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

[FrogReaver]

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

At least she’s halfway there. Irrevocable. Still she argues they can withdraw (the offer) anytime without referencing the licensees ability to make the offer (sub license). Nor what withdrawing would do for a work that contributes OGC while also utilizing WOTCs OGC, and whether derivative works if that material could be created.

Seems much too tangled of a web to judge wotcs ability to cease offering their content under that license without making mention of any of these issues.

 

[bmcdaniel]

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

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...)

I note that you indicated you would say that "OGL 1.0" or "1.0" you are also referring to "1.0(a)." However, then you then proceeded to discuss "OGL" which you have not defined. I can typically tell what you mean from context, but accuracy is important here.

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?

Nobody can tell you the answer to this question. Indeed, as asked, this is not a well-formulated question. The best that we can tell you is:

(a) How courts are "supposed" to respond if WOTC brought a claim against an OGL 1.0(a) counterparty, or a counterparty raised a defense against a WOTC claim after WOTC purported to revoke OGL 1.0(a). The answer to this question is that a court is supposed to look at the text of OGL 1.0(a) to determine the intention of the parties (taking into account the legal fiction that a corporation like WOTC can have an intention). If the court finds the text of OGL 1.0(a) to be ambiguous, it may then proceed to examine evidence outside the text of OGL 1.0(a) to determine the intention of the parties.

(b) A guess about how a court would rule if it follows the process above (i.e. how a court is supposed to rule); plus a guess about how a court would rule taking into account other known facts. Among those persons that have posted credible analysis, my own view is that the guesses range from "WOTC likely to lose" to "WOTC almost certain to lose." However, you can form your own view about who is credible or not.

1. 1. 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)

(Side note: among the community of lawyers, we refer to a class of rules "like laches" as equitable principles, in contract to the class of legal rules. The reasons they are distinguished are historical arising out of the original organization of the English judiciary, some of whom exercised "equitable" jurisdiction and some of which exercised "legal" jurisdiction. So, if you ask (US) lawyers about "legal doctrines like laches" you are likely to create misunderstanding.)

This question is even more unanswerable than your first question. Equitable principles, like laches, but also promissory estoppel, detrimental reliance, quantum meruit, etc. look very closely at the behavior of the parties in front of the court and whether a party has behaved equitably (which is sort of like behaving well, but not exactly). In other words, equitable rules are specifically designed to allow judges to not act in a "rule-like" manner, but instead to do justice. Precisely because equitable principles are less "rule-like" (although neither are they completely discretionary!) it is harder to guess how and whether a court will apply equitable principles, especially without specifying exactly who the parties are, how they have behaved, etc. Having said that, credible persons have pointed out many WOTC behaviours that WOTC has engaged in that could prevent WOTC from making a successful claim under OGL 1.0(a) and/or allow a defendant to raise a defense against a WOTC claim.

• What does authorization mean in the context of the OGL since the term is not defined in the OGL itself?

• Does it mean future versions of the license that may be published by WotC or a designated agent?
• Can WotC/Hasbro change the "authorization status" of the current license?
• 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)

The meaning of "authorization" in OGL 1.0(a), in the context of a specific case, would be determined by a court interpreting the intention of the parties in the manner described above. Various people have suggested different meanings, based on the text of OGL 1.0(a), outside evidence, or god-knows-what. Among the various meanings suggested are (1) an "authorized" license as opposed to a "draft" licensed; (2) a license that is promulgated by WOTC (including an updated license) as opposed to an updated license promulgated by others; (3) any license that WOTC ever said was authorized; or (4) any license that WOTC says is authorized right now (i.e. WOTC can unilaterally de-authorize the license at any time).

