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

[pemerton]

You still seem to get the wording backwards. According to 1.0a section 9 you can always use content using any version of ogl independent of their outhorization status.

No.

Section 9 says "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."

So section 9 does two things.

It gives WotC a permission to publish new licences.

And it gives licensees a permission to use those licences (which are, ipso facto, authorised licences) to use (in the indicated ways) OGC distributed under any version of the licence. Those versions must of necessity be authorised versions, because if not then they don't create OGC!

You seem to be assuming that authorisation is a variable property of a licence, analogous to how (say) being an employee is a variable property of a person (often they are, but maybe they retire or lose their job and so cease to be). But that's not correct. Authorisation is a constant property of a licence, that it enjoys in virtue of having been published as a licence by WotC (or its agent).

Hence defining 1.1 as authorized or not have no bearing on if you are allowed to use 1.1 material when you publish something under 1.0a lisence according to section 9.

Material can be used under v 1.0/1.0a only if it is "OGC originally distributed under any version of the OGL v 1.0/1.0a".

And material that is licensed only under v 1.1 will not be "OGC originally distributed under a version of the OGL v 1.0/1.0a". The drafting of v 1.1 will ensure that. We've already seen one way it does this: it doesn't create OGC at all, but rather Licensed Content.

However the "authorization" of the license you for your work when distributing/copying/modifying is of importance. Hence the only way for 1.1 to call it self legaly an "update" to ogl1.0a (which is a concept clearly in 1.0a section 9 what entails), which they do in the leak you suspect being a summary (despite containing the exact quots given in the Gizmodo leak) while preventing cross lisence use to 1.0a would be to either somehow revoke 1.0a (which would also prevent anyone including themselves to use 1.0a material as source, as section 9 would no longer be valid), or manipulate the meaning of the keyword "authorized" of 1.0a section 9.

What you say about "the only way for 1.1 to call itself legally an "update"" isn't correct. WotC can publish a new licence and call it whatever they want. There is no legal restriction on this, other than general decency laws and bars on using protected public names (in Australia these are names to do with the Crown, the government, ANZACs and Don Bradman; I assume the US has similar sorts of protected names).

"Authorised" is not a "keyword" - I've explained above, as well as in an earlier post upthread (#556, and see also my post #562) that it appears with its ordinary English meaning. And it does not need to be "manipulated". All WotC has to do is establish new contractual rights that do not intersect with the existing rights of licensees under the existing OGL. And I've explained how they can do this, pretty straightforwardly. The upshot is two ecosystems.

 

[pemerton]

Assuming the attached is accurate (it's apparently a Q&A rather than the text of the license itself), how do we reconcile it with the idea that WotC would need a poison pill in OGL 1.1. This appears to explicitly contemplate what happens when a publisher does not accept the terms of OGL 1.1. If you've already addressed this (likely, IME), just point me to it.
View attachment 271696

I agree it's clearly a summary or gloss, not the licence text.

I assume that WotC, when they wrote that, were proposing to retract their standing offer to license their SRD under the OGL v 1.0a, and replace that with an offer to license under the new OGL v 1.1, on Jan 13. In which case what they say would be true if you want to enter into a licence directly with WotC. To me, they seem to be sidestepping the issue of sub-licensing from an existing licensee, or (if one is already an existing licensee) continuing to exercise one's rights. (This is the issue that @S'mon and I have been discussing - see eg my post 577 not far upthread.)

Perhaps WotC really believe that they enjoy some unilateral power to terminate all the licence agreements they've entered into in respect of their existing SRD, but that seems improbable to me.

 

[Burt Baccara]

My view is that a draft licence is not a licence. WotC and its agents actually have to have intended to issue a licence, not just promulgate a draft. Like a marriage in a TV soap opera is not a marriage, even if all the magic words are said and even if the actor playing the celebrant happens to be a licensed celebrant in real life.

Makes sense, thank you.

 

[Greg Benage]

I assume that WotC, when they wrote that, were proposing to retract their standing offer to license their SRD under the OGL v 1.0a, and replace that with an offer to license under the new OGL v 1.1, on Jan 13. In which case what they say would be true if you want to enter into a licence directly with WotC.

