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

[kjdavies]

To be clear, this post is not attempting to give anyone legal or commercial advice. The point is that, in a common law system (and I would guess civil law systems also), a person who has the benefit of a contractual right does not need to go to court to seek a declaration of right in order to lawfully act in reliance upon their right.

Though it would be nice to have it in writing from a judge that this is indeed a right.

 

[Steel_Wind]

Though it would be nice to have it in writing from a judge that this is indeed a right.

Sure. The real world doesn't work that way though. You pony up and roll the dice.

Legal uncertainty can be (and usually is) overblown. Still, it's just one of the many uncertainties that goes into the hopper when embarking on any new business venture. To be clear: legal uncertainty is never the most important one, either. There are many more practical commercial concerns that a new business faces which are far more important to its success of failure than a court case in the overwhelming number of cases.

 

[kjdavies]

You are trying to read it as a statute! (I know that's becoming my mantra. But it really is a barrier to understanding the legal situation when people do this.)

The OGL v 1.0/1.0a, as a bit of text posted by WotC and Ryan Dancey on various websites, has no legal effect. WotC is not a legislator, and cannot create general legal obligations nor confer general legal permissions.

WotC, as a private party (just like the rest of us), can enter into private law agreements that impose contractual (and other private law) obligations and confer contractual (and other private law) permissions.

So when WotC enters into a licensing agreement with X, on the terms stated in the OGL, then of necessity it has also authorised them to reproduce the copyrighted text of the OGL - because otherwise X would not be able to fulfil the agreement that WotC and X have made between themselves. The OGL also permits X to transfer this authorisation down the chain of sub-licenses - and this is a permission that WotC have conferred on X by entering into the agreement with them.

But now, if you choose to enter into an agreement with Mongoose and Jason Kemp, whose terms are those of the OGL, you do not gain any express permission from WotC to use their copyrighted text setting out those terms. Your contract with those other parties does not bind WotC. You will need to find some other basis for arguing that WotC has nevertheless permitted you to use their copyrighted text. I've made some suggestions upthread as to what that basis might be.

Would not the obligation to sublicense, combined with the obligation for the sublicensee to copy the text, not grant the sublicensee the write to copy the license text?

That is,

• WotC licenses to X, requiring X to copy this the OGL text and sublicense the open content (licensed and contributed);
• This extends to sublicensee Y, who has the same obligations;
• X and Y can only meet their obligations under the license (including copying the text) if they are allowed to copy the license text.

... or I've got that part right, and it appears I missed a step.

I did find Open Game License v1.0a, whose first line after the page title is

THIS LICENSE IS APPROVED FOR GENERAL USE. PERMISSION TO DISTRIBUTE THIS LICENSE IS MADE BY WIZARDS OF THE COAST!

but I can understand if this is not definitive. Understandably I don't see anything useful at the WotC site.

 

[Mistwell]

If one cut out the intro and removed the comments... what makes the rest not look like an actual license?

Otherwise I wasn't sure how to read "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with." and the rest of that paragraph.

Thanks for any professional insight!

Most of the text isn't there. For example:

"A. Content Covered 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."

None of that, other than the heading, is likely what the actual license says. The real text is going to be a list of included things, with words like, "Including, but not limited to" and references to a specific attachment of the SRD, and references back to defined words.

Another example:

"B. Works Covered This license only applies to materials You create for use in or as roleplaying games and as game supplements and only as printed media and static electronic files such as epubs or pdfs. It does not allow the distribution of any other form of media. And does not apply to creation of anything else."

This is not at all what the license is likely to say. There is going to be a big long list of stuff you could create, and different mediums and forms, and there will be a reference to time frames, and a list of forms of media you cannot use with a "including, but not limited to" , and a list preceding "anything else" of everything the lawyers could think of to exclude here, which likely ends with general type language.

Almost none of this document is real licensing language. This is the sort of document an attorney writes to explain the legalese of a license to a non-attorney client.

And it's HORRIBLY DANGEROUS for them to be doing this. If they explain anything wrong, if they leave anything meaningful out, if they spin something a certain way which could misdirect the other party from seeing a risk to themselves, if any of that happens it can really come back to bite WOTC in a lawsuit later. And it very likely waives claims of theirs to "see a lawyer" because they just represented to the other party that this is a fair and accurate explanation and all someone would need to understand this document.

It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.

 

[Cadence]

Most of the text isn't there. For example:

"A. Content Covered 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."

None of that, other than the heading, is likely what the actual license says. The real text is going to be a list of included things, with words like, "Including, but not limited to" and references to a specific attachment of the SRD, and references back to defined words.

Another example:

"B. Works Covered This license only applies to materials You create for use in or as roleplaying games and as game supplements and only as printed media and static electronic files such as epubs or pdfs. It does not allow the distribution of any other form of media. And does not apply to creation of anything else."

This is not at all what the license is likely to say. There is going to be a big long list of stuff you could create, and different mediums and forms, and there will be a reference to time frames, and a list of forms of media you cannot use with a "including, but not limited to" , and a list preceding "anything else" of everything the lawyers could think of to exclude here, which likely ends with general type language.

Almost none of this document is real licensing language. This is the sort of document an attorney writes to explain the legalese of a license to a non-attorney client.

And it's HORRIBLY DANGEROUS for them to be doing this. If they explain anything wrong, if they leave anything meaningful out, if they spin something a certain way which could misdirect the other party from seeing a risk to themselves, if any of that happens it can really come back to bite WOTC in a lawsuit later. And it very likely waives claims of theirs to "see a lawyer" because they just represented to the other party that this is a fair and accurate explanation and all someone would need to understand this document.

