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

[Snarf Zagyg]

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.

I'm just going to say this- your diatribe and certainty devalues your opinions.

If you are (as you imply) someone with experience in complex commercial litigation, you understand that this isn't that simple; and, to be honest, that lack of clarity (and the ability of Hasbro to likely file its first case in the jurisdiction of its choice) means that we should probably wait before making definitive statements and saying that other people are spouting nonsense.

 

[Enrahim2]

If they want 6E to not be usable by competitors, they can just release it under a different license than a version of the OGL. You can freely mix OGL 1.0a content with stuff licensed under a different license.

(IANAL) Would you? Imagine a oneD&D update of a 1.0a OGC creature. From my understanding the right you have to derive from the 1.0a OGC would be section 4 or 9 of OGC 1.0a. Both are only available to you under condition that it is released under 1.0a (assuming that no other relevant authorised version of OGL exist). From my understanding you then have to identify this derived work as OGC in order to be in compliance with the 1.0a terms.

However the creature could also be considered a derived work of the oneD&D SRD. If the lisence for using this aspect of the SRD stipulates that derived work can not be declared open content, publishing this creature would be on breach of the new "GSL".

Making a new OGL allow the OGC to escape the tight restrictions imposed by OGL-1.0a described above. This is what might enable a mechanism of deriving from the OGC. Combined with a mechanism to avoid floatback it would allow dual use like updated creatures without leaking oneD&D into the 1.0a space. I am reading the no longer authorized as an attempt of constructing such a leak back mechanism.

 

[Enrahim2]

The obligations under v1.0a cannot be met under v1.1.

(IANAL) The thing is, as far as I can see the grant under section 9 do not require you to obey any 1.0a obligations as long as you are pulishing under a different, and authorized OGL (which means it is that lisence's obligation you need to abide to). It is the section 4 grant that require acceptance and compliance of 1.0a exactly.

 

[Steel_Wind]

If they want 6E to not be usable by competitors, they can just release it under a different license than a version of the OGL. You can freely mix OGL 1.0a content with stuff licensed under a different license.

That is the essence of the practical commercial problem WotC faces with 6e; this is what this is REALLY all about.

They don't want the OGL 1.0a to apply to 6e. They most especially do not want there to be any legal basis for a competitor to offer a VTT program that can be used to play 6e.

Ordinarily, this poses no significant issue. The simple solution it to release 6e without any sort of OGL or SRD of any kind. The problem for WotC is that they while they want to change horses to 6e, they want that version of the game to still be backwards compatible with 5e. As initially premised, I have understood that the changes proposed to 6e are minor. They want this to be more like 3.0 to 3.5, or perhaps 1st to 2nd ed. 6e is not to be a true new version of the game, as 3, 4 and 5th ed each were.

The problem: 5e was published with the 5.1 SRD under the OGL 1.0a. When you maintain backward compatibility with that, you leave a door open for a competing VTT to offer a toolcompatible with your 6e game, in whole or in part.

So in the future, a VTT just continues to use the 5.1 SRD and OGL 1.0a as the basis to maintain broad compatibility with 6e. There are more than a few devils in those details, but that's the core difficulty WotC faces how to be backwards compatible in a AD&D 1st ed ---> 2nd Ed manner (almost identical, really) while shedding the 5.1 SRD.

Practically speaking, it may be quite hard to do this. It adds a dimension and complexity to all of this that the game designers and marketing people within WotC both want to be able to ignore. The designers don't want their hands tied, the marketing people don't want to go back to a blank slate, they want to squeeze more sweet, sweet milk out of this cow. (They just want to do so in a way where they can sell that milk for a lot more money.)

That's very hard to do. So WotC has decided the best solution to this problem is to get rid of the OGL 1.0a by press release that 1.0a is no longer authorized, and creation of "OGL" 1.1.

For all of the reasons mentioned above in my "But what about Paizo? post" this is a position that a court is unlikely to accept. WotC has clearly conducted itself in a manner over a course of decades in its interpretation of a contract that the 1.0a OGL is irrevocable. They used 1.0a again for 5e. That was a mistake that they are now trying to undo.

There are no mulligans here. I don't think that bird is likely to fly.

 

[bmcdaniel]

They don't want the OGL 1.0a to apply to 6e. They most especially do not want there to be any legal basis for a competitor to offer a VTT program that can be used to play 6e.

Ordinarily, this poses no significant issue. The simple solution it to release 6e without any sort of OGL or SRD of any kind. The problem for WotC is that they while they want to change horses to 6e, they want that version of the game to still be backwards compatible with 5e. As initially premised, I have understood that the changes proposed to 6e are minor. They want this to be more like 3.0 to 3.5, or perhaps 1st to 2nd ed. 6e is not to be a true new version of the game, as 3, 4 and 5th ed each were.

The problem: 5e was published with the 5.1 SRD under the OGL 1.0a. When you maintain backward compatibility with that, you leave a door open for a competing VTT to offer a toolcompatible with your 6e game, in whole or in part.

