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

[Greg Benage]

31

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)?

In case this helps, I think @pemerton will resist any effort to entice him to interpret the leaked materials and what they may mean. He'll tend to redirect your questions about the leaked material (for example, "what do they mean by 'authorized license agreement' here?") to his legal understanding of the terms in the actual license agreement. This can be frustrating, but I understand why that's the approach he takes.

 

[pemerton]

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)?

I've already posted about this upthread, and pointed you to the posts.

I very much doubt that the phrase "no longer" will appear in the OGL text. It is a loose form of speaking used in a summary.

What is being conveyed is that the OGL v 1.1 will not treat the OGL v 1.0a as an authorised version for its purposes. So for those who which to enter into a licence agreement with WotC in respect of its new SRD, v 1.0a is "no longer" authorised.

 

[Princessmaker]

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.

Then it's all dire, they'll just make their commercial partners to accept the new OGL and enforce it if you ever wants to use their services again. Any VTT will likely agree, and as a user you could:
A) Stop using whatever hundreds of bucks of content you've already paid (theft?)
B) Be forced to agree to use your digital licenses

That is, without counting for software and such which no one ever naughty word reads, so you want to play baldurs' gate 3? Too bad, now you're under OGL1.1

edit: adding the quote

 

[Greg Benage]

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?

I'm not a lawyer, but I think what we're seeing is a combination of excerpts from 1.1 drafts and propaganda from WotC, and the two are all mixed up together. All of the "deauthorization" stuff might fall purely into the propaganda category.

If WotC did take legal action against a publisher, I'd expect a three- (er, four-) pronged attack:

1. OGL 1.0a doesn't say it's irrevocable, which is the clearest possible evidence that we did not intend it to be irrevocable.
2. This publisher violated our copyright by using work that was not released as Open Game Content (many counts and exhibits here).
3. This publisher is otherwise in breach of the agreement (many counts and exhibits related to Section 15s, etc.)
4. Even if the court rules against us on (1), if the court finds violations on (2) or (3), the license allows us to terminate.

 

[Enrahim2]

I very much doubt that the phrase "no longer" will appear in the OGL text. It is a loose form of speaking used in a summary.

Ah, ok. If the leaks are not acceped as (potential) legal facts in terms of this discussion, I guess I have no more to contribute

 

[pemerton]

I think @pemerton will resist any effort to entice him to interpret the leaked materials and what they may mean. He'll tend to redirect your questions about the leaked material (for example, "what do they mean by 'authorized license agreement' here?") to his legal understanding of the terms in the actual license agreement. This can be frustrating, but I understand why that's the approach he takes.

In my defence: the leaked materials are not a legal instrument. They're a gloss on one, or a summary of it. I think that's pretty obvious.

So they don't need to be interpreted in a legal sense at all - they have no legal meaning. Rather, they (plus the press release) tell us what the new legal instrument will look like. I've set out my conjecture, with reasons, in post 562 upthread.

WotC appear to make some claims that are at odds with my conjecture. That's not something I've overlooked. It's because they are making claims about their legal powers that I think are extremely doubtful at best. Whether someone wants to describe them as lying, or misleading, or exaggerating, or omitting, or being confused about their own legal position, is up to them - I'm just trying to give people as accurate a picture I can of the legal details of the situation.

In relation to section 9 in particular, there is a lot of speculation about it which rests (in my view) on a failure to actually read it closely so as to ascertain its legal meaning. When this is done, I think it's pretty clear what "authorised" means and what the legal operation of the section is.

WotC have full power to retract their standing offer to license their work under the current OGL. In that sense they can "de-authorise" OGL v 1.0a. But that doesn't effect any existing rights (including, I slightly tentatively suggest and @S'mon more confidently suggests, the power to sub-license licensed OGC).

They can also draft a v 1.1 that cuts off the 1.0/1.0a eco-system. Upthread I've explained, in general terms, how I would draft this.

Perhaps they also think they can revoke all existing licence agreements. It's mysterious to me where they think this power comes from, given that a basic principle of contract law is that contracts are binding and can't be unilaterally terminated. But I find it almost inconceivable that they think it comes from section 9; as opposed to from general principles of the sort that the OP of this thread discusses. I disagree with the OP, but his arguments are quite coherent. Whereas I find the section 9 argument strained at best.

 

[Greg Benage]

In my defence: the leaked materials are not a legal instrument.

No defence (sic ) was needed. I'm just trying to play interpreter for y'all.

 

[pemerton]

Ah, ok. If the leaks are not acceped as (potential) legal facts in terms of this discussion, I guess I have no more to contribute

No one thinks the leaks are draft legal text, do they? They are a draft PowerPoint summary or similar.

I've done my best over the past few pages of this thread to explain what I think the legal text will look like (in general terms) and what its operation and effects will be.

