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

[pemerton]

However the mechanism and definition of what constitutes a new version in ogl 1.0a appears very clear: The only condition presented is that it is published by wizards or one of their agents (and presumably have to be presented as a new version) If wizards ever publishes the document that has been leaked it appear that at least the 1.0a text clearly claim it is indeed a new version. And we never need to leave the scope of 1.0a to find the central claim of what that entails.

Hence in order to be able to claim that a potentially wizards release of the leaked document is not a version of ogl, it wouldnt be enough to efer to everyday understanding of words in a way that can be important to understand terms across texts. You would need to somehow invoke some overall principle that limits a contracts ability to effectively redefine the term "version" away from everyday understanding within the scope of a single paragraph.

And this is where IANAL limits me. I have no idea if there might be any such legal mechanism under any juristiction?

You keep repeating IANAL but then assert legal conclusions that to me do not seem warranted by techniques of legal reasoning.

For instance, you say " in order to be able to claim that a potentially wizards release of the leaked document is not a version of ogl, it wouldnt be enough to efer to everyday understanding of words in a way that can be important to understand terms across texts. You would need to somehow invoke some overall principle that limits a contracts ability to effectively redefine the term "version" away from everyday understanding within the scope of a single paragraph". What is your basis for asserting this? I've already told you what my reasoning is, and it does not depend upon any "overall principle", other than attempting to construe the text of the OGL v 1.0/1.0a itself.

I mean, you have also fairly recently posted this:

Your argument seem to hinge on a particular understanding of the "authorized" term noone really seem to understand the scope and legal meaning of.

But I've posted, several times over the past few days, a straightforward construction of section 9 of the OGL v 1.0/1.0a. Here's an example, posted in reply to you:

Section 9 says "Wizards or its designated Agents may publish updated versions of this License. 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."

So section 9 does two things.

It gives WotC a permission to publish new licences.

And it gives licensees a permission to use those licences (which are, ipso facto, authorised licences) to use (in the indicated ways) OGC distributed under any version of the licence. Those versions must of necessity be authorised versions, because if not then they don't create OGC!

You seem to be assuming that authorisation is a variable property of a licence, analogous to how (say) being an employee is a variable property of a person (often they are, but maybe they retire or lose their job and so cease to be). But that's not correct. Authorisation is a constant property of a licence, that it enjoys in virtue of having been published as a licence by WotC (or its agent).

Material can be used under v 1.0/1.0a only if it is "OGC originally distributed under any version of the OGL v 1.0/1.0a".

And material that is licensed only under v 1.1 will not be "OGC originally distributed under a version of the OGL v 1.0/1.0a". The drafting of v 1.1 will ensure that. We've already seen one way it does this: it doesn't create OGC at all, but rather Licensed Content.

What you say about "the only way for 1.1 to call itself legally an "update"" isn't correct. WotC can publish a new licence and call it whatever they want. There is no legal restriction on this, other than general decency laws and bars on using protected public names (in Australia these are names to do with the Crown, the government, ANZACs and Don Bradman; I assume the US has similar sorts of protected names).

"Authorised" is not a "keyword" - I've explained above, as well as in an earlier post upthread (#556, and see also my post #562) that it appears with its ordinary English meaning.

And here's one of the posts that that post pointed to:

Here is the text of section 9:

Wizards or its designated Agents may publish updated versions of this License. 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.​

"Authorised" means published with appropriate authority, ie by WotC or one of its designated agents. There is no need to use the word "authorised" in the last occurrence of "version" because it would be tautologous - OGC can by definition only be distributed under an authorised licence, because otherwise it wouldn't be OGC (which is a category of content constituted by the operation of a valid licence along the lines of the OGL).

Thus, the meaning of the provision is:

WotC or its designated agents may publish versions of this Licence that contain different terms, and you may use this version or any other such version to [use] any OGC originally distributed under this Licence or any other such version.​

As I've posted already, this confers a power on WotC, to make available OGLs with variant terms, and any licensee can choose from among the candidate OGLs which one to use when they use OGC.

I mean, if someone else has a credible alternative construction I'm happy to hear it, but what I've set out just above seems reasonably straightforward to me.

In those posts, given what I was replying to, I didn't emphasise the need for the variant licence to be a version of the OGL v 1.0/1.0a, but that is also something I have identified multiple times in this thread.

Here is an illustration of the question at issue, as I see it:

WotC licenses the SRD to X pursuant to the terms of the OGL v 1.0a. X then publishes a work that contains both some of WotC's OGC and some OGC of their own. X does so in compliance with the terms of the OGL v 1.0a, and hence offers a licence in respect of the OGC to all the world.

