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

[kjdavies]

On a real world note: I got my first communication from a DtRPG vendor. They explicitly stated the fear of being unable to sell their content through the site:


As a result they are now offering at least 80% of large content bundles, and 90% off of a bundle consisting of over 400+ OGL products. Torn on this one: I'd feel like a cad taking advantage of their unfortunate position, but would I be a fool for not taking 'em up on it. Horrific.

I just put up a couple bundles like that myself, for a similar reason.

If you play Pathfinder, I hope you scoop 'em.

 

[Fendulum]

Here's what I wonder re the latest Walsh edit (and it connects to some of what people have said in this thread as well). Walsh writes:

"Since the contract is accepted when someone “uses” the licensed material, then people who relied on the OGL 1.0a have a good argument under contract law that Wizards of the Coast cannot unilaterally withdraw the value that it offered under the contract."

I think it's potentially important what "cannot" means here. Does it mean the license cannot be taken away? Or does it simply mean: if the license is taken away, WOTC is in breach (for which the normal remedy would be damages).

For a normal non-IP license, this is a critical distinction. Say A agrees to let B use A's room in exchange for B paying A some amount of money. A is giving B a license (i.e., permission to use A's property in a particular way). But if A decides to say, no, you can't use my room anymore, A is in breach of the contract (and may owe damages, such as whatever money B already paid), but the license clearly has been revoked: B can't use the room now and if B tries, B is a trespasser.

Could the same thing be true here? WOTC says: we're revoking the license. If Walsh and others who have said similar things are right, that's a breach of contract. But even though it's a breach of contract, it might still be true that anyone who goes on and relies on OGL 1.0 anyway might be liable for copyright infringement. The contours of the license and the contours of the contract are different. The other possibility (and I don't have the knowledge or experience to speculate on likelihood) is that given the context, a court would just construe the license itself as irrevocable (or only revocable on the specified grounds).

(The other thing I wonder about, re the contract argument, is whether a court really would understand this as an eternal contract--which courts often are not happy to do. If you publish one book in 2002 using the OGL, are you contractually entitled to the license forever? Or is it just for a "reasonable term"?)

 

[Nylanfs]

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?

I'm pretty sure that the SCO v IBM was the case that I'm thinking of. I tried in my free time today to find the original post where I gathered that info from.

 

[kjdavies]

(IANAL still) How do you read "You may use any authorized version of this License to copy, modify and distribute any Open Game Content originally distributed under any version of this License." (1.0a section 9)? If I make a book and want to use an imagined authorized 1.0b to distribute the monster from Advanced Bestiary as I am seemingly permited to do, which terms would I need to abide by? 1.0a, 1.0b or both? If for instance both have the same section 10 requiering a copy og the lisence; would I need to print the 1.0a one, the 1.0b one or both in the book?

I would think, if both are authorized you can pick the one you like. You'd have to comply with all terms of the one you pick.

Thus, if OGL v1.0a says 'put a copy of OGL v1.0a in the product' and OGL v1.0b says 'put a copy of OGL v1.0b in the product', then whichever license you're working under goes in. And only one, since the other one is not relevant beyond saying "open content is open content".

That said, assuming both are consistent in structure (that is, Sections 1..14 are structured much the same and Section 15 is the copyright notice section you have to populate yourself -- and I'd hate to think they wouldn't keep at least that the same) then you might need to list both OGLs in the Section 15.

My understanding is that the section 9 grant indicate that I only would need to print the 1.0b license. In other words it is the terms the book is published under that need to be upheld, not the terms of the license the author that granted me the right to copy used.

In other words, my understanding is that assuming the current leak of 1.1 get authorized, and 1.0a survives that act; I would be free to publish any monster from Green Ronin's Advanced Bestiary without following any of the provisions stipulated in 1.0a as long as I follow all provisions stipulated in 1.1. If this understanding is wrong, it is right that the entire logic of what I have been rambling about in this thread falls apart, and I would be really curious what the meaning of that section 9 really is.

I don't believe this to be so, because v1.1 means you can't meet the obligations you accepted when using the open content via 1.0a.

For that matter, assuming I'm reading this correctly, Advanced Bestiary exists based on license of SRD/RSRD (I forget which) via OGL v1.0a. If OGL v1.0a is not valid for you, you have no license to use Advanced Bestiary content.

 

[kjdavies]

Wizards is a Contributor of OGC though…

Not in all cases of the OGL v1.0a being used. Fate, for example, uses OGL v1.0a as one of their licensing options (to make it easier to use with other open content licensed via OGL v1.0a) but includes no open content from WotC.

Though yes, in the majority of cases an open content product eventually derives from one SRD or another... or more than one.

 

[kjdavies]

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.)

Does 'irrevocable' mean 'cannot be terminated'? Or does it mean 'committed until terminated'?

The reason I ask, I understand there are events that can terminate an irrevocable contract. For instance, if we had an irrevocable contract: I pay you to paint my house by the end of January. (not likely be irrevocable really but a simple example)

I can see some reasons for termination, even of an irrevocable agreement.