Because the act of interpretation is indeterminate, and because the evidence which is available to one court may be different than the evidence available to another court, there is no sense in which there can be a definitive determination of the meaning of the word "authorized." For example, suppose a court relies heavily on a contemporaneous public statement by Ryan Dancey that "authorization" has meaning #1 when adjudicating a claim between WOTC and Monte Cook Press. But, years later, a different court is adjudicating a claim between WOTC and Paizo, and new evidence is uncovered that both WOTC and Paizo interpreted "authorization" to have meaning #4. The second court is not bound by the first court's interpretation, and the second court could very well reach a different conclusion as to the meaning of the word "authorization."

My own view is that, based on the structure and text of OGL 1.0(a), a claim based on meaning #4 is very likely to fail. My own view is that it is likely that no other definitive legal interpretation of the word "authorization" will occur, because (unless meaning #4 is correct), whether the other meanings are correct is irrelevant. This is the difference between historians and lawyers/courts: historians are often interested in historical facts; lawyers and courts are only interested in facts that have effects outside the facts themselves.

• Can Hasbro/WotC 'deauthorize' the current version of WotC for existing works?

Its not clear to me how this question is supposed to be different than the question you asked above "Can Hasbro/WotC revoke the OGL at will?" except that you used different terms to express the same concept. I would refer you to the answer above.

• 1. Does this only apply to works derived from Hasbro/WotC SRDs, or all content published under the OGL?

See the answer above.

• 1. What authority in the current license would allow this?

See the answer above.

• 1. How would they notify everyone who has published under OGL 1.0 so they can cure any potential breech?

The answer is not clear. This is one reason to interpret OGL 1.0(a) as not allowing authorization, although in my opinion only a weak reason.

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?

Section 13 describes a termination for failure to comply with the terms of OGL 1.0(a). The premise of your hypothetical ("If 1.0 can be deauthorized at will") asserts that de-authorization of the license is permitted by the terms of OGL 1.0(a). If de-authorization of the license is permitted by the terms of OGL 1.0(a), it cannot be a failure to comply with the terms of OGL 1.0(a).

1. 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?

This is a good question, but not one that I'm particularly expert at answering. I will say that the intersection of copyright and antitrust is a particularly complex and uncertain area of law because (one of the) goal(s) of antitrust law is the prevention of monopolies, and the anti-consumer effects that flow from monopolies; while copyright is a government-authorized monopoly that is designed to benefit the copyright-holder, even at the expense of consumers (in order to encourage the production of copyrightable materials).

1. 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?

OGL 1.0(a) generally does not prohibit any licensing activity from a party to OGL 1.0(a). In particular, OGL 1.0(a) does not prohibit the copyright-holder of material that is offered as Open Game Content under OGL 1.0(a) from simultaneously offering that material under a different license.

The second part of your question seems self-evidently true. If a licensee has a right to sub-license material under OGL 1.0(a) and a different license, the licensee can choose whether to sub-license the material under OGL 1.0(a) or the different license (subject, of course, to the terms of the different license as well as any other obligations that the licensee may be subject to).

I get the sense that I'm not answering the question you are asking, but to be perfectly honest, I'm not sure what you are asking.

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?

It would bind the parties to OGL 1.1. Generally, an employer and an employee are not considered the same employee. For example, if Microsoft agrees to pay $1 million to its landlord, its employees are not bound by Microsoft's agreement and are not required to pay. In certain special situations (typically involving closely-held entities), an employer and an employee may be merged.

1. 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?

As above, OGL 1.1, like all agreements cannot bind non-parties to OGL 1.1. However, do be aware that it may be possible to inadvertently become a party to OGL 1.1. I have explored this thoroughly elsewhere, so won't repeat the analysis here.

1. 1. 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?

As above, the OGL 1.1 is not binding on non-parties. However, it is possible that if an employer is a party to OGL 1.1, OGL 1.1 could impose an obligation on the employer not to employ persons who are parties to OGL 1.0(a). I highly doubt it, but until we have final text on OGL 1.1 it is impossible to rule out. Furthermore, an employer that is a party to OGL 1.1 could elect not to employ persons who utilize OGL 1.0(a) out of a sense of loyalty to WOTC or risk mitigation.
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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]

At least she’s halfway there. Irrevocable. Still she argues they can withdraw (the offer) anytime without referencing the licensees ability to make the offer (sub license). Nor what withdrawing would do for a work that contributes OGC while also utilizing WOTCs OGC, and whether derivative works if that material could be created.