Now WotC promulgates a new licence text, that they label "OGL v 2", and that they declare to be an authorised update to OGL v 1.0a, and that contains the following additional text: "Notwithstanding any other provision of this licence, if a Contributor distributes Your OGC then You must send a cheque for $100 to WotC."

Now, Y takes up X's offer, and publishes a work that contains some of WotC's OGC, some of X's OGC, and some OGC of their own. And again, as required by the terms of their licence, Y makes a licence offer to all the world on the same terms. But they set out as the terms of their licence OGL v 2 (purporting to do so under the terms of section 9 of the OGL v 1.0a).

Z now publishes a work that contains some of X's OGC and some of Y's OGC. Is anyone - X? Y? Z? - now obliged to send a $100 cheque to WotC?​

I don't pretend that there is a crystal-clear answer to this question. But I have two thoughts about it.

First, I don't think it's obvious that, by agreeing to section 9 of the OGL v 1.0a, X and Y have agreed that WotC and Z have a joint power (operating by way of (i) WotC publishing a licence variant and then (ii) Z using it to distribute X and Y's OGC) to vary the terms of their licence such that in the future they (that is, X and Y) become obliged to send $100 cheques to WotC.

Second, one basis on which my first thought can be cashed out is that the purported version - OGL v 2 - is not in fact a version of the licence as contemplated by section 9, one reason being that it purports to change the permissions and obligations of parties in respect of their use of OGC.

What I wanted explained what was wrong was the reasoning leading to my bolded conclusion. Pointing out that wizards could cause a lot more damage than others if they exersise some power of revocation that any contributor have is irrelevant as far as I can see? This part was also mostly a motivation to see closer on the powers formally granted wizards, and it was this that leead to the discovery that "version of OGL" is most naturally understood as dead text that could plausably change "autorized" status without (significantly) altering the state of any existing agreements based on that text. In other words The 1.0a text no longer being authorized would not imply any actual agreement getting revoked trough any automatic legal mechanism.

I don't understand what you mean by your bolded conclusion - eg what is an "automatic legal mechanism"? - and I don't understand the reasoning leading you to it.

There is no scope, that I can see, within the OGL v 1.0a, for a version of the licence to cease to be authorised. There is only scope for new versions to be promulgated. And I think the differences between v 1.0 and v 1.0a give an indication of the sorts of things that can vary between versions: in that case, it is the manner in which licensing parties reserve (or don't) their rights in respect of their product identity. Because that is not something that purports to change the permissions and powers in respect of OGC that are transmitted through the network of contracts that the licence is designed to give rise to.

I reiterate: the above is not intended to be definitive. Perhaps my first thought is wrong; and even if it's not, perhaps my second thought is wrong. But I have tried to explain the reasoning that leads me to tentatively entertain those thoughts.

 

[Steel_Wind]

Thats an interesting viewpoint. I will say that, at least in my own practice, I tend to the opposite view: US law tends to focus more on the underlying substance, whereas English law and the law of other countries (Canada being a notable exception) tends to be more formalistic/concerned with process and formalities than US.

(On the other hand, I do believe that US litigation is more concerned with process and formalities than other jurisdictions. But litigation is only a small part of the law.)

I think the litigation part dominates the legal reputation aspect of things. As between the three countries, the USA certainly is more technical in all aspects of its process and formalities. Part of the problem stems from frequently overlapping and concurrent jurisdiction between State and Federal laws in the USA; the rest is just part of its legal culture. I do think that the litigation salt overwhelms the flavour, in terms of America's overall legal reputation.

In contrast, The UK is seen by Canadians as retaining certain harsh classist, neo-Victorian aspects of its laws, most especially when it comes to contracts. The Brits have a hard-ass reputation when it comes to equity and fairness in commercial matters. Some mother with a kid dressed looking vaguely like Oliver Twist is in that courtroom somewhere, about to be turned out of their flat after agreeing to something unconscionable.

In Canada, well... let's just say that about HALF of all submissions to the court at any hearing will begin with counsel apologizing to the court about something. "We're sorry about [something] this morning - and we're especially very sorry to trouble the court with this matter." Yes, we are less technical in our procedure than the US, and yes, we are less hard-ass about contracts and commerce (when we can be) than either the USA or UK. Our juries are less likely to convict; our sentences are often shorter than in either the UK (usually) or the USA (always), too. In any event, our prisons are less squalid, and our inmates are treated more gently, overall. The reputation for being overly-apologetic, polite, and nice is a bit of a joke -- but it contains more than a little cultural truth, too.

