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

[bmcdaniel]

Regarding the need for licenses to state that they are irrevocable:

The meaning of an agreement is the intention of the parties to the agreement, either as expressed in the agreement itself (the usual method) or through parole evidence of intention when there is ambiguity in the agreement. Very rarely does the meaning of an agreement depend on its use of magic words such as "irrevocable" in the text of the agreement itself. The conveyance of real property and the creation of a power of attorney do require magic words (although even in these cases, technically the absence of the magic words does not affect the interpretation of the agreement). The use of magic words can aid the interpretation of an agreement, especially to the extent that the magic words represent jargon (in the dictionary sense of technical language used by a distinct community), but is not itself dispositive.

Similarly, how one court interpreted one agreement can be helpful to a court trying to interpret a different agreement, but it not dispositive.

I've now looked at all cited caselaw in this thread and elsewhere, read the relevant sections of two leading treatises dealing with licensing agreements (Goldstein on Copyrights and Epstein on Intellectual Property) and consulted with a colleague whose field of practice is licensing. I am convinced that licensing agreements follow the ordinary principles of contractual interpretation, and it is not necessary to recite the word "irrevocable" in order to create a license that is not revocable at will.

The OGL 1.0a itself is a good example of why the intention of the parties is dispositive, not the magic word "irrevocable." If you read OGL 1.0a, it is neither irrevocable nor revocable-at-will. Instead, Section 13 of OGL 1.0a states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach." That is to say OGL 1.0a is revocable under specific conditions specified in OGL 1.0a.

It is difficult for me to understand how someone could posit that in order for OGL 1.0a to be revocable-under-specific-conditions, OGL 1.0a must recite that it is "irrevocable," when Section 13 clearly shows that OGL 1.0a was not intended to be irrevocable.
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In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

 

[Cadence]

That is utter nonsense[/I][/B]. 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.

Her bio says she use to work for a firm* where she litigated patent, trademark, and copyright cases in court. (What makes a commercial litigator?)

Looks like she is also the Nebula and Ennie award winning game designer (with Evil Hat)?


*Edit: "Wolf, Greenfield & Sacks, P.C. is among the 10 largest law firms in the country devoted exclusively to intellectual property (IP) law."

 

[The silent bard]

Hello, community. Like many of you, I am a nerd. I am also a lawyer. With all the OGL controversy, I have been seeing a lot of claims on the internet, here and elsewhere, about what the OGL is and how it interacts with third party content and copyright law. Many of these claims are, in my opinion, spurious or inaccurate. For anyone interested in the law behind this issue, I would like to clarify a few things. And remember, this is not legal advice. Legal advice is when you tell me your problems, and I tell you what to do. Here, I am just talking about the law generally.

First, the OGL is likely not irrevocable. I've seen many people saying that, for some reason, Wizards of the Coast cannot revoke earlier versions of their license; that the license, once put out, can never be taken away, and that people and companies can keep making content for 5e forever.

This is false. There is nothing about the OGL that makes it so Wizards can never revoke it. Some language, at first glance, may appear to contradict this claim. But it doesn't. For instance, the license states that WotC grants the licensee "a perpetual, worldwide, royalty-free, nonexclusive license" to use the SRD. But "perpetual," in licensing law, does not mean "irrevocable." In fact, unless the word "irrevocable" appears in the license, the license can be revoked at any time, for any reason or for no reason. Even in cases where a party has had substantial reliance on the license, the revocation is usually upheld. Here is an excellent article on the subject: The Terms “Revocable” and “Irrevocable” in License Agreements: Tips and Pitfalls | Casetext

The OGL also states that earlier versions of the license may be used. But if the next license revokes the current OGL, then that sentence is also revoked. Even though the OGL acts like a contract, WotC would not be in breach of the contract merely by revoking the OGL. Contracts do not last forever, especially open-ended ones like this.

The good news is that, because of the reliance principle, third party creators who have already created a work under the OGL likely could continue to sell that work even if the OGL were revoked. They just could not create any new works. Kobold Press's "Tome of Beasts" would not have to be removed from the market, for instance. But they might have trouble doing a new one down the line.

Second, some people claim that the OGL is actually not necessary, that all the material in the SRD is "game mechanics," and therefore cannot be copyrighted. It is true that "game mechanics" cannot be copyrighted, but what constitutes "game mechanics" is a nebulous subject, interpreted differently by different courts, and not a matter of settled law. In game mechanics cases, the courts were usually dealing with things like rolling a dice and moving a set number of spaces, like in "Sorry." I have not been able to find any games mechanics cases on RPGs.

