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

[pemerton]

Who cares? It's a contract -- motive is irrelevant; cause is irrelevant, termination is irrelevant when it comes to the subs. It's not about Todd -- it's about the subs.

I think the point of my post may have been lost.

We have no difference of opinion re sub-contractors. My post was replying to an argument that took as a premise that either (i) the OGL is not a contract, or (ii) is a contract which for some reason is terminable at will by WotC.

Any argument that I can see which protects the sub-licensees in the OGL case from at-will termination - basically, arguments from the lack of a power enjoyed by WotC to terminate the contract (whether based on the terms in themselves, or the terms interpreted in light of performance and reliance) - seem to me to extend to the direct licensee.

And flipping it around, I think it is largely pointless to try and construct arguments that, even if WotC can repudiate at will against direct licensees, sub-licensees are protected from that possibility. Which is what was being suggested in the post I was replying to.

 

[Enrahim2]

To me, you seem to be making this more complicated than it is.

Edited - misread your post.

How would you propose getting hobbyists to create works, using 1.0a OGC, that you have monopolistic vtt rights to that is less complicated than making a new ogl?

Edit2: slightly more clear syntax

 

[S'mon]

Just a heads up that I've been in contact with a close friend with a major RPG kickstarter project that was planned to be released under the OGL, and is now on hold. It looks like the plan now is to release a non-OGL version not making use of any SRD material, and I've promised to help with that, and with maybe doing some monster & NPC stats for non-D&D based systems. Given that it's also a busy time of year at work, I may not be able to keep up with this thread.

 

[jgbrowning]

Just a heads up that I've been in contact with a close friend with a major RPG kickstarter project that was planned to be released under the OGL, and is now on hold. It looks like the plan now is to release a non-OGL version not making use of any SRD material, and I've promised to help with that, and with maybe doing some monster & NPC stats for non-D&D based systems. Given that it's also a busy time of year at work, I may not be able to keep up with this thread.

Thanks for all of your commentary. It's been educational, in that "you are not my client, this is not legal advice" way...

joe b.

 

[robconley]

Except that the GPL v2 WAS ruled on that the intent of the license was to be irrevocable. Irrevocable was added to later licenses so that it couldn't be reliticated.

To stress, I think it would be great if an OGL 1.0b was added irrevocable. Also if GPL v2 was ruled on and held irrevocable then by the same logic the OGL which took it as one it's models will also be ruled irrevocable.

Also I think would help folks if you cited the case where that occurred. Would that be SCO v. IBM?

 

[AbdulAlhazred]

I think this is what you get upside down. Section 9 is asymmeticly stated, but not in terms of "future" and "past", but rather in terms of "any authorized" and plain "any". Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), it could still be considered a version of this lisence per section 9. Hence anyone can distribute any 1.0a content as long as they use an authorized lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.

What I think is the problem with all these notions that WotC can 'de-authorize' prior versions of the license vis-a-vis anything once licensed under those prior versions, or withdraw things from such licensure in such a way as to immediately forbid existing uses has a HUGE problem, as it makes the 1.0a license into a joke. The only POINT of such a license was 'reliance', without which its essentially valueless (IE WotC just waits until you do anything substantive under it and then threatens you with revocation). This would also, to an extent, be an issue with other Contributors, as they too would gain the 'stop licensing my stuff as of today' power (though not the de-authorization of the license itself power).

I can certainly see the point of view that WotC can say "no, we are now, from today forward, offering our material only under this 1.1 successor OGL license version" and particularly to say "all our NEW stuff is not, and never was, licensed under 1.0a or 1.0." I mean, it is their stuff! Presumably 1.1 then doesn't say "or any other version" and maybe says "or later version" instead (or maybe not). That would remove SOME of the ambiguity about whether you can just choose an old license. I think the 'no longer an authorized license' wording is trying to, AT LEAST, reinforce that point.

WotC REALLY REALLY needs to clarify what its stance is with respect to existing OGC and existing licensees, and existing OGC and anyone who decides to enter into a 1.0a license and use that existing OGC after 1.1 is released. I mean, its hard to imagine they do not mean to stop allowing new licensees, but MAYBE barely possible they only mean to stop new 1.0a licensing of new material. I doubt it, because they could have just issued a totally new license without any mention of OGL in it at all in that case.

 

[robconley]

This is an implication that you are drawing. Nowhere does the OGL v 1.0/1.0a expressly state that breach is the only means of termination. My post #594 says more about this.

So what is the point of having an explicit termination clause if the legal landscape insists on drawing in all these implicit understandings that can only be removed by magic words introduced years later?

I apologize for not presenting a reasoned fact-based argument here. But at some point, folks have to step back and say "What is this all for?" "Who is being protected here?"

The cases that were cited so far seem pretty reasonable to me like the UK one involving termination clauses and a perpetual clause.

But..

• Where the case that upheld a licensor's right to terminate a perpetual license outside of the explicit termination clause?
• Where clause states that there is only a single way for the license to be terminated
• Where the clause also goes out of it ways to make sure that the sublicenses are not impacted by the issue with this one licensee.
• Where there documentation from multiple sources (websites faq, listserv, press releases) going back decades shows that the licensor considered the license irrevocable. That these have been available for 20 years.

