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

[Steel_Wind]

It wasn't a draft. It was a final version. It was attached to multiple contracts sent out to large third party creators with contracts that were sweetheart deals before Christmas. The only reason it is not in force right now is it was leaked before it was released and WotC/Hasbro blinked. See post 664.

That may be correct - and it may not be, too. I'll wait and let the dust settle on this one.

There is no prize awarded to those who act in haste without any reason to do so.

 

[overgeeked]

It will be easy to tell what third parties sold out the community for thirty pieces of silver. My guess is Critical role probably did because they probably got the best deal of all, but time will tell.

I hope not, but you’re probably right.

 

[Xyxox]

That may be correct - and it may not be, too. I'll wait and let the dust settle on this one.

There is no prize awarded to those who act in haste without any reason to do so.

It's correct. Multiple sources confirm. Go here:

 

[S'mon]

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.

Yes, I completely agree. Estoppel is a last ditch defence for current licensees, but I don't think it would ever come to that.

 

[Maxperson]

This contractual approach misses the real teeth that the OGL 1.0a has always had, and that's if that if somebody uses the 1.0a licence to create something, others can then use THAT licensed OGL work as the premise for its further sublicensed derived work. And because you can't take that valid sublicense right away under the OGL 1.0a under the termination clause - you can't take it away by a declaration or unilateral revocation, either. WotC is stuck with those ongoing valid sublicensed works, moving forward through time.

If WotC does end up revoking the OGL 1.0a, will new sublicenses be possible? Saying that sublicences survive the termination seems to imply that they would need to exist prior to termination.

 

[Xyxox]

OMG! They want ANYBODY doing podcasts about D&D that make money YOU HAVE TO REPORT YOUR EARNINGS TO WotC/Hasbro! ANYTHING AT ALL ON D&D YOU MUST REPORT INCOME TO THEM!

 

[overgeeked]

If WotC does end up revoking the OGL 1.0a, will new sublicenses be possible? Saying that sublicences survive the termination seems to imply that they would need to exist prior to termination.

Which is why some people are rushing out their products to get in before the deadline, if there is one.

 

[sigfried]

You are sadly mistaken here...

Everyone's circumstances are different. I've been sued a couple of times and never had to spend a dime to defend myself. While it's possible they could spend 2 million going after me, it would be completely insane to do so as I've got hardly any tangible assets and the only product I personally publish is free, my work is being a freelance writer so I can do that anywhere in the world at any time of day or night, being sued by WOTC over use of the OGL would only enhance my reputation. My defense would cost them exponentially more than it would cost me.

If everyone is afraid of the bully, the bully wins. Some folks have too much riding to take a risk like that, I totally understand. But there are ways to fight as the underdog and people can win when they are crafty and wise, especially when they have good legal standing.

Right now, the best way to fight is to convince WOTC this is a mistake, and arguing that no one could stop them... I don't think that helps the cause much.

 

[Ruin Explorer]

It will be easy to tell what third parties sold out the community for thirty pieces of silver. My guess is Critical role probably did because they probably got the best deal of all, but time will tell.

God I was kind of assuming everyone would wait until pretty much the last minute before actually signing any deals, including sweetheart ones because of fear of something like this happening.

But if some 3PPs have gone "Full Judas" (never go full Judas), then hoo boy this is going to be the some WW3-type stuff on the RPG internet for a while.

God if Critical Role have locked themselves in, and WotC does release the OGL 1.1 replete with the deauthorization clause, that's going to be insane. The CR people will get criticised to hell and back. "Matt Mercer" will become a name of ill-repute, and the huge army of blindly loyal hyperfans CR has, who see it as unable to do any wrong, will be open warfare with anyone criticising CR, include a hordes of less-extreme CR fans.

On a positive note, though, this gives CR an incredibly strong incentive to make WotC see sense on the OGL 1.1, and make the actual final document significantly less extreme (particularly removing the deauthorization or turning it into a "mere" poison pill).

I am firmly convinced they are still going to do it, they are just regrouping on how to implement.

Is that a gut instinct or evidence-based? Not a criticism either way, but if the latter, what are you basing it on?

For me the delay and all-round silence is strongly suggestive of "OH CRAP WE DUN MESSED UP". I feel like if they were still intending to go ahead with the OGL 1.1 as received by io9/Linda, there would be messaging from 3PPs who'd already signed onto sweetheart contracts that "It's not going to be that bad!" (even though it would be), and AFAICT no-one is saying that.

OMG! They want ANYBODY doing podcasts about D&D that make money YOU HAVE TO REPORT YOUR EARNINGS TO WotC/Hasbro! ANYTHING AT ALL ON D&D YOU MUST REPORT INCOME TO THEM!

What lol?

Wow. I think that alone would be enough to convince an awful lot of podcasts to go "Hey guys now we're a Pathfinder podcast!".

 

[mamba]

This, folks, is what is known as Nuclear Lawfare. It's completely legal and is how larger corporations have been sticking it to smaller corporations for decades upon decades.

I wish 'legal' and 'right, ethical and moral' had a lot more overlap than they actually do