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

[Jerik]

I don't know what "unsafe hands" means here. The point of the OGL is not to give WotC unilateral control over use and dissemination of OGC. Rather, it's whole point is that it takes OGC out of their control. The only thing that is in WotC's hands is the copyright of the OGL itself, but they have granted express or implicit permission to all their licensees to reproduce it in accordance with the licence terms.

Well, yeah, but WotC seems to have indicated that they may be trying to walk that back; even if that wouldn't hold up in court, and even if they never end up following through on it, their intimations on the matter are enough that 3pps are already fleeing the OGL. Maybe "unsafe hands" wasn't the best wording; all I meant was that if WotC is willing to pull these kinds of shenanigans it's likely that Paizo would think the OGL isn't worth the trouble and after this they would have wanted to create a different license regardless of what terms WotC's new license might end up having. I'm offering no opinion on Wizards of the Coast's legal standing to stop the dissemination of their Open Game Content; I'm not a lawyer, and many people in this thread who are lawyers, yourself included, have already addressed that matter in depth. All I'm saying is, regardless of their legal standing to revoke the OGL or whatever it is they're actually trying to do, they're muddying the waters enough that Paizo and other companies are likely to want to avoid working with their license if they have a choice.

 

[pemerton]

I have a question for the lawyers here. The legality of de-authorising the OGL is in doubt, but what about revoking SRD 5.1? Can they choose to leave OGL 1.0(a) alone, but revoke SRD 5.1 and replace it with an extremely bare bones 5.2 that effectively revokes the OGL?

You've had a reply or two to this.

I want to add: a lot of discussion proceeds on a confused view of how the OGL works, legally.

When WotC (or anyone else) releases a publication (such as an SRD) "under" the OGL v 1.0/1.0a, what they are doing is offering to enter into a licence contract, on the terms of the OGL, with any party who agrees to those terms. And what the licence does is authorise the licensee to reproduce the licensor's copyrighted text, and to publish other work that might be an infringement of the licensor's copyright; and also to pass on to further parties a licence over the same text on the same terms. What makes it a contract is that the licensee also makes promises to the licensors (eg WotC): they promise not to reproduce product identity, and they promise to make their own copyrighted OGC available on the same licence terms.

The effect of this sort of approach to copyright licensing is to create a big, intricate network of contracts between all the parties who are using one another's OGC. You can see the links in this network expressed in the section 15 declaration in each publication that is published pursuant to these licences.

There are three ways that the original licensor (eg WotC in respect of its SRDs) is different from all the other links in the chain:

(a) It freely made the offer to license its SRD. Therefore it can retract that offer at any time. Whereas other parties have made a binding contractual promise to keep their offers open. The practical implication of WotC withdrawing its offer is small, because there are other parties who have already taken up the offer and so are contractually entitled to keep producing the SRD text and to sub-license it to others.

(b) WotC has a power to publish variant licences under section 9 of the licence agreement. Because the same section allows downstream licensees to pick and choose from the published variants, the significance of this power is modest. (As the original OGL FAQ explained.)

(c) WotC owns the copyright in the licence text itself. Because an important term of the licence is that licensees must reproduce it in their licensed publications, this means that they need permission from WotC to reproduce its copyrighted text. This permission has been either expressly granted (there were some notices from WotC to this effect back in the day, I believe) or implicitly granted as part of entering into the licence itself.​

In this thread, I think the only lawyer to defend the view that WotC can withdraw its licences, despite its contractual promise to grant them, is the OP. Even if that view is correct, which I think is doubtful, it would leave all the other contracts in the network, in respect of other parties' OGC, undisturbed - WotC has no power to terminate contracts that exist between (say) me and you, even if the terms of our contract are set out in text copyrighted by WotC.

If, contrary to what I think is the better view, WotC was able to withdraw its licence, that would make the surviving contracts more complicated, because some of them might concern OGC which (in the absence of a licence from WotC) is infringing of WotC's copyright. But the contracts themselves would survive.