It is likely that the SRD is a combination of "game mechanics" and original copyrightable content. The six ability scores and twelve classes are specific and complex enough that many courts probably would be uncomfortable calling them mere "game mechanics" that cannot be copyrighted. Other courts might interpret it differently.

It is all about a larger copyright concept, wherein "ideas" cannot be copyrighted, but "expressions" can. This is super complex, famously confounding even to legal scholars, and a little beside the point, so I won't go into it here. If you are interested in reading more on the subject, I recommend an article called "Games and other uncopyrightable systems," 18 Geo. Mason L. Rev. 439.

"But even if the SRD is protected by copyright, I won't violate WotC's copyrights as long as I don't print SRD word-for-word, right?"

Wrong. That brings me to my third point.

Third, not only is the SRD protected, but any derivative works of the SRD are protected. A derivative work is a work based on, or derived from, a work that has already been copyrighted. Copyright protections protect not only the original work, but also any derivative works. I cannot write an eighth Harry Potter novel and then go out and sell it. Harry Potter 8 would not be a copy--a "reproduction" in copyright parlance--because Rowling has not written Harry Potter 8. But I still could not write it myself and sell it. Why? Because Harry Potter 8 would be a derivative work.

There's a lot of nuance on what is or is not derivative. For instance, someone wrote a Harry Potter Encyclopedia, and J.K. Rowling sued, and the Encyclopedia owner won on the copyright claim, because the court held that the Encyclopedia was different enough--the Harry Potter books were novels, not encyclopedias--that it was not a derivative work. The encyclopedia was not competing with her novels, but merely assisting the reader. A 5e sourcebook, however, might compete with official 5e sourcebooks in the eyes of a reviewing court.

Bottom line. Without the OGL and SRD, any person wanting to make content for 5e without WotC's permission would have to parse through the document and try to determine what is really "game mechanics" and what are expressions of WotC's original creation. And then, when writing their document, they would have to determine if their work is derivative of WotC's. Are subclasses derivative of the original class? Are new dragon statblocks derivative of existing dragon statblocks? I don't know the answer to this, and neither does any lawyer on Earth, because it has almost never been tested in litigation. Even small differences in the doc could make a huge difference in court.

I post this as a PSA, because, based on the advice I have been seeing from nonlawyers, people are being steered in the wrong direction. I know this will be bad news to most people, so don't shoot the messenger.

While wotc has the right to revoke the license as written I’d argue that the intent of the license was for it to be irrevocable. You have the vp in charge of it stating he thought it was and you also have wizards answering, on their faq, that if you don’t like a future license you can just use a prior one.

 

[Greg Benage]

It is difficult for me to understand how someone could posit that in order for OGL 1.0a to be revocable-under-specific-conditions, OGL 1.0a must recite that it is "irrevocable," when Section 13 clearly shows that OGL 1.0a was not intended to be irrevocable.

Is there a distinction in the law between revocation of the license itself and termination of the license w/r/t a particular licensee?

ETA for clarification: It seems to me I ought to be able to construct a license that is irrevocable but still provides for termination if a licensee breaches its terms.

 

[robconley]

More fuel for the fire.

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.

As a technical note, the reason this can be even attempted is that if you omit all the newer mechanics from the d20 SRD what is left is but a hop and skip from a specific classic edition. But to clear their additional work and care to be done to get it close to a specific classic edition like Old School Essentials or OSRIC.

The same principle is in play for One D&D. From the playtest One D&D is still very much a variant of 5e. So with work and care a 5.5e could be made that incorporates the ideas (not expressions) of the concepts that OneD&D implements.

 

[Snarf Zagyg]

Is there a distinction in the law between revocation of the license itself and termination of the license w/r/t a particular licensee?

ETA for clarification: It seems to me I ought to be able to construct a license that is irrevocable but still provides for termination if a licensee breaches its terms.

There is a lot of confusion going on because of the use of various terms.

From what I understand, Hasbro is claiming to "de-authorize" the license. This would be under Section 9 of the OGL 1.1a ("You may use any authorized version of this License ....).

Separately, there is a termination section of the OGL. Section 13 provides that "The License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses shall survive the termination of this License."

Finally, there is the issue of revocation. I'm not going to add much to that, other than to say that I appreciate what other people have said, but I don't find the issue clear-cut. IME and IMO, the general rule is that absent a specific wording that a license is irrevocable, it will be considered to be revocable- this is simply in falling with the general idea that the law abhors things that last forever, and if you are putting out an offer that you can never, ever, ever revoke, you better be explicit. But while this is the general rule, courts have also found a way around this- so the lack of "magic words" is not a slam dunk.