I get you cited a lot of things to support individual points. but where is the case that evenly remotely approaches the situation outlined above? The closest I found was SCO v. IBM and SCO's case was partially wrecked by the fact they distributed the Linux operating system themselves which at the time (and still is) under the GPL v2 which gives a perpetual license grant but doesn't say it is irrevocable.

Sorry to be so testy about this but this thread keeps going round and round on the point of whether Wizards can revoke the OGL 1.0a or not. Especially for license grants made for open content released in the past.

Finally this is not for you @pemorton but for all the readers. Are the damn ogl listservs archived anywhere? I feel this exact debate was hashed out back in the early 2000s?

 

[Steel_Wind]

I don't accept the suggestion that what was being offered in the OGL 1.0a was that it was ever revocable, once relied upon - as against those who relied upon it.

I don't agree with the view of a civil rights attorney, no matter the law school she attended, on that topic. This isn't about freedom of expression or theoretical IP copyright in the main work -- this is about money and commerce, and what value exists and was poured into the licensed work in reliance upon the OGL 1.0a. Having done so, and having reasonably relied upon it -- what is the true construction of that contract?

Let's move away from the theoretical (and let's be honest - theory is only an analytical tool - it truly doesn't matter a tinker's damn) and move to the real and the practical -- where the law actually matters and is actually applied.

Paizo Inc. has relied upon the OGL 1.0a to construct the whole of its multi-million dollar business and has done so for 15 years, across the globe and in multiple languages and jurisdictions.

It didn't just do so by reprinting the SRD 3.5 released under the OGL 1.0a. It did that and more. It changed the rules, it added to them to the most massive degree in a single RPG rule-system ever, and it produced over 35,000 pages of work premised upon it, over a course of 15 years. That investment was in the tens of millions of dollars.

Is it your position now that WotC can declare the OGL 1.0a as "no longer authorized" and thereby undo all of that work that Paizo put into that business over the course of that time? If correct, if it is revocable at will merely by a statement that it is no longer authorized, is it your conclusion that Paizo can no longer publish Pathfinder 1 or 2 (to be clear - PF1 is still in print to this day) as a result of the "de-authorization" of the OGL 1.0a? If not, why not?

That is certainly the key contention in all of this, if the revocable at will theory of the OGL 1.0a is accepted.

And lets not play games about this: the fact situation that lead to Pathfinder 1 is an EXTREME fact situation, so extreme most would roll their eyes at it as an absurd premise if they read it on a law school final exam. Yet, that actually happened.

I do not believe that there is a reasonable chance that a court will accept the interpretation of the OGL 1.0a that it was revocable at will. WotC held out to others at all times that the OGL 1.0a was irrevocable. It maintained that interpretation of its own license contract for more than two decades. It maintained that interpretation -- and held out that interpretation to others in order to induce them to accept it -- during the whole of that course of time.

Indeed, it maintained that interpretation of the OGL 1.0a under the most EXTREME of adverse market conditions and weaponization of the license against their own core business when Paizo created Pathfinder 1 to directly compete with WotC and chased D&D out of the marketplace. Yet even then, under that most extreme example of actual commercial use in the marketplace -- WotC maintained the OGL 1.0a was irrevocable, even as it was being used against them to drive it out of the seat as market leader.

Yet on Jan 13, 2023, WotC will merely "unauthorize" the OGL 1.0a by way of press release and that will be that? Paizo will no longer be able to publish PF1 -- or PF2 -- that includes any aspects of the SRD, or what was later derived and built upon it?

WotC will persuade a court that it could have simply "unauthorized" the OGL 1.0a in 2008 and through 2012, as 4th Ed was removed from the marketplace as it fought -- and lost -- a battle with a competitor. It didn't do this not because the OGL 1.0a was always understood to be irrevocable, but simply because it chose not to?

That is utter nonsense. I don't care if Kit Walsh got a law degree from Harvard -- she is (most likely) either uninformed of the extreme historical commercial facts of how the parties acted under the OGL 1.0a from 2008 through 2014, or she's a civil rights attorney who is clearly out of her depth - and not a commercial litigator - whose opinion is not worth one red cent.

 

[Langy]

Edited - misread your post.

How would you propose getting hobbyists to create works, using 1.0a OGC, that you have monopolistic vtt rights to that is less complicated than making a new ogl?

Edit2: slightly more clear syntax

They clearly don't have the ability or authority to do that. The hobbyists would need to create their works under a different license for WOTC to have monopolistic VTT rights to it.

 

[Enrahim2]

They clearly don't have the ability or authority to do that. The hobbyists would need to create their works under a different license for WOTC to have monopolistic VTT rights to it.

It is not so clear, as I still fail to see how the leaked OGL-1.1 do not acheive that if using my interpretation of "no longer authorized" (That is that the only plain language effect of it is that you cannot use 1.1 OGC in 1.0a publications)