It seems like an unduly harsh standard to fault Kit Walsh for not fully exploring all relevant issues; admitting the original analysis was incorrect and posting a correction is pretty darn good.

The part I would quibble with is the opening line: "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)" which implies that OGL 1.0(a) is a contract only because of extrinsic evidence that Kit did not have access to in her original post.

As repeated ad nauseum, extrinsic evidence such as the FAQ is relevant only if text of an agreement is ambiguous. And the OGL 1.0(a) is not ambiguous at all about whether it is an agreement: "In consideration for agreeing to use this License"; "Offer and Acceptance"; "Grant and Consideration" are all words evidencing an intent to form an agreement in the OGL 1.0(a), and all were available to Kit before her original post.

I think Kit just engaged in a little bit of CYA, which in my book is a venial sin.
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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.

 

[FrogReaver]

It seems like an unduly harsh standard to fault Kit Walsh for not fully exploring all relevant issues; admitting the original analysis was incorrect and posting a correction is pretty darn good.

Guess I just hold highly respected people to higher standards.

 

[Enrahim2]

(IANAL) There is one strange thing with the kit Walsh update though. It make it sound like wizards is supposed to be one of the parties of the contract, but I see nothing in the agreement text itself that indicates that. Rather it seem like the formulation indicates the parties to be You and the Contributors. So indeed, if wizards hadnt contributed any OGC, they wouldn't have been a party to the contract at all. Rather the role stipulated for them is more like a steward holding the copyright of the agreement text, and tasked with providing new versions as needed.

As wizards is not a priveleged party to the agreement (not really neccessarily a party at all) there are nothing to support that they should have the power to revoke the agreement on behalf of the Contributors under standard revocation theory. Indeed if so had been possible, any contributor seem like should have that right using the same justification.

Hence the terms "update" and "authorized" is extremely important for wizards, as that seem like the only things wizards might have special power over. Only wizard my publish a new version. But here come something critical: What Wizards are publishing is only a text, not an offer for an agreement they are party to. Anyone can take any of those published texts, and as long as they are not breaching copyright to do so offer an agreement using this text to someone else. If someone accept this offer, this is a valid contract.

This hold true even if the text published by wizards was intended as a draft. However it would appear from the formulation in section 9 (bearing in mind that Ryan state the point of authorized was intended to separate from draft or final), this lisences granted trough this agreement is still considered a version of "this lisence" as long as it was published by wizards, and described itself as such. This due to the asymmetry in the wording that we now can gather allow content that was lisenced under a draft version (by mechanism described above - likely by mistake), can still be "recovered" as it can be copied over to material using the authorized version. While the asymmetry prevents using a draft, even if published by wizards and stating it is an update, to copy material under more favorable terms than the contributors had intended when they accepted to declare their work OGC.

Hence it should be obvious that an agreement based on one of the ogl versions (text) published by wizards can be fully valid, binding and meaningfull, even if not "authorized" in the sense used in section 9.

The agreement do not describe any mechanism a published version can get the "authorised" state, but I think the implied mechanism (given the now known intention) is that it is any of the entities tasked with producing new versions that are supposed to make that call. Indeed we can imagine a natural process would be that wizards is publishing a proposed text, hence creating a new version of the OGL, (but not authorised). They then gather fredback, and if it seem like it is fine, they wizards can cermonously declare this text to now be an authorised version.

If we accept this scrnario as valid, and correct, we hence have at least one situation where wizards are empowered to unilateraly change the state of a legal text from being an unauthorised version of OGL to an authorised version of OGL. This mechanism is not explicitely stated, but I guess it seem reasonable and justified given the intended and implied meaning of section 9?