So yes, there is a distinction-
A termination requires specified steps, allows for cure, and only affects one licensee at a time. Theoretically, Hasbro could try and play whac-a-mole with terminations, but that would take a while.

Revocation of the license (or ... "de-authorization") would theoretically mean that, at least moving forward, you could not use the OGL- you don't have to terminate on a licensee-by-licensee basis.

 

[S'mon]

Regarding the need for licenses to state that they are irrevocable:

The meaning of an agreement is the intention of the parties to the agreement, either as expressed in the agreement itself (the usual method) or through parole evidence of intention when there is ambiguity in the agreement. Very rarely does the meaning of an agreement depend on its use of magic words such as irrevocable in the text of the agreement itself. The conveyance of real property and the creation of a power of attorney do require magic words (although even in these cases, technically the absence of the magic words does not affect the interpretation of the agreement). The use of magic words can aid the interpretation of an agreement, especially to the extent that the magic words represent jargon (in the dictionary sense of technical language used by a distinct community), but is not itself dispositive.

Similarly, how one court interpreted one agreement can be helpful to a court trying to interpret a different agreement can be helpful, but it not dispositive.

I've now looked at all cited caselaw in this thread and elsewhere, read the relevant sections of two leading treatises dealing with licensing agreements (Goldstein on Copyrights and Epstein on Intellectual Property) and consulted with a colleague whose field of practice is licensing. I am convinced that licensing agreements follow the ordinary principles of contractual interpretation, and it is not necessary to recite the word "irrevocable" in order to create a license that is not revocable at will.

The OGL 1.0a itself is a good example of why the intention of the parties is dispositive, not the magic word "irrevocable." If you read OGL 1.0a, it is neither irrevocable nor revocable-at-will. Instead, Section 13 of OGL 1.0a states "This License will terminate automatically if You fail to comply with all terms herein and fail to cure such breach within 30 days of becoming aware of the breach." That is to say OGL 1.0a is revocable under specific conditions specified in OGL 1.0a.

It is difficult for me to understand how someone could posit that in order for OGL 1.0a to be revocable-under-specific-conditions, OGL 1.0a must recite that it is "irrevocable," when Section 13 clearly shows that OGL 1.0a was not intended to be irrevocable.

This (esp bolded parts) is my impression too, though obviously I'm going off English Contract law primarily.

 

[bmcdaniel]

Regarding the status of sub-licenses:

1. The discussion of sub-licenses largely seems to treat contractual relationships as if they were property rights (enforceable against the world) and not as private orderings between the parties (enforceable against each other).

To illustrate: Suppose A has an entitlement (copyright, real property, corporate stock, whatever) that C wants to use. If C uses the entitlement without A's permission, A has a successful legal claim against C.

Suppose A and B agree that B can use A's entitlement, and that B can "sub-license" this right, i.e. grant others the right to use A's entitlement. B and C then agree that C can use A's entitlement. A-> B -> C. Now, when A brings a legal claim against C, C can successfully defend because C has permission to use A's entitlement. But suppose that A makes it practically difficult for C to use A's entitlement (for example, by fencing off the real property). Does C have a contractual claim against A? No, because there is no contract between A and C. However, C may have a contractual claim against B (depending on the B -> C agreement).

Now suppose A and B agree to terminate the A -> B agreement. Now B no longer has permission from A. If C is using A's entitlement, C has no defense against a legal claim made by A. However again, C may have a contractual claim against B.

2. The illustration above is academic in respect of OGL 1.0(a) because it assumes certain features of the agreements that are generally true but not true of the OGL 1.0(a). Section 13 of OGL 1.0(a) states "All sublicenses shall survive the termination of this License." Although my view is that this language is inartful drafting, the best interpretation is that the termination of a license does not affect the ability of the sublicensee to raise a defense or make claims against the original licensor. To use the schema in the illustration, even if A and B terminate their agreement, C can still successfully claim against A or defend against a claim by A.

As always, the interpretation of an agreement is based on the intention of the parties. And the most important way to discern intention is the text of a (written) agreement itself. General features of contract law and caselaw interpreting other agreements can be helpful in discerning intention, but are not dispositive. Any analysis of sublicensing under OGL 1.0(a) that does not address the text of OGL 1.0(a) is inherently suspect. In particular, it is possible to have different views about the meaning of the language in Section 13 that addresses sublicensing in the event of termination; however, ignoring the language in Section 13 is not a good method to understand the position of sublicensees.

