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

[Prime_Evil]

@S'mon - what's your opinion on the likely impact on third-party licensees using the OGL for game systems unrelated to any WoTC IP? Are these licensing arrangements extinguished too? I'm thinking of things like FATE, OpenD6, Cepheus Engine, Legend, OpenQuest, etc.

 

[S'mon]

Looks like Tenkar is putting out his minamalist 'S&W Continual Light' game as non-SRD, non-OGL. Time to Scrape Out the SRD Parts of Continual Light
Continual Light AFAIR contains only the very barest, non-protectable D&D style mechanics, making it potentially a good option for other publishers wanting to write fantasy campaign settings, monster books, adventures, etc without needing the OGL & SRD.

Current version here - Swords & Wizardry Continual Light - Tenkar's Tavern Gamen | DriveThruRPG.com - check the free preview.

Edit: I do think that legally you are still safer using the OGL than going this way. The OGL gives you a contract defence vs claims of copyright infringement, and IMO contract law is more certain than copyright law (I teach both). But practically & commercially I understand why publishers now feel more afraid of using the OGL than of relying on the limits of copyright law.

 

[S'mon]

@S'mon - what's your opinion on the likely impact on third-party licensees using the OGL for game systems unrelated to any WoTC IP? Are these licensing arrangements extinguished too? I'm thinking of things like FATE, OpenD6, Cepheus Engine, Legend, OpenQuest, etc.

As far as I can tell, OGL 1.0 authorises its own use for this purpose. AFAICT existing publishers should be ok, and future publishers can use the OGL from one of those existing publishers. These would be sub-licences.

The OGL definitely does not require that you use material from the SRD. You can use it with completely original material.

 

[Olrox17]

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.

It some 3pp decided to band together and produce a D&D "clone" game, it would probably be good idea to do that as a EU based brand new company, right? It should make waging lawfare for WotC more difficult.

 

[S'mon]

It some 3pp decided to band together and produce a D&D "clone" game, it would probably be good idea to do that as a EU based brand new company, right? It should make waging lawfare for WotC more difficult.

Companies based outside the USA are in a better position re lawfare, yes. Civil Law jurisdictions like Germany tend to be slow, but they have the advantage of lower legal fees and especially that they emphasise good faith & intent in contract dealings, rather than literal intrerpretation of terms. If WoTC might have say an 8% chance to 'revoke the OGL' in the England & Wales High Court, I think that would fall to say 4% in France Germany or Italy.

 

[pemerton]

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?

Here is the text of section 9:

Wizards or its designated Agents may publish updated versions of this License. You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License.​

"Authorised" means published with appropriate authority, ie by WotC or one of its designated agents. There is no need to use the word "authorised" in the last occurrence of "version" because it would be tautologous - OGC can by definition only be distributed under an authorised licence, because otherwise it wouldn't be OGC (which is a category of content constituted by the operation of a valid licence along the lines of the OGL).

Thus, the meaning of the provision is:

WotC or its designated agents may publish versions of this Licence that contain different terms, and you may use this version or any other such version to [use] any OGC originally distributed under this Licence or any other such version.​

As I've posted already, this confers a power on WotC, to make available OGLs with variant terms, and any licensee can choose from among the candidate OGLs which one to use when they use OGC.

I mean, if someone else has a credible alternative construction I'm happy to hear it, but what I've set out just above seems reasonably straightforward to me.

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.

I've just explained what work it is doing.

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

My view is that there is no argument of the sort you are positing.

If WotC wish to argue - implausibly in my view - that they can unilaterally revoke all the existing licences, they will not do so by pointing to section 9 which says nothing about revocation. They will do so by pointing to the sorts of general considerations concerning the interpretation of licences that are set out in the OP of this thread.

 

[pemerton]

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?

I'll quote S'mon from another thread, and just upthread:

The text of the SRD is fully copyright protected.

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.

 

[Art Waring]

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.

Back on topic, this is one of the big concerns going forward.

Regardless of the legal arguments, wotc could very well go directly to platforms like kickstarter and get them to simply prohibit 1.0a material from seeing the light of day.

 

[S'mon]

Re publishing without OGL, fine for eg Yoon-Suin, but personally I don't really see how Paizo's Golarion can work without the OGL. If James Bond is copyright protected (per MGM v Honda) then surely Aboleths are copyright protected too. Paizo would need to go over Golarion scrubbing every unique-to-D&D monster taken from the 3e SRD. Spells and magic items would need a look too. Character class design & structure is iffy, IMO. There's a huge amount there that the OGL shields from liability.

 

[pemerton]

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

In this case there is no "parent item", and nothing is "going" from version 1.0a to 1.1.

These are just names given to privately-drafted instruments. WotC could call the instrument whatever it wants.

The issue of whether or not it is a "version" within the meaning of section 9 of the OGL v 1.0/1.0a will depend on its terms. Given what WotC has said in its press release, and given the leak, I think it is pretty clear that v 1.1 is not an "update" to anything. It is a distinct licence that will not be part of the OGL v 1.0/1.0a ecosystem.

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.

I'll take your word for that. I don't know much about software. I'm talking about contract law.

The OGL contains no provision for its own updating. Section 9 is not such a provision (despite using the word "update"). What it permits is (i) for WotC to issue new licences which (ii) licensees are free to pick and choose from when they use OGC.

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.

Sure, OK? Again, I have no expertise in market responses to software variations. I will say that when my computer updated itself form Windows 8 to Windows 10 (? or something like that - I'm remembering an event from years ago) I didn't get angry, even though it seemed to me that what had happened was a replacement of my Windows version which meant I could no longer use the old version.

But anyway, we're not talking here about software naming and marketing practices. We're talking about contract law.

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).

Until the whole text of v 1.1 is seen, we can't know what role "authorisation" plays under that licence, and hence what it means for that licence to state that OGL v 1.0/1.0a is not an authorised licence agreement. (I doubt very much that the formal contractual text will use the phrase "no longer".)

You say "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)", but there's no reason I can see to think that they are saying either of those things.

WotC has given an outline of the content of their draft OGL v 1.1, and have indicated that under that licence, v 1.0/1.0a will not be an authorised licence. So the most obvious conjecture, I think, is that the OGL v 1.1 is going to be a (quasi-)open copyright licence, and hence will have a provision similar to section 9 of OGL v 1.0/1.0a, and furthermore will expressly state that v 1.0/1.0a is not an authorised version of the licence for the purposes of that provision.

Whether or not that is a bad thing is not a legal question, and I express no opinion on it. My only point is that it is neither of the alternatives that you are putting forward.