• Completion. You painted my house. I paid you. We all did as we said, contract's done. Terminated.
• Breach. You take off to Hawai'i for three weeks, get back the first week in February. You failed your commitment, you're in breach, surely I'm not still on the hook to pay you for something you didn't do. You might even have to pay a penalty (so I can hire another painter to fix what you did) or possibly damages (the reason we had an irrevocable contract was because I had a contract to sell on February 1 and painting the house was a condition of that contract... which means I've lost money because you wanted to work on your tan).
• Impossibility. My house burned down (let's say via act of god or act of war, both of which might be 'nobody's fault' and excused -- no breach, the contract just can't be completed).
• Death. You died. Or do I go after your heirs to finish the job?

Or do I misunderstand 'irrevocable' as meaning just that the members of the agreement cannot withdraw?

 

[kjdavies]

FATE has been dual licenced for a while under both the OGL and a Creative Commons licence. I suspect that the owner of the IP has the power to make two offers to licence their IP and let the licensee select which one they prefer. Or does this fall afoul of the restriction in the OGL about adding any additional terms or restrictions? My suspicion is that the contract isn't formed until the licensee selects one offer or the other, so this clause doesn't come into play until then. Is this the correct reading?

Separate licenses. If I'm using Fate content via CC then I don't need to follow OGL v1.0a rules, and if I'm using Fate content under OGL v1.0a rules I don't need to follow CC rules.

Evil Hat owns the original text and can license it either way. Or another way entirely. Now, if I want to integrate material from two third-party publishers, each of whom chose a different licensing mechanism for their use of the open content, that I don't know.

 

[FrogReaver]

Here's what I wonder re the latest Walsh edit (and it connects to some of what people have said in this thread as well). Walsh writes:

"Since the contract is accepted when someone “uses” the licensed material, then people who relied on the OGL 1.0a have a good argument under contract law that Wizards of the Coast cannot unilaterally withdraw the value that it offered under the contract."

I think it's potentially important what "cannot" means here. Does it mean the license cannot be taken away?

What she means more or less is that the license will remain in effect. So if WOTC breaches the contract you would have the normal legal remedies available to someone in that position. One of those would be that the court could issue an order obligating WOTC to fulfill the contract. The court may also award monetary damages.

Or does it simply mean: if the license is taken away, WOTC is in breach (for which the normal remedy would be damages).

Theoretically wouldn't that mean they are in breach for perpetuity? No idea how damages would be calculated for that but sounds like it could get expensive fast. I imagine damages would most likely be calculated based on your loses from the start till when WOTC ceased breaching the license. If they breached again then that would be a separate instance that would go to court again.

For a normal non-IP license, this is a critical distinction. Say A agrees to let B use A's room in exchange for B paying A some amount of money. A is giving B a license (i.e., permission to use A's property in a particular way). But if A decides to say, no, you can't use my room anymore, A is in breach of the contract (and may owe damages, such as whatever money B already paid), but the license clearly has been revoked: B can't use the room now and if B tries, B is a trespasser.

Property law isn't a great example to base this on - as there's so many specific laws around property that aren't generally applicable to all contracts.

Could the same thing be true here? WOTC says: we're revoking the license. If Walsh and others who have said similar things are right, that's a breach of contract. But even though it's a breach of contract, it might still be true that anyone who goes on and relies on OGL 1.0 anyway might be liable for copyright infringement.

I don't know that WOTC saying they are revoking the license is enough to cause a breach. I think they may actually need to take some more concrete action against you. A C&D letter or having your content pulled from a site for copyright infringement. Etc. *Again not a lawyer.

Your defense against copyright infringement would be the license. So no, you would not be liable for copyright infringement.

The contours of the license and the contours of the contract are different. The other possibility (and I don't have the knowledge or experience to speculate on likelihood) is that given the context, a court would just construe the license itself as irrevocable (or only revocable on the specified grounds).

There's a fairly strong majority of legal professionals that are coalescing around the notion that it is not revocable (or more precisely only revocable on specified grounds in the contract). Of course the normal caveats that some jurisdiction might be different, or some facts may to light later that change things, etc.

(The other thing I wonder about, re the contract argument, is whether a court really would understand this as an eternal contract--which courts often are not happy to do. If you publish one book in 2002 using the OGL, are you contractually entitled to the license forever? Or is it just for a "reasonable term"?)

Most of the opinions I read say 'consideration of wotc getting something in value and you also getting something in value' is the (or one of the) dividing lines about what you are asking about. (Not sure your terminology is legally correct here).

 

[Steel_Wind]

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.

I am in complete agreement with this sentiment.

 

[bmcdaniel]

Not in all cases of the OGL v1.0a being used. Fate, for example, uses OGL v1.0a as one of their licensing options (to make it easier to use with other open content licensed via OGL v1.0a) but includes no open content from WotC.

Though yes, in the majority of cases an open content product eventually derives from one SRD or another... or more than one.

That's not what OGL 1.0(a) says. It defines Contributors as those persons who have contributed Open Game Content; not those persons who who have contributed Open Game Content to which this copy of the license is attached.

If taken literally, this means that WOTC and every other Open Game Content contributor is a party to every OGL 1.0(a) license, or perhaps equivalently, there is only one license to which everyone is a party.

I freely admit that this interpretation leads to some absurd consequences, which is a reason that courts may not adopt this interpretation. Nevertheless, that's what OGL 1.0(a) says.

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Not legal advice. I'm too tired to type the whole thing out; go find it another post of mine.