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

[pemerton]

If WoTC had went to a neutral lawyer for advice, I think the advice would be along the lines of:

"It is unlikely that the OGL 1.0 can be revoked. It was clearly intended to be non-revocable.
"However, you can certainly release the updated version of D&D outside the OGL. You can use a new license to do this, as was done in 2008. That will prevent third parties from using material unique to the updated version of D&D."

But instead of a brand new licence, we're seeing this "OGL 1.1" that explicitly claims to be an update, putting it within section 9 of OGL 1.0. And we're seeing an implicit claim that they can somehow revoke 1.0 - they don't seem to have made this claim explicit, but it's clearly what they want readers of 1.1 to think.

OGL 1.1 is a terror weapon, not a weapon designed for maximum legal efficiency. It's an AT-AT not an MBT. In the cause of sowing fear and confusion, it puts WoTC in a significantly worse legal position. A licence drafted to protect WoTC's legal rights and to stand up well in court would look quite different, IMO.

As per my post not too far upthread, I think I agree that it is designed to cause confusion.

My thought about its relationship to v 1.0/1.0a might be different from yours, though, and I'm interested to work out if that's so.

A party to the OGL v 1.1 agrees, via the screenshot clause, that they are becoming a party to an updated version of the OGL. That suggests, therefore, that they also agree to allow v 1.1 to be used to distribute (etc) their OGC. They also agree that v 1.0/1.0a is no longer authorised by WotC, and hence renounce the right to distribute any OGC under that licence.

A key question is, what is the status of OGC contributed by licensees who are not party to v 1.1. I don't think that they have agreed to have their content distributed by other parties under v 1.1, as those parties (it seems to me) are not conferring on v 1.0a licensees the rights those licensees are entitled to, including the right to choose which licence to use (because v 1.1 parties can't confer that right - at a minimum they have renounced their previous power to confer the right on others to use v 1.0/1.0a).

So I'm not sure that WotC have failed to protect their own rights. Because anyone who enters into a new licence with them now, ie via 1.1, is passing through a one-way door (I think, as per the above). And those parties bring their own OGC with them, but cut off their membership of the 1.0/1.0a ecosystem. Or at least perhaps some of their OGC - because those parties cannot both enter the 1.1 ecosystem and honour obligations they might owe to parties to 1.0/1.0a, and so perhaps can't bring all of their OGC with them - only OGC that is licensed by another 1.1 party.

Which to me seems to fracture the 3PP ecosystem in a much weirder fashion than I think the GSL did, or than your proposal would.

 

[S'mon]

Now significant parts of the licensing document have been revealed, would any lawyers in this thread revise or clarify their previous opinions? In light of the new information, do you think v.1.1 of the OGL successfully terminates the rights granted under v1.0a? Or should we regard this as an attempt to spread FUD (fear, uncertainty, and doubt)?

My opinion stands. The latter - FUD.

 

[pemerton]

Now significant parts of the licensing document have been revealed, would any lawyers in this thread revise or clarify their previous opinions?

See my post just upthread.

In light of the new information, do you think v.1.1 of the OGL successfully terminates the rights granted under v1.0a?

What do you mean by your question? As various of us anticipated, parties to v 1.1 renounce their rights to use the v 1.0/1.0a licence terms.

Parties to v 1.0/1.0a who do not become parties to v 1.1 retain their rights for all the reasons discussed at length in this thread. But to me, it seems their relationship to members of the v 1.0/1.0a OGC ecosystem is changed in weirder ways than was the case with the GSL. But I'm waiting to see what @S'mon and any others think of my analysis I've just posted. It's possible I've made mistakes in my reasoning.

 

[S'mon]

5e does not purport to be produced under any sort of licence. WotC asserts ownership of whatever IP rights attach to the 5e works that it publishes. And I've never heard any suggestion that in fact WotC is infringing anyone else's copyright or using anyone else's trademarks.

I guess if monsters do enjoy copyright protection, as I've been assuming, then the Displacer Beast may well infringe A E Van Vogt's copyright in the Couerl!

And you could argue about Tolkien estate having a copyright in his monsters like Ents, Wargs, Orcs, Balrogs etc - but to me they seem simpler and more generic concepts than the Displacer Beast/Couerl.

 

[S'mon]

As per my post not too far upthread, I think I agree that it is designed to cause confusion.

My thought about its relationship to v 1.0/1.0a might be different from yours, though, and I'm interested to work out if that's so.

