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

[Greg Benage]

Yes, but license terms do not hold unless both sides agree. And that assertion is in a license term. That term cannot hold to me if I don't ever agree to it.

I think it's two things:
1. It's clearly true if the licensee agrees to 1.1.
2. In both the license language and explicitly in the propaganda, Wizards is staking out the position that it's true whether or not a publisher agrees to 1.1.

The consensus (not unanimous) by the lawyers here is that this position is on weak footing.

 

[shadowoflameth]

So if I'm understanding the general legal opinion correctly (assuming US law). WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.

 

[Greg Benage]

It is there; it is in the preamble which states "by using Licensed Content in this manner, You agree to the terms of this agreement." It is neither necessary nor desireable in drafting contracts for each obligation to be preceded by "the parties agree ..."

Even there, Wizards appears to claim that a publisher needn't sign 1.1 to agree to its terms. They only need to publish content based on SRD 5.

"Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."

Okay, what is "Licensed Content"?

"i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."

ETA: Would this count as "agreement by performance"?

 

[jgbrowning]

I think it's two things:
1. It's clearly true if the licensee agrees to 1.1.
2. In both the license language and explicitly in the propaganda, Wizards is staking out the position that it's true whether or not a publisher agrees to 1.1.

The consensus (not unanimous) by the lawyers here is that this position is on weak footing.

I'm seeing this in (non-commercial)
VIII. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

and this in (commercial)
X. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

I'm assuming both of these are in the license language. Where is it used in the propaganda (sorry, I just think I'm not understanding).

joe b.

 

[Princessmaker]

Even there, Wizards appears to claim that a publisher needn't sign 1.1 to agree to its terms. They only need to publish content based on SRD 5.

"Any commercial use of Licensed Content (defined below) is subject to this agreement; by making commercial use of Licensed Content, You agree to the terms of this agreement."

Okay, what is "Licensed Content"?

"i. Usable D&D Content (“Licensed Content”) – This is Dungeons & Dragons content that is included in the SRD v. 5.1, including basic game mechanics and a curated selection of classes, monsters, spells, and items that allow You to make content compatible with Dungeons & Dragons 5th edition."

ETA: Would this count as "agreement by performance"?

As long as they don't pull something like "if you have a dnd beyond account, you agree to it", there is still a chance.

 

[Enrahim2]

I'm seeing this in (non-commercial)
VIII. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

and this in (commercial)
X. TERMINATION. This agreement may be modified or terminated.
A. Modification: This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement.

I'm assuming both of these are in the license language. Where is it used in the propaganda (sorry, I just think I'm not understanding).

joe b.

It is not in the comments: It is in the faq on page 2

 

[kjdavies]

There is a significant difference between what is stated here in the text of the licence and what is stated in the comments section of the licence. It looks like the OGL v1.1 operates on an opt-in basis. If you agree to the terms of the new licence, you agree to give up the rights granted by v1.0a of the licence. But WotC go out of their way to give the impression that their "termination" of the old licence is binding on all licensees under v1.0a, regardless of whether they agree to the new licence or not. I suspect it's pure FUD designed to intimidate people into agreement with the terms of the new licence. They are likely aware they have no power to unilaterally terminate the older version of the OGL. Or am I missing something here?

As I read it, v1.1 and v1.0a are clearly incompatible. No content released under v1.0a can be used under v1.1 because v1.1 makes it impossible to meet the obligations and requirements of v1.0a. This could be the origin of the "v1.0 is not authorized"; the full statement should be "not authorized for this content".

As I read it, v1.1 applies to Dungeons & Dragons content released as SRD 5.1, and no other SRD. SRD (3e), RSRD (3.5), MSRD (Modern), and all third-party SRDs using OGL v1.0a should not be affected at all. The two licenses and their licensed content are not miscible.

As I read it. And I'm not an expert.

So... assuming -- and that's a big assumption -- I'm correct, I think I'm aligned with some of the legal types here that OGL v1.1 is basically 'GSL 2.0 -- worse than GSL' but doesn't affect most of the people who are worried about it.

It all comes back down to whether or not they're claiming OGL v1.0a is no longer a valid license at all, or just not a valid license for SRD 5.1.

 

[GMforPowergamers]

So if I'm understanding the general legal opinion correctly (assuming US law).

if you think there is even close to a legal consensus here you are not understanding something...

WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.

My layman reading says that. Some lawyers say they can some lawyers say they can't... it comes down to if anyone wants to fight in court. If you don't then weather it is legal or right doesn't matter.

Wotc MAY be able to bully this into being the law of the land, or maybe not. Time will tell.

 

[Greg Benage]

@jgbrowning There was another excerpt from a Q&A document that was floating around here. I'm not going to go track it down, but to paraphrase, it said "What if I don't agree to OGL 1.1?" And the answer was, "No problem, you just won't be able to earn any revenue from SRD-based content after January 13, 2023."

ETA: Ninja by @Enrahim2

 

[robconley]

So if I'm understanding the general legal opinion correctly (assuming US law). WotC does not have to continue to offer an open license to anyone at all if they don't want to. They can revoke prior offers on 5e and prior editions for the purpose of new 3rd party content. Anyone wanting to do that would need a deal that involved permission from WotC. (Like getting permission from the author to write and publish Harry Potter 8). Other existing creators are OK on what they've already done but would need permission to derive anything new.

Except there are sublicenses involved. For example, I used a fair amount of content from Matt Finich's Swords & Wizardry in my Majestic Fantasy RPG. At no time I used any material directly from the d20 SRD. But Matt did. Then there is the fact that the license has an explicit termination clause. And it mentions if the rights to the content are terminated all sub-licenses remain in force.

This could lead to an odd time-line where Matt Finch isn't allowed to publish or build on Swords & Wizardry but I am allowed to continue with the Majestic Fantasy RPG. Because my legal relationship for the Majestic Fantasy RPG is with Matt Finch not Wizards of the Coast.

The result is that the answer isn't as clear-cut as folks would like it to be.