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

[Myrdin Potter]

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


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

Did that GPL case get a court ruling or was it settled in private without a judge ruling on it?

 

[Maxperson]

so long as the signor never reports it to law enforcement when they dissolve, WotCis safe from criminal consequences. Dissolving it will not stop a signor from reporting it, though. That would only be a position of good faith.

If both sides agree to dissolve, there's nothing at all to report.

WotC: "Here's the new OGL and a contract. Read it and sign the contract if you want in."
3PP: "We've read the contract and OGL and have signed the contract. Here it is."
WotC: "Crap. We're getting a lot of flak for this and we would like to change it. Here are the proposed changes which are better for you. Sign this new contract if you are interested in this one. Signing it will void the last contract that you just signed."
3PP: "Hey. Sounds good. We agree to the new one. The old one is void."

There's no fraud involved if both sides agree to dissolve. And in any case, if the leaked info is to be believed, WotC can unilaterally change what the license says with 30 days notice.

 

[mamba]

Did that GPL case get a court ruling or was it settled in private without a judge ruling on it?

pretty sure it was a court ruling, the big guns (IBM...) were on the GPL 2.0 side and I am sure they wanted to have clarity once and for all

EDIT: emphasis mine

"A non-exclusive copyright license (such as most FOSS licenses) can be revoked at any time only if there was no consideration involved. The United States Federal Circuit Court of Appeal took this on in Jacobsen v. Katzer in 2008 and ruled that there is consideration exchanged in the use of FOSS by a licensee. This indicates that an FOSS license that's silent on revocation is likely revocable only for violation of it's conditions."

Jacobsen v. Katzer, 535 F. 3d 1373 - Court of Appeals, Federal Circuit 2008 - Google Scholar

scholar.google.com

I was thinking of, but upon going through the details I am not sure how well it fits

SCO Group, Inc. v. International Business Machines Corp. - Wikipedia

en.wikipedia.org

 

[S'mon]

Here it is, apparently.
joe b.

Well done getting hold of it!

 

[DavyGreenwind]

AFAICS, between these three options:

1. Sign the OGL 1.1
2. Publish with no licence.
3. Publish under the OGL 1.0

#3 remains clearly the safest option, though not risk free, for most 3PP publishers.
#2 may be best for those who never needed the OGL.
As for #1, given the terms of the OGL 1.1 I would not advise anyone to sign it.

Do you disagree?

Edit: Of course "cease publishing" is also an option, which I think many may end up taking.

I agree, more or less depending upon what OGL 1.1 says. I think the primary point where we disagree is how safe it is to publish OGL 1.0. At the end of the day, I looked at it, and it seems pretty revocable to me. And you looked at it, and it seems less so. Only time and some random judge will tell.

Our disagreement I think is an excellent embodiment of the issues in licensing law in general. You are looking at it more through the lens of contract law, and I am looking at it through the lens of property law (i.e. a license is merely a limited permission to use the property of another). Certainly, and as usual, they are intertwined.

 

[S'mon]

I agree, more or less depending upon what OGL 1.1 says. I think the primary point where we disagree is how safe it is to publish OGL 1.0. At the end of the day, I looked at it, and it seems pretty revocable to me. And you looked at it, and it seems less so. Only time and some random judge will tell.

Our disagreement I think is an excellent embodiment of the issues in licensing law in general. You are looking at it more through the lens of contract law, and I am looking at it through the lens of property law (i.e. a license is merely a limited permission to use the property of another). Certainly, and as usual, they are intertwined.

I think the correct lens is contract law, yup!

Full text of OGL 1.1 was just posted - http://ogl.battlezoo.com/

 

[DavyGreenwind]

I beg to differ. The term "perpetual" implies that the license is irrevocable. "Perpetual" signifies a contract of unlimited duration.

According to the text to which you, yourself, linked, "courts typically hold that simple non-exclusive licenses that are silent on revocability but specify a set duration are non-terminable during the set duration." Thus, the OGL is ipso facto non-terminable in perpetuum, or in other words, forever.

Your "PSA" is in fact false.

Here, a license that "specifies a set duration" is as opposed to a perpetual license. It makes sense that setting a duration on a license means it can't be terminated without cause during that period, because the stated period is part of the consideration for the contract. But a perpetual license is different; not only do courts have a presumption against contracts of perpetual duration, but in licensing law, it is continually distinguished from irrevocable. Imagine the license as a string. A perpetual license is a string of infinite length that can be cut anywhere, and an irrevocable license is a string of any length that cannot be cut.

 

[reelo]

Here, a license that "specifies a set duration" is as opposed to a perpetual license. It makes sense that setting a duration on a license means it can't be terminated without cause during that period, because the stated period is part of the consideration for the contract. But a perpetual license is different; not only do courts have a presumption against contracts of perpetual duration, but in licensing law, it is continually distinguished from irrevocable. Imagine the license as a string. A perpetual license is a string of infinite length that can be cut anywhere, and an irrevocable license is a string of any length that cannot be cut.

Yes, but 1.0 clearly STATES how it is revocable: by a breach of terms. And it clearly states that as the only way.

 

[Dausuul]

Yes, but 1.0 clearly STATES how it is revocable: by a breach of terms. And it clearly states that as the only way.

The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the only way to terminate the license.

Now, that was clearly the intent -- as confirmed by an overall reading of the text, multiple official statements from Wizards, and in-depth commentary by current and former Wizards employees over 20 years. The question is whether that intent would carry the day in court.

 

[reelo]

The bolded part isn't true. The OGL 1.0a says that breach will result in termination of the license, but it never says breach is the only way to terminate the license.

Now, that was clearly the intent -- as confirmed by an overall reading of the text, multiple official statements from Wizards, and in-depth commentary by current and former Wizards employees over 20 years. The question is whether that intent would carry the day in court.

See a comment (a lot) higher up:

The commentary to-date revolves around Sec 9 which states "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 claim seems to be that this language permits WOTC to de-authorize the OGL and terminate the agreement. This is a matter of interpreting the contract. There are a number of problems with such an interpretation.

First, a principle of contract interpretation is "expressio unius" which means that the expression of one thing excludes another thing. In other words, Sec 13 of the OGL is clearly labelled "termination" and describes how the OGL may be terminated. This implies that there is no other method to terminate the agreement.

Second, Sec 4 says that the grant is "perpetual." The notion of a perpetual license is inconsistent with a unilaterally terminable license. Third, under the "parole evidence" rule extrinsic evidence is generally not admissable if it contradicts an agreement, but it can be admissable to resolve ambiguities in the text of an agreement. In my view Sec 9 unambiguously does not permit de-authorization, but I find it very difficult to accept that Sec 9 unambiguously permits de-authorization. As Ryan Dancey has noted, there is plenty of contemporaneous extrinsic evidence that the OGL is not intended to be revocable, including a Q&A that appeared on the WOTC website as recently as 2020.