OGL v 1.0/1.0a.

I'm not understanding the significance of this observation
It is a further way of making clear that the OGL v 1.1 is not a version of the sort contemplated by section 9 of the OGL v 1.0/1.0a. As @S'mon pointed out in some of his early posts on this issue, if WotC is not clear about this then licensees under the OGL v 1.0/1.0a could claim to be already licensed to use OGC issued by WotC under a different licence, by arguing that it is exactly the sort of variation that section 9 contemplates.
 



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