But then we come to our conondrum: a) as wizards are invested the implied power to change the state of a text to become authorized, is it reasonable to also say that wizards has the power to say it is not authorised? Or maybe more to the point now, is it unreasonable that two parts can agree to not considder the text not authorized, given that such an agreement involve just parts giving away rights, rather than claiming rights they are not entitled to?

And maybe most importantly: it is clear that whether the text is "authorised" or not is completely irrelevant for the state of any agreements associated with that text. Only consequence might that there might be issues with compliance of agreements relying on section 9 use of OGC as far as I can see?

In short:  Even if the steward of the OGL texts declare a previously authorised text no longer authorised, that has no material effect on any agreement already entered using this text.

Please explain where I am wrong!

 

[masdog]

I note that you indicated you would say that "OGL 1.0" or "1.0" you are also referring to "1.0(a)." However, then you then proceeded to discuss "OGL" which you have not defined. I can typically tell what you mean from context, but accuracy is important here.


Nobody can tell you the answer to this question. Indeed, as asked, this is not a well-formulated question. The best that we can tell you is:

(a) How courts are "supposed" to respond if WOTC brought a claim against an OGL 1.0(a) counterparty, or a counterparty raised a defense against a WOTC claim after WOTC purported to revoke OGL 1.0(a). The answer to this question is that a court is supposed to look at the text of OGL 1.0(a) to determine the intention of the parties (taking into account the legal fiction that a corporation like WOTC can have an intention). If the court finds the text of OGL 1.0(a) to be ambiguous, it may then proceed to examine evidence outside the text of OGL 1.0(a) to determine the intention of the parties.

(b) A guess about how a court would rule if it follows the process above (i.e. how a court is supposed to rule); plus a guess about how a court would rule taking into account other known facts. Among those persons that have posted credible analysis, my own view is that the guesses range from "WOTC likely to lose" to "WOTC almost certain to lose." However, you can form your own view about who is credible or not.

(Side note: among the community of lawyers, we refer to a class of rules "like laches" as equitable principles, in contract to the class of legal rules. The reasons they are distinguished are historical arising out of the original organization of the English judiciary, some of whom exercised "equitable" jurisdiction and some of which exercised "legal" jurisdiction. So, if you ask (US) lawyers about "legal doctrines like laches" you are likely to create misunderstanding.)

This question is even more unanswerable than your first question. Equitable principles, like laches, but also promissory estoppel, detrimental reliance, quantum meruit, etc. look very closely at the behavior of the parties in front of the court and whether a party has behaved equitably (which is sort of like behaving well, but not exactly). In other words, equitable rules are specifically designed to allow judges to not act in a "rule-like" manner, but instead to do justice. Precisely because equitable principles are less "rule-like" (although neither are they completely discretionary!) it is harder to guess how and whether a court will apply equitable principles, especially without specifying exactly who the parties are, how they have behaved, etc. Having said that, credible persons have pointed out many WOTC behaviours that WOTC has engaged in that could prevent WOTC from making a successful claim under OGL 1.0(a) and/or allow a defendant to raise a defense against a WOTC claim.





The meaning of "authorization" in OGL 1.0(a), in the context of a specific case, would be determined by a court interpreting the intention of the parties in the manner described above. Various people have suggested different meanings, based on the text of OGL 1.0(a), outside evidence, or god-knows-what. Among the various meanings suggested are (1) an "authorized" license as opposed to a "draft" licensed; (2) a license that is promulgated by WOTC (including an updated license) as opposed to an updated license promulgated by others; (3) any license that WOTC ever said was authorized; or (4) any license that WOTC says is authorized right now (i.e. WOTC can unilaterally de-authorize the license at any time).

Because the act of interpretation is indeterminate, and because the evidence which is available to one court may be different than the evidence available to another court, there is no sense in which there can be a definitive determination of the meaning of the word "authorized." For example, suppose a court relies heavily on a contemporaneous public statement by Ryan Dancey that "authorization" has meaning #1 when adjudicating a claim between WOTC and Monte Cook Press. But, years later, a different court is adjudicating a claim between WOTC and Paizo, and new evidence is uncovered that both WOTC and Paizo interpreted "authorization" to have meaning #4. The second court is not bound by the first court's interpretation, and the second court could very well reach a different conclusion as to the meaning of the word "authorization."