I'm not a lawyer, but I think what we're seeing is a combination of excerpts from 1.1 drafts and propaganda from WotC, and the two are all mixed up together.

Agreed. "Propaganda" is another word that could be added to my list of possible descriptions!

All of the "deauthorization" stuff might fall purely into the propaganda category.

I think they are quite serious about (i) ceasing to offer to licence under the existing terms, and (ii) making sure the new ecosystem, with its royalties regime, is separated from the existing one. And this will include, I think, an express statement in OGL v 1.1 that OGL v 1.0/1.0a is not an authorised version of 1.1, for the purposes of 1.1's equivalent of section 9 in the current OGL.

But (at the risk of repetition, but for the sake of clarity) I don't think this (or anything else) will terminate existing rights of existing licensees.

If WotC did take legal action against a publisher, I'd expect a three- (er, four-) pronged attack:

1. OGL 1.0a doesn't say it's irrevocable, which is the clearest possible evidence that we did not intend it to be irrevocable.
2. This publisher violated our copyright by using work that was not released as Open Game Content (many counts and exhibits here).
3. This publisher is otherwise in breach of the agreement (many counts and exhibits related to Section 15s, etc.)
4. Even if the court rules against us on (1), if the court finds violations on (2) or (3), the license allows us to terminate.

I think 3 is possible, but its effectiveness for WotC's purposes may be doubtful because of the express provision for survival of sub-licences.

I have no idea about how common 2 is (ie 3PPs using unlicensed material). If they do that and get pinged, my sympathy for them is limited. Whether this would allow termination would depend on the details, I think. Copyright infringement is not per se a breach of the OGL But, eg, use of Product Identity is.

They would want to argue 1 - ie we revoked, hence there is no licence, hence the reproduction of our SRD or a work derived from it infringes our copyright (and if the publisher has the SRD in their section 15, they will be hard-pressed to contest the factual element of the complaint). The publisher will plead the licence in their defence. And this is where the issue of unilateral revocation will be worked out.

Upthread @S'mon and I discussed the risk of retreating from the OGL v 1.0/1.0a, and hopefully this post brings them out again - you continue to run all the risks of liability but without being able to plead the contract in your defence.

 

[Steel_Wind]

After reading S'mon's and @Steel_Wind's posts I'm more persuaded that the stronger argument is not a technical reading of section 13, but an estoppel-type argument based on WotC's encouragement, via its FAQ but also I think via individual communications from Ryan Dancey (which I think have more significance here) and also by its acquiescence for 20-odd years, of an understanding that it cannot unilaterally revoke the licensing agreements it has entered into.

I don't think that it will end up as promissory estoppel, though I appreciate that you can put that lipstick on it and it seems to look bright and red and fits the outline. The problem is, estoppel is weak on the remedy side and uncertain (if not poor) in the context of ongoing commerce. The part(ies) who want to continue to keep using the 1.0a will not want it decided on that basis. There's a poor contractual future when the argument is based on promissory estoppel.

So instead, it's a "true construction of the contract" argument, with the evidence replete with reference to evidence of reasonable reliance on a particular interpretation to persuade the court that it's doing the right thing and enforcing an interpretation that the parties all understood to be commercially reasonable.

In that sense, it's simply an interpretation of the "plain meaning of the words", and resolving the supposed ambiguity and "true construction of the contract" by reference to how the parties actually conducted themselves over a very long period of time. This has always been held by the court as demonstrative of contractual meaning and intent. There is no better way to understand how the parties treated the wording of the agreement than to look at how they actually conducted themselves under it.

If that sounds a little like some tautology b.s. -- that's because, in part, it is. Nevertheless, that's how cases are actually decided in court, in my experience.

What is really happening in these cases is not an intellectual contractual analysis that leads to a result; rather, it is an evidentiary presentation that convinces the court as to the just outcome. The court then looks for reasons to justify it.

It's not about doctrine, it's about evidence.

 

[Greg Benage]

I have no idea about how common 2 is (ie 3PPs using unlicensed material). If they do that and get pinged, my sympathy for them is limited. Whether this would allow termination would depend on the details, I think. Copyright infringement is not per se a breach of the OGL But, eg, use of Product Identity is.

I believe if a publisher (1) uses material not designated as Open Game Content (i.e. possible copyright infringement) and then (2) designates that material as OGC, that would be a breach in a case where the court affirmed the copyright infringement.

If You are contributing original material as Open Game Content, You represent that Your Contributions are Your original creation and/or You have sufficient rights to grant the rights conveyed by this License.

This is very likely IMO where a publisher plays fast and loose with what is actually in the SRD and is then lazy with their OGC declaration, "All game mechanics are designated as Open Game Content."

Now, a finding of copyright infringement in itself may be enough for WotC to "finish" a publisher. Using that finding to ALSO find a violation of the license agreement would, I expect, fall in line with the above.