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

[Enrahim2]

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?

When reading the leak, I was quite certain the leaked "deauthorized" language was only refering to the asymmetry formulation in section 9. Hence the only legal meaning of the term would be that 1.1 content could not be distributed under 1.0a, while 1.0a content could still be freely copied, modified and distributed under 1.1. Under this interpretation 1.0a content would still be permitted used in new 1.0a publications according to section 4 of the lisence.

If this had been the case, it is obvious that wizards would still retain all rights involved. However when no actual lawyers seem to pick up on this to me obvious interpretation, along with a 13th of january deadline floating around without any leaked quotes about the legal formulation around the importance of this date, there seem clear that I am likely missing something.

However even if I accept what seem to be the consensus opinion that wizards try to prevent publication of new 1.0a material, without understanding the legal framework that could possibly support such a claim - I cannot see why refusing anyone to make new 1.0a material would prevent anyone from using existing 1.0a material in 1.1 publications, as that appear to be a logically orthogonal concern.

To illustrate how these are orthogonal, at least for a layman as me, imagine the following mechanism at work: Wizards asserts their copyright to 1.0a, denying anyone to produce new copies of this. That would naievly prevent further 1.0a publications, as the condition in section 10 couldn't be legaly be fulfilled. Meanwhile there would be no obvious legal grounds I could see for section 9 to not still be fully in effect.

 

[FrogReaver]

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.

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.

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.

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.

Let me phrase it this way. Take the word 'authorized' out of section 9. If our interpretation is correct does any meaning change in that section? Thus, what 'work' is the word authorized doing in that section and why does the 2nd time that section 9 mentions version is the phrase authorized not included?

My understanding of contract law is that when you include words they should normally change the meaning. Authorized if read our way just doesn't appear to be doing that.

Maybe WOTC's potential argument here while not flawless is a bit better than we are giving them credit for?

 

[Siltoneous]

First off, I want to thank everyone for their reasoned, coherent posts. This thread, with it's plethora of knowledgeable people posting their best 'experienced' opinion here has done a world of good to my overall outlook. Of course this is a fluid situation, and nobody but NOBODY knows what the lay of the land is (other than perhaps WoTC/Hasbro), so an observation, and a few questions.

Observation: I saw a post over on Reddit from a Paizo 'Design Manager' for PF2E (dated about 10 months ago). From the tone of that thread, I got the impression that Paizo was aware of issues with the OGL, or simply uneasy with it. The poster bluntly said "Not using the OGL was a serious consideration for PF2". That the decision to keep using the OGL came down to keeping down costs (extra copyright/trade dress scrutiny requirements), and other reasons (3PP Comfort, etc..). Unfortunately instead of seeing the license for the sheer academic compare/contrast interests, I fear WoTC's actions have now made it more likely to be seen for simple 'CYA' reasons.
Then when I saw the post post about WoTC/Hasbro going nuclear though, I had to wonder... There are/were lots of former WoTC people at Paizo, and I'd have no problem believing that if WoTC/Hasbro was even glancing at a 'nuclear' option approach, Paizo would have probably heard about it. I also have no hesitation in believing Paizo has a "Wing Defense Plan R"(*) directive somewhere in their headquarters too.

Anyone feeling like giving a wild a** guess (WAG) on what kind of things would/should we expect from a publisher when they move from one license to another (GPL/Paizo/OpenLicense x.x/whatever). Does the producer simply issue an update to their existing product, including the new license along side the OGL? Or would they need to make a material/substantive change to their current product before releasing it as a new version/edition with the new license and no OGL?

Secondly, what's a good WAG on the timeframe here? Something we'll see go down in the next 3-4 months, or does WoTC keep treating this as a FUD campaign, and drag it out as long as possible? I (like many here) think the longer this goes on, the worse the poisoning damage to WoTC, but then again I'm occasionally accused of being rational.

(*) Reference to the 'Wing Attack Plan R' in Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.

 

[kjdavies]

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.

Eh... when something goes from version 1.0a to 1.1, it seems like an update to the parent item.

I mean, if I published a piece of software called Organized Gaming Library and released v1.0a, and some time -- perhaps a long time, I'm a busy person -- related Organized Gaming Library v1.1, people could reasonably expect this to be an update to the same program.

Unlike Game Sorting Library v4... Game Sorting Library v4 might do much the same thing, or just sound like maybe it does, but it's unlikely people would expect it's an update to Organized Gaming Library v1.0a.

