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

[jgbrowning]

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.

I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they know they cannot revoke the license. Lawfare was not the intent in that tactic, but the threat of lawfare was the intent to muscle the big players. Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category. I am not a lawyer, obvious, but I do hope this is the case.

joe b.

 

[pemerton]

I'm not sure I'm following your reasoning here. What precisely are you saying prevents 1.1 from saying whatever WOTC wants while still being an updated version of the OGL?

First, "updated version of the OGL" is not a technical term in the abstract.

Second, to render it into one we have to assume it has meaning within the context and operation of section 9.

Section 9 confers a power on WotC (or its agents) to publish variant licences. And it also confers a permission on all licensees, who use OGC, to use which licence (out of all the variants) that they use it with.

If the OGL v 1.1 were to count as one of those variant licences for the use of OGC, then any licensed user of OGC could choose to use that OGC under any other variant, including v 1.0a which does not require the payment of royalties. This would kill WotC's royalties regime stone dead.

Therefore, v 1.1 will be drafted in such a way as to make clear that it is not one of the variants that existing licensees have permission to use. We have already seen one of the features of that drafting: it does not have OGC but rather Licensed Content. I would expect v 1.1 to have a provision in it similar to section 9 of v 1.0/1.0a, but I would also expect that provision to expressly exclude v 1.0/1.0a from being a relevant authorised variant. (And this is what I believe is meant by the phrase in the info pack that v 1.0a "is no longer an authorized license agreement".)

This is what section 9 actually says:

9. Updating the License: 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.

The lack of 'authorized' in the 2nd underline makes perfect sense if one assumes a version of the license can be deauthorized. In that case it would read that OGC distributed under any OGL version, even a not currently authorized version, can still be used with currently authorized versions of the OGL. That makes 100% sense.

It's hard for me to see an alternative reading that makes as much sense, given just the context of section 9.
Consider the scenario:
1. OGC was distributed under a previous version of this OGL license.
2. You distribute it under a Wizards updated version of the licensee.
Why would it need to specify that you can use any authorized version when the OGL specifically tells us the sentence before that the only party that can publish an updated version of the license is wizards - Wouldn't it have been clearer to just say 'any version'? Also, if 'authorized' was necessary in the first underlined part, why wouldn't authorized also be necessary in the 2nd underlined part?

Thus, from a purely textual consideration - I personally am starting to find the deauthorization argument more compelling than I previously did.

There is no deauthorisation argument. You ask "why would it specify that you can use any authorised version"? The answer is that this reinforces that versions that can be used must be those published with appropriate authority, ie by WotC or its agents. That's it.

I already posted a more detailed account of this, in reply to your earlier post, upthread at #556:

"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.

 

[pemerton]

I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they know they cannot revoke the license. Lawfare was not the intent in that tactic, but the threat of lawfare was the intent to muscle the big players. Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category. I am not a lawyer, obvious, but I do hope this is the case.

I think that WotC wants to get this sorted before the movie comes out and (if it successful) creates opportunities for a lot of other parties to publish OGL-licensed works that profit from the movie. (This is not my theory, by the way. I got it from @Hussar.)

There may also be a more generic desire to gather their IP back into the fold, but the movie as a key event makes sense to me as an answer to the question "why now?"

I agree that, as with the GSL, they were presumably hoping to get some big players on board. And for all we know, they have done so - I mean, if it's true that Paizo is thinking of selling to WotC, that seems like a bit of a win for the latter!

Whether they will use "lawfare" to try and crack down on publishers who continue to act upon their rights under the existing OGL I think it's too early to predict. If I was WotC, I'd first be seeing how far I can get via more productive channels - eg arrangements with Kickstarter and OBS, special pathways for access to D&DBeyond, etc. Of course some attempts at monopolisation and exploitation of market power can push against competition/anti-trust law, but I doubt WotC will be worried about that - who will bring the suit against them? Whereas trying to sue people for infringement invites them to plead the licence in their defence, and win on that basis.

 

[jgbrowning]

I think that WotC wants to get this sorted before the movie comes out and (if it successful) creates opportunities for a lot of other parties to publish OGL-licensed works that profit from the movie. (This is not my theory, by the way. I got it from @Hussar.)

If you could point me in the right direction of that thought, I'd appreciate it. It's one I haven't seen before.

joe b.

 

[pemerton]

If you could point me in the right direction of that thought, I'd appreciate it. It's one I haven't seen before.

joe b.

My searching hasn't turned it up. @Hussar can confirm whether or not I've misattributed the idea to him!