My own view is that, based on the structure and text of OGL 1.0(a), a claim based on meaning #4 is very likely to fail. My own view is that it is likely that no other definitive legal interpretation of the word "authorization" will occur, because (unless meaning #4 is correct), whether the other meanings are correct is irrelevant. This is the difference between historians and lawyers/courts: historians are often interested in historical facts; lawyers and courts are only interested in facts that have effects outside the facts themselves.


Its not clear to me how this question is supposed to be different than the question you asked above "Can Hasbro/WotC revoke the OGL at will?" except that you used different terms to express the same concept. I would refer you to the answer above.

See the answer above.

See the answer above.

The answer is not clear. This is one reason to interpret OGL 1.0(a) as not allowing authorization, although in my opinion only a weak reason.

Section 13 describes a termination for failure to comply with the terms of OGL 1.0(a). The premise of your hypothetical ("If 1.0 can be deauthorized at will") asserts that de-authorization of the license is permitted by the terms of OGL 1.0(a). If de-authorization of the license is permitted by the terms of OGL 1.0(a), it cannot be a failure to comply with the terms of OGL 1.0(a).



This is a good question, but not one that I'm particularly expert at answering. I will say that the intersection of copyright and antitrust is a particularly complex and uncertain area of law because (one of the) goal(s) of antitrust law is the prevention of monopolies, and the anti-consumer effects that flow from monopolies; while copyright is a government-authorized monopoly that is designed to benefit the copyright-holder, even at the expense of consumers (in order to encourage the production of copyrightable materials).


OGL 1.0(a) generally does not prohibit any licensing activity from a party to OGL 1.0(a). In particular, OGL 1.0(a) does not prohibit the copyright-holder of material that is offered as Open Game Content under OGL 1.0(a) from simultaneously offering that material under a different license.

The second part of your question seems self-evidently true. If a licensee has a right to sub-license material under OGL 1.0(a) and a different license, the licensee can choose whether to sub-license the material under OGL 1.0(a) or the different license (subject, of course, to the terms of the different license as well as any other obligations that the licensee may be subject to).

I get the sense that I'm not answering the question you are asking, but to be perfectly honest, I'm not sure what you are asking.



It would bind the parties to OGL 1.1. Generally, an employer and an employee are not considered the same employee. For example, if Microsoft agrees to pay $1 million to its landlord, its employees are not bound by Microsoft's agreement and are not required to pay. In certain special situations (typically involving closely-held entities), an employer and an employee may be merged.

As above, OGL 1.1, like all agreements cannot bind non-parties to OGL 1.1. However, do be aware that it may be possible to inadvertently become a party to OGL 1.1. I have explored this thoroughly elsewhere, so won't repeat the analysis here.

As above, the OGL 1.1 is not binding on non-parties. However, it is possible that if an employer is a party to OGL 1.1, OGL 1.1 could impose an obligation on the employer not to employ persons who are parties to OGL 1.0(a). I highly doubt it, but until we have final text on OGL 1.1 it is impossible to rule out. Furthermore, an employer that is a party to OGL 1.1 could elect not to employ persons who utilize OGL 1.0(a) out of a sense of loyalty to WOTC or risk mitigation.
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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.

I wasn't actually expecting anyone to try to answer. Like I said, I was merely documenting the outstanding/debated questions that I saw as well as a few that I thought of. And yeah, I know that some of them weren't very well formulated.

I get the sense that I'm not answering the question you are asking, but to be perfectly honest, I'm not sure what you are asking.

I guess my question was around the vague use of "authorized license" in Section 9, and if a product was dual-licensed, would the second license be considered authorized for the purpose of that section. AFAIK, it has no bearing on anything going on right now. It was just an interesting question that I thought of.

