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

[Enrahim2]

My gut instinct from everything I've seen is that they want to kill it, but they may not actually try to kill it. Right now they are in a Schrodinger's Cat state of indeterminacy. When Gizmodo asked them specifically, they did not answer.

Yes. But I think when they wrote this document they had similar thinking as me, and didn't really think that it could be construed as an attempt at actually revoking 1.0a, as they thought that was well established and obvious from a legal standpoint would be impossible. First when this blew out with the perfect Gizmodo coctail of cherry picking, and looking at the reaction that caused they were even beginning to think that this indeed not only were an extremely potent chilling bomb, but even might have legal legs to stand on thanks to the dozens of lawyers they got to investigate into this narrow unthinkable possiblility for free for them.

Of course they need time to think this trough! This could be their opportunity of a lifetime. If they had right away gotten out and clarified their initial position, they would potentially never be able to proceed down this new and unexpected avenue again. Not to mention the unexpected leverage they suddenly got over the entire 1.0a community.

We might be heading towards 1.0a being effectively revoked. But if wizards actually decide to take that path, I would blame Gizmodo more than them.

 

[Jerik]

The OGL on page 222 of my copy of Monster Manual 2 has only the OGL itself in the Section 15. It doesn't include Monster Manual 2 or Creature Collection (but when I look at Creature Collection their Section 15 has only the OGL -- there's a note on the title page with the copyright notice to put in Section 15 if content is used, but they did not put it in their own Section 15).

I was talking about Unearthed Arcana, not the Monster Manual II. (Turns out both books happen to have the OGL on page 222. Huh.) The Unearthed Arcana OGL does include the proper copyright notices in Section 15. You're right, though, that the MM2 OGL doesn't—I hadn't checked that one. Maybe that's the botched use of Open Game Content jgbrowning was thinking of.

 

[Matt Thomason]

As for the other statement regarding "But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial.". This was not part of the first leak I saw, but it was in the Gizmodo leak. When paired with the "no longer authorized" excerpt, that make it seem like these two might be related, and it appear that coupeling very quickly make people think that they want to get rid of 1.0a, as that is the only way one can seem to lead to the other, and the brain is amazing at finding potential causality relations. However what the Gizmodo leak did not clarify was that this was not part of the legal text, but rather a part of an explaining FAQ; and when looking closer at the full document it appear much more likely it simply is a way of making the following formulation from the legalese more prominent: "by making commercial use of Licensed Content, You agree to the terms of this agreement". If paired like this, I guess the connection seem at least quite plausible? But this formulation was not present in any leaks before the full leak, and hence the only "tool" the mind had to try to make sense of the faq "claim" was the other formulations in the leak, of witch the "authorized" was a clear candidate.

There's a very important distinction to be made here:

We have three different versions of OGL 1.1 to consider

• What does Wizards say in their comments outside of 1.1
• What does 1.1 actually say
• What can 1.1 actually do

Then there's two more things to consider

• What is Wizards saying without reference to 1.1
• What can Wizards actually do outside of 1.1

I think the majority of us maintain that 1.1 cannot deauthorize 1.0 simply by stating that they're doing that, unless we actually agree to 1.1, because Wizards can't (currently, unless we actually agree to 1.1 and grant them that future power) bind us to any agreement without our consent.

That's aside from the question of whether Wizards can deauthorize 1.0 through other means, such as directly contacting a 3PP and informing them of that ("Dear 3PP, this is to inform you that as of today the Open Game License 1.0a is no longer authorized for use with any material WotC have published previously under that license") , but doing it via an internet announcement (something that could be done in future with 1.1 because 1.1 actually requires you to check their site for announcements) or in a license you have not accepted doesn't appear to hold any legal weight.

EDIT: I forgot to add a fourth option, which is
- What do Wizards want us to think they can do, while knowing they actually cannot.

 

[Cadence]

(IANAL!) The full arguments for the alternative interpretations are earlier this thread. However there are no analysis of how in particular the most publicized leak (Gizmodo) was extremely misleading: "This agreement is, along with the OGL: Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement." cursive was not present in the Gizmodo leak. I first saw a leak with the full paragraph, hence immediately associating this statement with the update statement in 1.0a section 9. Further already on the D&D beyond piece before that people was wondering what would prevent people to simply publish 1.1 content under 1.0a, and I had that conversation fresh in memory. Hence I immediately recognized this as an attempt to attempt that. I am quite convinced that the entire intent of this formulation was to have a legal backing of saying no to anyone trying to publish oneD&D 1.1 content under a 1.0a license.

