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

[Enrahim2]

Whatever the exact answer, I don't see any pathway to granting WotC an exclusive licence to use a contributor's OGC on a VTT. Under the terms of the OGL v 1.0a, any person could use the contributor's content of their VTT provided they in turn promised to be bound by v 1.0a.

No, that is the section 4 grant. In order to get the extended usage rights offered in section 4, compared to the section 9 rights, you need to follow the license exactly.

 

[pemerton]

Section 9 do not grant any rights to the partisipants of the agreement. Section 9 is the publisher of the book asserting that everything they have legaly designated OGL is free to use by anyone, also parties not subject to this spesific agreement, that they can publish the material designated as OGC as long as they obey the terms of some authorised OGL.

Section 9 confers a power on WotC, to publish new versions of the licence. And it confers a permission on all licensees, to choose whichever of those published variants they like for their copying, modification and/or distribution of OGC.

How is 1.1 commersial's section X "This agreement is, along with the OGL: Non-Commercial, an update to the previously available OGL 1.0(a), (..,)" not a reference to 1.0a section 9: "Updating the License: Wizards or its designated Agents may publish updated versions of this License."?

I think it is such a reference. But is that binding on anyone who is not a party to the OGL v 1.1?

The question, for parties to the OGL v 1.0a who do not become parties to the OGL v 1.1, is what the status of v 1.1 is for them. And answering that question begins with the interpretation of section 9. Once we know what section 9 means, we can then consider whether any purported "update" is in fact an update within the terms of section 9.

I don't pretend to have tried to fully work out the legal meaning of section 9, but my first intuition is that no candidate update can actually be an update, for section 9 purposes, if it does not enable parties to the update to continue to satisfy all the obligations they have incurred under the current licence. I do note that the difference between v 1.0 and v 1.0a seems to be clarifying (and perhaps adding to) an obligation that is not concerned with the use of OGC, by expressly including a reference to registered trademarks in the definition of product identity. There is no difference between the two versions, that I am aware of, in respect of the permissions and powers they grant in relation to OGC.

Perhaps there are arguments against my intuition - eg maybe downstream licensees implicitly agreed to waive some of their rights in so far as they have also accepted section 9 - but I don't think I've seen anyone try to develop those arguments. To me it looks fairly complicated to try and unpack the issue in detail.

 

[Xyxox]

(IANAL) Ah, there is a important distinction: Section 9 do not grant any rights to the partisipants of the agreement. Section 9 is the publisher of the book asserting that everything they have legaly designated OGL is free to use by anyone, also parties not subject to this spesific agreement, that they can publish the material designated as OGC as long as they obey the terms of some authorised OGL.

That's not how Ryan Dancey described it, you know, the guy who wrote it. He said Section 9 was was there to distinguish a draft from a final version that was authorized as the final version.

 

[bmcdaniel]

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.

Unfortunately, there are both facts that are not specified and a degree of legal indeterminacy on the issues of revocation. I'd be happy to discuss directly with you to help you understand in more detail, but before I do so I would ask that you review my prior post at WotC - What's All This About The OGL Going Away? so that we can use it as a framework to discuss the relevant issues and the degrees of indeterminacy arising from different sources.

-------------
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.

 

[Enrahim2]

That's not how Ryan Dancey described it, you know, the guy who wrote it. He said Section 9 was was there to distinguish a draft from a final version that was authorized as the final version.

No he said the word "authorized" was there to distinguish draft from final version.

 

[pemerton]

No, that is the section 4 grant. In order to get the extended usage rights offered in section 4, compared to the section 9 rights, you need to follow the license exactly.

Section 4 says "to Use", which (via the definition of Use + Distribute + Derivative Material) means:

To use, reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute, copy, edit, format, modify, translate and otherwise create copyrighted material including derivative works and translations (including into other computer languages), potation, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted of Open Game Content.​

Section 9 says "to copy, modify and distribute". "Distribute" is not capitalised - does that affect its interaction with the definition section? Assuming it does not, then that means:

To copy, modify, reproduce, license, rent, lease, sell, broadcast, publicly display, transmit or otherwise distribute.​

What sorts of dealings with OGC do you think are permitted under section 4, but not under a variant licence as per section 9? To be clear, I'm not offering my own answer to that question. But I'm not persuaded that you have one either.

For instance, is a licensee permitted to modify my OGC and then publish that modification under a variant licence, but forbidden from improving my OGC and publishing that under a variant licence? In what way is an improvement not a type of modification? Again, I'm not offering an answer here. But I don't think you've really thought this through.

 

[masdog]

So...if I can try to summarize the outstanding questions...

Disclaimer - I am not a lawyer...and every question I post below is mostly rhetorical. I'm just documenting what the questions are. I'm not expecting replies to try to answer the questions as we've had 73 pages of discussion so far, and most of the answers would come down to "It depends on what the meaning of the word 'is' is" or "Reply Hazy, Try Again When There Is Litigation."

I may also post some of my understanding of what the discussion has said, but that's just my layman's understanding of the not legal advice that has been offered here. And when I say OGL 1.0 or 1.0, I'm also referring to 1.0(a). (Side note: there are too many lawyers here...and it's rubbing off on me. LOL...)