Quoted to endorse, although I think the issue is broader than VTTs. In the OSR movement, we have seen people use OGL 1.0a and "extend" the SRD to create new games that are compatible with 1e D&D, BECMI D&D, Holmes D&D, etc. If OneD&D is supposed to be broadly compatible with 5e D&D, it would be very simple to use OGL 1.0a and extend the SRD to make an open version of OneD&D.

The only way WOTC can prevent the creation of an open version of OneD&D is either to get rid of OGL 1.0a, or to make OneD&D very different than 5e D&D.

 

[Steel_Wind]

I'm just going to say this- your diatribe and certainty devalues your opinions.

If you are (as you imply) someone with experience in complex commercial litigation, you understand that this isn't that simple; and, to be honest, that lack of clarity (and the ability of Hasbro to likely file its first case in the jurisdiction of its choice) means that we should probably wait before making definitive statements and saying that other people are spouting nonsense.

The test for an injunction does not materially change, no matter the jurisdiction selected (albeit, some apply the strong prima facie case standard, others the serious question to be tried standard). The balance of the test, including the balance of convenience, remain.

This isn't about the law of a particular jurisdiction, and it isn't about IP doctrine. It's about the language of the OGL 1.0a, and the evidence. Those don't change.

I'll keep my own counsel on my "diatribe", thank-you.

 

[Greg Benage]

The test for an injunction does not materially change, no matter the jurisdiction selected (albeit, some apply the strong prima facie case standard, others the serious question to be tried standard).

Could you elaborate on this? It's a question I had after reading Kit Walsh's piece. Are there jurisdictions that would strictly (or primarily) look at whether the license states that it's "irrevocable" or not in granting an injunction?

 

[Snarf Zagyg]

The test for an injunction does not materially change, no matter the jurisdiction selected (albeit, some apply the strong prima facie case standard, others the serious question to be tried standard). The balance of the test, including the balance of convenience, remain.

This isn't about the law of a particular jurisdiction, and it isn't about IP doctrine. It's about the language of the OGL 1.0a, and the evidence. Those don't change.

I'll keep my own counsel on my "diatribe", thank-you.

What you are saying is 100% not true.

As you an experienced commercial litigator, with vast amounts of experience in the United States, you know that (setting aside the difference between mandatory and prohibitory injunctions, not to mention preliminary and permanent) the multi-part test for injunctions is different in different jurisdictions; you do not apply the same test in Minnesota that you do in Florida that you do in Hawaii that you do in South Carolina (yeah, they all have a materially different test). In most jurisdictions in the United States, the "balance of convenience" is not considered.

So yeah. Quite frankly, for anyone to say that they can confidently assert something without even knowing what law applies boggles the mind.

I don't even have words for that .... "Hey, I don't where the lawsuit is going to be, I don't know what law could possibly apply, but allow me to give you my confident analysis and rubbish other people."

Thanks, but no thanks.

 

[Enrahim2]

That's very hard to do. So WotC has decided the best solution to this problem is to get rid of the OGL 1.0a by press release that 1.0a is no longer authorized, and creation of "OGL" 1.1.

We are completely aligned until this statement. We don't know what wizards is thinking. I agree that your suggestion here might match most of the evidence, however I think my hypotesis matches more of it (weird definition of "unlisenced content" unless seen in context of 1.0a being available, the weird coice of wording for the revocation, their touted backwards compatibility that gets weakened if users cannot enjoy old third party content, the missing response to this situation, missing provissions for users to build on each others work)

I do however start accepting that this is such an obvious interpretation that wizards cannot have missed it, and published it hoping it would be read that way. It might even be that they anticipated a leak and are milking the situation now for leverage with 3PP and the publicity they get when they anounce their planned big reveal.

Speculating about others can be very hard when there are a distinct chance they are playing high stakes gambling with the masses.

 

[Snarf Zagyg]

Could you elaborate on this? It's a question I had after reading Kit Walsh's piece. Are there jurisdictions that would strictly (or primarily) look at whether the license states that it's "irrevocable" or not in granting an injunction?

This depends; the assumption (which isn't necessarily correct) is that in a lawsuit Hasbro would push for a preliminary injunction - in other words, seek to get an injunction (a prohibitory injunction) prior to a judgment on the merits.

Generally, one showing that must be made for a preliminary injunction is a likelihood of success on the merits; in other words, the movant (Hasbro) would have to shows that they are probably going to end up winning the litigation. For that to happen, a factor might be whether the contract was revoked (or "de-authorized").

But maybe not- litigation doesn't work like we want it too. They might have their winged howler monkey ... sorry, well-paid BigLaw partners go for an injunction based on a 3PP overstepping the OGL (copyright) ... and then lawfare the OGL over time. Hard to say.


ETA- to be clear, when I make statements I am discussing US law and "majority" rule.