 

[pemerton]

Well, yeah, but WotC seems to have indicated that they may be trying to walk that back; even if that wouldn't hold up in court, and even if they never end up following through on it, their intimations on the matter are enough that 3pps are already fleeing the OGL.

My point is that the whole idea of a safe harbour is to provide shelter from shenanigans. If people flee the harbour at the first sign of shenanigans, then either (i) they're confused or (ii) it was never a safe harbour at all!

if WotC can attempt to rescind it, it seems that it is not really out of their control.

Anyone can send a C&D, or a claim for your money. You must get them all the time in your spam folder, just like the rest of us. That is not exercising control - it's just one party exaggerating it's legal rights. A safe harbour can't, and never could, stop that happening. The point of it is to actually create legal rights.

For two decades (almost) everyone thought that it could not be rescinded and that WotC would not go back on its promise. Turns out that the second one was wrong and that the harbor might not be as safe as it was thought; probably not because WotC can really win a case but because almost everyone is afraid to find out.

For me, this gets to the heart of it: if no one is prepared to lean into the could not, because they were all relying on the would not, then the whole notion of a legal guaranteed safe harbour was a charade. It turns out the OGL, in practical terms, was no different from a reassurance, repeated by WotC from time to time, that they would be nice and let people play with their toys.

It's a defense against the idea that the license itself can be changed due to strong-arm legal tactics. Paizo will relinquish control of the license to a law firm for care-taking until a foundation can take charge of it. The idea is that even if Paizo should be taken over by space Nazis, they won't be able to do anything to change the license.

To me this makes no real sense.

WotC is now - it seems - purporting to unilaterally change the terms of its licence contracts. Paizo could do exactly the same thing in the future. A promise by Paizo now that it won't do that is worth no more or less than WotC's promise 20 or 10 or 2 years ago that it would not.

This is what I mean by the legal stuff all turning out to have been an apparent waste of time. 3PPs got a robust legal agreement from WotC, but as soon as WotC huffs and puffs they run away - perhaps rationally so, given the costs of litigation, but their legal protection turns out to be worthless to them.

So why does anyone think getting differently-worded legal protection from Paizo makes them any better off. As you note, a Paizo of the future could huff and puff as well, and the costs of litigation are unlikely to go down over time.

Many different publishers plant to release different systems under ORC. There will not be a Paizo-dominated ecosystem.

This is, in a formal sense, no different from the existing state of affairs, where many publishers have their own SRDs licensed under the OGL or similar licences.

In a practical sense, it seems to me that Paizo clearly wants 3PPs to cluster around it's games, so it can get the same benefits from 3PP licensing as Ryan Dancey wanted WotC to get. If they succeed, their commercial situation seems analogous to WotC's.

EDITed to correct misattributed quote (with apologies to @Jerik and @Nikosandros).

 

[Nikosandros]

My point is that the whole idea of a safe harbour is to provide shelter from shenanigans. If people flee the harbour at the first sign of shenanigans, then either (i) they're confused or (ii) it was never a safe harbour at all!

Yes, it seems it was not really a safe harbor after all. Or maybe it was, but many don't realize it. I've seen some publishers stating that they will go on with OGL 1.0 no matter what WotC says.

WotC is now - it seems - purporting to unilaterally change the terms of its licence contracts. Paizo could do exactly the same thing in the future. A promise by Paizo now that it won't do that is worth no more or less than WotC's promise 20 or 10 or 2 years ago that it would not

The difference is that Paizo will not control the license.

In a practical sense, it seems to me that Paizo clearly wants 3PPs to cluster around it's games, so it can get the same benefits from 3PP licensing as Ryan Dancey wanted WotC to get. If they succeed, their commercial situation seems analogous to WotC's.

You seem to have ignored the part where I mentioned multiple publishers using ORC. For example, Kobold Press will release Black Flag which will not be PF-conpatible, so the situation appears to me quite different.

 

[robconley]

To me it seems to be a commercial device that serves the same commercial purpose for them as the OGL did for WotC when it was released, namely, creating an ecology of 3PPs who contribute to support for Paizo's game(s) and become part of a common (but Paizo-dominated) ecosystem.

