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

[jgbrowning]

This makes no sense to me. If WotC has the power to unilaterally end their licence to Matt, they have the same right against you.

To put it another way: I can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable. Whatever basis - in this hypothetical - that WotC are relying on vis-a-vis Matt would apply equally to you (as per the OP, it would be some sort of claim to rescind the agreements on which WotC had licensed its IP to OGL parties).

Question: if you "can't see any pathway to an argument that says that Matt can lose the right from WotC at their whim and yet his sub-licensing to you is irrevocable" doesn't that mean that every license is a license and that there are no sub-licenses?

And yet sub-licenses are explicitly discussed in the OGL. Were all licenses between just "You and Wotc", what exactly is the sub-license that falls under "sublicenses shall survive the termination of this License" in the OGL?

Thoughts?

joe b.

 

[Jerik]

Okay, I just finished reading this thread (phew!), and there's... a lot here to digest. But there's a bit in one post a ways back that nobody seems to have responded to, and while it's not terribly important to the matter at hand, I did want to respond in case anyone found it interesting:

The THEORY was that WotC was also relying, but I know of no instance where they have ever distributed anything they didn't author themselves under OGL terms. They benefited from the good will and much enlarged D&D community that the license created, maybe, but in effect they seem to, at least now think, the license is simply a form of control they can exercise over the community.

WotC did, in fact, distribute things they didn't author themselves under OGL terms! Not much, but a few things.

In the back of the third-edition Monster Manual II were two monsters "adopted" from Necromancer Games' The Creature Collection. One page of the MM2 was taken up by the OGL, specifically and only because of those two monsters. The book was explicit about that:

We've printed these two descriptions at the end of the book, in a special layout, to make it clear that only these two monsters are considered Open Game Content. The rest of the material in this book is still closed content, and can't be used in other products.

Later in the same sidebar that included those sentences, the following text appeared:

Over the long term we hope to use more and more material created by the independent pool of d20 System designers and publishers, just as they are using the Open Content material created by Wizards of the Coast. Instead of reinventing the wheel, we're all able to partake of the shared design resources that operate under the Open Gaming License.

And they did it again the next year in Unearthed Arcana! Unearthed Arcana was released under the Open Game License—though of course it did reserve some items as product identity (the usual: proper names, artwork, trade dress, certain monsters)—, and the Copyright Notice in its Open Game License referenced Swords of Our Fathers by The Game Mechanics and Mutants & Masterminds by Green Ronin Publishing.

As far as I recall, though, that was the last time WotC included any third-party OGL material in its books—it's possible there are a few more instances I'm forgetting, but it certainly wasn't something they kept doing for long. I don't see any reason to doubt that they meant at the time what they wrote in the Monster Manual II, though, about hoping to use more and more OGL material. The MM2 and Unearthed Arcana were both very early in the 3E product cycle, only a few years after the introduction of the OGL, and my guess—and this is of course only speculation—is that the WotC staff really did at first fully intend to make more use of the OGL, and have more of a give-and-take with third-party publishers, but that even back then Hasbro decided it didn't like the idea and put a stop to it.

 

[jgbrowning]

And they did it again the next year in Unearthed Arcana! Unearthed Arcana was released under the Open Game License—though of course it did reserve some items as product identity (the usual: proper names, artwork, trade dress, certain monsters)—, and the Copyright Notice in its Open Game License referenced Swords of Our Fathers by The Game Mechanics and Mutants & Masterminds by Green Ronin Publishing.

Edited as my memory served wrong.

joe b.

 

[S'mon]

Alexander Macris has posted an article on Substack raising several interesting legal points about the wording of the 1.1 licence:

The Perfidious Treachery of WOTC

Does OGL 1.1 Mean the End of Open Gaming?

arbiterofworlds.substack.com

Notably:

Read the first sentence: "you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023.” Now read the last sentence: “If you want to publish SRD-based content on or after January 13, 2023, your only option is to agree.”

Creating content and publishing content are not the same thing. The way this statement is phrased, WOTC has left it very unclear whether game studios can continue to publish works made under OGL 1.0. The first sentence suggests “yes, you can,” but the last sentence says “no, you can’t.” Until WOTC clarifies its intent, we can’t know for sure. Given how egregious the rest of the terms are, though, I’m not inclined to give them the benefit of the doubt. WOTC could be taking the position that no one is able to publish even existing OGL 1.0 material after the 13th.

 

[Jerik]

And if I'm remembering properly, didn't WotC botch their use of Open Game Content by not including a copy of the OGL in that book and putting all their sources in the section 15? Which, effectively, means they used copyrighted material illegally: just because something is OGC doesn't mean you can use it without also using the OGL.

Nope. The full OGL, with the sources in Section 15, is right there on page 222. I'm looking at it right now. And Page 2 includes the requisite specification of Product Identity.

The only thing I'm seeing that might be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission. Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.

(It's also entirely possible there's a different book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)

 

[Enrahim2]

And if I'm remembering properly, didn't WotC botch their use of Open Game Content by not including a copy of the OGL in that book and putting all their sources in the section 15? Which, effectively, means they used copyrighted material illegally: just because something is OGC doesn't mean you can use it without also using the OGL.

joe b.

(IANAL) Well, with the new ogl, they seem to make that simpler for themselves, if we assume 1.0a survives. As far as I can see the commercial version do not as far as I can see require a copy of the license to be included (that provision is in the non commercial section V C) so given 1.0a section 9, wizards should be able to publish any OGC under the terms of 1.1 commercial, without any copy of the OGL or other atribution.. (and after having made that static publication, be free to do whatever they want with it according to XII B as long as it is modified enough to be considered "Your creation")

 

[jgbrowning]

Nope. The full OGL, with the sources in Section 15, is right there on page 222. I'm looking at it right now. And Page 2 includes the requisite specification of Product Identity.

The only thing I'm seeing that might be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission. Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.

(It's also entirely possible there's a different book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)

Thanks for correcting me! I've edited my initial post since my memory served me wrong.

joe b.

 

[Xyxox]

Nope. The full OGL, with the sources in Section 15, is right there on page 222. I'm looking at it right now. And Page 2 includes the requisite specification of Product Identity.

The only thing I'm seeing that might be a violation of the OGL is that the title page lists the resources used for this product, including the third-party books credited in Section 15 of the OGL—and if those titles are product identity, which they presumably are, then mentioning them outside Section 15 seems to be forbidden by Section 7 of the OGL unless they had permission from the owners, though for all I know they did have permission. Aside from that, I'm not finding anything here that seems to be wrong with the way they used Open Game Content, though there may be something subtle I'm missing.

(It's also entirely possible there's a different book in which WotC used a third oarty's Open Game Content and forgot to include the OGL, but if so I'm not aware of it.)

It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.

 

[jgbrowning]

It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.

That may have happened, but I do not know. I have no idea why I thought what I thought, but it looks like what I thought was wrong.

joe b.

 

[Jerik]

It's possible they messed up in a first printing but corrected it in later printings. I dunno, not familiar with the product.

I thought of that, but I checked and the copy I'm looking at is the first printing. I guess it's not entirely impossible that a few books were printed without the OGL and they caught their mistake early enough they still considered the rest of the run part of the first printing, but that seems unlikely.