 

[S'mon]

I think the tactics WotC has used (exclusively sending contract to major players with beneficial terms prior to any others knowing about the changes- ie. a 'coup' of the major players prior to public announcement) imply that they know they cannot revoke the license. Lawfare was not the intent in that tactic, but the threat of lawfare was the intent to muscle the big players. Now I think they're realizing that they are going to be forced into a lawfare situation (for a case which I believe they believe they cannot win) while having a continual and significant fan-base disruption event just prior to the desire to maximally monetize a new release. Hopefully they will decide that it is very unlikely that they will gain anything and will rescind their stance on prior OGC material and licensing and simply fork new material off into a separate category. I am not a lawyer, obvious, but I do hope this is the case.

joe b.

This matches my feelings about what's probably going on, especially the bolded bit.
A lot of the language we've seen from WoTC doesn't seem to make a lot of sense legally, eg even calling the licence OGL 1.1 doesn't make a lot of sense if you want to protect your 5.5 SRD from exploitation under Section 9 of OGL 1.0. A lot of it seems very emotional for a legal document. It makes a lot more sense if this is a strategy to threaten & push major 3PPs into signing up to (better than OGL 1.1) deals.

 

[pemerton]

A lot of the language we've seen from WoTC doesn't seem to make a lot of sense legally, eg even calling the licence OGL 1.1 doesn't make a lot of sense if you want to protect your 5.5 SRD from exploitation under Section 9 of OGL 1.0. A lot of it seems very emotional for a legal document. It makes a lot more sense if this is a strategy to threaten & push major 3PPs into signing up to (better than OGL 1.1) deals.

Agreed. In the leaks, we're seeing the gloss/spin/propaganda presentation intended by WotC to achieve some of its commercial goals in the context of pre-contractual negotiations.

Do we know who leaked? I'm a bit curious about that. I wonder if WotC is also!

 

[Nikosandros]

Do we know who leaked? I'm a bit curious about that. I wonder if WotC is also!

I have no evidence, but I believe that there might have been multiple sources for the leaks. Also, since rumors had been circulating for weeks, I wouldn't be surprised if some information came from within WotC itself.

 

[S'mon]

As I posted a couple of times upthread - I don't think there is any point in trying to read press releases as if they are legal documents. When press releases, or "info packs", are all that we have then we need to look at them and try to imagine what the legal framework is that they are describing.

It seems pretty obvious that WotC wants to create a new ecosystem for licensed content, in which participants are obliged to play them royalties (under certain conditions). They will therefore not make the basic error of releasing a licence which obviously falls within the terms of OGL v 1.0/1.0a's section 9 and thus entitles existing licensees, and probably future sub-licensees also, to use WotC's new content under any the existing royalty-free licence.

Thus, whatever exactly the OGL v 1.1 looks like, it will not be an "update" within the meaning of section 9 of v 1.0/1.0a.

And "update" has no other legal meaning in this context that I can see.

So trying to argue that v 1.1 will nevertheless, in some sense, be an update strikes me as pointless and even quixotic.

This doesn't stop WotC's media and comms team describing things however they like - but why are you taking their choice of words so seriously if what you're actually trying to do is cut through the comms team's spin and make legal sense of what might actually be happening?

I think our perspectives differ here a bit Mr P. I agree that the language we're seeing does not look very legal, but everything we're getting from those who have seen OGL 1.1 seems to show a very high degree of correspondence between the language in the press release and the language in the licence. We can say as lawyer guys "But this language makes no legal sense! They're torpedoing their own position!" - but if their real goal is intimidation of 3PPs into abandoning OGL 1.0, NOT creating an effective legal document for the courtroom, I think it makes a lot more sense.

I see two interacting possibilities:
1. Externally, they are focused on scaring people, not on creating something legally effective. It's never intended to stand up in court.
2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.

 

[S'mon]

2. Internally, there is weird stuff going on, perhaps akin to what I saw with TSR in the mid 90s. The TSR staff lawyer I spoke with was saying things that legally made no sense. It seems he was enacting the will of his Dark Mistress. TSR was in a sort of Fuhrer Bunker mentality at the time. In this case WoTC's leadership may be (a) consumed with hatred of open gaming (b) promised the investors to end the 'under monetisation', and this weird document & strategy is primarily about how it looks to the investors.

At the naval Battle of Salamis, Queen Artemisia, a sub-king of the Persian Empire, reportedly attacked and sunk one of her own side's ships. Not because it made any military sense, but because of how it looked to the Persian Great King, Darius I think it was. It would make no sense to sink your own ship - so that must have been a Greek ship! I think we might be seeing similar behaviour here.