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In matters of law, there are complexities, nuance and exceptions to everything, including things said above. Don't expect a complete discussion in a forum post. Moreover, even if there are no complexities, nuance and exceptions that apply to your situation, there may be consequences that apply to you that you should consider. The fact that I don't know what complexities, nuance, exceptions and consequences apply to your specific situation is one reason (among many) that the things said above are not legal advice. So, I'll say what you hear so many lawyers say. The above is not legal advice. I am not your lawyer. You can rely on my legal advice only when we have discussed your specific situation after entering into an engagement letter with me or my law firm, and have agreed to pay me or my law firm for the provision of legal advice.

 

[bmcdaniel]

[Deleting accidental double post]

 

[Steel_Wind]

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?

Oh every jurisdiction would do that. That's part of the test on these facts. It's all part of the merits.

In a motion or application to grant an in junction (in some US jurisdictions a Temporary Restraining Order pending trial, or "TRO"). It's a three part test:

1. The Merits

A) The applicant has a strong prima facie case. This brings in ALL of the facts and evidence on the OGL 1.0a and how they conducted themselves under it - the merits go here - not just on what the license says in terms of irrevocable, but where else they said it -- and how they acted under it to demonstrate they clearly also believed it was irrevocable. Kit Walsh never mentions any of this context re: Paizo - and probably doesn't know about those highly unusual facts. All of that potentially extraneous evidence goes in here. That is fatal evidence, imo.

B) Alternatively, the applicant does not have to prove a strong prima facie case, simply the lesser standard that there is a "serious question to be tried" Same merits analysis, but the bar they have to cross is lower. This test DOES vary by jurisdiction.

2. Irreparable Harm

The applicant will suffer irreparable harm. Irreparable harm is the sort of harm that cannot be compensated for by monetary damages. This is likely, on these facts, to be the end of WotC's case for an injunction. This branch of the test doesn't vary by jurisdiction. On the unique facts of this case, we have seen what did happen in the past when Paizo used the 3.5 SRD under the 1.0a OGL. They competed successfully in the marketplace, WotC withdrew its products and ultimately came back with 5e.

Meanwhile, we have seen WotC demonstrably flourish under the OGL 1.0a for 23 years, You can't hide that and there's no dispute over it.

The real point here is that you get to harp on the fact that WotC clearly felt so bound by its previous position that the 1.0a OGL was irrevocable that it never, not once, over the course of 6+ years from 2008-2014 suggested that Paizo was no longer authorized to use the OGL 1.0a, even as that caused them to withdraw form the market place as they were beaten at their own game. Why didn't they unauthorize it then? Because they just didn't want to say it -- or because they believed that they couldn't? Practically speaking? That evidence is devastating. Kit Walsh never mentions it. It is likely because she was not familiar with it (the evidence was absurdly EXTREME) and instead treated this as a simply contractual analysis based on its wording. You can't do that with this sort of context and circumstances. It all goes in - and the court is all but certain to hear it at this stage.

3. Balance of Convenience

Here the court weighs the effect of the injunction vs not granting the injunction. In the case of the OGL 1.0a, the entire industry relied upon it. There are literally hundreds (and maybe more than a thousand or even two thousand -- I don't really know) of individual businesses, great and small, who rely upon the continued validity of the OGL 1.0a. In every one of those cases, it's the same contract at issue. That is a LOT of people adversely affected by granting the injunction motion. The balance clearly favours not granting it.

In order to win an injunction, WotC must succeed and pass every branch of the three branch test. Fail on even one of them? The application for an injunction will be dismissed.

There is good chance that WotC fails not on just one branch, but depending on the jurisdiction they select? They could easily fail on all three. THAT is a highly unusual place to be as a litigant asking for an injunction. I've been on injunction motions where 2 of the three are in doubt, but all three? Never.

Mind you, I also practice in a jurisdiction where costs are paid to the other side when you lose an injunction motion, and those costs aren't small as they usually are in most American jurisdictions. Elsewhere in the common law world, those costs follow the event and are both large and generous on any injunction motion. You can find yourself writing a cheque for $100,000+ to several times that amount to the other side when you lose the motion (even though the underlying case continues). In my experience, even wealthy litigants don't like throwing away money like that (spoilers: that's how they became wealthy in the first place).

I don't offer this as a reason why WotC would not bring the injunction motion, simply as why motions which are all but doomed to fail are not brought outside of the American context. It doesn't change the test or the result.