But I think you did answer it.

As above, the OGL 1.1 is not binding on non-parties. However, it is possible that if an employer is a party to OGL 1.1, OGL 1.1 could impose an obligation on the employer not to employ persons who are parties to OGL 1.0(a). I highly doubt it, but until we have final text on OGL 1.1 it is impossible to rule out. Furthermore, an employer that is a party to OGL 1.1 could elect not to employ persons who utilize OGL 1.0(a) out of a sense of loyalty to WOTC or risk mitigation.

Actually, I'm thinking about the reverse scenario. Here is the thought experiment that was running through my head. I realize that this is a hypothetical scenario, and it would likely be a corner case.

Say I'm an executive and product line developer for 3PP(A). 3PP(A) makes content for OneD&D and has agreed that OGL 1.0(a) is not an authorized license. I was one of the managers that helped make that decision to offer OneD&D products, created the product line, and was aware of the license terms. I'm let go, or I leave, and I'm hired by 3PP(B). 3PP(B) makes content referencing their own custom-developed SRD that is licensed under OGL 1.0(a).

Could the terms of OGL 1.1 effectively be used as a non-compete to bar me from working for a company that develops OGL 1.0 products? And how would that be handled in a jurisdiction that bars non-compete agreements? (Again, I don't expect an answer here because the answer is "it depends." It was just an interesting thought I had and decided to write down...)

 

[FrogReaver]

(IANAL) There is one strange thing with the kit Walsh update though. It make it sound like wizards is supposed to be one of the parties of the contract, but I see nothing in the agreement text itself that indicates that. Rather it seem like the formulation indicates the parties to be You and the Contributors. So indeed, if wizards hadnt contributed any OGC, they wouldn't have been a party to the contract at all. Rather the role stipulated for them is more like a steward holding the copyright of the agreement text, and tasked with providing new versions as needed.

As wizards is not a priveleged party to the agreement (not really neccessarily a party at all) there are nothing to support that they should have the power to revoke the agreement on behalf of the Contributors under standard revocation theory. Indeed if so had been possible, any contributor seem like should have that right using the same justification.

Hence the terms "update" and "authorized" is extremely important for wizards, as that seem like the only things wizards might have special power over. Only wizard my publish a new version. But here come something critical: What Wizards are publishing is only a text, not an offer for an agreement they are party to. Anyone can take any of those published texts, and as long as they are not breaching copyright to do so offer an agreement using this text to someone else. If someone accept this offer, this is a valid contract.

This hold true even if the text published by wizards was intended as a draft. However it would appear from the formulation in section 9 (bearing in mind that Ryan state the point of authorized was intended to separate from draft or final), this lisences granted trough this agreement is still considered a version of "this lisence" as long as it was published by wizards, and described itself as such. This due to the asymmetry in the wording that we now can gather allow content that was lisenced under a draft version (by mechanism described above - likely by mistake), can still be "recovered" as it can be copied over to material using the authorized version. While the asymmetry prevents using a draft, even if published by wizards and stating it is an update, to copy material under more favorable terms than the contributors had intended when they accepted to declare their work OGC.

Hence it should be obvious that an agreement based on one of the ogl versions (text) published by wizards can be fully valid, binding and meaningfull, even if not "authorized" in the sense used in section 9.

The agreement do not describe any mechanism a published version can get the "authorised" state, but I think the implied mechanism (given the now known intention) is that it is any of the entities tasked with producing new versions that are supposed to make that call. Indeed we can imagine a natural process would be that wizards is publishing a proposed text, hence creating a new version of the OGL, (but not authorised). They then gather fredback, and if it seem like it is fine, they wizards can cermonously declare this text to now be an authorised version.

If we accept this scrnario as valid, and correct, we hence have at least one situation where wizards are empowered to unilateraly change the state of a legal text from being an unauthorised version of OGL to an authorised version of OGL. This mechanism is not explicitely stated, but I guess it seem reasonable and justified given the intended and implied meaning of section 9?