That is incorrect, it is meant to be a general purpose open content license controlled by a non-profit similar to how open source licenses are traditionally administered. It is drawing further lessons from the open source experience to tighten up the language and administration of the license.

What you are missing is the social component of the situation.

Whether ORC is an effective shield against Wizards for a D&D related system is a separate issue. Regardless of what happens to Paizo, the point of the overall effort is to reignite the open content ideal that propelled the original OGL. Make no mistake, Dancey may have made commercial arguments to get Wizard's management to accept it. But behind it is the same idealism and altruism that propelled the open source world forward.

If you don't think that the current management of Paizo along with running RPG companies don't share that idealism then you need to take another look at their biographies including mine at Bat in the Attic Games.

 

[Jerik]

My point is that the whole idea of a safe harbour is to provide shelter from shenanigans. If people flee the harbour at the first sign of shenanigans, then either (i) they're confused or (ii) it was never a safe harbour at all!

OK, but I'm not sure how this relates to what I wrote? So either the OGL was never a safe harbor, or WotC is sowing enough confusion to mislead a lot of people and make them erroneously think it isn't; either way, they're making the OGL a whole lot less attractive for Paizo and other companies, regardless of what ends up being in the new license. That was all I was saying.

if WotC can attempt to rescind it, it seems that it is not really out of their control.

You quoted the wrong person here; this isn't something I said.

 

[Staffan]

Sure, but I'm an specifically trying to understand what Max thinks WotC's objective would be in suing a "weakling".

Any related case would go something like this:

1. WOTC: Bob's Games is infringing on our copyright. Make them stop, and also make them pay us a billion zillion dollars.
2. Bob's Games: We are not. WOTC has licensed me to reproduce their material according to this license here (OGL 1.0(a)).
3. WOTC: That is no longer a valid license. We issued a new version in 2023 with these terms instead (OGL 2.0).
4. Bob's Games: But it says here that it is perpetual, and that if WOTC issues an updated license I can choose which one we use.
5. WOTC: Which authorized version you can use. The OGL 1.0(a) is no longer authorized.
6. Bob's Games: They do not have that ability. Here are a bunch of statements from the people involved in creating the license that they intended it to be irrevocable, and that "authorized" was intended to differentiate between the actually released license and the draft licenses circulated before the actual release.

At that point, the court has to decide whether the license can be revoked/unauthorized or not. That is precedent that will also affect Paizo and other 3PPs. They have a vested interest in supporting Bob's Games, at least up to this point.

Based on how this part shakes out, the question would then be either "Has Bob's Games followed the terms of the license?" if the license is still valid, or "Does Bob's Games' product actually violate WOTC's copyright?" if it's not. I'm not familiar enough with the US court systems to know whether they handle things like this sequentially or all at once. Sequentially would seem more efficient, but who knows?

 

[pemerton]

You seem to have ignored the part where I mentioned multiple publishers using ORC. For example, Kobold Press will release Black Flag which will not be PF-conpatible, so the situation appears to me quite different.

I'm not ignoring that. I just don't see how it's any different, in structural terms, from Mongoose, Evil Hat, Chaosium etc all of whom have RPG systems released under various sorts of open licences.

The difference is that Paizo will not control the license.

I don't know what you mean by this.

They will not own the copyright in it - but none of the current debates about the OGL turn on WotC's copyright in respect of it.

Paizo will absolutely control the terms on which it enters into licence agreements, though. That's the essence of a contract! And it can purport to "de-authorise" those contracts exactly the same as WotC is - by sending a letter or issuing a press release saying that as of such-and-such a date all existing licence agreements are no longer in force.

 

[Nikosandros]

I seem unable to express myself clearly, so I'll just drop this line of conversation.

 

[pemerton]

You quoted the wrong person here; this isn't something I said.

Yes, I just noticed this and am trying to fix it but my browser lost my edit. I apologise to you and @Nikosandros.