A party to the OGL v 1.1 agrees, via the screenshot clause, that they are becoming a party to an updated version of the OGL. That suggests, therefore, that they also agree to allow v 1.1 to be used to distribute (etc) their OGC. They also agree that v 1.0/1.0a is no longer authorised by WotC, and hence renounce the right to distribute any OGC under that licence.

A key question is, what is the status of OGC contributed by licensees who are not party to v 1.1. I don't think that they have agreed to have their content distributed by other parties under v 1.1, as those parties (it seems to me) are not conferring on v 1.0a licensees the rights those licensees are entitled to, including the right to choose which licence to use (because v 1.1 parties can't confer that right - at a minimum they have renounced their previous power to confer the right on others to use v 1.0/1.0a).

So I'm not sure that WotC have failed to protect their own rights. Because anyone who enters into a new licence with them now, ie via 1.1, is passing through a one-way door (I think, as per the above). And those parties bring their own OGC with them, but cut off their membership of the 1.0/1.0a ecosystem. Or at least perhaps some of their OGC - because those parties cannot both enter the 1.1 ecosystem and honour obligations they might owe to parties to 1.0/1.0a, and so perhaps can't bring all of their OGC with them - only OGC that is licensed by another 1.1 party.

Which to me seems to fracture the 3PP ecosystem in a much weirder fashion than I think the GSL did, or than your proposal would.

It's an interesting thought. I can imagine a judge getting pretty exasperated trying to disentangle this. I think it's a good example of how WoTC is seeking to disrupt & degrade the OGL ecosystem. It also means additional potential liability (to their previous OGL 1.0 sub-licensors) for any company that signs OGL 1.1.

It's an additional reason why the OGL 1.1 is utterly toxic and I think no one in their right mind should sign it!

 

[Xyxox]

If you have the time, Indestructoboy has the entire OGL 1.1 and spent about 3:38 going over it in a live stream this morning:

 

[pemerton]

It's an interesting thought. I can imagine a judge getting pretty exasperated trying to disentangle this. I think it's a good example of how WoTC is seeking to disrupt & degrade the OGL ecosystem. It also means additional potential liability (to their previous OGL 1.0 sub-licensors) for any company that signs OGL 1.1.

It's an additional reason why the OGL 1.1 is utterly toxic and I think no one in their right mind should sign it!

The bit that I've bolded is what I'm particularly intrigued by.

Setting aside the normative question of toxicity, I think it's potentially a rather clever bit of drafting that manages to protect WotC's rights and cause disruption in the ecosystem. (I do agree it could cause exasperation for a judge.)

 

[S'mon]

I guess if monsters do enjoy copyright protection, as I've been assuming, then the Displacer Beast may well infringe A E Van Vogt's copyright in the Couerl!

And you could argue about Tolkien estate having a copyright in his monsters like Ents, Wargs, Orcs, Balrogs etc - but to me they seem simpler and more generic concepts than the Displacer Beast/Couerl.

Oh, and there are issues with the Fiend Folio monsters that originated in White Dwarf. The original contributors all owned copyright in their published material, eg Charles Stross for Githyanki, Githzerai, & Slaad. TSR believed they had acquired full rights to those monsters from Games Workshop. Did Games Workshop really effect a transfer of copyright in all those monsters from the authors to themselves? That's really tricky. Even if they transferred copyright in what appeared in the 1e FF, under UK law the copyright in the original published literary works (the versions appearing in White Dwarf magazine) would normally stay with the authors. I suspect that under UK law WoTC may possess licences but not actually own the copyrights. A monster concept per se has never been held to be a copyright work anyway, just the words describing it. Quite the can of rot grubs.

 

[Matt Thomason]

A legal case that might be applicable:

Jacobsen v Katzer (2008) ruled that a non-exclusive copyright license with no revocation clause (the same thing being argued here over the OGL) can only be revoked if there was no consideration involved.
It also ruled that in the case of FOSS software, "the lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration"

The consideration in that case being that there were economic benefits from the license itself from being able to redistribute and modify it, and "being able to create new works" from it.

 

[Burt Baccara]

Questions for the contract lawyers here.

Does the situation around OGL 1.1 fit the definition of coercion for designers and publishers?

Does the situation around OGL 1.1 fit the definition of undue Influence for designers and publishers?

Does the situation around OGL 1.1 fit the definition of unconscionability in the terms given to designers and publishers?

Does OGL 1.1 fit the definition of misrepresentation as it claims to be an open license, but does not fit the generally accepted definition, not being copyleft?

If yes to any of the above, does that undermine the ability of WotC to enforce OGL 1.1?