As for the other statement regarding "But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial.". This was not part of the first leak I saw, but it was in the Gizmodo leak. When paired with the "no longer authorized" excerpt, that make it seem like these two might be related, and it appear that coupeling very quickly make people think that they want to get rid of 1.0a, as that is the only way one can seem to lead to the other, and the brain is amazing at finding potential causality relations. However what the Gizmodo leak did not clarify was that this was not part of the legal text, but rather a part of an explaining FAQ; and when looking closer at the full document it appear much more likely it simply is a way of making the following formulation from the legalese more prominent: "by making commercial use of Licensed Content, You agree to the terms of this agreement". If paired like this, I guess the connection seem at least quite plausible? But this formulation was not present in any leaks before the full leak, and hence the only "tool" the mind had to try to make sense of the faq "claim" was the other formulations in the leak, of witch the "authorized" was a clear candidate.

In other words those two really viral formulations leaked out of context by Gizmodo make it seem pretty "obvious" that wizards want to get rid of 1.0a. If you have read the full document without being presented the potential of 1.0a being revoked, and with the weird use of authorized 1.0a in section 9 fresh in mind I really think quite few would have reached the conclusion that this document provide any evidence wizards want to get rid of 1.0a as a valid agreement framework. Rather there are several evidences they want to keep and build on the existing 1.0a material - most obviously the fact that they insist on calling this an "update" to 1.0a (which is what allow for the use of OGC contributed by third parties), but also as recently discovered the at first glance very weird long definition of "Unlicensed Content", that turn out to basically include exactly everything not distributable according to 1.0a, with the exception of PI in the 5.1 SRD.

Don't get me wrong. There are definitely big bad things about this lisence, like how wizard for all practical purposes try to steal and seal all 1.0a OGC content so that it can only be used with 6ed on their platform (and they can sell any OGC there anyone have created without any attribution). And the license seem to be crafted specifically for making sure noone but them is going to gain any real value from the arrangement. But saying that they try to Terminate/Revoke/Nullify 1.0a with this I believe is not the case.

I have really tried the last week to raise awareness around these issues I am convinced being there, but it is really hard when everyone seem to believe that wizards want to kill 1.0a, in which case my concerns would indeed be unfounded.

I find it hard to believe that most people familiar with 1.0a, upon reading the full:

"What if I don’t like these terms and don’t agree to the OGL: Commercial? That’s fine – it just means that you cannot earn income from any SRD-based D&D content you create on or after January 13, 2023, and you will need to either operate under the new OGL: NonCommercial or strike a custom direct deal with Wizards of the Coast for your project. But if you want to publish SRD-based content on or after January 13, 2023 and commercialize it, your only option is to agree to the OGL: Commercial"

wouldn't immediately jump to searching for it and (after swtiching to just 1.0 find:

"This agreement is, along with the OGL: Commercial, an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement."

and end up with the thoughts in the Gizmodo article. And I'm guessing that the reason it was leaked to the places that got it is because someone with access to it jumped to exactly the conclusion. If I thought there were many people conversant with 1.0a who hadn't been online for the past two weeks then we could make an experiment of it.

And, I guess "You have not relied on anything that is not expressly a part of this agreement." does say you shouldn't trust their commentary on it either

We might be heading towards 1.0a being effectively revoked. But if wizards actually decide to take that path, I would blame Gizmodo more than them.

This strikes me as an absolutely bizarre train of thought. But again, we don't have mind wipers to go see what we would have thought if presented things in other orders.

 

[Enrahim2]

There's a very important distinction to be made here:

I think there is also another sett of extremely important distinctions here:

• What do wizard say
• What did wizard intend to say
• What will wizards do with what they said

In consumer software there is very standard that licenses of use are extremely one sided. This as opposed to business-level software which tend to give a more balanced set of rights. Nevertheless there are extremely rare with cases where the software companies actually abuse the excessive rights they grant themselves via these licenses. The basic way this can work is that there is a built up overall trust, along with the notion that if the license granter oversteps the consumers can punish them more than they are likely to punish them.

The OGL version we see now seem to me to be closely following the consumer software license sensibilities. There are however a couple of problems: One is that the software ecosystem has had years of building trust, gradually making the terms more and more draconic. Some times certain companies seemingly overstep the normal acceptance like blizzard with the Warcraft III update, but after a while the situation settles down, and trust is being buildt as the expected potential abuse doesn't happen after all.
In the TTRPG space we have no culture for this kind of one sided licenses, and the kind of goodwill and trust do not exist between the relevant parties. Wizard hasn't proven themselves sufficiently. Hence we envision them doing obviously abusive things with the powers we invest them, like ad hock changing the license to kick out a single individual. This is fully possible with software licenses. People are banned all the time - potentially losing hundreds of hours and quite a bit of monetary investments as well. Still there is no big outcry. There is still a basic trust that is strong enough that people are willing to keep doing that investment.