It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.

Thank you for the insight!

 

[pemerton]

Would not the obligation to sublicense, combined with the obligation for the sublicensee to copy the text, not grant the sublicensee the write to copy the license text?

That is,

• WotC licenses to X, requiring X to copy this the OGL text and sublicense the open content (licensed and contributed);
• This extends to sublicensee Y, who has the same obligations;
• X and Y can only meet their obligations under the license (including copying the text) if they are allowed to copy the license text.

... or I've got that part right, and it appears I missed a step.

What you describe here is how a licensee of WotC, under the OGL v 1.0a, gets permission to reproduce the text of the licence. But that won't help someone in @Prime_Evil's situation, where there is no licence from WotC.

I did find Open Game License v1.0a, whose first line after the page title is



but I can understand if this is not definitive. Understandably I don't see anything useful at the WotC site.

Someone posted this upthread too. WotC can retract that permission at any time, as it has been given gratuitously.

 

[Enrahim2]

Most of the text isn't there. For example:

None of that kind of text is in their existing undisputed legal documents either, like the OGL 1.0a, or their fan content policy. The kind of writing you are looking for make sense if the party really want the contract to be indesputable. However in this case there appear to be strong suspicions that the lisence is actively written to be disputable in a way that it to a layman appear to have a much wider reach than what it would appear to someone familiar with case law.

The removed links were most likely to the sections in the document. The leak is now confirmed from so many sources that at least one of them would have mentioned that, by the way the links mentioned lead to some text not included, unless you postulate a widespread conspiracy.

Moreover, if this is actually the case, this would be an example of gross misrepresentation as it would either require the receiver to press the links or assess and recognize the purported legalese as obviously non legalise to understand that the provided text was indeed not the real legal language. I stand as exibit 1 that the text is convincing enough to a layman that even with its fakeness argued by a (presumed) legal expert, I still believe it to be the actual intended legal text.

 

[Langy]

It's just really unwise and feels like something an inexperienced in house lawyer might do (which, 20 some years ago, would have been me at a company) without realizing the risk ramifications of providing such a "commentary" document with a license.

I'll just point out that the people who distributed the OGL 1.1 to the community have indicated that this is the legal text plus commentary and that the linked-to "just the legal text" document is not materially different. You might be correct, but if so all the reporting from Gizmodo on down is all very inaccurate.

 

[Mistwell]

None of that kind of text is in their existing undisputed legal documents either, like the OGL 1.0a, or their fan content policy. The kind of writing you are looking for make sense if the party really want the contract to be indesputable. However in this case there appear to be strong suspicions that the lisence is actively written to be disputable in a way that it to a layman appear to have a much wider reach than what it would appear to someone familiar with case law.

The removed links were most likely to the sections in the document. The leak is now confirmed from so many sources that at least one of them would have mentioned that, by the way the links mentioned lead to some text not included, unless you postulate a widespread conspiracy.

Moreover, if this is actually the case, this would be an example of gross misrepresentation as it would either require the receiver to press the links or assess and recognize the purported legalese as obviously non legalise to understand that the provided text was indeed not the real legal language. I stand as exibit 1 that the text is convincing enough to a layman that even with its fakeness argued by a (presumed) legal expert, I still believe it to be the actual intended legal text.

This is from the agreement near the top:

"The actual license is available through the hyperlinks below, and if you’re comfortable with legalese (or somehow actually enjoy reading legalese) feel free to jump ahead to those links."

"The preceding material is not part of the OGL 1.1. To access the subdivision of OGL 1.1 that applies to your use of SRD content, click below: OGL 1.1: Non-Commercial OGL 1.1: Commercial OGL 1.1: Non-Commercial"

Then then get more text with clearly marked COMMENTS section. The part they explain is the "We’ve included explanations and examples alongside the legal language to help make the OGL easier to understand and comply with."

What do you mean sources would have mentioned it - leakers mention all the time the agreement, but this is the only source that actually provided a PDF copy of it, and we don't have THEIR comment on it at all. Nobody I know of has said "Yes this PDF is the entire license". Not once that I've seen. Have you seen that? There is no conspiracy - I don't even think anyone has been handed this particular document exactly and asked if this is a commentary that came with the license or the license text itself. I do know of one source that said it's the commentary which came with links to the actual licenses however.

Of course the receiver needs to press the links. There isn't even a set of signature lines at the end! You literally cannot agree to this agreement, so far, from the text we have in that PDF.

I am not saying this is fake - this is not fake at all. I am saying this isn't the full license text but is instead a layman's document included with the licenses in some fashion.

 

[S'mon]

I really do think that this leaked document was presented as "this is the OGL 1.1" to the 3PPs.

I understand why the US contract lawyers here think "This can't possibly be intended to be the real contract!". I'm sure their law firms would do a much better job. But I'm pretty certain that the 3PPs under NDA were given this and told it was the offer. I really don't think there is some other, "True OGL 1.1" that was presented to them but has not been leaked.

Edit: Now this purported OGL 1.1 may never have been intended to see the light of day, and never expected that anyone would actually agree to it. It may only exist to help persuade the 3PPs under NDAs to agree to other, better, licensing agreements. I'm not sure of the legality of this, it's certainly not good faith dealing IMO. But WoTC's plan might be to say "Oh, we WERE genuinely going to use this, but following feedback we've changed our mind. You 3PPs are still bound to your bespoke agreements, though!"