Hi,
Comments and questions. Not as a lawyer ... just doing my best to parse through the statements. I'm finding the license text to be rather irksome. The text seems, to me, to be very "muddy".
Really, a license that strives to be clear and concise should be ... clear and concise. Reliance on (what seems to me) excessive commentary is an indication that the text is neither clear nor concise.
TomB
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.
iii. Your Content- These are the characters, classes, settings, spells, items, new rules, and other creations that You have
crafted. They are Your original contributions to the works that You want to sell. This license permits You to combine
Your content with the Licensed Content and commercially distribute the resulting works.
-- Does "Your Content" include what was previously considered product identity?
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.
-- Does the "only applies ... as printed media and static electronic files" interact with the right to "use that content for any purpose" which is granted?
-- How restrictive is "static" when applied to electronic files? For example, is a layered map allowed? Enabling / disabling layers is a dynamic content adjustment. That seems to not be allowed.
B. You may not transfer Your rights and duties under this agreement under any circumstance or for any reason. This
license is not sub-licensable.
-- The license which must be offered by adopters of the OGL 1.1 are not sub-licenses of the OGL 1.1?
-- I'm getting into a muddle when I consider the relationship of the primary licenses with secondary linceses, and how these interact. I'm getting a feeling that there is an attempt to break the previous viral implications of the licenses, and there is too much borrowed language, leading to a muddle.
I. You will not do anything that could harm Our reputation, that of Dungeons & Dragons, or the reputation of the
Licensed Content or Unlicensed Content. For purposes of clarity, this provision does not apply to criticism of Wizards of
the Coast, Dungeons & Dragons, or the Licensed Content or Unlicensed Content that does not independently violate
these provisions.
-- I'm failing to parse the "does not apply ... that does not independently" statement. The provision only (potentially) applies to criticism which independently violates the provision?
J. You will not attempt to circumvent or go around this agreement in any way.
-- This seems entirely unecessary. Aren't contracts made under an assumption of "good faith" which obviates such a statement?
VIII. TERMINATION. This agreement may be modified or terminated.
A. Modification: 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. We can modify or terminate this agreement for any reason
whatsoever, provided We give thirty days’ notice. We will provide notice of any such changes by posting the revisions on
Our website and by making public announcements of the changes through Our social media channels.
i. We may terminate the agreement immediately if:
a. You infringe upon or misuse any of Our intellectual property, violate any law in relation to Your activities under this
agreement, or if We determine in Our sole discretion that You have violated Section VIII.G or VIII.H. To be clear, We have
the sole right to decide what conduct violates Section VIII.G or Section VIII.H
and You covenant and agree that You will not contest any such determination via any suit or other legal action. To the
extent necessary and allowed by law, You waive any duty of good faith and fair dealing We would otherwise have in
making any such determination.
-- I thought that any restriction on one's right to enter into legal actions were very limited. That is, one can't give up one's right to legal actions, except in very narrow ways. My understanding is that the court is loath to be told what it can or cannot do.
c. You bring an action challenging Our ownership of the Licensed Content, Unlicensed Content, or any patent or
trademark owned by Wizards of the Coast.
-- This seems to practically limit any contestation of Wizards appropriating content created by an adaptor of this license, but which is wholly independent. This seems to entangle all other content created by the licensee. (If you have content which uses the OGL, and if you completely independently write a book which has nothing to do with licensed content, and WotC infringes on that and places it as Unlicensed Content, this statement seems to preclude suing Wizards in regards to the appropriated content.)
IX. INDEMNITY. If You get in legal trouble, or get Us in legal trouble, here’s what will
happen:
A. If We are on the receiving end of any legal claims, fees, expenses, or penalties related to Your Licensed Works, You’re
responsible for paying all Our costs, including attorney’s fees, costs of court, and any judgments or settlements.
B. If a claim is raised against You in connection with a Licensed Work, and You aren’t defending such a claim to Our
satisfaction, We have the right, but not the obligation, to take over the defense of that claim against You. If We do so,
You will reimburse Us for Our costs and expenses related to that defense.
C. We may, at Our discretion, seek to intervene in a case brought against You in order to join in the defense of the
claims, while leaving You and Your counsel in charge of Your own defense. If We do so, We will defend at Our own
expense and cost. As for Our IP, that’s Ours to defend – You don’t have any obligation to defend Dungeons & Dragons IP
Yourself, and in fact wouldn’t have standing (the legal right) to do so.
-- Would this apply to a legal claim initiated by the licensee? Totally bizarre, but seemingly technically falling under these statements.
X. OTHER PRODUCTS. Sometimes, great minds think alike. We can’t and won’t cancel products out of fear that they’d be
seen as “similar to” Licensed Works. Therefore:
A. You agree that nothing prohibits Us from developing, distributing, selling, or promoting something that is
substantially similar to a Licensed Work.
B. You own the new and original content You create. You agree to give Us a nonexclusive, perpetual, irrevocable,
worldwide, sub-licensable, royalty-free license to use that content for any purpose.
-- See above, "only applies ... as printed media".
I. Review by Counsel. You agree that You have reviewed this agreement carefully and have had ample opportunity to
obtain advice as to the meaning of the terms and agreements contained herein from such advisors, including attorneys,
as You deemed appropriate or necessary.
-- This is bizarre, and seems totally unnecessary. Isn't a review a necessity of any contract? That is, a contract relies on all parties having a clear understanding of the contract terms. This statement not-withstanding, what matters is the actual review.
-- Another bizarreness: If there were a time limit imposed on accepting the licence (say, 10 days), that might be considered less than ample. Then adoption of the license would be prevented by the imposed time limit.
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.
B. You may not transfer Your rights and duties under this agreement under any circumstance or for any reason. This
license is not sub-licensable.
-- How does this impact the transfer or sale of assets which have been distributed using this agreement? The license does not seem to survive such a transfer. This seems to complicate the sale or transfer of licensed content: Seemingly, the licensed content must be redistributed with a new license as adopted by the new owner of the assets.
b. If Your Licensed Work is crowdfunded on Kickstarter, Our preferred crowdfunding platform, You will only pay a 20%
royalty on Qualifying Revenue.
-- This selection of a preferred platform seems to be anti-competitive.
B. Entire Agreement and Disclaimer of Reliance. This agreement governs Your use of the Licensed Content and unless
otherwise stated in this agreement; any prior agreements between Us and You are no longer in force. This agreement
consists only of the terms expressly included herein, and not any matter not expressly included herein. For purposes of
clarity, the introduction preceding the agreement and the comments and explanations accessible through links within
the body of this agreement are not a part of this agreement and have no legal force or effect. In accepting this
agreement, You represent and warrant to Us that You have relied only on the terms of the agreement and the advice of
Your own counsel, if any; You have not relied on anything that is not expressly a part of this agreement.
-- Then, what is the point of the commentary, or of any FAQ or additional comments which may be provided by Wizards? I would expect that any official statements made by Wizards could be taken as an accurate and legally relevant expression of Wizards intent and understanding of the license. That is, Wizards can't provide comments that they don't mean, irrespective of the license saying "no, we don't really necessarily mean any of that". It would seem that they can't have it both ways -- providing commentary and other official statements -- while not being bound in some way to those statements.
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