 

[Knuffeldraak]

This post makes literally no sense. I have to ask, with respect, are you using Google translate or something to translate from a non-English language?

This bolded bit is absolutely nonsensical in English. It literally makes no sense. First off, it claims the DMG only "shortly and vaguely" talks about firearms (we shall ignore "very openly", that's got to be a typo or artifact, doesn't make sense), which is patently false. Also it's quoting someone? Why?

Dungeon Master’s Guide

Everything a Dungeon Master needs to weave legendary stories for the world’s greatest roleplaying game. Entertain and Inspire Your Players.

www.dndbeyond.com

The DMG has 10 firearms, and special rules for reloading, burst fire, and ammunition for firearms. That's neither "short" nor "vague". That's quite detailed.

Your next sentence then says "These came no sooner than October 2017, and another portion in July 2020". What is "these" in this sentence? Logically, it appears to be referring to the DMG, but it's obviously not true. The DMG came out in 2014.

Then we have some stuff about an Artificer UA - is that the firearms UA you're referring to?

Further, AFAIK, there's literally ONE Feat that supports firearms, Gunner. You refer to Feats plural, what are the rest? What books are they in?

I mean, it's looks like you're using some kind of translation software here, or quoting someone else. If either is true, that's causing a problem, to be clear.

But let's try one more time:

Where, exactly, are the D&D rules that you're claiming are taken from the Gunslinger homebrew? And where can I find the Gunslinger homebrew they were taken from?

EDIT: LOL are you going to say the Exandria book? Because I'm guessing that's it. That is Matt Mercer's work, just published by WotC...

My bad, I thought the section on firearms ended on p267, didn't see it followed on the second page afterwards.

But no I was referring to the Fighter (Gunslinger) page that came out end '15 / begin '16

 

[pemerton]

Law podcast Opening Arguments made this tweet where they use a very hostile tone against Linda Codega's reporting of the situation:
They claim Linda very much misrepresents what's happening (even implying that we should be preparing pitchforks not against WotC but against Linda!).

TBH I'm very confused. I thought nothing that Linda said was inaccurate legal analysis, add to the fact that they consulted lawyers before publishing their piece, and that the conclusions were mostly in line with the lawyers in the forums are saying.

The following appears in the Gizmodo article:

One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement.” By ending the original OGL, many licensed publishers will have to completely overhaul their products and distribution in order to comply with the updated rules.​

At the time this was published, multiple posters on this forum with legal expertise had expressed the view that WotC has no power to "end" the original OGL, in the sense of unilaterally brining to an end the permissions enjoyed under licence by existing licensees.

It's just worrying that a half-baked "teknikly tru" take might give some ammunition to WotC to paint the whole fiasco as overblown fan reaction.

I'm not worried.

Quite a way upthread, the following was posted by a legal expert:

None of the above is particularly controversial. Its basic U.S. contract law. I strongly suspect that either (x) WOTC is trying to spread fear, uncertainty and doubt to convince people to use a new license OR that the community is misinterpreting a new license whereby a specific licensee agrees to terminate the OGL as a general termination of the OGL. Based on the way that most corporate attorneys work, I suspect option is what is happening, but it is possible that option (x) is occuring.

I replied that I thought is what is happening.

Since then I've thought it's may be plausible that there is a bit of (x) as well, but it's not clear. But to me there has definitely been a lot of needless confusion spread, at least in some of the discussions on these boards, by posters who don't appear to be very familiar with some of the basic legal elements in play.

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).

There has been some discussion of this. I raised in post 190 upthread. @DavyGreenwind raised it in post 1436. And I saw that @S'mon replied to you.

Here is a further thought:

Suppose, for the sake of argument, that WotC has a contractual obligation to X, a licensee pursuant to the OGL v 1.0a, to keep the licence on foot. And then WotC purports to revoke the licence, and then proceeds against X for copyright infringement. X pleads in their defence that they enjoy a licence to do what their doing. For WotC to succeed in confining X to damages for breach of contract, they have to establish that they can rely on their unlawful (because contract-breaching) revocation in determining the nature of the legal relationship between them and X.

I don't know if US contract law permits WotC to do that. But to me it's not obvious that they can. And I agree with @S'mon that X succeeding in their defence in this context is not the same as receiving an affirmative order for specific performance.