But then we come to our conondrum: a) as wizards are invested the implied power to change the state of a text to become authorized, is it reasonable to also say that wizards has the power to say it is not authorised? Or maybe more to the point now, is it unreasonable that two parts can agree to not considder the text not authorized, given that such an agreement involve just parts giving away rights, rather than claiming rights they are not entitled to?

And maybe most importantly: it is clear that whether the text is "authorised" or not is completely irrelevant for the state of any agreements associated with that text. Only consequence might that there might be issues with compliance of agreements relying on section 9 use of OGC as far as I can see?

In short:  Even if the steward of the OGL texts declare a previously authorised text no longer authorised, that has no material effect on any agreement already entered using this text.

Please explain where I am wrong!

Wizards is a Contributor of OGC though…

 

[pemerton]

At least she’s halfway there. Irrevocable.

The licence granted under the OGL v 1.0/1.0a is not irrevocable. The agreement can be terminated for breach, and section 13 makes it pretty clear that the licence goes with it.

Still she argues they can withdraw (the offer) anytime without referencing the licensees ability to make the offer (sub license).

This is an issue that has been discussed extensively in these threads since the WotC press release (including by @S'mon and me). I think the better view is that all licensees retain the power to issue sub-licences even if WotC withdraws its standing offer. But given some other lawyers posting in this thread have expressed various degrees of confidence in, or doubt about, that position, I certainly don't assert it dogmatically.

Seems much too tangled of a web to judge wotcs ability to cease offering their content under that license without making mention of any of these issues.

The OGL is both.

The licensing agreement is a contract whereby WotC grants people a license (described in the contract) in exchange for the grantee abiding by the conditions of the license. The license is the consideration, not the contract!

I agree with DavyGreenwind in respect of what I've quoted. And I don't see anywhere that WotC has made a binding promise to continue offering to enter into contracts itself. (That's not to resile from what I think is the better view, that licensees can affect WotC's legal rights by exercising their powers under the contracts to which they remain party.)

 

[FrogReaver]

The licence granted under the OGL v 1.0/1.0a is not irrevocable. The agreement can be terminated for breach, and section 13 makes it pretty clear that the licence goes with it.

This is an issue that has been discussed extensively in these threads since the WotC press release (including by @S'mon and me). I think the better view is that all licensees retain the power to issue sub-licences even if WotC withdraws its standing offer. But given some other lawyers posting in this thread have expressed various degrees of confidence in, or doubt about, that position, I certainly don't assert it dogmatically.


I agree with DavyGreenwind in respect of what I've quoted. And I don't see anywhere that WotC has made a binding promise to continue offering to enter into contracts itself. (That's not to resile from what I think is the better view, that licensees can affect WotC's legal rights by exercising their powers under the contracts to which they remain party.)

Seems like we are saying the same things. Your nitpicks aside.

 

[pemerton]

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

<snip>

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?

It's not clear to me what you mean here by "de-authorising". I'll canvass two meanings. And my response is only concerned with publishers who are using the OGL but are completely outside the WotC-SRD ecosystem (eg @Prime_Evil upthread mentioned the Mongoose Traveller ecosystem as an example).

If by "de-authorise" you mean WotC attempts to proceed against parties who (i) reproduce the text of the OGL v 1.0/1.0a in their work but (ii) do not have a licence from WotC to use its copyrighted text, then I don't see an anti-trust issue arising (though I do agree with @bmcdaniel that this is complex). Rather, it seems to me that the affected parties, if they accepted WotC's claim about copyright infringement, would have to resolve a new licence text among themselves. This could take place, it seems to me, by them all accepting a variation to section 9 of their common licence, which would permit some other party to promulgate a variant licence.

If you mean WotC attempts to unilaterally withdraw all the licences that exist between these parties who have no legal relationship to WotC except that they have all promised one another to reproduce, from time to time, WotC's copyrighted text, well I don't see that WotC has any such power. And I can't see a reading of section 9 of the common licence among those parties that would produce this result.