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

[pemerton]

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?

I missed this before. Just adding to @Steel_Wind's reply:

I don't see any coercion here, only offers - and why would 3PPs want to argue coercion in any event? They want to uphold and enforce their contractual rights under the OGL v 1.0/1.0a, not argue that they were coerced into becoming party to it.

The same point about not wanting to vitiate or read down the contract applies to your other questions too. But setting that to one side, and replying from the perspective of the Australian law that I am familiar with:

There is no undue influence here. These are all arm's length transactions between informed business parties. (In Australian and English law undue influence can operate in contexts other than estates, but it requires showing that someone's mind was overborne by the will of another. Nothing of that sort is happening here.)

There is no unconscionability that I can see. WotC is not taking advantage of its position vis-a-vis other parties to unfairly obtain a contractual benefit.

And WotC is not misrepresenting anyone about its contract, as far as I can see. Everyone who (to date) has been offered the chance to become a party has been shown the terms.

More generally: it doesn't serve the interests of 3PPs, as far as I can see, to argue that WotC is not entering into contracts in a valid fashion. This is at its core a straightforward case about contractual rights: 3PPs who have become party to the OGL thereby obtained contractual entitlements and contractual powers, as well as subjecting themselves to contractual obligations. WotC is now threatening to proceed as if those rights don't exist (eg by suing licensed parties for copyright infringement). The most obvious solution is for 3PPs to assert their contractual rights.

 

[Greg Benage]

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

That's one way of putting it, but I think it leaves out the best parts IIRC. TSR's complaint of trademark infringement didn't go anywhere...except that Mayfair was persuaded to settle it with a royalty-free license from TSR to use the trademark in specified ways. A few years later, TSR sued on the grounds that Mayfair had violated the terms of that agreement, a judge found some violations, and Mayfair had to sell the product line to TSR to disentangle themselves from the mess.

 

[pemerton]

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.

As I've posted upthread, I basically agree with this although I personally would not use such strongly normative language.

Also I don't think its designed to destroy the industry. All the RPGs I love and play - some old, some very new - will survive just fine! It's designed - at least as it seems to me - to disrupt and perhaps destroy the existing OGL-and-WotC-owned-SRD-derived industry.

 

[Xyxox]

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?!

I wouldn't buy anything from them.

 

[Prime_Evil]

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.

This does make it sound like the primary purpose of the new licence is to fracture the OGL community. Future publishers under 1.0a might need to perform due diligence to ensure no upstream OGC sources have been tainted by v1.1.

Could downstream publishers have a case against upstream publishers sign v1.1, breaching their Section 13 responsibilities?

 

[Steel_Wind]

There is no unconscionability that I can see. WotC is not taking advantage of its position vis-a-vis other parties to unfairly obtain a contractual benefit.

I would slow down on that one. We have yet to see an announcement and the plain text of OGL 1.1 in a form we can be certain about.

It is possible that a term which appropriates the IP in an OGL 1.1 released product to WotC could be held under the principles of Uber v. Heller as unconscionable. I'm not saying it is, or even that it is likely (indeed, I think it is unlikely)-- but I'm not closing the door on that one.

 

[mamba]

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.

no, it’s not both ways. The GPL 2.0 won, it is irrevocable and does not say so to this day.

What happened is that other licenses decided to add it, so no one is even tempted to go to court over it

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

we have more than interpretation of the meaning, we have statements from everyone involved that it was intended to be irrevocable, some repeated that now / can testify to that in court.
There is no need to interpret what the founding fathers could have meant by it, we can simply ask them

 

[Prime_Evil]

As I've posted upthread, I basically agree with this although I personally would not use such strongly normative language.

Also I don't think its designed to destroy the industry. All the RPGs I love and play - some old, some very new - will survive just fine! It's designed - at least as it seems to me - to disrupt and perhaps destroy the existing OGL-and-WotC-owned-SRD-derived industry.

I basically agree with you here, but I'm coming at it from the angle of somebody who has contributed OGC to an RPG not derived from any WoTC SRD. The collateral damage to these companies is substantial. But I suppose it will be easier to ensure upstream contributors do not sign up to v1.1 since it is focused on derivative works based on the WoTC SRD.

 

[pemerton]

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?

It won't kill the OGL if no one becomes a party to v 1.1.

But the bigger point, which I've made in a few posts since the first press release, is that this is the reality of "private ordering", particularly when the private ordering is all based around a cultural artefact produced and more-or-less owned by a single dominant commercial player.

Within the "private ordering" framework, the obvious solution is for 3PPs to stand on their legal rights within that ordering: keep doing their thing (including complying with the terms of the OGL v 1.0a), and if they get a C&D or statement of claim from WotC, plead their contractual rights in their defence. And if 3PPs don't really believe they have those contractual rights, then my view is that they willingly opted to put themselves at the mercy of WotC and so can't really complain about the quality of that mercy.

 

[mamba]

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.

the entire license is not revoked, you entering into the agreement is, because you actually violate it

If e.g. NuTSR published something under the OGL but violated the terms, the remedy is not to pull the OGL for everyone, it is to pull it for NuTSR / that product