 

[Ondath]

The following appears in the Gizmodo article:

One of the biggest changes to the document is that it updates the previously available OGL 1.0 to state it is “no longer an authorized license agreement.” By ending the original OGL, many licensed publishers will have to completely overhaul their products and distribution in order to comply with the updated rules.​

At the time this was published, multiple posters on this forum with legal expertise had expressed the view that WotC has no power to "end" the original OGL, in the sense of unilaterally brining to an end the permissions enjoyed under licence by existing licensees.

I'm not worried.

Quite a way upthread, the following was posted by a legal expert:
I replied that I thought is what is happening.

Since then I've thought it's may be plausible that there is a bit of (x) as well, but it's not clear. But to me there has definitely been a lot of needless confusion spread, at least in some of the discussions on these boards, by posters who don't appear to be very familiar with some of the basic legal elements in play.

I mean, if ends up being correct (and if current licensees of the OGL v1.0a can sublicense it — e.g. if I can make content for Level Up under their SRD), a large part of my worries will be assuaged. I probably will be moving away from D&D even under that interpretation, but at least the D&D-like games that I love will still exist in their current forms. In that scenario, I might consider returning to a potential D&D 7E when they fix their anti-OGL attitude.

But if instead they're going scorced earth and the OGL v1.0a will no longer be usable, I will never publicly interact with D&D in any shape or form and discourage my local TTRPG community to do so as well.

 

[pemerton]

I mean, if ends up being correct (and if current licensees of the OGL v1.0a can sublicense it — e.g. if I can make content for Level Up under their SRD), a large part of my worries will be assuaged. I probably will be moving away from D&D even under that interpretation, but at least the D&D-like games that I love will still exist in their current forms. In that scenario, I might consider returning to a potential D&D 7E when they fix their anti-OGL attitude.

But if instead they're going scorced earth and the OGL v1.0a will no longer be usable, I will never publicly interact with D&D in any shape or form and discourage my local TTRPG community to do so as well.

I don't know what you mean by "going scorched earth and the OGL v 1.0a will no longer be usable".

If, as matter of law, rights under the OGL v 1.0a are not revocable, then that's that and WotC can't change it. If by "scorched earth" you mean WotC's litigation strategy, articles in Gizmodo and posts on ENworld can't really tell you what that is going to be.

 

[pemerton]

@bmcdaniel @Steel_Wind

On the topic of legal culture and the way legal doctrine is understood, it's relatively common place among Australian legal scholars and the North American legal scholars with whom we interact that Australia is far more formalistic than North America - for some US scholars, almost unthinkably so.

The spectrum I work on is Australia > the UK and NZ > Canada > the US. (Where ">" means "is more formalistic than".)

As far as litigation culture is concerned, I don't have as strong a sense of it but what I have heard is that US litigation culture (including courtroom behaviour) is far more aggressive than in Australia.

 

[Steel_Wind]

I don't know what you mean by "going scorched earth and the OGL v 1.0a will no longer be usable".

If, as matter of law, rights under the OGL v 1.0a are not revocable, then that's that and WotC can't change it. If by "scorched earth" you mean WotC's litigation strategy, articles in Gizmodo and posts on ENworld can't really tell you what that is going to be.

There is a middle ground option, too; that the OGL 1.0a can't be gotten rid of by those who have exercised it, but it can be withdrawn on a go-forward basis. That leaves the status of those who have already exercised it to be resolved going forward. I think it will mean that if "A" has published an articles under the OGL1.0a, they (and others) can continue to cite that work and make further derived works under the OGL 1.0a, and sub-licenses will continue as well.

To hold otherwise would leave someone like much of Paizo's material marooned and stopped going forward. I don't see that result happening, though how, doctrinally, that is resolved and explained is less clear to me.

 

[Ruin Explorer]

My bad, I thought the section on firearms ended on p267, didn't see it followed on the second page afterwards.

But no I was referring to the Fighter (Gunslinger) page that came out end '15 / begin '16

Ok, so where was the Fighter (Gunslinger) ripped off by WotC?

 

[Nikosandros]

@bmcdaniel @Steel_Wind

On the topic of legal culture and the way legal doctrine is understood, it's relatively common place among Australian legal scholars and the North American legal scholars with whom we interact that Australia is far more formalistic than North America - for some US scholars, almost unthinkably so.

The spectrum I work on is Australia > the UK and NZ > Canada > the US. (Where ">" means "is more formalistic than".)

When you write ">" do you mean that the formalism is strictly greater or greater than or equal? Also, is the set of all possible legal system a fully ordered or just partially ordered set?