Outstanding questions (again...rhetorical, just posting to document based on my understanding of the conversation):

1. Outside of the terms in Section 13, can the OGL be terminated or revoked?
   1. Can Hasbro/WotC revoke the OGL at will?
   2. If Hasbro/WotC can revoke at will, do legal doctrines like "laches" bar this because the license and product have been released for years, they promoted an understanding that it was open, and Hasbro/Wizards had years to remedy the licensing situation before releasing OneD&D? (and my apologies if I'm misunderstanding these concepts...not a lawyer)
2. What does authorization mean in the context of the OGL since the term is not defined in the OGL itself?
   1. Does it mean future versions of the license that may be published by WotC or a designated agent?
   2. Can WotC/Hasbro change the "authorization status" of the current license?
   3. Is this a "legal diode" where a future version is considered authorized by 1.0 but 1.0 is not authorized by the future version if you adopt the newer version of the license? (ie - you can bring content forward to the new version, but you can't bring it backward to 1.0)
3. Can Hasbro/WotC 'deauthorize' the current version of WotC for existing works?
   1. Does this only apply to works derived from Hasbro/WotC SRDs, or all content published under the OGL?
   2. What authority in the current license would allow this?
   3. How would they notify everyone who has published under OGL 1.0 so they can cure any potential breech?

Other questions that I thought of while putting this together that I don't think have been asked:

1. If 1.0 can be deauthorized at will, is this considered a termination of the license and in violation of Section 13?
2. Would deauthorizing 1.0 for all OGL-published content (not just SRD-derived content) raise anti-trust issues forcing competitors to remove competing products that do not use WotC IP from the market?
3. Does the OGL allow original content (not derived from another source) to be dual licensed, and would the "authorized" clause allow the licensee to choose which license to redistribute under if the other license allowed a change?

Edit: Remembered two other questions I wanted to document:

1. If/when OGL 1.1 is released and it is a 1-way gate, who is bound by it? Would it just bind the content publisher? All of their employees?
   1. Would it prevent employees of a publisher using OGL 1.1 from publishing their own original content in 1.0 in a personal capacity?
   2. Would it bind an employee of a creator, or a creator who published in a personal capacity, who published content under OGL 1.1 from working at a publisher who is publishing under OGL 1.0?
2. If/when OGL 1.1 is released and it is a 1-way gate, would it prevent publishers who publish an OGL 1.1 item from publishing OGL 1.0 content for systems that aren't derived from WotC SRD-based sources. (IE - I publish something for OneD&D, would I be barred from publishing different original content for a system like OpenD6?)

 

[Enrahim2]

I don't pretend to have tried to fully work out the legal meaning of section 9, (...)

(IANAL) In that case it sound like this might be something worth unpacking, as the interpetation of this seem to be the crux of wizards strategy, no matter if we think it is revoking, or exploiting 1.0a.

By understanding is the following: lets assume we have 2 authorised versions of ogl, 1.0a and 1.0b, both essentially the same as the actual 1.0a with some irrelevant differences. We then have someone (A) publish a book with purly original content. It further declares some OGC and include a copy of 1.0a.

First question, has A by necessity somehow agreed to any of the lisences? I would say no, as I cannot see would would imply such an acceptance. The OGL text is freely copyrightable, and A doesn't need to license any OGC to legaly publish their work as they already own all needed copyrights by virtue of being the original creator.

Now B see the book, and find some OGC from A they would like to do something with, and want to obtain a lisence for using it. What is his options? It appear that A has offered B the ability to use the OGC as long as he agrees to the printed 1.0a agreement as stipulated in section 4. However there seem to be an alternative. A has also in section 9 stated that under some condition 1.0b can be used to copy the material. In particular as opposed to section 4 where clearly agreeing to the terms was the trigger to allow the use, that is not stated here.

My interpretation of the situation is that by printing section 9 in their book A accepts that B copy their published OGC, as long as B has agreed to 1.b, and the copy appear in a work that complies to all terms and conditions set out in 1.b, and that even if the language appeared in the text of the 1.0a lisence, any form for acceptance or compliance with any of the 1.0a terms are not required.

However this is not to me obvious for the formulation, but it is the only way I can make it make practical sense. @pemerton, what do your intuition say about this relatively simple example? I got the impression that your intuition got troubled once there were mor complicated situations with multiple active agreements, while here it wold seem like it is enough to accept one authorised OGL agreement to access any ogc?

(And I assume agreements related to lisencing happens on a per use, rather than a per person basis, so it is irrelevant if B for instance have lisenced anything under 1.0a in the past)

 

[Enrahim2]

Read wong. Too tired (european)

 

[Greg Benage]

Big update from Kit Walsh:

UPDATE January 11, 2023: As the community has scrutinized Wizards of the Coast's past statements, it's become very clear that Wizards always thought of this as a contract with obligations for both sides (for instance their 2001 OGL FAQ v 1.0). Unlike a bare license without consideration, an offer to contract like this cannot be revoked unilaterally once it has been accepted, under the law of Washington (where they are located) and other states.

[continued]

Beware the Gifts of Dragons: How D&D’s Open Gaming License May Have Become a Trap for Creators

The company that owns Dungeons and Dragons (D&D) is planning to revoke the open license that has, since the year 2000, applied to a wide range of unofficial, commercial products that build on the mechanics of the game.

www.eff.org