I'm with you this far, but it seems they are making the additional claim that (1) using OGL 1.1 (Commercial) or (2) a direct deal with WotC are the ONLY ways to commercially publish "SRD-based content" after January 13, 2023.

 

[Burt Baccara]

You still seem to get the wording backwards. According to 1.0a section 9 you can always use content using any version of ogl independent of their outhorization status. Hence defining 1.1 as authorized or not have no bearing on if you are allowed to use 1.1 material when you publish something under 1.0a lisence according to section 9.

Does the OGL 1.0/1.0a's creation and promotion to be useable by 3rd parties for their own non-derivative works just as much as those creating works that were based on D20, have any bearing here?

If the OLG was strictly for the licensing of D20 or other WotC material, then surely being able to kill the earlier version makes sense, however, the OGL was never only just that, others created work from scratch (as much as any RPG can be, post-Blackmoor and the 1974 D&D rules) have been using the OGL to make their own games open. WotC authored the license but surely can't nullify those designers' and publishers' use fo the OGL. Can they?

 

[Princessmaker]

Something I can see WoTC doing and being an ass about is "updating their Terms of service" of D&D beyond and such, which would mean that if you had an account there or any WoTC website, you would agree with 1.1 and then relinquish (?) your rights to use 1.0a.
Is that even possible?

 

[Enrahim2]

You seem to be assuming that authorisation is a variable property of a licence, analogous to how (say) being an employee is a variable property of a person (often they are, but maybe they retire or lose their job and so cease to be). But that's not correct. Authorisation is a constant property of a licence, that it enjoys in virtue of having been published as a licence by WotC (or its agent).

I dont assume it. The phrasing "which is no longer an authorized license agreement." does. As far as I can see? Or do you have any way to construe any meaning to that formulation that do not involve the idea that the license is percieved to at one time have had the "authorized" state, and now do not have it anymore (hence being a variable in time)?

 

[pemerton]

Now you are mixing in other more common meanings of the term "authorised" as far as I can see? (A fully reasonable one, but my suspicion is that wizards big headache now is that they didn't think properly trough that common use of a word us of importance in law, and rather tried to treat is as a magic the gathering keyword they would be completely free to assign any meaning they wanted independent of any everyday use. I strongly suspect their big strategy was to make a one-way passage from 1.0a to 1.1 a using this mechanism. And the reason it is not published yet and they have not commented is that they have realised that this attempt had much more far reaching potential legal ramifications than they had thought. They might have repeated that 1.0a was revokable so much that they didnt think that "no longer authorised" could actually from a legal standpoint be reasonably construed as an attempt at revoking it. Sorting out this legal mess that possibly their entire strategy might hinge on might take a while..)

I think this is basically all wrong.

Authorisation is not, as a word, of especial legal importance. All it means is done with authority. It appears in section 9 with its ordinary meaning - that is, to describe a licence published with authority ie either by WotC or its designated agent. There's no magic to it.

WotC can afford decent legal advice. Their lawyers won't have told them that section 9 of the OGL v 1.0a has magical powers. But they will have advised on how a v 1.1 can be drafted so as to cut off future licensed material from the 1.0a ecosystem.

Whether that existing ecosystem can be shut down is a further matter - @S'mon and I have explained why we disagree with the OP and think it can't be - but section 9 doesn't play any role in that. Principles of contract and licensing law are what do the work.

 

[pemerton]

I'm with you this far, but it seems they are making the additional claim that (1) using OGL 1.1 (Commercial) or (2) a direct deal with WotC are the ONLY ways to commercially publish "SRD-based content" after January 13, 2023.

Sure. In my view, they're exaggerating. What legal power do they think they are able to exercise to terminate the rights of existing licensees?

 

[pemerton]

Something I can see WoTC doing and being an ass about is "updating their Terms of service" of D&D beyond and such, which would mean that if you had an account there or any WoTC website, you would agree with 1.1 and then relinquish (?) your rights to use 1.0a.
Is that even possible?

Yes it is.

EDITed to add: assuming that they are able to update those terms of service at will.

I think they'd probably want to give you the chance to cancel your account rather than forfeit your rights, or else there might be an argument that they were being oppressive or unconscionable.