Now, if I published Organized Gaming Library v1.0a some time ago and then released Organized Gaming Library v1.1 and said it's not an upgrade, but you can either switch to and continue organizing your gaming library or stop organizing your gaming library, but either way cannot continue using the old version... I think my user base might be some combination of confused, upset, and angry. Even if I was entirely clear in my notice that this... not update, this new version, would do that.

 

[kjdavies]

What do you mean by OGL v 1.0a is revoked? As I've posted, in this and other threads, that phrase does not have any determinate legal meaning.

In my post to which you replied, I already said what I think happens if WotC ceases to offer to license its SRD(s) under the terms of the OGL: although it's not clear (as @bmcdaniel said), I think one plausible view is that Paizo retains its right, conferred by its contract with WotC the terms of which are set out in the OGL, to sub-license WotC's OGC. But my view about this is tentative. I don't think you're going to get a more certain view without getting legal advice!

If WotC finds some way - which few legally trained people seem to think exists, but the OP of this thread is one of those few - to actually revoke its existing licence agreement with Paizo, then Paizo would no longer have permission from WotC to publish those licensed works. If it continued nevertheless to do so, then as I posted upthread it would need to be ready to argue that its works do not infringe any WotC-owned copyrights.

This uncertainty is fundamental to the current unrest, I think.

If WotC is saying "we are no longer offering open content under v1.0a but those who are current licensees can continue as they were, including the sublicensing and producing new works because that was the agreement we had", I'm content. Bit of a bummer for those who would have wanted to use open content directly from WotC, but they can still be sublicensed by someone who already a licensee. (This is probably hard to police, actually... but not my problem.)

If what they're saying is that existing agreements are ended, that makes things way less clear and much more disruptive.

 

[kjdavies]

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.

(much removed above because I concur that I was mixing several topics in a way that was unclear)

Short form, I was trying to understand several potential scenarios. Short answer is almost entirely "it depends, and even then it's not clear".

 

[kjdavies]

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.

I believe this was the intent and what those using the OGL understand.

Which is why, I would think, WotC declared in v1.1 that v1.0a is 'unauthorized'.

My understanding of 'authorized' in this context is along the lines of 'issued by an entity with the authority to do so. That is, you or I can't issue an update to OGL because I'm not with the right organization, and the janitor at WotC can't because he doesn't have the authority in the organization, etc. It can only be done by or at the direction of an appropriate officer of WotC, sort of thing. On the other hand, WotC seems to be saying either that OGL v1.0a is not authorized for use with this content (least bad interpretation) or 'OGL v1.0a is no longer a valid license' (much more bad).

 

[kjdavies]

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.

BTW, I just checked the Legal file from the RSRD (3.5 SRD). It includes:

The text of the Open Gaming License itself is not Open Game Content. Instructions on using the License are provided within the License itself.

I take this to mean that while I can (in fact, must) copy the text of the OGL when I publish open content, this does not give me the right to copy the text of the OGL unless it is so I can publish licensed open content. Though I do also see (from the 2004 OGL FAQ, via Wayback Machine)

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.​

I don't see where they did so, except here, but it appears to be a thing.

And @Prime_Evil found and shared better evidence already.

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.

 

[S'mon]

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.

Looking at UK cases on non-literal infringement such as Herbert v Ravenscroft The Spear case and the Baigent & Leigh v Random House (Dan Brown) Da Vinci Code case, I'd be fairly confident in saying that in UK Copyright Law Torchbearer definitely falls on the Da Vinci Code side of the line, non-infringing, whereas the retro-clones fall on the Ravenscroft side, infringing. Worse, if they still contain any actual 3e SRD text then without the OGL they are literally infringing. It may well be possible to publish a mechanical clone of D&D in the fantasy genre without infringing copyrights, using only non-protected ideas & mechanics, but that's a distinctly tricky operation. For a start I think you'd want to do a kind of white room operation where the game was written without any copies of D&D on hand, to avoid literal infringement. Even then you could well take too much of the structure and expression of a D&D version. I think you really need to start with a kind of clean text describing a fantasy world/genre, no rules stuff, then add in rules mechanics at the end. As an academic it would be very interesting to see the court judgement on that! But far from ideal when you have the OGL & SRD.

 

[S'mon]

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.

That matches my experience and what I've seen.
Lawfare threats of spurious litigation forcing compliance are definitely a real thing in the USA; Patent Trolls are an obvious example. But I don't see how WoTC could force the defendant/respondent to spend millions pre-trial; and AFAICT that did not happen in the GW vs Chapter House saga where the issues on copyright were far more complex than the simple question here: non-terminability of a perpetual licence.