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

[FrogReaver]

No. You knew you were building on rented land when you created that content.

Assuming that you would always have access to someone else's property is a failure of yours, not the owner of the property.

What about when the property owner promises you that you will and the breaks his promise?

 

[GMforPowergamers]

What about when the property owner promises you that you will and the breaks his promise?

That's the rub right there...

The guy next door says "You can come use my pool anytime" and 20 years later he changes the locks and says "Nope, if you want to use the pool you have to pay me"

maybe not exactly... but in this case the guy next door with the pool is getting a bunch of people fired or losing there livelihood.

 

[mamba]

No. You knew you were building on rented land when you created that content.

Assuming that you would always have access to someone else's property is a failure of yours, not the owner of the property.

Except that the owner declared that you could, and even put it in writing

 

[pemerton]

I suspect what you are saying is true. If WotC want to offer content associated with OneDnD under a different licence to the one used by previous editions, that is entirely their prerogative. I suspect they will ring-fence the new material, clearly labelling it as Licensed Content rather than Open Game Content. I also think the use of Licensed Content will require licensees to agree to a waiver of their rights under the OGL v1.0a. The wording will matter as it may be possible for companies to spin off a subsidiary at arm's length to publish OneDnD material if the wording is loose. I suspect lawyers acting for Hasbro will be aware of this potential loophole.

Agreed. I've posted exactly these thoughts in multiple posts upthread.

At the same time, I suspect WoTC will not be able to unilaterally terminate the OGL v.1.0. I am not yet aware of any plausible mechanism they could use to do this. Reliance on the concept of "de-authorisation" as some people have speculated seems risky. It relies upon a specific interpretation of Section 9. Given that a separate termination clause exists, it is possible courts would not support this interpretation.

Agreed. @S'mon and I have been posting pretty consistently about this for several days now, including before the recent leaks.

Where I disagree is that there is no "specific interpretation of Section 9" that I'm aware of. I haven't seen anyone actually set out an interpretation of Section 9 that confers on WotC a power to unilaterally revoke existing licences. I have set out my own interpretation of section 9 - which I think is a straightforward reading of its natural language in the contractual context - in a couple of posts upthread.

I have also not heard anything that suggests WotC believes section 9 gives them such a power. To the extent that WotC asserts such a power, I would expect them to rely on the sorts of arguments found in the OP to this thread.

If I had to take a guess, I would argue their best chance to kill the old licence would involve copyright law rather than contract law..They could simply withdraw the offer for third-parties to distribute copies of the licence itself. I suspect this approach is viable, but not immune to challenge. Existing licensees could point to the requirement within the licence itself. They might also have a reliance-based argument. New licensees might be I'm a more tenuous position, but given the OGL gives existing licensees the right to grant sublicenses this is not insoluble.

I think if existing licensees can't have their substantive rights unilaterally revoked - which in my view they can't - then they can't have their accompanying right to redistribute the text of the OGL revoked either.

For unrelated parties - ie those who want to use the text of the OGL but not enter into a licensing agreement with WotC (eg I write up my own PemertonSRD and then license it to all comers under the OGL) - it could be a bit trickier. I posted my thoughts upthread in post 479.

Does this sound like a reasonable interpretation?

Mostly. Our only real point of difference is that I don't understand what is driving the fixation on section 9 in much of this discussion.

 

[pemerton]

This thread was started by a lawyer that feels that they can just revoke/terminate it. The other lawyers in this this thread had not argued against the general right to terminate / revoke a license. Yes, there might be things that would block it, but those are theories and there is a feeling that it does not say it cannot be revoked therefore it can be.

I don't think any other lawyer posting in the thread has agreed with the OP. I don't. @S'mon doesn't. @Steel_Wind doesn't. @bmcdaniel doesn't.

We are all agreed that the licence is not revocable at will because it is not a gratuitous licence, it is granted pursuant to a contract, and WotC can't unilaterally terminate its contracts.

I do agree with you that section 9 is a red herring.

EDIT: That doesn't mean the OP is wrong. I've been careful in this thread to stress the limits of my own expertise and reasoning. But it is not those of us who think the licence can't be terminated who have "theories". We have basic contract law on our side. It is WotC who need a "theory", which will explain how a unilateral right to terminate is to be read into their contract despite the lack of such a right in the text and given that they have been part of, and have fostered, twenty years of industry practice which is premised on the absence of such a right.

No one (including the OP) has yet presented such a theory. Which is not to say that WotC doesn't have one - obviously WotC/Hasbro can afford to pay a lot of clever lawyers, who will be working harder on this than anyone posting in this thread is.

 

[Prime_Evil]

Eric Tenkar claims to have a complete copy of the draft licence and is making a series of YouTube videos working through it. However, his initial video does not add any new information.

 

[pemerton]

I used 'fraud' before. It's perhaps not the most legally accurate term.

In the U.S. there are laws against unfair and deceptive business practices. Here's what my search engine supplied.

'Federal and state law prohibits businesses from engaging in activities that are “unfair” or “deceptive.” The key federal law on this subject for most businesses is the Federal Trade Commission Act, enforced, of course, by the Federal Trade Commission.'

'Deceptive business practices generally involve misleading a customer into believing something that isn’t true through misrepresentation or omission. In contrast, unfair practices are likely to cause or do cause substantial damages to consumers in the form of financial loss or physical injury.'

IMO, the FAQ's would be evidence of 'deceptive'. Unfair would be the financial loss of companies and induvial that became reliant on the OGL due to WOTC's misrepresentations only to have it ripped out from under them. For example, if a large bank had a contract with their customers (say an account where the fine print allowed some loop hole where they could update the terms and charge fees but they advertised no fees ever), there is no doubt in my mind that the FTC would rightfully hammer that bank if they tried to charge those customers those fees on those accounts.

Would these laws be applicable in this case?

I don't see how. Where is the deceptive practice? Where is the unconscionability?

And also, what is the remedy you are seeking?

The reason for pleading unfair and deceptive practices is either to have a transaction rescinded, or to receive compensation for loss. But 3PPs don't want those things - they want the contract they are party to to be recognised and enforced! This is why I have emphasised that, to the extent that evidence was led about WotC's representations about the OGL, it would not be to argue that those were misrepresentations which vitiate the licence but rather to argue that they are genuine representations that establish the meaning of the licence terms in the settled business context.

 

[pemerton]

IANAL, but given that a massive amount of the OGC at this point has been contributed by non-WotC parties, and was never part of D&D in the first place, is there not an argument to be made that "de-authorizing" the OGL is effectively stealing the content created by others, in the expectation that it would be available for all in perpetuity?

I don't see it. What would be stolen? If there are no licences, then everyone retains copyright in their works. To the extent that the use of their work might also infringe another's copyright (eg because it is a derivative work) then new licence negotiations would need to take place.

 

[pemerton]

What about when the property owner promises you that you will and the breaks his promise?

In common law systems, and in the absence of sufficient reasonable reliance to give rise to an estoppel, gratuitous promises can be rescinded at will.

Bargains - ie promises made and accepted with consideration flowing in both directions - are binding. That is the essence of the common law of contract.

The OGL is not a gratuitous licence. It is a licence granted pursuant to contract. (You can see the licence terms refer to offer and acceptance and consideration.) It is precisely because, in the typical case, a party to a contract has no unilateral right to terminate it, that many of us posting in the thread argue that WotC has no unilateral right to terminate the licences it has entered into having the terms of the OGL.

 

[pemerton]

Except that the owner declared that you could, and even put it in writing

That's not relevant. A gratuitous promise made very solemnly and put into writing is still just a gratuitous promise.