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

[jgbrowning]

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.

Well that makes Section 4 look that much more important. "4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."

joe b.

 

[Matt Thomason]

Something else to consider in fighting any attempt to retroactively remove OGL 1.0 without the consent of both parties:

EU law tends to have a lot more consumer protections than US law. It also considers a license a contract, and I'm not sure if the same is true in the US.
So I'm hoping someone with knowledge of EU law is looking into this too. There may even be legal means to return products for a refund if they were purchased with the OGL 1.0 being active and with this being retroactively removed, which could be a way to pressure any 3PPs considering taking any under-the-table deal being offered by WotC.

 

[pemerton]

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.

In one of these threads I posted that I don't know the US law on adequacy of consideration.

But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.

 

[pemerton]

Well that makes Section 4 look that much more important. "4. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content."

All the arguments in this thread against the OP have been built around an understanding of the OGL as a contract. As well as section 4, you'll see that section 3 refers to offer and acceptance.

Something else to consider in fighting any attempt to retroactively remove OGL 1.0 without the consent of both parties:

EU law tends to have a lot more consumer protections than US law. It also considers a license a contract, and I'm not sure if the same is true in the US.

A licence is a relationship to property - roughly, a permission to use it while not actually getting any interest in it. When you have people over to your house, your are granting them a licence. (That's what makes them not trespassers.)

A licence can be granted gratuitously - as when you have your friends over - or can be granted pursuant to a contract. The OGL is clearly a contract.

So I'm hoping someone with knowledge of EU law is looking into this too. There may even be legal means to return products for a refund if they were purchased with the OGL 1.0 being active and with this being retroactively removed, which could be a way to pressure any 3PPs considering taking any under-the-table deal being offered by WotC.

@S'mon understands EU consumer protection law, I am guessing. But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!

 

[Matt Thomason]

But my own intuition is that a work is not faulty or defective simply because there is some confusion over the licensed rights it can confer. If you're buying a work in order to get the benefit of a licence that is offered in it, I'm not even sure that you count as a consumer!

I think there might be a case to be made here that the OGL also allows you a safe harbor to put various materials online for your gaming group without having to worry about copyright violation, even if you're not intending to be an actual 3PP publisher. I'm also not sure where exactly this puts a freelancer who doesn't do this for a living, but only as an extended part of their hobby. But I'm really just grasping at straws here and hoping someone with more knowledge than I might get an idea from it

 

[pemerton]

I think there might be a case to be made here that the OGL also allows you a safe harbor to put various materials online for your gaming group without having to worry about copyright violation, even if you're not intending to be an actual 3PP publisher.

I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.

But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.

I'm also not sure where exactly this puts a freelancer who doesn't do this for a living, but only as an extended part of their hobby.

If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.

 

[Ulfgeir]

I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.

But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.

If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.

As far as I know, we don't really have the concept of "Fair Use" here in the EU. I am most certainly NOT a lawyer though.

edit: and the law-courses I have taken were 25+ years ago, so definitively not up-to-date.

 

[Matt Thomason]

I don't know what EU law provides for fair use, or implicit permission, but I think this might well fall under one or both.

But unless the work you've purchased expressly makes a point of using the OGL for this purpose, I'm not sure how consumer protections would kick in. And given the amount of product identity in the typical module, campaign supplement etc I can't imagine many of them make a big deal of this as a feature.

If they're a freelancer I don't see how they're a consumer. They look like a small-scale sole trader to me.

Yeah, I think it's more likely going to be worth focusing on the OGL being a legal contract, and whether one side has the rights to unilaterally make changes to a contract.

 

[Jd Smith1]

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

HIs power to extend the offer, his power to withdraw it. It is, at the end of the day, his property.

Look at marriage: a spouse vows for life, but can still file for divorce.

 

[Staffan]

In one of these threads I posted that I don't know the US law on adequacy of consideration.

But it seems to me that the OGL v 1.0/1.0a has consideration flowing in both directions: the licensor confers permissions to use its OGC (including by way of sub-licensing it); the licensee promises to make a standing offer to all comers to license their (that is, the licensee's) OGC on the same terms, including permitting the choice of variants as per section 9.

Another consideration on the part of the licensee: they agree not to use any trademarks unless given a separate license to do so.

My understanding is that if I were to write and publish a D&D adventure without violating Wizards' copyright (let's for the sake of the argument assume I successfully navigated that legal minefield), I would be well within my rights to write "A Dungeons & Dragons (R) adventure for level 7 characters", as long as I have a disclaimer saying D&D is a registered trademark blah blah, and I don't use actual logos (which are probably copyrighted as well as trademarked). By using the OGL, I give up that right. That's not nothing.