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

[pemerton]

Does it matter that the termination clause in v1.0a specifies that all sublicenses shall survive the termination of this License? Does this mean that OGC contributed prior to signing up to v1.1 remains usable?

This looks a bit tricky to me.

Suppose X is a party to the OGL v 1.0/1.0a with one or more licensees.

X now enters into the OGL v 1.1 with WotC. They thereby renounce their rights under OGL v 1.0/1.0a, and promise WotC that henceforth they will use v 1.1 as their licence.

X is still bound by their promise to those other licensees to permit them to use X's OGC under the terms of v 1.0/1.0a. Prima facie, though, if that takes place then X is breaching their promise to WotC under v 1.1

However, if WotC is also a licensor to those other licensees under v 1.0/1.0a, then it has made the section 13 promise to them. Which means that X's prima facie breach of obligations to WotC is not actually a breach, because WotC has promised the other licensees that it can happen.

What is a bit weirder, though, is if those other licensees are not licensees of WotC. For instance, they might be part of a non-WotC-owned-SRD-derived ecosystem. In that case, WotC has not made any promise to them, and so X cannot honour both X's obligations to WotC and X's obligations to the other licensees. So in this case, it looks like X breached their licence obligations to those other licensees when they entered into v 1.1 with WotC.

I've worked the above out as I typed it, so I don't promise that it's the prize-winning answer to the exam! It's more of a first attempt to work through your question.

 

[jgbrowning]

By another contract agreed to by both parties.

A lot of bad analogies are being thrown around. The Open Game License is not a marriage or a rental agreement. It's an open source license, a type of agreement that courts have become increasingly familiar with in the last 33 years. These licenses don't get torn out from the roots to eliminate the entire corpus of work that was created with them over the span of decades.

I concur. I don't find much value in analogies when discussing the OGL issues at hand as one can simply discus the thing directly without using analogies.

joe b.

 

[GMforPowergamers]

and the other bottom line is that ‘perpetual’ also meant ‘irrevocable’ back in 2000, and courts have upheld that for the GPL 2.0, which is a lot closer to what we are discussing here than a marriage

now I keep seeing this posted both ways. That courts at one point upheld that perpetual meant irrevocable, AND that at one point they had to change all the open contracts (and OGL did not update with it) to SAY irrevocable.

If the going legal theory is perpetual means irrevocable then there was no reason to update. If there was a reason to update to add irrevocable, that is an opening.

Now, could 2000 have considered it and 2022 NOT... sure, then you have "is this a living document that will be interpreted in todays meaning, or is this a static document that we will interpret using only the terms form 22 years ago" and my understanding is THAT will vary from judge to judge and can get turned over on an appeal... and even though I still have not hotkeyed it yet "I am not a lawyer"

 

[Prime_Evil]

It seems to me that the new version of the OGL is utterly toxic and viral in ways designed to destroy the industry. Nobody should agree to the terms. Any publisher who does may taint their existing OGC. The updated license is designed to sow division and mistrust. The community should quarantine those who accept the new licence to prevent the "infection" from spreading.

 

[rcade]

my understanding is that in 3e companies did this... I know for a fact that in 2e Mayfair Games tried, and was sued but settled out of court before we got the definitive answer.

The Role Aids line from Mayfair Games had text like this on the cover of its books:

"Suitable for use with Advanced Dungeons & Dragons."

"Presented by the editors of Role Aids for use with Advanced Dungeons & Dragons role-playing game."

TSR ultimately had to buy Role Aids from Mayfair to get them off the market because it couldn't accomplish that with the courts.

 

[Prime_Evil]

Marriage licenses are in writing, and are a legal contract with no expiration date. Yet they are regularly dissolved.

The bottom line is this: WotC owns the property.

Keep in mind that many games unrelated to WoTC IP adopted the OGL due to representations made by WotC about its universal applicability.

 

[reelo]

It seems to me that the new version of the OGL is utterly toxic and viral in ways designed to destroy the industry. Nobody should agree to the terms. Any publisher who does may taint their existing OGC. The updated license is designed to sow division and mistrust. The community should quarantine those who accept the new licence to prevent the "infection" from spreading.

Hasbro/WotC and all those that sign on to 1.1 should be treated as pariahs and utterly shunned by the whole TTRPG community, yes.

 

[GMforPowergamers]

This looks a bit tricky to me.

Suppose X is a party to the OGL v 1.0/1.0a with one or more licensees.

X now enters into the OGL v 1.1 with WotC. They thereby renounce their rights under OGL v 1.0/1.0a, and promise WotC that henceforth they will use v 1.1 as their licence.

X is still bound by their promise to those other licensees to permit them to use X's OGC under the terms of v 1.0/1.0a. Prima facie, though, if that takes place then X is breaching their promise to WotC under v 1.1

However, if WotC is also a licensor to those other licensees under v 1.0/1.0a, then it has made the section 13 promise to them. Which means that X's prima facie breach of obligations to WotC is not actually a breach, because WotC has promised the other licensees that it can happen.

What is a bit weirder, though, is if those other licensees are not licensees of WotC. For instance, they might be part of a non-WotC-owned-SRD-derived ecosystem. In that case, WotC has not made any promise to them, and so X cannot honour both X's obligations to WotC and X's obligations to the other licensees. So in this case, it looks like X breached their licence obligations to those other licensees when they entered into v 1.1 with WotC.

I've worked the above out as I typed it, so I don't promise that it's the prize-winning answer to the exam! It's more of a first attempt to work through your question.

I am sure every word of what you just wrote makes perfect sense. I am sure that any 1st year prelaw student could laugh off this 'break down' and make it work. However the fact that this is even a thought experiment shows how they can kill the OGL.
How can this be a 'safe harbor' when it's full of mines?

 

[Prime_Evil]

now I keep seeing this posted both ways. That courts at one point upheld that perpetual meant irrevocable, AND that at one point they had to change all the open contracts (and OGL did not update with it) to SAY irrevocable.

If the going legal theory is perpetual means irrevocable then there was no reason to update. If there was a reason to update to add irrevocable, that is an opening.

Now, could 2000 have considered it and 2022 NOT... sure, then you have "is this a living document that will be interpreted in todays meaning, or is this a static document that we will interpret using only the terms form 22 years ago" and my understanding is THAT will vary from judge to judge and can get turned over on an appeal... and even though I still have not hotkeyed it yet "I am not a lawyer"

Given that the termination clause in the OGL v1.0a specifies circumstances under which the rights granted by the licence can be revoked, it is clearly not irrevocable. The question might be whether these are the only conditions under which the licence may be revoked.

 

[GMforPowergamers]

Hasbro/WotC and all those that sign on to 1.1 should be treated as pariahs and utterly shunned by the whole TTRPG community, yes.

wait you think if some company or person says "Hey I don't make $750k, I don't even make $50k, I can sign up and just keep putting out my very small pdfs" that the few people buying them should stop buying them because they made a choice that this isn't there fight?!