On the other hand there are also larger stakes at play here than in the typical consumer license case. In particular many of those targeted by the commercial agreement are operations of a size where business grade license philosophy (but not the enterprise grade of custom agreement) would make a lot more sense. Those just can't afford to take the risks of signing away their rights as causally as a happy non-commercial hobbyist signing yet another customer license with no rights attached.

So wizard say "is no longer an authorized version"
What they intended to say: "You cannot use oneDND and other 1.1 stuff under 1.0a"
What will wizards do with what they said: This is where their real moral test is. They by now realize that formulation invests in them a lot more power than they likely intended. Are they going to go down the trust building path of sticking to their original itentions, in a hope that it will get them closer to the day the people they want to take the deal (talented hobbyists doing free for them) trust their itentions enough to go for it. Or are they going to fall for the temptation to do the thing few software companies have dared - exploit the situation in the now, and put the put the plans requiring trust further into the future? I guess we soon will see.

 

[Enrahim2]

This strikes me as an absolutely bizarre train of thought. But again, we don't have mind wipers to go see what we would have thought if presented things in other orders.

(IANAL) Ok, I accept that I am horrible at assessing what other people might have done. I find your take on what might have happened also very plausible. Indeed, that we haven't heard any subtle hints that those actually getting the full draft first thinks differently, but rather seem to be in panic mode as well speaks to that indeed getting the "only way" first, followed by "not authorized" is a general potent mind trap. There might not have been many outside me and people at wizards that got the order "how to prevent 1.1->1.0a?" -> "section 9, keyword authorized create one way path!" -> "faq explaining certain parts of the legalese.", while possibly everyone at wizards working on this might have been exposed to this exact order, hence missing this mind trap effect when reading the document in the order they laid out.
So I give in. Wizards would be primarily to blame both for their incompetence and lack of moral if they decide to hurt 1.0a after this. I owe Gizmodo an apology for my last two posts!

 

[Cadence]

(IANAL) Ok, I accept that I am horrible at assessing what other people might have done. I find your take on what might have happened also very plausible. Indeed, that we haven't heard any subtle hints that those actually getting the full draft first thinks differently, but rather seem to be in panic mode as well speaks to that indeed getting the "only way" first, followed by "not authorized" is a general potent mind trap. There might not have been many outside me and people at wizards that got the order "how to prevent 1.1->1.0a?" -> "section 9, keyword authorized create one way path!" -> "faq explaining certain parts of the legalese.", while possibly everyone at wizards working on this might have been exposed to this exact order, hence missing this mind trap effect when reading the document in the order they laid out.
So I give in. Wizards would be primarily to blame both for their incompetence and lack of moral if they decide to hurt 1.0a after this. I owe Gizmodo an apology for my last two posts!

I mean, if I though there were people familiar with the OGL who hadn't seen any coverage yet and that we could easily find... I would certainly be interested in trying out a randomized experiment on them to see if you were right. Things I thought were even stranger in the past have turned out to be true on much larger scales!!

 

[rcade]

Not under the OGL 1.0a. Open Game Content can’t be declared Product Identity.

Reusers of open content can't do that to open content, but Hasbro originated the System Reference Document so that's a different situation.

 

[kenada]

Reusers of open content can't do that to open content, but Hasbro originated the System Reference Document so that's a different situation.

According to the OGL FAQ, not even the creator can change Open Game Content to Product Identity. I assume this follows from the definition of Product Identity, which specifically excludes Open Game Content.

17. If I identify something as Product Identity that was previously distributed as Open Game Content, does the material become Product Identity?​

​

No. Once content has been distributed as Open Game Content, it cannot become Product Identity, even if you are the original creator of the content.​

​

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(e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;​

 

[Bayushi_seikuro]

I can't help but wonder how much of this all got started by a (justifiable?) jump to conclusions. By which I mean... maybe Wizards was just putting out out tests to see 'How much would you pay to be able to claim you're 5e/One D&D compatible?' - probably to shut their bosses at Hasbro up.

I've been living in corporate America for quite some time, and I've personally been on the receiving end of some stuff. I find it interesting that, where I'm cynical in most regards, I am really hoping that this is a way Wizards is saying to Hasbro 'We're your most profitable division with the most loyal fans - don't change anything' and then they use this as evidence to people who just want to read P&L statements. Combine this uproar with the stuff going on about MtG and how quickly they're printing things and Bank of America lowering the value... Who knows.

One more comment, and I don't mean this in a political way regarding intent vs language on a document - we've still got things being debated in the American Constitution since the get-go that both sides feel they are 'reading it plainly'. Personally, I wonder also that if we will run into a situation about what 'open-source' means, and whether what applies to software also applies to non-software. I wonder how, back in the day, if HPL had made a stink and decided no other authors could use the Mythos, how that would have shook out legally. YMMV